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2014 DIGILAW 3617 (ALL)

Gama v. Board of Revenue U. P.

2014-12-04

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri B.D. Mandhyan, Senior Advocate, assisted by Sri Om Prakash, for the petitioner, Standing Counsel, for State of U.P., Sri Tariq Maqbool Khan, Standing Counsel for Gram Panchayat and Sri A.P. Tiwari, Counsel for Lal Bahadur Singh, the complainant. The writ petition has been filed against the orders of Sub-Divisional Officer, dated 25.8.2012, recalling his earlier order dated 25.3.1994, by which 'bhumidhar with non-transferable right' was granted to the petitioner and directing to delete his name from the land in dispute and Board of Revenue, U.P. dated 14.7.2014, dismissing the revision of the petitioner, against the aforesaid order, in the proceeding under section 122-B(4-F) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act'). 2. The dispute relates to plot Nos. 404-gha (area 0.004 hectare), 408 (area 0.125 hectare), 911 (area 0.066 hectare), 1752 (area 0.167 hectare) and 2243 (area 0.928 hectare) total area 1.290 hectare (old plots 191, 203 and 1047) of village Baghad, pargana Haveli, district Gorakhpur. The petitioner has stated that Land Management Committee had granted asami patta of the disputed land to the petitioner in the year 1970, along with 3 other villagers, which was approved by Sub-Divisional Officer, on 29.9.1970. The petitioner belongs to Scheduled Caste and he was in continuous cultivatory possession of the land in dispute, since the date of allotment as such he moved an application before the Sub-Divisional Officer for conferring 'bhumidhar with non-transferable right' under section 122-B(4-F) of the Act over the aforesaid land. Sub-Divisional Officer by order dated 25.3.1994 conferred 'bhumidhar with non-transferable right' to the petitioner, of the land in dispute. On completion of 10 year, he acquired 'bhumidhar with transferable right' under section 131-B. Settlement Officer Consolidation, by order dated 2.6.2008, directed for recording, the name of the petitioner as 'bhumidhar with transferable right' in place of 'asami'. His name was recorded as such in the khatauni 1417 F-1422 F. 3. Lal Bahadur Singh filed a complaint (registered as Misc. Case No. 1 of 2012) before the Collector, alleging therein that the name of the petitioner was recorded over land of public utility as specified under section 132 of the Act, by making forgery and for recalling the order dated 25.3.1994. Lal Bahadur Singh filed a complaint (registered as Misc. Case No. 1 of 2012) before the Collector, alleging therein that the name of the petitioner was recorded over land of public utility as specified under section 132 of the Act, by making forgery and for recalling the order dated 25.3.1994. The Collector called for a report from Tahsildar, who submitted his report dated 6.8.2012, stating therein that land in dispute was the land specified under section 132 of the Act and no 'bhumidhar with transferable right' can be granted over it to any person. The order dated 25.3.1994 was obtained by committing fraud and on its basis order of Settlement Officer Consolidation was also obtained. On this report Sub-Divisional Officer, by order dated 25.8.2012, recalled the order dated 25.3.1994 and directed to delete the name of the petitioner from the land in dispute and recorded it as Gaon Sabha land. The petitioner filed a revision (registered as Revision No. 42/2011-12) from the aforesaid order, which was dismissed by Board of Revenue, U.P., by order dated 14.7.2014. Hence this writ petition has been filed. 4. The Counsel for the petitioner submitted that the petitioner belongs to Scheduled Caste and was eligible for allotment of the land. The Land Management Committee granted asami patta of the disputed land to the petitioner in the year 1970, along with 3 other villagers, which was approved by Sub-Divisional Officer, on 29.9.1970. The petitioner was in continuous cultivatory possession of the land in dispute, since the date of allotment as such he moved an application before Sub-Divisional Officer for conferring 'bhumidhar with non-transferable right' under section 122-B(4-F) of the Act over it. Sub-Divisional Officer by order dated 25.3.1994 conferred 'bhumidhar with non-transferable right' to the petitioner, over the land in dispute. On completion of 10 year, he acquired 'bhumidhar with transferable right' under section 131-B of the Act. Settlement Officer Consolidation, by order dated 2.6.2008, directed for recording the name of the petitioner as 'bhumidhar with transferable right' in place of 'asami'. There is no illegality in allotment of the land to the petitioner, order of Sub-Divisional Officer, dated 25.3.1994 and order of Settlement Officer Consolidation, dated 2.6.2008, which were passed according to the law. The complaint of Lal Bahadur Singh was mala fide and was filed on 14.8.2012 without any application for condonation of delay which was long barred by limitation. There is no illegality in allotment of