# Kalika Prasad and others v. Board of Revenue & others

- **Citation:** (2009) 1 ILRA 62
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-20
- **Case number:** Civil Misc. Writ Petition No. 17015 of 2001
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalika-prasad-and-others-v-board-of-revenue-others-41318
- **Pages:** 12

## Headnote

U.P. Zamindari Absolution Act 1950Section 195 and 197-readwith Z.A. rule
115-P-allotment of land-Trees planted
by petitioner standing-land not within
1 All] Kalika Prasad and others V. Board of Revenue and others
63
the definition of vacant land-during
enquiry the trees found planted by
petitioner-without notice or opportunity
petitioner can not be said-not aggrieved
person-impugned
order
passed
by
collector as well as Board of Revenue-set
a side-matter remanded to collector for
fresh decision.

Held: Para 24 & 32

Not only in this case but in number of
cases it has been held that when
impugned order leads civil consequences
adversely affecting the right of others
then before passing such order principal
of natural justice has to be observed. In
the present case the revenue courts have
found the petitioner in occupation of
land therefore before allotting the land
to other person or even thereafter they
ought to have given an opportunity for
removal of tree if the allotment was of
land in dispute was otherwise valid.

From the perusal of meaning of the word
"aggrieved" and the view taken by the
Courts it is apparent that the person
concerned i.e.,the petitioner is very well
aggrieved as he is in occupation of the
land and his trees are standing thereon,
and if the orders impugned in the writ
petition are carried on/implemented it is
none except petitioner who will put to
loss. Hence the view taken by the
Collector that the petitioner is not
aggrieved person is unsustainable.
Case law discussed:
AIR 1921 PC 240 P.242, (2003) 6 SCC 516,
1993, SCC 259, 7 Ind. Cas. 765 (766), 2003
All.C.J. 771

## Text

62 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
In appeal no.3775 of 2008 arising out of
M.A.C.P. No.44 of 2005 the application
under section 170 had been rejected on
7.4.2007 by the tribunal. The tribunal had
recorded a finding that no evidence had
been led by the insurance company on the
point of breach of insurance policy. No
argument before us, has been raised by the
learned counsel for the appellant on the
grounds mentioned in under section 149(2)
of the Act. The appellant cannot be
permitted to raise the points of negligence
or contributory negligence and quantum of
compensation. The appeal lacks merit and
deserves to be dismissed.

20. So far as appeal no.3776 of 2008
arising out of M.A.C.P. No.45 of 2005 is
concerned the tribunal had recorded a
finding that no evidence had been led by
the insurance company on the point of
breach of insurance policy. No argument
before us, has been raised by the learned
counsel for the appellant on the grounds
mentioned in under section 149(2) of the
Act. The appellant cannot be permitted to
raise
the
points
of
negligence
or
contributory negligence and quantum of
compensation. This appeal also has no
merit and deserves to be dismissed.

21. The argument of the learned
counsel that the appellant could challenge
the order passed by the tribunal in these
appeals, is liable to be rejected. We have
examined the relief claimed in these appeal
but we do not find that orders dated
17.4.2007
or
19.9.2007
have
been
challenged by the appellant. After the
application under Section 170 was rejected
it was open to the appellant to challenge
the orders 17.4.2007 or 19.9.2007 under
the supervisory jurisdiction of this Court
under Article 227 of the Constitution of
India. But the order dated 17.4.2007 or
19.9.2007 cannot be challenged in these
appeals, as an appeal under Section 173(1)
of the Act lies only against the award of
the Motor Accident Claims Tribunal and
the orders under Section 170 not being an
award, no appeal would be maintainable
against such an order.

22. For the aforesaid reasons, we do
not find any merit in both the appeals. The
appeals fail and are accordingly dismissed.

23. The amount of Rs.25,000/-
deposited by the appellant in this court
under section 173 of the Motor Vehicles
Act, 1988 in both the appeals shall be
remitted by the Registry to the Motor
Accident Claims Tribunal within one
month and shall be included in the amount
to be paid by the appellant to the claimants.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2008

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 17015 of 2001

Kalika Prasad and others ...Petitioners
Versus
Board of Revenue & others ...Respondents

Counsel for the Petitioners:
Sri V.C. Srivastava

Counsel for the Respondents:
Sri V.K. Singh
Sri Gulab Chandra
Sri Ajay Kumar Sharma
Sri Shamimul Hasnain

U.P. Zamindari Absolution Act 1950Section 195 and 197-readwith Z.A. rule
115-P-allotment of land-Trees planted
by petitioner standing-land not within
1 All] Kalika Prasad and others V. Board of Revenue and others
63
the definition of vacant land-during
enquiry the trees found planted by
petitioner-without notice or opportunity
petitioner can not be said-not aggrieved
person-impugned
order
passed
by
collector as well as Board of Revenue-set
a side-matter remanded to collector for
fresh decision.

