Dinesh Singh v. State of Uttar Pradesh — 1989 DIGILAW 411 (ALL)

JUDGMENT P. Singh, Member. - This revision is directed against the order dated 10.8.84 passed by the Additional Commissioner, Lucknow Division, in Revision No. 229 of 1981-82 arising out of an order dated 6-7-82 passed by the Additional Collector, Lucknow. 2. It appears that proceedings under Section 198 (2) of U.P. Act I of 1951 were initiated against the revisionists. On 22.5.82, an application was moved on behalf of the revisionists that the Hon'ble High Court, in Writ Petition No. 876 of 1973, had passed an order on 7th October, 1977 by which the order of cancellation of leases passed against the revisionists was quashed and that order was final and no appeal was filed against that order by the State of U.P., and as such the proceedings initiated under Section 198 (2) were barred by principle of res judicata, that the proceedings under Section 198 were beyond time as the lease related to the year 1963, and on that account they prayed that proceedings under Section 198 (2) of U.P. Act I of 1951 should be dropped. 3. The learned trial court passed an order that evidence of the parties was to be taken and the disposal of the application was pre-mature, and it ordered for taking of evidence and thereafter it was of the view that the application should be disposed of. Aggrieved by that order, a revision was preferred before the learned Additional Commissioner, who was of the view that the order passed by the trial court was an inter-locutory order against which no revision lies. Referring to the citation reported in 1983 R.D. 124, the learned Additional Commissioner says that the said decision was not applicable to the facts of the instant case as the decision of the application will not help in deciding the case early. Against that order of the learned Additional Commissioner, the instant revision has been filed. I have heard the learned counsel for the revisionists and the learned DGC (R) appearing for the opposite parties, and have perused the record. 4. The learned counsel for the revisionists submits that leases in favour of the revisionists were executed in 1963 and proceedings for cancellation thereof were initiated in 1970 and the Hon'ble High Court had passed an order on 7.10.77 whereby it held that the leases executed in favour of the revisionists were not liable to be cancelled. 4. The learned counsel for the revisionists submits that leases in favour of the revisionists were executed in 1963 and proceedings for cancellation thereof were initiated in 1970 and the Hon'ble High Court had passed an order on 7.10.77 whereby it held that the leases executed in favour of the revisionists were not liable to be cancelled. As such the Second application moved for cancellation of leases was barred by principle of res-judicata that the matter directly and substantially in issue in the present proceedings, giving rise to the present revision, is the same which was in earlier proceedings in which order dated 7.10.77 had been passed by the Hon'ble High Court, and that subsequent proceedings, in respect of the same land in dispute and in between the same parties, wherein the matter directly and substantially in issue, is the same, were barred by principle of res-judicata, that the present proceedings could have been decided on the issue of res-judicata under Order XIV Rule 2 (2) of Code of Civil Procedure on the basis of evidence of the parties on record, and that the decision of this issue could not be held to be an inter-locutory order and it amounted to either 'case decided' or 'Proceeding decided' as contemplated under Section 333 of U.P. Act I of 1951, and as such the revision was maintainable, and that the trial court or the learned Additional Commissioner had no jurisdiction to proceed in the matter in as much as the lease deed was of the year 1963 and the Assistant Collector-in-charge of the Sub Division alone could have proceeded with the matter. The learned DGC (R) submits that the instant proceedings were not maintainable as the revision was against an inter-locutory order, and that proceedings under Section 198 (4) were maintainable. 5. The learned Counsel for the revisionists has drawn my attention to the provisions contained under Section 333 of U.P. Act I of 1951. Section 333 reads as under : - "333. 5. The learned Counsel for the revisionists has drawn my attention to the provisions contained under Section 333 of U.P. Act I of 1951. Section 333 reads as under : - "333. The Board may call for the record of any suit or proceeding decided by any subordinate court in which no appeal lies or where an appeal lies but has not been preferred, and if such subordinate court appears - (a) To have exercised a jurisdiction not vested in it in law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of jurisdiction illegally or with material irregularity, The Board may pass such order in the case as it thinks fit." 6. I find that in the instant case the revisionists filed an application for quashing the proceedings in view of the order passed by the Hon'ble High Court, and as such the trial court should have decided that matter. As such this court can look into the order passed by the trial court in accordance with the provisions contained in Section 333 of U.P. Act I of 1951. Consequently, I am of the view that a revision does lie against the order passed by the trial court. 