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2020 DIGILAW 985 (ALL)

Krishna Kumar v. State of U. P.

2020-06-19

SALIL KUMAR RAI

body2020
JUDGMENT : SALIL KUMAR RAI, J. 1. Heard Shri Madhup Narain Shukla, counsel for the petitioner, Shri Azad Rai and Shri Siddharth Saran, counsel for the respondents. 2. The present writ petition has been filed against the order dated 20.11.2017 passed by the Collector, Sant Kabir Nagar in Case No. D-201717650483 registered at the instance of the petitioner under Section 128 of the Uttar Pradesh Revenue Code, 2006 (hereinafter referred to as Code, 2006) for cancelling the allotment of Plot No. 64M (0.0126 Hec.) made in favour of respondent nos. 5 and 6 as well as against the order dated 24.10.2019 passed by the Commissioner, Basti Division, Basti rejecting the Revision (Case No. 851 of 2017 Computerized Case No. C-20171700851) registered under Section 210 of Code, 2006 against the order dated 20.11.2017. 3. The petitioner had instituted Case No. D-201717650483 before the Collector, Sant Kabir Nagar alleging that the allotment made in favour of the respondents was made without any resolution by the Land Management Committee and without any public proclamation and was, therefore, not in accordance with law because the procedure as prescribed under the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as Act, 1950) and the Rules made thereunder had not been followed. It was further contended by the petitioner that he and certain other villagers had planted their trees on the said plot which were still there and the petitioner and the said villagers were in possession of the plot and thus the plot was not vacant and, therefore, could not have been allotted under Section 195 of the Act, 1950. 4. During the proceedings in Case No. D-201717650483, the Tahsildar submitted a report 26.9.2017 wherein he admitted that the land was not fit for cultivation and the plot was in the form of grove. The Tahsildar denied the allegation of the petitioner that the allotment was made without following the Rules. The respondents also contested the case of the petitioner and denied all the pleas made by the petitioner in his application registering Case No. D-201717650483. 5. The Collector vide his order dated 20.11.2017 dismissed Case No. D-201717650483. In his order dated 20.11.2017 the Collector held that the allotment had been approved on 3.3.2008 because the respondents were scheduled caste and eligible for allotment under the Act, 1950. 5. The Collector vide his order dated 20.11.2017 dismissed Case No. D-201717650483. In his order dated 20.11.2017 the Collector held that the allotment had been approved on 3.3.2008 because the respondents were scheduled caste and eligible for allotment under the Act, 1950. In his order dated 20.11.2017, the Collector also held that the petitioner was not an aggrieved person and therefore, the case registered under Section 128 of the Code, 2006 was not maintainable. It also transpires from a reading of the order dated 20.11.2017 that the Collector had himself personally inspected the plot in presence of the parties as well as the local Lekhpal and the Revenue Inspector and found that the respondents were in possession of the plot and were using it for agricultural purposes. The petitioner alleges that the Collector had not inspected the plots and no spot memo was prepared by the Collector. However, because the fact of inspection or preparation of spot memo are not relevant for a decision of the writ petition, therefore, the Court is not entering into the said factual controversy. 6. Against the order passed by the Collector, the petitioner filed a Revision before the Commissioner under Section 210 of Code, 2006. A perusal of memorandum of revision shows that in the Revision the petitioner did not raise the plea that the allotment was made without any public proclamation or without any resolution by the Land Management Committee. In his revision, the petitioner mainly raised the plea that the respondents were not landless agricultural labourers and that the trees had been planted by the petitioner on the disputed plot, the plot was in the form of grove and in the possession of the petitioner and, therefore, could not be allotted as it was not a vacant land. 7. The Commissioner dismissed the revision filed by the petitioner vide his order dated 24.10.2019. 8. While challenging the impugned orders dated 20.11.2017 and 24.10.2019, the counsel for the petitioner has argued that it was evident from the report dated 26.9.2017 filed by the Tahsildar that Plot No. 64 which was allotted to the respondents was not a vacant plot because trees had been planted on it by the petitioner and other villagers and the plot was in the nature of grove land and, therefore, could not be allotted under Section 195 of the Act, 1950. It was further argued by the counsel for the petitioner that the petitioner was in possession of the disputed plots and entitled to retain its possession till evicted in accordance with law and was therefore, also entitled to challenge the allotments made in favour of respondent nos. 5 and 6. It was argued that the opinion of the Collector and the Commissioner that the petitioner was not an aggrieved person is contrary to law and therefore, the impugned orders dated 20.11.2017 and 24.10.2019 are liable to be quashed. In support of his argument, the counsel for the petitioner has relied on the judgments of this Court reported in Munshi vs. State of U.P. and Others, 2012 (117) RD 615 and Kalika Prasad and Others vs. Board of Revenue and Others, 2009 (106) RD 39. 