Held: Para 24 & 32

Not only in this case but in number of
cases it has been held that when
impugned order leads civil consequences
adversely affecting the right of others
then before passing such order principal
of natural justice has to be observed. In
the present case the revenue courts have
found the petitioner in occupation of
land therefore before allotting the land
to other person or even thereafter they
ought to have given an opportunity for
removal of tree if the allotment was of
land in dispute was otherwise valid.

From the perusal of meaning of the word
"aggrieved" and the view taken by the
Courts it is apparent that the person
concerned i.e.,the petitioner is very well
aggrieved as he is in occupation of the
land and his trees are standing thereon,
and if the orders impugned in the writ
petition are carried on/implemented it is
none except petitioner who will put to
loss. Hence the view taken by the
Collector that the petitioner is not
aggrieved person is unsustainable.
Case law discussed:
AIR 1921 PC 240 P.242, (2003) 6 SCC 516,
1993, SCC 259, 7 Ind. Cas. 765 (766), 2003
All.C.J. 771

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

1. This writ petition has been filed
for issuing a writ of certiorari quashing
the judgment and order dated 15.02.2001
and 30.07.1996 passed by Board of
Revenue in Reference No. 96 of 1996-97
and Additional Collector (Administration)
Kanpur Dehat (hereinafter referred to as
respondent no.2) in case no.140/95-96
under Rule 115-P of U.P.Z.A & L.R.
Rules. Vide order dated 30.07.1996 the
respondent
no.2
has
rejected
the
application
of
the
petitioner
dated
01.12.1993 for cancelling the allotment of
abadi site over an area measuring about
10 biswansi situated in plot no. 267 which
old number happened to be 322 and by
subsequent order dated 15.02.2001 the
Member Board of Revenue has rejected
the
reference
made
by
Additional
Commissioner, Kanpur Division Kanpur
while exercising his Revisional power
under Section 333 of U.P. Zaminadari
Abolition & Land Reforms Act,1950 ( in
short U.P.Z.A. & L.R. Act ) in Revision
No. 40/96-97 Kalika Prasad & others v.
Brijendra Kumar & others. The Revision
was filed against the judgment and order
dated 30.07.1996.

2. The facts giving rise to this case
are that an area of 10 biswansi situated in
plot no. 267 was allotted to the respondent
no.5 for abadi site by the respondent no.4
i.e., Land Management Committee. The
petitioners have filed an application for
cancellation of the said allotment under
Section 122-C (6) of U.P.Z.A. & L.R. Act
read with Rule 115-P of U.P.Z.A. & L.R.
Rules on the ground that the allotted area
was given by the Zamindar to the
petitioners since before the abolition of
Zamindari for plantation of the trees and
over the disputed land more than 50 years
old trees belonging to the petitioners are
standing and the land was not vacant,
therefore, no allotment could be made. It
has also been stated that the allotment was
irregular as the respondent no.5 do not fall
under the eligibility criteria and the
procedure prescribed under the rules for
allotment has also not been followed. The
said application was rejected by the
64 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Collector by the impugned order dated
30.07.1996 on the ground that the land is
recorded as banjer in the revenue record
and the possession of the petitioners over
the disputed land, prima facie appears to
be unauthorised. It has also been held that
the petitioners have no right over the land
in dispute. Since the allotment in favour
of
respondent
no.5
was
made
in
accordance with law, therefore, that
cannot be cancelled in this proceeding.

3. Aggrieved from the order dated
30.07.1996 the petitioner has filed a
Revision No. 40/96-97 under Section 333
of U.P.Z.A. & L.R. Act before the
Additional
Commissioner,
Kanpur
Division,
Kanpur.
The
Additional
Commissioner
has
found
that
the
Zamindar has given permission on 22nd
May,1949
for
plantation
of
trees.
Therefore, the petitioner's right over the
planted trees is established. But so far as
the title is concerned the Divisional
Commissioner has held that the land shall
belong to the Gaon Sabha, however, the
possession of the petitioner cannot be said
to be illegal, or unauthorised as he has
entered into the possession only after the
permission of Zamindar since before the
commencement of U.P.Z.A.& L.R. Act.
Hence he made a reference to the Board
of Revenue for allowing the application
dated 01.12.1993 filed by the petitioners
for cancellation of the allotment over the
plot no. 267.

