Allahabad High Court
Ram Dhani And Others vs Addl. Collector F And R And Others on 21 February, 2019
Bench: Sudhir Agarwal, Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on: 18.12.2018 Delivered on: 21.02.2019 Court No. - 34 1. Case :- WRIT - C No. - 2146 of 2012 Petitioner :- Ram Dhani And Others Respondent :- Addl. Collector F And R And Others Counsel for Petitioner :- Tarun Agrawal, Mohit Kumar Shukla Counsel for Respondent :- C.S.C.,Mahesh Narain Singh,S.C. 2. Case :- WRIT - C No. - 10531 of 2012 Petitioner :- Ramayan Prasad Respondent :- State Of U.P. And Others Counsel for Petitioner :- A.N. Pandey Counsel for Respondent :- C.S.C.,Ajeet Kumar Singh,Mahesh Naraian Singh,P.K. Srivastava,R.S. Pandey 3. Case :- WRIT - C No. - 11387 of 2012 Petitioner :- Ram Karan And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- Ashok Kumar Singh Counsel for Respondent :- C.S.C. 4. Case :- WRIT - C No. - 44202 of 2012 Petitioner :- Smt. Manbhawati Devi And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Ashwani Mishra,Sharad Shekhar Sharma Counsel for Respondent :- C.S.C. 5. Case :- WRIT - C No. - 17226 of 2014 Petitioner :- Rajendra Chamar Respondent :- State Of U.P. And 9 Ors. Counsel for Petitioner :- Suhel Ahmad Azmi,Ajay Kumar Patel Counsel for Respondent :- C.S.C.,Dinesh Kumar Dubey,R.C. Upadhyay 6. Case :- WRIT - C No. - 30504 of 2014 Petitioner :- Smt. Anita Devi And 2 Ors. Respondent :- The Collector And 3 Ors. Counsel for Petitioner :- Salma Bano,Ashok Kumar Srivastava Counsel for Respondent :- C.S.C.,R.B. Yadav Hon'ble Sudhir Agarwal,J.
Hon'ble Ram Krishna Gautam,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri Tarun Agrawal, Advocate, for the petitioners in Writ Petition No. 2146 of 2012. Other learned counsels have adopted arguments submitted by Sri Agrawal. Sri Sudhanshu Srivastava. Learned Additional Chief Standing Counsel as well as Sri Amit Saxena, learned Standing Counsel have advanced their submissions on behalf of respondents.
2. All these matters have come up before this Court pursuant to a Reference made by a learned Single Judge (Hon'ble Pankaj Mithal, J.) vide order dated 16.01.2012, passed in Writ Petition No. 2146 of 2012; Ram Dhani and others Vs. Additional Collector (F & R), Azamgarh and others for adjudication of question, which reads as under:-
"Whether order passed by Collector under Section 122-C (6) of the Act is revisable under Sections 333 or 333-A of the Act or such a revision is barred in view of Sub-section (7) of Section 122-C of the Act".
3. Since there is no factual dispute in the matter, therefore, we straightway proceed to consider relevant provisions in order to return our views on the aforesaid question.
4. Section 122-C of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the U.P. Act No. 1 of 1951) was inserted by Uttar Pradesh Land Laws (Amendment) Act, 1971 (U.P. Act No. 21 of 1971) which received Governor's assent on 22nd August, 1971 and published in U.P. Gazette (Extraordinary) dated 22nd August, 1971. Section 122-C reads as under:-
"122-C. Allotment of land for housing sites for members of Scheduled Castes, agricultural labourers, etc.-(1) The Assistant Collector In-charge of the sub-division of his own motion or on the resolution of the Land Management Committee, may earmark any of the following classes of land for the provision of abadi sites for the members of the Scheduled Castes and Scheduled Tribes and agricultural labourers and village artisans-
(a) lands referred to in clause (i) of sub-section (1) of Section 117 and vested in the Gaon Sabha under that section;
(b) lands coming into possession of the Land Management Committee under Section 194 or under any other provisions of this Act;
(c) any other land which is deemed to be or become vacant under Section 13, Section 14, Section 163, Section 186, or Section 211;
(d) where the land earmarked for the extension of abadi and reserved as abadi site for Harijans under the U.P. Consolidation of Holdings Act, 1953, is considered by him to be insufficient, and land earmarked for other public purposes under that Act is available, then any part of the land so available.
(2) Notwithstanding anything in Sections 122-A, 195, 196, 197 and 198 of this Act, or in Sections 4, 15, 16, 28-B and 34 of the United Provinces Panchayat Raj Act, 1947, the Land Management Committee may with the previous approval of the Assistant Collector in charge of the sub-division allot for purposes of building of houses, to persons referred to in sub-section(3) -
(a) any land earmarked under sub-section(1);
(b) any land earmarked for the extension of abadi sites for Harijans under the provisions of the U.P. Consolidation of Holdings Act, 1953;
(c) any abadi site referred to in clause (iv) of sub-section (1) of Section 117 and vested in the Gaon Sabha;
(d) any land acquired for the said purpose under the Land Acquisition Act, 1894.
(3) The following order of preference shall be observed in making allotments under sub-section (2)-
(i) an agricultural labourer or a village artisan residing in the village and belonging to a Scheduled Caste or Scheduled Tribe;
(ii) any other agricultural labourer or village artisan residing in the village.
(iii) any other person residing in the village and belonging to Scheduled Caste or the Scheduled Tribe.
Explanation I. - The expression "agricultural labourer" shall have the same meaning as in Section 198.
II. - The expression 'village artisan' includes a carpenter, potter, iron-smith, silversmith, goldsmith, barber, washerman or cobbler:
III. - Preference shall be given to a person who either holds no house or has insufficient housing accommodation considering the requirements of his family.
(4) If the Assistant Collector in-charge of sub-division is satisfied that the Land Management Committee has failed to discharge its duties or to preform its function under sub-section (2) or it is otherwise necessary or expedient so to do, he may himself allot such land in accordance with the provisions of sub-section (3).
(5) Any land allotted under this section shall be held by the allottee on such terms and conditions as may be prescribed.
(6) The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land under this section inquire in the manner prescribed into such allotment, and if he is satisfied that the allotment is irregular, he may cancel the allotment, and thereupon the right, title and interest of the allottee and of every other person claiming through him in the land allotted shall cease.
(7) Every order passed by the Assistant Collector under sub-section (4) shall, subject to the provisions of sub-section (6) and every order passed by the Collector under sub-section (6) shall be final, and the provisions of Section 333 shall not apply in relation thereto.
