# Ram Awadh and another v. The Board of Revenue U.P. Allahabad and others

- **Citation:** High Court of Judicature at Allahabad #42863
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-10
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-awadh-and-another-v-the-board-of-revenue-u-p-allahabad-and-others-42863
- **Pages:** 6

## Headnote

U.P.Z.A. & L R Act, Section-198- readwith
amended
U.P.
Act
No.
IVf
1969-
Cancellation of lease granted prior to
28.06.68-Power
vested
with
Astt.
Collector of the Division-but lease after
28.06.68-only the collection empowered
to cancel-Board of Revenue rightly set-aside the order by Asst. Collector-being
without
jurisdiction
but
instead
of
directing the Collector or to place the
complaint before collector-kept mumorder passed by Board modified to the
extant-consequential direction issued.

Held: Para-14
Reverting back to the facts of this case,
as I have noticed and found that there
can be no illegality in the order passed
by
the
learned
Member,
Board
of
Revenue, so far as it is held that the
order cancelling the lease by the Sub
Divisional
Officer
was
without
jurisdiction, but simultaneously, looking
into the grievance of the petitioners on
merit, which is still unredressed, this
Court provides an opportunity to the
petitioners to approach the Collector for
cancellation of the lease granted in
favour of the father of respondent nos.
5/1 and 5/2.

Case Law discussed:
2004(9) SCC 619; 2011(11) SCC 198; Special
Appeal No. 164 of 2012; 2012(11) ADJ 70

## Text

1 All Pratima Yadav Vs. Vinod Kumar Yadav
445
wherein it has been held that the wifeappellant, who appealed against a decree
of divorce passed against he, filed an
application for maintenance pendente lite
and cost of litigation under Section 24, it
would be maintainable. In this case it was
also held that "we are, however, of
opinion that if she is otherwise entitled to
maintenance under S.24, Hindu Marriage
Act, the fact that she made no such
application in the trial Court would be of
no consequence."

9. In Vinod Kumar Kejriwal v.
Usha Vinod Kejriwal, AIR 1993 Bombay
160, the Bombay High Court has also taken
the same view as discussed above.

10. In view of the discussions made
above, appeal is allowed. The impugned
order is set aside in as much as it does not
discuss anything about maintenance under
Section 24 of the Act. The withdrawal of
the suit as desired by the plaintiff
(respondent before me) is not disturbed by
this order but the learned Trial Court is
directed to decide application of the
appellant/wife under Section 24 of Hindu
Marriage Act, without delay, on merits.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 203 Of 1990

Ram Awadh and another ...Petitioners
Versus
The Board of Revenue U.P. Allahabad
and others

 ...Respondents

Counsel for the Petitioners:
Sri R.S. Chauhan, Sri Alik Singh
Sri Ambrish Prasad, Sri M.K. Dhrubvanshi
Sri R.N. Singh, Sri R.S. Maurya
Sri Surendra Nath Singh

Counsel for the Respondents:
C.S.C., Sri S.K. Tyagi
U.P.Z.A. & L R Act, Section-198- readwith
amended
U.P.
Act
No.
IVf
1969-
Cancellation of lease granted prior to
28.06.68-Power
vested
with
Astt.
Collector of the Division-but lease after
28.06.68-only the collection empowered
to cancel-Board of Revenue rightly set-aside the order by Asst. Collector-being
without
jurisdiction
but
instead
of
directing the Collector or to place the
complaint before collector-kept mumorder passed by Board modified to the
extant-consequential direction issued.

Held: Para-14
Reverting back to the facts of this case,
as I have noticed and found that there
can be no illegality in the order passed
by
the
learned
Member,
Board
of
Revenue, so far as it is held that the
order cancelling the lease by the Sub
Divisional
Officer
was
without
jurisdiction, but simultaneously, looking
into the grievance of the petitioners on
merit, which is still unredressed, this
Court provides an opportunity to the
petitioners to approach the Collector for
cancellation of the lease granted in
favour of the father of respondent nos.
5/1 and 5/2.

Case Law discussed:
2004(9) SCC 619; 2011(11) SCC 198; Special
Appeal No. 164 of 2012; 2012(11) ADJ 70

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

1. Learned counsel for the petitioners
states that he may be permitted to amend
the prayer by deleting the quashing of the
order dated 23.8.1973. He is permitted to so
during the course of the day.
446 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

2. Through this writ petition, the
petitioners have prayed for issuing a writ
of certiorari quashing the order dated
8.5.1989 passed by the Board of Revenue,
Allahabad in reference no. 127 of 198384 (Shobh Nath Vs. Gaon Sabha) and
order dated 18.10.1989 passed by the
learned Member, Board of Revenue,
Allahabad in review application in
reference no. 127 of 1988-89 (Ram Dular
Vs. Shobh Nath).

