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JADUNATH SINGH versus BOARD OF REVENUE & OTHERS

High Court of Judicature at Allahabad

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Jadunath Singh v. Board Of Revenue & Others - WRIT - B No. 35696 of 1997 [2007] RD-AH 2614 (19 February 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

"Reserved"

Civil Misc. Writ Petition No. 35696 of 1997.

Jadunath  Singh

Versus

Board of Revenue and others

...............

Hon'ble Anjani Kumar, J.

By means of present writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 30th September, 1997, passed by the Board of revenue, whereby Board of Revenue has allowed the revision filed by the contesting respondent and set aside the orders dated 13th December, 1993 and 19th December, 1995 passed by the sub-ordinate authorities.

The brief facts of the present case are that respondent-land management committee of the village concerned has granted lease of the plot in dispute i.e. plot nos. 587 area 2 acres and 573 area 0.40 acre in favour of petitioner's mother.  The respondent no. 2, namely Sarnam Singh, who was since deceased, has now been substituted by his heir Jagat Singh, filed objection before the Collector for cancellation of the aforesaid lease granted to the petitioner's mother on the ground that the mother of the petitioner was not eligible for grant of lease in her favour as the petitioner was employed in Indian Army at the time when the lease of the land in dispute was granted to petitioner's mother.  The contesting respondent in his objection stated that he came to know on 15th December, 1988 only of the lease granted in favour of petitioner's mother when the petitioner had tried to interfere with their possession and therefore he filed the extract of Khatauni.  The Collector on receipt of the aforesaid objection referred it to the Additional Collector for decision on merits.  The Additional Collector issued notice to the petitioner as to why the lease granted in favour of his mother be not cancelled as at the time of grant of lease, neither the petitioner's mother, nor the petitioner were eligible for allotment of the land in dispute by the Gaon Sabha.  The petitioner filed reply to the aforesaid show cause notice and has taken up a plea that the objectors are not the person aggrieved within the meaning of word "person aggrieved" under Section 198 of the U.P. Zamindari Abolition and Land Reforms Act (In short 'the Act'), therefore no proceeding can be initiated on their behalf for cancellation of the lease granted in favour of petitioner's mother. It further raised a plea that the objection being barred by time as the same has been raised beyond the period prescribed for initiating the proceeding of the cancellation of the lease as contemplated under 'the Act', therefore  the application was liable to be dismissed by the Collector and

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the reference thereof to the Additional Collector by the Collector also deserves to be dismissed.  It was further contended that in any view of the matter, since the Collector has not condoned the delay in filing the objection by respondent no. 2, the lease granted in favour of petitioner's mother cannot be cancelled.  On merits also, the petitioner has filed evidence and materials that the lease was granted in accordance with law.  However, it has not been disputed by the petitioner that on the date when the lease was granted in favour of his mother, neither the petitioner' mother, nor the petitioner were eligible person for grant of lease under Section 198 of 'the Act'.  The Additional Collector vide order dated 13th December, 1993 held that the objection raised by respondent no. 2 Jagat Singh has no merit and has dismissed the same.

Aggrieved by the order dated 13th December, 1993, the contesting respondent filed revision before the Additional Commissioner (P)/revisional Court.  The Additional Commissioner vide order dated 19th December, 1995 dismissed the revision filed by the contesting respondent.  Aggrieved thereby the contesting respondent preferred revision before the Board of Revenue.  The Board of Revenue vide order impugned in this petition dated 30th September, 1997 held that the judgment and order of the Courts below, namely the order of Additional Collector and that of Additional Commissioner suffer from serious error errors of exercise of jurisdiction vested in them by law consequently  the revision filed by contesting respondent before the Board of Revenue was allowed and the orders dated 13th December, 1993 and 19th December, 1995 were set aside and the lease granted in favour of Smt. Dulari widow of Daya Ram by the Gaon Sabha has been cancelled.

