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U.P.Z.A. & L.R. Act
S. 10 – Deduction of collection charge in order to recovery of
dues as arrears of land revenue would be permissible.
In Mange Ram and another v. State of U.P. and Others
reported in 2010(4) ADJ 390. The question for consideration before
the Court was whether the cost of collection of recovering land
revenue or a sum as an arrear of land revenue can at all be
recovered or realized
from the defaulter when the recovery has not been made through
the process/machinery of the Collector under the provisions of the
U.P. Zamindari Abolition and Land Reforms Act/Rules despite
provisions under the Act to realize 10% of the amount as collected
charges.
This Bench was pleased to observe that on a plain reading of
Section 10 along with Rule 8 of the Rules, it is clearly brought out
that the Recovering Authority has to remit the amount to the
authority concerned after deducting the collection charges, if any.
The learned Bench then observed that this envisages deducting of
collection charges only after recovering the amount and before
remitting the same to the authority concerned. (Satya Veer Singh
v. State of U.P. & Ors.; 2010(6) ALJ 48 (All HC)
S. 20(4) - Benefit of Section 20(4) - Entitlement
It has also recorded the finding of fact that there was default in payment of rent, arrears and other amount which was also not deposited by tenant on the first date of hearing. Hence, sub-section (4) of Section 20 would not help the tenant. Before the revisional court, it appears that the tenant raised only one ground i.e. his entitlement for benefit of Section 20 sub-section (4) which has been considered by Revisional Court. It has held that tenant is not entitled for such benefit having failed to deposit requisite amount on the first date of hearing. ( Laxmi Prasa vs. Special Judge, Gorakhpur; 2013(2) ALJ 30)
S. 122-B - Civil Procedure Code, Section 9 Suit for injunction - Jurisdiction of Civil Court to Decide
On the day of filing of the suit plaintiff was recorded as bhumidhar of the land in dispute, hence on that time there was no need for filing of suit in the revenue court.
The learned court below has while deciding this issue held that the suit has been filed for injunction and under specific relief Act only civil court is empowered to grant injunction.
In the case of Ram Awalamb and others vs. Jata Shanker and others 1968 RD 470. a Full Bench decision of this Court it has been held that:-
“in each and every case, the cause of action of the suit shall have to be strictly scrutinised to determine whether the suit is solely cognizable by a revenue court or is impliedly cognizable only by a revenue court, or is cognizable by a civil court. Where in a suit, from a perusal only of the reliefs claimed, one or more of them are ostensibly one relief is cognizable only by the revenue court, further questions which arise are whether all the reliefs are based on the same cause of action and, if so, (a) whether the main relief asked for on the basis of that cause of action is such as can be granted only by a revenue court, or (b) whether any real or substantial relief (though it may not be identical with that claimed by the plaintiff) could be granted by the revenue court. There can be no doubt that in all cases contemplated under (a) and (b) above the jurisdiction shall vest in the revenue court and not in the civil court. In all other cases of a civil nature the jurisdiction must vest in the civil court.
The determination of the question as to which out of the several reliefs arising from the same cause of action is the main relief will depend on the facts and circumstances of each case. Where, on the basis of a cause of action.
(a) the main relief is cognizable by a revenue court the suit would be cognizable by the revenue court only. The fact that the ancillary reliefs claimed are cognizable by civil court would be immaterial for determining the proper forum for the suit;
the Act and on their failure, the competent authority was also given additional power to ensure removal of such encroachment if it comes to the knowledge of the encroachment over the gaon sabha land or the land belonging to the local authority from any other source.
In view of the fact that under the code, it is the Assistant Collector who has been empowered to pass an order for removal of such encroachment and ensuring removal of such encroachment, the application by an individual private person has to be made to the Assistant Collector but if the application has been made other than the Assistant Collector, to the Commissioner or the Collector of the Deputy Collector or any other authority, in view of the law laid down by this Court in the case of Rama Shankar (2013 (1) ALJ 31) the authority concerned i.e. the Commissioner or the Collector or the Deputy Collector or any other authority, after receipt of such information regarding encroachment has to immediately transmit the application to the Assistant Collector of the concerned tehsil and after receipt of the application either from the office of the Commissioner or the Collector or the Deputy Collector thereafter is obliged to proceed in accordance with law and take suitable decision in accordance with the provisions contained under Rule 67 of the Rules. Bhole Nath vs. State of U.P., 2016 (6) ALJ 129
Sec. 122-B-4(f)- Restoration application - Any order passed on restoration application seeking recall of order was not revisable
The brief facts of this case are that in a proceeding under section 122B (4F) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short the Act) the Sub Divisional Officer has passed an order dated 10.10.1998 for recording the name of respondent no. 6 as Bhumidhar with non transferable right over plot no. 547 situated in village Bansdeeha upon which it is alleged that the respondent no. 6 had been in possession prior to 1985.
