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2014 DIGILAW 3597 (ALL)

Ram Sanehi v. Board of Revenue

2014-12-03

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Rishikesh Tripathi, for the petitioners, Standing Counsel, for State of U.P. The writ petition has been filed against the orders of Additional Collector, dated 25.10.1994, cancelling pattas of the petitioners, Additional Commissioner dated 21.6.1996 and Board of Revenue, U.P. dated 28.10.2014, dismissing the revisions of the petitioners, against the aforesaid order, in proceeding under section 198(4) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act). 2. According to the petitioners, Ram Sanehi, Muluwa and Durja (petitioners-1, 2 and 4) belong to "other backward classes" and Jageshwar belongs to "general category" and they were landless agricultural labourers. Land Management Committee of village Chamraha allotted land to every landless person belonging to "scheduled caste" in the year 1987. Even thereafter Tjanjar and naveen parti' in the village remained, as such Land Management Committee passed a resolution for allotment of the land to eligible candidates belonging to "Other Backward Classes" and "general category". However Sub-Divisional Officer, by order dated 8.1.2008, refused to grant approval. Land Management Committee again passed another resolution on 22.2.1988 for allotment of the land, which was approved by Sub-Divisional Officer on 17.10.1989. 3. Rikhnath (now represented by respondents-5 and 6) filed an application (registered as Case No. 360) under section 198 (4) of the Act before the Collector, for cancellation of the pattas of the petitioners, on 28.11.1989. On the notice being served, the petitioners filed their joint objection on 14.5.1990, denying the allegations made in the application. It has been stated by the petitioners that Land-Management Committee after circulating due notice of the agenda for allotment of the land, conducted meeting and passed resolution for allotting the land to the petitioners and one Dripal. Sub-Divisional Officer after being satisfied with the legality of the resolution, granted approval on 17.10.1989. Land Management Committee has not committed any illegality in allotting the land to the petitioners. Rikhnath was having large holdings and belonged to "general category", he was not an aggrieved person and the application for cancellation of patta filed by him was not maintainable. The pleas regarding limitation and jurisdiction were also raised. 4. The case was tried by Additional Collector, who summoned the record relating to the allotment of the land. Rikhnath was having large holdings and belonged to "general category", he was not an aggrieved person and the application for cancellation of patta filed by him was not maintainable. The pleas regarding limitation and jurisdiction were also raised. 4. The case was tried by Additional Collector, who summoned the record relating to the allotment of the land. Additional Collector, by order dated 25.10.1994 held that various eligible persons of the village were not granted patta, while the petitioners were not eligible for grant of patta. Naib Tahsildar and Tahsildar also recommended for not granting approval through their letters dated 19.5.1988 and 21.9.1988 but ignoring these letters, approval was granted. On these findings, pattas of the petitioners were cancelled. The petitioners filed a revision (registered as Revision No. 18/42 of 1994-95) from the aforesaid order. The revision was heard by Additional Commissioner, who by order dated 21.6.1996, held that some of the allottees were falling within the ambit of section 28-C of U.P. Panchayat Raj Act, 1947 but no permission was obtained from the Collector for allotment of the land. Allotted land, which was used for 'khalihan' was also allotted. Father of Ram Sanehi was member in Land Management Committee and also participated in passing the alleged resolution. Allottees were not eligible persons. On these findings the revision was dismissed. The petitioners filed a second revision before Board of Revenue, U.P. Member, Board of Revenue, U.P. found that on disapproval of earlier resolution on 8.1.1988, the fresh resolution dated 22.2.1988 was passed without circulating fresh notice of the agenda for allotment of the land to the same persons without framing eligibility list in preferential category. On these findings, revision was dismissed by Board of Revenue, U.P., by order dated 28.10.2014. Hence this writ petition has been filed. 5. The Counsel for the petitioners submitted that Land Management Committee of village Chamraha allotted land to every landless person belonging to "Scheduled Caste" in the year 1987. Even thereafter, 'banjar and naveen parti' in the village was available, as such Land Management Committee passed a resolution for allotment of the land to eligible candidates belonging to "Other Backward Classes" and "general category". Notice of the meeting for allotment of the land was duly circulated in the village. Land Management Committee passed the resolution for allotment of the land to the petitioners, which was approved by Sub-Divisional Officer on 17.10.1989. Notice of the meeting for allotment of the land was duly circulated in the village. Land Management Committee passed the resolution for allotment of the land to the petitioners, which was approved by Sub-Divisional Officer on 17.10.1989. Rikhnath Singh belonged to 'Thakur' by caste falling in "general category' and was having large holdings. He was not the person aggrieved by the allotment of the land. The application filed by Rikhnath Singh for cancellation of the patta was not maintainable and was liable to be dismissed. Additional