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1985 DIGILAW 778 (ALL)

Shital Prasad v. Birja Kurmi

1985-08-22

H.N.SRIVASTAVA

body1985
JUDGMENT H.N. Srivastav, Member - This reference arises out of a revision filed before the learned Additional Commissioner against the order of the learned Additional Collector Jaunpur in a case under Rule 115-P of the UPZA & LR Rules. Briefly stated, the facts of the case are that the respondent Birja filed an application under Rule 115-P of the Rules in respect of the allotment of abadi site to the revisionist Shitla Prasad. The patta was cancelled, by the learned Additional Collector by his order dated 15-6-1978. A revision against that order was filed. The learned Additional Commissioner has recommended that the order of the trial court may be set aside and the case may be remanded for proceeding with it in accordance with law. It has been observed by him that oral evidence was held before the naib tehsildar, that one of the witnesses deposed before the S.D.O., that reliance was placed on those statements by the learned Additional Collector and as such the enquiry cannot be held to be conducted by the Additional Collector as provided in law. Thus he observed that the trial court has committed error in the exercise of jurisdiction. 2. I have heard the learned counsel for the parties and have also perused the record. The learned counsel for the revisionist has reiterated the points raised by the learned Additional Commissioner and has urged that the order of the learned trial court cannot be held as legally in view of those procedural lapses. 3. Rule 115-P lays down the procedure for such an enquiry and is as follows:- "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 enquiry in the manner given hereunder. (2) The allottee and the LMC 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 cases. (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 enquiry 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 enquiry 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." The basic ingredients of such an enquiry are firstly that the allottee and the LMC shall be made parties to such a proceeding. Secondly the collector shall call upon all the persons interested in the order of allotment to present their case before him. It is also prescribed, that, the collector may not record evidence and that the memo of day to day enquiry should be kept on record. Obviously the enquiry contemplated under Rule 115-P is an enquiry of a summary nature. In the instant case, the respondent Birja filed an application before the learned collector impleading the LMC of the concerned village to be a party to the proceeding. Notices were issued to the concerned LMC and the revisionist Shitla Prasad. The revisionist Shitla Prasad filed his written statement in the court of the collector on 22-1-1974. The case was dismissed in default by the collector oh 15-4-1975. Subsequently on 12-11-1975 the ex parte order dated 15-4-1975 was set aside and the case was sent to the tahsildar for enquiry and report. The tahsildar sent his report through the SDO on 14-9-1977. The learned Additional Collector thereafter heard the concerned parties and decided the case. The patta was cancelled. 4. The requirements of Rule 115-P were met completely as the learned Additional Collector did hear the concerned parties. He also took added care to get the facts regarding allotment of patta elucidated in detail through tahsildar and SDO. The rules do not prohibit the collector from finding out facts regarding allotment through the subordinate officers. Therefore, no irregularity was committed by the learned trial court in getting the facts enquired by the tahsildar/SDO. 5. It has been pointed out that the learned Collector should not have relied upon the report of the tahsildar/SDO in forming his opinion. I do not agree with this argument. Therefore, no irregularity was committed by the learned trial court in getting the facts enquired by the tahsildar/SDO. 5. It has been pointed out that the learned Collector should not have relied upon the report of the tahsildar/SDO in forming his opinion. I do not agree with this argument. The facts about the allotment were got verified and elucidated from the tahsildar and SDO. If those facts were found to be true, there is no reason whatsoever not to take into note of them. The collector has not based his decision on an opinion expressed by the subordinate courts but has taken into consideration the various facts that have been brought to his notice from the enquiry by tahsildar/SDO. Finding out facts in such a manner is neither prohibited nor illegal and not procedural error has been committed. In view of the above, I hold that no irregularity has been committed by the learned Additional Collector in conducting the proceeding under Rule 115-P of the Rules. I also hold that the order of the learned Additional Collector is legally valid and correct and needs no interference. The revision petition is therefore, dismissed.