# Rakesh & Ors v. State of U.P. & Ors

- **Citation:** (2022) 6 ILRA 966
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-19
- **Case number:** Writ-B No. 1117 of 2022
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-ors-v-state-of-u-p-ors-48692
- **Pages:** 7

## Headnote

(A) Revenue Law - The U.P. Zamindari
Abolition and Land Reforms Act, 1950 -
Section 195 - Admission to land , Section
198(4) - cancellation of the allotment ,
The U.P. Zamindari Abolition and Land
Reform Rules, 1952 - Rules 173, 174,
175 & 176 - distinction between -
cancellation of an order of approval on
the ground that the same was without
jurisdiction - cancellation of an order of
allotment on account of an irregularity -
require the procedure under sub-section
(4) of Section 198 to be followed - Order
made without jurisdiction would be
unenforceable
and
inexecutable
and
would be devoid of any legal effect.
(Para -27,28,30)

Allotment in favour petitioners - proposal
approved by Tehsildar - complaint regard to
allotment - amended provisions - power to
grant approval stood with Assistant Collector
incharge of sub-division - District Magistrate
passed an order - approval granted by
Tehsildar contrary to law - approval cancelled
- land directed to be vested in Gaon Sabha -
revision before Board of Revenue - rejected -
time barred restoration application - rejected
by the Board of Revenue - hence writ
Petition.(Para -3,4,5 )

HELD:-Order
of
the
Tahsildar
granting
approval being without jurisdiction, the same
was a nullity and would have no effect.
District Magistrate upon receiving a complaint
and after getting the matter inquired has
rightly held that since the Tahsildar was not
empowered to grant approval on the said
date in view of the amendment made to
Section 195 the order of approval was beyond
jurisdiction and accordingly the same was
cancelled. (Para -29,30 )

Writ Petition dismissed. (E-7)

## Text

966 INDIAN LAW REPORTS ALLAHABAD SERIES
same law was reiterated in G. Jayashree
vs. Bhagwandas S. Patel reported in
(2009) 3 SCC 141.

30. The Apex Court has repeatedly
held that filing of false affidavit and
concealment of material facts amounts to
interference in the administration of justice
and as such is criminal contempt of Court.
Again the Apex Court in the case of
Sunkara Lakshminarasamma & Anr.
Versus Sagi Subba Raju & Ors. reported
in (2009) 7 SCC 460 held that filing of
false affidavit knowingly is a contempt and
exemplary cost be imposed.

31. In view of the aforesaid, this
Court finds no good ground to interfere in
the present writ petition. This petition is
accordingly dismissed. There shall be no
order as to costs.
----------
(2022)06ILR A966
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2022

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-B No. 1117 of 2022

Rakesh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Singh Yadav, Sri Ishwar Chandra

Counsel for the Respondents:
C.S.C., Sri Kaushal Kishore Mani, Sri Rohit
Kumar Singh

(A) Revenue Law - The U.P. Zamindari
Abolition and Land Reforms Act, 1950 -
Section 195 - Admission to land , Section
198(4) - cancellation of the allotment ,
The U.P. Zamindari Abolition and Land
Reform Rules, 1952 - Rules 173, 174,
175 & 176 - distinction between -
cancellation of an order of approval on
the ground that the same was without
jurisdiction - cancellation of an order of
allotment on account of an irregularity -
require the procedure under sub-section
(4) of Section 198 to be followed - Order
made without jurisdiction would be
unenforceable
and
inexecutable
and
would be devoid of any legal effect.
(Para -27,28,30)

Allotment in favour petitioners - proposal
approved by Tehsildar - complaint regard to
allotment - amended provisions - power to
grant approval stood with Assistant Collector
incharge of sub-division - District Magistrate
passed an order - approval granted by
Tehsildar contrary to law - approval cancelled
- land directed to be vested in Gaon Sabha -
revision before Board of Revenue - rejected -
time barred restoration application - rejected
by the Board of Revenue - hence writ
Petition.(Para -3,4,5 )

HELD:-Order
of
the
Tahsildar
granting
approval being without jurisdiction, the same
was a nullity and would have no effect.
District Magistrate upon receiving a complaint
and after getting the matter inquired has
rightly held that since the Tahsildar was not
empowered to grant approval on the said
date in view of the amendment made to
Section 195 the order of approval was beyond
jurisdiction and accordingly the same was
cancelled. (Para -29,30 )

