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1982 DIGILAW 1019 (ALL)

Jhinak Singh v. Deputy Director of Consolidation

1982-09-07

K.P.SINGH

body1982
JUDGMENT K.P. Singh, J. - By means of this application the Petitioner has prayed for recalling the order dated 9-1-1980 passed by me in Civil Misc. Petition No. 1443 of 1977 Jhinak Singh v. Deputy Director of Consolidation and Anr. whereby the writ petition was dismissed. 2. The main grievance of the learned Counsel for the Petitioner before me is that in view of the notifications of the year 1953 the powers of the Assistant Collector 1st class and that of the Collector were conferred upon the Tahsildars, hence the Tahsildar, in the instant case was an Assistant Collector of 1st Class or was enjoying the powers of the Collector in respect of certain types of cases u/s 35-40 of the Land Revenue Act and would be deemed to be an Assistant Collector In charge of the Sub-Division in view of the provisions of Section 6 of U.P. Act. No 10 of 1961 and in the impugned order I have committed a patent error in treating the Tahsildar as not an Assistant Collector In charge of the Sub-Division. According to the learned Counsel for the Petitioner I should recall my order dated 9-1-1980 and allow the writ petition. 3. The learned Counsel for the contesting opposite party has tried to justify my order dated 9-1-1980 by placing reliance upon the ruling reported in 1969 RD 140 Mahraji v. Jai Deo. According to the learned Counsel for the contesting opposite party the Tahsildar was not an Assistant Collector 1st class nor could he be an Assistant Collector Incharge of the Sub-Division under the provisions of U.P. Land Revenue Act, hence the contentions raised on behalf of the Petitioners could be repelled. 4. I have considered the contentions raised on behalf of the parties. In my opinion the ruling cited by the learned Counsel for the contesting opposite party has no application to the facts and circumstances of the present case. The aforesaid ruling dealt with cases u/s 35 of the U.P. Land Revenue Act, whereas in the present case the correction of the entry involved is under paragraph 155A of the U.P. Land Records Manual which could be made only by an Assistant Collector first class In charge of a Sub-Division at relevant time. 5. The aforesaid ruling dealt with cases u/s 35 of the U.P. Land Revenue Act, whereas in the present case the correction of the entry involved is under paragraph 155A of the U.P. Land Records Manual which could be made only by an Assistant Collector first class In charge of a Sub-Division at relevant time. 5. To meet the arguments of the learned Counsel for the applicant my reasons are that the notifications of the year 1953 were not in accordance with the provisions of Section 224 of the U.P. Land Revenue Act. Before U.P. Act No. 37 of 1958 the aforesaid Section read as below: The State Government may confer on any Tahsildar all or any of the powers of an Assistant Collector Second Class and on any Naib Tahsildar all or any of the powers of a Tahsildar. After the year 1958 the Section reads as below: The State Government may confer on any Tahsildar all or any of the powers of an Assistant Collector of the First or Second class, and on any Naib Tahsildar all or any of the powers of a Tahsildar. 6. In view of the aforesaid Section the notifications relied upon by the learned Counsel for the applicant were not valid notifications till the year 1961 when U.P. Act No. 10 of 1961 was enforced. The amendment introduced by the provisions of Section 83 of U.P. Act No. 37 of 1958 read with Serial No. 6 of the Schedule attahched thereto were prospective. After the year 1958 no valid notifications were issued conferring the powers of an Assistant Collector First Class upon the Tahsildar hence the Tahsildar in the instant case was not an Assistant Collector First class on the day he made entries in favour of the Petitioner. 7. Here it would be proper to mention Section 4 of the U.P. Act No. 10 of 1961, which is as below: Re-number the existing Section 84 of the U.P. Land Reforms (Amendment) Act, 1958 as Sub-section (1) thereof and thereafter add the following as Sub-section (2): (2) The amendment mentioned at serial No. 6 of the said Schedule shall be deemed to have come into force on the first day of January, 1953. 8. 