# Goharwa Kukkut Palan Sahkari Samiti Ltd v. Board of Revenue & Ors

- **Citation:** (2014) 3 ILRA 1162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-02
- **Case number:** Civil Misc. Writ Petition No. 70123 of 2013
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/goharwa-kukkut-palan-sahkari-samiti-ltd-v-board-of-revenue-ors-43113
- **Pages:** 8

## Headnote

U.P. Z.A. & L.R. Rules 1952-Rule 172(i)
read with U.P. Imposition of ceiling on
Land
Holding
Act
1960-Section
27cancellation of lease-relating to surplus
land-can be only by the commissioner
and not by S.D.O.-under Section 198(1)
of
U.P.Z.A
Act-even
order
without
following
procedure
contained
Rule
172(1)-held-order without jurisdiction.

Held: Para-25
It is settled that when the statute provides
to do a thing in a particular manner, then
that thing has to be done in that very
manner.Here sub-rule (1) of Rule 172 of the
Rules
of
1952
provides
that
before
extinction of the right of a tenure holder, he
has to be noticed and the notice part is
missing.Therefore, the order impugned has
been passed against the statute itself,
under which power has been exercised.

Case Law discussed:
(2008 (1) Supreme 290).

## Text

1162 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfactorily, as to why, the petitioner has
approached the Court after twelve years. The
petitioner is entitled to get his application for
ex-gratia payment, considered as per the
existing scheme.

15. In the facts and circumstances of
the case, the petitioner is not entitled for
compassionate
appointment,
as
the
scheme no longer exists, however, in
event, the petitioner approaches the
respondent-bank by making an application
in the prescribed form for payment of exgratia amount in lieu of compassionate
appointment, the respondent-bank shall
consider
the
application
and
pass
appropriate orders within three months from
the date of filing of certified copy of this
order along with the application form.

16.

Subject
to
the
above
observations, the writ petition is disposed
of.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2014

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 70123 of 2013

Goharwa Kukkut Palan Sahkari Samiti
Ltd. ...Petitioner
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioner:
Sri L.P. Singh, Sri Brajesh Singh

Counsel for the Respondents:
C.S.C.

U.P. Z.A. & L.R. Rules 1952-Rule 172(i)
read with U.P. Imposition of ceiling on
Land
Holding
Act
1960-Section
27cancellation of lease-relating to surplus
land-can be only by the commissioner
and not by S.D.O.-under Section 198(1)
of
U.P.Z.A
Act-even
order
without
following
procedure
contained
Rule
172(1)-held-order without jurisdiction.

Held: Para-25
It is settled that when the statute provides
to do a thing in a particular manner, then
that thing has to be done in that very
manner.Here sub-rule (1) of Rule 172 of the
Rules
of
1952
provides
that
before
extinction of the right of a tenure holder, he
has to be noticed and the notice part is
missing.Therefore, the order impugned has
been passed against the statute itself,
under which power has been exercised.

Case Law discussed:
(2008 (1) Supreme 290).

(Delivered by Hon'ble Ran Vijay Singh, J.)

1. Heard Sri L.P. Singh, learned
counsel for the petitioner and Sri Sanjay
Goswami,
learned
Additional
Chief
Standing Counsel appearing for the Staterespondents.

2. Learned Additional Chief Standing
Counsel does not propose to file any
counter affidavit and states the this writ
petition itself may be decided on its own
merit on the basis of the existing facts.

3. the consent of learned counsel for
the parties, the writ petition is taken up
for final disposal.

4. By means of this writ petition, the
petitioner has prayed for issuing a writ of
certiorari quashing the order dated 20.7.2009
passed by the Sub Divisional Officer, Banda
in case no. 1 of 2008-09 and order dated
14.1.2013 passed by the Board of Revenue,
U.P. at Allahabad in revision no. 62 of 200809.
3 All]. Goharwa Kukkut Palan Sahkari Samiti Ltd. Vs. Board of Revenue & Ors.
1163

5. Vide order dated 20.7.2009, the
Sub
Divisional
Officer,
Banda
has
approved the report of the Tehsildar,
Banda for expunging the name of the
petitioner from the revenue record and
recording the same in the ceiling khata,
whereas by the subsequent order dated
14.11.2013, the revision filed by the
petitioner
against
the
order
dated
20.7.2009 has been dismissed by the
Board of Revenue, Allahabad.

