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2014 DIGILAW 2261 (ALL)

Rajeshwari v. State of U. P.

2014-07-31

RAN VIJAI SINGH

body2014
JUDGMENT Ran Vijai Singh,J.: - Heard Sri Jitendra Prasad Kushwaha, learned counsel for the petitioners, learned Standing Counsel appearing for the State-respondents, Sri Vijai Bhan Singh, holding brief of Sri R.C. Upadhyay, learned counsel for the Gaon Sabha and Sri D.J. Singh, learned counsel appearing for respondent no. 3. 2. Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the part of the order dated 28.10.2013 passed by the learned Member, Board of Revenue in revision no. 133 of 2007-08 (Rajeshwari Vs. State). 3. Learned counsel for the representing respondents state that this writ petition may be decided on its own facts, as they do not propose to file any counter affidavit. 4. With the consent of the learned counsel for the representing parties, this writ petition is taken up for final disposal with the liberty to the unrepresented respondents to seek modification/recall/variation of this order in case they feel aggrieved. 5. The facts giving rise to this case are that few lease were executed in favour of number of persons including the petitioners, pursuant to the resolution of the gaon sabha dated 29.8.2006.Seeking cancellation of the lease, an application was filed under sub-section (4) of section 198 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short, 'the Act') by Sri Phagoo along with two other persons claiming themselves to be washermen by caste on the ground that the land in dispute falls under section 132 of the Act and is in the shape of bhita and pond, therefore, no allotment could be made thereon. The Sub Divisional Officer after issuing notice to the lease holders and after hearing the parties cancelled the lease vide order dated 23.8.2008 on the ground that the land in dispute is land of public utility, therefore, no allotment could be made on such land. 6. Challenging this order, revision no. 133 of 2007-08 (Rajeshwari Vs. State) was filed before the Board of Revenue. In the aforesaid revision, a specific ground was taken that the Sub Divisional Officer had no jurisdiction, under section 198(4) of the Act, to cancel the lease taking other additional grounds. 6. Challenging this order, revision no. 133 of 2007-08 (Rajeshwari Vs. State) was filed before the Board of Revenue. In the aforesaid revision, a specific ground was taken that the Sub Divisional Officer had no jurisdiction, under section 198(4) of the Act, to cancel the lease taking other additional grounds. The learned Member, Board of Revenue, without addressing on other grounds, had found that the order passed by the Assistant Collector without jurisdiction as under the Act, the power of cancellation of lease is vested with the Collector under section 198(4) of the Act. However, while doing so, learned Member, Board of Revenue directed the Collector, Ballia to initiate suo motu proceeding for cancellation of the lease taking note of the fact that the land falls under section 132 of the Act and is in the shape of bhita and pond with the further direction that till any final decision is taken by the Collector, the possession over the allotted land be not given to allotees and the allotment dated 1.9.2004 shall remain suspended. He has further directed to start departmental proceeding against the Lekhpal. He has further observed that the proceedings of cancellation was initiated well within time, therefore, the application seeking cancellation of the lease be treated within time. 7. While assailing this order, learned counsel for the petitioners contends that the proceeding for cancellation lease was initiated by a private individual, therefore, the learned Member, Board of Revenue had illegally directed to start the suo motu proceeding, treating it to be within time. In his submissions, when the suo motu proceeding is started on the instance of State, that ought to be treated as an independent proceeding, therefore, the direction given by the learned Member, Board of Revenue to treat the proceeding well within time is illegal and arbitrary. He has further contended that immediately after the lease was executed, the possession was handed over to the petitioners, therefore, there was no occasion to stay the allotment and not to deliver the possession. However, he further contends that after the order of cancellation of lease passed by the Sub Divisional Officer as well as order passed by the learned Member, Board of Revenue, the petitioners, who were put in possession, have been dispossessed by the authorities. 8. I have considered the submissions of the learned counsel for the parties and perused the record. 9. 8. I have considered the submissions of the learned counsel for the parties and perused the record. 9. So far as the observation made by the learned Collector with regard to judgment of Sub Divisional Officer cancelling the lease of the petitioners holding it to be without jurisdiction is concerned, that cannot be faulted with, as it is well settled that an order passed without jurisdiction is a nullity. Reference may be made to the decisons of the Apex Court in Managing Director, Army Welfare Housing Organization vs. Sumangal Services Pvt. Ltd. (2004)9 SCC 619 , Sarup Singh and Anr. vs. Union of India and Anr. (2011) 11 SCC 198 and a Division Bench decision of this Court in the case of Committee of Management Shri Jawahar Inter College and Anr. vs. State of U.P. and Ors. in Special Appeal No. 164 of 2012 decided on 25.1.2012 in which it has been held that the order without jurisdiction is a nullity. 10. Since here, under sub-section (4) of section 198 of the Act, the power of cancellation of lease is vested with the Collector, therefore, the Sub Divisional Officer had no jurisdiction to pass the order cancelling the lease. He ought to have transmitted the file to the Collector for appropriate order after due intimation to the parties and in not doing so, he has exceeded the jurisdiction vested in him. 11. So far as the observation made by learned Member, Board of Revenue with regard to initiation of suo motu proceeding by the Collector and treating the application within time on the ground that the proceeding for cancellation of lease initiated earlier was within time, is concerned, suffice it to say that these are debatable questions, as the suo motu proceeding, if any is started by the District Collector, will be treated as an independent proceedings or it will be treated continuation of the earlier proceeding initiated by the private individual ought to be decided after considering the relevant provisions of the Limitation Act as well as the provisions contained under sub-section (4) of section 198 of the Act and the case laws on the point. 12. 12. However, without addressing myself on these points, the writ petition is disposed of with the observation that in case any independent suo motu proceeding is initiated against the petitioners by the State, that shall be dealt with independently without being influenced by any of the observations made by the learned Member, Board of Revenue in accordance with law, either with respect to the question of limitation or with regard to the stay of delivery of possession and the stay of the allotment, everything has to be adjudged independently in accordance with law.