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2012 DIGILAW 2457 (ALL)

Kunwar Sen and Others v. Collector and Others

2012-10-16

SANJAY MISRA

body2012
Sanjay Misra, J.— Heard Sri Umesh Shankar, learned counsel for the petitioners. 2. This writ petition is directed against the order dated 23.8.2012 passed by the Collector, Pilibhit in Revision No. 2 of 2011-12 (Kunwar Sen and others Vs. Kamta Prasad and others) (Annexure-1 to the writ petition) as also the order dated 29.03.2012 passed by the Sub-Divisional Officer, Sadar, Pilibhit in Case No. 01 of 2010-11 (Kamta Prasad and others Vs. Kunwar Sen and others) (annexure-2 to the writ petition) and order dated 17.03.2011 passed by the Collector Pilibhit in Revision No. 17 of 2009-10 (Kamta Prasad and others Vs. Kunwar Sen and others) (Annexure-3 to the writ petition). 3. Learned counsel for the petitioners has submitted that the order dated 17.3.2011 passed by the Collector, Pilibhit in Revision No. 17 of 2009-10 as also the order dated 29.03.2012 passed by the Sub-Divisional Officer Sadar, Pilibhit in Case No. 01 of 2010-11 under Section 198 (4) of the U.P.Z. & L.R. Act (hereinafter referred to as 'the Act') are without jurisdiction. According to him the Sub-Divisional Officer is the authority to grant the lease but he is not the competent authority to cancel the lease. As such by the impugned order dated 29.03.2012 the Sub-Divisional Officer in Case No. 01 of 2010-11 has passed the order without jurisdiction. He submits that consequently the order dated 17.03.2011 passed by the Collector in Revision No. 17 of 2009-10 is also without jurisdiction because he has remanded the matter to the Sub-Divisional Officer relating to an application under Section 198 (4) of the Act which he could not have done. 4. Learned counsel for the petitioners has placed reliance on a decision of this Court in the case of Prem Pal Singh and others Vs. Board of Revenue, Allahabad and others reported in [2010 (2) CRC 428] to submit that it was the Collector who is empowered to cancel the patta and order of Sub-Divisional Officer cancelling the patta is without jurisdiction. Insofar as this case is concerned, the consideration before the Court was that when an exparte order was passed in Revision, a restoration application was filed which was rejected, the Court refused to interfere in its writ jurisdiction. No help can be taken by the petitioners from the said judgement in the case of Prem Pal Singh and others (supra). 5. No help can be taken by the petitioners from the said judgement in the case of Prem Pal Singh and others (supra). 5. Having considered the submission of learned counsel for the petitioners and perused the record, it appears that the Collector by the order dated 17.03.2011 passed in Revision No.17 of 2009-10 has remanded the matter back to the Sub Divisional Officer with respect to an application for cancellation of lease made by the respondent under Section 198 (4) of the Act. The Collector was considering an order dated 10.07.2008 passed by the Sub-Divisional Officer in proceedings under Section 198 (4) of the Act wherein while considering the application under Section 198 (4) of the Act filed by the respondent he found that the allotment of land made to the petitioners were on Gaon Sabha land which was lying vacant and patta granted for plantation of trees could be granted but the present is a case where there has been violation of Rules 173 to 176 of the Rules. 6. A perusal of the said order dated 10.07.2008 passed by the Sub-Divisional Officer indicates that he rejected the application of the respondent filed under Section 198 (4) of the Act on the ground that the patta could have been granted to the petitioner for plantation of trees. It was against that order, a revision was filed before the Collector being Revision No. 17 of 2009-10 and the Collector in that revision has remanded the matter back to the Sub-Divisional Officer for re-deciding the issue on the allegation made for cancellation of patta by providing opportunity to lead the evidence and opportunity of hearing to the parties. 7. Under such circumstances, when the Sub-Divisional Officer had rejected the application under Section 198(4) of the Act, the Collector was the competent authority where the revision could have been filed the Collector has remanded the matter to the Sub-Divisional Officer, whereupon the impugned order has been passed. 8. A perusal of the impugned order dated 29.03.2012 indicates that there was an allegation of forgery made by the complainant in his application under Section 198 (4) of the Act. 8. A perusal of the impugned order dated 29.03.2012 indicates that there was an allegation of forgery made by the complainant in his application under Section 198 (4) of the Act. The Sub-Division Officer has considered the evidence led by the parties and found that the procedure prescribed for making allotment had not been followed inasmuch as the earlier meeting which was called there was no record for the same and upon going through the file of the allotment a finding of fact has been recorded that the procedure for allotment has not been followed inasmuch no list was prepared nor Munadi was made in accordance with Rules, hence he has proceeded to withdraw the lease dated 25.10.2003 granted by him. 9. A perusal of both the order passed by the Sub-Divisional Officer prior to remand and after remand indicates that there was no consideration of any forgery in allotment of patta in the order passed prior to remand whereas after remand he has considered the evidence and recorded that the procedure prescribed for allotment has not been followed by the gaon sabha and as such he has recalled the patta when there is an allegation of fraud and misrepresentation in obtaining the patta. 10. The Sub-Divisional Officer is the competent to withdraw his earlier order of grant of lease when he finds fraud and misrepresentation. If the lease was obtained by fraud and misrepresentation then the allegations have to be gone into and for that the Sub Divisional Officer is the competent authority. Such submission of learned counsel for the petitioner that he had no jurisdiction. under such circumstance, cannot be accepted. 11. The revisional court in Revision No. 02 of 2011-12 has affirmed, the order passed by the Sub-Divisional Officer and has held that there was violation of the procedure prescribed for allotment of patta and as such it was obtained by misrepresentation and fraud as such the impugned orders do not suffer from any error in law. 12. The writ petition is accordingly dismissed. 13. No order is passed as to costs. _____________