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1976 DIGILAW 873 (ALL)

Sharda Prasad v. Uttar Pradesh Sarkar

1976-12-20

H.N.AGARWAL

body1976
JUDGMENT H.N. Agrawal, Member. - This is a reference made by Sri S.M. Hasan, Additional Commissioner, Faizabad Division, Faizabad, recommending that the revision against the order dated August 27, 1970 passed by the Sub-Divisional Officer in a case under Section 198(2), U.P.Z.A. and L.R. Act, may be dismissed. 2. I have heard the learned counsels for the parties and have gone through the record. 3. The learned counsel for the revisionists has argued that the order of the Sub-Divisional Officer is without jurisdiction as only the Collector and not the Sub-Divisional Officer is authorised to cancel a lease granted by the Land Management Committee. The learned counsel has in this connection referred to Mohammad Shafi v. State of U.P., 1976 R.D. 250, in which S.S. Ahmad, Member, has held as follows: "4 The main point involved in this revision is whether the S.D.O. had the jurisdiction to cancel leases of land allotted by the L.M.C. to be used as Abadi sites. The learned Additional Commissioner who considered this matter in his referring order has taken the view that the S.D.O. did have this jurisdiction and therefore the cancellation order was perfectly regular and fully within the competence of the S.D.O. "This, however, does not appear to be the correct legal position. The allotment of land for Abadi sites is done under Section 122-C of Z.A. and L.R. Act read with Rule 115-N of Z.A. Rules. Cancellation of leases executed under these provisions can be done by the Collector (and not by the S.D.O. or Asstt. Collector Incharge of the Sub-Division) in view of the provisions of U.P. Act No. XXI of 1971 which came into effect on May 24, 1971 and Rule 115-P of Z.A. Rules which was substituted for the previous rule by Notification No. 256 Rajaswa-i-I-3(1)-71, dated March 16, 17, 1972. The amended Rule came into force from March 16/17, 1972. According to these amendments the power to cancel leases no longer vested in the S.D.O. and can be exercised by the Collector alone." In review of this judgment (1976 R.D. 303), the learned Member has further observed as follows: "Coming to the powers of S.D.O. the learned counsel for the O.P. has shown Notification No. 305/I-A-2-1(2)-68, dated December 5, 1968, that the Government has empowered all the S.D.Os. in Uttar Pradesh to discharge all the functions of the Collector under the said Act except those under Sec. 190 of the Z.A. and L.R. Act. This notification or the notification referred to by the learned District Government Counsel have to be read in the context in which the term 'Assistant Collector Incharge of the Sub-Division' and 'Collector' have been used by the insertion of new Section 122-C and 123 of the U.P. Land Laws Amendment Act, 1971. It would be seen that distinct duties have been assigned to the Assistant Collector Incharge of the Sub-Division to the Collector under this enactment. If it had been the intention of the Z.A. and L.R. Act or the Notification issued thereunder prior to 1971 that the Assistant Collector Incharge of the Sub-Division should perform all or any of the functions to be performed by Collector, there was absolutely none to use the word 'Collector' as distinguished from the Assistant Collector Incharge of the Sub-Division. Sub section (6) of Section 122-C provided that the Collector could look into irregular allotments and could cancel them if he found then to be irregular. However, this power was not given to the 'Assistant Collector Incharge of Sub-Division." 4. I have considered the legal position and would concur with my learned colleague subject to the following observations. The position is that previously sub-section (2) of Section 198, U.P.Z.A. and L.R. Act read as follows: "The Assistant Collector in charge of the Sub-Division may on his own motion and shall on the application of any person aggrieved by an order of the Land Management Committee passed under sub-section (1) enquire in the manner prescribed into an allotment made under sub-section (1)." By the President's Act XVII of 1968, this was substituted by the following: "The Collector may of his own motion and shall on the application of any person aggrieved by an order of the Land Management Committee passed under sub-section (1) enquire in the manner prescribed into an allotment made under sub-section." Thus, the powers of enquiring into grant of lease in an irregular manner and cancellation of the leases were withdrawn from the Sub-Divisional Officers and conferred to the Collector. Further by Notification No. 305/I-a-2-1(2)- 68, dated December 5, 1968 published in the U.P. Gazette dated December 14, 1968, it has been provided that the Sub-Divisional Officer may discharge all the functions of the Collector except those under Section 198, By U.P. Land Laws Amendment Act, 1969, the following provision was made. "23 Transitory provisions - No-withstanding the amendments made in Section 198 of, and in Section II to, the principal Act, by this Act- (a) The jurisdiction to make inquiries and pass orders under sub-section (2) of the said Section 198; and (b) The jurisdiction to entertain and decide suits under sub-section (4) of the said section, In relation to allotments referred to in sub-section (1) of the said section, made prior to June 28, 1968, shall continue to vest in the Assistant Collector-in-charge of the Sub-Division as if this Act had not been passed." Thus, the effect of the above section would be that notwithstanding the amendment made in Section 198 by Act XVII of 1968, the