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1993 DIGILAW 378 (ALL)

Bhoo Devi v. Board of Revenue

1993-05-21

S.R.SINGH

body1993
JUDGMENT : S.R. SINGH, J. 1. The two petitions in hand are directed against two sets of identical notices-one issued u/s 198(4) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (In short the Act) and the other issued under Rule 115-P of Uttar Pradesh Zamindari Abolition and Land Reforms Rules (In short the Rules) and a common order dated 18.2.1993 passed by the Board of Revenue, Uttar Pradesh at Allahabad whereby the Board of Revenue rejected as not maintainable the two connected revisions arising out of the notices aforesaid. The notices issued to the Petitioners in original filed by Smt. Bhoodevi and others were phrased in the following words. Adhivakta Prartli Ko Suna Gaya Tatha Tahsildar Ki Janch Akhya Ka Avlokan Kiya. Report Tahsildar Se Vidit Hota Ki Pratham Drasti Me s Karyawahi Apekshit He. Atah Notice Dhara 198 (4) Uttar Pradesh Ja. Vi. Evem Bhu. Bya, Adhiniyam Jarl Hokar Dinank 16.11.89 Ko Pesh Ho. Similarly, the notices issued u/s 198(4) of the UPZA and LR Act to the Petitioners in both the petitions are couched in the following words. Adhivakta Prarthi Ko Suna Gaya Tatha Tahsildar Ki Janch Akhya Ka Avlokan Kiya, Report Tahsildar Se Vidit Hota He Ki Pratham Drasti Me Kanyawahi Apekshit He Atah notice Dhara 198 (4) TJ. P. Ja. Vi. Evam Bhu. Bya. Adhiniyam Jari Hokar Dinank 16.11.1989 Ko Pesh Ho. 2. On receipt of the notices aforesaid, the Petitioners instead of filing objections, went up in revision before the Additional Commissioner u/s 333A of the Act 1 of 1951. However, the revisions were dismissed as not maintainable as having been preferred against the interlocutory orders. Revisions were then preferred to the Board of Revenue u/s 333 of the Act, which also ended in dismissal by a common order dated 18.2.1993 as not maintainable though by assigning different reasons. The Petitioners have now come to this Court under Article 226 of the Constitution of India alleging impropriety in the notice as also the orders. 3. Revisions were then preferred to the Board of Revenue u/s 333 of the Act, which also ended in dismissal by a common order dated 18.2.1993 as not maintainable though by assigning different reasons. The Petitioners have now come to this Court under Article 226 of the Constitution of India alleging impropriety in the notice as also the orders. 3. I have heard Sri B. B. Paul, learned Counsel appearing for the Petitioners and also the Standing Counsel appearing for the Respondents Sri B.B. Paul canvassed to submissions before me (1) the order under Rule 115P(1) of the Rules or the one u/s 198(4) of the Act is amenable to revisional jurisdiction of the Board of Revenue u/s 333 and (2) while issuing a notice under Rule 115-P taking suo moto cognizance on the basis of any report of the Tahsildar, the Collector must indicate the reasons for initiating the proceedings for cancellation of allotment. 4. In other words, the following questions arise for considerations; firstly, whether a decision to enquire into the legality or otherwise of an allotment taken by the Collector under Rule 115-P (1) of the Rules or u/s 198(4) of the Act, as the case may be, is reviseable u/s 333 of the Act secondly, whether the Collector is required under the law to give reasons in support of his decision to hold enquiry into the legality or otherwise of an allotment and thirdly, whether the show cause notice for its sustenance must indicate the ground or grounds on which the allotment is sought to be cancelled suo-moto by the Collector u/s 198(4) of the Act or u/s 122C (b) read with Rule 115P (1) of the Rules? 5. With a view to appreciating the questions involved in these two petitions, it would be worthwhile to refer to the related provisions of law, which are contained in Sections 122C, 198 and 333 of the Act and Rules 115L, 115-M, 115-N, 115-O and 115-P of the Rules. Section 122C(1) provides that the Assistant Collector In-charge of the Sub-Division of his own or on the resolution of the Land Management Committee, may ear-mark the classes of land specified in the Sub-section for the provision of Abadi sites for the members of Scheduled Castes and Scheduled Tribes and Agricultural labourers and village Artisans. Section 122C(1) provides that the Assistant Collector In-charge of the Sub-Division of his own or on the resolution of the Land Management Committee, may ear-mark the classes of land specified in the Sub-section for the provision of Abadi sites for the members of Scheduled Castes and Scheduled Tribes and Agricultural labourers and village Artisans. Sub-section (2) provides that the Land Management Committee may, with the previous approval of the Assistant Collector In-charge of the Sub-Division allotted for purposes of building of houses to persons referred to in Sub-section (3) any land specified in Sub-section (2). Sub-section (3) of Section 122-C lays down the order of preference to he observed in making allotment. Sub-sections (4), (6) and (7) of Section 122-C being relevant in context of question No. 1 may be quoted below: (4) If the Assistant Collector in-charge of Sub-Division is satisfied that the Land Management Committee has failed to discharge its duties or to perform its functions under Sub-section (2) or it is otherwise necessary or expedient so to do, he may himself allot such land in accordance with the provisions of Sub-section (3). xxx xxx xxx (6) The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of the manner prescribed into such allotment, and if he is satisfied that the allotment is irregular he may cancel the allotment, and thereupon the right, title and interest-of the allottee and of every other person claiming through him in the land allotted shall cease. (7) Every order passed by the Assistant Collector under Sub-section (4) shall, subject to the provisions of Sub-section (6) shall be final, and the provisions of Section 333 and Section 333-A shall not apply in relation thereto. 