Rais Ahmad vs Board Of Revenue At Allahabad And ...
2014 Latest Caselaw 3680 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					                                                               Reserved
 
								                                 AFR
 
Case :- WRIT - B No. - 11447 of 1998
 

 
Petitioner :- Rais Ahmad
 
Respondent :- Board Of Revenue U.P. At Allahabad  & Others
 
Counsel for Petitioner :- Ravi Prakash Srivastava, Manish Singh, Pradeep Chandra, Y.S. Saxena
 
Counsel for Respondent :- S.C.
 

 
Hon'ble Ram Surat Ram (Maurya),J. 

1. Heard Sri Manish Singh, for the petitioner and Sri Rajesh Kumar, Brief Holder, for Sate of U.P., for the respondents.

2. This writ petition has been filed for quashing the orders of Board of Revenue U.P. dated 26.08.1996, accepting reference and allowing revision of the petitioner and remanding the case to Sub-Divisional Officer to decide afresh after giving opportunity of hearing to the petitioner and 02.05.1997, rejecting the review application of the petitioner and order of Sub-Divisional Officer dated 25.02.2006, holding term of 'asami patta' of the petitioner has expired and the property was vested in State of U.P. and Gaon Sabha, under the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act).

3. Chairman, Land Management Committee, for Rural Area of village Puranpur, tahsil Puranpur, district Pilibhit granted a patta dated 05.07.1977 of plot 789 (area 1.05 acre) and 810-M (area 2.00 acre) of rural area of village Puranpur, tahsil Puranpur, district Pilibhit, conferring asami right, on the yearly rent of Rs. 25/-. Both these plots were land of pond and recorded as such in the revenue record.

4. Tahsildar submitted two separate reports dated 25.06.1989 and 27.06.1989, stating therein that the petitioner was not paying rent of the patta as such patta be cancelled. Both the reports were accepted by Sub-Divisional Officer, by separate orders dated 30.06.1989 and 01.07.1989 respectively. The petitioner filed two revisions (registered as Revision No. 142/43/142 of 1991 and Revision No. 245/224/135 of 1989) from the aforesaid orders. Both the revisions were consolidated and heard by Commissioner, who by order dated 29.04.1993 held that order of Sub-Divisional Officer was passed without giving any opportunity of hearing to the petitioner. Same order has been passed again which shows non-application of mind. Sub-Divisional Officer has no jurisdiction to cancel the patta. On these findings reference was submitted to Board of Revenue U.P. for allowing the revisions. Board of Revenue U.P. by the impugned order dated 26.08.1996, accepted reference and allowed revisions of the petitioner and remanded the case to Sub-Divisional Officer to decide the case afresh after giving opportunity of hearing to the petitioner. The petitioner filed a review application, which was rejected by Board of Revenue U.P. by order dated 02.05.1997. Hence this writ petition has been filed. This Court by interim order dated 18.02.1999 stayed dispossession of the petitioner from the land in dispute.

5. As the order of remand was not stayed as such Sub-Divisional Officer by subsequent order dated 25.02.2006, held that terms of 'asami patta' of the petitioner has expired and the property was vested in State of U.P. and Gaon Sabha. This order has been challenged by amending the writ petition.

