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1988 DIGILAW 1041 (ALL)

Radhey Shyam v. Munshi

1988-11-07

B.KUMAR

body1988
JUDGMENT B. Kumar, Member - This reference arises out of any order dated September 7, 1983 passed by the Collector Ghaziabad under Section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act. A revision petition was preferred before the Divisional Commissioner against the order of the trial court and the learned Additional Commissioner against the order of trail court and the learned Additional Commissioner, while disposing of the revision, made a reference recommending to set aside the order of the Collector dated September 7, 1983. 2. Briefly stated, the facts of the case are the Radhe Shyam and others made an application on September 20, 1978 under Section 198(4) of the Act to the collector got an enquiry made through the Tehsildar. After enquiry, the Naib-tehsildar submitted his report dated October 24, 1978 and recommended to cancel the lease. The lease holder Shiv Nath and others made objection against this report on April 16, 1980. On August 7, 1983 the collector Ghazipur rejected the application made by Radhey Shyam and others. Aggrieved by this order, Radhey shyam preferred a revision before the Divisional Commissioner. He learned Additional Commissioner had decided the revision or December had decided the revision on December 13, 1983 but an application having been made for restoration of the case, the revision was re-heard and others were passed on February 15, 1984. The learned Additional commissioner has recommended to cancel the lease and to set aside the order of the trial court, on the grounds that no proclamation was made, that there is no evidence to show that members of the L.M.C. were informed of the meeting that there are no forms 57-ka, 57-kha and 58 on the file and that no appeal was obtained from the S.D.O. and that there is no list of eligible persons. 3. I have heard the learned counsel for the parties and have also perused the record. Sri Triveni Shanker, learned counsel for the revisionist has argued that the lease was not executed according to rules because there is no proof of proclamation, resolution and approval of the S.D.O. He has further argued that the revisionist has become sirdar under Section 122-B(4-F) of the Act. Another contention made by him is that the application moved by the revisionist before the Collector was within time. Another contention made by him is that the application moved by the revisionist before the Collector was within time. He has further submitted that a suit under Section 229-B has been decreed in favour of the revisionist and so the land in dispute did not belong to the Gaon Sabha and no allotment could be made in favour of the opposite parties. Referring to the report of the Naib-tehsildar, the learned counsel has submitted that revisionists are in possession over the land in dispute. Sri K.B. Sinha and Sri B.R. Misra, learned counsel for the opposite parties have contended that the court below did not appreciate the evidence on record properly. His next contention is that the application moved by the revisionist is time-barred but the learned Additional Commissioner has not touched the point of limitation. Their next submission is that the order passed in the suit under Section 229-B is not binding on the opposite parties because they were no parties to the suit. It has been contended that the suit under Section 229-B is still pending and even if the revisionist succeeds, the opposite parties being not a party to the suit shall not be bound by the verdict given in the case under reference. 4. The learned trial court has rejected the application of the revisionist on the ground that the land in dispute has vested in the Gaon Sabha during the course of consolidation operation. The Revisionist made no effort to prove their ownership over the land is dispute during the consolidation operation. They filed a suit under Section 229-B which they subsequently withdrew on the November 20, 1981. The again filed a suit for declaration of their title and the suit is still pending. Another aground for rejection is that the revisionists; names are nor recorded even in Class 4. As regards possession, the learned trail court is of the view that even if he revisionists are in unauthorised possession, the lease cannot be cancelled on the basis of unauthorised possession. 5. The first question for consideration is whether the application for cancellation of the lease is within time. The lease was executed on May 30, 1972 and the application for cancellation of the lease was moved on ended by way of U.P. Land Laws (Amendment) Act XXX of 1975. 5. The first question for consideration is whether the application for cancellation of the lease is within time. The lease was executed on May 30, 1972 and the application for cancellation of the lease was moved on ended by way of U.P. Land Laws (Amendment) Act XXX of 1975. The amended provisions are read as follows: "(i) In the case of an allotment of land made before the commencement of the U.P. Land Laws (Amendment) Act, 1975, cancel the allotment of lease, if any, within 5 years from the date of such commencement." This amendment was published in the U.P. Gazette on August 19, 1975. It is quite clear from the above provisions that the lease could be cancelled till August 18, 1980, so the application for cancellation of the lease in the present case is not time barred. 6. The next question for consideration is whether the L.M.C. could lease out the land in favour of the opposite parties and whether the allotment was made according to rules. It appears from the judgment of the learned trail court that the land have vested in the Gaon Sabha during the course of consolidation operation and the revisionist had not made bay objection before the consolidation authorities. But the trial court did not make any effort to see whether the allotment of land was made according to rules or not. Where a case of irregular allotment of the land is brought to the notice of the trial court, it is imperative upon it to see whether the allotment was made according to rules. In the instant case, the learned trial court did not deem it necessary to examine this important aspect of the case. It appears from the resolution dated February 20, 1972 paper number 253/8 that the allotment of land was made in favour of as many as 18 person including the opposite party. It is well settled principle that when the allotment has been made in favour of, so many person's notice have to be sent to all the allottees. In the absence of such notice, the proceedings are vitiated because if the allotment made in favour of only one or two persons at the instance of some other party is cancelled on account of irregularities having been committed by the L.M.C., the rest of the allotees shall continue to enjoy the benefits of the irregular allotment. In the absence of such notice, the proceedings are vitiated because if the allotment made in favour of only one or two persons at the instance of some other party is cancelled on account of irregularities having been committed by the L.M.C., the rest of the allotees shall continue to enjoy the benefits of the irregular allotment. In the instant case, the learned trial court instead of looking into the question of the validity of the allotment , had simply rejected the application of the revisionist. I, therefore, find it is fit case for remand. 7. The revision petition is, therefore allowed and the order of the learned trial court dated September 7, 1983 is set aside. The case is remanded to the trial court with the direction that it shall initiate proceedings under Section 198(4) afresh after issuing notices to all the allottees.