Writ Petition dismissed. (E-7)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Ram Singh Yadav,
learned counsel for the petitioners, Sri
J.P.N.
Raj,
learned Additional
Chief
Standing Counsel appearing for the Staterespondents and Sri Rohit Kumar Singh,
learned
counsel
appearing
for
the
respondent nos. 6 and 8.
6 All. Rakesh & Ors. Vs. State of U.P. & Ors.
967

2. The present petition has been filed
seeking to raise a challenge to the order
dated 27.09.2021 passed by the Member
(Judicial), Board of Revenue, U.P. at
Allahabad in Case No. RES/1417/2021
(Bal
Chandra
vs.
Collector/District
Magistrate and others), the order dated
01.05.2015
passed
by
the
Member
(Judicial), Board of Revenue U.P. at
Prayagraj in Revision No. 23 of 2004-05
(Bal Chandra vs. Collector) as well as order
dated 12.01.2005 passed by the Collector,
Muzaffar Nagar.

3. The undisputed facts of the case as
evident from the pleadings in the petition
are that an allotment referable to the
provisions under Section 195 of the U.P.
Zamindari Abolition and Land Reforms
Act, 19501 was made in favour of the
petitioners on a proposal dated 09.01.2004
which was approved by the Tehsildar,
Kairana vide order dated 25.10.2004. Upon
a complaint received with regard to the
allotment and taking notice of the fact that
as per terms of the amended provisions of
the U.P. Act No. 27 of 2004 (w.e.f.
23.08.2004) the power to grant approval
stood with the Assistant Collector incharge
of the sub-division, the District Magistrate,
Muzaffar Nagar passed an order dated
12.01.2005 wherein it was held that the
approval granted by the Tehsildar was
contrary to law and accordingly the said
approval was cancelled and the land was
directed to be vested in the Gaon Sabha.

4. Aggrieved by the aforesaid order,
the petitioners and other allottees preferred
a revision before the Board of Revenue
which was rejected by means of an order
dated 01.05.2015 upon taking due notice to
the amended provisions of Section 195, in
terms of which the Tehsildar was not
empowered to grant approval. A time
barred restoration application was preferred
on 02.08.2021. Apart from the point of
delay in filing the restoration application,
the grounds taken therein were held to be
untenable and the same has been rejected
by the Board of Revenue by its order dated
27.09.2021.

5. The aforestated three orders i.e.
order dated 12.01.2005 passed by the
District Magistrate, Muzaffar Nagar, the
order dated 01.05.2015 passed by the
Member (Judicial), Board of Revenue
rejecting the revision and the order dated
27.09.2021
in
terms
of
which
the
restoration application has been turned
down, are subject to challenge in the
present writ petition.

6. Counsel for the petitioners has
sought to assail the orders by submitting
that on 09.01.2004 i.e. the date of proposal
by the Land Management Committee, the
Tahsildar was vested with the jurisdiction
to grant approval to the allotment as per the
provisions of Section 195, as they stood at
the relevant point of time. It is further
submitted that in the absence of any
proceeding for cancellation of the allotment
as per the provisions of sub-section (4) of
Section 198, having been initiated, the
order
of
cancellation
would
be
unsustainable.

7. Learned Additional Chief Standing
Counsel,
controverting
the
aforesaid
assertions, has submitted that on the date
when the proposal was approved, i.e.
25.10.2004, Section 195 had been amended
in terms of the amending Act of 2004,
which was effective from 23.08.2004, and
the Tehsildar was no longer vested with the
powers and jurisdiction to grant approval.
The approval order of the Tahsildar being
beyond jurisdiction, the same would have
968 INDIAN LAW REPORTS ALLAHABAD SERIES
no
effect;
accordingly
the
District
Magistrate upon a complaint having been
received rightly cancelled the said order. It
is also pointed out that the order of the
District
Magistrate
is
an
order
of
cancellation of the approval order and it is
not an order of cancellation of allotment
and in view thereof the same cannot be
assailed on the ground that the procedure
under sub-section (4) of Section 198 was
not followed.

