Smt. Raj Bala vs State Of U.P. And Others
2011 Latest Caselaw 2361 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

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Court No. - 33
 

 
Case :- WRIT - C No. - 35092 of 2011
 

 
Petitioner :- Smt. Raj Bala
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Ved Prakash Mishra
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Satya Poot Mehrotra,J.

    On oral prayer made by Shri Ved Prakash Mishra, learned counsel for the petitioner, he is permitted to correct the description of the respondent no.2 in the array of parties in the Writ Petition as well as in the Stay Application.

    He is further permitted to implead the Additional Commissioner (Judicial), Moradabad Division, Moradabad as party -respondent no.6 in the Writ Petition as well as in the Stay Application.

    The present Writ Petition has been filed, inter-alia, praying for quashing the order dated 25th May, 2011 (Annexure 4 to the Writ Petition) passed by the Additional Commissioner (Judicial), Moradabad Division, Moradabad.

    It appears that an application was filed by the respondent no.5 along with two others under Section 198 (4) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the Act"), inter-alia, praying that the allotment of land made in favour of the petitioner and others be cancelled as the petitioner and the said persons were not eligible for the said allotment.

    The Collector / District Magistrate, Jyotiba Phule Nagar, by the order darted 18-04-2011 (Annexure 2 to the Writ Petition) held that the respondent no.5 herein and two others, who had filed the said application under Section 198(4) of the Act did not fall in the category of "person aggrieved", therefore, the application at their instance, was not maintainable. However, in view of the report dated 21-1-2011 submitted by the Tehsildar, Hasanpur, the Collector on his own motion took cognizance of the matter and directed for the registration of the case.

    The petitioner herein along with others filed Revision under Section 333 of the Act being Revision No. 85 of 2010-11. The Additional Commissioner (Judicial), Moradabad Division, Moradabad by the order dated 25-05-2011 dismissed the said Revision and upheld the said order dated 18-4-2011 passed by the Collector / District Magistrate, Jyotiba Phule Nagar. The Additional Commissioner (Judicial), Moradabad Division, Moradabad held that the Revision was directed against an interlocutory order merely directing for registration of the case, and such Revision was not maintainable.

    The petitioner has, thereupon, filed the present Writ Petition seeking reliefs as mentioned above.

    I have heard Shri Ved Prakash Mishra, learned counsel for the petitioner, and perused the record.

    It is submitted by Shri Ved Prakash Mishra, learned counsel for the petitioner that the order dated 25-5-2011 passed by the Additional Commissioner (Judicial), Moradabad Division, Moradabad is illegal.

    Having considered the submission made by Shri Ved Prakash Mishra, learned counsel for the petitioner, I find himself unable to accept the same. The order dated 18-4-2011 passed by the Collector/ District Magistrate, Jyotiba Phule Nagar while holding that the respondent no.5 and two others, who had filed the said application under Section 198 (4) of the Act, did not fall in the category of "person aggrieved", took cognizance of the matter on his own motion. No adjudication on the merits of the controversy was as yet done by the Collector/ District Magistrate, Jyotiba Phule Nagar in the said order dated 18-4-2011. Section 198 of the Act provides as under :

    "198. Order of preference in admitting persons to land under Sections 195 and 197 .- (1) In the admission of persons to land as [bhumidhar with non-transferable rights] or asami under Section 195 or Section 197 (hereinafter in this section referred to as allotment of land) the Land Management Committee shall subject to any order made by a Court under Section 178 observe the following order of preference :

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    (2) [*****].

    Provided that where List Two or List Three contains names of more than one person or List One contains names of more than two persons the persons in whose favour the allotment is to be made on each successive occasion shall be chosen by lot.

    (3) [The land that may be allotted under sub-section (1) shall not exceed :

    (i) in the case of a person falling under Clause (c) such areas together with the land held by him as bhumidhar or asami immediately before the allotment would aggregate to 1.26 hectares (3.125 acres);

    (ii) in any other case, an area of 1.26 hectares (3.125 acres).

  (4) The [Collector] may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any.

    (5) No order for cancellation of an allotment or lease shall be made under Sub-section (4), unless a notice to show cause is served on the person in whose favour the allotment or lease was made or on his legal representatives :

    Provided that no such notice shall be necessary in proceedings for the cancellation of any allotment or lease where such proceedings were pending before the Collector or any other court or authority on August 18, 1980.

    (6) Every notice to show cause mentioned in Sub-section (5) may be issued :

    (a) in the case of an allotment of land made before November 10, 1980 (hereinafter referred to as the said date, before the expiry of a period of [seven years] from the said date ; and

    (b) in the case of an allotment of land made on or after the said date, before the expiry of a period of [five years from the date of such allotment or lease or up to November 10, 1987, whichever be later.]

    (7) Where the allotment or lease of any land is cancelled under Sub-section (4), the following consequences shall ensue, namely :

    (a) the right, title and interest of the allottee or lessee or any other person claiming through him in such land shall cease and the land shall revert to the Gaon Sabha;

    (b) the Collector may direct delivery of possession of such land forthwith to the Gaon Sabha after ejectment of every person holding or retaining possession thereof and may for that purpose use or cause to be used such force as may be necessary.

    [(8) Every order made by the Collector under Sub-section (4) shall subject to the provisions of Section 333, be final.

    (9) Where any person has been admitted to any land specified in Section 132 as a sirdar or bhumidhar with non-transferable rights at any time before the said date and such admission was made with the previous approval of the Assistant Collector in charge of the sub-division in respect of the permissible area mentioned in Sub-section (3), then notwithstanding anything contained in other provisions of this Act or in the terms and conditions of the allotment or lease under which such person was admitted to that land, the following consequences, shall, with effect from the said date ensue, namely:

    (a) the allottee or lessee shall be deemed to be an asami of such land and shall be deemed to be holding the same from year to year, and the allotment or lease of the land to the extent mentioned above shall not be deemed to be irregular for the purposes of sub-section (4);

    (b) the proceedings, if any, pending on the said date before the Collector or any other court or authority for the cancellation of the allotment of lease of such land, shall abate]."

    From the perusal of the Section 198(4) of the Act, it is evident that the Collector "may" on his own motion and "shall" on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any. Thus, under sub-section (4) of Section 198 of the Act, it is open to the Collector to take cognizance of the matter relating to the allotment of land of his own motion. Therefore, no illegality was committed by the Collector/ District Magistrate, Jyotiba Phule Nagar in passing the order dated 18-04-2011 taking cognizance of the matter relating to allotment of land in favour of the petitioner and others of his own motion.

    As regards the order dated 25-5-2011, it is evident that the Revision filed by the petitioner and others was directed against an interlocutory order, whereby no adjudication on the merits of the controversy involved in the matter was done. The Additional Commissioner (Judicial), Moradabad Division, Moradabad thus, rightly dismissed the Revision on the ground that the same was directed against an interlocutory order directing for registration of the case.

    In view of the above, the Writ Petition lacks merits, and the same is liable to be dismissed.

    The Writ Petition is accordingly dismissed.

Order Date :- 28.6.2011

AK