Bharat vs The Board of Revenue and Others

Poonam Srivastava, J.—List is revised. Counsel for the petitioner is present. No counter affidavit has been filed though Vakalatnama has been filed on behalf of the contesting respondents. The matter is being heard finally.

The prayer in the writ petition is for issuing a writ of certiorari to quash the judgment of Board of Revenue dated 21.8.1984 and also order dated 6.8.1968 passed by the Sub Divisional Officer, Gyanpur, Varanasi in case No. 52 of 1968, u/s 198(2) of U.P.Z.A. & L.R. Act. The facts giving rise to the dispute is that a Patta was executed in favour of the petitioner by the Chairman, Land Management Committee, Shivrampur in respect of 10 biswa land of plot No. 350/1 on 27.12.1963. The name of the petitioner was mutated during the consolidation proceedings on the basis of Patta as Sirdar. An objection was filed by the contesting respondent Nos. 4 to 7 on 26.10.1967. The petitioner countered the objection on the ground of limitation. Besides, it was pleaded that the lease was executed in accordance with law and could not be cancelled after expiry of six months period provided under the law. The Sub Divisional Officer cancelled the lease executed in favour of the petitioner and possession of land was restored to Land Management Committee vide order dated 6.8.1968, which is impugned, it was directed that the Tehsildar Gyanpur shall take necessary action in pursuance to the said order. The S.D.O. exercised suo moto powers to cancel the lease. The petitioner filed an appeal before the Commissioner, Varanasi Division, Varanasi which was allowed on 22.4.1969. A revision was preferred before the Board of Revenue challenging the order of the Additional Commissioner which was allowed on 4.5.1972. A writ petition No. 5285 of 1972-Bharat Singh v. Board of Revenue and Ors. was preferred in this Court which was allowed on 17.9.1979 and the case was remanded for a fresh decision on the ground that while allowing the appeal, the Additional Commissioner placed reliance on a Single Judge decision reported in 1970 AWR 516 which stood overruled by a Division Bench decision, State of UP. v. Pyare Lal reported in 1972 AWR 548. The order of remand passed by this Court in writ petition dated 17.9.1979 is annexed as Annexure-3. Subsequently, the Board of Revenue set aside the order of the Additional Commissioner passed in appeal dated 22.4.1969 and restored the order of the Sub Divisional Officer dated 6.8.1968 holding that the cancellation of lease though claimed after expiry of a period of three years, the Sub Divisional Officer was fully entitled to exercise his powers and cancel the lease suo moto, therefore, the question of limitation raised by the petitioner was not accepted by the Board of Revenue.

The argument advanced on behalf of the petitioner is that the order of the Sub Divisional Officer dated 6.8.1968 as well as the judgment of Board of Revenue dated 21.8.1984 are manifestly erroneous for the reason that the allotment of the land can be made in favour of any person u/s 198(d) of the Act as stood in the year 1963 and since no application was made by any aggrieved person challenging the order of allotment passed by the Land Management Committee within the prescribed period of limitation, the allotment could not be cancelled by means of the impugned orders. It is also submitted that the contesting respondents can not categorize themselves within the definition of ''aggrieved person'' within the meaning of Section 198 of the Act, rather they denied the title of Gaonsabha and set up a title of their own. The order of cancellation passed on the basis of the said application is apparently illegal and without jurisdiction. The Sub Divisional Officer did not initiate the proceeding suo moto nor any ground has been disclosed for taking such an action and, therefore, the order passed by him can not be allowed to stand. It is further argued that according to the own finding, the Sub Divisional Officer, the burden was wrongly shifted on the petitioner whereas it was the duty of the contesting respondents to prove the so called illegality or irregularity, if any, in the allotment proceedings and, therefore, the findings are perverse and against the material on record. The Board of Revenue could not reverse the findings recorded by the Additional Commissioner u/s 333 of the Act. In exercise of jurisdiction u/s 333, the Board of Revenue could not enter into question of finding of fact.