9. Rebutting the arguments of the counsel for the petitioner, the counsel for the respondents have supported the reasons given by the Collector and the Commissioner in the impugned orders dated 20.11.2017 and 24.10.2019 and have argued that the writ petition was liable to be dismissed. I have considered the submissions of the counsel for the parties. 10. In Kalika Prasad (Supra), the Court in paragraph nos. 10 to 15 of the report held that only a vacant land can be allotted under Sections 195 and 197 of the Act, 1950 and if any person is in unauthorized occupation of the land, even then it cannot be allotted without evicting the unauthroized occupant in accordance with the procedure prescribed under Section 122-B of the Act, 1950. It is relevant to note that in Kalika Prasad (Supra), the petitioners had pleaded that they were in possession of the disputed plot with the permission of the erstwhile zamindar of the disputed plot. The judgment in Kalika Prasad (Supra) suggests that a land which is physically occupied by any person, even if unauthorisedly, would not be a vacant land under Section 195(a) of the Act, 1950 and, therefore, cannot be allotted till the authorities get it vacated by resorting to the procedure prescribed in Section 122-B. 11. The allotments in Kalika Prasad (Supra) were under Section 122-C(2) of the Act, 1950 for purposes of building houses. The allotment in the present case is under Sections 195 read with Section 198 of the Act, 1950. The allotments in Kalika Prasad (Supra) were under Section 122-C(2) of the Act, 1950 for purposes of building houses. The allotment in the present case is under Sections 195 read with Section 198 of the Act, 1950. The judgment in Kalika Prasad (Supra) does refer to allotments under Section Sections 195 and 197 of the Act, 1950 but does not take note of section 198-A of the Act, 1950. A reading of Section 198-A of the Act, 1950 shows that the legislature had conceived of a situation where land allotted to a villager would be under the unauthorized occupation of some other person and therefore, proceedings for eviction of the unauthorized occupant would have to be taken after the allotments had been made. Section 198-A prescribes the procedure for eviction of the unauthorized occupant and for putting in possession the allottee after allotments have been made under Sections 195, 197 and 198 of the Act, 1950. Section 198-A empowers the Assistant Collector to put the allottee in possession of the allotted land after evicting the unauthorized occupant and and for that purpose, use or cause to be used such force as he considers necessary. The proceedings are summary in nature and the order passed by the Assistant Collector is appealable under Section 198-A (1-B) of the Act, 1950. The existence of the aforesaid provision i.e. Section 198-A of the Act, 1950 clearly indicates that it is not necessary that the land should not be in actual physical occupation of any other person before any allotment is made in favour of any person under Sections 195, 197 and 198 of the Act, 1950. Eviction of the unauthorized occupant from the land under Section 122-B of the Act, 1950 is not a condition precedent for allotment of any land under Sections 195, 197 and 198 of the Act, 1950. Any other interpretation would make Section 198-A redundant. The judgment of this Court in Kalika Prasad (Supra) does not take note of the said statutory provision. Any other interpretation would make Section 198-A redundant. The judgment of this Court in Kalika Prasad (Supra) does not take note of the said statutory provision. The failure of the Court in Kalika Prasad (Supra) to notice Section 198-A coupled with the fact that the issue involved in the said case related to allotments under Section 122-C of the Act, 1950 and not to allotments under Sections 195 to 198 of the Act, 1950, the judgment in Kalika Prasad (supra) does not create a binding precedent for cases relating to allotments under Sections 195 to 198 of the Act, 1950. 12. At this stage, it would be relevant to note that Section 122-D of the Act, 1950 prescribes the procedure for eviction of unauthorized occupants over land allotted under Section122-C of the Act. 1950 and also the procedure to put in possession an allottee under section 122-C. Section 122- D is similar to section 198-A. The Court in Kalika Prasad (Supra) also did not notice Section 122-D. However, as the present writ petition relates to allotments under Sections 195 to 198 of the Act, 1950 and not to allotment under Section 122-C, therefore, any opinion expressed in the present judgment is restricted to allotments under Sections 195 to 198 of the Act, 1950. 