3. Heard Sri M.K. Dhrubvanshi,
learned counsel for the petitioners,
learned Standing Counsel appearing for
the State-respondents and Sri S.K. Tyagi,
learned counsel for respondent nos. 5/1
and 5/2.

4. The facts giving rise to this case are
that, it appears that a lease was executed by
the gaon sabha in the name of father of
respondent nos. 5/1 and 5/2 on 21.7.1971
for plot nos. 325, 362, 489, 885 and 480.
The petitioners herein filed an application
for cancellation of the aforesaid lease on the
ground that respondent no. 5 is the son of
sitting Gram Pradhan and had more than
3.126 acres of land, therefore, allotment
could not be made in his favour. In addition
to that, it was also stated that before
granting the lease, no Munadi was
conducted and the Sub Divisional Officer
has also not approved the proposal of the
gaon sabha for grant of lease. The aforesaid
application was allowed by the Sub
Divisional
Officer
vide
order
dated
23.8.1973. Aggrieved by the order dated
23.8.1973, respondent no. 5 had preferred
revision no. 186 of 2005 before the
Additional
Commissioner,
Faizabad
Division, Faizabad. The aforesaid revision
was
heard
by
learned
Additional
Commissioner, Faizabad and he found that
the order passed by the Sub Divisional
Officer was without jurisdiction as for
cancellation of agricultural lease, the
Assistant
Collector
in-charge
is
not
competent authority and the lease could
only be cancelled by the Collector of the
concerned district.

5. Taking note of this, learned
Additional
Commissioner
made
a
reference before the Board of Revenue for
setting aside the order passed by the Sub
Divisional Officer, holding it without
jurisdiction. The aforesaid reference was
numbered as reference no. 127 of 1983-84
(Shobh Nath Vs. Gaon Sabha). The
learned Board of Revenue, after hearing
the counsel for the parties, accepted the
reference and set aside the order passed
by the Sub Divisional Officer dated
23.8.1973, holding it without jurisdiction.
The petitioners filed a review application,
reviewing the order dated 8.5.1989. The
said review application was also rejected
by the learned Member, Board of
Revenue by the detailed order on
18.10.1989.

6. Sri Dhrubvanshi contends that the
orders impugned are patently illegal orders
for the simple reason that if the learned
Member, Board of Revenue was of the
opinion that the order passed by the
Assistant Collector in-charge was without
jurisdiction, he should have, after allowing
the reference, directed the competent
authority
concerned
to
consider
the
petitioners' application only and pass an
appropriate order on the same as the
petitioner's grievance is still unredressed.

7. Refuting the submissions of
learned counsel for the petitioners,
learned Standing Counsel as well as Sri
Tyagi submitted that there is no illegality
in the orders impugned as before the
1 All Ram Awadh and another Vs. The Board of Revenue Allahabad and others
447
Board of Revenue, the question was as to
whether the order passed by the Assistant
Collector
in-charge
is
within
his
competence or it is without jurisdiction.
Learned counsel for the respondents have
also placed reliance upon the amendment
made from time to time in the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 (in short, 'the Act'). Particular
attention has been drawn towards the
amendment made vide U.P. Act No. IV of
1969. For appreciation, the relevant
amendment as made in sections 14 and 23
of the Act are reproduced hereinunder:

"14. Amendment of Section 198 -
In section 198 of the principal Act, -

(a) in sub-section (2) for the words,
figures and brackets "The Assistant
Collector-in-charge of the sub-division
may on his own motion and shall on the
application of any person aggrieved by an
order
of
the
Land
Management
Committee passed under sub-section (1)
enquire in the manner prescribed into an
allotment made under sub-section (1)",
the words, figures and brackets "The
Collector may of his own motion and
shall on the application of any person
aggrieved by an allotment referred to in
sub-section (1) inquire in the manner
prescribed into such allotment" shall be
substituted; and

(b) in sub-section 93), for the words
"an Assistant Collector-in-charge of the
sub-division", the words "the Collector"
shall be substituted.

23.
Transitory
provisions-
Notwithstanding the amendments made in
Section 198 of, and in Schedule II to, the
principal Act, by this Act -

(a) the jurisdiction to make inquiries
and pass orders under sub-section (2) of
the said Section 198; and

(b) the jurisdiction to entertain and
decide suits under sub-section (4) of the
said section, in relation to allotments
referred to in sub-section (1) of the said
section, made prior to the 28th day of
June, 1968, shall continue to vest in the
Assistant Collector-in-charge of the subdivision as if this Act had not been
passed."

