- (1.) POONAM Srivastava, J. List is revised. Counsel for the petitioner is present. No counter-affidavit has been filed though Vakalatnama has been filed on behalf of the contesting, respondents. The matter is being heard finally.
(2.) THE prayer in the writ petition is for issuing a writ of certiorari to quash the judgment of Board of Revenue dated 21-8-1984 and also order dated 6-8-1968 passed by the Sub-Divisional Officer, Gyanpur, Varanasi in case No. 52 of 1968, under Section 198 (2) of U. P. Z. A. and L. R. Act. THE facts giving rise to the dispute is that a Patta was executed in favour of the petitioner by the Chairman, Land Management Committee, Shivrampur in respect of 10 biswa land of plot No. 350/1 on 27-12-1963. THE name of the petitioner was mutated during the consolidation proceedings on the basis of Patta as Sirdar. An objection was filed by the contesting respondent Nos. 4 to 7 on 26-10-1967. THE petitioner countered the objection on the ground of limitation. Besides, it was pleaded that the lease was executed in accordance with law and could not be cancelled after expiry of six months period provided under the law. THE Sub Divisional Officer cancelled the lease executed in favour of the petitioner and possession of land was restored to Land Management Committee vide order dated 6-8-1968, which is impugned, it was directed that the Tehsildar Gyanpur shall take necessary action in pursuance to the said order. THE S. D. O. exercised suo moto powers to cancel the lease. THE petitioner filed an appeal before the Commissioner, Varanasi Division, Varanasi which was allowed on 22-4-1969. A revision was preferred before the Board of Revenue challenging the order of the Additional Commissioner which was allowed on 4-5-1972. A writ petition No. 5285 of 1972, Bharat Singh v. Board of Revenue and Ors. , was preferred in this Court which was allowed on 17-9- 1979 and the case was remanded for a fresh decision on the ground that while allowing the appeal, the Additional Commissioner placed reliance on a Single Judge decision reported in 1970 A. W. R. 516, which stood overruled by a Division Bench decision, State of U. P. v. Pyare Lal, 1972 A. W. R. 548. THE order of remand passed by this Court in writ petition dated 17-9- 1979 is annexed as Annexure-3. Subsequently, the Board of Revenue set aside the order of the Additional Commissioner passed in appeal dated 22-4-1969 and restored the order of the Sub-Divisional Officer dated 6-8-1968 holding that the cancellation of lease though claimed after expiry of a period of three years, the Sub-Divisional Officer was fully entitled to exercise his powers and cancel the lease suo moto, therefore, the question of limitation raised by the petitioner was not accepted by the Board of Revenue. The argument advanced on behalf of the petitioner is that the order of the Sub-Divisional Officer dated 6-8-1968 as well as the judgment of Board of Revenue dated 21-8-1984 are manifestly erroneous for the reason that the allotment of the land can be made in favour of any person under Section 198 (d) of the Act as stood in the year 1963 and since no application was made by any aggrieved person challenging the order of allotment passed by the Land Management Committee within the prescribed period of limitation, the allotment could not be cancelled by means of the impugned orders. It is also submitted that the contesting respondents cannot categorize themselves within the definition of 'aggrieved person' within the meaning of Section 198 of the Act, rather they denied the title of Gaon Sabha and set up a title of their own. The order of cancellation passed on the basis of the said application is apparently illegal and without jurisdiction. The Sub-Divisional Officer did not initiate the proceeding suo moto nor any ground has been disclosed for taking such an action and, therefore, the order passed by him cannot be allowed to stand. It is further argued that according to the own finding, the Sub-Divisional Officer, the burden was wrongly shifted on the petitioner whereas it was the duty of the contesting respondents to prove the so called illegality or irregularity, if any, in the allotment proceedings and, therefore, the findings are perverse and against the material on record. The Board of Revenue could not reverse the findings recorded by the Additional Commissioner under Section 333 of the Act. In exercise of jurisdiction under Section 333, the Board of Revenue could not enter into question of finding of fact. I have heard the learned Counsel for the petitioner at length, perused the impugned judgments and gone through the entire writ petition. On perusal of the judgment of the learned Sub-Divisional Officer, it is apparent that four issues were framed. Issue Nos. 1 and 2 were regarding the validity of the lease deed and also its procedure adopted while execution of the disputed Patta. Issue No. 3 relates to the period of limitation and issue No. 4 whether the Sub-Divisional Officer had the jurisdiction to try the case. Oral evidence of prosecution