6. Similarly, Section 198 of the Act lays down the order of preference to be observed in admitting the persons to land under Sections 195 and 197. It may be pertinent to observe here that Section 198 empowers the Land Management Committee, with the previous approval of the Assistant Collector, In-charge of the sub-division, to admit, any person as Bhumidhar with non transferable rights to any land other than the land being in any classes mentioned u/s 132. It may be pertinent to observe here that Section 198 empowers the Land Management Committee, with the previous approval of the Assistant Collector, In-charge of the sub-division, to admit, any person as Bhumidhar with non transferable rights to any land other than the land being in any classes mentioned u/s 132. Section 197 of the Act on the other hand, empowers the Land Management Committee to admit any person as "Asami" with previous approval of the Assistant Collector, In-charge, of the Sub-division, to any land falling in any of the classes mentioned in Section 132 of the Act. 7. Section 333 of the Act confers power upon Board of Revenue to "call for a record of any, suit or proceeding decided by any subordinate court in which no appeal lies or when an appeal lies, but has not been preferred and if such subordinate court appears-(a) to have exercised a jurisdiction not vested in it by 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." Section 333-A inserted by Uttar Pradesh Land Laws Amendment Act, 1975 empowers the Commissioner or the Additional Commissioner to call for and examine the record of .any suit or proceeding referred to in Section 333 decided by any court subordinate to him for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding, and if the is of opinion that such, order should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for the orders of the Board, and the Board shall thereupon pass such orders as if thinks fit. If is thus evident that the powers of the Board u/s 333 are exerciseable on jurisdictional error, whereas the power conferred upon the Board to be exercised on reference made by the Commissioner or Additional Commissioner u/s 333 is of wide amplitude in that the Board u/s 333-A may interfere in the matter on the ground of any illegality or impropriety of the order passed by the Subordinate Revenue courts but one thing is common to both the sections and it is that the power can be exercised under the two sections only In relation to any suit or proceeding decided "by any subordinate court in which no appeal lies or where an appeal lies but has not been preferred. 8. The question that requires to be considered, is whether a decision taken suo-moto or on the application of an aggrieved party to start proceeding for cancellation of allotment either under section, 198(4) or u/s 122C(6) read with Rule 115-P is tantamount to any suit or proceeding decided wifhin the meaning of Section 333 of the Act so as to make it amenable to revisional jurisdiction under Sections 333 or 333-A of the Act. In my opinion mere decision to commence the proceedings for cancellation and issuance of show cause notices pursuant to said decision, is not tent amount "to any suit or proceeding decided." It is in the nature of an administrative decision not amounting to a decision affecting any of the rights of the allottees and cannot be termed as judicial decision, which alone in my opinion, is reviseable u/s 333 and 333-A of the Act. The decision to commence enquiry u/s 122-C (6) of the Act read with Rule 115-P (1) of the Rules or u/s 198(4) of the Act, with a view to ultimately deciding the question as to the legality or otherwise of any allotment is not reviseable u/s 333 or 333-A of the Act. The decision to commence enquiry u/s 122-C (6) of the Act read with Rule 115-P (1) of the Rules or u/s 198(4) of the Act, with a view to ultimately deciding the question as to the legality or otherwise of any allotment is not reviseable u/s 333 or 333-A of the Act. In other words, the question whether the material i.e. the report of the Tahsildar (in case the proceeding for cancellation is initiated suo-molo) or the application moved by an aggrieved party discloses any justiciable cause for issuing notice to the concerned allottee with a view to affording him an opportunity to have his "say and participate in the proceeding initiated by the Collector for adjudication on the question as to whether the allotment suffers from any infirmity or irregularity warranting its cancellation, no doubt involves a decision but such a decision is not tantamount to a decision of a suit or proceeding within the meaning of Section 333 of the Act. The decision is taken by the Collector on subjective satisfaction that the report of the Tahsildar or the application filed by an aggrieved person reveals a triable and justiciable issue. It is the final decision-either cancelling the allotment or upholding the same-taken under sub-section (6) of Section 122-C or under Rule 115P(4) of the Rules or the one u/s 198(4) of the Act which is amenable to revisional jurisdiction of the Board in accordance with the provisions contained in Sections 333 or 333-A of the Act. 9. It may be pertinent here to explain the import of Sub-section (7) of Section 122C and Sub-rule (5) of Rule 115-P of the Rules. 