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1982 DIGILAW 855 (ALL)

Abdul Gaffor v. Gaon Sabha

1982-07-22

H.P.GUPTA

body1982
JUDGMENT H.P. Gupta, Member- This revision is filed by Abdul Gaffor etc. against the order dated 11-6-1982 passed by Collector, Bijnor, dismissing the revision under Section 122-B of U.P.Z.A. and L.R. Act and confirming the order passed by Tahsildar, Assistant Collector 1st Class' Nazibabad on 31-8-1981 directing the ejectment of the present Revisionist from the disputed land and imposing the damages of Rs. 5,920. The proceedings in the trial court started on the report of Lekhpal dated 25-2-1981. Notice in form 49-A was issued on 16-3-1981. 2. The learned counsel for the Revisionist argued that a revision lies to the Board of Revenue under Section 333 of U.P.Z.A. & L.R. Act against the order of the Collector passed in Revision under Section 122-B of U.P.Z.A. & L.R. Act as amended by various ordinances, on the same anology as the order passed by the Collector under old rule 115-N and the present rule 115-P of U.P.Z.A. & L.R. Rules is revisable. 3. It is true that under old rule 115-N and present Rule 115-P of U.P.Z.A. & L.R. Rules it is provided that the order passed by the Collector shall be final but still it was subject to revision by the Board in the absence of the specific provision in the Act or Rules prohibiting such revision. This is not the position regarding the orders passed by the Collector in Revision under Section 122-B as amended by various ordinance. 4. By the U.P. Land Laws (Amended) Ordinance 1981 (U.P. Ordinance No. 3 of 1981) promulgated by the Governor on June 3, 1981 published in U.P. Gazette Extra Ordinary dated 3, June 1981, Section 122-B U.P.Z.A. & L.R. Act was amended. This ordinance was replaced by U.P. Ordinance No 18, 1981 published in U.P. Gazette Extra Ordinary dated 26th October, 1981, which repealed U.P. Ordinance No. 3 of 1981. This Ordinance No. 15, 1981 was again replaced by U.P. Ordinance No. 8 of 1982 published in U.P. Gazette Extra Ordinary dated 21st February 1982. This Ordinance was again replaced by the U.P. Land Laws (Amendment) (Second) Ordinance 1982 (U.P. Ordinance No. 15 of 1982) published in U.P. Gazette dated 7th April 1982. 5. By Section l-(2) of this U.P. Ordinance No. 15 of 1982, now inforce, Section 2 of this ordinance is to be deemed to have come into force on June 3, 1981. This Ordinance was again replaced by the U.P. Land Laws (Amendment) (Second) Ordinance 1982 (U.P. Ordinance No. 15 of 1982) published in U.P. Gazette dated 7th April 1982. 5. By Section l-(2) of this U.P. Ordinance No. 15 of 1982, now inforce, Section 2 of this ordinance is to be deemed to have come into force on June 3, 1981. This Section 2 is as follows :- "In Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 hereinafter in this Chapter referred to as the principal Act, for sub-sections (1) to (4-B), the following sub-sections shall be substituted namely :- (1) Where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or Local Authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed. (2) Where from the information received under sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated or any person is in occupation of any land, referred to in that sub-section, in contravention of the provisions of this Act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or as the case may be, why he should not be evicted from such land. (3) If the person to whom a notice has been issued under sub-section (2) fails to show cause within the time specified in the notice or within such extended time as the Assistant Collector may allow in this behalf, or if cause shown is found to be insufficient the Assistant Collector may direct that such person may be evicted from the land and may for that purpose, use or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue. (4) If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (2) he shall discharge the notice. (4-A) Any person aggrieved by the order of the Assistant Collector risk under sub-section (3) or sub-section (4) may, within thirty days from the date of such order, prefer a revision before the Collector on the ground, mentioned in clauses (a) to (c) of Section 333. (4-B) The procedure to be followed in any section taken under this section shall be such as may be prescribed. (4-C) Notwithstanding anything contained in Section 333 or Section 333-A but subject to the provisions of this section- (i) every order of the Assistant Collector, under this section shall, subject to the provisions of sub-section (4-A) and (4-D) be final ; (ii) every order of the Collector under this section shall, subject to the provisions of sub-section (4-D) be final. (4-D) Any person aggrieved by the order of the Assistant Collector in respect of any property under this section may file suit in the court of competent jurisdiction to establish the right claimed by him in such property. (4-E) No such suit as is referred to in sub-section (4-D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under sub-section (4-A). Explanation .