# Smt. Vakila v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-19
- **Case number:** Civil Misc. Writ Petition No. 9213 of 2008
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vakila-v-state-of-u-p-and-others-41052
- **Pages:** 4

## Headnote

Act, 1950-Section 198 (9) 132-allotment
of land in the year 1991-reserved for
public
purpose-benefit
of
deemed
abatement under Section 198 (9) not
available-after
10.11.1980-heldcancellation proper.

Held: Para 9

The
above
provision
indicates
that
allotments, made prior to 'said date' i.e.,
November 10, 1980, of land specified
under
Section
132
as
sirdar
or
bhumidhar shall be treated to a asami
year to year, thus, the above deeming
clause comes in operation with regard to
land allotted prior to November 10,

## Text

292 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
in inquiry and trial. Section 183 Cr.P.C.
provides as follows:-

"183. Office committed on Journey
or voyage- when an offence is committed
whilst the person by or against whom, or
the thing in respect of which, the offence
is committed is in the course of
performing a journey or voyage, the
offence may be inquired into or tried by a
Court through or into whose local
jurisdiction that person or thing passed in
the course of that journey or voyage."

7. The aforesaid provision clearly
indicates that it is not essential for a
person to lodge complaint in the Court of
origin of journey or the court of its
destination. In the present case the
journey started from Delhi and ended at
Patna and therefore, the applicant was
well within his right to lodge a complaint
at any intervening district before the
competent Magistrate. Chief Judicial
Magistrate, Fatehpur wrongly interpreted
the said provision by holding that the FIR
should have been got lodged at Patna.
This opinion of CJM is contrary to
Section 183 Cr.P.C. ex-facie and on this
ground alone I set aside the impugned
order dated 8.8.2007 passed by CJM
Fatehpur on the application of the
applicant under Section 156(3) Cr.P.C.

8. Resultantly, this application is
allowed. The impugned order dated
8.8.2007 is hereby quashed and the matter
is remanded back to CJM Fatehpur to
decide the application of the applicant
afresh in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 9213 of 2008

Smt. Vakila

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

Counsel for the Petitioner:
Sri S.K. Pandey
Sri M.I. Faruqui

Counsel for the Respondents:
Sri V.K. Singh
S.C.

U.P. Zamindari Abolition & Land Reform
Act, 1950-Section 198 (9) 132-allotment
of land in the year 1991-reserved for
public
purpose-benefit
of
deemed
abatement under Section 198 (9) not
available-after
10.11.1980-heldcancellation proper.

Held: Para 9

The
above
provision
indicates
that
allotments, made prior to 'said date' i.e.,
November 10, 1980, of land specified
under
Section
132
as
sirdar
or
bhumidhar shall be treated to a asami
year to year, thus, the above deeming
clause comes in operation with regard to
land allotted prior to November 10,
1980. The allotment to the petitioner in
the present case is allotment which was
made with the approval dated 14th
August, 1991 subsequent to specified
date. The Legislature itself confined
deeming clause as Asami with regard to
only those sirdar or bhumidhar who were
allotted land prior to November 10,
1980. The said legal fiction or benefit
cannot be extended to the allottees of
land specified under Section 132 .of the
Act who were allotted land after the said
1 All] Smt. Vakila V. State of U.P. and others
293
date, i.e., November 10, 1980. Thus, the
petitioner's submission that he became
Asami of the land specified Section 132
of the Act, cannot be accepted. The
allotment in favour of the petitioner,
being allotment of land which was
recorded as river, was illegal and has
rightly been set aside. No grounds have
been made out to interfere in the
impugned order in exercise of writ
jurisdiction by this Court.

(Delivered by Hon'ble Ashok Bhushan. J.)

1. Heard Sri Sanjeev Kumar Pandy,
learned counsel for the petitioner.

2. By this writ petition petitioner has
prayed for quashing the order dated
4.8.2006 passed by Additional Collector
directing for cancellation of lease granted
to the petitioner, as well as the order dated
26.12.2006
passed
by
Additional
Commissioner dismissing the revision.

3. The petitioner was granted lease
by the approval of the Assistant Collector
dated 14th August, 1991 along with
several other persons. A report was
submitted by Sub Divisional Officer,
Modinagar dated 4th April, 2006 to the
effect that by order dated 16th March,
1995 the land was allotted for agricultural
whereas the land which has been allotted
is a land of river and is for public utility
within the meaning of Section 132 of U.P.
Zamindari Abolition and Land Reforms
Act, 1950 which could not be recorded.
The recommendation was made for
cancelling
the
lease.
A
case
was
registered and suo-moto exercise of power
notices were issued to the petitioner. An
objection was filed by the petitioner to the
effect that the land was allotted by the
Land
Management
Committee
for
agricultural purposes and it has wrongly
been recorded as river in C.H. form no. 45
and it should be corrected as bhumidhari.
It has further been stated that the name of
petitioner was reported as Asankramaniya
bhumidhar and the petitioner is in
possession. The Additional Collector took
a view that the land is a land within the
meaning
of
Section
132
of
U.P.
Zamindari Abolition and Land Reforms
Act, 1950, hereinafter referred to as 'the
Act', and the same could not have been
allotted and the allotment is cancelled.
The revisional court affirmed the order.

4. Learned counsel for the petitioner,
challenging the order, contends that the
petitioner is Asami of the land within the
meaning of Section 132 of the Act and he
has right to retain possession of the land
as provided under Section 133 and 146 of
the, Act. He submits that even though the
entry of Asankramaniya bhumidhar is
there in the record in the name of
petitioner but the petitioner is entitled to
continue
in
possession.
He
further
contends that the lease was not liable to
be cancelled even if the land is recorded
as river.

