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1995 DIGILAW 1031 (ALL)

SHIV AUTAR v. NABI

1995-09-25

D.S.SINHA, N.B.ASTHANA

body1995
D. S. SINHA, J. Heard Sri B. C. Srivastava, holding brief of Sri Shashi Nandan, learned counsel appearing for Sri Shiv Autar, the petitioner, Sri R. K. Saxena, learned Standing Counsel representing the Atirikt Zila Adhikari, Deoria, the respondent No. 3 and Sri S. Banerjee, holding brief of Sri K. B. Garg, learned counsel appearing for the Gaon Sabha village Baliyawa, Tappa Barnai, Pargana Silhat, Tehsil and District Deoria through its Pradhan, the respondent No. 2. No body has appeared for Sri Nabi, the respondent No. 1. 2. The Land Management Committee of the Gaon Sabha village Baliyawa passed a resolution dated 20th June, 1977 allotting an Abadi land to the petitioner which was approved by the Assistant Collector by his order dated 8th July, 1977. Following the allotment and approval the petitioner was put in possession of the land and built a house thereon. 3. On a complaint filed by the respondent No. 1 on 17th October, 1977 proceeding under sub-section (4) of Section 198 of the U. P. Zamindari Abolition and Land Reforms Act, 1950, (hereinafter called the Act), for cancellation of the allotment of the land in favour of the petitioner was initiated. The proceeding culminated into the order dated 20th January, 1978 passed by the Atirikt Zila Adhikari, Deoria (Additional Collector, Deoria), a copy whereof is Annexure (1) to the petition. By this order the allotment of the land in favour of the petitioner has been cancelled. Feeling aggrieved, the petitioner has approached this Court invoking its jurisdiction under Article 226 of the Constitution of India and praying for issuance of a writ, order or direction in the nature of certiorari quashing the order of the respondent No. 3 dated 20th January, 1978. 4. The petitioner contends that the respondent No. 3 had no jurisdiction to pass the impugned order and cancel the allotment of the land in his favour as under sub-section (4) of Section 198 of the Act, it is only the Collector who is empowered to cancel an allotment of land and the expression collector does not include Additional Collector. 5. Countering the contention raised on behalf of the petitioner, learned counsel appearing for the respondents contend that the expression collector includes in Additional Collector also, and that being so the respondent No. 3 had jurisdiction and was fully empowered to pass the impugned order dated 20th January, 1978. 6. 5. Countering the contention raised on behalf of the petitioner, learned counsel appearing for the respondents contend that the expression collector includes in Additional Collector also, and that being so the respondent No. 3 had jurisdiction and was fully empowered to pass the impugned order dated 20th January, 1978. 6. Sub-section (4) of Section 198 of the Act is as follows: " (4 ). The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any. " 7. The expression collector is defined in sub-section (4) of Section 3 of the Act which reads thus: " (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 a Collector under this Act. " 8. A bare reading of sub-section (4) of Section 3 of the Act indicates that the expression collector used in sub-section (4) of Section 198 of the Act means an officer appointed as Collector under the provisions of the U. P. Land Revenue Act, 1901, hereinafter referred to as the Land Revenue Act and the said expression also includes an Assistant Collector of the first class empowered by the State Government by a notification in the official Gazette to discharge all or any of the functions of a Collector under this Act. It necessarily follows that power of cancellation of an allotment of land under the Act can be exercised by the Collector appointed under this Land Revenue Act and by an Assistant Collector of the first class specially empowered by the Government by a notification in the Gazette to discharge the function of a Collector relating to cancellation of an allotment of land, and by no other. 9. Indisputably, in the instant case the power and duty of cancellation of an allotment of land under Section 198 (4) 01 the Act has been exercised by the Additional Collector. Surely, the Additional Collector is neither a Collector nor an Assistant Collector for the purpose of the Act. 10. 9. Indisputably, in the instant case the power and duty of cancellation of an allotment of land under Section 198 (4) 01 the Act has been exercised by the Additional Collector. Surely, the Additional Collector is neither a Collector nor an Assistant Collector for the purpose of the Act. 10. The appointment of an Additional Collector is made by the State Government under Section 14-A of the Land Revenue Act and he holds office during the pleasure of the State Government. Sub- section (3) of Section 14-A of the Land Revenue Act provides that an Additional Collector shall exercise such powers and discharge such duties of a Collector in such cases or class of cases as the Collector concerned may direct. The Additional Collector is a delegatee of the Collector and has no independent power or duty except those entrusted to him by the Collector. 11. Nothing has been brought to the notice of the court which may lead to the conclusion that the Additional Collector, Deoria, the respondent No. 3, had been directed to exercise the power and duty of a Collector under sub-section (4) of Section 198 of the Act. Moreover, in the opinion of the court, the power and duty under sub-section (4) of Section 198 of the Act has been vested in and conferred upon the Collector. Neither can be neither abdicate nor delegate the same to any other functionary. Although the expression collector includes an Assistant Collector of the first class but such Assistant Collector can exercise power and perform duty of a Collector under Section 198 (4) of the Act only when he is empowered to do so by the State Government by a notification in the Gazette in that behalf. Thus, only a Collector, but not an Additional Collector, and an Assistant Collector of the first class specially empowered in that regard can exercise power and perform duty under sub-section (4) of Section 198 of the Act. In this case, the impugned order has been passed by an Additional Collector in the purported exercise of power and duty under Section 198 (4) of the Act which is legally not permissible. 12. Inevitable conclusion, therefore, is that the impugned order, dated 20th January, 1978 passed by the respondent No. 3 is totally without jurisdiction and void. 13. In the result, the petition succeeds and is allowed. 12. Inevitable conclusion, therefore, is that the impugned order, dated 20th January, 1978 passed by the respondent No. 3 is totally without jurisdiction and void. 13. In the result, the petition succeeds and is allowed. The impugned order of the respondent No. 3 dated 20th January, 1978 (Annexure T to the petition) is quashed. No order as to costs. Petition allowed. .