Research › Search › Judgment

Uttarakhand High Court · body

2005 DIGILAW 447 (UTT)

Pooran Chandra v. Collector, Haridwar

2005-10-20

RAJESH TANDON

body2005
JUDGEMENT Heard Sri M.S. Tyagi, learned counsel for the petitioner, Sri Dinesh Gahtori, learned counsel for the respondent no. 3 and Learned Standing Counsel. 2. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 12-10-2001 (Annexure 6 to the writ petition) passed by the respondent no.1. 3. Briefly stated, the proceeding under Section 122-B of the U.P. Z.A. and L.R. Act was initiated against the petitioner by the Assistant Collector/ Tehsildar Haridwar, District Haridwar by issuing a form as prescribed under Rule 49-A stating therein that the petitioner is an unauthorized occupant of Gata No. 317/2 area 0.123. 4. Objections have been fiied by the petitioner denying the fact that he is in possession of 317/2 area 0.123 hectare. 5. However, the petitioner has submitted that he is in possession of Khasra No. 316 and 284 min jumla. During the proceeding of the case, a report was submitted and the report of the Niab Tehsildar shows that no un-authorized possession was found on Khasra No. 317/2. The report of the Niab Tehsildar shows as under :- 6. However, on the basis of the aforesaid report the Assistant Collector. 1" Class vide his order dated 15th June, 2001 has quashed the notice Form No. 49-Ka and has found that the petitioner is In possession of Khasra No. 316 as well as Khasra No. 284, which has been given to him by the Irrigation Department. It was found that the petitioner is not in possession of Plot No. 317/2. 7. Aggrieved by the said order, a revision was preferred before the Collector. The Collector, however, vide his order dated 12th October, 2001 has allowed the revision and directed the eviction of the petitioner. Although the Collector has recorded a finding to the following effect :- 8. In view of the aforesaid findings, since the Collector himself has observed that no map has been prepared while the inspection was made and no measurement Talika has been prepared and against the report of the Niab Tehsildar the objections flied by the Gaon Sabha have not been disposed of and: as such there was no occasion for allowing the revision straight away but the, revisional court should have remanded the matter to the Tehsildar for considering the aforesaid aspect of the matter. 9. 9. However, learned counsel for the petitioner has pointed out that the Talika was there and measurement was also there. The scope of revision is defined in Clause (4-A) of Section 122-6 of the U:P.Z.A. & L.R. Act. 10." Section 122-6 of the U.P.Z.A. & L.R. Act provides as under S. 122-B. Powers of the Land Management Committee and the Collector.- [(1) Where any property vested under the provisions of this Act, in a Gaon Sabhaor a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or Local Authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed. (2) Where from the information received under sub-section:" (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated or any person is in occupation of any land, referred to in that sub-section, in contravention of the provisions of this Act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or, as the case may be, why he should not be evicted from such land. ';: (3) If the person to whom a notice has been issued under sub-section (2) fails to show cause within the time specified in the notice or within such extended time not exceeding [thirty days] from .the date of service. of such notice on such person, as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person may be evicted from the land and may, for that purpose, use, or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue. (4) If the Assistant Collector is of opinion that the person showing cause is' not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (2), he shall discharge the notice. (4) If the Assistant Collector is of opinion that the person showing cause is' not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (2), he shall discharge the notice. (4-A) Any person aggrieved by the order of the Assistant Collector under sub-section (3) or sub-section (4) may, within thirty days from the date of such order, prefer a revision before the Collector on the grounds mentioned in clauses (a) to (c) to section 333. (4-8) The procedure to be followed in any action taken under this section shall be such as may be prescribed. (4-C) Notwithstanding anything contained in section 333 or section, 333-A, but subject to the provision of this section- (i) every order of the Assistant Collector under this section shall, subject to the provisions of sub-sections (4-A) and (4-0), be final; . (Ii) every order of the Collector under this section shall, subject to the provisions of sub-section (4-0), be final. (4-0) Any person aggrieved by the order of the Assistant Collector in respect of any property under this section, may file a suit in a court of competent jurisdiction to establish the right claimed by him in such property. (4-E) No such suit as is referred to in sub-section (4-0) shall lie against