Bholanath v. State of U.P & Ors.

Judgment

1. Heard Sri Krishan Ji Khare, learned counsel for the petitioner, Sri Anil Kumar Sharma, learned Senior Counsel assisted by Sri Pramod Dwivedi, learned counsel for respondents no.13 & 14, Sri Anurag Prasad Shukla, learned counsel for respondent no.15 as well as Sri B. Malik, learned counsel for respondents no.6, 7, 10 & 11.

2. This writ petition is directed against the order of Additional District Magistrate, Karwi, Chitrakoot, respondent no. 3 dated 25.04.1990 passed under Section 198(4) of U.P.Z.A. and L.R. Act, 1950 (hereinafter called as 'the Act of 1950') cancelling allotment of land made in favour of petitioner, and the order dated 29.02.1996 passed by Board of Revenue in Reference No. 75 of 1992-93 as well as the orders passed by Board of Revenue on 05.05.2006 and 19.09.2012 on the restoration application of petitioner.

3. Facts in brief as disclosed in the petition, are that petitioner was allotted land in respect of Plot No. 883 measuring 14 biswa, Plot No. 899/1 measuring 6 biswa, Plot No. 901 measuring 8 biswa, Plot No. 918 measuring 18 biswa, Plot No. 1014 measuring 1 bigha 10 biswa, Plot No. 1020 measuring 5 biswa, Plot No. 1071/1 measuring 16 biswa and Plot No. 1081 measuring 10 biswa situated at Gram Panchayat- Sesasubkara, Post- Mau, Tehsil- Mau, District- Banda (now Chitrakoot) by land management committee vide resolution dated 19.03.1988, which was approved by Sub-divisional Officer, Mau on 08.06.1988. [2] WRIT - C No. - 68354 of 2012

4. At the time of allotment of land, petitioner having his own land measuring 2 bigha 2 biswa at Gram Panchayat- Sesasubkara and 7 bigha 17 biswa 17 biswa at Gram Panchayat- Tilauli. At that relevant point of time, land measuring 20 bigha 6 biswa was recorded in the name of Chandrapal, father of petitioner at Gram Panchayat- Sesasubkara. Thus, total land which was recorded in the name of petitioner at Gram Panchayat- Sesasubkara and Tilauli was 9 bigha and 19 biswa.

5. An application under Section 198(4) of the Act of 1950 was moved by one Ganesh Prasad before respondent no. 3, Additional District Magistrate, Karwi, District- Banda which was registered as Case No. 251 of 1988 for the cancellation of the lease granted in favour of petitioner. On

19.06.1989, petitioner filed objections. A report was submitted by Lekhpal on 23.08.1988. Thereafter, on 01.09.1988 Tehsildar, Mau submitted a report presuming the share 6 bigha 13 biswa of the petitioner in the land recorded in name of Chandrapal, his father. Acting on the said report, respondent no. 3 cancelled the land allotted to petitioner taking into account that total area of land held by petitioner was in excess vide order dated 25.04.1990.

6. According to petitioner, his father Chandrapal had died on

08.11.1988 that is after allotment of the land in favour of petitioner and the share of 6 bigha cannot be added while considering the allotment made in his favour. Against the order of respondent no. 3, petitioner preferred a revision before Additional Commissioner, Jhansi which was registered as Revision No. 104/81 of 1990. Vide order dated 03.10.1991, Additional Commissioner referred the matter to Board of Revenue with recommendation that the order of respondent no. 3 dated 25.04.1990 be set aside. However, vide order dated 29.02.1996, Board of Revenue dismissed the revision and upheld the order passed by respondent no. 3 on the ground that father of petitioner had predeceased the allotment made in favour of petitioner and as such the land which fell into the share of [3] WRIT - C No. - 68354 of 2012 petitioner was included which exceeded the limit prescribed for allotment and the allotment was rightly set aside. A recall application was preferred by petitioner before Board of Revenue which was rejected and thereafter a restoration application was also filed which has been rejected. Hence, the writ petition.

Sri Krishan Ji Khare, learned counsel for petitioner has raised a preliminary objection for the first time before this Court that Additional District Magistrate, Karwi, Chitrakoot did not have the jurisdiction to entertain the complaint made by private person, Ganesh Prasad (since deceased), as there was no delegation of power and the application was to be dealt with by Collector under Section 198(4) of the Act of 1950. Reliance has been placed upon Full Bench decision of this Court in case of Brahm Singh vs. Board of Revenue, U.P. at Allahabad, 2008 (105) RD 1.

8. He then contended that respondent no. 3 as well as Board of Revenue failed to record any finding as to date of death of Chandrapal, father of petitioner who is alleged to have predeceased the allotment made in favour of petitioner, and the share of land which fell upon the petitioner along with land held by him exceeded the prescribed limit and thus, the allotment was against the provisions of the Act. According to him, finding as to the date of death was necessary as according to petitioner Chandrapal had died on 08.11.1988 that is after the resolution was passed by Committee of Management on 19.03.1988 and approval being granted by Sub-divisional Officer on 08.06.1988.

