Munshi vs State Of U.P. & Others
2012 Latest Caselaw 4641 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Court No. - 6
 

 
Case :- WRIT - B No. - 29571 of 2004
 

 
Petitioner :- Munshi
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- D.S. Verma,Kanvar Ajay Singh
 
Respondent Counsel :- C.S.C.,R.G. Prasad,R.G.Prasad,V.K. Singh
 

 
Hon'ble Ran Vijai Singh,J.

Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the impugned order dated 31.5.2001 passed by the Board of Revenue in Revision No. 91 of 1998-99 (Sita Ram vs. L.M.C).

I have heard Sri K.A. Singh, learned counsel for the petitioner, learned Standing Counsel and Sri R.G. Prasad, learned counsel for the contesting respondent no. 6.

Facts in short giving rise to the present writ petition are that a lease was granted in favour of the petitioner qua on 30.4.1991. The said lease was approved by the Sub-Divisional Officer, Tehsil Sirathoo, District Kaushambi. It appears that aggrieved by the aforesaid allotment, the respondent no. 6 has filed an application for cancellation of lease under Section 198 (4) of U.P. Zamindari Abolition and Land Reforms Act, 1950. This application was numbered as Case No. 10 of 1996 (Sita Ram vs. Munshi and others) The said application was rejected on 27.2.1997 by the District Magistrate, Allahabad holding it is not maintainable as the respondent no. 6 was not aggrieved person.

Not being satisfied, the respondent no. 6 filed a Revision No. 322 of 1997-98 ((Sita Ram vs. Land Management Committee and others) before the Commissioner, Allahabad Division, Allahabad which was also dismissed by the learned Commissioner on 09.02.1999.

Aggrieved by the order dated 09.02.1999, the respondent no. 6 filed a revision on 24.5.1999 before the Board of Revenue which was numbered as Revision No. 91 of 1998-99. The Board of Revenue after hearing both the parties has held that the respondent no. 6 will fall in the zone of aggrieved person and both the courts below have erred in rejecting the application of respondent no. 6 holding it is not maintainable, while holding so the learned Member has also set aside the allotment made in favour of the petitioner.

Learned counsel for the petitioner contends that the order impugned is faulty for the following reasons:

(i) Because the revision before the Board was not maintainable as it would amount the second revision in view of the U.P. Act No. 20 of 1997.

(ii) The Member, Board of Revenue has erred in cancelling the allotment made in favour of the petitioner as that was not the subject matter before him and the controversy before him was limited only to the extent as to whether the respondent no. 6 was aggrieved person or not and in case he was of the opinion that the opposite party no. 6 was an aggrieved person then natural corollary was to remit the matter before the Collector for deciding the application field by the respondent no. 6 under section 198 (4) of the Act.

Refuting the submission, learned counsel for the petitioner, Sri R.G. Prasad, learned counsel appearing for the respondent no. 6 has submitted that the allotment was made totally in disregard to the procedure given under the Act and in derogation of the preferential category as given under Section 198 of the Act. He has also submitted that a suit for declaration has already been filed which is pending therefore no infirmity can be attached with the order impugned in the writ petition.

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

After hearing counsel for the parties, I find that in this case two questions need to be considered.

(i) As to whether the revision filed by the respondent no. 6 was a second revision and was not maintainable in view of U.P. Act No. 20 of 1997.

(ii) As to whether the Member, Board of Revenue was competent to cancel the allotment made in favour of the petitioner particularly in the circumstances when limited controversy was pending before him with regard to the maintainability of the application, who according to the court below was not an aggrieved person.

Point no. 1:- For appreciating this point, the provisions contained under section 219, which is relevant section for filing revision under U.P. Land Revenue Act, 1901 as it stood before or later to the U.P. Act No. 20 of 1997 would be necessary to be looked into, therefore the same are being reproduced hereinunder:

Unamended Provision

219. Revision Before the Board.- The Board may call for the record of any case decided by any subordinate court, and if the subordinate court appears-

(a) to have exercised a jurisdiction not vested in it in law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of jurisdiction illegally or with material irregularity,

the Broad may pass such order as it thinks fit."

Amended Provision

219. Revision.- (1) The Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, may call for the record of any case decided or proceeding held by any revenue Court subordinate to him in which no appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of the order passed or proceeding held and if such subordinate revenue Court appears to have -

(a) exercised a jurisdiction not vested in it by law, or

(b) failed to exercise a jurisdiction so vested, or

(c) acted in the exercise of jurisdiction illegally or with material irregularity, the Board of the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, as the case may be, pass such order in the case as he thinks fit.

