Allahabad High Court
Gaon Sabha Thariya Distt. Hardoi Thru ... vs State Of U.P. Thru Prin.Secy. Revenue ... on 18 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 2151
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 4 Case :- MISC. SINGLE No. - 1534 of 2019 Petitioner :- Gaon Sabha Thariya Distt. Hardoi Thru Village Pradhan & Anr. Respondent :- State Of U.P. Thru Prin.Secy. Revenue Lucknow And Ors. Counsel for Petitioner :- Ram Narain Gupta,Anurag Narain Counsel for Respondent :- C.S.C.,O.P.M. Tripathi,R.P. Yadav,Ram Lagan Mishra,Vijay Kumar Pandey Hon'ble Devendra Kumar Upadhyaya,J.
These proceedings instituted under Article 226 of the Constitution of India by the Gaon Sabha/Land Management Committee, Village-Thariya, Tehsil-Sawaizpur, district-Hardoi challenge the validity of the order dated 23.07.2012 passed by the Sub Divisional Officer/Assistant Collector, First Class, Sawaizpur, Hardoi, whereby he has rejected the alleged report submitted by the Tehsildar, dated 15.04.2011 which was furnished for taking appropriate action for vesting the land in question in Gaon Sabha/State.
The petitioner has also challenged the order dated 26.10.2012 passed by the Sub Divisional Officer, whereby the restoration application preferred by the petitioner seeking setting aside of the order dated 23.07.2012 and restoring the case, has also been rejected.
The petitioner preferred a revision petition before the Additional Commissioner, (Judicial)-First, Lucknow Division, Lucknow challenging the orders dated 23.07.2012 and 26.10.2012 passed by the Sub Divisional Officer, which too, has been dismissed by the learned revisional court vide its judgment and order dated 04.01.2019. This order dated 04.01.2019 passed by the learned revisional court, is also under challenge herein.
The facts of the case, which can be deduced from the pleadings available on record, are that the dispute relates to land comprised in khasra plot nos.32 and 185 having an area of 1.063 and 1.012 hectares respectively of khata no.68 of khatauni pertaining to 1414 F to 1419 F years, situate in village-Thariya, Pargana-Pachhoha, Tehsil-Sawaizpur, Dstrict-Hardoi. Undisputed recorded tenure holder of the land in dispute was one Mataru, son of Devideen. On his death, several applications for mutation were moved under section 34 of U.P. Land Revenue Act. One such application for mutation was moved by Balveer Singh and Ranveer Singh, who are respondent nos.7 and 8 herein.
The Lekhapal also submitted a report in relation to transfer of land and simultaneously the Village Pradhan of the village concerned also moved an application on behalf of Gaon Sabha. Another set of application was moved for mutation by one Shishpal, son of Jatadhari. Raghuveer Singh, son of Basant Singh also filed objection claiming mutation of his name on the basis of succession. According to Raghuveer Singh, he is the successor of the land in question being father's father's, son's son of the deceased tenure holder, Mataru. He denied the claim of the respondent nos.7 and 8 who had claimed mutation of their names on the basis of succession stating that they are the sister's sons of the deceased tenure holder. The Land Management Committee had filed objection stating therein that since the recorded tenure holder Mataru had died without leaving any heir behind him and that neither Raghuveer Singh, nor the respondent nos.7 and 8 are the successors of the deceased tenure holder, as such the land be recorded in the name of Gaon Sabha. The Gaon Sabha also stated in its objection that neither the respondent nos.7 and 8, nor Shish Pal, Chhote Singh and Raghuveer Singh are in possession over the land in question.
On issuance of proclamation, parties to the proceedings were given opportunity to adduce evidence in support of their respective cases. The Tehsildar, however, on the basis of the evaluation of evidence available on record, considered the entire matter and found in his order dated 15.04.2011 that none of the applicants/objectors were entitled to mutation of their names in the revenue records in respect of the land in question for the reason that all of them had failed to establish their respective cases. The claim put forth by the respondent nos.7 and 8 for mutation of their names was also rejected. Accordingly, the Tehsildar in his order dated 15.04.2011 has observed that the deceased tenure holder Mataru had died intestate and for further action, he referred the matter/file to the Sub Divisional Officer, Sawaizpur, district-Hardoi.
