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2022 DIGILAW 799 (ALL)

Rakesh v. State of Uttar Pradesh

2022-05-19

Y.K.SRIVASTAVA

body2022
JUDGMENT : Yogendra Kumar Srivastava, J. 1. Heard Sri Ram Singh Yadav, learned counsel for the petitioners, Sri J.P.N. Raj, learned Additional Chief Standing Counsel appearing for the State-respondents and Sri Rohit Kumar Singh, learned counsel appearing for the respondent nos. 6 and 8. 2. The present petition has been filed seeking to raise a challenge to the order dated 27.09.2021 passed by the Member (Judicial), Board of Revenue, U.P. at Allahabad in Case No. RES/1417/2021 (Bal Chandra vs. Collector/District Magistrate and others), the order dated 01.05.2015 passed by the Member (Judicial), Board of Revenue U.P. at Prayagraj in Revision No. 23 of 2004-05 (Bal Chandra vs. Collector) as well as order dated 12.01.2005 passed by the Collector, Muzaffar Nagar. 3. The undisputed facts of the case as evident from the pleadings in the petition are that an allotment referable to the provisions under Section 195 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, UPZA & LR ACT was made in favour of the petitioners on a proposal dated 09.01.2004 which was approved by the Tehsildar, Kairana vide order dated 25.10.2004. Upon a complaint received with regard to the allotment and taking notice of the fact that as per terms of the amended provisions of the U.P. Act No. 27 of 2004 (w.e.f. 23.08.2004) the power to grant approval stood with the Assistant Collector incharge of the sub-division, the District Magistrate, Muzaffar Nagar passed an order dated 12.01.2005 wherein it was held that the approval granted by the Tehsildar was contrary to law and accordingly the said approval was cancelled and the land was directed to be vested in the Gaon Sabha. 4. Aggrieved by the aforesaid order, the petitioners and other allottees preferred a revision before the Board of Revenue which was rejected by means of an order dated 01.05.2015 upon taking due notice to the amended provisions of Section 195, in terms of which the Tehsildar was not empowered to grant approval. A time barred restoration application was preferred on 02.08.2021. Apart from the point of delay in filing the restoration application, the grounds taken therein were held to be untenable and the same has been rejected by the Board of Revenue by its order dated 27.09.2021. 5. A time barred restoration application was preferred on 02.08.2021. Apart from the point of delay in filing the restoration application, the grounds taken therein were held to be untenable and the same has been rejected by the Board of Revenue by its order dated 27.09.2021. 5. The aforestated three orders i.e. order dated 12.01.2005 passed by the District Magistrate, Muzaffar Nagar, the order dated 01.05.2015 passed by the Member (Judicial), Board of Revenue rejecting the revision and the order dated 27.09.2021 in terms of which the restoration application has been turned down, are subject to challenge in the present writ petition. 6. Counsel for the petitioners has sought to assail the orders by submitting that on 09.01.2004 i.e. the date of proposal by the Land Management Committee, the Tahsildar was vested with the jurisdiction to grant approval to the allotment as per the provisions of Section 195, as they stood at the relevant point of time. It is further submitted that in the absence of any proceeding for cancellation of the allotment as per the provisions of sub-section (4) of Section 198, having been initiated, the order of cancellation would be unsustainable. 7. Learned Additional Chief Standing Counsel, controverting the aforesaid assertions, has submitted that on the date when the proposal was approved, i.e. 25.10.2004, Section 195 had been amended in terms of the amending Act of 2004, which was effective from 23.08.2004, and the Tehsildar was no longer vested with the powers and jurisdiction to grant approval. The approval order of the Tahsildar being beyond jurisdiction, the same would have no effect; accordingly the District Magistrate upon a complaint having been received rightly cancelled the said order. It is also pointed out that the order of the District Magistrate is an order of cancellation of the approval order and it is not an order of cancellation of allotment and in view thereof the same cannot be assailed on the ground that the procedure under sub-section (4) of Section 198 was not followed. 8. In order to appreciate the rival contentions, the relevant statutory provisions would be required to be adverted to. 9. The procedure with regard to allotment of land at the relevant point of time was covered under Section 195 of the UPZA & LR Act. 10. Section 195, at it stood prior to the amendments made in the year 2002, is being reproduced below :- “195. 