The petitioner herein claiming himself to be lease holder on the aforesaid plot, has filed restoration application seeking recall the order dated 10.10.1998 before the Sub Divisional officer on 28.7.2004. The restoration application was allowed on 31.5.2005 by Sub Divisional Officer and order dated 10.10.1998 was recalled. Aggrieved by the order dated 31.5.2005 the respondent no. 6 has filed revision No. 511/886/G (Dwarika Vs. Ganga Raman) before the Additional Commissioner, Gorakhpur Division, Gorakhpur which, in turn, was heard and allowed by the Additional Commissioner (Admn.) vide order dated 29.10.2011 on the ground that the petitioner had no right to file restoration application.
It is contended by learned counsel for the petitioner that against the order, allowing restoration application seeking recall of the order, passed under section 122B (4F) of the Act revision was not maintainable.
Division Bench of this court in the case of Shushila and another vs. State of U.P. and others being Special Appeal No. 479 of 2015 decided on 29.9.2015 has held that an order passed under section 122B (4F) of the Act is not revisable. In view of the fact that the order passed under section 122B(4F) itself is not revisable therefore any order passed on the restoration application seeking recall of the order passed under section 122B (4F) is also not revisable therefore in my opinion the order passed by the Revisional court, against the order allowing restoration application, is without jurisdiction. Ganga Raman Sharma V. State of U.P. and others, 2016 (5) AWC 5023
Ss. 122B(4F) & 132 – Whether declaration of right of any person can be made in respect of public utilities land U/s. 132 of above Act – Held (ii)
Court has observed that the order dated 30-9-1983 refers to the land in question having been converted under an order dated 14th
So far as submission of the learned counsel for the petitioner that the land of Gaon Sabha was allotted to her in lieu of her sterilization under which the petitioner had under gone operation of Tubecto my, and the respondent State functionaries are bound by the principle of estoppel is concerned, it is to be noted that since the petitioner's allotment was found to be contrary to the law i.e. against the provisions of Section 122-C of the Act, therefore, no plea of estoppel is operative against State machinery i.e. the Collector in cancelling the irregular Patta allotted to the petitioner which was contrary to the provisions of Section 122-C of the Act. (Shanti Deve Rajeshwar Prasad Tripathi vs. State of U.P.; 2012(2) ALJ 353)
Sec. 131-B – Temporary Injunction – Refused in a suit for permanent injunction – Appeal against – Dismissed – Legality of
Till date sale-deed has not been calncelled. Revenue entries are also in favour of the petitioner. Learned Counsel for the respondent has argued that respondent No. 1 took permission of the D.M. To sell his land to Ramvriksha and firstly he did not execute the in sale deed in favour of the petitioner and secondly even if sale-deed was executed it was illegal because no permission had been sought. Both petitioner as well as respondent No. 1 are scheduled caste. The property is not covered by section 131-B of U.P.Z.A.L.R. Act. Accordingly, permission was not necessary.
