State Of Uttarakhand And Others vs M/s Nature Quest (India) Pvt. Ltd

Sharad Kumar Sharma, J

A very interesting issue, which emerges for consideration before this Court in the present Writ Petition, after hearing the learned counsel for the parties, it emanates from a challenge which has been given by the learned Standing Counsel to the order dated 8th May, 2009, as passed by the Additional Chief Revenue Commissioner, while exercising its powers under Section 333 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the Act"), which was admittedly, preferred against an order dated 29th May, 2000, which was passed by the Assistant Collector, while exercising its power under 166/167 of the Act in Case No. 5/98-99, State and others Vs. M/s Nature Quest (India) Pvt. Ltd..

Instead of going into the factual controversy and backdrop under which, the controversy has arisen, the basic question, which was being argued by the learned counsel for the petitioners, was to the effect that the very Revision, preferred by the respondent being aggrieved against the order passed by the Assistant Collector on 29th May, 2000, would not be tenable on the ground that as against the order passed under Sections 166/167 of the Act, there is a another statutory remedy, which has been provided under Schedule II of the Act which has been framed by the Legislature as against any action taken under Section 167 of the Act, the proceedings have to be drawn before the Assistant Collector and, thereafter, as against the order of Assistant Collector in the proceedings under Section 166/167, the remedy is of preferring of an Appeal before the Commissioner and, consequently, the Second Appeal before the Board of Revenue. Schedule II Column 15 reads as under :-

Serial No.

Section

Description of proceedings

Court of original jurisdiction

First appeal

Second appeal

1

15

2

167 read with 201 or 202 (a)

3

Suit for the ejectment of a transferee of a [Bhumidhar with nontransferable rights] or asami.

4

Assistant Collector 1stClass.

5

Do

6

do

While on the other hand, the learned counsel for the respondent submits that the implication of Schedule II, in the present set of case will not come into consideration for the reason being that in pursuance to the impugned order, passed by the Assistant Collector on 29th May, 2000, in Case No. 5 of 1998-99, State Vs. Nature Quest (India) Pvt. Ltd., it was not falling to be within the ambit of the scope of interference provided under Section 167 of the Act. In order to attract Schedule II, Entry 15 of the Act, it contemplates an action by preferring of a proceeding before the Commissioner subject to the condition that as a consequence of the action being taken under Section 167 of the Act, it results into an ejectment of transferee of bhumidhari rights with non transferable rights or as an Assami.

In support of his contention, the learned counsel for the respondent has referred to a judgment of Division Bench of Allahabad High Court as reported in [2002 (93) R.D. 761], Indrapal and another Vs. Up-Ziladhikari (Sub-Divisional Officer) Chhibramau, District Farrukhabad. Particularly, a reference, which has been made by the learned counsel for the respondent is to the finding, which has been recorded in para 15 of the said judgment, wherein, according to the contention, which has been extended by the learned counsel for the respondent is that any proceeding, which has been drawn under Section 167 of the Act, would not be treated as to be an appellate order in order to attract the forum as provided under Schedule II of the Act.

Whereas, on the other hand, the argument, which has been extended by the learned counsel for the petitioners is to the effect that if the implications of Section 167 of the Act is taken into consideration in its totality, more particularly, pertaining to the consequences, which would follow as a consequence of initiation of the proceedings under Section 166 to be read with Section 167 of the Act, the act of taking over of possession as the consequence of the proceedings is itself contemplated under Sub-section (b) and (c) to be read with Sub-section (2) of Section 167 of the Act. In other words, what he wants to contend is that once the proceeding has been initiated under Section 167 of the Act, it contemplates that any transfer which has been made in contravention of the provisions of the Act, would be treated to be void and consequences under Section 167 of the Act will automatically follow. Section 167 of the Act reads as under :-

"167. (1) The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely-

(a) the subject-matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;

(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances; and

(c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.

(2) Where any land or other property has vested in the State Government under sub-section (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary.]"