8. In order to appreciate the rival
contentions, the relevant statutory provisions
would be required to be adverted to.

9. The procedure with regard to
allotment of land at the relevant point of time
was covered under Section 195 of the UPZA
& LR Act.

10. Section 195, at it stood prior to the
amendments made in the year 2002, is being
reproduced 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 nontransferable rights to any land other than 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 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 provisions of
this Act."

11. By U.P. Ordinance No. 4 of 2002,
promulgated on June 21, 2002, sub-section
(2) was inserted. The said sub-section (2)
stood as under :-

"(2) If the Assistant Collector incharge of the sub-division is satisfied that
the Land Management Committee has
failed to discharge its duties or to perform
its functions under sub-section (1), or it is
otherwise necessary or expedient so to do,
he may himself admit any person as
bhumidhar with non-transferable rights of
the land under sub-section (1)."

12. By U.P. Ordinance No. 16 of
2002, promulgated on July, 20, 2002, the
word "Tehsildar" was substituted for the
words "Assistant Collector in-charge of the
sub-division" in sub-section (1) as well as
in sub-section (2). Both the Ordinances No.
4 and 16 of 2002 were replaced by U.P. Act
No. 11 of 2002 which was made effective
from July 20, 2002. In the amending Act,
sub-section (2) was omitted. Thus, the
amendment introduced by the Ordinance
No. 16 of 2002 was retained in the
Amending Act of 2002, while the changes
made by Ordinance No. 4 of 2002, were
not provided for.

13. The amendment made to Section
195 as per terms of U.P. Act No. 11 of 2002
was as follows :-

"6. Amendment of Section 195.- In
Section 195 of the principal Act for the
words "Assistant Collector in charge of the
sub-division" wherever occurring, the word
"Tehsildar" shall be substituted."

14. Section 195 as it stood consequent
to the amending Act of 2002 was as follows
:-

"195. Admission to land.- (1) The
Land Management Committee with the
previous approval of the Tahsilar shall have
the right to admit any person as bhumidhar
with non-transferable rights] to any land
6 All. Rakesh & Ors. Vs. State of U.P. & Ors.
969
other than 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 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 provisions of this Act."

15. The provisions were again subject
to further amendment by U.P. Act No. 27 of
2004, which came into force on August 23,
2004 and in terms thereof the Assistant
Collector in-charge of the sub-division,
instead of the Tehsildar, was empowered to
admit any person as bhumidhar with nontransferable rights. The amendment made
to Section 195 was as follows :-

"8. Amendment of Section 195.- In
Section 195 of the principal Act for the
word "Tehsildar" the words "Assistant
Collector in charge of the sub-division"
shall be substituted."

16. The provisions under Section 195,
as they stand presently, after the amending
Act of 2004, are as follows :-

"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 being in any of the classes
mentioned in section 132 where -

(a) the land is vacant land,

(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 under any other provisions of
this Act."

17.

Section
195
contains
the
provisions with regard to admission to land
by the Land Management Committee. As
per terms of the provision, the Land
Management Committee with the previous
approval of the Assistant Collector in
charge of the sub-division was empowered
to admit any person as bhumidhar with
non-transferable rights to any land other
than land being in any of the classes
mentioned in Section 132 and subject to the
condition that (i) the land is vacant land,
(ii) the land is vested in the Gaon Sabha
under section 117, or (iii) the land has come
into the possession of Land Management
Committee under Section 194 under any
other provisions of this Act.

18. The admission of persons to land
under Section 195 was to be made in the
order of preference specified under Section
198. The procedure for admission was
specified under Rules 173, 174 and 175 of
the U.P. Zamindari Abolition and Land
Reform Rules, 1952.

19.

Upon
completion
of
the
aforementioned procedural requirements,
the Land Management Committee was
required to prepare the documents specified
under Rule 176 and thereafter forward the
same to the Assistant Collector in charge of
the sub-division for approval.

20. The procedure with regard to
submission of documents before the
Assistant Collector and the manner in
which approval was to be accorded thereon
was provided for under Rule 176, which is
being extracted below :-

"176. - (1) After selecting the person
or persons for admission to the land in
accordance with Rule 175, the Committee
shall prepare─
970 INDIAN LAW REPORTS ALLAHABAD SERIES

a) a list of persons so selected in Z.A.
Form 57-B;

(b) a certificate of admission to land in
Z.A. Form 58; and

(c) a counterpart in Z.A. Form 58-A.

