Heard Sri Sheetla Sahai, learned counsel for the petitioners, Sri Anuj Kumar, learned counsel for respondent no. 3 and the learned Standing Counsel.
At the very outset Sri Anuj Kumar, learned counsel for the respondent no. 3 submits that he may be allowed to withdraw the counter affidavit filed by him on 20.5.2013, as earlier a counter affidavit has been filed on behalf of respondent no. 3 by the then counsel Sri V.K. Singh. The prayer is allowed. Counter affidavit dated 20.5.2013 filed by Sri Anuj Kumar, learned counsel on behalf of respondent no. 3 is rejected as not pressed.
The writ petition is directed against the order dated 17.11.2000 passed by the Additional Collector (Finance & Revenue), Gautam Budh Nagar and the order dated 18.11.2002 passed by the Additional Commissioner (Admin), Meerut Division, Meerut.
The brief facts of the case are that on the basis of resolution of the Land Management Committee dated 7.5.1997, lease was granted in favour of the petitioners. The Sub Divisional Officer, Dadari, District-Ghaziabad has approved the lease on 3.6.1997. A show cause notice dated 14.12.1999 was served upon the petitioners and they had replied the same. The Additional Collector after consideration of the reply submitted by the petitioners, cancelled the proposal of the Land Management Committee as also the approval order passed by the Sub Divisional Officer. Challenging the same, a revision was filed which was dismissed by the Additional Commissioner.
Challenging the orders passed by the respondents Authorities, learned counsel for the petitioners submits that the proceedings were initiated on the application moved by the President of Nehru Yuva Mandal an orginasation which cannot be said to be an aggrieved person. The application was politically motivated and has been filed on account of village party bandi.
It is further submitted that the application was time barred as no proceeding whatsoever has been initiated within the time prescribed under Section 198 (6) of U.P.Z.A. And L.R. Act. An ex-parte report was called for by the respondent no. 2 and relying upon the said report, the lease was cancelled. As the copy of the report has not been supplied to the petitioners and hence, the cancellation order was passed in violation of the principles of natural justice.
Much emphasis has been laid by the learned counsel for the petitioners in submitting that the order of cancellation has been passed by the Additional Collector who had no jurisdiction to pass order under Section 198(4) of the Act. The submission is that under the scheme of the Act, the cancellation order can only be passed by the Collector. In support of this submission, learned counsel for the petitioner has relied upon the judgment of this Court in 2013 (120) RD Page 269 (Ram Awadh and another Versus Board of Revenue, U.P. and others).
Learned Standing Counsel has refuted the submissions of the learned counsel for the petitioner and submitted that though the proceedings were initiated on the application moved by the President, Nehru Yuva Mandal, however, after cognizance was taken, the matter was inquired into by the respondent no. 2 through Tehsildar. On the report of the Tehsildar, Dadri dated 21.8.1999 and 7.9.1999, suo moto cognizance was taken by the Additional Collector looking to the seriousness of the matter and a show cause notice was issued to all the persons to whom lease was granted. The submission is that several illegalities were found in the allotment made and hence the proposal of allotment and the approval order were cancelled.
Having considered the submission of the learned counsel for the petitioner and perused the record, it is evident that the Tehsildar in his report dated 21.8.1999/7.9.1999 has submitted that the allotment was made against the rules. In the proposal, 20 persons were found minor. The persons whose names were mentioned at serial no. 88 and 98 were in service at the time of allotment. A categorical finding has been recorded by the Additional Collector that the lease of residential plots have been granted to persons who were not eligible and do not come in the preferential category under the U.P. Z.A. & L.R. Act. The procedure as prescribed under the Act and the Rules have not been followed. The revisional authority also considered that certain persons who were not even the residents of the village had been granted lease by the allotment made on 3.6.1997 apart from other illegalities.
Learned counsel for the petitioner has failed to dispute the said findings of fact recorded by the Additional Collector. As several irregularities and illegalities were found in the entire allotment of residential land in favour of the petitioners, the order of cancellation as also the revisional order do not require interference by this Court.
So far as the submission of the learned counsel for the petitioner that the Additional Collector (Finance & Revenue), Gautam Budh Nagar had no jurisdiction to pass the cancellation order is concerned, it is noteworthy that a Full Bench of this Court in Brahm Singh Versus Board of Revenue and others 2008 (3) AWC 2200 has set the controversy at rest. The question referred to the Full Bench is as under:-
"Whether under Section 198 (4) of U.P. Zamidari Abolition and Land Reforms Act, 1950, the power of Collector can be exercised by Additional Collector."
The said question was answered by the Full Bench in affirmative and it was held that the power and functions of the Collector can be exercised by the Additional Collector under Section 198 (4) of U.P. Z.A. & L.R. Act, if he has been so directed by the Collector of the District. No dispute raised by the petitioner that the Additional Collector has not been so directed by the Collector.
In the instant case, the order impugned has been passed by the Additional Collector(Finance & Revenue), Gautam Buddh Nagar. To appreciate the controversy, certain provision of the U.P. Land Revenue Act Act, 1901(hereinafter referred to as the " Act, 1901") are relevant. Section 14 of the Act, 1901 reads as under:-
"Section 14. Collector of the district:- The State Government shall appoint in each district an officer who shall be the Collector of the district and who shall, throughout his district, exercise all the powers and discharge all the duties conferred and imposed on a Collector by this Act or any other law for the time being in force."