6. The counsel for the petitioner submitted that Rule 176-A of U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the Rules) does not confer jurisdiction upon Sub-Divisional Officer to cancel the patta. Under the law, lease is neither determined automatically nor right of lessee is extinguished automatically. Section 198 (4) provides specific provision for cancellation of lease and jurisdiction has been conferred upon the Collector, who is a 'persona designata' as held by this Court in Shiv Lal Vs. Board of Revenue U.P., 1985 ACJ 190. As the Collector has exclusive jurisdiction for cancellation of lease as such remand of the case to Sub-Divisional Officer was illegal and order of Sub-Divisional Officer dated 25.02.2006 is without jurisdiction and null and void. Section 198 (6) (a) prescribes period of limitation as 7 years from 10.11.1980, which is applicable in the present case. In this case, report has been submitted on 25.06.1989 although period of limitation for cancellation of lease has already expired as such no proceeding for cancellation of lease can be initiated as held by this Court in Suresh Giri Vs. Board of Revenue U.P., 2010 (2) ADJ 514, Writ-B No. 29005 of 1994 Sripat Ram Vs. Board of Revenue U.P., decided on 12.07.2010, Writ-C No. 44917 of 1999 Krishan Pal Vs. The Commissioner, decided on 17.02.2011, Writ-C No. 44937 of 1999 Ram Prakash Vs. The Commissioner, decided on 25.02.2011 and Writ-B No. 51591 of 2013 Ram Pal Vs. State of U.P., decided on 12.05.2014. Cancellation of lease causes civil consequences as such opportunity of hearing was required to be given before passing the impugned order as held by this Court in Sri Kant Vs. State of U.P., 2004 ACJ 1902. The petitioner was granted 'asami' right 'year to year basis' according to the provisions of Section 197 of the Act as such period of limitation of 5 years will not apply in the case of the petitioner. In any case, notice determining the lease is necessary under Section 106 of Transfer of Property Act, 1882. Otherwise also under Section 198 (5) of the Act, no order for cancellation of lease can be passed without issue of show cause notice. Where statute provides procedure for discharging acts then the act has to be discharged according to the procedure and not at all, as held by this Court in Sunil Kumar Vs. State of U.P., 2004 (1) AWC 664 (DB). Impugned orders are liable to be set aside and entire proceeding be dropped.

7. I have considered the arguments of counsel for the parties and examined the record. Admittedly the land in dispute were land of pond as such in view of Section 132 of the Act, no other right except 'asami' right, can be conferred over the land in dispute. Section 197 of the Act authorizes Land Management Committee to admit any person as 'asami' with previous approval of Assistant Collector, incahrge of sub-division over the land as mentioned under Section 132 of the Act. Section 197 (2) provides that right to admit any person as 'asami' of any tank, pond or other land covered by water shall be regulated by the rules made under the Act. Rule 176-A (1) Proviso provides that no lease shall be made to an 'asami' for a period exceeding five years. Rule 176-A (2) confers jurisdiction upon Sub-Divisional Officer for determination of asami lease. Section 198 (4) confers jurisdiction upon the Collector for cancellation of lease in case, he is satisfied that allotment was irregular. Both these provisions operates in different situations and there is no conflict between Section 198 (4) of the Act and Rule 176-A (2) of the Rules, under which Sub-Divisional Officer has been conferred jurisdiction to determine asami lease as held by this Court in Hari Ram Vs. Collector, Saharanpur, 2004 (97) RD 360. Thus the order passed by Sub-Divisional Officer holding term of the lease of the petitioner has already expired is within the scope of Rule 176-A (2) of the Rules and is not without jurisdiction.

8. Mode of determination of lease has not been given under the Act or Rules. Section 111 of Transfer of Property Act, 1882 prescribed various mode for determination of lease. Under Section 111 (a) lease is determined by efflux of time limited therein. Under Proviso of Rule 176-A (1), maximum period of 'asami' lease is five years. In this case, period of lease has not been mentioned in the patta dated 05.07.1977 as such maximum period of five years will be applicable as held by this Court in Ram Naresh Vs. State of U.P., 2012 (116) RD 99, that 'asami' lease not for specific period can be treated as a lease year to year for maximum period of five years. After expiry of five years, the lease of the petitioner is determined by efflux of time. Supreme Court in Ganga Dutt Murarka Vs. Kartik Chandra Das, AIR 1961 SC 1067, held that in case, lease is determine by efflux of time, further notice under Section 106 of determination of lease is not necessary. Seven Hon'ble Judges of Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745, held that it was plain and clear that if the lease of the immovable property did not stand determined under any of the clauses (a) to (g) of Section 111, a notice to determine it under Section 106 was necessary. Similar view was taken in Nopany Investment (P) Ltd. Vs. Santosh Singh, AIR 2008 SC 673.