7. The learned counsel for the revisionists has drawn my attention to the order passed by the Hon'ble High Court and submits that the Hon'ble High Court had finally decided that the leases were proper. I find that in its order dated 7.10.77 the Hon'ble High Court has held that the leases of the revisionists were cancelled in contravention of Section 198 (read with Rule 178-A of the rules ) framed under the Act, and it quashed the order of cancellation. The Hon'ble High Court has clearly held that the order of cancellation was passed without any service of notice on the revisionists, and as such it held that 'the Board of Revenue completely misdirected itself and held that the order passed by the trial court could not be struck down on the ground of non-compliance of Rule 178-A and as discussed earlier, any order of cancellation without affording an opportunity of hearing to a lease would be invalid. The Board of Revenue therefore, committed a patent error in upholding the order of cancellation.' Therefore, the Hon'ble High Court quashed all the orders passed in this respect by the Board of Revenue as well as the orders of the Additional Commissioner dated 23.3.71 and of the Sub-Divisional Officer dated 31.8.70. The Hon'ble High Court has held that no notice under Section 198 (2) was served on the revisionists and, consequently, the order of cancellation was wrongly passed against them and consequently that order of cancellation was quashed by the Hon'ble High Court. On the basis of that order the learned counsel for the revisionists says that the proceedings under Section 198 (2) could not be started against them. It also appears that the revisionists moved an application for mutation and the mutation application was not allowed and simultaneously show-cause notices were also issued against the revisionists and their leases were cancelled. But since the Hon'ble High Court has quashed the orders passed by the Board of Revenue and that of the learned Additional Commissioner and the Sub-Divisional Officer, the stand of the revisionists was vindicated and order of cancellation of leases was set aside. In view of the order passed by the Hon'ble High Court, the learned counsel for the revisionists submits that proceedings under Section 198 (2) could not be initiated against the revisionists again. The learned Additional Collector has initiated the proceedings under Section 198 (2) saying that the Hon'ble High court has directed for fresh proceedings to be taken under Section 198 against the revisionists. This order of the learned Additional Collector is available on paper No. A-4/7 dated July 12, 1978 on the trial court's file. 8. The learned Additional Collector has issued a direction to the Sub-Divisional Officer for proceeding against the revisionists in accordance with the order passed by the Hon'ble High Court. The Hon'ble High Court had nowhere issued such a direction to the learned Additional Collector to proceed afresh with the inquiry in to allotments against them. Relying on 1970 R.D. p. 265, Bangali Prasad v. State, the learned counsel for the revisionists submits that controversy between the parties was finally decided by the Hon'ble High Court and subsequent proceedings under Section 198 (2) were barred by principle of res-judicata. I find that proceedings under Section 198(2) were initiated against the revisionists, evidence was taken and their leases were cancelled. I find that proceedings under Section 198(2) were initiated against the revisionists, evidence was taken and their leases were cancelled. The then learned Member, Sri S.K. Sarkar, held that proceedings were properly taken under Section 198 (2) though the provisions of Rule 178-A (2) of U.P.Z.A. & L.R. Rules were not complied with, Hon'ble High Court struck down that order of the Board of Revenue and of the Additional Commissioner and the trial court on the ground that the revisionists were neither served with the show cause notices nor were they afforded any opportunity of producing evidence in rebuttal and that the order was passed without proper opportunity of hearing to them. I find that this aspect of the material will certainly stand as a bar to the subsequent proceedings. 9. The earlier proceedings under Section 198 (2) were initiated by the learned Sub-Divisional Officer by issuing show cause notices on 7.10.70, and after the Hon'ble High Court had quashed the orders passed by the Sub-Divisional Officer and that of the Additional Commissioner and the Board of Revenue, fresh proceedings were initiated by the learned Sub-Divisional Officer, Lucknow, by issuing show cause notices on 20.1.79. 