an order of the Assistant Collector, if a revision is preferred to the Collector under sub-section (4-A). Explanation. - For the purposes of this section, the expression 'Collector' means the officer appointed as Collector under the provisions of the U.P. Land Revenue Act, 1901 and includes an Additional Collector.] [(4-F) Notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to a Scheduled caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under section 117 (not being land mentioned in Section 132) having occupied it from before June 30, 1985, and the land so occupied together with land, if any, held by him from before the said date as bhumidhar, sirdar or asami, does not exceed 1.26 hectares (3.125 acres), then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and it shall be deemed that he has been admitted as bhumidhar with non-transferable rights of that land under Section 195. Explanation. - The expression 'agricultural labourer' shall have the meaning assigned to it in Section 198. Explanation. - The expression 'agricultural labourer' shall have the meaning assigned to it in Section 198. [(5) Rules 115-C to 115-H of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, shall be and be always deemed to have been made under the U.P. Zamindari Abolition and Land Reforms Act, 1950, as amended by the Uttar Pradesh Land Laws (Second Amendment) Act, 1961, as if this section has been in force on all material dates and shall accordingly continue in force until altered or repealed or amended in accordance with the provision of this Act." 11. As will appear form the aforesaid provision that the revision can be filed only on the grounds mentioned under Clause (a) to (c) to Section 333 of the U.P.Z.A. & L.R. Act. 12. It Is well settled that the jurisdiction under Section 333 of the U.P.Z.A. & L.R. Act is para-materia with Section 115 of the Code of Civil Procedure and the court has limited jurisdiction to exercise the powers. 13. In Major 5.5. Khanna Vs. Brig. F.J. Dillon AIR 1964 5C 497, the Apex Court has observed as under- ''The power given by S. 115 of the Code is clearly limited to the keeping of the Subordinate Courts within the bounds of their Jurisdiction. It does not comprehends the power exercisable under the writ of Prohibition or Mandamus. It is also not a full power of Certiorari inasmuch as it arises only in a case of jurisdiction and not in a case of error. It has been ruled by the Judicial Committee and also by this Court that the section is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction where none exists and lastly acting with illegality or material irregularity. Where there is no question of jurisdiction in this manner the decision can not be correct for it has also been ruled that a Court has jurisdiction to decide wrongly as well as rightly. 14. Relying upon the judgment of the Apex Court in M. V. Elisabeth and others vs. Harwan Investment JT 1992 (2) 5C 65 in Ram Murti Vs. Deputy Director of Consolidation 1995 RD 249 High Court of Allahabad has held as under: "It may be noticed that the Deputy Director of Consolidation was exercising revisional power under Section 48 as distinguished from an appellate power. Deputy Director of Consolidation 1995 RD 249 High Court of Allahabad has held as under: "It may be noticed that the Deputy Director of Consolidation was exercising revisional power under Section 48 as distinguished from an appellate power. Section 48 of the U. P. Consolidation of Holdings Act, 1953 is no doubt couched in a language of wide amplitude but that does not mean that the Deputy Director of Consolidation may act as an appellate Court. In K.A. Anthappai v. C. Ahammed JT 1992 (4) SC 65 the Supreme Court was considering the scope of revisional power of the High Court under Section 20 of Kerala Building (Leases and Rent Control) Act, 1965 whereunder the High Court can "call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and may pass such order in reference thereto as it thinks fitn a provision similar to the one contained in Section 48 of the U.P. Consolidation of Holdings Act, 1953. It was held as under: "It is no doubt true that the scope of the revisional jurisdiction Conferred under Section 20 is wider than that conferred under Section 115, C.P.C. but at the same time a revision under Section 20 cannot be equated with an appeal. Moreover, the revisional power conferred under Section 20 also embraces an order passed by the appellate authority. While considering the provisions conferring revisional power couched in a language similar to that contained in Section 20 of the Act this court has laid down that the power conferred on the High Court is essentially a power of superintendence and despite wide' language employed, the High Court should not interfere with the finding of fact of the subordinate court merely because it does not agree with the said findings see Dattonpani Gopalvarao Deva Ratte v. Vithabrao Maruthirao Jagangawal 1975 Suppl. SCR 67, Mis Raja Laxmi Dying Works and others v. Rangaswami Chhetiar AIR 1980 SC 1253. The Supreme Court further held: "The revisional court must be reluctant to embark upon an independent reassessment of the evidence and supplant a conclusion of its own, so long as evidence on the record admitted of an supported the one reached by the Court below. Rajvir v. S. Chokesi & Co. The Supreme Court further held: "The revisional court must be reluctant to embark upon an independent reassessment of the evidence and supplant a conclusion of its own, so long as evidence on the record admitted of an supported the one reached by the Court below. Rajvir v. S. Chokesi & Co. 1989 (1) SCC 19 at Page 37. 