9. It may be pertinent here to explain the import of Sub-section (7) of Section 122C and Sub-rule (5) of Rule 115-P of the Rules. The Board of Revenue-in support of its conclusion that the revision in the instant case was not Jiwi-Rtftinable, has relied upon Sub-section (7) of Section 122-C of the Act which provides that every order passed by the Assistant Collector under Sub-section (4), shall, subject to the provisions of Sub-section (6), be final and the provisions of Section 333 and 333-A shall not apply in relation thereto, It is evident that what has been excluded from the purview of Sections 333 and 333-A h an order under Sub-section (4) which empowers the Assistant Collector In-charge of the sub-division to make allotment himself in the event of his being satisfied that the Land Management Committee has failed to discharge its duties or to perform its functions under Sub-section (2) or it is otherwise necessary or expedient so to do. The function under Sub-section (4) is of administrative nature. The Assistant Collector exercising the powers under Sub-section (4) does not act as a court while the Collector while discharging the function u/s 122-C (6), 198 (4) of the Act or- under Rule 115-P of the Rules acts as a court and any final order passed by the Collector under the aforesaid provisions is amenable to revisional jurisdiction of the Board. Sub-section (4) of Section 122-C has nothing to do with the cancellation of allotment on the same being found be illegal or irregular, nor has it anything to do with the decision to start with the proceeding for cancellation of allotment. An order of allotment under Sub-section (4) is made by the Assistant Collector whereas the cancellation is done by the Collector. The fact that the allotment under Sub-section (4) is final "subject to the provisions of Sub-section (6)" as comprehended by Sub-section (7) of Section 122-C unfolds the intendment of the legislature that allotment under Sub-section (4) made by the Assistant Collector is final subject to the power of the Collector to cancel the same under Sub-section (6) of Section 122-C of the Act or under Rule 115-P (4) of the Rules. The finality attached to an order under Rule 115-P (4) vide Sub-rule (5) cannot restrict the revisional powers of the Board under the Act. The finality attached to an order under Rule 115-P (4) vide Sub-rule (5) cannot restrict the revisional powers of the Board under the Act. What is given under the Act cannot be taken away by the Rules. In Smt. K. Devi vs. Board of Revenue, Uttar Pradesh 1972 RD 228, it has been held by a Division Bench of this Court as under: It is true that Rule 115N(3) provides that the decision of the Assistant Collector shall be final. It is well settled that such finality does not restrict the revisional jurisdiction conferred upon higher courts. In the case of Shah Chaturbhuj vs. Mauji Ram a Full Bench of this Court interpreted the phrase the decision of revenue court shall be final" occurring in Section 5 of the Uttar Pradesh Agriculturists Relief Act, 1934, as not depriving the higher courts of revisional powers u/s 115 of the Code of Civil Procedure. The Full Bench held that the finality mentioned in the provision only meant chat there was no right of appeal vesting in the litigants against such an order. In our opinion this Full Bench decision equally applies to Section 333. The finality mentioned by Sub-rule (3) of Rule 115-N cannot whittle down the amplitude of the revisional power conferred upon the Board of Revenue by Section 333 of the ZA and LR Act. Accordingly, while it is held that, in the instant case, the revision was not maintainable having been preferred against the decision to commence the enquiry to determine the question pertaining to legality or otherwise of the allotment, any decision that may be taken finally either upholding the allotment or cancelling the same shall be amenable to the revisional powers of the Board under Sections 333 and 333-A of the Act. The reasoning assigned by the Board is although not correct, its conclusions in the instant case being correct, the submissions of the learned Counsel appearing for the Petitioner cannot be lent any countenance in view of the above discussions. 10. The reasoning assigned by the Board is although not correct, its conclusions in the instant case being correct, the submissions of the learned Counsel appearing for the Petitioner cannot be lent any countenance in view of the above discussions. 