HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Civil Misc.Writ Petition No.37991 of 2011 Bhai Lal Versus The Addl.Commissioner (Admn.)and others Hon'ble A.P.Sahi,J.
Heard Sri Ramendra Asthana learned counsel for the petitioner and the learned standing counsel for the respondent nos.1 and 2.
The facts giving rise to this petition are that the petitioner is a complainant and an objector apart from the Land Management Committee of the Gaon Sabha, in a matter relating to grant of housing leases to the respondent nos. 3 to 11 under the provisions of Section 122-C of the U.P.Z.A.& L.R. Act. The lease was granted ,and after the grant of the lease, subsequently, the succeeding Land Management Committee and the petitioner, along with two others, filed an application before the Collector for cancellation of the lease. The lease was cancelled on 21.7.2008. The contesting respondents filed a revision before the learned Additional Commissioner. The same was pending and they also filed a writ petition before this Court which was disposed of on 9.9.2008 directing the learned Additional Commissioner to dispose of the same in accordance with law. The revision was allowed on 26.10.2010. The Land Management Committee and the State both filed an application for review of the order which was rejected on 19.5.2011.
The petitioner who was a complainant in the proceedings has come up before this Court assailing the said remand order mainly on the ground that the revision filed by the respondents before the learned Additional Commissioner was not maintainable under the provisions aforesaid namely Section 122-C of the U.P.Z.A. & L.R. Act. Reliance has been placed by Sri Ramendra Asthana learned counsel for the petitioner on the decision of this Court in the case of Smt. Sumratiya Vs. Commissioner, Moradabad Division Moradabad reported in 1996 RD 163 and the decision in the case of Rajeshwar Upadhyay Vs. State of U.P. Reported in 2005(98) RD 768.
Learned Standing counsel on the other hand has opposed this prayer and contends that the revision was very much maintainable in view of the provisions aforesaid and he has relied on two decisions namely Smt. Bhoo Devi Vs. Board of Revenue reported in 1994 RD 92 and the case of Janab Vs. State of U.P. Reported in 2001 (92) 533. He submits that the reliance placed by the petitioner in the case of Rajeshwar Upadhyay (supra) cannot be countenanced as it being a later decision of the year 2005, does not take notice of either of these decisions. In the case of Smt. Sumratiya the court had only made observations in para 10 that the revision would not be maintainable under Section 333 of the U.P.Z.A. & L.R.Act but did not finally lay down the law. Learned standing counsel therefore submits that the law having been correctly explained in the case of Janab (supra),the same deserves to be followed holding that the revision is maintainable.
Sri Asthana learned counsel for the petitioner then proceeded to address the Court on merits and urged that even on merits the impugned order is unsustainable as the allottees were not entitled for any allotment under the relevant category as defined. He therefore submits that even on merits the respondents have no case and the revising authority had no valid reason for remanding the matter.
Having considered the aforesaid submissions the order of remand on merit does not call for any interference inasmuch the revising authority has recorded that the evidence that was on record has not been appreciated in correct perspective and even otherwise the appreciation over looks material aspects of the matter while cancelling the lease of the respondents. The remand order therefore on merits rightly requires the authority below to proceed to decide the matter again after giving opportunity to the parties concerned.
Coming to the main contention raised by the learned counsel for the petitioner on the issue of the maintainability of the revision the decision in the case of Smt.Bhoo Devi (supra) after appreciating the relevant provisions came to the conclusion that if the proceedings arise out of an administrative order, then the revision may not maintainable, but where a judicial exercise has been under taken for cancellation then the same does not take away the power of the revising authority merely because the order has been made final. This view of the learned Single Judge has been distinguished in para 10 of Smt. Sumratiya's case (supra) as follows:
"10. A perusal of the provisions contained in Section 122-C(7) of the U.P. Zamindari Abolition and Land Reforms Act, and the provisions contained in Section 333-A of the said Act clearly indicate that keeping in view the rule of harmonious construction the second part of Section 122-C(7) of the Act providing that the provisions of Section 333 and 333-A of the Act shall not apply in relation to the order passed by the Collector under sub-section (6) of Section 122-C of the Act, inform and substance operates as a proviso or exception to Section 333 and 333-A of the Act and has to be treated as such an exception or proviso to the aforesaid sections and tacked with them as such. The second part of Section 122-C(7) of the Act indicated above appears to have been totally overlooked in the decision in the case of Bhoodevi (supra)."