9. In Hari Ram Vs. Collector, Saharanpur, 2004 (97) RD 360, this Court held that right of an 'asami' in determined under Rule 176-A of the Rules and after determination of the lease there is no necessity of filing suit for ejectment of 'asami' and possession from an 'asami' can be taken by Land Management Committee from the commencement of next agricultural year. Same view has been taken in Sri Kant Vs. State of U.P., 2004 ACJ 1902. However in these cases, His Lordship has held that a notice is required to be given by Assistant Collector for determination of lease under Rule 176-A (2). Rule 176-A does not contemplate for issue of the notice for determination of the lease. If the lease is determined during validity of the period of lease, then in view of provisions of Section 106 of Transfer of Property Act, 1882, notice would be necessary. However, when the lease has already determined by efflux of time, then no notice is necessary as held in various judgment of Supreme Court. Judgments of this Court in this respect is held as per-incurium. This Court in Chhotti Vs. State of U.P., 2010 (109) RD 240, held that after expiry of maximum period of five years under Rule 176-A(1) Proviso, no right left in lessee. In Ashok Kumar Vs. State of U.P., 2011 (113) RD 823, this Court held that when statute itself determines the lease due to efflux of time, no fresh determination is required. In this case, lease is determined by efflux of time as such it was not necessary for Sub-Divisional Officer to pass any separate order determining the lease of the petitioner under Rule 176-A (2) of the Rules.

10. The arguments that the order has been passed in violation of principles of natural justice is not accepted. Board of Revenue U.P. it its order dated 26.08.1996, while remanding the matter to Sub-Divisional Officer fixed 14.11.1996 for appearance of the petitioner before him. Thus the petitioner was given opportunity of hearing but he voluntarily did not appear before Sub-Divisional Officer as such he cannot be permitted to say that opportunity of hearing was not provided.

11. This Court while exercising writ jurisdiction cannot interfere with the order of subordinate authority only on the ground of violation of principles of natural justice unless miscarriage of justice is shown. As held above, term of lease of the petitioner has already expired and no right left with the petitioner to remain in possession over the land in dispute as such there is no miscarriage of justice. Supreme Court in Sohan Lal Gupta Vs. Asha Devi Gupta, (2003) 7 SCC 492 held that principles of natural justice is not a straight jacket formula. The person complaining violation of principles of natural justice must show resultant prejudice caused to him. In Ashok Kumar Sonkar v. Union of India, (2007) 4 SCC 54, it has held that however, it is well settled that it cannot put any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise.

12. In Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 216, it has been held that the two rules of natural justice, namely, nemo judex in causa sua, and audi alteram partem now have a definite meaning and connotation in law and their contents and implications are well understood and firmly established; they are nonetheless non-statutory. The court has to determine whether the observance of the principles of natural justice was necessary for a just decision in the facts of the particular case. There may be cases where on admitted and undisputed facts, only one conclusion is possible. In such an eventuality, the application of the principles of natural justice would be a futile exercise and an empty formality.

13. Supreme Court again in P.D. Dinakaran (1) v. Judges Inquiry Committee, (2011) 8 SCC 380, held that natural justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens. Rules of natural justice are "basic values" which a man has cherished throughout the ages. Principles of natural justice control all actions of public authorities by applying rules relating to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice. Rules of natural justice are indeed great assurances of justice and fairness. The underlying object of the rules of natural justice is to ensure fundamental liberties and rights of subjects. They thus serve public interest. The golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice.

The traditional English Law recognised the following two principles of natural justice:

"(a) Nemo debet esse judex in propria causa: No man shall be a judge in his own cause, or no man can act as both at the one and the same time--a party or a suitor and also as a Judge, or the deciding authority must be impartial and without bias; and

(b) Audi alteram partem: Hear the other side, or both the sides must be heard, or no man should be condemned unheard, or that there must be fairness on the part of the deciding authority."

However, over the years, the courts throughout the world have discovered new facets of the rules of natural justice and applied them to judicial, quasi-judicial and even administrative actions/decisions. At the same time, the courts have repeatedly emphasised that the rules of natural justice are flexible and their application depends upon the facts of a given case and the statutory provisions applicable, if any, nature of the right which may be affected and the consequences which may follow due to violation of the rules of natural justice.

14. In view of the aforesaid discussions, I do not find any illegality in the impugned orders of Board of Revenue U.P. Sub-Divisional Officer and no interference is required in this Court. The writ petition has no merit and is dismissed.

Order Date :- 28.7.2014

Jaideep/-