Section 14-A deals with appointment, powers and duties of Additional Collectors and is reproduced as under:-
"Section 14-A Appointment, powers and duties of Additional Collectors.-
(1) The State Government may appoint an Additional Collector in a district or in two or more districts combined.
(2) An Additional Collector shall hold his office during the pleasure of the State Government.
(3) An Additional Collector shall exercise such powers and discharge such duties of a Collector in such case or classes of cases as the Collector concerned, may direct.
(4) This Act and every other law for the time being applicable to a Collector shall apply to every Additional Collector, when exercising any powers or discharging any duties under sub-section (3), as if he were the Collector of the district.."
Section 15 provides for appointment of Assistant Collector, reads as under:-
"Section 15 Assistant Collectors.- (1) The State Government may appoint to each district as many other persons as it thinks fit to be Assistant Collectors of the first or second class.
(2) All such Assistant Collectors, and all other revenue officers in the district, shall be subordinate to the Collector."
Now, a reference may be taken to Section 3(4) of the U.P.Z.A. & L.R. Act, 1950 :-
"Section 3(4) "Collector" means an officer appointed as Collector under the provisions of the U.P. Land Revenue Act, 1901 and includes an Assistant Collector of the first class empowered by the State Government by a notification in the Gazette to discharge all or any of the functions of a Collector under this Act."
A conjoint reading of these provisions as contained in Land Revenue Act, 1901 and U.P.Z.A. & L.R. Act, 1950 clearly indicates that the post of Additional Collector has been created to provide additional hand to the Collector. Section 14-A of the Act, 1901 clearly provides that the Additional Collector appointed by the State Government shall exercise such powers and discharge such duties of a Collector in such case or classes of cases as the Collector concerned directs. Section 14-A further provides that the Additional Collector while exercising the powers and discharging duties under the Act, 1901 and under any other law for the time being applicable to the Collector, acts as a Collector of the district.
Therefore, by legal fiction, order passed and the jurisdiction exercised by the Additional Collector by virtue of sub-section (3) of Section 14-A would be deemed to be that of a Collector of the district under Section 14-A(4) of the Act,1901. Whereas, the Assistant Collector is an officer appointed in the district and is subordinate to the Collector. It is nowhere provided that the Assistant Collector would also be treated to be a Collector of the district when he will be discharging duties assigned to him by the Collector or any other authority competent to do so in respect to the said district. Sub-section (4) of Section 3 of Act, 1950 provides that only those Collector of First Class are included within the meaning of Collector who are empowered by the State Government by notification in the Gazette to discharge all or any of the functions of the Collector under the aforesaid Act. Thus, issuance of notification by the State Government is necessitated in case of an Assistant Collector because of absence of legal fiction created by sub-section (4) of Section 14-A of Act, 1901 whereunder the order passed by the Additional Collector while exercising power or discharging duty as a Collector would be deemed to be an order of the Collector under that Act. Therefore, in view of sub-section (4) of Section 14-A of the U.P. Land Revenue Act, the Collector would include Additional Collector also when he acts and discharges duties of the Collector.
In view of the above discussion, the judgment in the case of Ram Awadh and others (supra) relied upon by the learned counsel for the petitioner is of no benefit, as in the said case, Assistant Collector-in-charge of the sub-division had passed the order under Section 198(4) of the Act whereas in the present case, the order has been passed by the Additional Collector, who is Collector within the meaning of sub-section (4) of Section 3 of Act No.1 of 1950.
As far as the limitation as provided under Section 198(6) is concerned, suffice it to say that though the application was moved by Nehru Yuva Mandal, however, suo moto cognizance was taken by the Additional Collector, looking to the seriousness of the matter and a report has been called for from the Tehsildar. When it came to his knowledge that the persons in whose names, the allotment has been made, were not eligible persons as per the scheme of the Act, he took suo moto cognizance of the matter and proceeded to issue show cause notice to all the persons in whose favour lease was granted including the petitioners. The petitioners submitted their explanation but failed to dispute the specific finding of fact that the lease was granted in favour of the ineligible persons.
Even before this Court, the petitioners have failed to file any document to substantiate that they were the eligible persons and there was no illegality in the allotment made in their favour. In the reply dated 6.1.2000 submitted to the Additional Collector as also in the present writ petition, only vague assertions have been made that no minor person or the persons in service or the persons living out side the village have been granted lease. Various technical objections have been raised in the reply submitted by the petitioners but no document had been filed to substantiate that they were the eligible persons.
It is evident that the allotment of valuable land of the State was made without verification of the eligibility of the allottees much to the disadvantage of the landless members of the Scheduled Castes, the Scheduled Tribes and members of Other Classes as per the scheme of the Act.
In view of the above discussion, the Court arrives at an irresistible conclusion that the allotment in favour of the petitioners is nothing but an outcome of fraud.
In the facts of the present case and circumstances that the Collector has expressed satisfaction with regard to the illegality which is nothing less than a fraud, the Court is not inclined to interfere in the orders passed.
In the result, the writ petition is dismissed.
Order Date :- 5.9.2014 B.K./P.P.