1.Heard Sri S.C. Verma, learned counsel on behalf of the petitioner and learned Standing Counsel for respondents. Though name of Sri V.K. Singh, Advocate, has been shown in the cause list, but none appeared on behalf of respondents 3 and 4 despite the case having been called in the revised list.
2.Writ petition is directed against the order dated 22.5.1992 (annexure 1 to writ petition) whereby Collector/ Addl. Collector, Mathura has cancelled lease of residential plot no. 233 having area of 150 sq. yard at village Rausera, Pergana, Chhata, District Mathura and order dated 5.1.1993 passed by Addl. Commissioner, Agra dismissing revision of petitioner being not maintainable in view of decision in Ramyagya Vs. Addl. Commissioiner, Varanasi & others 1991 RD 51 and Raj Kumar Vs. Ram Sajiwan 1992 RD 89.
3.Sri Verma contended that there was a scheme propounded by State Government for allotment of Agricultural land to those who go for sterilization. Petitioner's wife went for sterilization and, therefore, under the order of Deputy Collector, land was allotted to him sometimes in the year 1987 and allotment not being under Section 122-C of U.P. Zamindari Abolition And Land Reforms Act, 1950 (hereinafter referred to as "1950 Act"), but in purported exercise of power under Rule 115-M of U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as "1952 Rules"), and, therefore, the Collector erred in law in cancelling the same by exercising power under Section 122-C (6) and the revisional authority in rejecting the revision on the ground that the same is not maintainable has also erred.
4.A short question up for consideration is whether in the present case, revision was maintainable or not.
5.It is no doubt true that Collector has considered the question as to whether lease was granted to petitioner validly or not by referring Section 122-C (6) of 1950 Act. The revision was filed by petitioner under Section 333-A which was inserted by Section 26 of U.P. Act No. 30 of 1975, but has been omitted now by U.P. Act No. 20 of 1997. At the relevant time, Section 333-A 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, concealled 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."
6.A perusal of Section 333-A shows that it refers to record of a suit or proceeding referred to in Section 333 and, therefore, it would be appropriate to have a perusal of Section 333 which at the relevant time reads as under:
"333. Power of Board to call for cases.- The Board may call for the record of any suit or proceeding. [The words "referred to in Schedule II" deleted by Section 80 of U.P. Act XXXVII of 1958] 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."
7.Section 122-C deals with allotment of land of housing site to the members of scheduled castes, scheduled tribes, other backward classes, the persons of general category living below poverty line, agricultural labourers and village artisans. Sub-section 6 thereof confers power upon the Collector for cancellation of an allotment, if he is satisfied that the same was made irregularly. Sub-section 7 declares such an order final and further that the provisions of Section 333 and 333-A shall not apply in relation thereto. The kind of lease covered by Section 122-C is clear from Sub-section 1 of Section 122-C which reads as under:
"122-C. Allotment of land for housing site for members of Scheduled Castes, agricultural labourers etc. - (1) The Assistant Collector in charge of the sub-division on his own motion or on the resolution of the Land Management Committee, may earmark any of the following clauses of the land for the provision of abadi sites for the members of the Scheduled Castes and the Scheduled Tribes and the other backward classes and the persons of general category living below poverty line 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 the 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 becomes 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."
8.The categories, therefore, to whom land can be alloted under Section 122-C 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.
9.The land which has to be so allotted is one which is earmarked for the said purpose. In respect to the land which is not so earmarked, Rule 115-M of 1952 Rules provides as under:
"115-M. B.-Other abadi sites.- (1) Abadi sites other than those referred to rule 115-I, and vested in Gaon Sabha may be allotted for construction of building for residential or charitable purposes or for purposes of cottage industry in the following order of preferences:
(a) a landless agricultural labourer or village artisan residing in the village;
(b) a bhumidhar, sirdar and asami residing in the village and holding land less than 1.26 hectares (3.125 acres);
(c) any other persons 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 credited to the Gaon Fund;
Provided that no premium shall be charged in respect of site allotted for charitable purpose.
10.If there is a complaint with respect to allocation of land under Rule 115-M, Collector may make an enquiry, as provided under Rule 115-P and, thereafter, pass order which is declared final vide Sub-rule 5 thereof.
11.It is true that Sub-rule 5 of Rule 115-P makes the order of Collector under Rule 115-P final, but it cannot be placed at the same pedestal as the provision contained under Sub-section 7 of Section 122-C. The import of a principal legislation cannot be widened or restricted by subordinate legislation, namely by a Rule. The applicability of Section 333 and 333-A has been excluded expressly by Sub-section 7 of Section 122-C, but that is neither so in Rule 115-P nor can be for the simple reason that a Rule cannot be placed at par and at the same pedestal as the principal legislation. Applicability of provisions of an Act, unless provided otherwise, cannot depend on the discretion of the rule framing authority. If the provision of an Act are otherwise applicable and can be invoked, by referring or by making a provision or by construing a rule, applicability of an Act cannot be excluded. There is express exclusion of Section 333 and 333-A in Section 122-C (6) but no such provision has been made in respect to allotment of land under Rule 115-M and the order passed under Rule 115-P.
12.It may also be said that in respect to land other than that earmarked under Section 122-C, allotment is provided by rule framing authority but the other provisions which authorize higher authority to exercise power of revision cannot be restricted by a rule framing authority as that would be repugnant to such an extent if construed in the manner as argued by learned Standing Counsel.
13.The two decisions referred to by Commissioner are applicable where order is passed under Section 122-C (6). In the former decision, Hon'ble B.L. Yadav, J. of this Court and in the later, the Member, Board of Revenue rightly held that revisions under Section 333-A is not maintainable, but the two decisions would not have application in the case in hand in view of discussion made above.
14.In this regard, I find another decision of Board of Revenue in Naresh Chand & others Vs. State of U.P. & others 1995 U.P. Revenue Judgments 311 which, in my view, has taken a correct view that in a case where the order is referable to Rule 115-P read with 115-M and not covered by Section 122-C revision would lie. In my view, allotment of land in question being not under Section 122-C of 1950 Act, but under a different scheme i.e. Rule 115-M, the revisional authority was not correct in holding that revision was not maintainable.
15.However, here at this stage one more aspect need be considered. The Collector passed order by specifically referring to Section 122-C (6) and despite the contention of petitioner that he was not alloted land under Section 122-C, but pursuant to a scheme of the State Government with respect to sterilization (relating to family planning) yet he ( the Collector) has not considered the question whether land in question was alloted to petitioner in respect to land earmarked under Section 122-C (1) or it is covered by Rule 115-M that is land other than covered under Section 122-C (1). Had this aspect been considered by Collector and he would have recored a finding thereon, that would have given an occasion to Commissioner also to look into the question whether revision is maintainable or not. Therefore, this Court is of the opinion that both the orders impugned in this writ petition deserve to be quashed.
16.Accordingly, writ petition is allowed. Impugned orders dated 22.5.1992 (Annexure 1 to writ petition) passed by respondent no. 2 and 5.1.1993 (Annexure 3 to writ petition) passed by respondent no. 1 are hereby quashed. The matter is remanded to Collector to consider afresh in the light of observations made above and in accordance with law. He shall pass a fresh order after giving due opportunity of hearing to all concerned parties expeditiously.
Dt. 18.7.2011 PS