10. Now coming to the question as to whether the Collector is required under the law to give reasons in support of his initial decision to hold enquiry into the legality or otherwise of an allotment under Sub-section (6) of Section 122-C read with Rule 115P(1) of the Rules or the one u/s 198(4) of the Act, I am of the opinion that no duty is cast upon the Collector to record reasons in support of such decision to commence proceedings followed by a show cause notice to the allottee. The decision to commence the proceeding for cancellation may be based upon the subjective satisfaction of the Collector either on perusal of any report in this regard submitted by the Tahsildar or upon consideration of the complaint/application made in this regard and being not a decision adjudicating upon right, title or interest of the parties, is not required to be reasoned one. The second submission made by Sri B. B. Paul, therefore, carries no substance. 11. Now coming to the third question as to whether the show cause notice must indicate, for its substance, the ground or grounds on which the allotment is sought to be cancelled suo-moto by the Collector u/s 198(4) of the Act or u/s 122-C (6) of the Act read with Rule 115-P (4) of the Rules, I am of the firm view that failure to disclose ground or grounds in the show cause notice, is bound to tell upon the allottee's right to an effective opportunity being given in .the matter of cancellation of an allotment and therefore,, in my opinion, a show cause notice issued by the Collector either under Sub-section (4) of Section 198 or under Sub-section (6) of Section 122-C read with Rule 115-P of the Rules, must contain ground or grounds on which the cancellation of allotment is proposed by the Collector. Notice containing no ground or grounds for cancellation could not be a valid notice in that it would not give an effecting opportunity to the allottee to give an effective reply to the show cause notice and defend his case on merits. 12. Notice containing no ground or grounds for cancellation could not be a valid notice in that it would not give an effecting opportunity to the allottee to give an effective reply to the show cause notice and defend his case on merits. 12. In D.N. Roy & S.K. Bannerjee and Others vs. State of Bihar and Others, (1970) 3 SCC 119 , it has been held by the Apex Court of the Land as under: If the Central Government wanted to exercise its suo-moto power it should have intimated that fact as well as the grounds on which it proposed to exercise that power to the Appellant and given him an opportunity to show cause against the exercise of suo-moto power as well as against the grounds on which it wanted to exercise its power. Quite clearly the Central Government had not given him that opportunity. 13. A conspectus of the provisions contained in Sections 112C and 198 of the Act and the related rules would show that the illegality or irregularity warranting cancellation of allotment may arise by reason of the contravention/breach of any provision of the Act laying down either the eligibility criterion or the order of preference or class and category of land to be allotted or it may arise by reason of violation of procedural safe-guards contained in the Rules designed and intended to prevent arbitrariness in making allotment on the one hand and to ensure allotment to proper person in accordance with law on the other. The cancellation sought to be made either u/s 198(4) of the Act or under Rule 115-P read with Section 122-C may pertain to the aforesaid ground or grounds of illegality/irregularity in making allotment. 14. The show cause notice initiating the suo-moto action for cancellation of allotment must indicate the substance of information received by the Collector either through the report submitted by the Tahsildar or otherwise and must to brief indicate the ground or grounds of alleged illegality or irregularity on which the final order of cancellation of allotment may be made. 14. The show cause notice initiating the suo-moto action for cancellation of allotment must indicate the substance of information received by the Collector either through the report submitted by the Tahsildar or otherwise and must to brief indicate the ground or grounds of alleged illegality or irregularity on which the final order of cancellation of allotment may be made. Such a course, in my opinion, would guard against unnecessary harassment to the allottee on one hand and prevent abuse of the process of law on the other and the same time it would uphold the majesty of the rule of law which is all pervasive and permeates every state-action whether administrative, quasi-judicial or judicial having civil consequences. 15. In the instant case, the impugned notices, in my opinion, do not contain substance of the report submitted by the Tahsildar on the basis of which the suo-moto action for cancellation of allotment has been initiated by the Collector, nor do they indicate ground or grounds on which the allotments are proposed to be cancelled. But in the facts and circumstances of the case. I am not inclined to quash the notices, for in my opinion, it would meet the ends of justice if the Collector is directed to give supplementary notices to the Petitioners indicating therein the substance of the report submitted by the collector on the basis of which the show cause notices were issued as also the ground or grounds on which the collector proposed, to canceled the allotment. It would suffice to observe that the Collector shall not proceed with the enquiry before supplying to the allottees the substance of the report received by him from the Tahsildar and the ground of grounds on which the allotments are proposed to be cancelled. 16. Accordingly, the writ petitions are disposed of with the above observations and directions.