(8) The Assistant Collector in-charge of the sub-division, of his own motion or on any application made to him in that behalf may in order to carry into effect any allotment of land or other order made under sub-section (2), sub-section (4) or sub-section (6) direct delivery of possession of any such land to an allottee or to the Gaon Sabha after ejectment of every person holding or retaining possession thereof, any may for that purpose use or cause to be used such force as may be necessary."
5. Section 122-C as initially enacted talks of followings aspects:
(i) Earmarking of any of the land mentioned in Clauses (a) to (d) of sub-section (1) for the provisions of Abadi sites for the members of Scheduled Castes (hereinafter referred to as "SC"), Scheduled Tribes (hereinafter referred to as "ST"), Agriculture Labours and Village Artisans.
(ii) Aforesaid earmarking is to be done by Assistant Collector (Incharge) of Sub-Division on his own motion or on resolution of Land Management Committee (hereinafter referred to as "LMC").
(iii) LMC may with previous approval of Assistant Collector (Incharge) of Sub-Division allot land referred to in Clauses (a) to (d) of sub-section (2) of Section 122-C to persons referred to in sub-section (3) for the purpose of building of houses and these persons are;
(a) Agriculture Labours or Village Artisans residing in village and belong to SC and ST;
(b) Any other agriculture labour or Village Artisan residing in village;
(c) Any other person residing in village and belong to SC and ST.
(iv) If LMC failed to discharge its duties or perform its functions under sub-section (2) and Assistant Collector (Incharge) to Sub-Division is satisfied of such failure on the part of LMC or if he finds otherwise necessary or expedient so to do, he may himself allot land referred to in Clauses (a) to (d) of Section 122-C(2) in accordance with sub-section (3) of Section 122-C.
(v) Land allotted under Section 122-C shall be held by allottee on such terms and conditions as may be prescribed.
(vi) Collector may on his own motion and shall on the application of any person aggrieved by an allotment of land under Section 122-C enquire in the manner prescribed into such allotment and if satisfied that allotment is irregular may cancel allotment. On such cancellation, right, title and interest of allottee and of any other person claiming through him in the land allotted shall cease.
(vii) An order passed by Assistant Collector under sub-section (4), if not otherwise disturbed by Collector shall be final and provisions of Section 333 shall not apply in relation thereto.
(viii) Every order passed by Collector under sub-section (6) shall be final and Section 333 shall not apply in relation thereto.
(ix) The land so allotted, if not given in possession to allottee, Assistant Collector (Incharge) of Sub Division himself or on an application made, shall direct delivery of possession of land to allottee or to Gaon Sabha after ejectment of every person holding or retaining possession thereof. If necessary he may also use or cause to use such force as may be necessary.
(x) The allotment made by Assistant Collector or Collector, as the case may be, under Section 122-C was given finality by virtue of sub-section (7) of Section 122-C and Legislature specifically made it clear that Section 333 shall not be applicable in relation to such orders.
6. To this extent we do not find any ambiguity in Section 122-C(7) and a plain and simple reading results in above conclusion.
7. By U.P. Land Laws (Amendment) Act, 1986 published in U.P. Gazette (Extraordinary) on 4th December, 1986, Section 122-C (7) was amended and after the words and figures "Section 333", the words and figures "Section 333-A" were inserted. Simultaneously, sub-section (8) of Section 122-C was omitted. After aforesaid amendment sub-section (7) of Section 122-C reads as under:--
"(7) Every order passed by the Assistant Collector under sub-section(4) shall, subject to the provisions of sub-section(6) and every order passed by the Collector under sub-section (6) shall be final, and the provisions of Section 333 and Section 333-A shall not apply in relation thereto."
8. The above amendment did not make any material change in the position as borne out and noticed above in respect of sub-section (7) of Section 122-C except that even Section 333-A also made inapplicable to the orders declared final vide sub-section (7) of Section 122-C.
9. Section 333 as initially enacted in U.P. Act No. 1 of 1951 reads as under:-
"333. Power of Board to call for cases.- The Board may call for the record of any suit or proceeding referred to in Schedule II decided by any subordinate court in which no appeal lies or where an appeal lies but has not been preferred, and if such subordinate court appears.-
(a) to have exercised a jurisdiction not vested in it by 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 Board may pass such order in the case as he thinks fit."
10. By U.P. Act No. 37 of 1958 it was amended as under-
"333. Power of Board to call for cases.- The Board may call for the record of any suit or proceeding decided by any subordinate court in which no appeal lies or where an appeal lies but has not been preferred, and if such subordinate court appears.-
(a) to have exercised a jurisdiction not vested in it by 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 Board may pass such order in the case as he thinks fit."
11. By U.P. Act No. 20 of 1997 w.e.f. 23rd May, 1997 Section 333 was substituted, as under:-
"333. Power to call for cases.- (1) The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding decided by any 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 any order passed in such suit or proceeding, and if such subordinate 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 or the Commissioner or the Additional Commissioner, as the case may be, may 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, no further application by the same person shall be entertained by any other of them."
12. By U.P. Act No. 11 of 2002 w.e.f. 20th July, 2002 the words "other than proceeding under sub-section (4-A) of Section 198' were inserted in sub-section (1) of Section 333. Section 333 as substituted by U.P. Act No. 20 of 1997 and amended by U.P. Act No. 11 of 2002, as it stands today, reads as under:
"333. Power to call for cases.- (1) The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding other than proceeding under sub-section (4A) of section 198 decided by any 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 any order passed in such suit or proceeding, and if such subordinate 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 or the Commissioner or the Additional Commissioner, as the case may be, may 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, no further application by the same person shall be entertained by any other of them.
13. Section 333 of U.P. Act 1 of 1951 in the manner as enacted initially in 1951 or when amended in 1958 or 1997 did not contain any non-obstante clause so as to give it overriding effect on any otherwise statutory provision contained in U.P. Act 1 of 1951. It only confers supervisory power upon Board of Revenue and confers revisional power in respect of certain cases but nowhere provides that this power of Board shall also be applicable notwithstanding any provision whereunder order passed by a Revenue Court has been declared final. We have no manner of doubt that Section 333 as enacted from time to time operated in respect of such matters in which no appeal lies or when appeal lies but not preferred but did not take into its ambit even those matters where relevant provision has declared such matters final and not subject to Section 333.
14. A perusal of Section 122-C would show that basically the entire provision was enacted as a self contained Code in respect of allotment of land for housing site for members of S.C., S.T., agricultural labourers etc.; the manner and procedure of such allotment and dispute, if any, arisen due to allotment or cancellation of such allotment.