The proceedings, which have been contemplated under Section 331 of the Act, it provides that the transferee may remove the movable property or the material or any immovable property or malwa existing on the land on the date of transfer when it was made in violation of the provisions of the Act as provided under Section 166 of the Act. Furthermore, in view of Sub-section (2) of Section 167 of the Act, where it contemplates the vesting of a land with the State Government, in that eventuality, the Collector has been made entitled to take over the possession of such land or other properties or to direct the person occupying such land to be evicted thereupon for the purposes of taking over of the possession or eviction of the occupant of the property, which he has made subject matter of the proceedings under Section 166 of the Act to be read with Section 167 of the Act, because consequential action is provided under Section 167 of the Act. In view of the mandate of the Legislature, particularly, the provisions contained under Section 167 of the Act, it cannot be read in isolation to the Forum, which has been contemplated under Schedule II of the Act, which has been framed under Section 331 of the Act and as per its entry 15, it provides that against any order passed under Section 167 of the Act, wherein, an action for ejectment of bhumidhar with non transferable rights or an Assami from the land, in question, is directed, which is subject matter of dispute under Section 166 of the Act to be read with Section 167 of the Act, in such an eventuality, the proceedings has to be drawn before the Assistant Collector and, thereafter, anybody who is aggrieved by the order of the Assistant Collector, the remedy would be before the Commissioner by way of filing of an appeal and thereafter, the Second Appeal before the Board of Revenue under Section 331 of the Act. That is why, Schedule II of the Act itself, which contemplates the Forum for redressal of a grievance in relation to any proceedings, which are drawn under the Act as referred in Column 2 of Schedule II, would deal with the action provided under Section 3 and the Forum thereafter as contained under Column 4, 5 and 6 of Schedule II of the Act.

The contention of the learned Standing Counsel is that here in the case at hand, once as per the consequence of the action taken by the order dated 29th May, 2000 passed by the Assistant Collector, by way of Case No. 5 of 1998-99, State of U.P. Vs. M/s Nature Quest (India) Pvt. Ltd., in that eventuality, the direction, which has been issued for identification of the aforesaid property and to delete the name of one Mr. Dalbir Singh S/o Jawahar and to record the land in the name of the State Government. If there was any grievance as against the order of 29th May, 2000, by any aggrieved person whereby, the alteration was sought to be made in the revenue record by vesting the property with the State Government, in such an eventuality, the Forum available to the respondent would be by way of preferring as an Appeal under Section 331 of the Act and not by way of invoking Section 333 of the Act by preferring a Revision, as against the impugned order of the Assistant Collector dated 29th May, 2000.

The argument of the learned Senior Counsel for the respondent, which has been based upon the finding, which has been recorded by the Division Bench in the judgment reported in [2002 (93) R.D. 761], Indrapal and another Vs. Up-Ziladhikari (Sub-Divisional Officer) Chhibramau, District Farrukhabad., particularly, a reference, which has been made to para 15, which is quoted hereunder :-

"That the impugned order appears to have been passed on the basis of alleged applications made by some tenure holders, names not disclosed without any proceeding under Section 201 or Section 202A read with Section 167 of the U.P. Zamindari Abolition and Land Reforms Act, though the Case No. is mentioned as 01 of 1997 under Section 167 of U.P. Z.A.&L.R. Act. Section 167 itself is not any proceeding as mentioned in Schedule II of Section 331 of U.P. Z.A. & L.R. Act, rather Section 167 of U.P. Z.A. & L.R. Act simply provides the consequences that ensue in respect of any property by virtue of Section 166 of U.P. Zamindari Abolition and Land Reforms Act. That proceeding itself is not a suit."

According to the learned counsel for the respondent, it has been held therein that any proceeding, which has been held under Section 167 of the Act, will, in itself, not constitute to be a suit so as to attract the provisions contained under Schedule II of the Act in the absence of there being resorted to the proceedings under Sections 201 and 202-A to be read with Section 167 of the Act as contemplated in Column 2 of Entry 15 of the Act.