Assistant Collector Incharge of the Sub-Division will continue to have the jurisdiction to make enquires and pass orders under sub-section (2) of Section 198 in relation to allotments made prior to June 28, 1968. In relation to allotments made subsequent to June 28, 1968, however, only the Collector will have this jurisdiction. The provisions of the U.P. Land Laws Amendment Act, 1969 do not appear to have been brought to the notice of the learned Member Sri S.S. Ahmad. In respect of allotments made after June 28, 1968, the observation made by the learned Member would hold good. The validity of the order of the Sub-Divisional Officer in respect to an allotment made before June 28, 1968, however, cannot be challenged on the ground of lack of jurisdiction. In the present case, allotment was made on April 2, 1966. Thus, the Sub-Divisional Officer had the jurisdiction to pass the impugned order. 5. Coming to the merits of the revision, the first ground taken is that the Sub-Divisional Officer by his order dated February 1, 1967 upheld the leases in respect of plots No. 42 and 48 in favour of the revisionist, and now the successor Court could not again cancel the leases. This contention cannot be accepted. 5. Coming to the merits of the revision, the first ground taken is that the Sub-Divisional Officer by his order dated February 1, 1967 upheld the leases in respect of plots No. 42 and 48 in favour of the revisionist, and now the successor Court could not again cancel the leases. This contention cannot be accepted. A perusal of the record shows that the order of the Sub-Divisional Officer dated February 1, 1967 was not a judicial but only an administrative order. Further, in this order the Sub-Divisional Officer did not say that he upheld the lease in respect of plots No. 42 and 48. He merely said that the lease in respect of plot No. 131 deserves to be cancelled and action under Section 198 may be started. Thus, this order of the Sub-Divisional Officer dated February 1, 1967 cannot bar any subsequent order in judicial proceedings under Section 198, U.P.Z.A. and L.R. Act. 6. The next contention is that no order for suo motu action was made by Sub-Divisional Officer and no notice was given to the lessees stating the grounds for cancelling the lease and thus the whole proceedings are vitiated in law. This contention also is untenable. The record shows that an application had been moved before the Tehsildar on June 12, 1966 by one Chandra Shekhar Misra for making an enquiry into irregular allotment of land of public utility in his village, on which an enquiry had already been started by the Tehsil authorities. Meanwhile Chandra Shekhar also moved an application before the Sub-Divisional Officer on January 5, 1967 for taking suo motu action for cancelling the lease granted in favour of the revisionist. The Sub-Divisional Officer has ordered on February 1, 1967 that action under Section 198, U.P.Z.A. Abolition and L.R. Act may be taken. Further, on January 27, 1968 the Sub-Divisional Officer passed the detailed order deciding to take suo motu action and ordering the issue of the notice to the revisionist why the Patta should not be cancelled. Thus, it is factually wrong that no order for suo motu action was passed by the Sub-Divisional Officer. The order for the issue of the notice is also on the record. Thus, it is factually wrong that no order for suo motu action was passed by the Sub-Divisional Officer. The order for the issue of the notice is also on the record. The notice itself is not on record, but the written statement filed by revisionist on February 7, 1968 before the Sub-Divisional Officer shows that they had in fact due notice and understood the nature of the case against them and also were given due opportunity to produce their oral and documentary evidence. Where the allottees have due notice of the proceedings against them, and have been given due opportunity to file their objections and to produce their oral and documentary evidence, the question whether or not there was a formal notice in fact issued is not material. Even if such a notice has not in fact been issued, it will not be considered to be a material irregularity if it has not been shown that any miscarriage of justice has thereby been caused. 7. The learned counsel fort he revisionist has also contended that the leases were executed according to law and no illegality was committed by the Land Management Committee, and that the court below did not judicially consider the material evidence on record and its finding is perverse. This contention cannot be accepted. The learned Sub-Divisional Officer has judicially considered the entire evidence on record at length. It has come to the finding that no proper proceedings were taken by the Chairman, Land Management Committee nor the provisions of Para 79 of the Gaon Samaj Manual strictly observed. The number of plots alongwith the full particulars of location and area were not published by beat of drums. No list of persons present at the time of allotment was prepared in the meeting as provided under para 79 of the Gaon Samaj Manual and Rules 173 to 175 of the U.P.Z.A. and L.R. Rules. The revisionist Sharda Prasad is the son of Triveni Prasad who was a member of the Land Management Committee and no prior permission for grant of patta in his favour as required under Section 28-C of the Panchayat Raj Act and Zila Kshetriya Samiti Act was obtained. These findings have been upheld by the learned Additional Commissioner and are well based on the evidence. I find no reason to disagree with these findings. 8. The revision has no force and it is hereby dismissed.