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1978 DIGILAW 722 (ALL)

Iqbal Ahmad v. Afaq Ahmad

1978-07-26

G.S.SIAL

body1978
JUDGMENT G.S. Sial, Member. - These are four connected references made by the Additional Commissioner, Varanasi Division, arising out of a case under Section 247-B of the U.P. ZA and LR Act recommending that the revisions be dismissed. It was claimed that the share of Afaq Ahmed is ?th and the remaining 4 brothers are entitled to 5/24th share in the disputed property. The trial court held the share of Afaq Ahmad to be 1/2 and divided the remaining property between the remaining 4 brothers equally. The trial court also came to the conclusion that none of the co-sharers were found to have been holding less than 6 acres. The learned Additional Commissioner held that the revision is not maintainable because the case is covered by Section 247-B read with Section 293 of the Act contained in Chapter X of the U.P. ZA and LR Act where revision is not provided. 2. The learned counsel for the revisionist Sri R.S. Singh, stated that Section 247-B was introduced by Act 35 of 1970 and was deleted by Act VIII of 1975 and the order of Tahsildar was passed on March 16, 1973 and the order of the lower appellate court is dated December 20, 1973. He submitted that the revision against the order of the Tahsildar under Section 247-B lies before the Collector and the Commissioner under Section 218 of the UPZA and LR Act read with Section 293 of the UPZA and LR Act. He, therefore, contended that the orders of the Additional Commissioner rejecting the revisions altogether and not returning them for being presented to the proper court are not correct. The learned counsel also referred to 1975 RD 172 and submitted that the proceedings under Sec. 1247-B are administrative in nature and, therefore, no revision will lie in a revenue court. He, therefore, stated that the order of the Additional Commissioner that the revision is not maintainable is correct, but he should have directed the return of the revision application for presentation before proper forum. 3. Sri Sankahta Rai, advocate, counsel for the revisionist Ali Mohd. He, therefore, stated that the order of the Additional Commissioner that the revision is not maintainable is correct, but he should have directed the return of the revision application for presentation before proper forum. 3. Sri Sankahta Rai, advocate, counsel for the revisionist Ali Mohd. Khan submitted that Sec. 293 prescribes that the provisions of Chapters 9 and 10 of the ZA and LR Act will be applicable to the proceedings under Chapter 10 of the Land Revenue Act but there is no provision that chapters IX and X of the Land Revenue Act will not apply if there is something inconsistent with the Act. He referred to Section 333 of the ZA and LR Act and submitted that it fails under Chapter XII and, therefore, proceedings for revision will cover those under Chapters IX and X of the Land Revenue Act. He referred to 1968 RD 88 (para 8) in this behalf. He also referred to 1972 RD 176 (paras 8 and 9) and stated that the proceeding being judicial in nature a revision under Section 333 of the U.P. ZA and LR Act is maintainable before the Board. 4. The learned counsel further submitted that the ruling referred to by the revisionist's counsel will not be applicable as they are against the legal pronouncements of the Hon'ble High Court and the Supreme Court as well as the Full Bench decision of the Board wherein it has been held that he proceedings under Section 247-B are judicial proceedings and a revision must lie. 5. I have beard the learned counsel and have gone through the record of the case as well as the ruling cited by the learned counsel. The case pertains to determination of shares under Section 247-B of the U.P. Zamindari Abolition and Land Reforms Act, which occurs in Chapter X Land Revenue of the Act. The sections contained in Chapter X primarily deal with the determination and payment of land revenue, and not with the determination of the title of the parties. This section has been omitted by Act VIII of 1975 with the result that no action is now maintainable under the lapsed Section 247-B of the Act. The sections contained in Chapter X primarily deal with the determination and payment of land revenue, and not with the determination of the title of the parties. This section has been omitted by Act VIII of 1975 with the result that no action is now maintainable under the lapsed Section 247-B of the Act. The relevant portion of Section 247-B read as follows : "247-B. (2) The share of an individual or any member of his family in a holding shall, for purposes of deciding whether he is entitled to the exemption mentioned in sub-section (1), be determined in such manner and by such authority as may be prescribed, but no such determination shall be binding on any court or tribunal in any suit or other proceeding relating to the holding." The above extracts will show that the determination of the share by the Tahsildar to fix the liability for payment of land revenue is not binding on any curt or tribunal in any suit or other proceedings in respect of the holding. 