PARAS NATH SINGH Vs. STATE OF U.P.,

JUDGEMENT

(1.) THE Petitioner, who claims to be in possession of certain land, has been ordered by opposite party No. 3 to be ejected from it on the grounds of the land vesting in the Gram Samaj of the village and of his being trespasser upon it. The Petitioner through this petition asks for certiorari to quash the order of the opposite party.

(2.) THE Tehsildar opposite party No. 3 purports to have passed the order of ejectment in exercise of the power conferred by Rule 115F of the UP Zamindari Abolition and Land Reforms Rules. The gist of Rules 115C, 115 -D and 115 -F is as follows. It is the duty of the Land Management Committee to manage, maintain, preserve and protect all property vested in the Gaon Samaj. All cases of interference with the property are to be reported to the Collector by the Land Management Committee through its Chairman, Secretary or member with a request to have the encroachments removed, The Collector on being informed of an encroachment is required to call upon the trespasser to remove the encroachment or to show cause against it within a certain time. If the trespasser shows cases the Collector has to determine whether his possession is as a tenure holder or as a trespasser. If his possession is found to be as a trespasser, he must, be informed of the finding and served with an order requiring him to hand over possession to the Gaon Samaj within ten days. If he does not comply with the order, orders for his ejectment are required to be passed by the Collector and a warrant of execution is to be issued to the Tahsildar who has to execute it in accordance with certain rules.

(3.) THE Tehsildar is a revenue officer appointed under the Land Revenue Act Section 17. Another Officer to be appointed by the State Government under the Land Revenue Act is an Assistant Collector of the 1st class or of the 2nd class. A Tehsildar as such is not an Assistant Collector either of the 1st or of the 2nd class. Section 224 of the Land Revenue Act empowers the State Government to confer upon any Tehsildar all or any of the powers of the Assistant Collector of the 2nd class, so a Tehsildar can be conferred the powers of an Assistant Collector 2nd class but not with those that of an Assistant Collector of 1st class. Still the State Government has issued a notification conferring upon all Tehsildars powers of Assistant Collector 1st class. This is a thing which is not understood; how the State Government in face of the clear language of Section 224 conferred the power of an Assistant Collector 1st class upon the Tehsildar is beyond comprehension and the standing counsel has thrown no light on the matter. The Collector is one mere revenue officer appointed under the Land Revenue Act and under Section 223 the State Government has power to confer upon any Assistant Collector of 1st class all or any of the powers of the Collector and in exercise of this power the State Government conferred the powers of a Collector upon all Assistant Collectors of the 1st class. If by virtue of these conferment 's of power the Tehsildar claimed the powers of a Collector he was entirely in the wrong. In he first place he could not be invested with the powers of Assistant Collector of First class at all as already explained. Secondly even if he could be invested, he could not there by become an Assistant Collector of the 1st class and could not become the Collector. Under Section 223 the powers of a Collector can be conferred upon an Assistant Collector of the 1st class and not upon any other officer, even though he might have been invested with the powers of an Assistant Collector of the 1st class. Even when a Tehsildar is invested with the powers of an Assistant Collector of the 1st class he remains a Tehsildar and does not become an Assistant Collector of the 1st class; if he does not become an Assistant Collector of the 1st class be cannot become a Collector. Only an Assistant Collector of the 1st class can exercise the powers of the Collector under the notification of the Government and not another officer though he may be exercising his powers. There is a distinction between an Assistant Collector of the 1st class and an officer exercising his powers. The order passed by the Tehsildar is, therefore, without jurisdiction and must be quashed.