The Sub Divisional Officer, on the basis of the order of Tehsildar dated 15.04.2011, registered Case No.02/02, under section 167 of U.P.Z.A. & L.R. Act (hereinafter referred to as ''the Act'). While registering the said case under section 167 of the Act, the Sub Divisional Officer treated the order dated 15.04.2011 passed by the Tehsildar as a report. Against the said order/report dated 15.04.2011 of the Tehsildar, an objection was filed by the respondent nos.7 and 8 before the Sub Divisional Officer reiterating their case for mutation, which they had set up before the Tehsildar. The Sub Divisional Officer, however, by his order dated 23.07.2012 ordered that the land in dispute be recorded in the name of respondents no.7 and 8. While issuing such direction by the said order dated 23.07.2012, the Sub Divisional Officer has rejected the report/order dated 15.04.2011.
At this juncture itself, it appears appropriate to observe that the Tehsildar's order dated 15.04.2011 may not be termed as a report for the reason that the same is, in fact, an order passed by him while considering the applications/objections in the proceedings drawn under section 34 of U.P. Land Revenue Act for mutation. The proceedings under section 34 of U.P. Land Revenue Act indisputably are judicial proceedings wherein respective claims of the applicants/objectors are decided for mutation to be effected in the revenue records in case the possession is found to have been transferred by the recorded tenure holder by some recognized legal mode or the land in question otherwise devolves on death of the recorded tenure holder upon the person/persons claiming mutation. The Tehsildar while rejecting the claims of all the parties for mutation of their names in the revenue records vide his order dated 15.04.2011 had only referred the matter to the Sub Divisional Officer for vesting the land in question in Gaon Sabha. It is worthy to be noticed that the Tehsildar while passing the order dated 15.04.2011 has not stated therein that he is referring the matter under section 167 of the Act.
The petitioner-Land Management Committee moved a restoration application seeking setting aside of the order dated 23.07.2012 and for restoration of the case, however, the said restoration application moved by the petitioner dated 28.07.2012 was rejected by the Sub Divisional Officer vide his order dated 26.10.2012. The petitioner challenged the orders dated 26.10.2012 and 23.07.2012 by filing a revision petition, which too, has been dismissed by the Additional Commissioner vide impugned order dated 04.01.2019. It is these three orders dated 26.10.2012, 23.07.2012 passed by the Sub Divisional Officer and dated 04.01.2019 passed by the Additional Commissioner, which are under challenge in these proceedings.
Submission of the learned counsel appearing for the Gaon Sabha is that once the Tehsildar vide his order dated 15.04.2011 referred the matter to the Sub Divisional Officer for vesting the land in question in Gaon Sabha, it was not open to the Sub Divisional Officer to have upset the findings recorded by the Tehsildar in his order dated 15.04.2011, whereby he rightly held that the recorded tenure holder Mataru had died issueless. It is, thus, submitted that the Sub Divisional Officer could not have sat in appeal in such proceedings over the judgment and order dated 15.04.2011 for the reason that the respondent nos.7 and 8 had not filed any appeal though a legal remedy under section 210 of U.P. Land Revenue Act was available to them to challenge the order dated 15.04.2011. Learned counsel representing the Gaon Sabha has also submitted that in fact the Sub Divisional Officer has wrongly registered the case no.02/02 under section 167 of the Act on the basis of the order passed by the Tehsildar on 15.04.2011. His submission is that, as a matter of fact, the proceedings ought to have been drawn by the Sub Divisional Officer under section 189/194 of the Act read with Rule 172 of U.P.Z.A & L.R. Rules, 1952 (hereinafter referred to as ''the Rules, 1952'). On the aforesaid grounds, it has vehemently been argued by the learned counsel representing the Gaon Sabha/Land Management Committee that the orders passed by the Sub Divisional Officer are completely without jurisdiction. It has further been submitted on behalf of the Land Management Committee that the Additional Commissioner has completely failed to appreciate the legal position in the matter and has thus not exercised his jurisdiction vested in him which renders the order dated 04.01.2019 passed by the Additional Commissioner, Lucknow Division, Lucknow, unsustainable.