(2) The documents referred to in
clauses (a) and (b) of sub-rule (1) shall be
duly signed by the Chairman of the Land
Management Committee but the document
referred to in clause (c) shall be signed by
the person so selected for admission to the
land.

(3) The document referred to in subrule (1) shall then be forwarded to the
Assistant Collector-in-charge of the SubDivision along with─

(a) a copy of the proceedings of the
meeting of the Committee in which the
decision to settle land was taken; and

(b) a certificate from the Lekhpal
concerned to the effect that the particulars
of the land mentioned in the list are correct,
and that the admission to the land is in
accordance with the provisions of the Act
and the Rules.

(4) The Assistant Collector in-charge
of the Sub-Division shall, on receipt of the
documents, referred to in sub-rule (3)
scrutinize the decision taken by the
Committee and if he is satisfied that the
decision of the Committee is in accordance
with the Act and the rules made thereunder,
he shall record his approval on the list in
Z.A. Form 57-B and return the papers to
the Land Management Committee within a
week of its receipt from the Chairman with
the direction that the possession may be
delivered to the lessees and the report of
mutation be submitted to the Supervisor
Kanungo by the Lekhpal immediately after
delivery of possession.

(5) If the Assistant Collector in-charge
of the Sub-Division finds that the whole or
part of the decision taken by the Committee
is not in accordance with the provisions of
the Act and Rules, he shall record his
disapproval on the list in Z.A. Form 57-B
and return the papers to the Chairman."

21. The Assistant Collector, on receipt
of
the
documents,
was
required
to
scrutinize the decision taken by the Land
Management Committee and upon being
satisfied that the decision of the Committee
was in accordance with the Act and the
Rules made thereunder, he was required to
record his approval. In the event, the
Assistant Collector found that the decision
taken by the Committee was not in
accordance with the provisions of the Act
and the Rules, he was to record his
disapproval and return the papers.

22. It would therefore be seen that as
per terms of Rule 176 the documents in
respect of the proceedings undertaken by
the Land Management Committee for grant
of admission to land under Section 195,
were required to be submitted whereupon
the Assistant Collector was required to
scrutinize the decision taken by the
Committee and to record his approval or
disapproval thereon, depending on whether
he was satisfied or not that the decision
taken by the Committee was in accordance
with the Act and the Rules made
thereunder.

23. A conjoint reading of the
provisions under Section 195 read with
Rule 176 would demonstrate that it was the
Assistant Collector in charge of the subdivision who was vested with the discretion
to approve or to disapprove the proposal
submitted by the Land Management
Committee after duly scrutinizing the same.

24. In the present case on a complaint
received with regard to the allotments the
matter was inquired into and the inquiry
6 All. Rakesh & Ors. Vs. State of U.P. & Ors.
971
report
submitted
by
the
Additional
Collector indicated that consequent to the
amendment made by U.P. Act No. 27 of
2004, effective from 23.08.2004, the power
to grant approval was with the Assistant
Collector and accordingly the approval
granted by the Tehsildar on 25.10.2004 was
without
jurisdiction.
The
District
Magistrate, upon taking into consideration
the fact that the eligibility list was not in
the order of preference as per Section 198
and that the approval granted by the
Tehsildar on 25.10.2004 was without
jurisdiction,
passed
the
order
dated
12.01.2005 cancelling the approval granted
by the Tehsildar and directing the land to be
vested with the Gaon Sabha.

25. In terms of the amendment made
to Section 195 by U.P. Act No. 27 of 2004
(effective from 23.08.2004), the Assistant
Collector in charge of the sub-division was
empowered to grant approval to the
proposal
submitted
by
the
Land
Management Committee for admission of
land under Section 195. Accordingly, the
approval granted by the Tehsildar on
25.10.2004, i.e. on a date subsequent to
23.08.2004, when the amendment had
become effective, the order of approval by
the
Tehsildar,
was
clearly
beyond
jurisdiction.

