Kabool v. B. P. S. — 1981 DIGILAW 579 (ALL)

JUDGMENT I.B. Singh, Member - This Bench was constituted by Senior most Member/Chairman of the Board for deciding the following questions referred by Mr. J.S. Gupta, the other Member by his order dated 5-10-1979 :- 1. Whether an Order passed by the S.D.O. Collector refusing to cancel the allotment made by the Land Management Committee under rule 115-(1) (Now 115-P) of the U.P.Z.A. & L.R, Rules is judicial in nature, subject to revision by the Board. 2. Whether the proceedings initiated before the S.D.O. prior to the amending Act of 1972 and pending before him would be triable by the S.D.O. If not, that procedure has to be observed. 2. We have heard the learned counsel for the parties and have perused the record. 3. In Parsuram v. Sudershan Sharma, 1976 R.D. 389, P.C. Saxena, the then Member, Board of Revenue, held as follows: - "Sub-rule (1) of Rule 115-P of the U.P.Z.A. and L.R. Rules, provided that a Sub-Divisional Officer may cancel an allotment order of the Land Management Committee on the grounds which are mentioned in the sub-rule. It would, therefore, be an order of cancellation which would fall within the scope of this rule. If the Sub-Divisional Officer refuses to interfere in the matter, his order to that effect cannot be deemed to be under Rule 115-N of the U.P.Z.A. and L.R. Rules or of a judicial nature subject to judicial review. Sub-rule (2) makes it clear that the order contemplated under sub-rule(2) of Rule 115-N is only an order of cancellation of an allotment and not an order refusing to interfere. The allotment of land by a land management committee is an administrative act. The decision not to interfere in the allotment must therefore, be held to be non-judicial and, therefore, not subject to judicial review. 4. In Ram Manoreth v. Bhagwati, 1977 R.D. 126, it was held by H.N. Agarwal, the then Member Board of Revenue, as follows : - "In a revision, the Board of Revenue has to satisfy itself whether or not there has been any error or illegality in the exercise of jurisdiction by a subordinate court. If it is found that a subordinate Court has been guilty of such error or irregularity in the exercise of jurisdiction, the Board will be quite justified in revisional interference. If it is found that a subordinate Court has been guilty of such error or irregularity in the exercise of jurisdiction, the Board will be quite justified in revisional interference. When the revisionist was in fact the person who had moved the application before the Sub-Divisional Officer for suo motu action and if he brings the illegality or the error in the exercise of jurisdiction committed by the Sub-Divisional Officer to the notice of the Board, it cannot be said that the revision is not maintainable. In other words, the view cannot be accepted that only the State could have come up in revision before the Board in proceedings under Rule 115-N. Orders in a judicial proceeding shall be speaking orders. Once the Sub-Divisional Officer had decided to take suo motu action and issued notice to the allottees, it was incumbent upon him to enquire into the illegality and irregularity of the allotment in question and thereafter either cancel the allotment or pass such other orders as he thought fit. The refusal of the Sub-Divisional Officer to enquire into the matter and to pass any substantive order also amounts to failure to exercise jurisdiction vested by law". 5. It was argued on behalf of the applicant that proceeding under Rule 115-P of the U.P.Z.A. & L.R. Rules is a judicial proceeding. Therefore, a revision lies against the order of the Collector dismissing the application for cancelling the allotment. 6. It was argued, in reply that refusing to cancel the allotment and dismissing the application for such cancellation is executive order and no revision lies against such refusal. 7. Reliance has been placed by applicant on 1977 R.D. page 126 and on behalf of the State on 1976 R.D. p. 389, quoted above. 8. Rule 115-P of the U.P.Z.A. & L. R. Rules runs as follows : - "115-P (I) The Collector may of his own motion or on the application of any person aggrieved by any order of allotment of land under rule 115-L, or 115-M, proceed to make an inquiry in the manner given hereunder. (2) The allottee and Land Management Committee shall be necessary parties to all such cases. (3) The Collector on the application of any party or otherwise may pass suitable interim orders at any time before the final disposal of the case. (2) The allottee and Land Management Committee shall be necessary parties to all such cases. (3) The Collector on the application of any party or otherwise may pass suitable interim orders at any time before the