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1988 DIGILAW 203 (ALL)

Shiv Shankar v. State of Uttar Pradesh

1988-02-23

P.SINGH

body1988
JUDGMENT P. Singh, Member - This reference arises out of an order of the trial court dated 13-7-81 passed in a proceeding under Section 198 of U.P. Act I of 1951. 2. I have heard the learned counsel for the revisionist and the learned DGC (R) and have perused the record. 3. I find that these proceedings were initiated under, section 198 (4) of Act I of 1951 against the revisionist, Shiv Shanker. The learned counsel for the revisionist submits that in these proceedings, under Rule 178-A (2) of U.P.Z.A. & L.R. Rules the Land Management Committee was necessary party and should have been made a party and heard, before passing the order. The provisions contained in sub-rule (2) of Rule 178-A read as under : "178-A (2). Where the Collector makes an enquiry under sub-section (4) of Section 198, the Land Management Committee and the allottee of land shall be made parties and given an opportunity of being heard before final orders are passed." I find that the contention of the learned counsel for the revisionist is acceptable and the impugned order cannot, therefore, be sustained on this score. The learned counsel for the revisionist also says that it is only the Collector who can take action in matters of cancellation of lease under the provisions of Section 198 (4) of Act I of 1951, relying on "Shivlal v. Board of Revenue" (1985 R.D. (66). In that decision it has been specifically mentioned that "it is sufficient to indicate that here under Section 198 of the Act the Collector is 'persona designata', which means specially empowered tribunal and it has been given jurisdiction to entertain applications for cancellation of the lease and to decide the controversy between the parties on merits after taking relevant evidence from the parties and hearing them. Hence that power cannot be deemed to have been delegated to the Sub Divisional Officer simply because Section 3 (4) of the Act, the definition clause, indicates that 'Collector' includes Sub Divisional Officer or the Assistant Collector First Class." 4. Hence that power cannot be deemed to have been delegated to the Sub Divisional Officer simply because Section 3 (4) of the Act, the definition clause, indicates that 'Collector' includes Sub Divisional Officer or the Assistant Collector First Class." 4. I find that in the above-referred decision, there is a reference to Notification No. 1756/I-A-1073-53 published in the U.P. Gazette dated 10-6-1953 which reads as under :- "In exercise of the powers conferred by Clause (4) of Section 3 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951), the Governor is pleased to empower all the Sub Divisional Officers in U.P. except those in the districts of Almora, Garhwal, Tehri Garhwal and Rampur to discharge all the functions of the Collector under the said Act." The aforesaid notification, however, was subsequently superseded by another Notification No. 365/I-A-2-1 (2)-68, dated 5-12-1968, by which the powers of Sub Divisional Officers were taken away in respect of proceedings under Section 198 of the Act. On the basis of this, the learned counsel for the revisionist submits that it is the Collector sitting on the chair only can proceed with the proceedings under Section 198 (4). 5. I am not at all in agreement with this contention of the learned counsel for the revisionist. In the aforesaid decision, the interpretation given by the learned Judge makes it amply clear that the powers of Additional Collectors have not been taken away and they exercise all powers of the Collector under the Land Revenue Act and the U.P.Z.A. & L.R. Act. Under Section 3 (4) of U.P. Act 1 of 1951, the word 'Collector' has been defined as under:- "3(4). "Collector" means an officer appointed as Collector under the provisions of the U.P. Land Revenue Act, 1901, and includes an Assistant Collector of the first class empowered by the State Government by a notification in the Gazette to discharge all or any of the functions of the Collector under this. Act." Since all the Sub Divisional Officers are Assistant Collectors of the first class and they have been divested of the powers to proceed under Section 198 (4) by the notification dated 5-12-1968, they will not be treated as Collectors in respect of proceedings under Section 198 (4) of U.P. Act I of 1951. Act." Since all the Sub Divisional Officers are Assistant Collectors of the first class and they have been divested of the powers to proceed under Section 198 (4) by the notification dated 5-12-1968, they will not be treated as Collectors in respect of proceedings under Section 198 (4) of U.P. Act I of 1951. The Additional Collectors have not been divested of their powers in respect of proceedings under Section 198 (4). 6. Accordingly, the reference is accepted, the impugned order dated 13-7-81 is set aside, and the matter is sent back to the trial court for proceeding after making the Land Management Committee a party to the proceedings.