15. In the case of Ram Avtar and others Vs. Ram Dhan; and others (1997) 2 SCC 263, the Apex Court has held as under :- "8. We are surprised as to how the Deputy Director while exercising the revisional power entered into all questions of fact and came to the conclusion on pure conjecture that the appellants before this Court shall be deemed to be in possession of the lands since 1932. This Court has repeatedly pointed out that howsoever wide the power under statutory revision may be ion contrast to Section 115 of the Code of Civil Procedure, still while exercising that power the authority concerned cannot act as court of appeal so as to reappreciate the evidence on record for recording findings on questions of fact. 16. Learned counsel for the petitioner has also referred 2001 RD Page 562 Kash; Hath and another Vs. Board of Revenue U.P. at Allahabad and others, where the Allahabad High Court after referring the various judgments of the Apex Court has held that the jurisdiction of the revisional court is very limited and cannot be conferred for reappraisal of the evidence. The observations are quoted below :- "11. It is evident from the view taken by the Apex Court that the Courts always appreciate exercise of power in favour of hearing and not to shut out the hearing. The court below by passing the impugned order shut out the hearing and it illegally upheld the validity of the ex-parte decree, which was passed without service of notices upon the petitioners. Similarly, learned counsel for the petitioners also referred to and relied upon the decision in State of U. P. and others v. III Additional District Judge, Azamgarh and another 1989 (15) ALR 47 (Sum.) = AIR 1989 All. Page 14., wherein it was ruled as ,under: . "8. Similarly, learned counsel for the petitioners also referred to and relied upon the decision in State of U. P. and others v. III Additional District Judge, Azamgarh and another 1989 (15) ALR 47 (Sum.) = AIR 1989 All. Page 14., wherein it was ruled as ,under: . "8. In the instant case I am of the view that reappraisal of the evidence made by the learned Additional District Judge, either to ascertain whether sufficient cause was made out for an application under Order 9, Rule 13 of the Code or not, or whether sufficient case was made out for condonation of delay under Section 5 of the Limitation Act or not, was beyond his jurisdiction in exercise of powers under Section 115 of the Code. He appears to have presumed as if he was exercising jurisdiction of the appellate court. It would not be out of a place of mention that in Manik Chandra Nandy v. Debdas Nandy AIR 1986 SC 446, their Lordships of Supreme Court explaining the jurisdiction of revisional Court under Section 115 of the Code in particular reference to an application under Order 9, Rule 13 of the Code, observed that learned Additional District Judge must have been cautious about the scope of the revisional jurisdiction and he need not have mixed it with the appellate jurisdiction. In my considered opinion it is needless to repeat that exercise of appellate jurisdiction is free to decide all, questions of law and fact. In exercise of revisional jurisdiction the Court is not entitled to reappraisal of the evidence on the record and to substitute its own findings in place of the findings of the trial court. The plea of limitation is mixed question of law and fact. The findings of the trial court that sufficient cause was made out for allowing application under Order 9, Rule 13 and also that sufficient cause was made out for condonation of delay under Section 5 of the Act, could not be said to be not borne but by the evidence on the record nor the same could be said to be manifestly contrary to the evidence on the record or palpably wrong and at the same time it could not be said that in case those findings are permitted to continue they would in any way result in miscarriage of justice. 