Gaon Sabha v. Amrit Lal — 1980 DIGILAW 1272 (ALL)

JUDGMENT R.P. Gupta, Member. - This revision was filed by Gaon Sabha Garauli and L.M.C. Garauli against Amrit Lal, etc. on 29.12.1971 challenging the order of the Additional Commissioner Varanasi dated 28.11.1971 passed on appeal setting aside the order of S.D.O. Mirzpur dated 8.7.1971 by which he cancelled the pattas executed on 3.7.1978 by L.M.C. in favour of O.P. Sarvasri Amrit Lal. Bhullan, Jawahir, Dangar, Bindra, Gopi and Sukhan in respect of plot 312 of village Garauli. The present application for cancellation of patta under section 198 of U.P.Z.A. & L.R. Act was given to S.D.O. Sadar, Mirzapur on 19.9.1970 by L.M.C. village Garauli through the chairman. It was alleged in the application that no resolution was passed. No Munadi was proclaimed in the village. No agenda was issued. Land of Gaon Sabha was less than 10 percent and as such pattas were hit by provisions of Gaon Samaj Manual Pattas were not duly registered before any Revenue Officer. It was also alleged that on 3.7.58, a report for cancellation of the pattas was made to S.D.O. on which case no. 24 of 1958 was registered. Report from Tahsildar was called for. He gave report on 31.8.59 recommending the cancellation of Pata and recommending the suspension of Lekhpal. On 6.4.1961 Tahsildar recommended for cancellation of Patta but the entire file became untraceable. It was requested in this application that the file should be got searched and the Pattas should be cancelled. The application was treated by S.D.O. as fresh application for cancellation of Patta and the case was registered and notices issued to O.P. vide order of S.D.O. dated 22.9.70. S.D.O. Sadar district Mirzapure vide the order of S.D.O. dated 8.7.71 cancelled the pattas. An appeal was filled by the opp. parties against this order which was allowed by the learned Additional Commissioner Varanasi on 26.11.1971. This order is challenged by Gaon Sabha L.M.C. in the present Revision. 2. The learned D.G.C. (R) argued that the Additional Commissioner had wrongly entertained the appeal against the said order of S.D.O. which was not an appealable order in view of the amendment made by U.P. Land Laws (Amendment) Act 35 of 1970. According to him the order passed by the learned Additional Commissioner was without jurisdiction. 2. The learned D.G.C. (R) argued that the Additional Commissioner had wrongly entertained the appeal against the said order of S.D.O. which was not an appealable order in view of the amendment made by U.P. Land Laws (Amendment) Act 35 of 1970. According to him the order passed by the learned Additional Commissioner was without jurisdiction. He further argued that the learned Additional Commissioner came to the wrong finding that the application was barred as he failed to take notice of the fact that the application for cancellation of pattas was pending since 1959 which file was lost by the office for which L.M.C. should not suffer. The learned counsel for the O.P.s argued that the appeal was rightly entertained by the learned Additional Commissioner as the right to filed the appeal was substantive right which could not have been taken away by the amending Act No. 35 of 1970 Law prevailing on the date of suit will govern right of appeal. He further argued that the order dated 8.7.71 passed by the S.D.O. Mirzapur was within his jurisdiction in view of the Amending Act no. 35 of the 1970 and could not be reversed by setting aside the order of the learned Additional Commissioner in revision. I have considered the arguments of learned counsels for the parties and have gone through the record. 3. U.P. Land Laws (Amendment) Ordinance 1970 (Ordinance No. 18 of 1970) came into force on 28.9.70 and U.P. Land Laws (Amendment) Act 1970 (Act No. 35 of 1970) came into force on 19.12.1970. In view of transitory provisions of section 23 of U.P. Land Laws (Amendment) Act 1969 before 28.9.70 the application for cancellation of Patta could have been entertained and decided by the S.D.O. in relation to allotment made prior to 28th of June 1968. The order was appealable. However, section 14 of the U.P. Land Laws (Amendment) Act of 1969 which came into force with effect from 7.8.69 section 198 was amended by substituting words "Collector" in place of the words "Assistant Collector Incharge of Subdivision". By the U.P. Ordinance no. 18 of 1970 this section of U.P.Z.A. & L.R. Act was replaced by a new section without retaining the transitory provision of Section 23 of the U.P. Land Laws (Amendment) Act, 1969. By the U.P. Ordinance no. 18 of 1970 this section of U.P.Z.A. & L.R. Act was replaced by a new section without retaining the transitory provision of Section 23 of the U.P. Land Laws (Amendment) Act, 1969. This of course was replaced by U.P. Land Laws (Amendment) Act (Act No. 35 of 1970) which Act also did not retain the transitory provision of Section 23 of the U.P. Land Laws (Amendment) Act of 1969. This omission will be deemed to be deliberate. The result is that the jurisdiction of S.D.O. to enquire and decide the suit in relation to amendment made prior to 28th June 1968. Thus with effect from that date the power to cancel pattas remained on Collector. A Division Bench of the Board of Revenue in Samai v. L.M.C., Revision No. 45, 55-56 of 1976-77 Manipur held on (sic) that the transitory provision contained in Act 4 of 1969 stood repealed on the promulgation of Act 35 of 1970. Full Bench of the Hon'ble Allahabad High Court in Similesh Kumar v. Gaon Sabha Usakar, 1978 R.D. at 408 held that after the amendment made by the U.P. Ordinance No. 18 of 1970 right to decide the question arising in an action with cancellation of lease deed is exclusively that of Collector which of course is subject to revision provided by Section 333. Thus it is clear that the order passed by the S.D.O. Sadar, Mirzapur on 8.2.71 cancelling the lease executed in favour of O.P's was without jurisdiction. 4. As regard cases under section 198 of U.P.Z.A. & L.R. Act pending on 28.9.70, they could not have been decided by the S.D.O as his jurisdiction ceased by U.P. Ordinance no. 18 of 1970. Such pending cases are to be decided by the Collector after that date. As the application for cancellation was property presented to the S.D.O. on 22.9.70, when he had jurisdiction, he should have forwarded it to the Collector Mirzpur for decision, when his jurisdiction to decide it ceased by U.P. Ordinance No. 18 of 1970. 5. 18 of 1970. Such pending cases are to be decided by the Collector after that date. As the application for cancellation was property presented to the S.D.O. on 22.9.70, when he had jurisdiction, he should have forwarded it to the Collector Mirzpur for decision, when his jurisdiction to decide it ceased by U.P. Ordinance No. 18 of 1970. 5. The view of the Additional Commissioner that the application was time barred is not good in view of the amendment made by U.P. Act No. 30 of 1975 in section 198 (4) of U.P.Z.A. & L.R. Act to the effect that:- "(i) the case of an allotment of land made before the commencement of the U.P. Land Laws (Amendment) Act, 1975, cancel the allotment and the lease, if any within five years from the date of such commencement; and (ii) in the case of an allotment made on or after the date of such commencement, cancel the allotment and the lease, if any, within five years from the dated of such allotment or lease." 6. The result is that this revision is allowed and the order passed by the learned Additional Commissioner dated 26.11.1971 and passed by the S.D.O. on 8.7.71 are set aside. The case is remanded to the Collector Mirzapur for decision afresh in accordance with law.