6. The submission of learned
counsel for the petitioner is that the order
impugned is without jurisdiction for the
simple reason that the lease was granted
to the petitioner under the provisions of
U.P. Imposition of Ceiling on Land
Holdings Act, 1960 (hereinafter referred
to as 'the Act of 1960'), therefore, the Sub
Divisional Officer had no jurisdiction to
pass the impugned order and the order, if
any, could be passed either under section
27 of the Act of 1960 or under sub-rule
(4) of Rule 59 of the U.P. Imposition of
Ceiling on Land Holdings Rules, 1961
(hereinafter referred to as 'the Rules of
1961').

7. The facts giving rise to this case
are that it appears, over the ceiling land,
patta was granted to the petitioner's
society on 1.3.1969 for running poultry
farm over an area measuring about 136
bigha 15 biswa and 3 biswansi.The details
of the plots have been given in annexure 2
to the writ petition (page 19 of the writ
petition).

8. Later on, a case was initiated
under section 33/39 of the U.P. Land
Revenue Act, 1901 by the Lekhpal, which
was numbered as case no. 81, before the
Tehsildar, Banda for expunging the name
of the Society from the revenue record on
the ground that the Society is no more in
existence as the President of the Society,
Gajraj Singh has already died and there is
no existence of the Society in the name of
Goharwa Kukkut Palan Sahkari Samiti
Ltd.Further, no work of poultry farming is
being performed over the leased land and
the said land is now being used by Sri
Ram Pal Singh, S/o late Gajraj Singh.

9. The aforesaid case was later on
registered under section 190 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 (hereinafter referred to as 'the
Act of 1950'),and re-numbered as case no.
1 of 2008-09.In this case placing reliance
upon the report Lekhpal, the Sub
Divisional
Officer
has
passed
the
impugned order dated 20.7.2009.

10. Aggrieved by the aforesaid
order, the petitioner has filed revision
stating therein that the Society is very
well in existence and this order has been
passed
illegally
without
giving
an
opportunity of hearing to the petitioner,
but the same has been dismissed.

11. Learned counsel for the petitioner
contends that the order impugned is
without jurisdiction as the same could not
be passed by the Sub Divisional Officer
either while exercising power under
section 190 of the Act of 1950 or under
section 33/39 of the U.P. Land Revenue
Act, 1901.His further contention is that the
proceeding is itself barred in view of subsection (6) of section 27 of the Act of
1960.It is further contended that the
valuable right was existing in favour of the
Society and that has been taken away by
the impugned order without affording an
opportunity of hearing, therefore, the order
impugned suffers from breach of principles
of natural justice.
1164 INDIAN LAW REPORTS ALLAHABAD SERIES

12. It is not in dispute that Goharwa
Kukkut Palan Sahkari Samiti Ltd. was granted
lease under the provisions of the Act of
1960.In the submission of learned counsel for
the petitioner it could be cancelled under subsection (4) of section 27 of the Act of 1960
and proceeding for cancellation could be
initiated within the period provided under subsection (6) of section 27 of the Act of 1960,
which has now become time barred, therefore,
the order impugned is without jurisdiction.

13. Refuting the submissions of
learned counsel for the petitioner, learned
Additional Chief Standing Counsel has
contended that the provisions of section
27 of the Act of 1960 is not attracted in
the present case for the simple reason that
the lease has not been cancelled on the
ground of any irregularity in the process
of granting lease, therefore, there is no
question of applicability of sub-section
(6) of section 27 of the Act of 1960.

14. For appreciating the controversy,
it would be appropriate to go through the
provisions contained under sub-sections
(1), (3), (4) and (6) of section 27 of the
Act of 1960, which read as under:

"27. Settlement of surplus land- (1) The
State Government shall settle out of the
surplus land in a village in which no land is
available for community purposes or in
which the land as available is less that 15
acres with the Gaon sabha of that village so
however that the total land in the village
available for community purposes after such
settlement does not exceed 15 acres.The land
so settled with the Gaon Sabha shall be used
for planting trees, grwoing fodder or for
such other community purposes, as may be
prescribed.

(2) * * *

(3) Any remaining surplus land shall
be settled by the Collector in accordance
with the order of preference and subject
to the limits, specified respectively in subsections (1) and (3) of Section 198 of the
Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950.