Collector has illegally held that land allotted to the petitioners was the land of 'khalihan' and this finding has been reversed by Board of Revenue. Finding, of Additional Collector that Chunbad, Natthoo, Santoo and Shivpal, who belonged to 'Schedule Caste' and eligible persons were not allotted land, was incorrect as Chunbad had already been allotted land in 1987, while Natthoo was minor in the year 1988. Santoo and Shivpal were not residents of village Chamraha as such could not be considered in preference of the petitioners. Necessary permission of the Collector for allotment of the land was obtained through Letter No. 248/247/246 dated 5.9.1988 i.e. before grant of approval on 17.10.1989. The impugned orders are illegal and liable to be set aside. He relied upon the judgments of this Court in Pyare Lal v. Deputy Director of Consolidation 2005 (98) RD 106 (HC), and Meharban v. State of U.P. 2009 (108) RD 672 (HC), in which it has been held that proceedings under section 198(4) of the Act can be initiated by the "persons aggrieved" only and the applicant has to plead and prove that he was the "person aggrieved". He submits that impugned orders are illegal and are liable to be set aside. 6. I have considered the arguments of the Counsel for the petitioners and examined the record. Section 198(1) and (4) which are relevant for the purposes of this case are quoted below "198. He submits that impugned orders are illegal and are liable to be set aside. 6. I have considered the arguments of the Counsel for the petitioners and examined the record. Section 198(1) and (4) which are relevant for the purposes of this case are quoted below "198. Order of preference in admitting persons to land under sections 195 and 197.--(1) In the admission of persons to land as bhumidhar with nontransferable rights or asami under section 195 or section 197 (hereinafter in tins section referred to as allotment of land) the Land Management Committee shall, subject to any order made by a Court under section 178 observe the following order of preference: (a) Landless widow, sons, unmarried daughters or parents residing in the circle of a person who has lost his life by enemy action while in active service in the Armed Forces of the Union; (b) A person residing in the circle, who has become wholly disabled by enemy action while in active service in the Armed Forces of the Union; (c) A landless agricultural labourer residing in the circle and belonging to any one of the following categories in the order of preference (i) Persons belonging to the Scheduled Castes or the Scheduled Tribes; (ii) Persons belonging to Other Backward Classes; (iii) Persons belonging to the general category living below poverty line; (d) Any other landless agricultural labourer residing in the circle; (e) A bhumidhar or asami residing in the circle and holding land less than 1.26 hectares (3.125 acres); (f) A landless person residing in the circle who is retired, released or discharged from service other than service as an officer in the Armed Forces of the Union; (g) A landless freedom fighter residing in the circle who has not been granted political pension; and (h) Any other landless agricultural labourer, not residing in the circle, but residing in the Nyaya Panchayat circle referred to in section 42 of the United Provinces Panchayat Raj Act, 1947 and belonging to any of the following categories in the order of preference (i) Persons belonging to the Scheduled Castes or the Scheduled Tribes; (ii) Persons belonging to Other Backward Classes; (iii) Persons belonging to the general category living below poverty line. ........... ........... (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. By U.P. Act No. 38 of 2007, the persons belonging to "Other Backward Classes" and "general category living below poverty line" were added w.e.f. 31.7.2007. Admittedly Ram Sanehi, Muluwa and Durja (petitioners-1, 2 and 4) belong to "Other Backward Classes" and Jageshwar (petitioner-3) belongs to "general category". Thus in the year 1988, the petitioners were not falling in the eligibility criteria as given under section 198(1) of the Act. Allegations against the petitioners was that Ram Sanehi and Muluwa (petitioners-1 and 2) are real brothers. Their father Tara-pati was having 2.772 hectare land and Muluwa was having 0.404 hectare land in their names. Tarapati was member of Land Management Committee. Durja (petitioner-4) was having 2.273 hectare land. Jageshwar (petitioner-3) was minor and prior to this allotment, by changing name of father, he got allotted 0.279 hectare land. There is nothing on record to prove that any of the petitioners was agricultural labourer. The petitioners in paragraph-5 of the writ petition has alleged that the petitioners together with allotted land are having land less than 1.26 hectare without filing their khatauni to show exact area held by them. 8. Board of Revenue, U.P. found that on disapproval of earlier resolution on 8.1.1988, the fresh resolution dated 22.2.1988 was passed without circulating fresh notice of the agenda for allotment of the land to the same persons without framing eligibility list in preferential category. Additional Collector found that approval was granted ignoring the reports of Naib Tahsildar and Tahsildar dated 19.5.1988 and 21.9.1988, who had recommended for not granting approval. Additional Collector further found that Tarapati, father of petitioners-1 and 2 was member of Land Management Committee and got the fresh resolution prepared without proper meeting. The petitioners, in paragraph-7 of the writ petition, without annexing any papers in support of their allegations, have alleged that agenda for allotment of the