This Court with all humility at its command while interpreting the judgment of the Division Bench as reported in [2002 (93) R.D. 761], Indrapal and another Vs. Up-Ziladhikari (Sub-Divisional Officer) Chhibramau, District Farrukhabad, it was not a case where the proceedings, which was drawn before the Allahabad High Court was emanating after a recourse to the procedure provided under Schedule II of the Act rather, in fact, it was a case where the order passed under Section 167 of the Act itself was put to challenge before the Division Bench, wherein, an objection might have been raised that as against the order passed under Section 167 of the Act, the remedy of filing of a Writ Petition was not tenable in view of Schedule II of the Act, wherein, the Court has observed that if an order under Section 167 of the Act has been passed without disclosure of the fact complying with the provision of Section 201 and 202A to be read with Section 167 of the Act, in such an eventuality, any order passed under Section 167 of the Act, will not be treated as an order passed in a Suit and, hence, the proceedings held thereof under Section 167 of the Act to be read with Section 166 (1) (a) of the Act, that in itself will not amount to be the Suit, then Schedule II will not be attracted.

This contention is not acceptable and there is a slight distinction as is involved in the instant case because herein, it is the propriety of the report which was emanating from a report of Tehsildar dated 15.05.2000, which is in relation to the transfer of property, which was made in violation of provisions as contained under Sections 154 of the Act as per the report submitted by the Tehsildar on 15th May, 2000, he has reported before the Assistant Collect that the transfer of the land made was in violation of the provisions contained under Section 166 to be read with 167 of the Act and, hence, consequently, by exercising its powers under Sections 166 to be read with Section 167 of the Act, the Case No. 5 of 1998-99, State Vs. Nature Quest (India) Pvt. Ltd. was initiated and after hearing the parties, the Court has held that the transfer made in violation of the provisions contained under Section 154 of the Act, would be violative of Section 166 to be read with Section 167 of the Act and consequently, the property was vested with the State Government and the Tehsildar was directed to take a further course of action as provided under Section 167 (3) of the Act.

This Court is of the considered view that the order would not be revisable under Section 333 of the Act for the reason being that it is a settled law that the provision of Revision under Section 333 or under any of the statute is only available for scrutinising an order passed by the Subordinate Courts, but where in the proceedings under the Act, the statue in itself is silent with regard to providing of any appellate forum and hence, any order passed under the Act, since the person cannot be left remediless, the proceedings by way of a Revision under Section 333 of the Act or under Section 105 of the C.P.C. would be maintainable. But this exception will not apply where a proceedings held under the Act itself provides an appellate forum under the Act contained under Schedule II, which is a statutory forum created under the Act.

But since this Act being a special statute contained under the Schedule 9 of the Constitution of India, in such an eventuality, when an Act in itself which is a self contained Act and which as per the provisions contained under Section 341 has made the provisions of C.P.C. applicable over the proceedings drawn under the Act and in particular when Schedule II itself has been framed under Section 331 of the Act, it deals with the appellate provisions created under the Act itself, in such an eventuality, any person who is aggrieved by an order of vesting of land with the State under Section 166 to be read with Section 167 of the Act, he will have to have a recourse available to him by preferring of an appeal before the Commissioner against the action or order of Assistant Collector and thereafter a second appeal is provided before the Board of Revenue. Since, the judgment of the Division Bench was not emanating from any order passed by the Assistant Collector, and since it was a question of challenge given to the order under Section 167 straightway in a Writ jurisdiction under Article 226 of the Constitution of India, any finding recorded therein in para 15, on which, reliance has been placed will not be attracted because the implications which was flowing from Schedule II of the Constitution was not taken into consideration by the Division Bench of Allahabad High Court and in such an eventuality, this Court is of the view that the impugned order dated 8th May, 2009, whereby the Revision preferred by the respondent was allowed resulting into setting aside of an order of Assistant Collector dated 29th May, 2000, passed under Section 167 of the Act, the Revision was not maintainable and only the recourse available to the respondent under the Statute would have been to file an appeal before the Commissioner under Column V of Entry 15 of Schedule II of the Act.

