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1990 DIGILAW 877 (ALL)

Durga Prasad v. State

1990-09-19

BRIJESH KUMAR

body1990
JUDGMENT Brijesh Kumar, Member. - This revision arises out of an order dated 23.5.1984 passed by the additional Commissioner, Jhansi Division Jhansi, in revision No. 146/39 of 1982 preferred against the order dated 23.10.1982 passed by the Additional Collector Lalitpur in proceedings No. 2487 of 1979-80 under Section 198(4) of the U.P. Zamindari Abolition and land Reform Act. 2. The brief facts of the case are that suo moto proceedings under Section 198(4) of the Act were initiated by the Additional Collector, Lalitpur on the report of the tehsildar who had reported that the revisionist Durga Prasad s/on Panna Lal was not entitled to allotment of plot No. 3 area 7.25 acres because his father Panna Lal had already held 56 acres land. In response to the notice, the revisionist/allottee denied the allegation contending that the allotment was made in the year 1965 by a majority resolution of the L.M.C. He was major at the time of allotment and his father was alive and that he had no concern with the land of his father. After the death of his father, he and his brother inherited the landed property of his father. After examining the evidence brought on the record, the learned trial court cancelled the allotment on the ground that the revisionist did not come in the category of landless labourer. The FINDINGS of the learned trial court were upheld in revision by the learned Additional Commissioner. 3. I have heard the learned Counsel for the revisionist and the learned D.G.C.(R). Sri D.N. Gupta, learned counsel for the revisionist has pointed out that the revisionist was major when the allotment was made on 25.12.1965. He also lived separately from his father and was a land less labourer. He further pointed out that he inherited the landed property of his father on 26.10.1972. His contention is that the allotment could not be cancelled because the notice issued by the trial court was defective in the sense that is was not signed by the Collector but signed by the court-clerk and also there is no mention of plot number in the notice. Reliance has been placed on 1986 R.D. 47. If the notice is defective, the learned Counsel contended, the entire proceedings are vitiated. Reliance has been placed on 1986 R.D. 47. If the notice is defective, the learned Counsel contended, the entire proceedings are vitiated. Relying on 1987 R.R.349, he has contended that the case cannot be remanded on this ground because the courts below cannot be allowed to fill up the lacuna. He has further contended that the courts below have wrongly interpreted the law in holding that the revisionist was not landless labourer if his father hold land at the time of allotment. In support of his contention, he has relied on 1987 R.D. 72, 1984 R.D 274, 1990 R.D 70, 1986 R.D. 67, 1986 R.D. 453, 1988 A.W.C 67(Rev.) and 1988 A.W.C. 45. 4. The learned DGC(R) has argued that if the notice is defective, the case may be remanded to the trial court. Another contention is that all the rulings referred to above were given subsequent to the verdicts given by the courts below and so they were not applicable. 5. I have carefully considered the arguments advanced before me and have also perused the record. The first question for consideration is whether the notice issued by the trial court is according to law. Sub-section (5) of Section 198 of the Act provides that - "No order of cancellation of an allotment or lease shall be made under sub-section (4), unless a notice to show cause is served on the person in whose favour the allotment of lease was made or on his legal representatives; Provided that no such notice shall be necessary in proceedings for the cancellation of any allotment were pending before the collector or any other court or authority on August 18, 1980". In the present case, the allotment was made on 25.12.1965. The tahsildar's report was ordered to be registered on 30.12.1976. The Collector decided the proceedings on 23.10.1982. It, therefore, follows that the proceedings were pending before the Collector on August 18, 1980. No notice was, therefore, necessary in this case. THe question of its legality or illegality does not arise. 6. Now, the only question for consideration is whether the revisionist was eligible for the allotment of the land. The revisionist has come forward with the contention that he was major at the time of allotment and lived separately from his father. The learned trial court has not accepted this contention on the ground that no extract of kutumb register etc. Now, the only question for consideration is whether the revisionist was eligible for the allotment of the land. The revisionist has come forward with the contention that he was major at the time of allotment and lived separately from his father. The learned trial court has not accepted this contention on the ground that no extract of kutumb register etc. has been brought on the record to prove this contention. Even if the revisionist was a part of the family of his father, the father's land cannot be considered to be the land of the allottee. This view has been taken by Sri. M.M Gopal, Member in Sarman Lal v. State, reported in 1990 RD 70 and Dr. P. Singh, Member in Shamboo v. State, reported in 1988 AWC 43. I am quit in agreement with my colleagues. Similar view has been taken by the Hon'ble K.P. Singh J. in Parbhu Dayal v. Board of Revenue, reported in 1984 R.D. 274. I am, therefore, satisfied that the orders of cancellation passed by the learned trial court is not according to low. The learned Additional Commissioner in his cryptic order has illegally upheld the findings of the learned trial court. 7. In the result, the revision petition is allowed and the orders of both the courts below are quashed.