Per contra, learned counsel representing the respondent nos.7 and 8 has submitted that the order dated 23.07.2012 passed by the Sub Divisional Officer, though is described to have been passed under section 167 of U.P. Land Revenue Act, however, the same is referable to the provisions contained in Rule 172 of the Rules, 1952 and hence, the order passed by the Sub Divisional Officer, dated 23.07.2012 may not be said to be without jurisdiction merely because it has been described to have been passed under a wrong provision i.e. under section 167 of the Act. His submission, thus, is that mention of a wrong provision of law does not render any decision or order of an authority unlawful, if such court/authority otherwise possesses jurisdiction to pass such order under law. Submission on behalf of the respondent nos.7 and 8, thus, is that since the order dated 23.07.2012 is referable to rule 172 of the Rules, 1952, as such the same is well within the jurisdiction of the Sub Divisional Officer.
Learned counsel representing the respondent nos.7 and 8 has also submitted that the Sub Divisional Officer in exercise of his powers vested in him under Rule 172 of the Rules, 1952 has clearly held that undisputed recoded tenure holder, Mataru had not died without any heir and further that the respondent nos.7 and 8 are his successors to succeed the land in question. He has argued that the only course open to the Gaon Sabha, if it felt aggrieved by the said order dated 23.07.2012, was to have filed a suit under section 229 of the Act, which permits the Gaon Sabha to institute a suit against any person claiming to be entitled to any right in any land for declaration of the rights of such person in such land. He has, thus, stated that since Schedule-II appended to the Act, which is referable to section 331 of the Act, does not provide any legal forum/remedy to any person aggrieved by an order under section 189/194 of the Act read with Rule 172 of the Rules, 1952, as such the revision petition filed by the petitioner against the order dated 23.07.2012 was not maintainable before the Additional Commissioner, Lucknow Division, Lucknow. His emphasis is that once the Sub Divisional Officer in his inquiry, which is referable to the inquiry under Rule 172 of the Rules, 1952, has found that the recorded tenure holder had not died intestate, the only course available to the Land Management Committee/Gaon Sabha was to seek a declaration by instituting a suit under section 229 of the Act.
I have considered the competing arguments advanced by the learned counsel appearing for the parties and have also given my anxious thought to various legal provisions cited before me.
The first issue to be considered in this case is as to whether on the basis of the order dated 15.04.2011 passed by the Tehsildar, the Sub Divisional Officer should have registered a case under section 167 of the Act or he should have proceeded in accordance with the provisions contained in section 189/194 of the Act read with Rule 172 of the Rules, 1952.
The second question, which falls for consideration here is as to whether the order dated 23.07.2012 can be said to be referable to Rule 172 of the Rules, 1952 and if it is so, as to whether the Sub Divisional Officer has correctly and lawfully exercised his jurisdiction under section 189/194 of the Act read with Rule 172 of the Rules, 1952. Another question, which needs consideration by this Court is as to whether in the facts of this case the Gaon Sabha ought to seek declaration by instituting a suit under section 229 of the Act.
Adverting to the first issue framed as above, section 167 of the Act needs to be noted which runs as under:
"167. (1) The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely-
(a) the subject-matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;
(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances;
(c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.
(2) Where any land or other property has vested in the State Government under sub-section (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary."
The aforequoted provision of section 167 provides for consequences which ensue in respect of a transfer which is void by virtue of section 166. The consequences given therein, in case a transfer is found to be void in terms of the section 166 of the Act, are that the land which is the subject matter of such void transfer shall be deemed to have vested in the State Government free from all encumbrances; the trees, crops and wells existing on the land shall be deemed to have vested in the State Government and transferee in case of such void transfer is entitled to remove other moveable property existing on such land.