1 find that U.P. Land Laws (Amendment) Ordinance, 1970 (Ordinance No. 18 of 1970) became effective from 28.9.70, and U.P. Land Laws (Amendment) Act, 1970 (Act No. 35 of 1970) came into force on 19.12.70. There was a transitory provision made in Section 23 of U.P. Land Laws (Amendment) Act, 1969 and by that provisions that applications for cancellation of leases could be entertained by the Sub-Divisional Officers before 28.9.70 and that could be decided if the applications related to allotment of land made prior to 28th June, 1968. Section 12 of U.P. Land Laws (Amendment) Act, 1969 came into force with effect from September 1, 1969 on authorising Collectors to proceed with inquiries into allotments made by Land Management Committees in place of Assistant Collectors-in-charge of the Sub-Divisions. Section 198 was substituted by anew Section through the U.P. Ordinance No. 18 of 1970 without providing any transitory provision of Section 23 of the U, P. Land Laws (Amendment) Act, 1969. This Ordinance was replaced by U.P. Land Laws (Amendment ) Act No. 35 of 1970, which also did not provide the transitory provisions of Section 23 of U.P. Land Laws (Amendment) Act of 1969. This Ordinance was replaced by U.P. Land Laws (Amendment ) Act No. 35 of 1970, which also did not provide the transitory provisions of Section 23 of U.P. Land Laws (Amendment) Act of 1969. This omission by the legislature was with a view to divesting of powers of Sub-Divisional Officers of inquiring into allotments made by the Land Management Committee and empowering Collectors to inquire and decide proceedings in relation to allotments made prior to 28th June, 1968. Thus, with effect from September 1, 1969 the power to cancel leases vested with the Collector of the District. A Division Bench of this court in Samai v. L.M.C. (Revision No. 45, 55-56 of 1976-77/Mainpuri) held that the transitory provisions contained in Act IV of 1969 stood repealed on the promulgation of Act No. 35 of 1970. A Full Bench of the Hon'ble High Court in Similesh Kumar v. Gaon Sabha Vusakar, (1978 R.D. at 408) held that after the amendment introduced by the U.P. Ordinance No. 18 of 19 0, power to make inquiries into allotments made by the Land Management Committee for cancellation of leases lay exclusively with the Collector, which of course is subject to revision provided by Section 333 of U.P. Act I of 1951. 10. Thus, it is evident that by ordinance No. 18 of 1970, the existing Section was replaced. This Ordinance was replaced by the U.P. Land Laws (Amendment) Act 35 of 1970 which came into effect from 28.9.70. U.P. Land Laws (Amendment) Act, 1970 did not contain the transitory provision of Section 23 of the U.P. Land Laws (Amendment) Act of 1969. From this it will be presumed that with effect from September, 28, 1969 the power to inquire into the allotments made by Land Management Committees exclusively vested with the Collector and the Sub-Divisional Officers ceased to have any jurisdiction even to decide pending proceedings regarding such inquiries. 11. In the instant case, the learned Sub-Divisional Officer, Lucknow, initiated inquiry into allotments made in favour of the revisionists by issuing show cause notices on 20.1.79. In view of the provisions as they stood on 20.1.79, the Sub-Divisional Officer was not empowered to proceed with the inquiry into allotments made in favour of the revisionists as the provisions of Section 198 (4) provided that it was the Collector who has to make inquiries in the manner prescribed into such allotments. In view of the provisions as they stood on 20.1.79, the Sub-Divisional Officer was not empowered to proceed with the inquiry into allotments made in favour of the revisionists as the provisions of Section 198 (4) provided that it was the Collector who has to make inquiries in the manner prescribed into such allotments. The provisions of Section 198 as they stood on 20.1.79 read as under : - "198 (3) The Collector may on his own motion and shall on the application of any person aggrieved in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may - (i) cancel the allotment and the lease, if any, and thereupon the right, title and interest of the allottee or lessee or any person claiming through him in the land allotted or leased, shall cease, and such land shall revert to the Gaon Sabha, and - (ii) direct delivery of possession of such land forthwith to the Goan Sabha after ejectment of every person holding or retaining possession thereof, and may for that purpose use or cause to be used such force as may be necessary." From this, it is evident that Sub-Divisional Officer had no authority to proceed with the inquiry into allotments made in favour of the revisionists and the Collector could proceed with such an inquiry into allotments made in favour of the revisionists. Consequently, I find that Sub-Divisional Officer, Lucknow, Committed an error of law in issuing show cause notices on 20.1.79 and as such their show cause notices are hereby quashed. 12. The learned District Government counsel (Revenue) submits that proceedings under Section 198 could be taken again by issuing show cause notices by the Collector, Lucknow and as such the matter should be remanded to the trial court. 