witnesses No. 1 to 4 was considered at length as well as the witnesses produced on behalf of Gaon Sabha, DW-2 and DW-3 were examined on behalf of the contesting respondents. It is correct to say that the period of limitation at the relevant time was six months but the Sub Divisional Officer could very well exercise suo moto powers while cancelling the lease at any point of time. Assuming the proceeding was initiated at the instance of the contesting respondents, it cannot be denied that the Sub-Divisional Officer was made aware about the illegal allotment in an absolutely irregular manner without completing the formalities of proclamation etc. required under the law. The Sub-Divisional Officer was well within his right to cancel the Patta when it came to his knowledge that the Land Management Committee had made the allotment against the specific provisions of law. The order dated 6-8-1968 clearly mentions that the Sub Divisional Officer has exercised his right of cancelling the Patta suo moto as there was no order on record to show that any token of permission was obtained by the Land Management Committee before the execution of the lease. Besides, the proclamation as required under the Rules was not made. Since the petitioner claimed that the allotment was appropriate and in accordance with law, it was the duty of the petitioner (allotee) to have established by means of documentary evidence that the prescribed procedure was followed before making the allotment and handing over the possession. The order of S. D. O. is quite vocal that the provisions of Rule 173 of U. P. Z. A. and L. R. Act have been violated. There was no prior information to the members of the Gaon Sabha and there is no documentary evidence to establish that the minutes of meeting and receipt of Nazrana was ever paid by lease holder. The Courts below have recorded a finding that the resolution for granting the lease was not genuine and no meeting was ever held for grant of Patta. All these findings by the S. D. O. was set aside in appeal, without giving any reasons to do so. The petitioner contested the proceedings before the S. D. O. and adduced evidence, therefore, it cannot be said that the lease was cancelled without any notice. The requirement of notice is only for the purpose that once lease is granted in favour of a person, it may not be cancelled behind his back. Learned Counsel for the petitioner has placed reliance on a decision of this Court, Ram Charan Lal v. Board of Revenue, 1984 R. D. Page 169. I have perused the said judgment. This Court observed that - "under suo motu powers the trial Court could proceed against the petitioners and in that circumstance it was expected of the trial Court to apprise the petitioners to proceed against them under its suo motu powers. The record of the case does not indicate that the trial Court gave any notice to the petitioners to proceed under its suo motu powers against the petitioner. In this connection, the learned Counsel for the petitioners invited my attention to the ruling reported in B. N. Roy v. State of Bihar (2 ). The learned Counsel for the contesting respondent has submitted in reply that in view of the ruling reported in Rama Kant Singh v. Dy. Director of Consolidation, U. P. and Ors. , (3), the impugned orders cannot be interfered with on the ground that no notice was given to the petitioners for the exercise of suo motu power against the petitioners. The relevant observation made in the ruling emphasized by the learned Counsel for the respondent is to the following effect in paragraph 16 of the reported filling: ". . . . . . In such a case even if he does no pointedly bring it to the notice of the parties that he proposes to exercise his suo motu power nor does he in his order speak about it, the order will not be vitiated for if is settled law that if power to act is there, the action will not be invalid simply because the relevant provision of law conferring power is not quoted. "
(3.) IN the instant case, the facts are altogether different. The petitioner was aware regarding the proceeding of cancellation before the S. D. O. He also contested the matter and, therefore, mere formality of issuing notice cannot give a cause of grievance to the petitioner. On the contrary, perusal of the judgment of the appellate Court by the Additional Commissioner allowing the appeal, on the face of it appears to be passed cursorily. The revisional Court was well within its right to restore the order of the S. D. O. which is a well discussed and reasoned order. It is wrong to say that he has entered in the realm of reappraisal of evidence and has tried to interfere with the findings of fact. The submission by the learned Counsel to this effect is not acceptable. Learned Counsel for the petitioner has cited two decisions on this question namely Kashi Nath v. Board of Revenue and Ors. , 2001 (92) R. D. 562 paragraph 7, where the scope of Section 333 of the Act has been discussed. The other decision is Karan Singh and Ors. v. Board of Revenue and Ors. , 1985 A. L. J. 149.;