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Raj Kumar Soni Versus State of U.P.

Civil Appeal No. 1763 of 2007 - Dated:- 3-4-2007 - P.K. Balasubramanyan And B. Sudershan Reddy JJ. JUDGMENT: B. SUDERSHAN REDDY,J. Leave granted. On 31-3-1993 the Sub-Divisional Officer, Kotdwar accorded approval to allot the land in question admeasuring Ac.0-053 hectare in Khasra No.1003 situated at village Jhonk, District Pauri Garhwal (Uttaranchal) to one Mahanth Govind Das. On the same day, the Sub-Divisional Officer executed a lease deed in favour of the allottee for a period of thirty year .....

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ted, the land admittedly belongs to Government. The appellants, by their application dated 15-5-1995 requested the Collector to grant mutation in their favour, in which it is stated that they have purchased the debris and not the land from Mahanth Govind Das. The Deputy Collector, having considered the application so submitted by the appellants found "the holder of grant Mahant Govind Das sold the debris of residential building and the shops along with the possession through the registered .....

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on payment of land revenue at ₹ 157.50 paise. The District Magistrate, Kotdwar Garhwal vide show- cause notice issued on 5-4-1999 required the appellants herein to show-cause as to why the grant of the land made in their favour by the Sub-Divisional Officer, Kotdwar should not be rescinded. In the show-cause notice, it is alleged that the Sub-Divisional Officer has unauthorisedly granted/allotted the land in favour of the appellants. It is specifically alleged that the Sub-Divisional Offi .....

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ny point of time. It was contended that the proceedings initiated against them are not maintainable in law. It was also contended that they have acquired the status of tenure holders. The District Magistrate, having considered the explanation submitted by the appellants clearly found that the Sub-Divisional Officer had no authority to allot the land to Mahanth Govind Das in the year 1993. The Collector accordingly held that the order of allotment and lease executed by Sub-Divisional Officer did .....

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been accordingly quashed and appropriate directions have been issued to make entries in the revenue records duly incorporating the name of the Government as the owner of the land. The appellants challenged the order passed by the District Magistrate/Collector dated 10-5-1999 in Civil Misc. Writ Petition No. 20708 of 1999. It was sought to be contended as if the appellants have purchased the land itself from Mahanth Govind Das but appears to have given up the same during the course of hearing of .....

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the land in favour of the appellants based on the sale deed executed by Mahanth Govind Das. In terms of G.O.150/1/185(24)-6010, dated 09-10-1987, the Sub- Divisional Officer/Deputy Collector had no authority to accord approval of grant of land inasmuch as the authority stood vested only with the Collector of the District to accord approval up to certain limit for residential purpose. The High Court also found that the appellants' application for transfer was not made under the provisions of .....

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power under Section 122(6) of the U.P. Zamindari Abolition and Land Revenue Act to cancel any irregular allotment made by the Assistant Collector in-charge of such division. The High Court held the order of the Sub- Divisional Officer in allotting the land to Mahanth Govind Das and thereafter directing the transfer of the land in the name of the appellants is void and without jurisdiction. These appeals are directed against the decision of the High Court, dismissing the appellants' writ peti .....

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o mention about the withdrawal of the power conferred upon the Sub-Divisional Officer and in such view of the matter the order of the Sub- Divisional Officer could not have been set aside on the ground not mentioned in the show cause notice. The order according to the learned counsel is in violation of the principles of natural justice. The learned counsel appearing on behalf of the State submitted that the proceedings right from the allotment of land up to the execution of lease deed are void a .....

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t raise any issue whatsoever about this aspect of the matter in their writ petition. In their reply to the show-cause notice, they did not plead and explain as to under what authority the Sub-Divisional Officer allotted the land in favour of Mahanth Govind Das and thereafter transferred the same in favour of the appellants. It is only after the disposal of the writ petition and during the pendency of this appeal, the appellants addressed a letter to the District Collector requiring him to furnis .....

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sional Officer could have allotted the land initially to Mahanth Govind Das and thereafter transferred the same to the appellants. The High Court, after an elaborate consideration of the matter, in clear and categorical terms, found that the Sub- Divisional Officer had no jurisdiction vested in him to grant/allot the Government land and the power vests only with the District Collector. The appellants did not plead and establish to the satisfaction of the Court that the Sub- Divisional Officer is .....

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o be pleaded enabling the Court to scrutinize the nature and content of the right alleged to have been violated by the authority. The appellants in this case failed to establish that they have lawfully secured allotment of land. It is the duty casts upon the appellants to plead and establish that the order of allotment/grant by the Sub-Divisional Officer in favour of their predecessor-in-title created any legal right and also further establish the transfer of land in their favour has been validl .....

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son. The Parganadhikari (Sub- Divisional Officer) has no authority whatsoever even under the said Rules to make any grant in favour of any individual or individuals. Rule 5, upon which reliance has been placed reads as under: "5. Land will be allotted on lease under Government Grants Act on the format prescribed by Revenue Board. Parganadhikari is hereby authorized to sign this lease deed on behalf of His Excellency The Governor. No registration is required for such deeds." A plain rea .....

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e Sub-Divisional Officer cancelled the grant of lease and imposed penalty of ₹ 2000/- upon Mahanth Govind Das and simultaneously effected transfer of the land in favour of the appellants. Assuming that the Sub- Divisional Officer had the authority and jurisdiction to grant lease of the land for non-agricultural purposes, at the most he could have considered the application of the appellants on merits in order to decide as to whether they were entitled to grant of any Government land, but u .....

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e Government Grant Act, the authority to grant land to certain extent for residential purposes is vested in the District Magistrate. It is in the final order of the District Magistrate a mention is made about the proceedings under which the powers of the Sub- Divisional Magistrate had been withdrawn as early as on 9.7.1992 much prior to the Sub-Divisional Officer according grant on 20.5.1993. The appellants may be technically right in contending that the order of the District Collector is based .....

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lish that the Sub-Divisional Officer had the authority to grant the Government land on lease for residential purposes. The High Court while exercising the jurisdiction under Article 226 of the Constitution of India had come to the conclusion that the order of the Sub-Divisional Officer upon which the whole claim of the appellants rests was invalid and improper. The High Court itself could have set aside such invalid and improper order. Therefore, in our considered opinion nothing turns on this a .....

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