26. The revision filed thereagainst has
been rejected for the same reason that the
approval was contrary to the provisions
contained under Section 195 (1) and also
taking into notice the amendment made to
Section 195 (1). The restoration application
having been filed with a delay of more than
six years, the Board of Revenue held the
reason for the delay to be insufficient and
the grounds taken in the revision were
found to be untenable; accordingly, the
restoration application was also rejected.

27. It is well settled that where an
authority takes upon itself to exercise a
jurisdiction it does not possess the order
passed would amount to 'nothing' ─ a
nullity. The concept of voidness and nullity
has been explained in de Smith's Judicial
Review of Administrative Action,2 while
considering whether an order or decision is
ultra vires or outside jurisdiction, in the
following terms :-

"Void acts and decisions are indeed
usually destitute of legal effect; they can be
ignored with impunity; their validity can be
attacked, if necessary, in collateral (or
indirect) proceedings; they confer no legal
rights on anybody."

28. It needs to be reiterated that
conferment of jurisdiction is a legislative
function and if an order is passed by an
authority having no jurisdiction in the
matter, it would be invalid and would
amount to nullity. The order made without
jurisdiction would be unenforceable and
inexecutable and would be devoid of any
legal effect.

29. The defect of jurisdiction strikes
at the very root of the matter and the order
of approval granted by the Tehsildar being
a nullity would be non-est and not
enforceable. The order passed by the
Collector cancelling the approval granted
by the Tehsildar, which was beyond
jurisdiction, therefore cannot be faulted
with. The order passed by the Board of
Revenue rejecting the revision and the
restoration application, also cannot be said
to suffer from any illegality so as to warrant
interference.

30. As regards the contention sought to
be raised on behalf of the petitioners that the
procedure under sub-section (4) of Section
972 INDIAN LAW REPORTS ALLAHABAD SERIES
198 for cancellation of the allotment was not
followed, it may only be stated that the order
of the Tahsildar granting approval being
without jurisdiction, the same was a nullity
and would have no effect. The District
Magistrate upon receiving a complaint and
after getting the matter inquired has rightly
held that since the Tahsildar was not
empowered to grant approval on the said date
in view of the amendment made to Section
195 the order of approval was beyond
jurisdiction and accordingly the same was
cancelled. It would be pertinent to underscore
the distinction between cancellation of an
order of approval on the ground that the same
was without jurisdiction, and cancellation of
an order of allotment on account of an
irregularity
which
would
require
the
procedure under sub-section (4) of Section
198 to be followed.

31. No other ground was urged.

32. In view of the above, the Court
finds no material error or illegality in the
orders impugned so as to persuade this Court
to exercise extra ordinary jurisdiction under
Article 226 of the Constitution of India.

33. The petition stands dismissed
accordingly.
----------
(2022)06ILR A972
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2022

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-B No. 303 of 2022

Ashok Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Appellnts:
Sri Anup Kumar Srivastava, Sri Dharmendra
Prasad

Counsel for the Respondents:
C.S.C., Sri Jamwant Maurya, Sri Krishna Kant
Singh, Sri Deena Nath

(A) Revenue Law - The U.P. Zamindari
Abolition and Land Reforms Act, 1950 -
Section 333 - Power to call for cases ,
The Limitation Act, 1963 - Section 5 -
Delay Condonation - Sufficient cause -
Rules of procedure are the handmaid of
the
justice
and
no
party
should
ordinarily be denied the opportunity of
participating in the process of justice
dispensation.(Para -15)

Recall application - dismissed by Board of
Revenue - substitution application filed with
delay - steps not taken for issuance of notice
pursuant to the order passed - rejection of
revision - ground - not taking steps based
on hyper technical reasoning
-
legally
unsustainable. (Para - 13,14)

HELD:-Impugned orders set aside. Matter
remitted to the Board of Revenue for passing
of
a
fresh
order
after
granting
due
opportunity to the parties concerned. (Para
- 17)

Writ Petition Allowed. (E-7)

List of Cases cited:-

1. N. Balakrishnan Vs M. Krishnamurthy, (1998)
7 SCC 123

2. Esha Bhattacharjee Vs Managing Committee
of Raghunathpur Nafar Academy & ors., (2013)
12 SCC 649

3. The St. of Punj. & anr. Vs Shamlal Murari &
anr. , (1976) 1 SCC 719

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Anup Kumar Srivastava,
learned counsel for the petitioners, Sri