4. The Member Board of Revenue
has rejected the reference made by the
Additional
Commissioner
(Administration) Kanpur Division Kanpur
vide
order
dated
15.02.2001
and
maintained the order passed by the
Collector the respondent no.2 dated
30.07.1996. In doing so, learned Member
has observed that in case the permission
was granted by the Zamindar for
plantation of the trees since prior to the
Zamindari
abolition
then
why
the
petitioner has not taken any steps to get
recorded his name on the basis of that
permission. The Member Board of
Revenue has taken the view that the
petitioner has no locus standi to challenge
the aforesaid allotment in favour of the
opposite parties.

5. Sri V.C. Srivastava, learned
counsel for the petitioner while assailing
the aforesaid orders have made following
submissions:

(i) Admittedly the land was not vacant
at the time of allotment, therefore, no
allotment could be made in view of
the
provisions
contained
under
Sections 195,197 and 122-C of
U.P.Z.A.& L.R. Act and Rules
framed thereunder.
(ii) The
allotment
has
been
made
ignoring the mandatory provisions as
contained in Rule 115- N of the
U.P.Z.A.L.R. Rules as no munadi
and beating of drums as required
under the Rule has been made before
the allotment, therefore allotment
deserved to be cancelled.
(iii) In his submissions assuming there
was proposal for allotment of land by
the Land Management Committee,
the respondent did not fall under the
eligibility criteria as contained under
Section
122-C
(3)
of
the
U.P.Z.A.L.R. Act as the person in
whose favour allotment is made is
not a landless person.
(iv) The
father
of
the
respondent
happened to be the Member of the
Land
Management
Committee,
1 All] Kalika Prasad and others V. Board of Revenue and others
65
therefore, the allotment could not
have been made.
(v) The report of the Tehsildar with
regard to the irregular allotment has
also not been considered either by
the Collector while passing the order
dated 30.7.1996 on the application of
the petitioner for cancellation of the
lease or by the member Board of
Revenue in the reference proceeding.

6. He has also submitted that the
permission/izazatnama
given
by
the
Zamindar in the year 1949 was a valid
one and the petitioners have planted trees
over the said land, therefore, a valuable
right has accrued in favour of the
petitioners and the Collector as well as
Member Board of Revenue have erred in
law in not examining the facts of the case
in
the
legal
perspective.
In
his
submissions the reason recorded by the
leaned Additional Commissioner Kanpur
Division, Kanpur while sending the
reference to the Board of Revenue is quite
logical and legal one and learned Member
Board of Revenue has erred in law in not
accepting the reference and rejecting the
same.

7. Refuting the submissions of the
learned counsel for the petitioner, learned
Standing Counsel as well as counsel for
the Gaon Sabha have submitted that the
provisions of Sections 195 & 197 of the
U.P.Z.A. & L.R. Act, are not attracted in
the case of the petitioners. In their
submission the land in dispute is recorded
as banjer in the revenue record, therefore,
allotment has been made under Section
122-C of U.P.Z.A. & L.R. Act by the
competent authority on the resolution of
the
Gaon
Sabha.
They
have
also
submitted that had there been any
permission given by the Zamindar in
favour of the petitioner for plantation of
the trees over the disputed land they ought
to have taken recourse of law for
recording their name in Revenue Record.
Now after the expiry of so many years
such kind of plea is unsustainable in the
eyes of law. In their submission the orders
passed by the respondents no.1 & 2 are
perfectly valid and in accordance with law
and it do not require any interference
under Article 226 of the Constitution of
India.

8. I have heard Sri V.C.Srivastava,
learned counsel for the petitioner and
learned Standing Counsel as well as
counsel for the Gaon Sabha, for the
respondent. No body has appeared for the
respondent no.5.