8. As has been noticed, before filing
of the application for cancellation of the
lease, another amendment was made in
the Act, known as "U.P. Act No. 35 of
1970". In view of section 3 of this Act,
the entire provisions contained in section
198 earlier have been substituted by
inserting the following provisions:

"3. Amendment of Section 198 -
For Section 198 of the principal Act, the
following shall be substituted, namely:

'198. Order of Preference in
admitting
persons
to
land
under
Sections 195 and 197 - (1) In the
admission of persons to land as sirdars or
asami under Section 195 or Section 197
(hereinafter in this section referred to as
'allotment of law'), the Land Management
Committee shall, subject to any order
made by a court under Section 178,
observe the following order of preference:

(a)
any
educational
institution
recognized by the Director of Education,
Uttar Pradesh or by the Board of High
School and Intermediate Education, Uttar
Pradesh or by a University and imparting
instructions in or providing for research in
448 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
agriculture,
horticulture
or
animal
husbandry;

(b) landless widow, sons, unmarried
daughters and parents residing in the
circle, of a person who has lost his life by
enemy action while in active service in
the Armed Forces of the Union;

(c) a person residing in the circle, who
has become landless on account of his land
having been compulsorily acquired under
the provisions of any law relating to
acquisition of land on or after the date of
vesting;

(d) a landless person, residing in the
circle, retired, released or discharged from
service (other than service as an officer) in
the Armed Forces of the Union;

(e) landless political sufferer residing
in the circle who has not been granted
political pension;

(f) a landless agricultural labourer
residing in the circle and belonging to a
scheduled caste or scheduled tribe;

(g) any other landless agricultural
labourer residing in the circle;

(h) a bhumidhar, sirdar or asami
holding land less than 1.26 hectares (3.125
acres);

(i) any other person.

Explanation I - For the purpose of this
sub-section -

(i) 'landless' refers to a person who or
whose spouse or minor children hold no
land as bhumidhar, sirdar or asami; and
except in clause (c), also held no land as
such
within
two
years
immediately
preceding the date of allotment; and

(ii) 'agricultural labourer' means a
person whose main source of livelihood is
agricultural
labour
or
assistance
or
participation with any person in the actual
performance of agricultural operations on
any land in consideration of a right to share
in the produce grown on such land.

Explanation II - For the purposes of
clause (e), 'political sufferer' means a
person who is certified by the Collector to
have
undergone
either
preventive
detention or sentence of imprisonment
(either as a substantive sentence or in
default of payment of fine) for not less
than three months for participation in any
movement connected with the national
struggle for Freedom during the period
between 1930 and 1947.

(2) The land that may be allotted to -

(i) an education institution under
clause (a) of sub-section (1) shall not
exceed such area as together with the area
held by it immediately before the
allotment would aggregate to more than
5.04 hectares (12.50 acres);

(ii) any person under clause (b),
clause (c), clause (d), clause (e), clause
(f), clause (g) or clause (i) of sub-section
(1) shall not exceed an area of 1.26
hectares (3.125 acres); and

(iii) any person under clause (h) of
sub-section (1) shall not exceed such area
as together with the land held by him as
bhumidhar, sirdar or asami immediately
before the allotment would aggregate to
more than 1.26 hectares (3.25 acres).

(3) The Collector may of his own
motion and shall on the application of any
person aggrieved by an allotment of land
inquire in the manner prescribed into such
1 All Ram Awadh and another Vs. The Board of Revenue Allahabad and others
449
allotment and if he is satisfied that the
allotment is irregular he may:-

(i) cancel the allotment and the lease,
if any, and thereupon the right, title and
interest of the allottee or lessee or any
person claiming through him in the land
allotted or leased shall cease, and such
land shall revert to the Gaon Sabha, and

(ii) direct delivery of possession of
such land forthwith to the Gaon Sabha
after ejectment of every person holding or
retaining possession thereof and may for
that purpose use or cause to be used such
force as may be necessary.

(4) Every order passed by the
Collector under Sub-section (3) shall
subject to the provisions of Section 333,
be final."

9. From the perusal of the clause (a) of
section 14 of U.P. Act No. IV of 1969, it
would transpire that the power of inquiry
with respect to cancellation of lease referred
in sub-section (1) of section 198 of the Act
vested in Assistant Collector in-charge of
the Sub Division, has been substituted by
mentioning the words, "the Collector."
However, in view of section 23, as has been
quoted above, with respect to sub-section
(1) of section 198 of the Act, the power
prior to 28.6.1968 shall continue to vest in
the Assistant Collector in-charge of the Sub
Division, meaning thereby, for cancellation
of lease executed prior to 28.6.1968, the
power of cancellation shall remain in tact
with the Assistant Collector of the sub
division. This has further been substituted
by the U.P. Act No. 35 of 1973 by
substituting section 198 in toto in view of
section 3 of the amended Act, where subsection (3) has been inserted and as has
been
quoted
above,
the
power
of
cancellation of lease has been conferred to
the Collector while exercising his suo motu
power or on an application filed by the
aggrieved person.