the land to the petitioner, order of Sub-Divisional Officer, dated 25.3.1994 and order of Settlement Officer Consolidation, dated 2.6.2008, which were passed according to the law. The complaint of Lal Bahadur Singh was mala fide and was filed on 14.8.2012 without any application for condonation of delay which was long barred by limitation. Lal Bahadur Singh belongs to general category and was not an aggrieved person and his complaint ought to have been dismissed but it has been illegally entertained by the Collector. Sub-Divisional Officer issued notice on this application on 18.8.2012, which was served upon the petitioner on 23.8.2012 while impugned order was passed on 25.8.2012, without giving reasonable opportunity of hearing/adducing evidence, to the petitioner. Board of Revenue, U.P. dismissed the revision of the petitioner without considering his grievances. Impugned orders are based upon the report of Tahsildar, which is not evidence and findings that the petitioner committed forgery, cannot be recorded on its basis. Same issue was also raised before Settlement Officer Consolidation, however without waiting for the order of Settlement Officer Consolidation, impugned order was passed by Sub-Divisional Officer. He relied upon the judgments of this Court in Mewa Lal v. State of U.P. 2011 (113) RD 518 (Alld.), and Ram Awadh v. The Collector 2011 (113) RD 712 (Alld.), in which it has been held that if the lease has been granted by the competent authority then it can be cancelled only under section 198(4) of the Act after giving opportunity of hearing to the allottee. Even if the lease is illegal and procedure provided under the law cannot be avoided. Ramker Chauhan v. Commissioner 2012 (117) RD 32 (Alld.), in which it has been held that after expiry of period as given under section 198(6), proceeding for cancellation of lease deed cannot be instituted. Accordingly, the impugned orders are illegal and are liable to be set aside. 5. I have considered the arguments of the Counsel for the parties and examined the record. So far as the allegations that proper opportunity of hearing has not been provided, is concerned, in the impugned order, it has been mentioned that the aggrieved persons have filed their objection against the report of Tahsildar and Naib Tahsildar and evidence in support of their claim. So far as the allegations that proper opportunity of hearing has not been provided, is concerned, in the impugned order, it has been mentioned that the aggrieved persons have filed their objection against the report of Tahsildar and Naib Tahsildar and evidence in support of their claim. There is nothing on record to show that the petitioner moved any application before Sub-Divisional Officer for grant of some more time. Thus allegations that proper opportunity of hearing/evidence was not given is not liable to be accepted. Admittedly notice was served to the petitioner before passing order. 6. In the impugned orders, it has been categorically found that the land allotted to the petitioner and other persons were land of pond, nali, pasture and abadi, which are specified under section 132 of the Act. Admittedly the petitioner was given asami patta and his name was also recorded as asami in the revenue record as such this fact is further corroborated. The petitioner has not filed any document to rebut this fact. thus the land in dispute was falling within the purview of section 132 of the Act and no right under section 122-B(4-F) of the Act can be granted to any person over the land falling under section 132 of the Act as, such land are excluded under section 122-B(4-F). Sub-Divisional Officer was not competent to grant 'bhumidhar with transferable right' over the disputed land. The order dated 25.3.1994 was illegal and without jurisdiction and has been rightly recalled. 7. So far as the issue relating to limitation is concerned, in case of fraud limitation starts from the date when the fraud is discovered for the first time by the aggrieved person under section 17 of the Limitation Act as held in Ram Pal v. State of U.P. 2014 (124) RD 221 , Sub-Divisional Officer has categorically held that order dated 25.3.1994 was secured by committing fraud. The order, being without jurisdiction and has passed ignoring statutory provisions, has been rightly recalled. 8. So far as the arguments of the Counsel for the petitioner that patta of the petitioner was not cancelled as such his name could not have been deleted from the land in dispute, is concerned, section 198(9) was inserted by U.P. Act No. 20 of 1982 under which asami lease of the land specified under section 132 of the Act was converted as asami year to year. By operation of law right of the petitioner has been curtailed. If the authority has resumed the land then right of the petitioner, who was asami year to year, has come to an end. Order of Settlement Officer Consolidation was based upon the order of Sub-Divisional Officer dated 25.3.1994 as such on its basis no right can be derived. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.