It goes without saying that since the Revision preferred by the petitioner was well within the time against the order passed by the Assistant Collector and now since this Court has held that as per the statutes the revision was not an appropriate forum, which was available to him, it goes without saying that invoking of a wrongful forum by a litigant bonafidely to a proceeding will not deprive him of his opportunity to avail the benefit of limitation, in case, if he subsequently chooses to approach to an appropriate forum as provided under the Statute, and in such an eventuality, quite obviously, the provisions of Section 14 would always be available to the petitioner, if he files an appeal against the order passed by the Assistant Collector. The Appellate Court will liberally consider the implication of Section 5 to be read with Section 14 of the Act, while considering the respondents appeal against the order of Assistant Collector. Because as per the provision contained under Section 341, the provisions of Limitation Act has been made applicable over the proceedings under the Act.

Learned counsel for the respondent has drawn attention of this Court to the effect that the order of the revisional court, which was put to challenge by the petitioner by filing the Writ Petition before this Court was at highly belated stage and the Writ Petition itself suffers from the vices of laches and hence, it ought not to have been entertained by this Court. Apparently, the order which was put to challenge in Writ Jurisdiction by filing the same on 21.09.2016, and the Writ Petition was preferred on 21st September, 2016, questioning the order of the Board of Revenue as rendered on 05.08.2009 by filing Writ Petition only on 21.09.2016 and the question of laches as far as invocation of the jurisdiction under Article 227 for challenging the order of subordinate authority, will not be so fatal, if the question pertaining to the competence of the authority whose order is put to challenge, itself is questioned and ultimately, while applying law, it is found that the order under challenge has been passed by the authority, who was not otherwise legally entitled and legally competent to pass the revisional order, the question of laches, while giving a challenge to the order dated 8th May, 2009, may not be so fatal for filing of the Writ Petition because otherwise also the provisions of limitation is not applicable while filing a Writ Petition that too it was entertained by High Court on 22.09.2016 by issuing notices to the respondent. The learned counsel for the respondents had in support of his contention, has placed reliance on a judgment reported in 2012 (5) SCC 412, Delhi Administration and others Vs. Kaushilya Thakur and another, which has though dealt with the question of maintainability of the Writ Petition, which has been preferred at the belated stage and suffers from the vices of laches. But the said preposition, which has been laid down by the Hon'ble Apex Court was in the light of fact that the facts as involved in consideration before the Hon'ble Apex Court was where the respondents of the aforesaid judgment had sought an allotment of an accommodation by way of seeking a writ of mandamus by invoking Article 226 of the Constitution of India. In that case, it was not that any order passed by the Subordinate Court, which was being statutorily created that too under a special statute, which is a subject matter of challenge or rather it was a Writ Petition where a relief was sought with regard to the enforcement of right to be allotted of an accommodation. Hence, the said judgment will not help as its applicability in the present circumstances of the case, where an order of subordinate Authority is put to challenge by invoking the jurisdiction under Section 227 of the Constitution of India by way of seeking a writ of certiorari rather than a writ of mandamus, as it was involved in the case as cited by the learned counsel for the respondent.

Hence, in that view of the matter, without venturing into the merits of the matter with regard to the propriety of the transfer, which has been claimed to have been made in favour of the respondent, leaving it open to the respondents to have his recourse of remedy available and to be resorted to as per Schedule II of the Constitution of India, this Writ Petition is only allowed from the prospective that the Revision itself since was not maintainable against an order passed under Section 167 of the Act, as per Schedule II of the Act, the order of Revisional Court could not be sustained, hence, the same is quashed. But having said so, this will not prejudice the rights of the respondents to have his recourse available as against the order of the Assistant Collector before an appropriate forum which has been created under the provisions of Act by filing of an appeal and if he prefers an appeal within one month from the date of receipt of this judgment, the issue of limitation involved in the appeal, where the challenge is given to the order of Assistant Collector dated 29.05.2000, passed in Case No. 5 of 1998-99, State Vs. Nature Quest (India) Pvt. Ltd., the issue of limitation would be construed liberally considering the implications flowing from Section 14 of the Limitation Act.

Consequently, the Writ Petition stands allowed subject to the above observations. The impugned revisional order dated 08.05.2009 as passed by Additional Chief Revenue Commissioner in Revision No. 59 of 2002-03, Nature Quest (India) Pvt. Ltd. Vs. State and others is quashed, subject to the above liberty given to the respondents.