Sub section 2 of section 167 empowers the Collector to take over possession of such land or other property and to direct that any person occupying such land or property be evicted therefrom, even by using force, if it is necessary. Thus, the consequences as provided under section 167 of the Act are to take place in case transfer of a land is found to be void in terms of the provisions contained in section 166 of the Act. Section 166 of the Act reads as under:
"166. Every transfer made in contravention of the provisions of this Act shall be void."
Section 166 of the Act provides that if any transfer of land is made in contravention of the provisions of the Act, the same shall be void. Under the scheme of the Act, there are various exigencies, which have been mentioned where transfer of land being in contravention of the Act may be found void. One such exigency is spelt out under section 154 which provides that no bhumidhar will have a right to transfer any land to any person in a situation where the transferee shall, as a result of transfer becomes entitled to land which together with land, if any, held by his family will exceed 5.0586 hectares (12.50 acres) in Uttar Pradesh. Similarly a transfer may be found to be void if it is is made in contravention of the provisions contained in sections 157A and 157-AA of the Act. Certain restrictions have been placed on transfer of land under section 157-B of the Act as also under section 157-BB and if any transfer is made in contravention of these provisions, the same by virtue of operation of section 166 will be void. There is yet another provision under section 168-A of the Act where bar has been placed on a tenure holder from transferring any fragment situate in a consolidated area except where such transfer is in favour of a tenure holder who has a plot contiguous to such fragment. Sub section 2 of section 168-A provides that the transfer of any land contrary to this provision shall be void. Thus, in the aforesaid circumstances, the consequences as given under section 167 shall operate and in case of such void transfer, the land so transferred will be deemed to have vested in the State Government, whereupon the Collector has been given authority to take over possession of such land and to direct eviction of such unauthorized occupant even by using necessary force. If the aforesaid provisions are read in conjunction with the provisions contained in section 167 of the Act, what is inferred is that section 167 can be put in service for vesting the land in the State in case transfer by way of sale or gift or otherwise is found to be in contravention of the provisions of the Act.
So far as the facts of the instant case are concerned, no transfer of land in dispute had taken place. It is a case where certain individuals were seeking mutation of their names on the basis of their respective claims put forth before the Tehsildar and the Tehsildar in proceedings drawn by him under section 34 of U.P. Land Revenue Act has found that the undisputed original tenure holder Mataru had dies intestate. In absence of any transfer by way of sale or gift or otherwise having taken place, the question of application of section 167 of the Act in this case does not arise at all.
Thus, from the analysis of the provisions of the Act as made herein above, it is crystal clear that it was not a case where the Sub Divisional Officer concerned could have proceeded under section 167 of the Act. Accordingly, I am of the considered opinion that registration of the case under section 167 of the Act by the Sub Divisional Officer, on the basis of the order dated 15.04.2011 passed by the Tehsildar, was not permissible.
However, having observed as above, the question which now falls for consideration of the Court, as formulated above, is as to whether the order dated 23.07.2012 passed by the Sub Divisional Officer is referable to the provisions contained in section 189/194 of the Act read with Rule 172 of the Rules, 1952.
Section 189 of the Act provides that under certain circumstances right of a bhumidhar with transferable rights in his holding or any part thereof shall get extinguished. Section 189 of the Act is extracted herein below:
"189. Extinction of the interest of a bhumidhar with transferable rights.-The interest of a bhumidhar with transferable rights in his holding or any part thereof shall be extinguished-
(a) when he dies intestate leaving no heir entitled to inherit in accordance with the provisions of this Act;
(aa) when the holding or part thereof has been transferred or let out in contravention of the provisions of this Act;
(b) when the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land; or
(c) when he has been deprived of possession and his right to recover possession is barred by limitation."
The aforequoted provision, thus, provides that in certain circumstances, a bhumidhar with transferable rights will loose his interest and right in his holding and his right and interest shall extinguish. The first such situation given in section 189 is where a bhumidhar with transferable right dies intestate leaving no legal heir entitled to inherit the land in question. The second situation where right of a bhumidhar gets extinguished is when his holding or part thereof is transferred or let out in contravention of the provisions of the Act. The third situation where rights of a bhumidhar get extinguished is when the land is acquired under any law for the time being in force relating to acquisition of land. The fourth such situation as detailed under section 189 of the Act is when a tenure holder has been deprived of possession and his right to recover possession is barred by limitation.
