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Allahabad High Court · body

2017 DIGILAW 20 (ALL)

Babu v. State of U. P.

2017-01-03

SUNITA AGARWAL

body2017
JUDGMENT Sunita Agarwal, J. By means of the present writ petition, the petitioner is challenging the orders dated 7.1.2013 and 16.8.2016 passed by respondent no. 3 namely the District Magistrate, Banda and respondent no. 2 namely the Additional Commissioner (Administration), Chitrakoot Dham Mandal, Banda; respectively, in the matter of cancellation of "Patta" granted in favour of the petitioners in the year 2000. 2. A perusal of the record indicates that plot no. 3471/1 area 0.50 acre/0.202 hectares was allotted to the petitioners in the year 2000. The proceeding under Section 198(4) was initiated against the petitioners on a report dated 12.8.2008 submitted by the Tehsildar, Mahoba. 3. The Tehsildar in his report has submitted that the land in question is a public utility land which is being used as Cremation ground (Marghat). This land is contiguous to the land of Gram Sabha and a Pond and is also being used for the cattle of the villagers. 4. On the said report, notice was given to the petitioners. In his objections, the petitioners contended that the allotment has been made to them in accordance with law, there was no infirmity in the procedure adopted by the then authorities. Moreover, in the report of the Lekhpal, there is mention of existence of four trees of 'Babool', 'Neem', 'Kaitha' and 'Chilla' which have allegedly been planted by the petitioners after allotment of the land in question. 5. Considering the objections of the petitioners and the report submitted by the Tehsildar, the Collector, Mahoba passed the order dated 7.1.2013 with the categorical finding that the land in question is a public utility land and it was not a land for agricultural use even at the time of allotment. The allotment of the land in favour of the petitioner was found illegal and the allotment order was thus held bad. 6. The Additional Commissioner (Administration) also recorded the same finding on the basis of material on record. 7. Challenging the decision of the Collector and the Additional Commissioner (Administration) in cancellation of "Patta" granted in favour of the petitioners, submission is that in 'Akar Patra-45', a copy of which has been appended as Annexure 9' at page 57' of the paper book, the land is recorded in the category of 'Banjar' and also mentioned as 'Krishi Yogya Banjar' i.e. 'Banjar' land which can be cultivated. 8. 8. Submission is that keeping in view of the entries in the revenue records, the Competent Authority had allotted the land in question in the name of the petitioners, there was no justification for cancellation of the allotment order on a proceeding initiated in the year 2008 i.e. after a period of more than 8 years. 9. A perusal of the entries made in 'Akar Patra-45' regarding the name of the petitioners on the basis of allotment order, it is apparent that the said entries have been made on 12.12.2001 on the basis of order passed by the Assistant Consolidation Officer dated 28.2.2001 for making entries in the name of the petitioners after cancellation of entry of 'Banjar' with regard to area 0.50 acre. Whereas total area of Plot No. 3471 recorded as 'Banjar' is 1-15 i.e. 81.79 hectares. Moreover, the report dated 6.7.2012 submitted by the Tehsildar before the Collector in the proceedings under Section 198(4) initiated against the petitioners categorically records that on the spot inspection was done on 8.6.2012, the land in question was found to be in use as 'Marghat'. There were traces of cremation "last rites" performed by the villagers. The land is also adjacent to a Pond which is being used for drinking water by cattle of the villagers. No agricultural activities were found on the spot. It is also recorded that the land in question is not suitable for agricultural use. 10. The submission of the villagers recorded therein also establishes that the land in question is being used as 'Marghat' and is a public utility land. On the recommendation made by the Tehsildar in his report dated 6.7.2012, which is in conformity with the earlier report of the Tehsildar, Mahoba dated 12.8.2008, it was found by the Competent Authority that the allotment made in favour of the petitioner of a public utility land was illegal. 11. No illegality is found in the orders impugned for the facts recorded therein as nothing has been brought on record by the petitioners to dispel the same. 12. 11. No illegality is found in the orders impugned for the facts recorded therein as nothing has been brought on record by the petitioners to dispel the same. 12. In so far as the contention of learned counsel for the petitioners that the cancellation proceedings could not have been undertaken after a period of eight years of the allotment and the reliance placed upon a judgment of this Court in Suresh Giri and others vs. Board of Revenue, U.P. at Allahabad Through its Registrar and others reported in 2010 (109) RD 566 , it is noteworthy that the cancellation of 'Patta' in the instant case has been done on the ground that the land in question was not available for allotment in the year 2000 as it was a public utility land. It was not open for the concerned revenue authority to change the nature of the land in question. The allotment was found void ab initio and, therefore, the time period for initiating proceeding for cancellation as provided under Section 198(4) of U.P.Z.A.& L.R. Act as clarified by this Court in Suresh Giri (supra) would not apply. 13. Last submission of learned counsel for the petitioner is that the cancellation order could only be passed by the Collector whereas the cancellation order has been passed by the District Magistrate. The said contention is based on misconceived notion. 14. It is not in dispute that the Officer who had passed the order dated 7.1.2013 was holding the charge of Collector by virtue of being the District Magistrate. Mere wrong mention of the designation in the order impugned would not be a ground to interfere. 15. Moreover, in the revision filed before the Additional Commissioner (Administration), no such objection has been raised by the petitioners regarding jurisdiction of respondent no. 3 to pass the order dated 7.1.2013. 16. Reliance placed upon the judgment of this court in Vijay Alias Vijay Chauhan vs. State of U.P. (Writ-C No. 9856 of 2012) dated 23.2.2012 in support of the submission that the order impugned has been passed by an authority with the wrong description is found to be of no benefit to the petitioners. 17. For all the reasons recorded hereinabove, the writ petition is found devoid of merits and hence dismissed.