Learned counsel for the petitioner argued the points, referred to above and also on merits. The Additional Collector initiated proceedings for cancellation of the lease under Section 198 of 'the Act'.  The Board of Revenue found that the contesting respondent for the first time came to know of the grant of lease in favour of petitioner's mother only when he filed the extract of Khatauni i.e. in the year 1988, thus in view of the settled principle of limitation, the limitation if any for raising the objection against the grant of lease would start run from the date of knowledge in the year 1988 and not from the date of grant of lease.  Thus, the objection raised by learned counsel for the petitioner has no merit and deserves to be dismissed.  On the question that the contesting respondent cannot be said to be person aggrieved who can initiate the proceedings for cancellation of the lease granted in favour of petitioner's mother.  The Board of Revenue  has observed that proceedings  under  Section 198 of 'the Act' can be initiated either on the complaint

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by an aggrieved person or by the Collector suo motu.  In the present case as would be clear from the facts that contesting respondent has brought the facts to the knowledge of the Collector that the lease has been granted contrary to law, therefore the members and the other residents of Gaon Sabha are entitled to say that the Gaon Sabha property is not a property for grant of illegal lease contrary to the provisions of law and public interest also requires that the Collector should exercise its power in accordance with law.  The Collector having come to know that the lessee, namely, petitioner and his mother were not eligible for grant of the said lease on the date when the lease was granted  has taken cognizance of the matter and referred the same to the Additional Collector for proceeding, namely for giving notice to the petitioner's mother.  In this view of the matter, the Collector cannot be said to have exercise the jurisdiction contrary to th provisions of law.  Learned counsel for the contesting respondent has relied upon a decision of this Court reported in 1998 RD, 800 - Phellu Vs. Board of Revenue, Allahabad and others, wherein this Court has held :-

"7. The authority exercising the power of revision under Section 333 will only examine as to whether the trial court exercised a jurisdiction which was not vested in it or failed to exercise the jurisdiction vested or acted in the exercise of jurisdiction illegally or with material irregularities.  The revising authority will not be justified in holding that the Collector had no jurisdiction vested in him to take cognizance of the matter under Section 198 (4) of the Act if it is found that the complainant had no right itself in the land in dispute though on the evidence on the record it is found that the allotment was irregular and was liable to be cancelled.  The land is vested in the Gaon Sabha by the State of Uttar Pradesh under Section 117 of the Act.  The members of the Gaon Sabha have a vested right in such land and the element of public interest is involved when such land is allotted to a person who is not entitled for such allotment.  In Brahma Singh and others v. Board of Revenue U.P., Allahabad and others (1985 RD-110) relying upon the Full Bench decision of this court in Rama Kant v. Deputy Director of Consolidation and others [1974 (Suppl.) RD-262], it was held as under :-

"Once the notice is issued to the persons concerned   and  those persons contested the case on

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merits it cannot be said that any person has been taken by surprise by the exercise of the suo moto power.  In such a case even if the Sub-Divisional Officer does not pointedly bring out to the notice of the party concerned that he proposes to exercise his suo moto powers, and that what the party concerned has to say about it, the order will not be vitiated for it is a settled law that the power to act is there."

Thus, the Board of Revenue has rejected, in my opinion, rightly this objection raised by learned counsel for the petitioner.  The Board of Revenue from the materials on record again emphasis that there is no proof on the record that any lease of the land in dispute was ever granted to the petitioner's mother in accordance with law.  Learned counsel for the petitioner argued that the Board of Revenue has erred in setting aside the order passed by the Additional Collector while appreciating the evidence on record and therefore this writ petition deserves to be allowed the matter should be remanded back to the Board of Revenue to decide afresh.  I am not in agreement with learned counsel for the petitioner on this aspect of the matter.  The Board of Revenue has categorically recorded finding that "I am of a firm view that the judgment and order of the courts below as impugned suffer from serious errors of exercise of jurisdiction vested in them by law."  Learned counsel for the petitioner has not been able to demonstrate that in any view of the matter the Board of Revenue has exercised powers of revision beyond the powers under Section 333 of 'the Act'.

In this view of the matter, I do not find any error in the orders impugned passed by authorities below and the argument advanced on behalf of the petitioner that the exercise of jurisdiction by the Additional Collector in the present case was beyond prescribed limitation is not accepted.

In view of what has been stated above, this writ petition has no force and is dismissed.  The interim order, if any, stands vacated.  However, there will be no order as to costs.

Dated:

Rks.


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