Sheo Kumar v. Bhaggu — 1981 DIGILAW 494 (ALL)

JUDGMENT R.S. Verma, Member. - A conspectus of the facts and circumstances of this case will facilitate appreciation of the points involved in this revision. 2. On 6.8.1973 Bhaggu and five others, who are new respondents in this revision petition filed an application in the court of collector, Hardoi, praying that pattas dated 13.3.1973 executed by the Land Management Committee, Gaura, per gana, Mallawan, Tahsil Bilgram District Hardoi, in favour of Sheo Kumari Chedan Lal, Sunder Lal and Shyam Kishore be cancelled. 3. Grounds for such prayer were that the pattas had been executed illegally and surreptitiously, that the lease-holder Sheo Kumar is that son of the chairman of the Land Management Committee, that Chedan Lal lease-holder was nephew of the Chairman of the L.M.C. and that he also possessed twenty bighas of land along with his father, that Sunder Lal lease-holder was a relative of the L.M.C.'s Chairman and he owned about twenty bighas of land, that lease holder Shyam Kishore was also a person possessing 10 bighas of land, that the lease-holders are Brahamins that the applicants were Harijans and landless labours and were entitled to be allotted Gaon Sabha land according to law. 4. Sheo Kumar and others filed objection that the leases had been executed legally, and that the applicants had not applied for pattas in their favour. 5. The announcement of allotment has done on 2.3.1972, but the pattas were executed on 13.3.1973, that is after one full year. 6. Shir R.N. Misra, the learned Collector, Hardoi on 21.1.1974 held that the pattas were invalid and ultra vires, and he therefore, cancelled the pattas. 7. Shri G.S. Seth, learned Additional Commissioner on 8.11.1974, held that (c) as the announcement of allotment by the L.M.C. was made on 2.3.1972 and as Bhagu and others applied for cancellation of the patta on 6.8.73 the application was barred by time vide serial no. 7. Shri G.S. Seth, learned Additional Commissioner on 8.11.1974, held that (c) as the announcement of allotment by the L.M.C. was made on 2.3.1972 and as Bhagu and others applied for cancellation of the patta on 6.8.73 the application was barred by time vide serial no. 24, Appendix III U.P.Z.A. & L.R. Rules, which prescribes the period of limitation as six months from the date of announcement of allotment, that (b) that the Collector could not suo moto within three years from the date when the Collector first knew about the irregular allotment of land and in that even the proceedings would have been within time, that (c) the Collector did not act suo moto and hence the proceedings were started only on the application of private persons and therefore, it were barred by time and (d) that the learned Additional Commissioner made a recommendation to this court that the case by remanded to the trial court with a direction to the trial Collector considers necessary he may institute proceedings for the cancellation of the lease by exercising his suo moto powers. 8. In the trial court the objection Sheo Kumar and others never raised the plea that the proceedings were time-barred. The pattas had been executed only on 13.3.1973 and it remains an inexplicable fact as to way the pattas were executed after one year of the announcement of allotment, which had been made on 2.3.1972. According to Rules 176 and 176-A, U.P.Z.A. & L.R. Rules, the pattas ought, in the ordinary course of business, to have been executed within a month or two of the announcement of allotment, and not after one year of such announcement. 9. However, there can be no doubt that in case of proceedings for cancellation being started on the complaint of aggrieved persons, the period of limitation will be six months and will begin from the date of announcement of allotment and not from the date of execution of the lease. 9. However, there can be no doubt that in case of proceedings for cancellation being started on the complaint of aggrieved persons, the period of limitation will be six months and will begin from the date of announcement of allotment and not from the date of execution of the lease. The learned counsel for the applicants Bhaggu and others raised a point as to what will be the starting, points for limitation if due to fraud and scheming the L.M.C. does not announce by beat of drum the numbers of plots, their areas and the date on which admission thereto is to be made, and that due to subtle cunningness of the authorities concerned the announcement of allotment is kept a closely guarded secret from the very persons who were intended by the Legislature to be the preferential beneficiaries. The applicants Bhaggu and others belong to the Schedule caste and are landless agricultural Labourers entitled to get land from the Gaon Sabha in preference to Sheo Kumar and others, who are not landless agricultural labourers and some of them are close relatives of the Chairman of the L.M.C. and all of whom are Brahmins. I am not in a position to give any authorities finding on this point in absence of adequate relevant date, and so I leave the question open. 10. To revert back to the question of limitation, it was not raised before the Collector who was not called upon to exercise his mind whether he should take suo moto action or not. In view of the gross illegalities committed by the L.M.C. in the allotment of the pattas and also in view of the categorical finding of the learned Collector that "........In the matter of allotment by the pradhan who appears to have cleverly favoured his own Brahn in kinsman including his son.... I have heard that point thread-bare and I have come to the conclusion that it was a very thin veneer to cover these otherwise irregular and invalid allotments which violate the provisions of Section 28-C of the Panchayat Raj Act as well as the priorities of Section 298 III U.P.Z.A. & L.R. Act, I of 1951, I, therefore hold these pattas to be invalid or ultra vires..... There can be no doubt that the learned Collector must have acted in this case in the exercise of his suo moto powers. There can be no doubt that the learned Collector must have acted in this case in the exercise of his suo moto powers. If that contingency could have arisen. 