15. Sub-section (1) of Section 122-C provided that Assistant Collector in-charge of sub-division, either on his own motion or on the resolution of Land Management Committee, may earmark certain classes of land for the provision of abadi sites for members of Scheduled Caste, Scheduled Tribes, Other Backward Classes and persons of general category living below poverty line, agricultural labourers and village artisans. The classes of land which may be earmarked are:-
(i) land, whether cultivable or otherwise except lands for the time being comprised in any holding or grove and vested in Gaon Sabha. This is the kind of land referred to in Section 117 (1)(i) of U.P. Act No. 1951;
(ii) lands coming into possession of Land Management Committee under section 194 or under any other provision of U.P. Act No. 1 of 1951.
16. Land referred to in Section 194 are:-
(i) land held by a bhumidhar, and his interest in such land is extinguished under clause (a) or clause (aa) of Section 189 or clause (a), Clause (b), Clause (c) clause (cc) or clause (e) of Section 190;
(ii) land falling in any of the clause of Section 132, held by an asami and asami has been ejected or his interest therein otherwise extinguished under U.P. Act No. 1 of 1951.
17. Similarly land which is deemed to be or becomes vacant due to applicability of Sections 13, 14, 163, 186 or 211 are as under:-
"13. Estate in possession of a thekedar. - (1) Subject to the provisions of Section 12 and sub-section (2) of this section a thekedar of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate.
(2) Where any such land was in the personal cultivation of the thekedar on the date immediately preceding the date of vesting, the same shall-
(a) if it was sir or khudkasht of the lessor on the date of the grant of the theka, be deemed for purposes of Section 18, to be the sir or khudkasht of the lessor on the date immediately preceding the date of vesting and the thekedar shall, with effect from the date of vesting, become the asami thereof liable to pay rent at hereditary rates applicable on the date immediately preceding the date of vesting and entitled to hold the land as such for the unexpired period of the theka or for a period of five years from the date of vesting whichever is less;
(b) if it was not sir or khudkasht of the lessor on the date of the grant of the theka and-
(i) its area does not exceed thirty acres, be deemed for purposes of Section 19 to have been held by the thekedar as a hereditary tenant liable to pay rent which shall be equal to the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting;
(ii) its area exceeds thirty acres, be deemed to the extent of thirty acres for purposes of Section 19 to have been held as a hereditary tenant as aforesaid and the remainder shall be deemed to be vacant land and the thekedar shall be liable to ejectment therefrom in accordance with the provisions of Section 209.
(3) Notwithstanding any restriction contained in Clauses (a) and (b) of subsection (2), the Collector may, on the application of the thekedar and after such enquiry as may be prescribed, and if he is satisfied that it is in the interest of efficient and successful working of an existing agricultural farm, permit the thekedar to retain land-
(a) if it is land falling under Clause (a) of sub-section (2), for a longer period than five years; and
(b) if it is land falling under Clause (b) of the said sub-section, in excess of thirty acres :
Provided that the thekedar shall not be entitled to retain the land so allowed beyond the term of the theka, and he shall, in the case of any area in excess of thirty acres allowed to him under Clause (b), be an asami thereof on behalf of the Gaon Sabha and liable to pay rent at hereditary rate applicable on the date immediately preceding the date of vesting.
(4) To every application under sub-section (3) the lessor and the Gaon Sabha concerned shall be made parties.
14. Estate in possession of a mortgagee with possession. - (1) Subject to the provisions of sub-section (2), a mortgagee in possession of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate.
(2) Where any such land was in the personal cultivation of the mortgagee on the date immediately preceding the date of vesting-
(a) if it was sir or khudkasht of the mortgagor on the date of the mortgage, the same shall, for purposes of Section 18 be deemed to be the sir or khudkasht of the mortgagor or his legal representative;
(b) if it was not sir or khudkasht of the mortgagor on the date of the mortgage, the mortgagee shall, subject to his paying to the State Government within six months from the date of vesting an amount equal to five times the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting, be deemed, for purposes of Section 19 to have held such land on the date aforesaid as a hereditary tenant thereof at the said rate of rent:
Provided that if the mortgagee fails to pay the amount aforesaid within the time allowed, he shall thereupon lose all rights in such land which shall be deemed to be vacant land and he shall be liable to ejectment on the suit of the Gaon Sabha or the Collector under Section 209 as if he were a person in possession thereof otherwise than in accordance with the provisions of this Act.
Explanation I. - For the purposes of this section a mortgagee in possession includes a thekedar of his rights as mortgagee in the land.
Explanation II. - Where any land has been mortgaged with possession and the mortgagor makes a second or subsequent mortgage of such land in favour of the same or different person, the expression "on the date of the mortgage" shall mean the date of the mortgage in pursuance of which the mortgagor first transferred possession to mortgagee.
163[***]
186. Abandonment. - (1) Where a bhumidhar with non-transferable rights (other than a minor, lunatic or idiot) or asami has not used his holding for a purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming for two consecutive agricultural year the Tahsildar may, on the application of the Gaon Sabha or the landholder or on facts coming to his notice otherwise, issue a notice to such bhumidhar with non-transferable rights or asami, as the case may be, to show cause why the holding be not treated as abandoned.
(2) The application shall contain such particulars as may be prescribed.
(3) If the tahsildar finds that the application has been duly made he shall cause to be served on the bhumidhar with non-transferable rights or the asami or publish in the manner prescribed a notice in the form to be prescribed requiring him to appear and show cause on a date to he fixed why the holding be not held as abandoned.
(4) If the bhumidhar with non-transferable rights or the asami does not appear in answer to the notice or appears but does not contest it, the Tahsildar shall declare the holding as abandoned and thereupon, except provided in Section 172, the holding shall be deemed to be vacant land.
Provided that no declaration under this sub-section shall made in respect of a holding or any part thereof, if the same has been mortgaged by the bhumidhar with non-transferable rights under sub-section (3) of Section 152 and the mortgage has not been fully redeemed, in which case the Tahsildar shall move the Collector for the realization of the loan in such manner as may be prescribed.
(5) If the bhumidhar with non-transferable rights or asami appears to contest the notice, the Tehsildar shall drop the proceedings.
211. Power to evict unauthorised occupants of land held by a member of Scheduled Tribe. - (1) Where any land held by a tenure-holder belonging to a Scheduled Tribe is in occupation of any person other than such tenure-holder, the Assistant Collector may, suo motu or on the application of such tenure-holder, put him in possession of such land after evicting the occupants and may, for that purpose use or cause to be used such force as may be considered necessary, anything to the contrary contained in this Act, notwithstanding.
(2) Where any person, after being evicted from any land under sub-section (1), re-occupies the land or any part thereof without any lawful authority, he shall be punishable with imprisonment for a term which may extend to two years but which shall not be less than three months and also with a fine which may extend to three thousand rupees but which shall not be less than one thousand rupees.