9. In view of the submissions made
by learned counsel for the petitioner, the
requirement of law for the allotment of
land under Sections 195 & 197 of
U.P.Z.A. & L.R. Act, are required to be
looked into. These sections are quoted
below:-
195. Admission to Land- (1) The
[Land Management Committee] with the
previous approval of the [Assistant
Collector in charge of the Sub-Division]
shall have the right to admit any person as
[bhumidhar with non-transferable rights]
to any land (other than land falling in any
of the classes mentioned in Section 132)
where:-

(a) the land is vacant;
(b) the land is vested in the [Gaon
Sabha] under Section 117; or
(c) the land has come into the possession
of [ Land Management Committee ] under
Section 194 or under any other provision
of this Act.
66 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
197. Admission to land mentioned
in
Section
132-
(1)
The
[Land
Management
Committee]
[with
the
previous approval of the
[Assistant Collector in charge of the SubDivision] shall have the right to admit any
person as asami to any land falling in any
of the classes mentioned in Section 132
where-

(a) the land is vacant land,
(b) the land is vested in the [Land
Management Committee], or
(c) the land has come into the possession
of the [Land Management Committee]
under Section 194 or under any other
provision of this Act.

[(2)
Notwithstanding
anything
contained in any other provisions of this
Act, the right to admit any person as
asami of any tank, pond or other land,
covered by water shall be regulated by the
rules made under this Act.]

10. From the perusal of above
sections it is apparent that the first
requirement of law for the allotment of
land under Sections 195 (a) and 197 (a) is
that the land must be vacant.

11. The word 'Vacant' has been
defined in Chamber's Dictionary as
empty; unoccupied; not assigned to any
activity; free; blankly incurious.

Almost the same meaning has been
given in the Webster's Dictionary.

12. The word 'Vacant' means empty;
not filled (of a post or seat etc,);
unoccupied; untenanted, not vacant grin,
unused
or
unoccupied
(having
no
claimant).

13. From the perusal of the meaning
of word 'vacant' it is clear that the word
vacant means-unoccupied, having no
claimants. Here it is admitted that the
petitioners are in possession over the
leased land, therefore, the land was not
vacant at the time of allotment.

14. Now further question would
arise that if the land was not vacant
whether it was open to the Revenue
Authorities to let out the land without
getting it vacated from the possession of
the petitioners.

15. It is not in dispute that the rule
of law is prevailing and nobody can be
permitted
either
it
is governmental
authorities or a private person to take law
in their hands. If a person is in
unauthorised occupation of the land, the
U.P.Z.A. & L.R. Act, 1950 takes care of
and has made provision for eviction of
such unauthorised occupant. Section 122
(B) of the U.P.Z.A.& L.R. Act which
deals
with
the
power
of
Land
Management
Committee
and
the
Collector for eviction of unauthorised
persons. There is also provision for
payment of compensation and damages
for unauthorised use and occupation but
that can not be resorted unless a show
cause notice/an opportunity of hearing is
given to the person concerned who has
been found in wrongful occupation.

16. Not only in the U.P.Z.A. & L.R.
Act but under Section 4 & 5 of U.P.
Public
Premises
(Eviction
of
Unauthorised Occupant) Act, 1971 there
is a provision to evict such persons who
are unauthorised occupant over the State
property. Section 27 of the U.P. Urban
Planning and Development Act, 1973 also
talks about the same and in all these Acts
1 All] Kalika Prasad and others V. Board of Revenue and others
67
there is a provision for issuing notice
before the eviction of unauthorised
occupants/and construction over the such
land.

17. It is also noticeable that certain
kind of unauthorised occupants (landless
labourers, village artisans etc.) have got
legal status under Section 123 of
U.P.Z.A.& L.R. Act. It reflects that
unauthorised occupation is not a new
thing, therefore, it can be safely inferred
that even if, somebody is found in the
unauthorised occupation of Gaon Sabha
land, should not be thrown in this manner
without
taking
recourse
of
law
particularly in a case where unauthorised
duration is of long standing.
18. Now the question would arise
whether the requirement of vacant nature
of land for allotment of the land vested in
the Gaon Sabha as required under
Sections 195 & 197 is also applicable in
the case of the allotment of housing site
under Section 122-C of the U.P.Z.A.&
L.R. Act, which is quoted below:-

122-C
Allotment
of
land
for
housing site for members of Scheduled
Caste, agricultural labourers etc.- (1)
The Assistant Collector in charge of the
sub-division of his own motion or on the
resolution of the Land Management
Committee, may earmark any of the
following causes of the land for the
provision of abadi sites for the members
of the Scheduled Castes and [The
Schedule 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 SubSection (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 Holding 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.