9. Opposing the writ petition, Sri Anil Kumar Sharma, learned Senior counsel appearing for respondent nos. 13 and 14 submitted that the respondent no. 3 had rightly arrived at the finding on the basis of the report of Tehsildar that the share of land which petitioner had, after the death of his father bestowed upon him and adding with the land already held by him, respondent no. 3 found it to be in excess of the limit [4] WRIT - C No. - 68354 of 2012 prescribed, as such, the cancellation order as well as the order of Board of Revenue does not vitiate. He then contended that objection which was filed against the application for cancellation, the petitioner had not specifically denied the averments made in the application for cancellation and the pleadings are vague and not specific. He has relied upon the decision of Apex Court in case of Shri D.M. Deshpane and others vs. Shri Janardhan Kashinath Kadam, JT 1998 (8) SC 39 Para 9, Bondar Singh and others vs. Nihal Singh and others, AIR 2003 SC 1905 Para 7 and Regional Manager, S.B.I. vs. Rakesh Kumar Tewari, AIR 2006 SC 839 Para 14.

10. Sri B. Malik learned counsel appearing for respondent nos. 6, 7, 10 and 11 submitted that Section 198(3) of the Act of 1950 provides that the land may be allotted under sub-section (1) but it shall not exceed in any case, an area of 1.26 hectare (3.125 acres). According to him, the aggregate of the land allotted along with the land originally held by petitioner exceeded the said area. He then contended that the Kutumb Register was not filed before respondent no. 3 showing the date of death of Chandrapal as 08.11.1988 and it was for the first time in the restoration proceedings on 28.06.2011 before Board of Revenue that the petitioner had come up with a case that his father died on 08.11.1988 and filed the copy of Kutumb Register. According to him, Chandrapal died some times in the year 1986 prior to the land allotted in favour of the petitioner. He next contended that the power was delegated by Collector, Banda on

23.08.1983 in regard to revenue cases of Karwi sub-division to the court of Additional Collector and invited the attention of the Court to the supplementary affidavit filed by him dated 04.10.2021 wherein Annexure No. SA-4 is the order of Collector, Banda delegating the power for instituting the case in the court of Additional Collector. Through the said supplementary affidavit, the contesting respondent has brought on record the order passed by the Collector, Chitrakoot passed in Case No. 5 of 2011 under Section 198(4) of the Act of 1950 which was filed by [5] WRIT - C No. - 68354 of 2012 petitioner against Shanti Devi and others, the subsequent allottees of the land whereby their allotment was cancelled by Collector on 02.04.2012. Similarly, order of Collector, Chitrakoot in Case No. 43 of 2009-2010 passed under Section 198(4) of the Act of 1950, between Purushottam and Ashok Kumar has been brought on record whereby the Collector has cancelled the allotment made vide order dated 30.05.2011. Apart from this , nothing more has been added by counsel appearing for the respondents.

11. Learned Standing Counsel while opposing the writ petition has reiterated the contents of counter affidavit and invited the attention of the Court to Para 10 of counter affidavit filed on 04.03.2014 wherein it has been mentioned that in pursuance of order of Collector, Banda dated

23.08.1983, Additional Collector has exercised the power with regard to cancellation of lease. Apart from the said fact, the State has not brought on record the order of delegation of power by Collector in favour of Additional Collector.

12. I have heard learned counsel for the parties and perused the material on record.

13. From the pleadings and arguments made on behalf of parties, this Court finds that following questions emerges for consideration :-

1. Whether the Collector, Banda by his order dated

23.08.1983 had delegated the power to Additional Collector to decide the revenue cases of Mau sub- division along with Karwi sub-division, and the Additional Collector being empowered to exercise the jurisdiction as held in case of Brahm Singh (supra) ?

2. Whether the Additional District Magistrate/ respondent no. 3 and Board of Revenue while cancelling the lease of petitioner recorded any finding as to the date of death of Chandrapal, father of petitioner before [6] WRIT - C No. - 68354 of 2012 presuming share 6 bigha 13 biswa of petitioner in the land which was earlier recorded in the name of Chandrapal ?

3. Whether petitioner had made specific pleading in regard to death of his father before allotment was made, in his objection filed before respondent no. 3, if yes, then effect. Question No. 1

14. This question regarding maintainability of application under Section 198(4) of the Act of 1950 for the first time was raised by petitioner before this Court, and not before respondent no. 3 or the Board of Revenue. As it is a legal question, the same can be heard and considered in proceedings under Section 226 of Constitution of India.

15. As there were conflicting decisions of the Division Bench in regard to exercising of power of Collector by Additional Collector under Section 198(4) of the Act of 1950, the matter was referred to Full Bench in case of Brahm Singh (supra).

16. The Full Bench found that power of delegation was there and the Collector may direct the Additional Collector to exercise such powers which are exercised by Collector, and thus, the Additional Collector can exercise power under Section 198(4) of the Act of 1950 where there was delegation by Collector himself.