9. The procedure with regard to allotment of land at the relevant point of time was covered under Section 195 of the UPZA & LR Act. 10. Section 195, at it stood prior to the amendments made in the year 2002, is being reproduced below :- “195. Admission to land.-(1) The Land Management Committee with the previous approval of the Assistant Collector in charge of the sub-division shall have the right to admit any person as bhumidhar with non-transferable rights to any land other than land falling in any of the classes mentioned in section 132 where - (a) the land is vacant land, (b) the land is vested in the Gaon Sabha under section 117, or (c) the land has come into the possession of Land Management Committee under Section 194 or under any other provisions of this Act." 11. By U.P. Ordinance No. 4 of 2002, promulgated on June 21, 2002, sub-section (2) was inserted. The said sub-section (2) stood as under :- "(2) If the Assistant Collector in-charge of the sub-division is satisfied that the Land Management Committee has failed to discharge its duties or to perform its functions under sub-section (1), or it is otherwise necessary or expedient so to do, he may himself admit any person as bhumidhar with non-transferable rights of the land under sub-section (1).” 12. By U.P. Ordinance No. 16 of 2002, promulgated on July, 20, 2002, the word "Tehsildar" was substituted for the words "Assistant Collector in-charge of the sub-division" in sub-section (1) as well as in sub-section (2). Both the Ordinances No. 4 and 16 of 2002 were replaced by U.P. Act No. 11 of 2002 which was made effective from July 20, 2002. In the amending Act, subsection (2) was omitted. Thus, the amendment introduced by the Ordinance No. 16 of 2002 was retained in the Amending Act of 2002, while the changes made by Ordinance No. 4 of 2002, were not provided for. 13. The amendment made to Section 195 as per terms of U.P. Act No. 11 of 2002 was as follows :- "6. Amendment of Section 195.-In Section 195 of the principal Act for the words "Assistant Collector in charge of the sub-division" wherever occurring, the word "Tehsildar" shall be substituted." 14. Section 195 as it stood consequent to the amending Act of 2002 was as follows :- "195. Amendment of Section 195.-In Section 195 of the principal Act for the words "Assistant Collector in charge of the sub-division" wherever occurring, the word "Tehsildar" shall be substituted." 14. Section 195 as it stood consequent to the amending Act of 2002 was as follows :- "195. Admission to land.-(1) The Land Management Committee with the previous approval of the Tahsilar shall have the right to admit any person as bhumidhar with non-transferable rights] to any land other than land falling in any of the classes mentioned in section 132 where - (a) the land is vacant land, (b) the land is vested in the Gaon Sabha under section 117, or (c) the land has come into the possession of Land Management Committee under Section 194 or under any other provisions of this Act." 15. The provisions were again subject to further amendment by U.P. Act No. 27 of 2004, which came into force on August 23, 2004 and in terms thereof the Assistant Collector in-charge of the sub-division, instead of the Tehsildar, was empowered to admit any person as bhumidhar with non-transferable rights. The amendment made to Section 195 was as follows :- ”8. Amendment of Section 195.-In Section 195 of the principal Act for the word "Tehsildar" the words "Assistant Collector in charge of the sub-division" shall be substituted.” 16. The provisions under Section 195, as they stand presently, after the amending Act of 2004, are as follows :- “195. Admission to land.-(1) The Land Management Committee with the previous approval of the Assistant Collector in charge of the sub-division shall have the right to admit any person as bhumidhar with non-transferable rights to any land other than land being in any of the classes mentioned in section 132 where - (a) the land is vacant land, (b) the land is vested in the Gaon Sabha under section 117, or (c) the land has come into the possession of [Land Management Committee] under Section 194 under any other provisions of this Act." 17. Section 195 contains the provisions with regard to admission to land by the Land Management Committee. Section 195 contains the provisions with regard to admission to land by the Land Management Committee. As per terms of the provision, the Land Management Committee with the previous approval of the Assistant Collector in charge of the sub-division was empowered to admit any person as bhumidhar with non-transferable rights to any land other than land being in any of the classes mentioned in Section 132 and subject to the condition that (i) the land is vacant land, (ii) the land is vested in the Gaon Sabha under section 117, or (iii) the land has come into the possession of Land Management Committee under Section 194 under any other provisions of this Act. 18. The admission of persons to land under Section 195 was to be made in the order of preference specified under Section 198. The procedure for admission was specified under Rules 173, 174 and 175 of the U.P. Zamindari Abolition and Land Reform Rules, 1952. 