(3) Any Court convicting a person under sub-section (2) may make an order to put the tenure-holder in possession of such land after evicting the person summarily from such land or any part thereof and such person shall be liable to eviction without prejudice to any other action that may be taken against him under any other law for the time being in force.
(4) Every offence punishable under sub-section (2) shall be cognizable and non-bailable and notwithstanding anything contained in the Code of Criminal Procedure, 1973, may be tried summarily.
(5) For the purpose of speedy trial of offence, under this section, the State Government may, in consultation with the High Court, by notification constitute special Courts consisting of an officer not below the rank of Sub Divisional Magistrate, which shall, subject to the provisions of the Code of Criminal Procedure, 1973, exercise in relation to such offences the powers of Judicial Magistrate of the first class."
18. Thus, the kinds of land, referred to in Sections 13, 14, 163, 186 and 211, are as under:
(i) Land in personal cultivation of thekedar on the date preceding the date of vesting. (Section 13)
(ii) Land in personal cultivation of mortgagee on the date immediately preceding the date of vesting. (Section 14)
(iii) Where a land has been abandoned for his bhumidhar with non-transferable rights (other than a minor, lunatic or idiot) or asami has not used his holding for a purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming for two consecutive agricultural year. (Section 186)
(iv) Land held by a tenure-holder belonging to a Scheduled Tribe but actually in possession of a person other than such tenure-holder. (Section 211)
19. Clause (d) of Section 122-C deals with the land earmarked for extension of 'abadi' and reserved as 'abadi site' for harijans under U.P. Consolidation of Holdings Act, 1953 and is considered insufficient by him and where any other land earmarked for other public purposes is available, then any part of such land available.
20. Sub-section (2) authorises Land Management Committee to allot land with previous approval of Assistant Collector in-charge of sub-division for the purpose of building houses to the classes of persons referred in sub-section (3) of Section 122-C and the kind of land which can be allotted by Land Management Committee is described in sub-clause (a) to (d).
21. Sub-section 4 empowers Assistant Collector, In-charge to allot land himself in accordance with sub-section (3) of Section 122-C, if Land Management Committee has failed to discharge its duties under sub-section (2).
22. Sub-section (6) conferred power upon Collector to make an inquiry on a complaint received from any person aggrieved by an allotment of land whether made by Land Management Committee under sub-section (2) or by Assistant Collector under sub-section (4) and if Collector is satisfied that such allotment is irregular, he is empowered to cancel such allotment. This power of Collector, if exercised on his own motion, is similar to revisional power and if exercised on the application made by any aggrieved person is like an appellate power, arising from the order of allotment of land, whether made by Land Management Committee under sub-section (2) of Section 122-C or by Assistant Collector In-charge, under sub-section (4).
23. However, there is a distinction in manner of power to be exercised by Collector inasmuch as if it is suo motu, then the word "may" has been used, meaning thereby it is discretionary, but where an application is made, the word "shall" has been used, meaning thereby it shall be obligatory on the Collector to make inquiry in regard to correctness of order of allotment made by Land Management Committee under sub-section (2) or Assistant Collector In-charge under sub-section (4) and thereafter pass appropriate order in accordance with law.
24. Sub-section (7) provides that every order passed by Assistant Collector under sub-section (4) shall, subject to provision of sub-section (6), and every order passed by Collector under sub-section (6), shall be final.
25. Section 333-A inserted by U.P. Act No. 30 of 1975 reads as under:-
"333-A. Reference to the Board.- The Commissioner or the Additional Commissioner may call for and examine the record of any suit or proceeding referred to in Section 333 decided by any Court subordinate to him for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding, and if he is of opinion that such order should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for the orders of the Board, and the Board shall thereupon pass such orders as it thinks fit."
26. Whatever we have observed in respect of Section 333 would equally apply in respect of Section 333-A. It is clear that even Section 333-A had no application in respect of such matters which were attached finality by specific declaration by Section 122-C(7) U.P. Act 1 of 1951.
27. However, the aforesaid Section was deleted by U.P. Act No. 20 of 1997 w.e.f. 23rd May, 1997.
28. A bare and simple reading of Section 122-C would show that to the extent Collector interferes under sub-section (6), otherwise order passed by Assistant Collector under sub-section (4) shall be final. It also declares that order passed by Collector under sub-section (6) shall also be final.
29. There is an interesting distinction in respect of allotment order made by LMC and power to be exercised by Assistant Collector. Sub-section (7) does not declare order made by LMC under sub-section (2) of Section 122-C to be final. This allotment made by LMC is subject to scrutiny by Assistant Collector under sub-section (4) and thereafter the order of Assistant Collector is subject to scrutiny by Collector under sub-section (6). The orders passed by Assistant Collector under sub-section (4) and by Collector under sub-section (6) are declared to be final whereupon it is also made clear that Sections 333 and 333-A shall not be applicable. This declaration is not attracted to order made by LMC under sub-section (2) and even if there is no scrutiny by Assistant Collector under sub-section (4) in respect of correctness of order of allotment made by Land Management Committee, still if there is another forum or remedy available under U.P. Act No. 1 of 1951, the order of Land Management Committee can be examined thereunder and benefit of declaration made under sub-section (7) of Section 122-C shall neither be applicable to the order made by Land Management Committee nor can be extended thereto.
30. In our view, there is no ambiguity in section 122-C. Clear meaning and consequence of sub-section (7) is that an order passed by Collector under sub-section (6) is final and in respect thereto Section 333, and when Section 333-A was on the statute book, both were / are made inapplicable.
31. Similarly, an order passed by Assistant Collector under sub-section (4), if not interfered by Collector under sub-section (6), such order of Assistant Collector is also final and there also Section 333 or Section 333-A, as the case may be, are inapplicable.
32. Inapplicability of Section 333 is by legislature. There is no reason to dilute effect of such declaration made by legislature by making an endeavour to bring in, somehow or the other, Section 333 or 333-A, as the case may be, in respect of orders passed by Assistant Collector under sub-section (4) or Collector under sub-section (6).
33. To that extent, we are clearly of the view that there is no reason to look into any conjectural or speculative reasoning to bring in Section 333 or Section 333-A for examining orders passed by Assistant Collector under Section (4) or by Collector under sub-section (6), by a superior authority when Legislature has declared that these provisions shall not be applicable and orders under sub-section (4) passed by Assistant Collector, if not interfered by Collector under sub-section (6) shall be final. Similar is the case of order of Collector under sub-section (6) of Section 122-C.
34. Now we may examine the judgments referred to by learned Single Judge in Reference order and also placed before this Court by learned counsel for the parties.
