Sabnapti v. Board of Revenue — 1980 DIGILAW 57 (ALL)

ORDER Gopi Nath, J. -This petition is directed against the order of the Board of Revenue dated February 27, 1978 dismissing the plaintiffs suit filed under S. 229-B of U. P. Z. A. & L. R. Act mainly on the ground that it was barred by time. 2. The petitioner was a member of Armed Forces. He applied for the allotment of some land to him as a landless person. The allotment was made and a lease was executed in his favour by the Pradhan of Gaon Sabha Ayubpur, Pargana Baraunsa, Tahsil and District Sultanpur on April 4, 1963. It appears that at the instance of some persons interested in the land, proceedings under Section 198 of U. P. Z. A. & L. R. Act were taken against him for the cancellation of the lease. The lease was cancelled by the S. D. O. by an order dated May 14, 1970. The petitioner went up in appeal against that order which was dismissed on September 16, 1970. The petitioner then filed the suit giving rise to this petition under Section 229B for a declaration that he was the Sirdar of the land leased out. to him by the Gaon Sabha and its cancellation was invalid in law. The Gaon Sabha supported the claim of the petitioner. The State of U. P. contested the suit. According to the State the lease was rightly cancelled and the petitioner was bound by the cancellation order passed by the S. D. O. The petitioner has asserted in the petition that no plea of limitation was raised in the written statement filed by the State. 3. The trial court dismissed the suit holding that the lease granted by the Gaon Sabha in favour of the petitioner was rightly cancelled and in that connection he relied upon the statement of one Gaya Prasad, Lekhpal in proceedings-under Section 198 of the U. P. Z. A. & L. R. Act. The petitioner was accordingly found to be having no title to the land in dispute. Aggrieved the petitioner went up in appeal and the appeal was dismissed on the ground that the suit was barred under serial No. 24.A of Appendix III of the Z. A. & L. R. Rules. The petitioner was accordingly found to be having no title to the land in dispute. Aggrieved the petitioner went up in appeal and the appeal was dismissed on the ground that the suit was barred under serial No. 24.A of Appendix III of the Z. A. & L. R. Rules. According to the Additional Commissioner the suit was one as contemplated by Section 198 (4) of the Z. A. & L. R. Act and the limitation for filing such a suit was six months from the order of ejectment. Section 198 deals with the allotment of land to persons mentioned therein. Sub-section (2) of that section provides for the cancellation of allotments. Sub-section (3) then states as follows :- "Where a Collector cancels an allotment, the right, title and interest of the allottee or any person claiming through: him shall, subject to the provisions of sub-section (4), cease in the land allotted thereunder which shall revert to the Gaon Sabha and any person holding or retaining possession of such land shall be deemed to be a person who has encroached upon such land and shall be liable to ejectment in the manner prescribed. Sub-section (4) provides as follows:- Any person aggrieved by the order of cancellation passed under sub-section (2) may institute a suit to establish the right claimed by him but subject to the results of such suit the order of cancellation shall be final". Limitation for a suit contemplated under sub-section (4) of Section 198 is provided under serial No. 24-A of Appendix III of Z. A. & L. R. Rules as follows :- (See Serial No. 24-A below) 24-A. 198(4) Suit to establish any right claimed in the land allotted under sub-section (1) of section 198. Six months When the order of ejectment becomes known to the plaintiff. As in the Court-fees Act 1870. 4. The Additional Commissioner held that the cancellation of allotment took place on May 14, 1970 and the appeal was rejected on September 16, 1970. The suit filed on July 12, 1971 was accordingly barred by time under serial number 24-A. Dissatisfied by the decree, the petitioner went up in section (second) appeal to the Board of Revenue. 4. The Additional Commissioner held that the cancellation of allotment took place on May 14, 1970 and the appeal was rejected on September 16, 1970. The suit filed on July 12, 1971 was accordingly barred by time under serial number 24-A. Dissatisfied by the decree, the petitioner went up in section (second) appeal to the Board of Revenue. The Board of Revenue affirmed the order of the Additional Commissioner and held that the order of cancellation of allotment amounted to an order of ejectment of the petitioner and limitation for the institution of the suit commenced from that order. It further observed that the Sub-Divisional Officer had found that the lease was properly cancelled hence the petitioner was not entitled to the declaration prayed for. The discussion on the merits of the case was a short one. The Board observed:- "The trial court had held that the Patta granted to the appellant by the Land Management Committee was rightly cancelled by the Sub-Divisional Officer because the rules prescribed for allotment were not followed by the Land Management Committee." 5. Learned counsel for the petitioner contended that the contention raised as to the error in the decree was neither noticed nor discussed by the Board. According to learned counsel, the trial court relied on the statement of Gaya Prasad in proceedings under Section 198 of the Z. A. & L. R. Act which was inadmissible in evidence. It was further urged that the allotment was made according to law and cancellation whereof was illegal and the same had been challenged by the suit on the ground that stated therein which part of the case was not considered by the Board. It was urged that the Board of Revenue being satisfied that the Sui.t was barred by time made observations in passing as to the merits of the claim as well. Learned counsel challenged the finding recorded on the question of limitation and urged that the suit was not barred by time and opposite party No. 1 had erred in holding to the contrary. The order was challenged as vitiated by an apparent error of law. 6. No counter affidavit has