(2) Notwithstanding anything in
Section 122-A, 195,196,197 and 198 of
this Act, in Section 4,15,16,19,28-B and
34 of the United Provinces Panchayat Raj
Act,
1947,
the
Land
Management
Committee
may
with
the
previous
approval of the Assistant Collector in
charge of the Sub-division allot for
purposes of building of houses, to persons
referred to in Sub section (3);

(a) any land earmarked under Subsection(1);
(b) any land earmarked for the extension
of abadi sites for Harijans under the
provisions of the U.P. Consolidation of
Holdings Act, 1953;
(c) any abadi site referred to in Clause
(vi) of Sub Section (1) of Section 117 and
vested in the Gaon Sabha;
(d) any land acquired for the said
purposes under the Land Acquisition Act,
1994,

(3) The following order of preference
shall be observed in making allotment
under Sub-section (2);
68 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(i) an agricultural labourer of village
artisan residing in the village and
belonging to a Scheduled Caste or [
Scheduled Tribes or other backward
classes or a person of general
category living below poverty line];
(ii) any other agricultural labourer or
village artisan residing in the village;
(iii) any other person residing in the
village and belonging to a Schedule
Caste or;
(iv) a person with disability residing in
the village.

19. From the bare perusal of the
above section, it appears that the
requirement of vacant nature of the land
as contained in Sections 195 and 197 of
the U.P.Z.A.& L.R. Act is not there.
However,
learned
counsel
for
the
petitioner submitted before the Court that
same analogy may be applied here also in
the case of allotment of the housing site.
After careful examination of Sections
195,197 and 122 -C it transpires that the
word 'vacant' mentioned in Sections 195
& 197 do not find mention under Section
122-C of the U.P.Z.A.& L.R. Act. It is
well established principle of rules of
interpretation that the statute should be
read as it is. In the case of Corporation
of the City of Victoria v. Bishop of
Vancouver Island, AIR 1921 PC 240
P.242. It has been observed by Lord
Atkinson:-

"In the construction of statutes, their
words must be interpreted in their
ordinary grammatical sense unless there
be something in the context or in the
object of the statute in which they occur
or in the circumstances in which they are
used, to show that they were used in a
special sense different from their ordinary
grammatical sense."
20. If the words used in the section
122-C are to be read as it stand and if it is
read so then the requirement of vacant
nature of land is not necessary. The only
requirement under that Section is that the
land must be vested in the Gaon Sabha
under Sub section 1 of Section 117 of the
U.P.Z.A. & L.R. Act, and the land coming
into the possession under Section 194 or
any land which is deemed to be vacant
under Sections 13,14,163,186 or Section
211 or where the land year marked was
for extention of abadi and reserved as
abadi site for harijan under the U.P.
Consolidation of Holdings Act. Had there
been any intention of the legislature to
make condition precedent the vacant
nature of land for allotment of abadi site
under this section then that word must
have been mentioned in this section also.

21. It is noticeable that the Courts
are not supposed to fill the gaps. The
court can utmost press the wrinkles and
can not make a bridge. The Court's
function is to interpret the law, keeping in
mind the object of the Act and the Rules
framed thereunder.

22. The Apex Court in the case of
Karnata State vs Union of India AIR
1978 SC 68, Union of India vs Ranjit
Kumar reported in (2003) 6 SCC 516
has observed:

"in this connection it is pertinent to
remember that although a court cannot
supply a real casus omissus it is equally
clear that it should not so interpret a
statute as to create a casus omissus when
there is really none"

23. However, one question will
remain that even if it is presumed that the
land vested in the Gaon Sabha can be
1 All] Kalika Prasad and others V. Board of Revenue and others
69
allotted even if it is not vacant, even then
the requirement of principles of natural
justice is required to be observed
particularly in a case where the order
impugned leads civil consequences. The
Apex Court in the case of D.K. Yadav Vs.
J.M.A. Industrial Ltd. Reported in 1993,
SCC 259 has made the following
observations:

The cardinal point that has to be
borne in mind, in every case, is whether
the person concerned should have a
reasonable opportunity of presenting his
case and the authority should act fairly,
justly, reasonably and impartially. It is
not so much to act judicially but is to act
fairly, namely, the procedure adopted
must be just, fair and reasonable in the
particular circumstances of the case. In
other words application of the principles
of natural justice that no man should be
condemned unheard intends to prevent
the authority from acting arbitrarily
effecting the rights of the concerned
person.
It is fundamental rule of law that no
decision must be taken which will affect
the right of any person without first being
informed of the case and giving him/her
an opportunity of putting forward his/her
case.
An
order
involving
civil
consequences must be made consistently
with the rules of natural justice. In
Mohinder Singh Gill Vs. Chief Election
Commissioner the Constitution Bench
held that 'Civil consequences' covers
infraction of not merely property or
personal right but of civil liberties,
material deprivation and non-pecuniary
damages.
In
its
comprehensive
connotation every thing that affects a
citizen in his civil life inflicts a civil
consequence. Black's Law Dictionary, 4th
edn., page 1487 defined civil rights are
such as belong to every citizen of the State
or country... they include... rights capable
of being enforced or redressed in civil
action... In State of Orissa V. (Miss)
Birapani Dei this Court held that even an
administrative order which involves civil
consequences must be made consistently
with the rules of natural justice. The
person concerned must be informed of the
case, the evidence in support thereof
supplied and must be given a fair
opportunity to meet the case before an
adverse decision is taken. Since no such
opportunity was given it was held that
superannuation was in violation of
principles of natural justice.
In State of W.B. V Anwar Ali Sarkar
per majority, a seven-judge Bench held
that the rule of procedure laid down by
law comes as much within the purview of
Article 14 of the Constitution as any rule
of substantive law. In Maneka Gahndi Vs.
Unioin of India another Bench of seven
Judges held that the substantive and
procedural laws and action taken under
them will have to pass the test under
article 14. The test of reasons and justice
cannot be abstract. They cannot be
divorced from the needs of the nation.
The tests have to be pragmatic otherwise
they would cease to be reasonable. The
procedure prescribed must be just, fair
and reasonable even though there is no
specific provision in a statute or rules
made thereunder for showing cause
against action proposed to be taken
against an individual, which affects the
right of that individual. The duty to give
reasonable opportunity to be heard will
be implied from the nature of the function
to be performed by the authority which
has the power to take punitive or
damaging
action.
Otherwise
also
although it has been held that the
requirement of vacant nature of land as
70 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
contained under Section 195 and 197 of
U.P.Z.A.& L.R. Act is not there under
Section 122 C but the provisions of
Section 122-B are still there and the same
is not applicable only with regard to the
particular type of unauthorised occupant,
therefore, authorities must have taken
care of statutory provisions before
allotting the land in dispute.

24. Not only in this case but in
number of cases it has been held that
when
impugned
order
leads
civil
consequences adversely affecting the right
of others then before passing such order
principal of natural justice has to be
observed. In the present case the revenue
courts have found the petitioner in
occupation of land therefore before
allotting the land to other person or even
thereafter they ought to have given an
opportunity for removal of tree if the
allotment was of land in dispute was
otherwise valid.

25. So far as the procedural lapses
with regard to the allotment of land is
concerned it was obligatory on the part of
the authorities to consider the same in
view of the provisions contained under
Rule 115-N of U.P.Z.A. L.R. Rules,
which runs as follows:

115-N. C-General.- (1) Whenever the
Land Management Committee proceeds
to allot housing sites under rule 115-L or
115-M, it shall announce by beat of drum
in the village the exact location of the
sites to be allotted, the time, the date and
venue of allotment.
(2) All allotment shall be made by the
Land Management Committee in a
meeting held for the purpose on the date
announced under sub-rule (1). Where
more than one person belonging to the
same order of preference express their
desire to be allotted a particular site, the
said Committee shall draw lots to
determine the person to whom the site
should be allotted:
Provided that the prior approval of
the Assistant Collector-in- charge of the
sub-division shall be obtained for every
allotment under Rule 115-L or 115-M.
(3) The allottee of the housing site shall
be given a receipt for the premium, if any,
paid by him to the Land Management
Committee and a certificate of allotment.
The certificate shall be in Z.A. Form 49-F
which shall be prepared in two parts, the
main certificate being given to the allottee
and its counterpart remaining with the
Land Management Committee for record.