final disposal of the case. (4) The Collector shall call upon all persons interested in the order of allotment to appear and present their case before him. It shall not be necessary to record evidence but the name of the day to day inquiry shall be kept on record by the Collector. On making inquiries if he is satisfied that the allotment is irregular, he may cancel the allotment and thereupon the right, title and interest of the allottee and of every other person claiming through him in the land shall cease; (5) The order of the Collector under the preceding sub-rule shall be final". This rule enjoins on the Collector of his own motion or on the application of any person aggrieved by any order of allotment of land under Rule 115-L or Rule 115-B to make an enquiry in the manner given in the rule. Sub rule (4) of Rule 115-P, quoted above, shows that the enquiry made by the Collector is a summary judicial enquiry as he is required to keep compulsorily memo of the day to day enquiry on the record. He has been given discretion not to record the evidence. 9. There is no too opinion that if the Collector cancels the allotment, revision lies against such order although the order of the Collector passed under Rule 115-P is final according to its sub-rule (5). Ordinarily, no revision would have been entertain able even against the order of cancellation of the allotment but as such an enquiry has been held to be judicial enquiry, it has been made revisionable by the Board under Section 333 of U.P. Act I of 1951 which runs as follows : - "333. Ordinarily, no revision would have been entertain able even against the order of cancellation of the allotment but as such an enquiry has been held to be judicial enquiry, it has been made revisionable by the Board under Section 333 of U.P. Act I of 1951 which runs as follows : - "333. The Board may call for the record of any suit or proceeding decided by any subordinate court in which the appeal lies or where an appeal lies but has not been preferred, and if such subordinate court appears - (a) to have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of jurisdiction illegally or with material irregularity; the Board may pass such order in the case, as it thinks fit." This section authorises the Board to call for the record of any suit or proceeding decided by any subordinate court (underlines are ours). By subordinate court in the section is meant subordinate revenue court. 10. Section 4 (S) of the Land Revenue Act defines Revenue Courts, which runs as follows - 4(8). "Revenue Court" means all or any of the following authorities (that is to say), the Board and all members thereof, Commissioner, Additional Commissioner, Collector, Additional Collectors, Assistant Collectors, Settlement Officers, Assistant Settlement Officers, Record Officers, Assistant Record Officers and Tahsildars". It is clear from the perusal of Section 4(8) of the U.P. Land Revenue Act that Collectors, Additional Collectors, Assistant Collectors etc., mentioned in the section are subordinate revenue courts, subordinate to the Board. 11. Section 8 of the Indian Evidence Act interprets "Court" as follows: - "Court" - "Court" includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence. 12. The Collector or the Additional Collector making enquiry under Rule 115-P are as subordinate revenue courts. 11. Section 8 of the Indian Evidence Act interprets "Court" as follows: - "Court" - "Court" includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence. 12. The Collector or the Additional Collector making enquiry under Rule 115-P are as subordinate revenue courts. The proceeding under the said rule is of summary nature in which recording of evidence is not prohibited because its sub-section (4) prescribes that it shall not be necessary to record evidence but the memo of the day to day enquiry shall be kept on the record by the Collector, which means that the memo of the evidence adduced by the parties also shall be kept on the record by the Collector if the evidence is not recorded, and if it is recorded it shall also be on the record for the perusal of the Board, which has been authorised by Section 333 of U.P. Act I of 1951 to call for the records of the subordinate courts in a suit or in a proceeding for passing such orders as it deems fit. Thus, the enquiry made under Rule 115-P by the Collector or the Additional Collector is a judicial enquiry by a revenue Court as defined under Section 4(3) of the Land Revenue Act and by Section 3 of the Indian Evidence Act. Revenue Court has not been defined any where else. In Smt. Krishna Devi v. Board of Revenue, 1972 R.D. 228, the Division Bench of the Hon'ble High Court has held that the proceedings under