Accordingly, in court's opinion prima facie the petitioner has made out a case for grant of temporary injunction. Writ petition is accordingly allowed impugned order are set aside, petitioner's temporary injunction application is allowed in the following manner :-
It is directed that until decision of the suit respondents shall not interfere in the possession of the petitioner. Petitioner is also restrained from alienating the property in dispute or changing its
nature till the decision of the suit. All the four suits shall be consolidated and decided together. It is stated that in OS No. 47 of 1999 filed by respondent No. 1 Lal Chand. He (Lal Chand) has filed application for dismissal of the suit as withdrawn. If such an application is pending then the suit shall be dismissed as withdrawn. Respondents No. 2 to 5 are sons of Lal Chand. The suits must be decided very expeditiously. Absolutely, no unnecessary adjournment shall be granted to the plaintiff as he has been granted temporary injunction. If any adjournment is granted to the plaintiff then is shall be on heavy cost which shall not be less than Rs. 300/- per adjournment payable before the next date failing which suit shall be dismissed for non-prosecution. However, if defendants-respondents seek more than two adjournments then this direction shall stand automatically vacated/recalled. Bechan v. Lal Chand, 2016 (133) RD 645 (Alld.HC)
Sec. 166 – Attractibility of So far as the argument that sale-deed is affected by section 166 of the Act, is concerned, it has been found that sale-deed was in respect of bhumidhari holding, therefore, section 166 is not attracted. Otherwise also on the basis of plea of Section 166 of the Act, the petitioners will not get any benefit of land as the land will vest in State of U.P. Therefore this Court is not inclined to interfere in the matter. Amarjeet v. Board of Revenue, Allahabad, 2016 (133) RD 8 (Alld.HC)
Rs. 176 and 176-A – Asami Pata-Asami patta shall not be for a period exceeding five years – Sub divisional officer is empowered to determine the asami lease at any time
section 117 of the U.P.Z.A. & L.R. Act. It is settled principle of law that a power to do in a particular authority empowers the same authority to undo the notifications. The State Government has the power under the provisions of section 117 of the U.P.Z.A. & L.R. Act and not the Director of Panchayat Raj to rescind the notification of section 117. The powers under the Panchayat Raj Act, 1947, operate in a different field and so is the case under the U.P. Municipalities Act, 1916. There the limits of boundaries are defined that does not deal with any such power of divesting the management of Gaon Sabha Land which is within the exclusive domain of the U.P.Z.A. & L.R. Act, 1950. (Yatindra Kumar Singh @ Raju and others v. State of U.P. Through Secretary, Urban Development, U.P., Lucknow and others, 2011 (114) RD 50)
S. 122-B- Scope of- An asami lease cannot be determined in proceeding U/s 122- B of the above Act It is equally true that an Asami lease cannot be determined in proceedings under section 122-B of the U.P. Zamindari Abolition and Land Reforms Act which provision is meant for eviction of unauthorized occupants. A person recorded as an Asami cannot be said to be an unauthorized occupant especially when the entry is not alleged to be a forged or fraudulent entry. Baijanath (Dead) and others V. State of U.P. and others, 2016 (132) RD 294
S. 122-B (succeeded by S. 67 of the U.P. Revenue code, 2006)- U.P. Revenue Code Rules, 2006- Rule 67 (6) – Scope of explained. The writ petition which has been filed in the public interest has highlighted the failure of the State to implement the judgment of the Division Bench of this Court dated 28 May, 2014 in Om Prakash Varma and others V. State of Uttar Pradesh and others, Misc. Bench No. 6472 of 2012. This judgment of the Division Bench dealt with the serious issue of encroachments on public utility lands, including among them lands which are reserved for parks, ponds and pasture
lands which are being increasingly encroached upon in the absence of any remedial action by the State Government.
In court view, since the Division Bench has already laid down comprehensive guidelines and has issued directions to the State Government in Om Prakash Verma , the issue which now really remains is the lack of administrative will to secure enforcement of the directions. This is a serious matter which must necessarily be taken up by the Court. Court may note that the provisions of section 67 and 136 of the U.P. Revenue Code, 2006 sufficiently empower the respondents to rid public utility lands from encroachments. Rule 67 (6) of the U.P. Revenue Code Rules, 2006 mandates that the Assistant Collector shall conclude the enquiry under section 67 within 90 days of the issuance of the show cause notice and in case of failure to adhere to the time frame, the authority is obliged to record reasons. Yet this Court on a daily basis is deluged by petitions alleging failure to act against encroachments or apathy in implementing orders of eviction. The obligation to preserve land meant for public utility purposes rests upon the State. Action against encroachments cannot be left to depend upon individuals instituting legal proceedings to secure enforcement of the mandate cast by section 67 and 136. In these circumstances, this Court would be constrained to reiterate the guidelines which were issued in Om Prakash Verma and to further direct the State to strengthen the procedure for enforcement so as to secure the interest of the public. Dayaram Yadav and others
V. State of U.P. through Chief Secretary, U.P. Govt., Lucknow 2016 (132) RD 11
S. 143
The petitioner instituted Original Suit No. 479 of 1993 seeking partition in the disputed plot which was recorded in revenue record as agricultural land. The defendant raised an objection that Civil Court has no jurisdiction in the matter. The Trial Court answered with respect to jurisdiction of Civil Court holding, if there existed a permanent construction
cannot be sustained.