Section 194 of the Act is also relevant to be extracted which is as under:
"194. Land Management Committee to take over land after extinction of interest therein.- The Land Management Committee shall be entitled to take possession of land comprised in a holding or part thereof if-
(a) the land was 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;
(b) [* * *]
(c) the land being land falling in any of the classes mentioned in Section 132, was held by an asami and the asami has been ejected or his interest therein have otherwise extinguished under the provisions of this Act."
Thus, in terms of the provisions contained in section 194 of the Act, in case the interest and right of a bhumidhar in the land gets extinguished under clauses (a) and (aa) of section 189 of the Act or under clauses (a), (b), (c), (cc) or clause (e) of section 190, the Land Management Committee becomes entitled to take possession of land. Section 190 of the Act provides for extinction of interest of a bhumidhar with non-transferable rights. In the instant case, the original tenure holder Mataru was a bhumidhar with transferable rights, as such the provisions of section 189 are to be referred to.
The Tehsildar in his order dated 15.04.2011 has found that Mataru died intestate as he did not leave any legal heir behind him, who can be said to be entitled to inherit his estate as per the provisions contained in section 171 of the Act.
Rule 172 of the Rules, 1952 is also equally important to be referred to in this case, which is extracted as under:
"172. Section 230(2)(i).-(1) An application under Section 194 for declaration of the extinction of tenure-holder's rights shall be filed in the court of the Assistant Collector-in-charge of the sub-division by the Land Management Committee in whose local jurisdiction the extinction has occurred. Where on the application of the Land Management Committee or on facts coming to his notice otherwise, the Assistant Collector is satisfied that there is a prima facie case for declaration of the extinction of the tenure-holder's rights under Section 194, he shall issue a proclamation in Z.A Form 57 and where the tenure-holder is alive, a copy of the proclamation shall be served on him in person asking him to show cause why the declaration in question should not be granted.
(2) The Assistant Collector shall, on the date fixed in the proclamation, and after personal service, if required, has been effected, proceed to make such inquiry as he deems necessary.
(3) If after inquiry, he comes to the conclusion that a declaration in favour of the Land Management Committee should be made, he shall make a declaration to that effect and specify the numbers of the plots with their respective areas of which the Committee is entitled to take a possession. The possession shall then be delivered to the Committee on behalf of the Gaon Sabha in accordance with the procedure laid down in Rule 154."
It is noteworthy that rule 172 is referable to section 230 (2)(i) of the Act. Section 230 provides that the State Government may make rules for the purpose of carrying into effect the provisions of Chapter VIII of the Act. It is noteworthy that sections 189 and 194, both fall in Chapter VIII of the Act. The provisions contained in section 230(2)(i) is as under:
"230. Power to make rules.- (1) The State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.
(2) Without prejudice to the generality of foregoing power any such rules may provide for-
(a) ........................
(b).........................
.............................
.............................
............................
............................
............................
(i) the procedure for taking over possession of land by Land Management Committee under section 194;"
Thus, section 230(2)(i) of the Act empowers the State Government to make rule providing for the procedure for taking over possession of land by the Land Management Committee under section 194.
Rule 172 of the Rules, 1952 provides that the Land Management Committee shall file an application under section 194 for declaration of extinction of a tenure holder's rights, before the Sub Divisional Officer. It further provides that if the Sub Divisional Officer either on the application of the Land Management Committee or on facts coming to his notice otherwise, is satisfied that there is a prima facie case for declaration of the extinction of the tenure holder's rights, he shall proceed further. On such prima facie satisfaction, the Sub Divisional Officer is required to issue a proclamation in Z.A. Form 57 and in case the tenure holder is alive, he is also required to serve a copy of the proclamation on such tenure holder in person requiring him to show cause why declaration of extinction of his rights should not be made. Sub rule 2 of Rule 172 provides that on the date fixed in the proclamation, and after personal service, if required, the Sub Divisional Officer shall proceed to make such inquiry as he deems necessary. Sub rule 3 prescribes that in case after such inquiry, as contemplated in sub rule 2, the Sub Divisional Officer concludes that a declaration in favour of the Land Management Committee should be made, he shall make such a declaration and further specify the numbers of plots with their respective areas of which the Land Management Committee shall be entitled to take possession. After such a declaration the possession shall be delivered to the Land Management Committee in accordance with the procedure laid down in rule 154.