13. The other argument that was raised by the counsel for the petitioner was that the opinion of the Collector and the Commissioner that the petitioner was not an aggrieved person is also contrary to the judgments of this Court reported in Kalika Prasad (Supra) and Munshi (Supra). 14. A reading of the judgment in Kalika Prasad (Supra) shows that in the aforesaid case, the petitioners had pleaded that they were in possession of the disputed plots with the permission of the erstwhile zamindar of the plots and had planted trees with the permission of Zamindar. A perusal of the Khatauni of Plot No. 64 annexed with the present writ petition shows that the disputed plot was recorded as Banzar in the revenue records and therefore, did not settle with any tenure holder but had vested in the State Government and consequently in the Gaon Sabha under Section 117 of the Act, 1950. A perusal of the Khatauni of Plot No. 64 annexed with the present writ petition shows that the disputed plot was recorded as Banzar in the revenue records and therefore, did not settle with any tenure holder but had vested in the State Government and consequently in the Gaon Sabha under Section 117 of the Act, 1950. There is nothing on record to show that any application was filed by the petitioner either for correction of the records or any proceedings were instituted by the petitioner claiming title to the disputed plots. 15. A perusal of the application filed by the petitioner registering Case No. D-201717650483 also does not reveal that the petitioner had claimed his possession over the plots to be permissive or claimed any title over the disputed plots. There is nothing on record to show that the petitioner claimed any legal possession over the disputed plots. 16. In Munshi (Supra), this Court after following the judgments of the Supreme Court held that a person aggrieved must be a man who had suffered a legal grievance. Paragraph-16 of the judgment of this Court in Munshi (Supra) is relevant for the purpose and is reproduced below: “Point No. 2 - Though I have already held that the order passed by the learned Member of Board of Revenue is without jurisdiction but assuming for a moment that it was within his competence to maintain the revision and decide the same, even then learned Member has erred in cancelling the lease without assigning any reason. So far as the view taken by the learned Member of Board of Revenue that the respondent no. 6 is an aggrieved person is concerned, controversy in this regard is no more res integra as the Apex Court as well as this Court in a catena of decisions, while considering as to who could be said to be the “person aggrieved”, held that although the meaning of expression “person aggrieved” may vary according to the context of the Statute and facts of the case nevertheless normally, a person aggrieved must be a man who has suffered a legal grievance; a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused something, or wrongfully affected his title to someone. In M.S. Jayaraj vs. Commissioner of Excise, Kerala and Others, (2000) 7 SCC 552 , the Supreme Court considered the matter at length and placing reliance upon a large number of its earlier judgments including the Chairman, Railway Board and Others vs. Chandrima Das and Others, AIR 2000 SC 988 held that the Court must examine the issue of locus-standi from all angles and the petitioner should be asked to disclose as what is the legal injury suffered by him. The term “person aggrieved” was also considered and defined in Re: Sidebotham, (1880) 14 Ch. D. 458, wherein it has been observed as under:- “The words ‘person aggrieved’ do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A ‘person aggrieved’ must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.” ........................ ........................ The “person aggrieved” means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. “Person aggrieved” means a person who is injured or he is adversely affected in a legal sense. K.N. Lakshminarasimaiah vs. Secretary, Mysore S.T.A.T. (1966) 2 Mys. L.J. 199. Whether a person is injured in strict legal sense, must be determined by the nature of the injury considering the facts and circumstances involving in each case. A fanciful or sentimental grievance may not be sufficient to confer a standi to sue upon the individual. There must be injuria or a legal grievance, as the law can appreciate and not a stat pro ratione valuntas reasons. ........................ ........................” (Emphasis added) 17. The petitioner has not suffered any legal injury by the allotments and the allotments do not affect his title over the plots. Thus, in view of the observations made by this Court in Munshi (Supra), there is no illegality in the orders of the revenue authorities holding that the petitioner was not an aggrieved person and had no right to challenge the allotments made in favour of the respondents. 18. There is no illegality in the impugned orders dated 20.11.2017 and 24.10.2019 passed by the Collector and the Commissioner. 19. 18. There is no illegality in the impugned orders dated 20.11.2017 and 24.10.2019 passed by the Collector and the Commissioner. 19. The writ petition lacks merit and is dismissed.