Kamlapati vs State of U.P.

N. S. Ravi, Member.

This is a revision preferred against the judgment and order dated 1161987 passed by Additional Commissioner, Lalitpur under Section 198(4) of the U.P.Z.A. and L.R. Act. By this order the learned Additional Collector presuming that the land in dispute was a Patta land allotted under Section 195 of U.P.Z.A. and L.R. Rules to the revisionists fathers has cancelled the same on the ground that at the time of the so called allotment the allottees Dharam Dass and Kamlapati were not eligible for allotment as they were having more than 12.5 acres of land each.

From the perusal of the impugned order it is also clear that the proceedings before the lower Court were initiated suo moto.

The contention of the revisionists is that the land in dispute was not a Gaon Sabha land and was never allotted to Dharam Dass and Kamlapati. On the contrary, the fact is that Dharam Dass and Kamlapati were recorded as sirdars prior to 1360 Fasli and in due course of time they were declared as bhumidhar of the same by order of Assistant Collector, First Class Mahrauni, subdivision in Suit No. 319/8586 under Section 229B of the U.P.Z.A. and L.R. Act vide order dated 27121986. It is also the contention of the revisionists that the learned lower Court did not consider this fact despite the clear objections raised by Dharam Dass and Kamlapati. It is also their contention that there is no record with the concerned Lekhpal or the Land Management Committee which can prove that the land in dispute was ever allotted on Patta to the revisionist''s fathers and the learned lower Court has committed an error of law by holding that the revisionists have failed to prove that the land in dispute was not allotted to them on patta, as this was the duty of the Gaon Sabha or the State to prove this fact and not of the revisionists.

On 1892003 while this case was argued before this Court, an order was passed to the effect that the revisionists should file a legible certified copy of the order dated 27121986 and also relevant proof to show that this order has become final and no proceedings whatsoever is pending before any Court of law. This was also directed that the revisionists should clarify as to why they did not produce the order dated 27121986 before the learned lower Court. The case was fixed for 25112003 but mean while an application was moved on 2992003 requesting the Court that the case be decided earlier because both the parties have submitted their arguments. On this request this case was fixed for 8102003.

The revisionists have filed an affidavit alongwith an application wherein it has been stated that the order dated 27121986 has got finality as no revision or appeal has been filed against that order in any Court of law. It was also stated that even before the learned lower Court this fact was clearly brought to its notice alongwith the copy of the order dated 27121986. So there is no need to call for the record of the suit under Section 229B of the U.P.Z.A. and L.R. Act pertaining to the order dated 27121986.

I have heard the learned Counsel for the revisionists and learned D.G.C. (Revenue).

The learned D.G.C. (Revenue) admits that except this question of fact no other question of law or fact is involved in the case. From the perusal of the certified copy of the order dated 27121986 it is amply clear that the land in dispute was recorded in the name of the original revisionists prior to 1360 Fasli. The learned S.D.O. has also held that the statement of the Gaon Sabha and the State that the land in dispute was recorded as nontransferable bhumidhari from 1367 Fasli is contrary to the land records and consequently the S.D.O. has declared the revisionists as bhumidhar of the said land. Even the learned Additional Collector in para 2 of his order has noted this objection by the revisionists.

It is stange that the learned lower Court has tried to consider the rights of the revisionists under Section 198 of U.P.Z.A. and L.R. Act which were never claimed by them. In the absence of any legal document or proceedings it cannot be presumed that the land was ever allotted to the revisionists. It is not for the so called allottees to produce any document to show that the land was allotted to them specially when they were not claiming any interest under Section 198 of U.P.Z.A. and L.R. Act. It was the duty of the State or Gaon Sabha to prove that the land in dispute was allotted to the revisionists per the provisions of law. Where rights have been conferred on a person as per provisions of law, the same could not be taken away in any summary proceedings. The Gaon Sabha ought to have taken appropriate action against the order dated 27121986 which it has failed.

The learned Counsel for the revisionists has also raised the issue of limitation for taking action under Section 198(4) of the U.P.Z.A. and L.R. Act. Section 198(4) of U.P.Z.A. and L.R. Act provides that the show cause notice can be issued within five years from the date of allotment and not beyond. It is another matter that the action may be initiated on the basis of a complaint or even suomoto. In the instant case even if for the sake of argument it is presumed that the land was allotted in 1367 Fasli, action cannot be taken now after lapse of so much time.

In the result, revision succeeds and the same is allowed. The impugned order dated 1161987 passed by Additional Collector is set aside.

Revision allowed.