9. Matter can be viewed from other angle as well. 9. Matter can be viewed from other angle as well. The Court should see in a given case that the parties may be given an opportunity of being heard on merits and not that the opportunity of hearing may be shut out. In the instant case in case ex parte decree is maintained, the petitioners would be prevented from appearing before the Court or from proving their case on merits. The findings recorded by the trial court about the sufficient cause having been made out by the defendants under Order 9 Rule 13 of the code for restoring the suit and sufficient ground for condonation of delay under Section 5 of the Act was made out, were essentially findings of fact and the same cannot be reexamined by the revisional court under Section 115 of the Code. The impugned order appears to be manifestly erroneous in respect of exercise of jurisdiction under Section 115 of the Code. The revisional Court assumed as it was exercising appellate jurisdiction conferred under Order 43, Rule 1 or under Section 96 of the Code. In this view of the matter as the question of jurisdiction was not involved and the lower appellate court assumed the jurisdiction of 1" appellate court, whereas in fact it has got only the limited jurisdiction of a revisional court, a case for interference and issuance of writ of certiorari has been made out. The only inescapable conclusion is that the findings of fact recorded by the trial court could not be set aside in exercise of revisional jurisdiction. 17. In view of the aforesaid facts and circumstances, since the revisional court has a limited jurisdiction and if he is satisfied he can remand the matter to the Tehsildar and cannot straight away reassess the evidence on the record. 18. In view of the aforesaid facts and circumstances, the order passed by the revisional court is set aside. 19. A writ of mandamus is issued directing the revisional court to consider the matter In view of facts stated above. 20. In Ram Murat Singh Vs. Dy. Director of Consolidation, Mirzappur 1995 RD Page 249, High Court of Allahabad has held as under :- ''A provision similar to the one contained in Section 48 of the V.P. Consolidation of Holdings Act, 1953. 20. In Ram Murat Singh Vs. Dy. Director of Consolidation, Mirzappur 1995 RD Page 249, High Court of Allahabad has held as under :- ''A provision similar to the one contained in Section 48 of the V.P. Consolidation of Holdings Act, 1953. It was held as under : "It is no bout true that the scope of the revisional jurisdiction conferred under Section 20 is wider than that conferred under Section 115, C.P.C.. but at the same time a revision under Section 20 cannot be equated with an appeal. Moreover, the revisional power conferred under Section 20 also embraces an order passed by the appellate authority. While considering the provisions conferring revisional power couched in a language similar to that contained in Section 20 of Act this court has laid down that the power conferred on the High Court is essentially a power of superintendence and despite Wide -language employed, the High Court should not interfere with the finding of fact of the subordinate court merely because it does not agree with the said findings see Dattonpant Gopalvarao Deva Ratte v. Vithabrao Maruthirao Jagangawal 1975 Suppl. SCR 67, M/s Raja Laxmi Dying Works and others v. Rangaswami Chhetiar AIR 1980 SC 1253. The Supreme Court further held: "The revisional court must be reluctant to embark upon an independent reassessment of the evidence and supplant a conclusion of its own, so long as evidence on the record admitted of and supported the one reached by the Court below: Rajvir v. S. Chokesi & Co. 1989 (1) SCC 19 at page 37." Not judging the impugned finding of fact 'recorded by the Deputy Director of Consolidation of the touchstone of principle of law laid down in the aforestated authorities I find that the Deputy Director- of Consolidation has failed to bear in mind that it was sitting in revision as distinguished from appeal over the appellate order passed by the Settlement Officer Consolidation in that while reversing the finding recorded by the appellate authority on the relevant question the Deputy Director of Consolidation has failed to address himself to the evidence-oral, documentary and circumstantial considered and examined by the appellate court vis-a-vis the question of return of pattas amounting to surrender. The finding recorded by the Deputy Director of Consolidation on the controversial issues whether the pattas were returned and not acted upon, may be correct being based on evidence on record but the process by which the finding has been arrived at is certainly vitiated due to the reason of the failure on the part of the Deputy Director of Consolidation to examine and consider the material on which the appellate court had come to the contrary conclusion. 21. A perusal of the provision of Section 122-6 of the U.P. Z.A. & L.R. Act provides that where a property is vested under the provision of this Act, in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of -this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the land Management Committee or Local Authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed. Therefore, any other person is not' a necessary party. The land management committee or local authority or Gaon Sabha alone has concern with the land belonging to the Gaon Sabha. - - 22. In view of the aforesaid facts and circumstances, I do not find any cause for impleading any other person as a necessary party. The impleadment application is rejected. 23. A writ of certiorari is issued quashing the order dated 12-10-2001 passed by the respondent no. 1. 24. Writ petition is allowed. No order as to costs.