19. Upon completion of the aforementioned procedural requirements, the Land Management Committee was required to prepare the documents specified under Rule 176 and thereafter forward the same to the Assistant Collector in charge of the subdivision for approval. 20. The procedure with regard to submission of documents before the Assistant Collector and the manner in which approval was to be accorded thereon was provided for under Rule 176, which is being extracted below :- “176. -(1) After selecting the person or persons for admission to the land in accordance with Rule 175, the Committee shall prepare- (a) a list of persons so selected in Z.A. Form 57-B; (b) a certificate of admission to land in Z.A. Form 58; and (c) a counterpart in Z.A. Form 58-A. (2) The documents referred to in clauses (a) and (b) of sub-rule (1) shall be duly signed by the Chairman of the Land Management Committee but the document referred to in clause (c) shall be signed by the person so selected for admission to the land. (3) The document referred to in sub-rule (1) shall then be forwarded to the Assistant Collector-in-charge of the Sub-Division along with- (a) a copy of the proceedings of the meeting of the Committee in which the decision to settle land was taken; and (b) a certificate from the Lekhpal concerned to the effect that the particulars of the land mentioned in the list are correct, and that the admission to the land is in accordance with the provisions of the Act and the Rules. (4) The Assistant Collector in-charge of the Sub-Division shall, on receipt of the documents, referred to in sub-rule (3) scrutinize the decision taken by the Committee and if he is satisfied that the decision of the Committee is in accordance with the Act and the rules made thereunder, he shall record his approval on the list in Z.A. Form 57-B and return the papers to the Land Management Committee within a week of its receipt from the Chairman with the direction that the possession may be delivered to the lessees and the report of mutation be submitted to the Supervisor Kanungo by the Lekhpal immediately after delivery of possession. (5) If the Assistant Collector in-charge of the Sub-Division finds that the whole or part of the decision taken by the Committee is not in accordance with the provisions of the Act and Rules, he shall record his disapproval on the list in Z.A. Form 57-B and return the papers to the Chairman." 21. The Assistant Collector, on receipt of the documents, was required to scrutinize the decision taken by the Land Management Committee and upon being satisfied that the decision of the Committee was in accordance with the Act and the Rules made thereunder, he was required to record his approval. In the event, the Assistant Collector found that the decision taken by the Committee was not in accordance with the provisions of the Act and the Rules, he was to record his disapproval and return the papers. 22. In the event, the Assistant Collector found that the decision taken by the Committee was not in accordance with the provisions of the Act and the Rules, he was to record his disapproval and return the papers. 22. It would therefore be seen that as per terms of Rule 176 the documents in respect of the proceedings undertaken by the Land Management Committee for grant of admission to land under Section 195, were required to be submitted whereupon the Assistant Collector was required to scrutinize the decision taken by the Committee and to record his approval or disapproval thereon, depending on whether he was satisfied or not that the decision taken by the Committee was in accordance with the Act and the Rules made thereunder. 23. A conjoint reading of the provisions under Section 195 read with Rule 176 would demonstrate that it was the Assistant Collector in charge of the sub-division who was vested with the discretion to approve or to disapprove the proposal submitted by the Land Management Committee after duly scrutinizing the same. 24. In the present case on a complaint received with regard to the allotments the matter was inquired into and the inquiry report submitted by the Additional Collector indicated that consequent to the amendment made by U.P. Act No. 27 of 2004, effective from 23.08.2004, the power to grant approval was with the Assistant Collector and accordingly the approval granted by the Tehsildar on 25.10.2004 was without jurisdiction. The District Magistrate, upon taking into consideration the fact that the eligibility list was not in the order of preference as per Section 198 and that the approval granted by the Tehsildar on 25.10.2004 was without jurisdiction, passed the order dated 12.01.2005 cancelling the approval granted by the Tehsildar and directing the land to be vested with the Gaon Sabha. 