-For the purposes of this section the expression 'Collectors' means the officer appointed as Collector under the provisions of the U.P. Land Revenue, Act, 1901 and includes an Additional Collector." 6. The amended Section 122-B (4-A) provides a revision before the Collector on the grounds mentioned in clauses (a) to (c) of Section 333. Sub-section (4-C) provides that notwithstanding anything contained in Section 333 or Section 333-A, every order of the Collector shall subject to the provisions of sub-section (4-D) be final. Sub-section (4-D) provides that any person aggrieved by the order of the Assistant Collector or Collector may file a suit in the Court of competent jurisdiction to establish the right claimed by him in the property. Against the order of the Assistant Collector, the aggrieved person may file revision before the Collector or a suit in the court of competent jurisdiction to establish his rights in the property. Against the order of the Assistant Collector, the aggrieved person may file revision before the Collector or a suit in the court of competent jurisdiction to establish his rights in the property. If a revision is filed, before the Collector, regular suit will not be filed against the order of the Assistant Collector in view of the provisions of sub-section (4-E) but the remedy of regular suit will be available against the order passed by Collector in revision. By the ordinance revisions under Section 333 and 333-A of the Act are barred against the order of the Assistant Collector or Collector but the remedy of regular suit is made available to the aggrieved party against the order of the Assistant Collector or Collector as the case may be. The order passed by the Assistant Collector 1st Case and Collector under amended Section 122-B of U.P.Z.A. & L.R. Act are not revisable under Section 333 or Section 333-A of U.P.Z.A. & L.R. Act. 7. The learned counsel for the Revisionist argued in view of the transitary provisions of Section 26 (a) of the Ordinance as the proceedings under Section 122-B of U.P.Z.A. & L.R. Act if the present case were pending on 2-6-1981, the proceedings will be governed by unamended Section 122-B of U.P.Z.A. & L.R. Act. According to him the order passed by the Collector in revision was a nullity as it was passed without jurisdiction. The revision may be treated against the order of the Assistant Collector 1st class only which was revisable under the unamended provisions of law. 8. Section 26-(a) of U.P. Ordinance No. 15 of 1982 is as follows :- "26. Notwithstanding anything contained in the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950- (a) all proceedings under Section 122-B of the said Act as it existed immediately before the commencement of this section and pending before any officer, court or authority on the date of such commencement shall be disposed of in accordance with the provisions of the said Act as if this Ordinance had not been promulgated ; (b) ... ... ... ...". 9. This saving clause was in existence in all the ordinances. This saving clause made it clear that the proceedings under Section 122-B pending on 2-6-1981 are to be disposed of in accordance with old unamended provisions of the Act. ... ... ...". 9. This saving clause was in existence in all the ordinances. This saving clause made it clear that the proceedings under Section 122-B pending on 2-6-1981 are to be disposed of in accordance with old unamended provisions of the Act. The proceedings in the present case being pending on 2-6-1981, the revision against the order of Assistant Collector should have been filed before Commissioner and not before the Collector who had no jurisdiction to entertain the revision under the provisions of the unamended Act. 10. Even if the present revision is treated as the revision against order of the Assistant Collector, ignoring the order passed by the Collector as nullity, still the revision should have been filed before the Commissioner in view of the provisions of Section 333-A of U.P.Z.A & L.R. Act. It is true that in Rajendra Prasad v. State, 1979 R.D. 89, Full Bench of Board of Revenue held that Section 333-A does not effect the powers of the Board under Section 333 to entertain revision directly but it was also observed that this power should be exercised only in extreme cases. The present case is not such in which revision should be entertained direct in Board ignoring the provisions of Section 333-A of U.P.Z.A. & L.R. Act and Rule 186 of U.P. Revenue Court Manual. I accordingly refuse to entertain and admit the present revision.