26. From the perusal of sub rule (1)
of Rule 115 N it is apparent that the Land
Management Committee was under legal
obligation to advertise the resolution for
allotment of abadi site. Whereas in this
particular case from the perusal of report
of Tehsildar copy of which has been
brought on record as Annexure-2 to the
writ petition, it transpires that the
procedure contained in the rule were not
followed and the allotment was made in
contravention of the rules but the
authorities
(Collector
&
Board
of
Revenue) have omitted to take note of the
report of the Tehsildar in this regard and
failed to exercise their duties vested in
them under the relevant statute.

27. In this regard it is to be noted
that the Collector while passing the order
dated 30.7.1996 has also observed that the
petitioner is not aggrieved person as he
has occupied the Gaon Sabha land,
therefore, also an application on his
instance for cancellation of lease is not
maintainable.
1 All] Kalika Prasad and others V. Board of Revenue and others
71
28. The word 'aggrieved' has been
defined in the Webser's Dictionary as
having the grievance; offended, slighted,
injured in one's legal rights.

29. In the Law Laxicon Dictionary
the word Aggrieved has been defined as
under:

'aggrieved' means a term of very
ancient origin, appearing on the Statute
Role
of
1363;
For
purposes
of
ascertaining rights of appeal, any person
who is in any sense a party to a legal
proceeding is "aggrieved" by a wrong
decision with regard to the proceeding.
Under statutes granting the right of appeal
to the party aggrieved by an order or
judgment, the party aggrieved is one
whose pecuniary interest is directly
affected by the adjudication; one whose
right of property may be established or
divested thereby. (Black).

30. In the case of Lalji Sahay Singh
v. Abdul Gani, 7 Ind. Cas. 765 (766) it
has been observed that an aggrieved
person is a person whom a decision has
been pronounced which has wrongfully
deprived him of something or wrongfully
refused him something or wrongfully
affected his title to something.

31. In the case of Ebrahim
Aboodbakar v. Custodian General of
Evacue Property, AIR 1952 SC 319 the
Apex Court has observed that when a
person is given a right to raise a contest in
a certain matter and his contention is
negatived, he is a person aggrieved.

32. From the perusal of meaning of
the word "aggrieved" and the view taken
by the Courts it is apparent that the person
concerned i.e., the petitioner is very well
aggrieved as he is in occupation of the
land and his trees are standing thereon,
and if the orders impugned in the writ
petition are carried on/implemented it is
none except petitioner who will put to
loss. Hence the view taken by the
Collector that the petitioner is not
aggrieved person is unsustainable.

33. The matter can be examined
from another angle:

Rule 115-P talks about the power of
the
Collector
with
regard
to
the
cancellation of allotment of land made
under 115-L and 115-M of the U.P.
Zamindari Abolition & Land Reforms
Rules, 1952. Rule 115-P is reproduced
belows:-

115-P. (1) The Collector may, of his
own motion or on the application of any
person aggrieved by any order of
allotment of land under rule 115-L or
115- M, proceed to make an inquiry in the
manner given hereunder.
(2) The allottee and Land management
Committee shall be necessary parties to
all such cases.
(3) The Collector on the application of
any party or otherwise may pass suitable
interim orders at any time before the final
disposal of the case.
(4) The Collector shall call upon all
persons interested in the order of
allotment to appear and present their case
before him. It shall not be necessary to
record evidence but the memo of the day
to day inquiry shall be kept on record by
the Collector. On making inquiries, if he
is satisfied that the allotment is irregular
he
may
cancel
the
allotment
and
thereupon the right, title and interest of
the allottee and of every other persons
72 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
claiming through him in the land shall
cease.
(5) The order of the Collector under the
preceding sub-rule shall be final.

34. From the perusal of Sub Rule (3)
and (4) of Rule 115-P it transpires that the
Collector may, on his own or on the
application of any person aggrieved may
proceed to make an inquiry and pass
interim order or call other interested
person in this regard. These sub rules
provide that how the Collector shall
proceed while holding an inquiry.

35.