10. On the bare reading of the
aforesaid amendments and in view of the fact
that the lease of respondent no. 5 was granted
on 21.7.1973, it is doubtless that the power
of cancellation of lease on the relevant date
was vested in the Collector and not in
Assistant Collector in-charge, therefore,
order impugned passed by the Deputy
Collector is without jurisdiction. It is settled
law that the order passed without jurisdiction
is nullity in the eye of law and no legal
consequences can flow from such orders, as
the jurisdiction can neither be assumed nor
presumed nor conferred or acquired by
acquiescence of the parties and the only fate
of such order is that the order becomes void
abinitio. Reference may be given to
Managing
Director,
Army
Welfare
Housing Organization Vs. Sumangal
Services Pvt. Ltd. 2004 (9) SCC 619,
Sarup Singh and Another Vs. Union of
India and Another 2011 (11) SCC 198 and
a Division Bench of this Court in the case of
Committee of Management Shri Jawahar
Inter College and Another Vs. State of
U.P. and Others (Special Appeal No. 164 of
2012 decided on 25.1.2012).

11. However, the question remains
that although the order impugned in the
revision, i.e., cancellation of the lease, is
without jurisdiction, but it is apparent that
the grievance of the petitioners, which is
on merit, pointing out the irregularity in
the process of allotment has never seen
the light of the day. The right of seeking
cancellation of the lease is a right
conferred by the statute under sub-section
(2) of section 198 of the Act at the
relevant time and on the date when the
application was filed, it was vested in
450 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Collector under sub-section (3) of section
198 of the Act.

12. I am of the opinion that once the
irregularity in the process of allotment
was pointed out by the aggrieved persons,
i.e., the petitioners, it was incumbent upon
the Assistant Collector in-charge, who
was dealing with the matters, to return the
application for presentation before the
Collector, who was competent to deal
with such matters in view of amended
sub-section (2) of section 198 of the Act
vide U.P. Act No. IV of 1969 and in view
of sub-section (3) of section 198 of the
Act vide U.P. Act No. 35 of 1970, but the
Assistant Collector in-charge had failed to
return the application for presentation
before the Collector and exercised power
which was not vested in him. The learned
Member, Board of Revenue although had
held that the order passed by the Sub
Divisional Officer is without jurisdiction,
but he also failed in performing his duties
being a supervisory authority of the
revenue courts relating with such matters
taking note of the statutory right conferred
by the statute to the petitioner to seek
cancellation of the lease in view of subsection (2) of section 198 of the Act vide
U.P. Act No. IV of 1969 and in view of
sub-section (3) of section 198 of the Act
vide U.P. Act No. 35 of 1970, by giving a
liberty to the petitioners either to
approach the Collector or by directing the
Collector to look into the grievance of the
petitioners
on
merit
and
pass
an
appropriate order on the application of
thte petitioners in accordance with law.

13. Sri Tyagi has submitted that the
petitioner are not aggrieved persons
within the meaning of sub-section (1) of
section 198 of the Act and they do not fall
in the eligibility zone for grant of lease
and they have filed application only on
the ground that on the leased land, their
old trees are standing. This Court in the
case of Munshi Vs. State of U.P. and
Others 2012 (11) ADJ 70 has held that the
persons, who is in possession of the
leased land and if the lease has been
granted
without
evicting
him
in
accordance with the provisions contained
under section 122-B of the Act, he can
always be treated to be a person aggrieved
and he can maintain the application for
cancellation of the lease.

14. Reverting back to the facts of
this case, as I have noticed and found that
there can be no illegality in the order
passed by the learned Member, Board of
Revenue, so far as it is held that the order
cancelling the lease by the Sub Divisional
Officer was without jurisdiction, but
simultaneously,
looking
into
the
grievance of the petitioners on merit,
which is still unredressed, this Court
provides an opportunity to the petitioners
to approach the Collector for cancellation
of the lease granted in favour of the father
of respondent nos. 5/1 and 5/2.

15. In case such application is filed by
the petitioners, along with a certified copy of
the order of this Court, the Collector
concerned is directed either to decide the
application of the petitioners himself or by
directing it to be decided by any other
Additional Collector, as the case may be,
without entertaining any objection to the
limitation. The parties are at liberty to lead
their evidence and advance their submissions
before the Collector concerned.

16. With the aforesaid observation /
direction, this writ petition is disposed of.
---------
APPELLATE JURISDICTION