(2) If an application under this section has been moved by any person either to the Board, or to the Commissioner, or to the Additional Commissioner, or the Collector or to the Record Officer or to the Settlement Officer, no further application by the same person shall be entertained by any other of them.

From the perusal of the amended provision, as exists today, it transpires that the revision would lie against an order where no appeal lies or if the appeal lies, the same has not been availed, whereas in the unamended provision, there is no such restriction.

It appears, earlier in the absence of such provision, the revision was entertained even against an appellate order, but in view of the amendment, it has been made specific that revision would lie where there is no remedy of appeal or if there is a remedy of appeal then the same has not been availed.

Sub-section 2 of Section 219 of the amended provision put an embargo saying that if an application under this Section has been moved by any reason either to the Board, or to the Commissioner, or to the Additional Commissioner, or to the Collector, or to the Record Officer or to the Settlement Officer, no further application by the same person shall be entertained by any other of them. The language used in sub-section 2 is unambiguous and clear. According to which once the remedy of revision has been availed before either of the Court/authority as mentioned in sub-section 2, no further application would be entertained by anyone of them on instance of the same person. Here in the case in hand, the respondent no. 6 has filed Revision No. 322 of 1997-98 ((Sita Ram vs. Land Management Committee and others) before the Commissioner, Allahabad Division, Allahabad which was dismissed on 9.2.1999 and thereafter he has filed the revision before the Board of Revenue which was numbered as 91 of 1998-99 and allowed by the Board of Revenue. Apparently, this revision was filed against an order passed by the Commissioner in the revision in the year 1999 filed under section 219. The section was amended though the U.P. Act No. 20 of 1997. Therefore, on the date, when the revision was filed before Board of Revenue against the revisional order by the same person, in view of sub-section 2 of section 219, the same was not maintainable. Therefore, the impugned order passed by the Board of Revenue is without jurisdiction.

Point No. 2:- Though I have already held that the order passed by the learned Member of Board of Revenue is without jurisdiction but assuming for a moment that it was within his competence to maintain the revision and decide the same, even then learned Member has erred in cancelling the lease without assigning any reason. So far as the view taken by the learned Member of Board of Revenue that the respondent no. 6 is an aggrieved person is concerned, controversy in this regard is no more res integra as the Apex Court as well as this Court in a catena of decisions, while considering as to who could be said to be the "person aggrieved", held that although the meaning of expression "person aggrieved" may vary according to the context of the Statute and facts of the case nevertheless normally, a person aggrieved must be a man who has suffered a legal grievance; a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused something, or wrongfully affected his title to someone.

In M.S. Jayaraj Vs. Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552, the Supreme Court considered the matter at length and placing reliance upon a large number of its earlier judgments including the Chairman, Railway Board & Ors., Vs. Chandrima Das (Mrs.) & Ors., AIR 2000 SC 988; held that the Court must examine the issue of locus standi from all angles and the petitioner should be asked to disclose as what is the legal injury suffered by him.

The term "person aggrieved" was also considered and defined in Re: Sidebotham, (1880) 14 Ch. D. 458, wherein it has been observed as under :-

"The words ''person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something."

In K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi & Ors., AIR 1974 SC 2177, the Supreme Court examined the case of a resident of a locality where a cinema hall was to be constructed contrary to the Building Town Planning Scheme. The resident was held to be entitled to maintain writ on the ground that the residential area would stand spoiled by the construction in violation of the statutory provisions and the municipal authorities owed a public duty and an obligation under the Statute not to allow the construction of a cinema hall in a residential area. The Supreme Court observed as under:-

"... The question whether an individual who is one of a class for whose benefit such an obligation is imposed can or cannot enforce performance by an action must depend on the purview of the legislature in the particular statute. Injury may be caused either by the fulfillment of the duty cast by statute or by failure to carry it out or by negligence in its performance.

In order to succeed in an action for damages for breach of statutory duty the plaintiff must establish a breach of a statutory obligation which, on the proper construction of the statute was intended to be a ground of civil liability to a class of persons of whom he is one. He must establish an injury or damage of a kind against which the statute was designed to give protection."

In The Nagar Rice and Flour Mills & Ors., Vs. N. Teekappa Gowda & Bros. & Ors., AIR 1971 SC 246, the Supreme Court rejected the claim of an existing Mill owner that in case any other Mill is shifted to the locality wherein his Mill is situated, he would be adversely affected, therefore, has a locus standi to maintain the suit/writ. The Supreme Court held that the right to carry on business being fundamental right guaranteed under Article 19 (1) (g) of the Constitution, its exercise is subject to reasonable restrictions imposed by the law in the interest of general public under Article 19 (6) (i) of the Constitution.