From the provisions of Rule 172 as mentioned above, what transpires is that the Sub Divisional Officer can proceed to make declaration of extinction of rights of a tenure holder in two situations. Firstly, he can proceed to do so on an application to be preferred by the Land Management Committee and secondly, he can also proceed to declare extinction of tenure holder's rights on facts coming to his notice even otherwise. It is, thus, not necessary that declaration as prescribed under section 189/194 of the Act read with Rule 172 has to be made only on an application to be made by the Land Management Committee. The proceedings for declaration of extinction of tenure holder's rights can be drawn by the Sub Divisional Officer on facts coming to his notice otherwise i.e. through some source other than the application which may be moved by the Land Management Committee.
In the instant case, the Tehsildar while rejecting the claim of the respondent nos.7 & 8 and of other claimants for mutation of their names in the revenue records on the death of the original tenure holder Mataru vide his order dated 15.04.2011 had referred the matter to the Sub Divisional Officer and he has not stated that he is referring the matter to the Sub Divisional Officer under section 167 of the Act. He, in fact, has not mentioned any provision of the Act under which he had referred the matter to the Sub Divisional Officer. However, since the Tehsildar in his order dated 15.04.2011 had found that Mataru, the original tenure holder, had died intestate, as such cognizance ought to have been taken by the Sub Divisional Officer under section 189/194 of the Act read with rule 172 of the Rules, 1952. Thus, the order dated 23.07.2012 passed by the Sub Divisional Officer is permissible to be referred as an order under section 189/194 of the Act read with rule 172 of the Rules, 1952. Merely because of mention of section 167 of the Act in the order, will not ipso-facto vitiate the order. In the light of these facts and legal position, I hold that the order dated 23.07.2012 is referable to section 189/194 of the Act read with rule 172 of the Rules, 1952.
Another issue to be determined by this Court is as to whether once the Gaon Sabha was aggrieved by the orders dated 23.07.2012 and 26.10.2012, the remedy of revision under section 333 of the Act was available to the Gaon Sabha or not. Section 333 of the Act vests the revisional jurisdiction in the Board of Revenue, the Commissioner and the Additional Commissioner to call for the record of any suit or proceeding decided by any court subordinate to it where no appeal lies or where an appeal lies but has not been preferred. The purpose of exercise of such revisional jurisdiction is to examine the legality or propriety of any order passed in such suit or proceeding.
Section 333 of the Act is quoted herein below:
"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."
In view of the provisions of section 333 as quoted above, the revisional court is well within its jurisdiction to satisfy itself as to the legality and propriety of any order passed either in a suit or in any proceedings. The revisional courts are also empowered to pass such order in the matter, as the court deems fit, in case the subordinate court is found to have exercised the jurisdiction not vested in it or it has failed to exercise the jurisdiction so vested, or it has acted illegally or with material irregularity in exercise of its jurisdiction.