35. First such judgment is Smt. Krishna Devi Vs. Board of Revenue U.P. At Allahabad and others 1972 R.D. 228. It is a Division Bench judgment of this Court. Therein land in dispute was allotted to one Sarup Singh by an auction. Smt. Krishna Devi made an application before Sub-Divisional Officer under Rule 115-N of U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as "Rules, 1952") for cancellation of allotment. Sub-Divisional Officer allowed application of Smt. Krishna Devi and cancelled allotment. Sarup Singh filed revision before Additional Commissioner who made Reference to Board of Revenue with the recommendation that Revision should be allowed. Board of Revenue, vide order dated 15th October, 1969, accepted recommendation, allowed revision and set aside order of Sub-Divisional Officer. It is this order of Board of Revenue which was challenged before this Court. An objection was raised before Division Bench that Revision against order passed under Rule 115-N was not maintainable and reliance was placed upon a decision of Hon'ble Broome, J. in Kishan Lal Jat vs. State of U.P. 1967 RD 134 wherein his Lordship has taken a view that power exercised by Sub-Divisional Officer under Rule 115-N is not as a "Court", therefore Revision under Section 333 against such an order of Sub-Divisional Officer was not maintainable. This Court observed that Section 333 is attracted in any suit or proceeding, decided by any subordinate court, in which either no appeal lies or if an appeal lies but not preferred and since Sub-Divisional Officer is not a "Court" when passes on order under Rule 115-N, will not be within the ambit of Section 333.
36. The question considered by Division Bench was "whether Assistant Collector or Sub-Divisional Officer, when exercised power under Rule 115-N, can be treated to be a 'Court' and the matter can be treated to be "decided by a Subordinate Court" for attracting Section 333." Division Bench held that proceedings under Rule 115-N, being judicial in nature, Assistant Collector / Sub-divisional Officer is a "Court subordinate to Board of Revenue", therefore, a Revision was maintainable.
37. In this context it would be appropriate to have a look at Rule 115-N so as to understand the aforesaid Division Bench judgment with more clarity. Rule 115-N as initially made, read as under:
"115-N. Any person interested may file within three months of the date of auction an objection in the court of Assistant Collector in-charge of the sub-division on the following grounds:
(i) the bid accepted was inadequate;
(ii) the auction was collusive or unfair;
(iii) the auction proceedings were not followed in accordance with the rules;
(iv) any other ground The decision of the Assistant Collector on such objection or objections shall be final." (emphasis added)
38. It was substituted by Notification dated 1st November, 1975 and substituted provision read as under:-
"115-N. (1) Whenever the Land Management Committee proceeds to allot housing sites under Rule 115L, or 115M, it shall announce by beat of drum in the village the exact location of the sites to be allotted, the time, the date and venue of allotment.
(2) All allotment shall be made by the Land Management Committee in a meeting held for the purpose on the date announced under sub-rule (1). Where more than one person belonging to the same order of preference express their desire to be allotted a particular site, the said Committee shall draw lots to determine the person to whom the site should be allotted :
Provided that the prior approval of the Assistant Collector-in-charge of the Sub-Division shall be obtained for every allotment under Rule 115L or 115M.
(3) The allottee of the housing site shall be given a receipt for the premium, if any, paid by him to the Land Management Committee and a certificate of allotment. The certificate shall be in Z.A. Form 49F which shall be prepared in two parts, the main certificate being given to the allottee and its counterpart remaining with the Land Management Committee for record."
(emphasis added)
39. Since Rule 115-N was made applicable to the land allotted under Rules 115-L and 115-M, it would also be necessary to examine these two Rules.
40. Rule 115-L was inserted by Notification dated 11th March, 1954 and read as under:-
"115-L. Abadi sites situate in the abadi or in the waste land of the area vested in the Gaon Samaj shall be allotted for the purpose of construction of buildings in the following order of preference-
(a) a landless agricultural labourer or a landless servant of the village community such as Barhai, Dhobi, Lohar, Sweeper etc.
(b) a bhumidhar, sirdar, adhivasi, who is holding less than five standard Bighas.
(c) others.
Allotment shall be made on the result of public auction held for this purpose. The exact location of the site to be auctioned, the time, the date and venue of the auction shall be announced by beat of drum in the circle of the Gaon Samaj:
Provided that-
(i) no auction shall be held where any of the applicants requires a site for the construction of a building for a charitable purpose. In case of such an applicant, the site shall be allotted to him without payment of premium. If there are more than one such applicants, the land Management Committee shall decide as to whom the site may be allotted. The decision of the Land Management Committee in this respect shall be final subject to confirmation by the Assistant Collector in-charge of the sub-division.
(ii) the provisions of clause (i) shall also apply in cases where an applicant requires a site for setting up cottage industry, provided that a certificate to this effect is obtained from the Assistant Collector in-charge of the sub-division. In case where there are two applicants for a site, one requiring it for charitable purpose and the other for setting up cottage industry, the Land Management Committee shall decide as to whom the site may be allotted. The decision of the Land Management Committee in this respect shall be final subject to confirmation by the Assistant Collector, in-charge of the sub-division.
(iii) abadi sites in the area earmarked for abadi in the waste land shall not be put to auction unless there are more applicants than the sites available.
Provided further that if there is only one applicant requiring a site for the construction of a house it shall be allotted to him on payment of such premium as may be fixed by the Land Management Committee in this behalf.
Provided also that the provisions of this rule shall not apply in cases where the abadi site is required for settling those who have lost their houses on account of floods. In such cases the land will be earmarked and allotted by the Land Management Committee according to directions of the Collector"
(emphasis added)
41. By Notification dated 5th April, 1971 Rule 115-L was substituted and read as under:-
"115-L. (1) Earmarked Abadi sites.- Abadi sites earmarked for persons belonging to scheduled castes and scheduled tribes under the U.P. Consolidation of Holdings Act, 1953 or by the Gaon Sabha, either in or adjacent to the existing Abadi or in the waste land of area vested in the Gaon Sabha shall be allotted for the purpose of construction of buildings only to persons belonging to such castes and tribes. The allotment shall be made on the result of the drawing of lots if there are more than one claimant for the same site. The exact location of the site to be allotted, the time, the date and the venue for drawing of lots shall be announced by beat of drum in the circle of the Gaon Sabha. If the allottee happens to be without a house at the time of allotment, the site shall be allotted to him without payment of any premium. If the allottee already possesses a house, the site may be allotted to him on payment of such premium as may be fixed by the Land Management Committee.
(2) Other Abadi sites.- All other Abadi sites situate in the Abadi or in the waste land of the area shall be allotted for the purpose of construction of buildings in the following order of preference-
(a) a landless agricultural labourer or a landless servant of the village community,
(b) a Bhumidhar, Sirdar or Asami who is holding less than five standard Bighas,
(c) others.