12. The learned District Government counsel (Revenue) submits that proceedings under Section 198 could be taken again by issuing show cause notices by the Collector, Lucknow and as such the matter should be remanded to the trial court. I find that under Sub-Section (6) of Section 198, the period for issuing show cause notices was enumerated as under : - "198 (6) Every notice to show cause mentioned in sub-Section (5) may be issued - (a) in the case of an allotment of land made before November 10, 1980 (hereinafter referred to as the said date), before the expiry of a period of two years from the said date ; and (b) in the case of an allotment of land made on or after the said date, before the expiry of a period of five years from the date of such allotment or lease." This period was extended by the U.P. Land Laws (Amendment) Act XXIV of 1986 as under :- "11. In Section 198 of the principal Act, in sub-section (6) - (i) in clause (a), for the words "two years", the words "Seven years" shall be substituted and be deemed always to have been substituted, (ii) in clause (b), for the words "five years" from the date of such allotment or lease the words "five years" from the date of such allotment or lease or upto November 10, 1987, whichever be shall later be substituted and be deemed always to have been substituted." The instant Allotments were made in the year 1963 and as such these allotments of land were made before November 10, 1980. As such the show cause notices could have been issue 1 upto November 10, 1987. The learned District Government Counsel (Revenue) has not been able to show that notices to show cause can still be issued as there has been no extension of period in respect of allotments made before November 10, 1980. As the period for issuing show cause notices to revisionists in respect of allotments made in the year 1963 has expired in view of provision contained in clause (a) of Section 198 (6), as amended by the U.P. Land Laws (Amendment) Act 24 of 1986 ; no proceedings in regard to inquiry into allotments made in favour of the revisionists for cancellation of their leases can be taken under Section 198. Consequently, the Order passed by the learned Addl. Consequently, the Order passed by the learned Addl. Collector dated 6-7-82 and that of the learned Additional Commissioner dated 10-8-84 are not sustainable in law. 13. Consequently this revision is allowed and the order passed by the learned Additional Collector dated 6.7.82 and that of the learned Addl. Commissioner dated 10.8.84 are set aside. It is also held that no proceedings in regard to the inquiry into allotments made in favour of the revisionists can be taken under section 198 of U.P. Act 1 of 1951, as the period for issuing show cause notices has expired in view of the provision contained in clause (a) of Section 198 (6) as amended by the U.P. Land Laws (Amendment) Act No. 24 of 1986. 14. Before parting with this case, I would like to observe that Sri Sukhdeo Prasad Tripathi the learned Additional Collector (E), Lucknow, instead of following the procedure for making inquiry into allotments made in favour of the revisionists, issued a direction to the Assistant Collector-in-charge of the Sub-Division for proceeding against the revisionists after issuing fresh show cause notices to them. This act of the learned Additional Collector was against the provisions contained under Section 198 as it stood amended by the U.P. Land Laws (Amendment) Act XXXV of 1970, with the result that the instant proceedings became time-barred. It was sheer negligence of law on his part that he did not act in accordance with the provisions of law relating to the inquiry into the allotments. But for the fault of the learned Additional Collector, the Revisionists cannot be dragged into the inquiry proceedings regarding allotments made in their favour. Consequently, the leases granted in favour of the revisionists shall stand as valid in law in view of the existing provisions of Section 198 of U.P. Act I of 1951. ORDER An application has been moved by the applicants alleging that this court had passed an order directing the A.D.M. (E), Lucknow, to send the mutation files pending in his court in respect of the lease deeds in favour of the revisionists to the competent authorities for mutation proceedings, and that after a lapse of three years the applicants' names have not been recorded in revenue records of the villages, and, hence, a direction should be issued to the A.D.M. (E), Lucknow, for mutating the names of the applicants. 2. 2. I find that Revision No. 52 (z) of 1983-84. Dinesh singh and others v. State of U.P. etc., in respect of proceedings under Section 198 of U.P. Act I of 1951 pertaining to the leases granted in favour of the revisionists has been decided by this court 9.5.89 and proceedings under Section 198 have been quashed as being not maintainable, and the leases granted in favour of the revisionists have been maintained. Consequently, the applicants are directed to move the competent authorities regarding mutation. The application is disposed of accordingly.