5. I have considered the submissions
made by the learned counsel for the
petitioner and perused the record.

6. The petitioner himself has filed
the extract of revenue entry of Kisan Bahi
which is annexure-1 to the writ petition,
which clearly indicates that petitioner is
recorded
as
lease
holder
as
Asankramaniya bhumidhar of the land in
dispute. The petitioner in the objection
has also claimed that he having allotted
the land by the Land Management
Committee, her name as Asankramaniya
bhumidhar has rightly been recorded. It
has been stated that in the consolidation
record the land is still shown as river
294 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
whereas said word 'river' ought to have
been corrected when the lease was
granted to the petitioner.

7. The factual matrix, as emerge
from the material on record, clearly
indicates that the petitioner's allotment of
the land was not an Asami but the
allotment was made as Asankramaniya
bhumidhar which is recorded in record
and which is specific case of the
petitioner in the written objection filed to
the reply of notice under Section 198(4)
of the Act. Learned counsel for the
petitioner in his submissions, has tried to
improve the case by relying on Section
132, 133 and 146 of the Act. On the land
which is covered under Section 132 of the
Act no bhumidhari right can accrue as
laid down by Section 132 of the Act itself.
It is true that certain lands which are
covered under, Section 132 of the Act can
also be allotted as Asami by the Land
Management Committee but by virtue of
Section 197 sub-section (2) of the Act the
right to admit any person as Asmai of any
tank, pond or other land, covered by water
shall be regulated by the rules made under
this Act. The allotment of tank, pond or
other
land
are
governed
by
the
Government Orders issued under Section
126 of the Act. The present case is not a
case where allotment has been made
within the meaning of Section 197(2) of
the Act. Government Orders with regard
to allotment of tank, pond or other land
covered by water. In the present case the
Land
Management
Committee
has
exercised power under Section 195 of the
Act in allotting the land to the petitioner.
The Additional Collector has rightly come
to the conclusion that the lease cannot be
granted of land which is covered under
Section 132 of the Act. The reference of
Section 133 and 147 of the Act does not
help the petitioner in the present case
since petitioner is not granted Asami lease
as contemplated under Section, 197(2) of
the Act. Leaned counsel for the petitioner
has tried to make submissions defending
the title and right as Asami but there is no
foundation for the above submissions.

8. There is one more reason for not
accepting the above submissions of
learned counsel for the petitioner. Section
198 sub-clause (9) of the Act contains the
deeming clause with regard to any land
specified in Section 132 as a sirdar or
bhumidhar with non-transferable rights
prior to a specified date. Section 198(9) of
the Act quoted below:

"198(9) Where any person has been
admitted to any land specified in Section
132 as a sirdar or bhumidhar with
nontransferable rights at any time before
the said date and such admission war
made with the previous approval of the
Assistant Collector in charge of the subdivision in respect of the permissible area
mentioned in Sub-section (3), then
notwithstanding anything contained in
other provisions of this Act or in the terms
and conditions of the allotment or lease
under which sub person was admitted to
that land, the following consequences,
shall, with effect form the said date
ensure, namely:

(a) the allottee or lessee shall be deemed
to be an asami of such land and shall be
deemed to be holding the same from year
to year, and the allotment or lease of the
land to the extent mentioned above shall
not be deemed to be irregular for the
purposes of sub-section (4);
(b) the proceedings, if any, pending on
the said date before the Collector or any
other
court
or
authority
for
all
1 All] Nitin Katara and another V. U.P. Technical University and others
295
cancellation of the allotment of lease of
such land, shall abate.

9. The above provision indicates that
allotments, made prior to 'said date' i.e.,
November 10, 1980, of land specified
under Section 132 as sirdar or bhumidhar
shall be treated to a asami year to year,
thus, the above deeming clause comes in
operation with regard to land allotted
prior to November 10, 1980. The
allotment to the petitioner in the present
case is allotment which was made with
the approval dated 14th August, 1991
subsequent
to
specified
date.
The
Legislature itself confined deeming clause
as Asami with regard to only those sirdar
or bhumidhar who were allotted land
prior to November 10, 1980. The said
legal fiction or benefit cannot be extended
to the allottees of land specified under
Section 132 .of the Act who were allotted
land after the said date, i.e., November 10,
1980. Thus, the petitioner's submission
that he became Asami of the land
specified Section 132 of the Act, cannot
be accepted. The allotment in favour of
the petitioner, being allotment of land
which was recorded as river, was illegal
and has rightly been set aside. No grounds
have been made out to interfere in the
impugned order in exercise of writ
jurisdiction by this Court.

10. The petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2008

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 50842 of 2007

Nitin Katara and another ...Petitioners
Versus
U.P. Technical University, Institute of
Engineering and technology, Lucknow
and others

...Respondents

Counsel for the Petitioners:
Sri R.C. Katara

Counsel for the Respondents:
Sri Neeraj Tiwari

Constitution of India-Art. 226-EducationPetitioner a B. Tech student-claimed
benefit of decision of academic council
dated 20.9.06-to allow him to appear in
4th year examination without clearance
of Ist year-held-no relaxation be granted
in contravention of ordinance-before
relaxation
has
to
clear
Ist
year
examination-court declined to interfere.

Held: Para 16

This being the position, this Court is not
inclined to interfere in the matter. The
counsel for the University states that as
soon as the petitioner clears all papers of
the first year, his result of third year will
be declared which has been withheld in
accordance with the Ordinance and if the
petitioner is declared passed, he will be
given admission. The petitioner may
clear
all
papers
of
the
1st
year
examination if he so desires. No student
can be permitted to be promoted in the
next semester in contravention of the
Ordinance. Once relaxation has been
granted, he should clear all papers of the
1st year examinations.