Allotment shall be made on the result of public auction held for this purpose. The exact location of the site to be auctioned, the time, the date and venue of the auction shall be announced by beat of drum in the circle of the Gaon Sabha:
Provided that-
(i) no auction shall be held where any of the applicants requires a site for the construction of a building for charitable purpose. In case of such an applicant, the site shall be allotted to him without payment of premium. If there are more than one such applicants, the land Management Committee shall decide as to whom the site may be allotted. The decision of the Land Management Committee in this respect shall be final subject to confirmation by the Assistant Collector incharge of the sub-division.
(ii) the provisions of clause (i) shall also apply in cases where an applicant requires a site for setting up cottage industry provided that a certificate to this effect is obtained from the Assistant Collector incharge of the sub-division. In case where there are two applicants for a site one requiring it for charitable purpose and the other for setting up cottage industry, the Land Management Committee shall decide as to whom the site may be allotted. The decision of the Land Management Committee in this respect shall be final subject to confirmation by the Assistant Collector incharge of the sub-division;
(iii) abadi sites in the area earmarked for abadi in the waste land shall not be put to auction unless there are more applicants than the sites available:
Provided further that if there is only one applicant requiring a site for the construction of a house it shall be allotted to him on payment of such premium as may be fixed by the Land Management Committee in this behalf:
Provided also that the provisions of this rule shall not apply in case where the abadi site is required for settling those who have lost their houses on account of floods. In such cases the land will be allotted by the Land Management Committee according to directions of the Collector."
42. Again Rule 115-L was substituted by Notification dated 16/17th March, 1972 and substituted Rule read as under:-
"115-L. A--Abadi sites for preferential categories.--(1) The Assistant Collector-in-charge of the sub-division may, wherever land earmarked for the extension of abadi for Harijans under the provisions of the Uttar Pradesh Consolidation of Holdings Act. 1953 and any other land of abadi site vested in Gaon Sabha is insufficient to meet the housing requirements of persons referred to in sub-section (3) of Section 122-C, proceed to earmark land for abadi sites in accordance with sub-section (1) of the said Section.
(2) In case the land enumerated in clauses (a), (b), (c) of sub-section (2) of Section 122-C available in a village is insufficient, the Collector may prepare a proposal for acquisition of land under the Land Acquisition Act, 1894 and forward the same to the State Government for their orders.
(3) Before allotting housing sites to persons referred to in sub-section (3) of Section 122-C, the Assistant Collector in-charge of the sub-division shall, in respect of each village, cause to be prepared the following lists and extracts -
(i) a list in Z.A. Form 49D showing separately particulars of persons of the three categories mentioned in sub-section (3) of Section122-C.
(ii) a list in Z.A. Form 49E of lands enumerated in sub-section (2) of Section 122-C : and
(iii) an extract of village map showing the plots given in the above list.
(4) In making allotment of housing sites under this rule, the order of preference mentioned in sub-section (3) of Section 122-C shall be observed.
(5) No premium shall be charged for allotment of housing sites under this rule." (emphasis added)
43. Rule 115-M initially inserted by Notification dated 11th March 1954, read as under:-
"115-M. Subject to the provisions of rule 115-L, the auction for abadi sites for construction of houses shall be open to all persons residing in the circle of the Gaon Samaj. The first bidding shall be confined among the persons of categories (b) and (c) mentioned in rule 115-L, and the highest bid shall be recorded. Immediately thereafter, there shall be a second bidding among the persons of category (a) mentioned in rule 115-L. The highest bid in the second bidding, provided it is not less than 25 per cent of the highest bid recorded in the first bidding, shall be taken as the final bid and accepted, failing which the highest bid recorded in the first bidding shall be taken as the final bid and accepted if the bidder belongs to category (b) mentioned in rule 115-L. If the highest bid recorded in the first bidding is of the person belonging to category (c), the highest bidder among the persons of category (b) shall be given an option to pay the amount of highest bid recorded in the first bidding. If he agrees to pay the amount, his offer shall be accepted and if not, the highest bid recorded in the first bidding shall be taken as final and accepted. The person whose bid is accepted, shall be required to pay one fourth of the bid money immediately and the balance within a time to be fixed by the Land Management Committee. If the balance is not paid within the time so fixed the advance money shall be liable to forfeiture in the discretion of the Land Management Committee.
Explanation- The definition of landless agricultural labourer shall be the same as given in the explanation to rule 175." (emphasis added)
44. Rule 115-M was substituted by Notification dated 16/17 March, 1972 and substituted provision read as under:-
"115-M. B--Other abadi sites-(1) Abadi sites other than those referred to in rule 115-L and vested in a Gaon Sabha may be allotted for construction of buildings for residential or charitable purposes or for purposes of cottage industry in the following order of preference:
(a) a landless agriculture labourer or a village artisan residing in the village;
(b) a bhumidhar, sirdar or asami residing in the village and holding landless than 1.26 hectare (3.125 acres);
(c) any other person residing in the village (2) Every allottee under this rule shall be required to deposit an amount equal to 40 times of the rent of the land calculated at hereditary rates which shall be created to the Gaon fund.
Provided that no premium shall be charged in respect of a site allotted for charitable purpose." (emphasis added)
45. A bare perusal of Rules 115-L and 115-M show that two provisions do not confer substantive power of allotment of land, but deals with manner of allotment of land which can be allotted under aforesaid provisions; category of persons to whom it can be/ should be allotted; order of preference and procedure for allotment i.e. auction etc. Substantive power of allotment of land comes from Section 122-C in respect to land which has been earmarked as abadi sites for allotment to members of Scheduled Caste and Scheduled Tribes, Agricultural Labourers and Village Artisans by Assistant Collector In-charge either on his own motion or on resolution of Land Management Committee. Sub-section (2) confers such power of allotment upon Land Management Committee, but it is subject to previous approval of Assistant Collector In-charge. However, despite previous approval, Assistant Collector has been given a further power of examining correctness of allotment made by Land Management Committee under sub-section (2). Assistant Collector even otherwise can exercise power of cancellation of allotment made by Land Management Committee or to allot respective land himself if he otherwise find it necessary or expedient. This power of allotment under sub-section (2) and sub-section (4) given to Land Management Committee and Assistant Collector is not restricted or controlled by Rules 115-L and 115-M, which prescribes only procedure for such allotment to be made by Land Management Committee.