In the result, the writ petition is allowed. The orders impugned dated 5.8.2006 and 9.12.2004 are hereby quashed. ( Jiya Ram and others v. State of U.P. and others; 2012(3) AWC 2708)
Lease- Cancellation of- Provisions of section 198 of the U.P.Z.A. & L.R. Act to be availed- Lease cannot be cancelled through an administrative order- Rules of natural justice to be followed- Procedure prescribed under law cannot be avoided- Petition disposed of with observations.
Suffice it to say, if the orders have been passed by the Authorities conferring a lease on the petitioner then the respondent administration has to move an application for recall or for setting aside such orders. In the instant case, the petitioner relies on a lease conferred by the competent authority. The procedure for cancellation of a lease which can be said to be invalid is provided for under sub- section (4) of section 198 of the U.P.Z.A. & L.R. Act, 1951. This provision can be availed of in the event the lease is invalid. It cannot be cancelled through an administrative order. The rules of natural justice have to be complied with and the procedure prescribed by law has to be followed. It is well settled that even an order criticised as being void requires setting aside. Reference be had to the observations of the Apex Court in the Constitution Bench decision of Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 217, (Paragraphs 25 and
- extracted hereinunder:
.......... ―Evidently, the Appellate Court in a case which properly comes before it on appeal is fully competent to decide whether the trial was with or without jurisdiction, and it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the conviction and thereby decides wrongly. If it affirms the conviction and thereby decides wrongly that the trial Court had the jurisdiction to try and convict it cannot be said to have acted without jurisdiction and its order cannot be treated as a nullity.
Ss. 198(4) and (5) – Regarding proceedings under Sections 198(4) and (5), Section 5 of Limitation Act has no application
Limitation for suits of different nature, appeals and applications have been given in Schedule. First Division of the schedule from Article 1 to 113 prescribes limitation for suit, Second Division of the schedule from Articles 114 to 117 prescribes limitation for appeal and Third Division of the schedule from Article 118 to 137 prescribes limitation for applications. U/s. 2(1) of Limitation Act, 1963 it has been clarified that suit does not include an appeal or an application. Under section 5 of Limitation Act, 1963 delay can be condoned only in the appeals and applications falling under Second Division and Third Division of the schedule. The case for cancellation of patta as given under section 198(4) of the Act cannot be treated as an application as provided under Third Division of the schedule from Article 118 to 137. Section 198(4) provides the provision of the category of the suit. Section 5 of Limitation Act, 1963 has no application and delay cannot be condoned in exercise of powers under section 5 of Limitation Act, 1963.
The Court can condone the default only when the statute confers such a power on the Court and not otherwise. In that view of the matter court has no other option but to hold that section 5 of the Limitation Act, 1963 has no application in the instant case. Thus, section 5 of the Limitation Act, 1963 has no application as the application for cancellation of patta under section 198(4), is the original proceedings of the nature of suit and not an application falling in the categories given from Article 118 to 137.
In the cases where fraud has been committed by the defendant or his agent the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it, or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. In this case, it was alleged by the respondents that Land Management Committee granted patta of the land in dispute to them on 24.8.1989and they were given possession over the land in dispute. Subsequent allotment of the land in dispute to petitioner on 2.2.1990 is vitiated on the ground of fraud/mistake. In such circumstances issue relating to limitation ought to have been framed and decided as preliminary issue after taking evidence of the parties. ( Harish Chandra v. State of U.P.; 2014 (124) RD 5)
S. 229-B – Suit for declaration as sole owner –
Maintainability of
Thus no fee can be charged under the Bye-laws on the
advertisements shown on cable TV network. (Sanjai Gupta v.
State
of U.P. & ors., 2011 (3) ALJ 12 (All HC) U.P. Zamindari
Abolition and Land Reforms Act
S. 299 B – CPC, Order IX, Rule 13- Suit for declaration of right – Decree exparte- summon found to have not been served upon defendants and not sent through past – In absence of service of summons exparte decree held to have rightly set aside
The writ petition has been filed for quashing the order of Board of Revenue U.P. dated 20.02.2014, arising out of suit for declaration of rights under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950
In this case, summons were not sent through registered post as such the presumption under Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of General Clauses Act, 1897 cannot be raised. The Process Server made endorsement on the duplicate summon that Ram Pal had refused to take summons issued by the Court in presence of two witnesses thereafter one copy of summon was pasted on his door. Ram Pal filed his affidavit and denied service of summons upon him. He also filed affidavits of two witnesses Radhey Shyam and Chhedi Lal, mentioned as witnesses on the summons, before the Trial Court, who stated that in their presence, Process Server never tendered the summons to Ram Pal nor they had signed the duplicate summon. Trial Court and First Appellate Court illegally ignored these affidavits on record. Trial Court held that it is unbelievable that Ram Pal had not taken copy of khatauni for such a long time while First Appellate Court has taken into account the notices issued in the revision filed by Rukmani. In order to decide the application for setting aside decree under Order IX Rule 13 C.P.C. the Court is required to decide as to whether summons of the suit were served or there was any other cause due to which the defendant was prevented to appear before the Court on the date fixed in the suit. Trial Court and First Appellate Court have illegally failed to record any findings in this respect and based their judgment on irrelevant considerations. In such circumstances Board of Revenue has not committed any illegality in setting aside the orders of the Courts below.