11. The learned Additional Commissioner also made a recommendation, in the particular circumstances of this case, that the Collector be directed to institute suo moto proceedings if he so things necessary. In this case the leases were executed in violation of all rules and instructions. No doubt the collector has a discretion to act suo moto or not but in this case no public servant would ordinarily shirk from his duty to correct illegalities and patent injustice. At this place, it would be apt to quote a passage from the observations of Lord Cairns in Julius v. Oxford, (1880) 5 A.C. 214 at page 222 which is as follows:- "Statutes passed for the purpose of enabling something to be done are usually expressed in permissible language, that is to say, it is enacted that 'it shall be lawful' etc. or that 'such, and such a thing may be done' prima facie, these words import a discretion, and they must be construed as discretionary unless there be anything in the subject matter to which they are applied, or in any other part of the statute, to show that they are meant to be imperative.... There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the title of the person for whose benefit the power is to be exercised, which may couple the power with a duty and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so." 12. In the special circumstances of this case, I do not think it proper to remand the case to the learned Collector with a direction to act suo moto if he so thinks necessary. My opinion is that in this case it would be deemed that the Collector acted suo moto when he proceeded with the inquiry inspite of the application of Bhaggu being barred by time. My opinion is that in this case it would be deemed that the Collector acted suo moto when he proceeded with the inquiry inspite of the application of Bhaggu being barred by time. It is a well recognised principle of law that if the exercise of a power can be traced to an existing power in any authority, under certain circumstances even though the authority had not specially acted in the exercise of that power, it can be presumed that the particular authority acted on the strength of that undisclosed but undoubted power. 13. This Board of Revenue has in many cases held, that when the collector under Section 198(3) of U.P.Z.A. & L.R. Act (now 198(c) Z.A. & L.R.L. Act) goes on enquiring about the illegality or otherwise of a patta inspite of the fact that the proceedings were started on the time-barred application of an aggrieved person, it would be deemed that the collector acted in the exercise of his suo moto powers. In 1956 A.L.J. (Revenue) 386. It was held that:- "When an objection under sub-section (2) of Section 198 was filed beyond six months the application will only be considered to be an information conveyed to the S.D.O. who could act suo moto and the order of the S.D.O. would not be without jurisdiction and cannot be questioned in revision. In 1969 A.W.R. (Revenue) 27, it was held that any application made beyond time can be treated as an information on the basis of which the S.D.O. may be deemed to have himself started proceedings suo moto. It was observed in this ruling that "although the application was made by a private party, but since it was entertained by the S.D.O. it can only be presumed that he has acted suo moto." In 1975 R.D. 43, Shri Shamshad Ahmad, learned Judicial Member of the Board held that 'Hence I have no hesitation in holding that when the Collector entertained Nathu Ram's application beyond time, he took action upon it and passed the order which he considered fit and proper he should be deemed to have acted suo-moto and thus his order cannot be called in question in this revision." 14. Following the principle of law propounded in the above cited rulings, with which I respectfully agree. Following the principle of law propounded in the above cited rulings, with which I respectfully agree. I hold that in the special circumstances of the case the learned Collector Hardoi will be deemed to have acted in the exercise of his suo moto powers. It would be only an exercise in visualism if this court sets aside the order of the learned Collector and them gives a direction to him to act in the exercise of his suo moto powers, if he thinks it necessary. The consistent view of the Board is that in the circumstance which are present in the case, it would be deemed that the Collector acted in the exercise of his suo moto powers, even though he did not disclose this intention by his act or order. 15. In this context I may mention that while taking suo mto action the officer should give due notice to the O.P. and follow the principles of natural justice. In the present case notices were issued to the O.Ps. and they filed elaborated objections and both sides gave oral and documentary evidence. The O.Ps. were not taken by surprise and all the principles of natural justice were observed by the learned Collector. The O.Ps. must have felt that the learned Collector was within his powers to proceed with the case and that may be a ground why the question of limitation was never raised before him. 16. Now, we have to see whether the learned Collector, Hardoi, had exercised a jurisdiction not vested in him in law, or whether he had failed to exercise a jurisdiction so vested, or whether he had acted in the exercise of jurisdiction illegally or with material irregularity so as to merit reversal of his order in this revision. I have shown above and have also referred to the consistent view of this Board, that the order of the Collector would be deemed to have been passed in the exercise of his suo moto powers and that, therefore, the question of limitation does not arise. Thus the order of the learned Collector. Hardoi passed in this case on 21.1.1974 cannot be set aside, revered or modified, because it is just, proper and legal. 17. I do not agree with the recommendation of the learned Additional Commissioner, and I do not accept it. The order dated 21.1.1974 passed by the learned Collector, Hardoi will stand. Thus the order of the learned Collector. Hardoi passed in this case on 21.1.1974 cannot be set aside, revered or modified, because it is just, proper and legal. 17. I do not agree with the recommendation of the learned Additional Commissioner, and I do not accept it. The order dated 21.1.1974 passed by the learned Collector, Hardoi will stand. The revision petition is dismissed, costs easy.