25. In terms of the amendment made to Section 195 by U.P. Act No. 27 of 2004 (effective from 23.08.2004), the Assistant Collector in charge of the sub-division was empowered to grant approval to the proposal submitted by the Land Management Committee for admission of land under Section 195. Accordingly, the approval granted by the Tehsildar on 25.10.2004, i.e. on a date subsequent to 23.08.2004, when the amendment had become effective, the order of approval by the Tehsildar, was clearly beyond jurisdiction. 26. Accordingly, the approval granted by the Tehsildar on 25.10.2004, i.e. on a date subsequent to 23.08.2004, when the amendment had become effective, the order of approval by the Tehsildar, was clearly beyond jurisdiction. 26. The revision filed thereagainst has been rejected for the same reason that the approval was contrary to the provisions contained under Section 195 (1) and also taking into notice the amendment made to Section 195 (1). The restoration application having been filed with a delay of more than six years, the Board of Revenue held the reason for the delay to be insufficient and the grounds taken in the revision were found to be untenable; accordingly, the restoration application was also rejected. 27. It is well settled that where an authority takes upon itself to exercise a jurisdiction it does not possess the order passed would amount to 'nothing' - a nullity. The concept of voidness and nullity has been explained in de Smith's Judicial Review of Administrative Action, de Smith's Judicial Review of Administrative Action (4th Edn.) while considering whether an order or decision is ultra vires or outside jurisdiction, in the following terms :- "Void acts and decisions are indeed usually destitute of legal effect; they can be ignored with impunity; their validity can be attacked, if necessary, in collateral (or indirect) proceedings; they confer no legal rights on anybody." 28. It needs to be reiterated that conferment of jurisdiction is a legislative function and if an order is passed by an authority having no jurisdiction in the matter, it would be invalid and would amount to nullity. The order made without jurisdiction would be unenforceable and inexecutable and would be devoid of any legal effect. 29. The defect of jurisdiction strikes at the very root of the matter and the order of approval granted by the Tehsildar being a nullity would be non-est and not enforceable. The order passed by the Collector cancelling the approval granted by the Tehsildar, which was beyond jurisdiction, therefore cannot be faulted with. The order passed by the Board of Revenue rejecting the revision and the restoration application, also cannot be said to suffer from any illegality so as to warrant interference. 30. The order passed by the Collector cancelling the approval granted by the Tehsildar, which was beyond jurisdiction, therefore cannot be faulted with. The order passed by the Board of Revenue rejecting the revision and the restoration application, also cannot be said to suffer from any illegality so as to warrant interference. 30. As regards the contention sought to be raised on behalf of the petitioners that the procedure under sub-section (4) of Section 198 for cancellation of the allotment was not followed, it may only be stated that the order of the Tahsildar granting approval being without jurisdiction, the same was a nullity and would have no effect. The District Magistrate upon receiving a complaint and after getting the matter inquired has rightly held that since the Tahsildar was not empowered to grant approval on the said date in view of the amendment made to Section 195 the order of approval was beyond jurisdiction and accordingly the same was cancelled. It would be pertinent to underscore the distinction between cancellation of an order of approval on the ground that the same was without jurisdiction, and cancellation of an order of allotment on account of an irregularity which would require the procedure under sub-section (4) of Section 198 to be followed. 31. No other ground was urged. 32. In view of the above, the Court finds no material error or illegality in the orders impugned so as to persuade this Court to exercise extra ordinary jurisdiction under Article 226 of the Constitution of India. 33. The petition stands dismissed accordingly.