land was circulated by beat of drum in the village. The petitioners, in paragraph-7 of the writ petition, without annexing any papers in support of their allegations, have alleged that agenda for allotment of the land was circulated by beat of drum in the village. In order to challenge, findings of fact recorded by Revenue Court, the petitioners are required to annex the evidence along with the writ petition, as held by Supreme Court in Bharat Singh v. State of Haryana AIR 1988 SC 2181 . In the absence of any evidence, contradicting the findings of facts, this Court is unable to interfere with findings of fact as held by Supreme Court in Sawam Singh v. State of Punjab AIR 1976 SC 232 , State of Andra Pradesh v. P.V. Hanumantha Rao (2003) 10 SCC 121 , and Dalvinder Singh v. Municipal Council AIR 2011 SC 2532 , Findings of fact recorded by Revenue Courts that the petitioners were not eligible for allotment of the land and no proper meeting for allotment of the land was conducted before passing resolution dated 22.2.1988, do not suffer from any illegality and cancellation of pattas of the petitioners being irregular cannot be said to be illegal. 9. Now it has to be examined the argument of the Counsel for the petitioners that Rikhnath Singh being not an aggrieved person, action taken by Additional Collector, on his application, was illegal. Section 198(4) of the Act empowers the Collector either of his own motion or on the application of the person aggrieved to inquire into the allotment of the land. For initiating suo motu inquiry, the Collector has to form an opinion that it would be proper to hold inquiry, on some material. That material may be either report of subordinate authority or from any other source. If the material was brought to the notice of the Collector through an application by a person, it itself does not preclude the Collector from taking notice of irregular allotment and initiating inquiry suo motu. Even if the applicant was not an aggrieved person, it will not affect the jurisdiction of the Collector to form his opinion for suo motu action. There is no necessity to record in writing that the action was taken suo motu. Even if the applicant was not an aggrieved person, it will not affect the jurisdiction of the Collector to form his opinion for suo motu action. There is no necessity to record in writing that the action was taken suo motu. Supreme Court in D.N. Roy and S.K. Bannerjee v. State of Bihar AIR 1971 SC 1045 , held that if the exercise of a power can be traced to an existing power even though that power was not purported to have been exercised, under certain circumstances, the exercise of the power can be upheld on the strength of an undisclosed but undoubted power. In State of H.P. v. Rajkumar Brijender Singh 2004 (19) AIC 810 (SC) : AIR 2004 SC 3218 , held that the Financial Commissioner while exercising the power under sub-section (3) of section 20 acts as a statutory authority. We also find that under sub-section (2) the Financial Commissioner is an appellate authority against the order of the Commissioner. While exercising such powers vested in him under sub-sections (2) and (3) of section 20, no such restrictions can be placed on exercise of power of the Financial Commissioner on the ground that he is a part of the machinery of the State Government or an officer of the State. It is in a different statutory capacity under which the Financial Commissioner exercises his power and is free to pass any order in accordance with law, which may or may not be against the State Government. Therefore, merely for the reason that one of the parties to the appeal, maybe the State Government, chose to withdraw an appeal filed before the lower appellate authority, would be treated as a bar for the Financial Commissioner to exercise his power under sub-section (3) of the Act. 10. Under section 48 of U.P. Consolidation of Holdings Act, 1953, Deputy Director of Consolidation can exercise revisional jurisdiction suo motu or on an application of an aggrieved person. Full Bench of this Court in Ramakant Singh v. Deputy Director of Consolidation AIR 1975 All 126 (FB), held that once the record has been called for on an application of a person, Deputy Director of Consolidation was competent to exercise his jurisdiction, in spite of the fact that the application of the person was a time barred application and was liable to be dismissed on the ground of limitation. Similarly under Rule 4 of U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, District Magistrate is empowered to hold preliminary inquiry against Pradhan etc. 'on the complaint of the public', 'report of Public Servant' and 'otherwise'. For filing complaint by public, mandatory provisions are provided under Rule 3. Full Bench of this Court in Vivekanand Yadav v. State of U.P. 2011 All L.J. 694 (FB) : 2011 (84) ALR 4 (Sum.), held that terms 'otherwise' means District Magistrate has suo motu power to hold inquiry and suo motu jurisdiction can be exercised on defective complaint also. 11. Thus in view of the aforesaid dictum as held by Supreme Court and Full Benches of this Court, once the power has been exercised by the Collector to hold inquiry, it becomes immaterial as to whether the application filed before the Collector was competent or not as power can be exercised suo motu under section198(1) of the Act and notice of required facts to form opinion to take suo motu action can be taken from the application, which was otherwise not maintainable. The case laws relied upon by the Counsel for the petitioners have no binding precedent in view of judgments of Supreme Court and Full Benches of this Court. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.