Court No. - 1
Case :- WRIT - C No. - 24930 of 2020
Petitioner :- Vishram
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Mahesh Prasad Yadav
Counsel for Respondent :- C.S.C.,Sunil Kumar Singh
Hon'ble Vivek Agarwal,J.
1. Heard Sri M.P. Yadav, learned counsel for the petitioner and Sunil Kumar Singh, learned counsel for Gram Sabha.
2. Learned counsel for the petitioner has filed this petition assailing order dated 27.02.2020 passed by learned Additional Collector (Finance/Revenue), Kaushambi taking the matter in suo-moto revision registering as Revision No. 166 of 2017-18 to the effect that land in question contained in 846 min measuring 0.171 hectares and 0.06 hectares was allotted to one Vishram Chaubey, resident of Village Mohammadpur Aswan, Pargana and Tehsil Chail, District Kaushambi, but prior to allotment made in favour of the present petitioner, same piece of land was allotted in favour of various persons for construction of houses. A dispute arose in regard to possession of the land between the earlier allottee and the present petitioner, when matter come to the knowledge of Additional Collector and he held that subsequent allotment, which was made in favour of the petitioner was void ab initio inasmuch as same land was earlier allotted in favour of various beneficiaries for construction of house vide order dated 27.07.2002 whereas patta in favour of the petitioner was issued on 17.08.2006.
3. Additional Collector held that since earlier order of allotment was neither superseded nor taken into consideration while passing order dated 17.08.2006 in favour of the petitioners, it will be treated to be non est and earlier order shall have precedence over the subsequent order and allotment.
4. This order has been affirmed by the revisional court on the ground that Section 210 of the U.P. Revenue Code provides for the grounds on which order passed by the subordinate authority will be tested and none of the grounds mentioned in the said section is made out and therefore, dismissed the revision.
5. Learned counsel for the petitioner submits that firstly allottee of the residential patta is required to construct the house within a period of 3 years, failing which patta is deemed to have been cancelled. His second argument is that he is a handicapped person, engaged in the agricultural activities and therefore, by virtue of his possession and occupation of the land in question, he has attained bhoomidhari rights as his possession is for over 10 years.
6. It is submitted that in view of these facts, impugned orders calls for interference and needs to be set aside. He also placed reliance on Section 128 (1-A) of the U.P. Revenue Code, 2006.
7. Section 128 deals with cancellation of allotment and lease and Section 128 (1-A) provides that any application under sub- section (1) may be moved in case of allotment of land made before the commencement of this Code, within 5 years from the date of such commencement and in case of allotment of land made on or after the date of such commencement, within 5 years from the date of such allotment or lease. Placing reliance on provisions contained in Section 128 (1-A), it is submitted that since allotment was made in favour of the petitioner in the year 2002 and 2006 respectively, therefore, it is not open to the Additional Collector to inquire into the aspect of allotment on lease. It is also submitted that this jurisdiction could have been exercised only by the Collector and no authority subordinate to the Collector.
8. Learned counsel for the petitioner also places reliance on the judgments in case of Similesh Kumar vs. Gaon Sabha, Uskar, Ghazipur and others, 1977 R.D. 408, Shiv Autar vs. Nabi and others, (1996) 87 R.D. 190 and Shiv Lal vs. Board of Revenue and Others, 1985 R.D. 66.
9. Sri Singh, learned counsel for Gram Sabha submits that as per the document contained in Annexure-6, which is the report of the Lekhpal dated 21.08.2019, it is apparent that land in question was earlier allotted to 14 persons on 30.10.1997 and thereafter to 50 persons on 28.12.1999 for the purposes of construction of houses, out of these 35 persons were allotted land which was subsequently allotted for the purposes of agricultural patta in favour of the petitioner. It is further submitted that as per the report of the Lekhpal, only one person has constructed house, but rest of the land is vacant and as per the report of the Lekhpal neither petitioner is in possession of the land nor anybody else. Therefore, contention of the petitioner that he is in possession over the land for over 10 year and has attained bhoomidhari rights, is not made out. It is further submitted that Section 129 of the U.P. Revenue Code, 2006 provides for restoration of the possession to the allottee or the government lessee. If powers are exercised under Section 129 of the U.P. Revenue Code for restoration of possession to allottee or the government lessee, then Assistant Collector is authorized to take action and further provisions of Section 128 (1-A) of the U.P. Revenue Code will not be applicable to the facts and circumstance of the case inasmuch, as per the definition provided under Section 4(8) of the U.P. Revenue Code, Collector is defined as 'an officer appointed as such by the State Government under sub-section (1) of Section 12, and shall include, -
(a) an Additional Collector appointed by the State Government under sub-section (2) of the said section; and
(b) an Assistant Collector of the first class empowered by the State Government by notification to discharge all or any of the functions of a Collector under this Code.'
10. After hearing learned counsel for the parties and going through the record, it is apparent that these judgments are prior to the year 2006, when the U.P. Revenue Code in the present form has been enacted and therefore, provisions of the U.P. Revenue Code includes Additional Collector and Assistant Collector within the meaning of the Collector, than authority exercised by the Additional Collector invoking provisions of Section 128 of U.P. Revenue Code cannot be said to be arbitrary or illegal, which it exercised in conjunction with the authority vested under Section 129 of the U.P. Revenue Code, 2006.
11. The bar of 5 years will also not come in the way of exercise of revisionary power of its own motion inasmuch as per sub- section 1-A of Section 128 of the U.P. Revenue Code, bar is for exercise of jurisdiction on an application to be made by an aggrieved person. Sub-section 1 of Section 128 of the U.P. Revenue Code provides for exercise of suo-moto power of revision on either receiving an application by an aggrieved person or on own motion, therefore, only in the eventuality of an application being made, provisions of sub-section 1-A will come into operation.
12. Moreover, Section 129 of the U.P. Revenue Code does not prescribe any such limitation and admittedly when patta was issued in favour of other allottees prior to allotment of agricultural patta in favour of the petitioner, then it was incumbent upon the allotment authority to have inquired into the facts of previous allotment and without passing any order of cancellation of previous allotment, no fresh allotment could have been made and to this extent, orders passed by the Additional Collector and the Commissioner cannot be faulted with especially, in view of the fact that there is categorical report, which is not disputed before any of the authorities that petitioner is also not in possession of the land.
13. Accordingly, petition fails and is dismissed.
Order Date :- 8.1.2021 Vikram/-