8. Section 6 of the U.P. Act No. 10 of 1961 reads as below: (1) Notwithstanding the provisions of any other law for the time being in force, any thing done or purporting to have been done and any action taken or purporting to have been taken (including any order made or passed, proceedings taken, directions issued, jurisdiction exercised and judgment delivered) in the areas in which U.P. Zamindari Abolition and Land Reforms Act, 1950 is in force, prior to the commencement of this Act, by an Assistant Collector not In charge of the Sub-Division or by a Tahsildar or Naib Tahsildar under the Principal Act or under any other law for the time being in force, shall be good and valid and shall be deemed always to have been good and valid as if on all material dates: (1) Such Assistant Collector had been duly appointed Assistant Collector In charge of the Sub-Division; (ii) Such Tahsildar had been a duly appointed Assistant Collector of the First class; and (iii) Such Naib Tahsildar had been a duly appointed Assistant Collector of the Second class. (2) Sub-section (1) shall not apply to a case in which any thing done or any action taken by the Assistant Collector or Tahsildar or Naib Tahsildar has been finally held by a Court of competent jurisdiction to be invalid on ground that; (i) Such Assistant Collector was not a duly appointed Assistant Collector Incharge of the Sub-Division; or (ii) Such Tahsildar was not a duly appointed Assistant Collector of the First class; or (iii) Such Naib Tahsildar was not a duly appointed Assistant Collector of the Second class. 9. In the aforesaid Section 6 the phrase "any other law for the time being in force" appears twice and the aforesaid phrase will have the same meaning i. e. any other law for the time being in force prior to the commencement of this Act. For the first time in view of the provisions of Section 4 Sub-clause (2) of U.P. Act No. 10 of 1961 the Tahsildars would enjoy the powers of an Assistant Collector First class with retrospective effect form the first day of January, 1953 in accordance with law. For the first time in view of the provisions of Section 4 Sub-clause (2) of U.P. Act No. 10 of 1961 the Tahsildars would enjoy the powers of an Assistant Collector First class with retrospective effect form the first day of January, 1953 in accordance with law. The term "Assistant Collector not in-charge of the Sub-Division" in Section 6 of the U.P. Act No. 10 of 1961 will not include Tahsildars, who got powers of Assistant Collector First class in pursuance of the provisions of Section 4 Sub-clause (2) of the Act, 1961. 10. The perusal of the object and reasons to enactment of U.P. Act No. 10 of 1961 also indicates that the Act has been passed to validate the acts already done by the Additional Sub-Divisional Officers, Tahsildar and Assistant Collectors First and Second class respectively. The provisions of Section 6 (i) of U.P. Act No. 10 of 1961 deal with Assistant Collector not in charge of Sub-Division prior to the enforcement of U.P. Act No. 10 of 1961. If the intention of the Legislature was to include the Tahsildars who became Assistant Collector First class with retrospective effect in view of the provisions of Section 4 Sub-section (2) of this Act (U.P. Act No. 10 of 1961), phraseology of Section 6 of the Act would have been somewhat different. In my order dated 9-1-1980, I have already indicated that the entry in favour of the Petitioner was made by the Tahsildar which could not be made on the relevant date by him as the same was to be done by an Assistant Collector In charge of the Sub-Division. The Tahsildar had not purported to act as Sub-Divisional Officer nor was he an Assistant Collector First class according to law prevalent then I think that the revisional Court was fully justified in ignoring the entry in favour of the Petitioner regarding class 9. 11. While dealing with second and third contentions of the learned Counsel for the Petitioner in my judgment dated 9-1-1980 I have not committed any patent error of law. Even today I think that the entry in favour of the Petitioner regarding class 9 was unauthorised and wrong. Therefore, the contentions raised by the learned Counsel for the (Petitioner) based on the notifications of the year 1953 are not acceptable to me. The application for review has no merits and deserves to be rejected. 12. Even today I think that the entry in favour of the Petitioner regarding class 9 was unauthorised and wrong. Therefore, the contentions raised by the learned Counsel for the (Petitioner) based on the notifications of the year 1953 are not acceptable to me. The application for review has no merits and deserves to be rejected. 12. In the result, the review petition fails and is accordingly dismissed. Parties are directed to bear their own costs.