Research › Browse › Judgment

Allahabad High Court · body

1979 DIGILAW 1149 (ALL)

State v. Ram Bux

1979-10-27

H.N.AGARWAL

body1979
JUDGMENT H.N. Agarwal, Member. - This is a revision against the judgment of the Additional Commissioner, Rohilkhand Division/Bareilly dated 27.1.1972 reversing the order of the S.D.O. Budaun, dated 13.5.1970 passed in a case under section 198(2) of the U.P. Z.A. & L.R. Act. 2. I have heard the learned D.G.C. (R.) on behalf of the revisionist. The opposite party has been duly served but his counsel did not appear for a argument on the date of hearing in spite of the letter No. 9484-86 dated 4.9.79, sent to him. 3. The facts of the case are as follows: the L.M.C. Khiriya Bokerpur, pargana Ujhani, district Budaun granted a patta on 6.7.65 to Ram Bux. The Naib Tahsildar reported that the said patta was in contravention of the rules. Proceedings under section 198(2) of the U.P.Z.A. & L.R. Act were initiated and the Patta was cancelled on 31.10.67. This order was set aside by the learned Additional Commissioner on 6.9.68 who remanded the case. Thereafter the S.D.O. in his order dated 13.5.70 has again held that the patta was executed on contravention of the mandatory rules and provisions of law and cancelled the same. Ram Bux filed an appeal which has been allowed by the learned Addl. Commissioner by his order dated 27.12.72. The State of U.P. has now come up in revision. 4. The grounds taken in the revisions are; firstly that no appeal lay against the order passed by the S.D.O. and, therefore the order of the learned Additional Commissioner passed in appeal filed by the opposite party is without jurisdiction; secondly that it has been fully proved from the evidence on record that the Patta dated 6.7.65 was executed in contravention of mandatory rules and provisions of law; thirdly that the learned Additional Commissioner has also recorded a finding that the auction proceeding was illegal yet he erred in law in declaring the patta as valid and lastly that the learned Additional Commissioner has misconstrued and misinterpreted the evidence on the record and has based his findings on surmises and conjectures: 5. The contention that no appeal lay to the Additional Commissioner against the order of the S.D.O. dated 13.5.70 cancelling the lease in not correct. At the relevant time serial 20 of Schedule II of the U.P. Z.A. & L.R. Act reads as follows: Sl. The contention that no appeal lay to the Additional Commissioner against the order of the S.D.O. dated 13.5.70 cancelling the lease in not correct. At the relevant time serial 20 of Schedule II of the U.P. Z.A. & L.R. Act reads as follows: Sl. No. Section Description of proceeding Court of original jurisdiction Court of First Appeal Court of Second Appeal 1 2 3 4 5 6 20 198(2) Application objecting to allotment of land Collector Commissioner - 6. Coming to the merits of the case the learned Additional Commissioner has himself recorded the finding in para 6 of his judgment that the L.M.C. committed error of auctioning the land instead to making a list of applicants in order of preference. The learned Additional Commissioner has, however, taken the view that this was not a substantial irregularity. The view of the learned Additional Commissioner is erroneous in law. Sub-Section (1) of section 198 of the U.P.Z.A.& L.R. Act read as follows at the relevant time:- "Section 198. Order of Preference in admitting persons to land under section 195 and 197-(1) In the admission of persons to land as sirdars or asami under section 195 or section 197 hereinafter in this section referred to as allotment of land the Land Management Committee shall, subject to any order made by a court under section made by a court under Section 178, observe the following order of preference:- (a) any educational institution recognized by the Director of education, Uttar Pradesh or by the Board of High School and Intermediate Education Uttar Pradesh or by a University and imparting instructions in of providing for research in agriculture, horticulture or animal husbandry; (b) landless widow, sons unmarried, daughters and parents residing in the circle of a person who has lost his life by enemy action while in active service in the Armed Forces of the Union; (c) a person residing in the circle who has become landless on account of his land having been compulsorily acquired under the provisions of any law relating to acquisition of land on or after the date of vesting; (d) a landless person, residing in the circle, retired, released or discharged from service other than service as an officer in the Armed Forces of the Union. (e) landless political sufferer residing in the circle who has not been granted political pension; (f) a landless agricultural labourer residing in the circle and belonging to a schedule caste or schedule tribe; (g) any other landless agricultural labourer residing in the circle; (h) a bhumidhar, sirdar or asami holding land less than 1.25 hectares (3.125 acres) (i) any other person". It is noteworthy that the word "shall" has been used. This means that it is mandatory of the L.M.C. to observe the order of preference as laid down in this section. This means that non-observance of order of preference is not merely an irregularity but an illegality as it constitutes violation of the specific provisions of the section. The learned S.D.O. has correctly observed that the intention of law is that the land should go either to the recognized educational institutions or to the most deserving person that is a landless agricultural labourer and there is no question of any profiteering motive in such matters. The learned Additional Commissioner has noted another irregularity in making allotment, in as much as an asami patta was granted but as the land in question was never parti, only a sirdari patta could be granted. An asami patta could be granted only in respect of land falling under Section 132 of the U.P.Z.A. and L.R. Act. The learned Additional Commissioner has however erred in law in holding that the asami patta should be deemed to be a sirdari patta. This cannot be done. If a patta is given for asami rights it cannot be automatically deemed to be a sirdari patta. The learned Additional Commissioner has further erred in law in not considering other material findings of the trial court. Thus, the learned Additional Commissioner has held that the land in question vested in the Gaon Samaj. The Samaj Manual provides that no Gaon Samaj land can be let out if it is less than 8 per cent of the total area of the village. This provision of the Gaon Samaj Manual was violated. The learned Additional Commissioner has not at all considered this aspect of the matter. 7. The result is that I hold that the learned Addl. This provision of the Gaon Samaj Manual was violated. The learned Additional Commissioner has not at all considered this aspect of the matter. 7. The result is that I hold that the learned Addl. Commissioner has erred in exercise of jurisdiction in allowing the appeal and setting aside the order of the learned S.D.O. I hereby allow the revision and set aside the order of the learned Additional Commissioner. The order of the learned Sub-Divisional Officer, cancelling the patta is confirmed with the further direction that if the Land Management Committee proposed to let out the land in question after following the prescribed procedure, the case of the opposite party Ram Bux will also be duly considered on merits.