I have heard the learned Counsel for the petitioner at length, perused the impugned judgments and gone through the entire writ petition. On perusal of the judgment of the learned Sub Divisional Officer, it is apparent that four issues were framed. Issue Nos. 1 and 2 were regarding the validity of the lease deed and also its procedure adopted while execution of the disputed Patta. Issue No. 3 relates to the period of limitation and issue No. 4 whether the Sub Divisional Officer had the jurisdiction to try the case. Oral evidence of prosecution witnesses No. 1 to 4 was considered at length as well as the witnesses produced on behalf of Gaonsabha, DW-2 and DW-3 were examined on behalf of the contesting respondents. It is correct to say that the period of limitation at the relevant time was six months but the Sub Divisional Officer could very well exercise suo moto powers while cancelling the lease at any point of time. Assuming the proceeding was initiated at the instance of the contesting respondents, it can not be denied that the Sub Divisional Officer was made aware about the illegal allotment in an absolutely irregular manner without completing the formalities of proclamation etc. required under the law. The Sub Divisional Officer was well within his right to cancel the Patta when it came to his knowledge that the Land Management Committee had made the allotment against the specific provisions of law. The order dated 6.8.1968 clearly mentions that the Sub Divisional Officer has exercised his right of cancelling the Patta suo moto as there was no order on record to show that any token of permission was obtained by the Land Management Committee before the execution of the lease. Besides, the proclamation as required under the Rules was not made. Since the petitioner claimed that the allotment was appropriate and in accordance with law, it was the duty o the petitioner (allotee) to have established by means of documentary evidence that the prescribed procedure was followed before making the allotment and handing over the possession. The order of S.D.O. is quite vocal that the provisions of Rule 173 of U.P.Z.A. & L.R. Act have been violated. There was no prior information to the members of the Gaonsabha and there is no documentary evidence to establish that the minutes of meeting and receipt of Nazrana was ever paid by lease holder. The courts below have recorded a finding that the resolution for granting the lease was not genuine and no meeting was ever held for grant of Patta. All these findings by the S.D.O. was set aside in appeal without giving any reasons to do so. The petitioner contested the proceedings before the S.D.O. and adduced evidence, therefore it can not be said that the lease was cancelled without any notice. The requirement of notice is only for the purpose that once lease is granted in favour of a person, it may not be cancelled behind his back. Learned Counsel for the petitioner has placed reliance on a decision of this Court, Ram Char an Lal v. Board of Revenue 1984 R.D. 169.

I have perused the said judgment. This Court observed that:

Under suo motu powers the trial court could proceed against the petitioners and in that circumstance it was expected of the trial court to apprise the petitioners to proceed against them under its suo motu powers. The record of the case does not indicate that the trial conn gave any notice to the petitioners to proceed under its suo motu powers against the petitioner. In this connection, the learned Counsel for the petitioners invited my attention to the ruling reported in B.N. Roy v. State of Bihar (2). The learned Counsel for the contesting respondent has submitted in reply that in view of the ruling reported in Rama Kant Singh v. Dy. Dir. of Consolidation, U.P. and Ors. (3), the impugned orders cannot he interfered with on the ground that no notice was given to the petitioners for the exercise of suo motu power against the petitioners. The relevant observation Made in the ruling emphasized by the learned Counsel for the respondent is to the following effect in paragraph 16 of the reported filling:

...In such a case even if he does no pointedly bring it to the notice of the parties that he proposes to exercise his suo motu power nor does he in his order speak about it, the order will not be vitiated for it is settled law that if power to act is there, the action will not be invalid simply because the relevant provision of law conferring power is not quoted.

In the instant case, the facts are altogether different. The petitioner was aware regarding the proceeding of cancellation before the S.D.O. He also contested the matter and, therefore, mere formality of issuing notice can not give a cause of grievance to the petitioner. On the contrary, perusal of the judgment of the appellate court by the Additional Commissioner allowing the appeal, on the face of it appears to be passed cursorily. The revisional court was well within its right to restore the order of,the S.D.O. which is a well discussed and reasoned order. It is wrong to say that he has entered in the realm of reappraisal of evidence and has tried to interfere with the findings of fact. The submission by the learned Counsel to this effect is not acceptable.

Learned Counsel for the petitioner has cited two decisions on this question namely Kashi Nath and others Vs. Board of Revenue, Allahabad and others, where the scope of Section 333 of the Act has been discussed. The other decision is Karan Singh and Ors. v. Board of Revenue and Ors. 1985 ALJ 149.

I have considered all the judgments and arguments of the learned Counsel for the petitioner and do not agree that the judgment and order of the revisional court amount to an order exercising excessive jurisdiction and illegal.

It is also argued by the counsel for the petitioner that the courts below had no jurisdiction specially since the right of the petitioner has been recognized by the consolidation court and, therefore, the proceedings were completely barred by Section 5 and 49 of the U.P. Consolidation of Holdings Act.

I am not in agreement with this objection since the proceeding initiated was one u/s 198(2) of U.P.Z.A.&L.R. Act which can only be looked into by the Assistant Collector Incharge of the Sub Division and no other court. The consolidation court recognized the Sirdari right of the petitioner on the basis of the lease executed in favour of the petitioner whereas the Patta itself has been held to be void ab-initio. The finding of the court below is that the lease in question was executed without observing the mandatory provisions and procedure. The allegations raised by the contesting respondents were liable to be rebutted by the concerned Pradhan which was not done and, therefore, I do not find any error in the judgment of the courts below. Before I part with the judgment, it is also to be noticed that the learned Sub Divisional Officer had made an observation that the petitioner was not a landless person and he possessed 15-16 bighas land, therefore, he was not entitled to the benefit extended in favour of the petitioner and was rightly cancelled.

For the reasons discussed above, the impugned judgments are absolutely legal. The findings arrived at by the S.D.O. can not be interfered in exercise of extra-ordinary jurisdiction of the Constitution. The judgment of the appellate court is without any reason and also the findings arrived at by the S.D.O. have not been set aside. The Board of Revenue has rightly restored the order of the S.D.O. In the facts and circumstances. I come to a conclusion that the writ petition lacks merit and is accordingly dismissed. There shall be no order as to costs.