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2017 DIGILAW 275 (ALL)

Yaad Ram v. Board of Revenue

2017-01-19

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. Heard Shri Bimal Prasad, learned counsel for the petitioner, Shri Harsh Vikram for the contesting respondents and learned Standing Counsel for the State-respondents. 2. The instant writ petition arises out of proceedings under Section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act and seeks quashing of the order dated 08.10.2013 passed by the Board of Revenue dismissing two substitution applications filed to bring on record the heirs of the deceased, opposite parties in a reference, as highly barred by time. 3. By this order, a restoration application filed by the revisionist for setting aside an order, dismissing the reference in default, has also been dismissed. 4. The facts of the case briefly stated are that the petitioner claims to be allottees of the Gaon Sabha. The allotment made in his favour was an asami lease made sometime in the year 1966-67. It appears that in the year 1976 this same land was allotted to the contesting respondents for agricultural purposes. 5. On 23.08.1978, the petitioner applied for cancellation of the lease granted in favour of the contesting respondents on the ground that the land leased to the respondents was not vacant on the spot and, therefore, could not have been subject matter of an allotment in their favour. 6. The Collector vide order dated 23.08.1978, dismissed the application for cancellation of lease. 7. The petitioner preferred a revision no. 27 of 1978-79 before the Commissioner. The Commissioner referred the matter to the Board of Revenue, recommending that the revision of the petitioner be allowed. This reference was dismissed for default on 10.03.1988 as the revisionist did not appear on the date fixed. 8. On 18.06.2009, an application was filed by the petitioner for recall of the order dated 10.03.1988, dismissing the reference in default. 9. During the pendency of the restoration application, two substitution applications were filed. These substitution applications were beyond time by 5 and 20 years respectively. 10. The Board of Revenue finding the explanation for the delay to be inadequate, refused to condone the delay. The substitution applications were therefore dismissed. As a consequent thereof, even the restoration application was dismissed. 11. The contention of learned counsel for the petitioner is that the petitioner filed a suit for declaration, under Section 229B of the Act, in the year 1976, being suit no. The substitution applications were therefore dismissed. As a consequent thereof, even the restoration application was dismissed. 11. The contention of learned counsel for the petitioner is that the petitioner filed a suit for declaration, under Section 229B of the Act, in the year 1976, being suit no. 207 of 1976 as regards the land in question. He also filed an application for injunction under Section 229D for restraining the respondents from interfering in his possession. This application for interim injunction was dismissed. The petitioner on 20.04.1978, preferred an appeal. In the appeal, an interim order was granted in favour of the petitioner restraining the Pradhan from allotting the land in question. Thereafter on 23.08.1978, the proceedings under Section 198(4) detailed above were instituted. 12. It is therefore contended that an interim order is operating in favour of the petitioners and, therefore, the Board of Revenue should have condoned the delay in filing the substitution applications, taking a liberal view of the matter and the matter should therefore, have been decided, on its merits. In failing to do so, the Board of Revenue has committed manifest illegality and the order impugned, is liable to be set aside. 13. The second contention raised is that the allotment in favour of the respondents was made despite an interim injunction granted by the Commissioner and, therefore, also the allotment deserves to be set aside. 14. Shri Harsh Vikram counsel for the contesting respondents has submitted that suit no. 207 of 1976 was dismissed on 19.12.1978. The interim order granted by the appellate Court in appeal, arising out of the application under Section 229D, would automatically come to an end, on the dismissal of the suit itself. 15. Further, the appeal preferred by the petitioner against the order of the trial Court, dismissing his suit under Section 229B, was also dismissed on 15.02.1980 and that this order was not subjected to any further challenge and has attained finality. The writ petition therefore, is without merit and deserves, dismissal. 16. I have considered the submissions made by learned counsel for the parties and have perused the record. 17. It is true that in matters of condonation of delay, the Apex Court as also this Court have consistently held that a liberal approach is liable to be adopted because a large population in this country is illiterate and ignorant of legal niceties. 18. 17. It is true that in matters of condonation of delay, the Apex Court as also this Court have consistently held that a liberal approach is liable to be adopted because a large population in this country is illiterate and ignorant of legal niceties. 18. However, this Court, still refuses to allow the writ petition as it is fit for dismissed, for the reasons given below. 19. The proceedings where from this writ petition arises were proceedings for cancellation of an allotment in favour of the respondents on the ground that the petitioners were in possession of the land, which was subject matter of this allotment as its is asamis, the allotment in their favour having been made in the year 1967. 20. Rule 176-A of the U.P. Zamindari Abolition and Land Reforms Rules, provides that an asami lease shall be for a period not exceeding five years. 21. In view of the aforesaid provision, the term of the petitioner's lease expired in 1972. Subsequently, thereafter the status of the petitioner is nothing more than an unauthorized occupant. It has also been held that land in possession of an unauthorized occupant will be deemed to be vacant for the purposes of an allotment by the Gaon Sabha/Land Management Committee. 22. In such view of the matter, the petitioner, who admittedly, was an asami, has no right to initiate the proceedings for cancellation of the allotment made in favour of the respondents, once the term of his lease expired. The petitioner in the aforesaid facts and circumstances cannot be allowed to reap the benefits of his illegal action, having retained possession over land belonging to the Gaon Sabha, even after the lease in his favour had come to an end. 23. The contention in this regard that the petitioner should first have been evicted by means of a suit under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act also lacks substance. Rule 176-A empowers the Sub Divisional Officer to terminate an asami lease at any point of time. 24. It is also relevant to note that the petitioner's suit seeking a declaration as bhumidhar has been dismissed and the order in this regard has attained finality. 25. Rule 176-A empowers the Sub Divisional Officer to terminate an asami lease at any point of time. 24. It is also relevant to note that the petitioner's suit seeking a declaration as bhumidhar has been dismissed and the order in this regard has attained finality. 25. In the aforesaid scenario, setting aside the order impugned passed by the Board of Revenue and remanding the matter back for a decision on merits, after allowing the substitution and restoration applications, would amount to sadding the Board of Revenue with necessary and frivolous litigation. 26. The petitioner has already observed, herein above, has no case, since he was an asami and his asami lease has expired in 1972 itself. His suit for declaration has also been dismissed. 27. It has been submitted that the petitioner has since become a bhumidhar with non-transferable rights and thereafter a bhumidhar with transferable rights. This contention is without force. Learned counsel for the petitioner has not been able to point out any legal provision where under an asami can become a bhumidhar with non-transferable rights, by operation of law. 28. In view of the aforesaid discussion, the writ petition fails and is dismissed.