A perusal of the aforesaid indicates that the learned Single Judge in the case of Sumratiya (supra) was of the opinion that the second part of Section 122-C(7) appears to have been over looked while deciding Bhoodevi's case. The learned Single Judge therefore instead of referring the matter decided the dispute therein on the presumption that even if the revision lay, the petitioner has no case and it will be a futile exercise to remit the case before the Commissioner.
In order to sort out the said controversy both these judgments came up for consideration before this Court in the case of Janab (supra). The learned Single Judge discussing the aforesaid two decisions relied on another Division Bench Judgment in the case of K.Devi Vs. Board of Revenue reported in 1972 RD 228 to construe the provisions of sub section 7 of Section 122-C as not taking away the power of revision. The conclusion drawn by the learned Single Judge in Paras 5 to 7 of Janab's case is quoted herein below:
5."A bare perusal of the aforesaid provisions will make it clear that under sub-clause (4) of Section 122-C , the Assistant Collector has been entrusted with the powers which are administrative in nature and it cannot be said that he acts as a Court while exercising that power. It is this exercise which has been referred under sub-clause (7) of Section 122-C of the Act, to be final subject to the provisions of sub-clause (6). So far the exercise of powers by the Collector under clause (6) of Section 122-C is concerned, it relates to the cancellation of the allotment after giving opportunity to the parties to the proceedings and thus the powers being exercised in this regard, being as judicial one, it will certainly come within the fore-corner of the powers as are conferred on the revisional authority under Section 333 of the Act. The finality attached to the order passed by the Collector under sub-clause (4) of Section 122-C, in any opinion in no way restricts the revisional powers of the additional Commissioner/Board of Revenue under the Act. The power of the revisional court which has been given under the Act having not been specifically taken away, it cannot be said that there is intention of legislature to provide two contradictory procedures for exercising the powers by the revisional authority.
6.This view clearly finds support from the decision as has been reported in Smt. K. Devi V. Board of Revenue, in which the Division Bench of this Court has held, while dealing with the provisions of Section 115-N(3) that the decision of the Assistant Collector shall be final and in that context, the Division Bench has held that such finality does not restrict the revisional jurisdiction conferred upon the higher Courts. Besides the aforesaid decision, yet in another case decided by this Court as reported in Smt. Bhoodevi V. Board of Revenue, similar view has been taken that there is no encroachment on the powers of the revisional authority to examine the propriety, legality and otherwise in respect to any order passed by the Courts below.
7.In may view, as the powers conferred under Section 333 of the Act is very wide the revision will lies against an order passed by the Collector exercising the powers under Section 122-C(6) of the Act."
The decision in the case of Rameshwar Upadhyay (supra) which is of the year 2005 did not take notice of any of these decisions and only made observations in para 10 that since the order passed under sub section 6 of Section 122-C is final as per sub section 8 then the revision will not lie. In my opinion, the decision in the case of Rameshwar Upadhyay (supra) does not expound the law after dealing the relevant provisions and the judgments already existing as in the case of Janab (supra). The distinction which has been pointed in paras 5 to 7 of Janab's case was also not considered in the judgment of the learned Single Judge in the case of Smt. Sumratiya.
In my considered view the opinion explained in the case of Janab (supra) is the correct position of law and the same having taken notice of all earlier judgments and reliance placed the Division Bench judgment for interpretation, gives a more sound reasoning acceptable in law. Even otherwise on public policy the provisions of a revision given to a higher authority under the U.P.Z.A. & L.R. Act without there being any amendment in Section 333 will not take away the power of the revision. The litigant also would benefit with a forum to be availed of before the revenue authorities themselves.
In the instant case a judicial verdict was given for cancellation of a Patta vide order dated 21.7.2008 on contest. It was not an administrative order therefore the revision was very much maintainable and available to the contesting respondents.
Accordingly this contention on behalf of the petitioner also cannot be sustained. The writ petition is therefore dismissed with a direction that the matter be disposed of expeditiously within six months.
26.7.2011 mna