Submission of learned counsel appearing for the respondent nos.7 and 8 that Schedule-II appended to the Act does not provide any remedy either for instituting a suit or proceedings or application either under section 189 or section 194 of the Act and further that it also does not provide further remedies of first appeal or second appeal and hence even the revision petition could not be preferred under section 333 of the Act against the order dated 23.07.2012 and 26.10.2012 passed by the Sub Divisional Officer, does not appear to be tenable. It is true that Schedule-II does not list any application or proceedings under section 189 or 194 of the Act. However, since section 189 of the Act provides that right of a bhumidhar with transferable rights in a holding gets extinguished and section 194 of the Act provides for entitlement of the Land Management Committee to take over possession of land after extinction of interest therein of a tenure holder and further, Rule 172 prescribes procedure/mode of declaration of extinction of tenure holder's rights, as such if any proceedings are drawn by the Sub Divisional Officer under section 189/194 of the Act read with rule 172, such proceedings in my considered opinion will qualify to be "proceeding" which may be drawn by a court subordinate to revisional courts as envisaged in section 333 of the Act. It is also noticeable that the revisional jurisdiction by the revisional courts in terms of section 333 can be exercised not only in a case where appeal has not been preferred but also in a case where no appeal against an order passed in a suit or proceedings drawn by the subordinate court, has been provided in Schedule-II appended to the Act.
In view of above, this Court is of the considered opinion that the orders passed under section 189/194 of the Act read with rule 172 of the Rules are amenable to revisional jurisdiction of Board of Revenue or the Commissioner or the Additional Commissioner under section 333 of the Act and hence in the facts of the present case the Land Management Committee/Gaon Sabha did not file suit under section 229 of the Act.
Having held as above that the order dated 23.07.2012 passed by the Sub Divisional Officer is referable to section 189/194 of the Act read with rule 172 of the Rules, 1952, what now needs to be considered is as to whether the Sub Divisional Officer has exercised his jurisdiction vested in him in these provisions appropriately and lawfully.
In this regard, rule 172 of the Rules may be referred to again which provides that when the Sub Divisional Officer either on an application moved by the Land Management Committee or on facts coming to his notice otherwise is prima facie satisfied that it is a case for declaration of extinction of tenure holder's right under section 194, he is required to issue a proclamation in Z.A. Form 57. He is also required to serve a copy of the proclamation to the tenure holder in person if he is alive requiring him to show cause why declaration of extinction of his rights may not be made. Sub rule 2 of rule 172 further mandates that the Sub Divisional Officer shall proceed to make such inquiry as he deems necessary and if after inquiry he is of the opinion that declaration in favour of the Land Management Committee is to be made, he shall make such declaration and also specif the plot numbers with their respective areas of which the Land Management Committee is entitled to take possession. On such declaration and specification by the Sub Divisional Officer the possession of such land is to be delivered to the Land Management Committee in accordance with the procedure provided for in Rule 154. Admittedly, in the instant case, no proclamation in Z.A. Form 57 was issued. Thus, on this score alone the procedure adopted by the Sub Divisional Officer while passing the impugned order dated 23.07.2012 is erroneous and runs contrary to the requirement of rule 172 of the Rules.
It has been submitted on behalf of the respondent nos.7 and 8 at this juncture that the Sub Divisional Officer is required to issue a proclamation in Z.A. Form 57 only in case he is satisfied that there is a prima facie case for declaration of the extinction of the tenure holder's right under section 194 and since the Sub Divisional Officer while passing the order dated 23.07.2012 was not prima facie satisfied that it was a case of such a declaration, he has rightly not proceeded to issue proclamation in Z.A. Form 57 and has, thus, rightly not conducted any inquiry as contemplated in sub rule 2 of Rule 172 and therefore no legal flaw can be found in the order dated 23.07.2012 passed by him.
I am afraid, I am unable to accept the said submission advanced on behalf of the respondent nos.7 and 8 for the reason that whether there is a prima facie case for declaration of extinction of tenure holder's rights under section 194 has to be founded on the basis of objective satisfaction which ought to be based on the material available on record.