46. Similarly, Rule 115-N provided procedure for allotment of land situate in abadi or in waste land of area vested in Gaon Sabha. Such land can be allotted for the purpose of construction of buildings. Order of preference has been given and it is also provided, where the applicants are more than one, allotment shall be made by public auction. There are two exceptions for public auction, first, where land is required for construction of a building for a charitable purpose and secondly, where land is required for setting up a cottage industry. There is one more exception where land is required for those who have lost their houses on account of floods and to meet such cases, land has to be earmarked and allotted by Land Management Committee according to directions of Collector. Here, there is nothing to show that under aforesaid Rules, allotment made by Land Management Committee can be examined by exercising judicial or quasi judicial power of Assistant Collector and he can cancel the same since such power we find in Section 122-C and not in aforesaid Rules.
47. Be that as it may, whenever any action or proceeding at the stage of procedure to be followed by Land Management Committee is challenged, Section 122-C, as such, if not invoked by making a complaint to Assistant Collector, or Collector, remedy may be available under any other provision of statute, which is not a question to be examined at this stage. At least it can be said that aforesaid Rules do not control clear and specific provisions of parent statute i.e. Section 122-C of U.P. Act No. 1 of 1951.
48. Now coming back to decision of Division Bench in Smt. Krishna Devi (supra) we find that Rule 115-N as it was initially inserted by U.P Gazette (Extraordinary) dated 11th March, 1954 deal with a different situation i.e. an objection, if any, in respect of auction made by Land Management Committee for allotment of land under Rule 115-L and 115-M to the Assistant Collector and that objection could have been in respect to three aspects, (i) bid accepted was inadequate; (ii) auction was collusive or unfair; (iii) auction proceedings were not followed in accordance with Rules; and, (iv) any other ground. This Rule was substituted by Notification dated 1st November, 1975 and now there is no such provision. With great respect, we have no hesitation in observing that in respect of disputes, which are subsequent to period of 1st November, 1975 when Rule 115-N was substituted, therefore, authority in Smt. Krishna Devi (supra) is not applicable.
49. Even otherwise, in Smt. Krishna Devi (supra), order of Assistant Collector was declared, by a subordinate legislation, namely, Rule Framing Authority, to be final but under Section 122-C, such a declaration has been made by a substantive legislation and, therefore, provisions of Section 333 or Section 333-A cannot be given an overriding effect over declaration made by Section 122-C unless it can be shown that Section 333 or Section 333-A have been given overriding effect over any other inconsistent provision by not making any non-obstante clause which is not the case here.
50. A learned Single Judge (Hon'ble S.K. Singh, J.) followed decision of Smt. Krishna Devi (supra) in Janab and others versus State of U.P. and others; 2001 (92) R.D. 533. The learned Single Judge firstly held that power exercised by Assistant Collector under sub-section (4) of Section 122-C is administrative in nature and in this context, it has been declared final under sub-section (7) of Section 122-C, but power exercised by Collector under sub-section (6) of Section 122-C is judicial, therefore, it is within the scope of Section 333 of U.P. Act No. 1 of 1951. Without going into other relevant facts, learned Single Judge has drawn support from Division Bench judgment rendered in Smt. Krishna Devi (supra). With great respect, learned Single Judge has clearly erred in law inasmuch as power exercised by Assistant Collector under sub-section (4) of Section 122-C is also quasi judicial in nature inasmuch as Assistant Collector has to examine whether Land Management Committee has failed to discharge its duties or to perform its functions under sub-section (2) or not and for that purpose, it has to exercise its power after due inquiry and obviously by observing principles of natural justice. Moreover, sub-section (7) of Section 122-C nowhere indicates such notional distinction in the nature of power under sub-section (4) or sub-section (6) by Assistant Collector and / or Collector, respectively, and both these orders are declared final. Therefore, it is not open to a Court on judicial side to create a distinction which is not otherwise existing and legislature has not made or recognized any such distinction. In fact this attempt on the part of learned Single Judge is nothing but to find out a "casus omissus" in otherwise clear provision and to fill in that gap by bringing in Section 333 which it could not have. A declaration made by legislature is not to be undone in a casual or routine manner but it needs a more deeper inquiry and where it is found necessary to do so since any other view may result in drastic consequences. Fortunately, no such drastic consequence may arise in case orders declared final under sub-section (7) are not allowed to be revised under Section 333 or Section 333-A by respective authorities for the reason that constitutional remedy is always open.
51. In respect of different nature of litigation, legislation in its wisdom sometimes provides a single appellate or revisional forum or sometimes more than that. At some stage, adjudicatory hierarchy has to stop. The constitutional remedies, however, are always available even when a statute declares an order passed thereunder to be a final one. Therefore, if orders declared final under sub-section (7) of Section 122-C are not compulsorily made revisable under Section 333 or Section 333-A by the respective authorities, since legislature has declared otherwise, no serious consequence will arise and it cannot be said that there would be any violation of any public policy or public interest. In fact course of litigation will be shortened and except constitutional remedies, orders declared final under sub-section (7) of Section 122-C will remain unassailable. Therefore, learned Single Judge in Janab (supra) has not taken a correct view and aforesaid judgment, we have no option but to overrule the same.
52. Smt. Bhoodevi and others Versus The Board of Revenue and others; 1993 A.W.C. 1560 All. is another decision which has followed Smt. Krishna Devi (supra). Therein a notice under Section 198(4) of U.P. Act No. 1 of 1951 was issued. Another order was passed under Rule 115-P of Rules 1952, where-against Revision was filed before Additional Commissioner under Section 333-A of U.P. Act No. 1 of 1951. However, Revisions were dismissed as not maintainable as having been preferred against interlocutory orders. Subsequently, Revisions were preferred before Board of Revenue under Section 333 of U.P. Act No. 1 of 1951 and by order dated 18.02.1993, same were dismissed as not maintainable though by assigning different reasons. Notice issued under Rule 115-P was challenged before this Court on the ground that before taking suo motu cognizance on the basis of report of Tehsildar, Collector must indicate reasons for initiating proceedings for cancellation of allotment. Learned Single Judge formulated following questions:-
"(1) Whether a decision to enquire into the legality or otherwise of an allotment taken by Collector under Rule 115-P (1) of Rules or under Section 198(4) of the Act, as the case may be, is revisable under Section 333 of the Act?
(2) Whether the Collector is required under law to give reasons in support of his decision to hold enquiry into the legality or otherwise of an allotment?
(3) Whether show cause notice for its sustenance must indicate the ground or grounds on which the allotment is sought to be cancelled suo motu by Collector under Section 198(4) of the Act or under Section 122-C (b) read with Rule 115P(1) of the Rules?"
