Sheo Dutt v. Board of Revenue, U. P. , Allahabad — 1985 DIGILAW 868 (ALL)

ORDER K.P. Singh, J. - This writ petition arises out of proceedings under S. 122B of the U. P. Z.A. and LR. Act against the petitioner for his ejectment. The proceedings giving rise to the present writ petition were initiated on the basis of a report of the Lekhpal dated 7-1-1976. The proceedings were dropped on 27-3-1976. Thereafter a restoration application was filed and the case was restored on 29-9-1981. By the order dated 6-13-1981 the Assistant Collector. Salempur has found that the title of the petitioner is involved therefore, he should not be evicted and the Gaon Sabha should institute a competent proceeding before a competent Court (See Annexure II attached with the writ petition). Against the order of the Assistant Collector dated 6-10-1981 the Gaon Sabha preferred a revision petition which was allowed by the Collector through his order dated 15-2-1482 as is evident from Annexure III attached with the writ petition. Against the order of the Collector dated 15-2-1982, the petitioner preferred a revision petition which was recommended by the Additional Commissioner on 22.2.1983 for being allowed vide Annexure IV attached with the writ petition. The revisional Court has rejected the reference and has passed the following order on 31-7-1985. "............ I have heard the learned counsel for the parties and have perused the record. I do not agree with the recommendation of the learned Additional Commissioner because the learned Additional Collector had full power to decide the revision. The fact is that after the amendment under S. 122B the learned Additional Commissioner and this Court have no power to entertain the revision petitions against the order passed by the Collector in a case under S. 122B. The law on this point is very clear. I, therefore, do not accept the recommendation and maintain the order of the learned Collector who was fully empowered to decide the case. The order of the learned trial Court shall stand." Aggrieved by the order of the revisional Court the petitioner has approached this Court under Article 226 of the Constitution. 2. The learned counsel for the petitioner has contended before me that the order of the revisional Court is patently erroneous and the learned Member has failed to consider the effect of the Provisions of S. 26 of the U. P. Ordinance No. 3 of 1981. 2. The learned counsel for the petitioner has contended before me that the order of the revisional Court is patently erroneous and the learned Member has failed to consider the effect of the Provisions of S. 26 of the U. P. Ordinance No. 3 of 1981. The aforesaid Provision reads as below : "Notwithstanding any thing contained in the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950(a) all Proceedings under S. 122B of the said Act as it existed immediately before the commencement of this Section and pending before an, 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." 3. In my opinion the contention raised on behalf of the petitioner has force. The learned Member has really not considered the effect of the provisions of S. 26 of Ordinance No. 3 of 1981. The aforesaid provision was taken note of by the Additional Commissioner in his order dated 22-2-1983. The order of the learned Member is also contradictory. He has maintained the order of the Additional Collector and has observed that he was fully empowered to decide the case yet he has also indicated that the order of the learned trial Court shall stand. By the order of the Collector the case was sent back to the trial Court for being decided on merits whereas the trial Court had passed the order in favour of the petitioner as is evident from Annexure II. There appears some contradiction in the order contained in Annexures V. Since Annexure V is not a certified copy of the order, therefore, I remain content by pointing out that the impugned order of the revisional Court is patently erroneous as it has failed to consider the effect of the provisions of S. 26 of U. P. Ordinance No. 3 of 1981. 4. In my opinion, the recommendation of the Additional Commissioner, Gorakhpur, dated 15.2.1983 is correct insofar as it has indicated that the Collector had no jurisdiction to hear the revision petition against the order of the trial Court. 5. However, I have examined the order of the trial Court and that of the Collector. 4. In my opinion, the recommendation of the Additional Commissioner, Gorakhpur, dated 15.2.1983 is correct insofar as it has indicated that the Collector had no jurisdiction to hear the revision petition against the order of the trial Court. 5. However, I have examined the order of the trial Court and that of the Collector. Since I, find that the Collector has correctly pointed out that the claims of the parties should be decided on merits after giving reasonable opportunities to the parties. I do not consider it a fit case for exercise of jurisdiction under Article 226 of the Constitution in favour of the petitioner. File order of the trial Court contained in Annexure II is too cryptic and the trial Court has failed to apply its judicial mind to the facts and points invoked in the case. The learned counsel for the petitioner could not justify before me the correctness of the order passed by the trial Court. Since the claim of the parties is to be examined in view of the order of the Collector, I think the ends of justice would be served if I do not interfere with the order of the Collector whereby the case has been sent back to the trial Court. According to S. 122B (4B) of the U. P. Z.A. and L R. Act it has been indicated as below: "If during the course of enquiry in proceedings under this Section, the person in occupation of the land referred to in sub-sec. (1) has produced any evidence of title to such land which appears to the Collector to raise bona fide question of title, then the Collector shall, by order, require such person to file suit for declaration of his title under S. 229B in a competent Court within a period of one month from the date of such order, and stay further proceedings in the meantime." 6. It appears that the trial Court also did not decide the claims of the parties strictly in accordance with the law applicable to the facts and circumstances of the present case. It is well known that in the exercise of powers under Article 226 of the Constitution if an order is without jurisdiction ,it should not be quashed so as to restore an illegal order. It is well known that in the exercise of powers under Article 226 of the Constitution if an order is without jurisdiction ,it should not be quashed so as to restore an illegal order. In my opinion, the order of the trial Court is patently erroneous and illegal order, therefore, I am not inclined to exercise my powers under Article 226 of the Constitution in favour of the petitioner. Before parting with the case it is proper to observe that according to the observation of the revisional Court, the revisional Court had no jurisdiction to revise the order passed by the Collector. Therefore, any observation made by the revisional Court in its order would not stand in the way of the trial Court in dealing with the claims of the parties strictly in accordance with law. 7. In the result, the writ petition fails and is accordingly dismissed in limine.