The "person aggrieved" means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. "Person aggrieved" means a person who is injured or he is adversely affected in a legal sense. (Vide K.N. Lakshminarasimaiah Vs. Secretary, Mysore S.T.A.T., (1966) 2 Mys. L.J. 199).

Whether a person is injured in strict legal sense, must be determined by the nature of the injury considering the facts and circumstances involving in each case. A fanciful or sentimental grievance may not be sufficient to confer a standi to sue upon the individual. There must be injuria or a legal grievance, as the law can appreciate and not a stat pro ratione valuntas reasons.

In Messrs. Swami Motor Transport (Private) Ltd. Vs. Messrs. Raman & Raman (Private) Ltd. & Ors., AIR 1961 Mad. 180, a Full Bench of Madras High Court, while considering the provisions of Madras Motor Vehicles Act, considered the issue and approved the law laid down in The King Vs. Richmond Confirming Authority, (1921) 1 KB 248; and The King Vs. Groom & Ors., 1901 (2) KB 157, and laid down the principle as under:-

"The true principle is to determine whether the applicant has an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered."

This Court in the case of Kalka Prasad and others vs. Board of Revenue and others reported in 2008 (10) ADJ 409 has taken the view that the land which is not vacant cannot be subject matter of lease unless the unauthorised occupant is evicted and if lease has been granted the person occupying the land unauthorisedly cannot be thrown except in accordance with the procedure contained under Section 122-B of the U.P.Z.A & L.R. Act.

Here, in this case the respondent no. 6 has come up with the case that on the land in dispute a number of trees are standing which have been planted by him, therefore, he has sufficient interest in the matter and will fall in the ambit of aggrieved person. Therefore, the District Magistrate as well as learned Commissioner while treating the respondent no. 6 as not aggrieved person, has erred in law and view taken by the learned Member of Board of Revenue is justified to that extent.

So far as remaining part of the order cancelling the lease of the petitioner is concerned to that extent the order appears to be cryptic for appreciation. The operative portion of the order is reproduced here-in-under:

As a matter of fact the person was aggrieved and had every locus standi to move the application for cancellation of the lease. In the circumstances of the present case the courts below have wrongly rejected the application filed by the Sita Ram.

In view of the above, revision is allowed; the orders of courts below are set aside and the allotment made in favour of Munshi is cancelled.

From perusal of the operative portion of the order, it is apparent that the allotment has been cancelled treating a person to be aggrieved which only gives right to contest the matter and not confer any right to cancel the lease merely a person is aggrieved without assigning any reason for cancelling the allotment. The order impugned is apparently cryptic and reasonless.

The Apex Court in the case of Sant Lal Gupta and others vs. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336 has observed as under:

"27...The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reason renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. [Vide; State of Orissa v. Dhaniram Luhar AIR 2004 SC 1794; State of Rajasthan vs. Sohan Lal & Ors. (2004) 5 SCC 573; Vishnu Dev Sharma v. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. v Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. v. Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal v. State of Haryana & Ors. (2009) 3 SCC 258; State of Himachal Pradesh v. Sada Ram & Anr. (2009) 4 SCC 422; and The Secretary & Curator, Victoria Memorial Hall vs. Howrah Ganatantrik Nagrik Samity & Ors., AIR 2010 SC 1285.

In view of the law laid down by the Apex Court since the order cancelling the allotment do not contain any reason. Therefore, the same cannot be maintained and liable to be quashed.

In view of the above discussions, the impugned order dated 31.5.2000 passed by Board of Revenue is hereby quashed, so far it relates to the cancelling of the allotment of the petitioner. However since I have taken the view that the learned Member of Board of Revenue was right in treating the respondent no. 6 as an aggrieved person and earlier two orders passed by the Additional Commissioner in Revision No. 322 of 1997 dated 9.2.1999 and order dated 21.2.1997 passed by the District Magistrate in Case No. 10 of 1996 since have held that the respondent no. 6 is not an aggrieved person and declined to entertain the application for cancelling the lease contrary to the provisions of law as observed hereinabove. Therefore, the same are also quashed and the matter is remitted back before the District Magistrate to decide the application of respondent no. 6 treating him to be an aggrieved person in accordance with law after giving fullest opportunity of hearing to the petitioner.

The writ petition is partly allowed.

Order Date :- 23.3.2012

Puspendra