53. While answering aforesaid questions, learned Single Judge examined Sections 333 and 333-A of U.P. Act No. 1 of 1951. It is said that power of Board under Section 333 is exercisable on jurisdictional error, whereas power conferred upon Board to be exercised on reference made by Commissioner or Additional Commissioner under Section 333 is of wide amplitude and in that case Board under Section 333-A, may interfere in the matter on the ground of any illegality or impropriety of order passed by Subordinate Revenue Courts. It also held that one thing is common to both sections and it is that power can be exercised under two sections only in relation to any suit or proceeding decided by any subordinate court in which no appeal lies or where an appeal lies but has not been preferred. Court then proceeded to hold that mere decision to commence proceeding for cancellation and issue of show cause notices pursuant to said decision, does not tantamount to any suit or proceeding decided. Court said:
"The decision to commence enquiry under Section 122-C(6) of Act read with Rule 115-P (1) of Rules or under Section 198(4) of Act, with a view to ultimately deciding the question as to the legality or otherwise of any allotment is not revisable under Sections 333 or 333-A of Act."
54. In para 10 of judgment, learned Single Judge then considered import of sub-section (7) of Section 122-C and said:-
"It is evident that what has been excluded from the purview of Sections 333 and 333-A is an order under sub-section (4) which empowers the Assistant Collector In-charge of Sub-Division to make allotment himself in the event of his being satisfied that the Land Management Committee has failed to discharge its duties or to perform its functions under sub-section (2) or it is otherwise necessary or expedient so to do."
55. Having said so, learned Single Judge then said that function under sub-section (4) is of administrative nature and Assistant Collector does not exercise power as a Court while Collector discharge power under Section 122-C(6) as a Court and final order passed by Collector under aforesaid provision is amenable to revisional jurisdiction of Board and for this purpose, learned Single Judge placed reliance on a Division Bench judgment rendered in Smt. Krishna Devi (supra). With great respect, we do not find aforesaid judgment of learned Single Judge to be correct for the reason that Legislature has not made any such distinction while declaring, by Section 122-C(7), that order passed by Assistant Collector under sub-section (4) is final subject to power of Collector to cancel the same under sub-section (6), and in that respect Sections 333 and 333-A are not applicable. An order of Collector, which is declared final under sub-section (7) also could not have been made subordinate to Section 333 contrary to what has been declared in sub-section (7) of Section 122-C. Here we find some inconsistency or omission on the part of learned Single Judge. It has observed that what has been given under Act cannot be taken away by Rules and referred to Smt. Krishan Devi (supra), but in the present case, finality has been declared not by subordinate Legislation but by principal Legislation i.e. Section 122-C(7). Therefore, to that extent judgment rendered by learned Single Judge in Smt. Bhoodevi (supra) cannot be said to be a correct law and we accordingly overrule the same.
56. In Smt. Sumratiya and others Versus Commissioner, Moradabad Division, Moradabad and others; 1996 (87) R.D. 163 learned Single Judge (Hon'ble S.P. Srivastava, J.) has noticed the effect of declaration made under Section 122-C(7) and in para 10 has observed that Court in Bhoodevi (supra) appears to have overlooked effect of Section 122-C(7) and thereafter has proceeded to decide the matter. In our view, rule of precedence and propriety required that Court, when finds a decision of coordinate Bench to be incorrect, it is proper to refer the matter to be considered by a larger Bench instead of suo motu declaring the judgment of coordinate Bench, incorrect, therefore, the manner in which learned Single Judge has escaped from the binding precedent of earlier coordinate Bench judgment in Smt. Bhoodevi (supra) cannot be appreciated, but the ultimate view that orders declared final under Section 122-C cannot be revisable under Section 333 or Section 333-A, is correct.
57. The judgments rendered in Janab (supra) and Smt. Krishna Devi (supra) have been followed in Bhai Lal Versus The Additional Commissioner (Admn.) and others (Civil Misc. Writ Petition No. 37991 of 2011) decided on 26.07.2011. This decision hence also does not lay down correct law for the reasons we have already indicated in respect of decisions in Smt. Krishan Devi (supra) and Janab (supra).
58. In Mohd. Naim and others Vs. State of U.P. and others; 2016 (133) RD 53 and Writ Petition No. 3877 of 2010; Ramjeet and others versus Board of Revenue U.P. Alld. and others, decided on 29.01.2010, Court has rightly held that an order passed by Collector being final by virtue of sub-section (7) of Section 122-C, revision under Section 333 or Section 333-A is not maintainable.
59. Learned Additional Advocate General assisted by Additional Chief Standing Counsel has placed reliance on the judgments in Sanjay Sharma and others vs. Kashi Prasad and others; 2016 (131) RD 346; Parma Chauhan and others vs. Luxmina and others; 2016 (130) R.D. 396 and Jagat Narain and others vs. State of U.P. through its Secretary, U.P. Govt., Lucknow and others; 2013 (121) RD 510, but having gone through the aforesaid judgments, we do not find that the same have any application to the issue in question since these judgments dealt with other aspects and not the one with which we are confronted in this reference.
60. There is one more judgment relied by parties, rendered by one of us (Hon'ble Sudhir Agarwal, J.) in Lala Ram Versus Commissioner, Agra Division Agra Through the Additional Commissioner and others, 2011 (114) RD 102, wherein it was held that Revision under Section 333 / 333-A would be maintainable. We have gone through the aforesaid judgment and find that the kind of lease not covered by Section 122-C, if allotted in accordance with procedure prescribed under Rule 115-M and 115-P, in such cases Section 122-C is not applicable and, therefore, other provisions would be attracted. In Para 8 of aforesaid judgment, this Court has held that Section 122-C deals with certain defined land which can be allotted and the categories are (1) Scheduled Castes, (2) Scheduled Tribes, (3) Other Backward Classes, (4) the persons of general category living below poverty line, (5) agricultural labourers, and, (6) village artisans. In respect of land which is not earmarked as noted above and allotment is made by following Rule 115-M, in that respect, if an order is passed by Collector under Rule 115-P, since Section 122-C is not applicable, Rules providing otherwise cannot be restricted by sub-section (7) of Section 122-C. This is clear from Paras 11, 12, 13 and 15 of the aforesaid judgment. The aforesaid judgment, therefore, is not an authority in respect of orders which are within the purview of Section 122-C and are declared final by Section 122-C(7).
61. In view of the aforesaid discussion, we answer the question referred to us holding that an order passed by Collector under Section 122-C(6) of U.P. Act No. 1 of 1951 in respect of kind of lease and category of persons, to which Section 122-C is applicable, is final and not revisable under Sections 333 or 333-A in view of the declaration made under sub-section (7) of Section 122-C. The same would also apply in respect of an order passed by Assistant Collector under sub-section (4), if it is not interfered by Collector under sub-section (6), and such order would attain finality by virtue of declaration made under Section 122-C(7) of U.P. Act No. 1 of 1951.
62. Let all the cases be placed before appropriate Bench for further orders.
Order Date :-21.02.2019 NS/AK