Rule 115-N cannot possibly be held to be administrative in nature because a lis between two parties is resolved and a decision is made which is final and parties are heard and the matter is decided by a written order recording reasons for the conclusions reached. The view taken by P.C. Saxena in 1976 R.D. page 389, (supra), to our mind, is not correct and is against decision of the Hon'ble High Court mentioned above. The distinction made by him is unwarranted that when the patta is cancelled then only it is a judicial proceeding and if it is not cancelled and the application for cancellation of the patta is dismissed it becomes a non judicial proceeding and it amounts to executive order. The distinction made by him is unwarranted that when the patta is cancelled then only it is a judicial proceeding and if it is not cancelled and the application for cancellation of the patta is dismissed it becomes a non judicial proceeding and it amounts to executive order. The reasoning is fallacious and is not acceptable, because once the proceeding is held to be judicial proceeding, conducted by a revenue court, its result will not change its nature and it shall remain a judicial proceeding even if the order is of refusal to cancel the patta. The view taken by Sri Saxena, therefore, cannot be approved. The view taken by Sri Agarwal in 1977 R.D. page 126, (supra), is the correct view and is approved. 13. We are also supported in the above rule of ours by a Full Bench decision of the Board in Randhi Singh & another v. Manohara etc, Revision No. 111, 1979-80 Muzaffar-nagar decided on 2-3-1981 consisting of G.S. Tewari, Kaushal Kishore and one of us I.B. Singh, Members 14. In view of the above our answer to question no. 1 is that revision lies against the order of the Collector or Additional Collector or S.D.O. in a proceeding under Rule 115-P of U.P.Z.A. and L.R. Rules even if the order is of refusal for cancelling the patta. 15. Rule 115-P runs as follows after subs, by notification No. 256 Rajaswa 1-1-3(1)-71 dated March 16/17, 1972 read with corrigendum no. 56 Rajaswa 1-2(2)-72, dated 31-7-1972 and against subs, by Notification no. 192 12-1-1973(4) Rajaswa 1, dated 17th December 1973 : - 115-P(1) The Collector may, of his own motion or on the application of any person aggrieved by any order of allotment of land under rule 115-L or 115-M, proceed to make an inquiry in the manner given hereunder. (2) The allottee and Land Management Committee shall be necessary parties to all such cases. (3) The Collector on the application of any party or otherwise may pass suitable interim orders at any time before the final disposal of the case. (4) The Collector shall call upon all persons interested in the order of allotment to appear and present their case before him. It shall not be necessary to record evidence but the memo of the day to day inquiry shall be kept on record by the Collector. (4) The Collector shall call upon all persons interested in the order of allotment to appear and present their case before him. It shall not be necessary to record evidence but the memo of the day to day inquiry shall be kept on record by the Collector. On making inquiries, if he is satisfied that the allotment is irregular, he may cancel the allotment and thereupon the right, title and interest of the allottee and of every other person claiming through him in the land shall cease. (5) The order of the Collector under the preceding sub rule shall be final." 16. There is no provision anywhere either in the said Notification that the old pending cases under the said rule shall be heard and decided by the S.D.O. which were pending prior to the amendment of this rule. There was provision in U.P. Act IV of 1969 by its section 23 entitling S.D.Os. to decide cancellation of patta cases for agricultural purposes granted upto 28-6-1968 but by Ordinance No; XVIII of 1970 which had come into force on 28-9-1970 and subsequently by Act No. XXXV of 1970 which had come into force on 29-12-1970 by section 7 of the later serial no. 20 and 20-A of the IInd Schedule were deleted and no provision like section 23 of U.P. Act No. IV of 1969, existed, hence in our considered view after the said amendment of rule 115-P of the U.P.Z.A. and L.R. Rules the cases pending before the sub Divisional Officer will not be triable by the S.D.O.'s and will be triable only by the Collector and the procedure laid down in amended Rule 115-P will have to be followed being a procedural law which is generally retrospective unless otherwise provided so our answer to question no. 2 is accordingly. 17. Let the review application be heard by the Division Bench concerned as Mr. J.S. Gupta has retired and is no more Member of the Board.