17. In the present case, it has been vehemently argued by Sri B. Malik and learned Standing Counsel that Collector on 23.08.1983 had delegated the power to Additional Commissioner and the cases which were to be instituted for the first time in the court of Collector were to be instituted at Karwi in the court of Additional Collector. The order of Collector, Banda dated 23.08.1983 is extracted hereasunder:- [7] WRIT - C No. - 68354 of 2012 Office of the Collector, Banda. Dated: Aug. 23, 1983 Order

1. All   the   Revenue   Cases   of   Karwi   sub­ division   being   instituted   at   Banda   in   my court,   need   not   be   instituted   there.   They may   be   instituted   in   the   first   instance itself   at   Karwi   in   the   court   of   the   Addl. Collector there. This order would govern the cases which 2. are   instituted   for   the   first   time   in   the court of the Collector or those coming after revision or appeal. (D.D. Lal) I.A.S., Collector, Banda. Copy forwarded for information and necessary action to:­ 1. Sri Shankar Agrawal, Addl. Collector, Banda. 2. President, District Bar Association, Banda. 3. President, Bar Association, Karwi. 4. Judicial Asstt., Collectorate, Banda. (D.D. Lal) I.A.S., Collector, Banda.

18. From the perusal of order of Collector, Banda, it is clear that delegation was in respect of revenue cases of Karwi sub-division which were being instituted at Banda in the court of Collector were now to be instituted for the first time before court of Additional Collector.

19. In the present case, the controversy is in regard to land which was allotted to petitioner in Gram Panchayat- Sesasubkara, Post- Mau, Tehsil- Mau which comes under sub-division/tehsil- Mau. Thus, this Court finds from the order of delegation of 1983 that only matters of Karwi sub- division were delegated to be instituted in the court of Additional Collector at first instance, and not for sub-division, Mau. Question Nos. 2 and 3 [8] WRIT - C No. - 68354 of 2012

20. As both question nos. 2 and 3 are inter-related, they are being considered and dealt with together. In the present case, the entire controversy hinges around the fact that the land management committee had passed a resolution on 19.03.1988 for allotting the land in favour of petitioner. The resolution was accorded approval by Sub-divisional Officer, Mau on 08.06.1988, while according to petitioner his father died on 08.11.1988 that is after the date of allotment of the land in question.

21. As the total land held by petitioner prior to allotment was to the tune of 2 bigha 2 biswa at village- Sesasubkara and 7 bigha 7 biswa at Tilauli, thus, the land held by his father cannot be added to hold that at the time of allotment the land exceeded the limit of 3.125 acres i.e 1.26 hectare.

22. Sri Anil Kumar Sharma, learned Senior counsel appearing for the some of respondents had vehemently opposed on the ground that there was no specific pleading that land was allotted prior to the death of Chandrapal, has no ground to stand, as in para 13 of the objection filed to the cancellation application it has been specifically stated that petitioner was living separately from his father at the time of allotment of the land and the petitioner along with his two brothers were entitled to the share of their father.

23. Thus, it is wrong to say that there was no specific pleading as to the land being allotted during the lifetime of Chandrapal in favour of petitioner. In fact, both respondent no. 3 as well as Board of Revenue recorded specific finding to the effect that 6 bigha 13 biswa fell into the share of petitioner after death of Chandrapal and thus the total land after allotment exceeded the prescribed limit. Both, respondent no. 3 and Board of Revenue proceeded to cancel the allotment made in favour of petitioner on the said premise without recording any finding as to the date of death of Chandrapal, father of petitioner.

24. Both the authorities below were bound to record the finding as to [9] WRIT - C No. - 68354 of 2012 the date of death of Late Chandrapal as it goes to the root of the matter. In case, courts found that the date of death was subsequent to the date of allotment, thus, there was no ground for interference in the allotment order. However, in case the courts below had recorded finding that Chandrapal had predeceased the allotment, the allotment order would have no legs to stand and no interference of this Court was required but this Court finds that most crucial aspect of the matter was not looked upon by both courts while cancelling the allotment and subsequently confirming the finding by Board of Revenue. From the order passed by both respondent no. 3 and Board of Revenue, this Court finds that the matter has been dealt with in a slipshod manner and before proceeding to cancel the allotment, no finding has been recorded as to the date of death of Chandrapal.

25. Considering the facts and circumstances of the case, this Court finds that orders impugned dated 25.04.1990, 29.02.1996, 05.05.2006 and

19.09.2012 are unsustainable in the eyes of law and, thus, are hereby set aside.

26. The matter is remitted back to Board of Revenue to return its finding on the following:- a. Firstly, on the question whether the Additional Collector exercising power of Collector was also empowered/delegated to consider the revenue matter of Mau sub-division in addition to the revenue matters of Karwi sub-division though not specifically provided in the order of delegation dated 23.08.1983. b. Record finding as to whether Late Chandrapal, father of petitioner died before 08.06.1988 i.e. the date of approval to the resolution for allotting the land in favour of petitioner or subsequent to the date of approval. [10] WRIT - C No. - 68354 of 2012

27. The Board of Revenue after hearing the parties shall return the finding within four months from the date of production of copy of this order, downloaded from the website of this Court.

28. Thus, writ petition succeeds and is partly allowed. Order Date :- 21.01.2022 V.S.Singh