In the instant case, the material available before the Sub Divisional Officer for proceeding under rule 172 for declaration of extinction of rights of the tenure holder was the order dated 15.04.2011 passed by the Tehsildar. The said order, as observed above, was passed by the Tehsildar in the proceedings under section 34 of U.P.Land Revenue Act which are judicial in nature, wherein it was categorically found and opined by the Tehsildar that the original tenure holder of the land in question, namely, Mataru had died intestate. It is also relevant to notice at this juncture itself that against the order dated 15.04.2011 passed by the Tehsildar the respondent nos.7 and 8 did not prefer any appeal though the remedy of appeal under section 210 of U.P. Land Revenue Act was available to them and thus the said order dated 15.04.2011 became final. A perusal of the order passed by the Sub Divisional Officer dated 23.07.2012 reveals that instead of appropriately drawing the proceedings as prescribed under rule 172 of the Rules, has upset the findings recorded by the Tehsildar in judicial proceedings under section 34 of U.P. Land Revenue Act in his order dated 15.04.2011. The order dated 15.04.2011 passed by the Tehsildar could have been upset or rescinded or set aside only if it was challenged by the respondent nos.7 and 8 by filing an appeal against the said order under section 210 of the U.P. Land Revenue Act. The respondent nos.7 and 8 did not prefer any appeal against the order passed by the Tehsildar on 15.04.2011 is a fact which is not in dispute.
This Court at the cost of reiteration states that satisfaction of there being a prima facie case for declaration of extinction of tenure holder's rights under section 194 has to be necessarily based on material available on record and it should be a satisfaction based on objectivity. Before the Sub Divisional Officer, in this case, there was already a decision rendered in judicial proceedings drawn by the Tehsildar in the form of his order dated 15.04.2011. While recording satisfaction as to whether there was a prima facie case for declaration of extinction of rights of original tenure holder, Mataru under section 189/194 of the Act, it was not open, in my considered opinion, for the Sub Divisional Officer to have completely ignored the findings recorded by the Tehsildar in his order dated 15.04.2011 which is an order passed in judicial proceedings. Any decision made or order passed in judicial proceedings has to be respected and given due weightage even by higher courts or authorities or forums unless such a decision or order passed is set aside by any other higher court or authority or forum. While forming the opinion as to whether there existed a prima facie case for declaration of extinction of rights, the Sub Divisional Officer could not have upset the findings recorded by the Tehsildar in his order dated 15.04.2011 regarding Mataru dying intestate. It is noticeable that the Sub Divisional Officer was not hearing any appeal under section 210 of U.P. Land Revenue Act while he passed the order on 23.07.2012. As observed above, respondent nos.7 and 8 had not filed any appeal under section 210 of U.P. Land Revenue Act against the order dated 15.04.2011 passed by the Tehsildar.
For the reasons aforesaid, I have no hesitation to hold that while passing the order dated 23.07.2012 the Sub Divisional Officer has not acted in terms of the requirements of rule 172 of the Rules and has thus, manifestly erred in law. I further hold that he did not have any jurisdiction to have upset the findings recorded by the Tehsildar in his order dated 15.04.2011 that Mataru had died intestate for the reason that the said order dated 15.04.2011 was not challenged by the respondent nos.7 and 8 in appeal under section 210 of U.P. Land Revenue Act.
In view of the discussions made hereinabove, the writ petition succeeds and is hereby allowed. The orders dated 23.07.2012 and 26.10.2012 passed by the Sub Divisional Officer are hereby quashed. The order dated 04.11.2019 passed by the Additional Commissioner, Lucknow Division, Lucknow is also hereby quashed.
The matter is remitted to the Sub Divisional Officer concerned for drawing the proceedings under section 189/194 of the Act read with Rule 172 of the Rules, 1952 afresh. The Sub Divisional Officer shall thus proceed with the matter in terms of this order and decide the same expeditiously, say within a period of three months from the date of production of certified copy of this order. It is also directed that the parties shall appear before the Sub Divisional Officer concerned on 04.03.2019 and no further notice will be required to be served on them by the Sub Divisional Officer.
The Sub Divisional Officer shall proceed to decide the matter afresh in accordance with law and also taking into consideration the observations made hereinabove. The Court further directs that the parties to the proceedings to be drawn and conducted under this order by the Sub Divisional Officer shall not seek any unnecessary adjournments and adjournment if prayed for, shall be permissible to be granted by the Sub Divisional Officer concerned only in exceptional circumstances.
In the facts of the case, there will be no order as to cost.
Order Date :- 18.2.2019 akhilesh/ [Devendra Kumar Upadhyaya, J.]