(4) The commissioner may of his own
motion and shall, on the application of
any aggrieved person, enquire into such
settlement and if he is satisfied that the
settlement is irregular he may after notice
to the person in whose favour such
settlement is made to show cause-

(i) cancel the settlement and the
lease,
if
any
and
thereupon,
notwithstanding anything contained in
any other law or in any instrument, the
rights, title and interest of the person in
whose favour such settlement was made
or lease executed or any person claiming
through him in such land shall cease, and
such land shall revert to the State
Government; and

(ii) direct that every person holding
or retaining possession thereof may be
evicted, and may for that purpose use or
cause to be used such force as may be
necessary.

(5) * * *

(6) The Commissioner acting of his
own motion under sub-section (4) may
issue notice, and an application under
that sub-section may be made,-

(a) in the case of any settlement
made or lease granted before November
10, 1980, before the expiry of a period of
seven years.
3 All]. Goharwa Kukkut Palan Sahkari Samiti Ltd. Vs. Board of Revenue & Ors.
1165

(b) in the case of any settlement
made or lease granted on from the said
date, and or after the said date, before the
expiry of a period of five years from the
date of such settlement or lease or up to
November 10, 1987, whichever be latter."

15. From the bare reading of subsections (1), (3), (4) and (6) of section 27
of the Act of 1960, it would transpire that
the State Government shall settle out the
surplus land in the village in which more
land is available for community purposes
or in which the land as available is less
than 15 acres with the Gaon Sabha of that
village and the land so settled with the
Gaon Sabha shall be used for planting
trees, growing fodder or for such other
community
purposes,
as
may
be
prescribed.In view of sub-section (3) of
section 27 of the Act of 1960, any
remaining surplus land shall be settled by
the Collector in accordance with the order
of preference and subject to the limits,
specified respectively in sub-sections (1)
and (3) of Section 198 of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 1950.Sub-section (4) of
section 27 of the Act of 1960 provides
that the Commissioner may of his own
motion and shall, on the application of
any aggrieved person, enquire into such
settlement and if he is satisfied that the
settlement is irregular he may after notice
to the person in whose favour such
settlement
is
made,
cancel
the
settlement.Sub-section (6) of section 27 of
the Act of 1960 provides the limitation of
seven years if the lease is of prior to
10.11.1980 and in remaining cases, five
years.

16. The submissions of learned
counsel for the petitioner is that the lease
executed under the Act of 1960 could be
cancelled only under sub-section (4) of
section 27 of the Act of 1960 by the
Commissioner, subject to, cancellation
proceeding was initiated within the time
limit prescribed under sub-section (6) of
section 27 of the Act of 1960.In his
submissions, since the lease was granted
in the year 1969, therefore, the order
impugned is without jurisdiction.

17. After going through the bare
provisions contained under sub-section
(4) of section 27 of the Act of 1960, it is
apparent that the Commissioner may
cancel the lease on his own motion or on
the application of any aggrieved person, if
he is satisfied that there was any irregularity
while granting lease.The case in hand is not
a case where lease has been cancelled on
the ground of irregularity in the process of
grant of lease,therefore, I do not find any
force in the submissions of the learned
counsel for the petitioner that action could
be taken under sub-section (4) of section 27
of the Act of 1960.

18. Learned counsel for the
petitioner further contended that the lease
granted to the petitioner could neither be
determined nor cancelled under the
provisions of the Act of 1950 by the
District Magistrate.

19. Here, from the perusal of the
impugned order, it transpire that the case
was registered under section 190 of the
Act of 1950 on the basis of the reports of
Lekhpal,
Revenue
Inspector
and
Tehsildar, who reported that the President
of the Society, Gajraj Singh has already
died and the Society, named as Goharwa
Kukkut Palan Sahkari Samit Ltd., is no
more in existence and the son of the
President, Sri Ram Pal is in unauthorized
possession over the land in dispute.
1166 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The question would be as to whether
under the facts and circumstances of the case,
the Collector was competent to initiate such
proceeding and if initiated, whether the order
impugned passed by him is in consonance with
the provisions contained under section 190 of
the Act of 1950.Section 190 of the Act of 1950
talks about the extinction of the interest of a
Bhumidhar with non-transferable right in
certain eventuality.The procedure for declaring
the extinction of the interest of a Bhumidhar
has been given under Rule 172 of the Rules of
1952 and the consequences of such extinction
of right has been given under section 194 of the
Act of 1950.for appreciating the controversy,
these provisions are reproduced hereinunder:

Sections 190 and 194 of the Act of
1950

"190.Extinction of the interest of a
bhumidhar with non-transferable rights:
(1) Subject to the provisions of Section
172, the interest of a bhumidhar with nontransferable rights in a holding or any
part thereof shall be extinguished -

(a) when he dies having no heir
entitled to inherit in accordance with the
provisions of this Act;

(b) when the holding has been
declared as abandoned in accordance
with the provisions of Section 186;

(c) when he surrenders his holding
or part thereof;

(cc) when the holding or part thereof
has been transferred, let out or used in
contravention of the provisions of this
Act;

(d) 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;

(e) when he has been ejected in
accordance with the provisions of this
Act; or

(f) when he has been deprived of
possession of his right to recover
possession is barred by limitation.

(2) The provisions of sub-section (1)
shall apply mitatis mutandis to asamis
also."

"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 it -

(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 clases 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."

21. Section 194 of the Act of 1950
talks about the taking of the possession by
Land
Management
Committee
after
extinction of interest of bhumidhar.The
procedure for having possession has been
prescribed under Rule 172 of the U.P.
Zamindari Abolition and Land Reforms
3 All]. Goharwa Kukkut Palan Sahkari Samiti Ltd. Vs. Board of Revenue & Ors.
1167
Rules, 1952 (hereinafter referred to as 'the
Rules of 1952'), which reads as under:

Rule 172 of the the Rules of 1952.

"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 tenureholder'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."

22. From the bare reading of section
190 of the Act of 1950, it would transpire
that subject to the provisions of Section
172, which talks about succession in the
case of a woman holding of interest
inherited as a widow, mother, daughter,
etc., the interest of a bhumidhar with nontransferable rights in a holding or any part
thereof shall be extinguished, when he
dies having no heir entitled to inherit in
accordance with the provisions of this
Act, when holding has been declared
abandoned in accordance with section
186, when he surrenders his holding or
part thereof, when the holding or part
thereof has been transferred, let out or
used in contravention of the provisions of
this Act, 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, when he has been
ejected in accordance with the provisions
of this Act, etc.

23. The procedure for declaring
extinction of the interest of a Bhumidhar has
been given in Rule 172 of the Rules of 1952,
according to which, for declaration of
extinction of the tenure holder's right, an
application has to be filed in the court of
Assistant Collector in-charge of the Sub
Division
by
the
Land
Management
Committee, in whose local jurisdiction, the
extinction has occurred.On such application
or on facts given to the Assistant Collector
notice otherwise if he satisfied that there is a
prima facie case for declaration of an
extinction of the tenure holder's right under
section 194, he shall issue a proclamation in
ZA 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.

24. There are other requirements as
detailed in sub-rules (2) and (3) of Rule 172
of the Rules of 1952, which need not be
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
discussed in detail for the simple reasons
that in this case, every thing has been done
only on the basis of the report of the
revenue authorities without taking recourse
as provided under sub-rule (1) of Rule 172
of the Rules of 1952, which empowers an
Assistant Collector to declare extinction of a
tenure holder's right, that too, on an
application of the concerned gaon sabha or
even in a suo motu proceeding.Assuming
here the order impugned has been passed in
a suo motu proceeding, in that eventuality
too, the issuance of notice is lacking.

25. It is settled that when the statute
provides to do a thing in a particular
manner, then that thing has to be done in
that very manner.Here sub-rule (1) of
Rule 172 of the Rules of 1952 provides
that before extinction of the right of a
tenure holder, he has to be noticed and the
notice part is missing.Therefore, the order
impugned has been passed against the
statute itself, under which power has been
exercised.