In this case, summons were not served upon the defendants. The summons were not sent through post as such presumption of service could
not be raised in this case on the basis of endorsement of 'refusal' by Process Server. In the absence of service of summons, ex parte decree has been rightly set aside by Board of Revenue. (Shiv Murat and another v. State of U.P. and others 2014 (5) AWC 5295)
S. 331 – U.P. Reorganization Act, S. 591 – Transfer of
pending proceedings – Whether Board of revenue can pass
order on revision after enforcement of U.P. Reorganization
Act – Held, ―No‖ but it can transfer the proceedings which
pending before it
A reading of the plain language, the provision makes it
clear that every proceeding pending before a Court, Tribunal,
Authority or Officer in any area which fell within the State of
U.P. on 09.11.2000 stood automatically transferred to the
corresponding Court, Tribunal, Authority or Officer of the State
of Uttaranchal (now Uttarakhand). Therefore, the revisions
which were pending before the Board of Revenue, U.P. on
9.11.2000 stood transferred to the State of Uttaranchal and, as
such, the same could not have been decided by the Board of
Revenue, U.P. Unfortunately, the learned Single Judge over
looked the fatal flaw in the order of the Board of Revenue, U.P.
and pronounced upon the legality of the purchases made in the
names of the respondents. (State of Uttaranchal v. M/s. Golden
Forest Co.
(P) Ltd.; AIR 2011 SC 1723)
Ss. 331, 143, 9 – CPC, O-20 R-18 – Suit for partition - Adjudication – Bar to civil courts jurisdiction
The Court clearly held that future probable use of land will not determine its nature but it has to be seen as to what was its nature at the time of execution of instrument.
In the present case admittedly there is no declaration under Section 143 of Act, 1951. The exposition of law as discussed above clinches the issue in question in favour of petittioner and Sri Avadhesh Kumar, learned counsel appearing for respondents despite repeated query neither could
The present case of plaintiff-appellant is based on claim that they are owner and bhumidhar of disputed land. Admittedly the name of defendant-respondent are recorded as bhumidhar on disputed land i.e. agricultural 'land' as defined in UPZA & LR Act. Even the alleged relief of permanent injunction regarding disputed land is also based on the relief of declaration of title of disputed agricultural 'land'. Therefore it is explicitly clear that only the court of Assistant Collector has jurisdiction to grant these reliefs, and Civil Court has no jurisdiction to decide the suit or other proceeding based on cause of action for declaration of ownership rights of such agricultural land. Therefore this finding of trial court as well as first appellate court are erroneous dispute between the parties. that civil court had jurisdiction to hear real
- From above discussion, it is clear and proved that main relief sought by plaintiff-appellants are based on declaration of their alleged right of bhumidhari over disputed agricultural land but it cannot be granted to the appellants, and therefore, claim of plaintiff/respondent is barred by Section 331 of U.P.Z.A. & L.R. Act, so respondent is not entitled for any relief claimed in the original suit. Onkar Singh and another V. Om Prakash (D) through his L.Rs., 2016 (4) AWC 3580
S. 331- Scope of- Issue whether the land in dispute was agricultural or abadi in nature – Determination of- the proper cause for the court is to refer the matter u/S 331-A of the above Act Section 331-A is clear in its terms that when the nature of the land has been pleaded to be agricultural and the same has been denied in the reval contention, being pleaded as an Abadi, the issue must have been referred to as envisaged under section 331-A of UPZA & LR Act and this view has well been propounded even by the Hon‟ble Apex Court in Chandrika Prasad case.
That apart, even if the contention of learned counsel for the respondents is taken into consideration for a moment, then also the