been filed, nor has any one appeared in opposition to contest the writ petition. The order was challenged as vitiated by an apparent error of law. 6. No counter affidavit has been filed, nor has any one appeared in opposition to contest the writ petition. Having heard learned counsel for the petitioner, I am satisfied that the suit was not barred by time and the order of opposite party No. 1 dated February 27, 1978 is vitiated by an apparent error of law. The suit was for declaration of the petitioners title to the land in suit. It is true that the cause of action for the same was furnished by the cancellation of the allotment order made in his favour by the Gaon Sabha. The question is whether the suit was barred under serial No. 24-A even if the same was one filed under subsection (4) of Section 198. Sub-section (3) of Section 198 states that any person holding or retaining possession of land after the cancellation of the allotment order made in his favour would be deemed to be a person who had encroached upon such land and he shall be liable to ejectment in the manner prescribed. The manner prescribed for ejectment is by S. 122-B of the Z. A. Act read with R. 115-D. The Land Management Committee is empowered under these provisions to take steps to recover compensation for damage to or misappropriation of the property wrongfully occupied by a person and for the recovery of possession thereof. Sub-section (2) of Section 122-B provides that steps for ejectment of the person shall be taken by the competent authority. Sub-sec. (3) states that the procedure to be followed in any action taken under sub-section (2) shall be such as may be prescribed. Rule 115-D provides for that procedure. It is thus apparent that the person in wrongful occupation of the land vesting in Gaon Sabha can be ejected by summary procedure under Rules 115-C and 115-D or by a regular suit under Section 209. The order made under Section 198 (2) and the consequences following under sub-section (3). of Section 198 do not amount to an order of ejectment or actual ejectment of the occupant of the land. These provisions only entitle the Gaon Sabha to seek the ejectment of the wrongful occupant in the manner prescribed. The order made under Section 198 (2) and the consequences following under sub-section (3). of Section 198 do not amount to an order of ejectment or actual ejectment of the occupant of the land. These provisions only entitle the Gaon Sabha to seek the ejectment of the wrongful occupant in the manner prescribed. Opposite party No. 1 accordingly erred in holding that the order of cancellation of the allotment amounted to an order of ejectment of the petitioner. Reference was made in the order of the Board to a decision in Ram Jatan v. Randhir, 1964 Rev. Dec. 12. The Board in that case did observe that the order of cancellation of the lease under Section 198 (3) amounts to ejectment. With great respect to the learned Members deciding that case I find myself unable to agree with the view expressed. Section 198 (3) itself states that the person holding or retaining possession of the land reverting to the Gaon Sabha shall be liable to ejectment in the manner prescribed. The ejectment of such person has, therefore, to follow in the manner prescribed by law. Until the ejectment has taken place in the manner prescribed the person in occupation would be in wrongful occupation of the land, and though under a liability to be ejected, not one who had actually been ejected or against whom an order of ejectment has been passed. If the intention of the legislature was that the order of cancellation would amount to an order of ejectment or to actual ejectment of the wrongful occupant it would not have said that he shall be liable to ejectment in the manner prescribed. Further the order of cancellation is made subject to the result of a suit instituted, to establish the right claimed under the lease. That suit would be one for declaration and if the person aggrieved by the cancellation order had not delivered possession of the land in question he is not obliged to seek the consequential relief of possession in the suit for declaration. In the circumstances the order for cancellation of the lease to my mind cannot amount to an order of ejectment of the person concerned. Section 122-B itself talks of the wrongful occupation of the person whose lease has been cancelled. That also suggests that the person in occupation though wrongfully was one in occupation and not one dispossessed from the land. Section 122-B itself talks of the wrongful occupation of the person whose lease has been cancelled. That also suggests that the person in occupation though wrongfully was one in occupation and not one dispossessed from the land. Reference was made to Rule 182-B of U. P. Z. A. & L. R. Rules by the Board to suggest that an order of cancellation of a lease under Section 198 (2) would amount to ejectment because the. proviso to rule 182-B did not limit the time for ejectment of the trespasser between 15th day of April and 30th day of June. Rule 182-B deals with the period during which execution of decrees for ejectment can take place. Proviso to Rule 182-B only suggests that execution of decrees obtained in cases against person whose leases had been cancelled under Section 198 Z. A. & L. R. Act was not limited to the period mentioned in that rule. The proviso to Rule 182-B thus, in my opinion, does not lead to the conclusion that an order of cancellation of lease under Section 198 of Z. A. Act amounts to an order of ejectment of the person concerned. The instant suit was accordingly not barred by time under serial No. 24-A. Since the Board of Revenue mainly dismissed the suit on this ground, it seems proper to remand the case to opposite party No. 1 for a fresh decision of the appeal filed before it according to law. 7. In the result, the petition succeeds and is allowed. The impugned order dated February 27, 1978 passed by the opposite party No. 1 is quashed. The case is sent back to opposite party No. 1 for-decision of the appeal on merits according to law in the light of the observations made. In the circumstances of the case there shall be no order as to costs.