Almost
the
same
word
"otherwise' as used in Sub Rule 3 of Rule
115-P of the U.P.Z.A.L.R. Rules has been
used in Rule 4 (1) of the U.P. Panchayat
Raj (Removal of Pradhans, UP-Pradhans
and Members) Enquiry Rules 1997 and
the Division Bench of this Court in the
case of Moti Lal v. District Magistrate,
Lalitpur and another reported in (2003
All.C.J.. 771) has interpreted the said
word as under:
"The words " or otherwise" occurring
in sub-rule 1 of Rule 4 are of wide import.
Even if no complaint is filed as envisaged
by Rule 3, the State Government does not
lack of power to direct holding of
preliminary enquiry. There may be cases
in which the District Magistrate or other
officials charged with looking the affairs
of
Gram
Panchayat
may
receive
information or may personally finds fact
requiring holding of preliminary enquiry.
For example, the Sub Divisional Officer
who is incharge of a sub division if finds
a Pradhan abusing his position and
committing serious financial irregularities
can report the matter to the District
Magistrate who is authority competent to
order of preliminary enquiry. The report
of Sub-Divisional officer may form basis
for directing a preliminary enquiry. The
District Magistrate may after personally
coming to know some serious lapse on the
part
of
the
Pradhan
may
direct
preliminary enquiry without there being
any complaint or report. In the present
case the complaint submitted by the UpPradhan was valid material for directing
preliminary
enquiry,
hence
the
submission of counsel for the appellant
has no substance."

36. The determination before the
Division Bench was that whether a
preliminary inquiry against the Pradhan
can
be
initiated
on
a
complaint/information
as
prescribed
under Rule 3 of Rules 1997 or the State
(Collector) can pass an order for holding a
preliminary enquiry on the basis of
information otherwise received.

37. In the present case although this
Court has held that the petitioner was very
well
aggrieved
person
and
District
Magistrate has erred in holding that an
application for cancellation of lease on the
instance of the petitioner is very well
maintainable, but assuming for the sake of
argument the petitioner was not an
aggrieved person as pointed out by the
Collector
concerned
even
then
the
Collector was under a legal obligation in
furtherance of his duty to examine the
procedural lapse in granting of lease
under the provisions of U.P.Z.A.& L.R.
Act and Rules.

38. In view of above discussions, I
am of the view that the Collector was
under a legal obligation to hold an
enquiry with regard to the procedural
lapse in respect to the allotment of the
abadi site as he was otherwise having
knowledge of the irregular allotment of
1 All] Lal Pratap Singh V. State of U.P. and another
73
the abadi site (the report of Tehsildar
Annexure-2 to the writ petition), needless
to say that the same mistake has been
committed by the Member Board of
Revenue while rejecting the reference
made by the Additional Commissioner.

39. In the result the writ petition
succeeds and is allowed. The impugned
orders dated 30.7.1996 and 15.2.2001
(Annexures no.3 & 6 to the writ petition)
are hereby quashed.

40. The matter is remanded back to
the Collector to pass appropriate order in
accordance with law after holding an
enquiry as required under the relevant
statues.

Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 34592 of 2003

Lal Pratap Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri H.N. Singh
Sri B. Narayan Singh

Counsel for the Respondents:
S.C.

Constitution of India Art. 226-Benefit of
notional
promotion-petitioner's
claim
seeking
parity-of
pay
scale as per
employee
working
in
Head
quarter
alongwith consequential benefits, pay
scale, seniority etc. allowed by High
Court-consequently the petitioner held
entitled to get promotion as excise
Inspector w.e.f. 13.6.96. But due to
pendancy of SLP before the Apex Courtcould
not
be
acted
upon-petitioner
retired on 28.3.98-for purpose of fixation
of pension-petitioner entitled for fixation
on basis of last pay drawn in pay scale of
Inspector and not as senior clerkrespondents can not be allowed to take
benefit of their own wrong.

Held: Para 21

Even otherwise, it would result in grave
injustice as it would amount to granting
benefit to the respondents for their own
fault since denial of promotion to the
petitioner, when it was due, was not on
account of any fault of the petitioner, but
that of respondents. In view of the
aforesaid facts and circumstances, this
Court is clearly of the view that the
impugned orders of the respondents
denying pension to the petitioner taking
in to account his notional promotion on
the post of Senior Clerk, Senior Assistant
and Excise Inspector retrospectively is
wholly illegal and arbitrary and liable to
be set aside.
Case law discussed:
2000 (85) FLR 714

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri H.N. Singh, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. The petitioner is aggrieved by
order dated 13.9.2002 of the Joint
Secretary, U.P. Government, Lucknow
and consequential order dated 29.5.2003
of
the
Excise
Commissioner, U.P.,
Allahabad whereby he has been denied
revised pension as a result of his notional
promotion on higher posts from back date
in higher pay scales.

3. The facts giving rise to the
present dispute, in brief, are as under.