6. We have now to see whether in such a case any revision lies at all and if so in what forum. According to Section 293 of Act I of 1951, the provisions of the U.P. Land Revenue Act apply to proceedings under Chapter X of the Act. Chapter X of the Act deals with the land revenue. Section 219 of the U.P. Land Revenue Act appears in Chapter X of the UPZA and LR Act. The result is that Section 219, U.P. Land Revenue Act is deemed to be part of U.P. Act I of 1951. In this way it will have to be assumed that Section 219 of the U.P. Land Revenue Act has been, as it were incorporated, under U.P. Act I of 1951. Section 219 of the U.P. Land Revenue Act states : "the State Government may call for the record of any non-judicial proceedings not connected with settlement held by any officer sub-ordinate to it, and may pass thereon such orders as it thinks fit. Section 219 of the U.P. Land Revenue Act states : "the State Government may call for the record of any non-judicial proceedings not connected with settlement held by any officer sub-ordinate to it, and may pass thereon such orders as it thinks fit. The Board may call for the record of any case of a judicial nature or connected with a settlement in which no appeal lies to the Board." Accordingly, in order to determine correctly whether a revision will lie under Section 219 of the U.P. Land Revenue Act and to which forum, it has to be determined whether the proceedings under Section 247-B are judicial or non-judicial proceedings in their nature. a classification of judicial proceedings is given in paragraph 911 of the U.P. Revenue Manual. One of the items listed in Paragraph 911 is the question of determination and fixation of rent of ex-proprietory occupancy and hereditary tenants under Section 87 by way of enhancement, abatement or otherwise. Proceedings under Section 247-B as such are not mentioned in paragraph 911. All proceedings which are not covered under paragraph 911, are deemed to be non-judicial according to paragraph 912 of the Manual. Thus, paragraphs 911 and 912 of the Revenue Manual do not in terms, apply to the instant case. In the background of the above, we have to see whether a proceeding in the course of collection of land revenue is essentially judicial or administrative in nature. It has been held in 1968 RD 88 that a proceeding for collection of land revenue is essentially of an administrative nature. It is quite possible that at some stage in the proceedings the hearing assumed the quasi-judicial nature but that circumstance does not alter the essence of the proceedings as such. Hence, I am of the view that the proceedings under Section 247-B are essentially non-judicial proceedings. This is also the view of my learned colleague Sri SS Ahmad as reported in 1975 RD 172. An appeal or revision does lie to the Board in accordance with Schedule II of the UPZA and LR Act but no revision or appeal has been provided against orders of purely executive and administrative nature. The ruling cited in 1972 RD 176 is not really relevant for determination of this case for that ruling refers to the determination of the nature of the proceedings under Sec. 28 of the Land Revenue Act. The ruling cited in 1972 RD 176 is not really relevant for determination of this case for that ruling refers to the determination of the nature of the proceedings under Sec. 28 of the Land Revenue Act. The proceedings under Section 247-B being essentially of administrative nature, the recourse to get the orders set aside can be taken under Sections 218 or 219 of the U.P. Land Revenue Act, but no revision will lie under Section 333 of the U.P. ZA and LR Act. Even if it is conceded that the proceedings involve determination of the share of the parties which should be done in a judicial manner, and that in this manner the proceedings are not administrative the remedy will lie under the Land Revenue Act and not under Section 333 of the UPZA and LR Act. In this view of the matter, the party if it so likes, can seek remedy under the relevant provisions of the U.P. Land Revenue Act before the authorities prescribed therein. With the above observations, the revisions stand dismissed. 7. This order will govern Ref. Nos. 750-753 of 1973-74 Jaunpur.