26. The matter may be examined
from another angle too.It is not in dispute
that the Society was granted lease under
the provisions of the Act of 1960,
therefore, either cancellation of lease or
determination of the lease on the breach of
conditions of leasecould be done under the
provisions of the said Act.Since the
argument of learned counsel for the
petitioner that lease could only be cancelled
under sub-section (4) of section 27 of the Act
of 1960 has already been repealed, the
question would be, as to, for the desired
action, on the allegations made against the
petitioner, is there any other provision under
the Act of 1960 to cancel or determine the
lease.Sub-rule (4) of Rule 59 of the Rules of
1961 talks about the determination of the
lease or the breach of conditions of the lease,
which reads as under:

"(4) If the lessee commits a breach of
any terms and conditions of the lease, the
settlement or the lease shall determine
and the land shall revert to the State
Government."

27. Here, in this case, since the
provisions for cancellation or determination
of the lease has already been given under the
Act of 1960, therefore, in my considered
opinion, the procedure contained under the
provisions of the Rules of 1952 for extinction
of the interest of a Bhumidhar could not be
invoked.

28. In view of the foregoing
discussions, I am of the considered
opinion that the order impugned is
without jurisdiction.The view taken by me
finds support from the judgment of the
Apex Court in State of U.P. and Others
Vs. Roshan Singh and Others (2008 (1)
Supreme 290), where the Apex Court has
observed as under:

".... the inherent powers of the Court are
not to be used for the benefit of a litigant who
has remedy under the CPC.Similar is the
position vis-a-vis other statutes.The object of
Section 151 CPC is to supplement and not to
replace the remedies provided for in the
CPC.Section 151 CPC will not be available
when there is alternative remedy and same is
accepted to be a well-settled ratio of law.The
operative field of power being thus restricted,
the same cannot be risen to inherent
power.The inherent powers of the Court are
in addition to the powers specifically
conferred to it.If there are express provisions
covering a particular topic, such power
cannot be exercised in that regard. The
section confers on the Court power of making
such orders as may be necessary for the ends
of justice of the Court.Section 151 CPC
cannot be invoked when there is express
3 All]. Mukesh Kumar Singh Vs. State of U.P. & Ors.
1169
provision given under which relief can be
claimed by the aggrieved party.The power
can only be invoked to supplement the
provisions of the Code and not to override or
evade other express provisions.The position is
not different so far as the other statutes are
concerned.Undisputedly, an aggrieved person
is not remediless under the Act."

29. Further, assuming the authority
was competent to pass such order under
the provisions of the Act of 1950, in that
eventuality too, the order impugned is bad
for non-compliance of the statutory
provisions contained under sub-rule (1) of
Rule 172 of the Rules of 1952.

30. In both the ways, the order
impugned cannot be sustained in the eye
of law.The writ petition succeeds and is
allowed.The
impugned
order
dated
20.7.2009 passed by the Sub Divisional
Officer, Banda in case no. 1 of 2008-09
and order dated 14.1.2013 passed by the
Board of Revenue, U.P. at Allahabad in
revision no. 62 of 2008-09 are hereby
quashed.However,the order passed by this
Court in this writ petition will not
preclude the respondents to proceed in
accordance with law by initiating a fresh
proceeding.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2014

BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE RAJAN ROY, J.

Civil Misc. Writ Petition No. 72869 of 2010

Mukesh Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bharat Pratap Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Petitioner a
contractor-done certain work-evaluated by
concern engineer-bill of Rs. 15,24,164/--
admitted in reply of 80 CPC notice-in the
year
2010-raising
technical
objectionamount to defeat the claim-held entitled for
claim with -10% interest with cost of Rs.
50,000/-.

Held: Para-9 & 10
9. In the light of the aforesaid, it is clear
that the Irrigation Department is taking a
technical ground for defeating the claim of
the petitiioner. The court finds that the
bills are admitted. The amount mentioned
in the bills are also admitted but for
reasons best known to the respondents,
the bills are not being cleared.

10. This petition is consequently allowed
and a writ of mandamus is issued directing
the
Engineer
in
Chief,
Irrigation
Department
Lucknow
to
release
the
payment within a week from today along
with interest at the rate of 10% per
annum, failing which it would be open to
the petitioner to move an appropriate
application before this Court for recovery
of the amount.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner executed certain
works under the work orders issued by the
Irrigation Department in the year 200506. It is alleged that the work orders were
executed within the stipulated period to
the satisfaction of the authority.

2. In para 5 of the writ petition it has
been contended that the bills were
prepared as per the contract which was
evaluated by the Assistant Engineer and
approved by other authorities. The bills
amounting to Rs. 15,24,164/- have not