SHAMBHOO NATH Vs. CHIEF REVENUE OFFICER

JUDGEMENT

(1.) D. K. Seth, J. A proceeding under Section 120-B of the U. P. Zamindari Aboli tion and Land Reforms Act, being proceeding No. 711 was decided against the petitioner on 28-4-1986 by the Tehsildar/assistant Collector, Meia, District Al lahabad, Revision No. 71 of 1986-87 preferred by the petitioner was decided against him by an order dated 20th January, 1987 by the Chief Revenue Officer/additional Collector, Allahabad. Against these two orders the petitioner being aggrieved, has moved the present writ petition.

(2.) SRI S. K. Shukla, alongwiih SRI R. K. Pandey, learned counsel for the petitioner contends that the decision with regard to the finding of fact to the property has not been correctly. decided. He claims that the property belongs to the petitioner even before the Consolidation of Holdings had taken place and the Gaon Sabha has no right or title in the said property. His basic claim is of title. He further submits that no- notice was given to him. These technical points mil not help him such because even if the notice was given, the question will remain for determination of title and the question is to be decided in respect of the suit property,

(3.) 1 have already taken similar view in the case of Babulal v. Collector, Jhansi and Others in Writ Petition No. 28254 of 1993 disposed of on 28th February, 1996. My view finds support from the view taken in the case of Shankar Saran v. State of U. P. and Others. , 1987 RD 157; 1987 A. L. J. 877 which has dissented from the view taken in the case of Sewak Sankar v. Additional Collector, Agra, 1985 A. LJ. 746. In the case of Abduf Ghafoor v. Gaon Sabha, 1983 RD 32 similar view has been taken. In the case of Abdul Ghafoor (supra) the Board of Revenue has held that if a revision is filed before the Collector the regular suit will not be filed against the order of Assistant Collector in view of the provisions of sub-section (4-E), but the remedy of regular suit will be available against the order passed by the Collector in revision. Contrary view was taken in the case of Sewak Shankar (supra) wherein sub- section (4-E) was interpreted to mean that it had created two separate classes of persons. One consisted of persons who want to prefer revision before the Collector and the other who wants to prefer suit against the order of Assistant Collector. The former class cannot avail the remedy of suit, whereas the later class, if they want to avail the remedy of suit they shall net file revision before the Collector. Such art observation was made on the reasoning that there was nexus with the object sought to be achieved, namely, dispossession and obtaining the land of Gaon Sabha from unauthorised occupation at a very early date and in case revision is permitted, it may take years to be decided and if thereafter remedy of suit is made available and that suit might be fought upto Supreme Court and would have made a very lengthy procedure to obtain possession. Such an analogy is very difficult to accept. With deep respect to the learned Judge, I am unable to persuade myself to agree with the said view because of the reasons that the provisions made in subi-sections (4-A), (4-C), (4-D) and (4-E), are unambiguous, specific and clear and a combined reading makes out a harm onious situation, as indicated in the reasons given by me above. The length of proceeding cannot be a ground to deprive the remedy by way of suit when title can be decided only by means of suit, cannot be confined to a particular class when there cannot a reasonable classification of the two classes as has been sought to be made cut in the said judgment. The classification sought to be made can never be said to be rational. When remedy can be made available to one group it can not be denied to another. The prescription of remedy by way of suit is commensurate with the principle that title can only be decided in Civil suit and not otherwise. Rather the interpretation of re-conciling the provision, as has been given in the case of Abdul Ghafoor (supra) appears to be more reasonable. In the case of Shankar Saran. (supra) the learned Judge has expressed his disagreement in the following expression: "i am unable to agree with brother B. L. Yadav, J. , that when an aggrieved party avails the remedy of preferring revision before the Collector, he would be deprived of the remedy of the suit. It would be better for the Legislature to make necessary amendments. . . . . . . to clarify its intention and enacting sub- section (4-E ). . . . . . . . " In the said case it was held that "the bare reading of Section 122-B (4-D) and (4-E)of the Act indicates that there is some. contradiction in the two provisions. The Collector is the revisional authority and against his order a suit has been contemplated under sub-section (4-D ). Therefore, it is difficult to say that the order of the Assistant Collector which is merged in the order of the revisional court, cannot be challenged in a regular title suit. The suggestion by the learned Member Board of Revenue to the effect that no suit against the order of the Assistant Collector shall lie during the pendency of the revision petition before the revisional court cannot be readily accepted because of the workings of the provisions of sub-section (4-E ). Had the Legislature intended it would nave expressed itself as below: "no such suit as is referred to in sub-sections (4-D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under sub-section (4-A) and is pending. " But a combined reading of Sub-sections (4-D) and (4-E) also does not show that correct reasoning was given in the said judgment though ultimate ratio decided appears to be correct. Inasmuch as the Legislature had intended to prevent parallel proceeding by way of suit against the order of Assistant Collector and the revision against the order of Assistant Collector and the revision against the same simultaneously. The option was with the aggrieved party either to prefer a revision or to file a suit against the order of Assistant Collector but not both. But the revisional order passed by the Collector has not been subjected to any restriction under Sub-section (4-E ). On the other hand as observed earlier the order passed in revision by the Collector is final under sub-sections (4-C) and (4-D) which prescribes remedy by way of suit to a person aggrieved by an order passed by the Collector. Since there is no contradiction as I have found in the respective provisions it is also not necessary to call for any amendment. 7. Therefore, the petitioner is entitled to file a suit against the order impugned in the present writ petition. I am, therefore, unable to pursuade myself to agree with the contention of Sri Shukla. On the other hand I find substance in the submission made by Sri Radhey Shyam, assisted by Sri Nurul Huda, learned standing counsel. In the result this writ petition fails and is dismissed. The petitioner shall be at liberty, if he is so advised, to file suit in the court of competent jurisdiction in order to estab lish his title. If such a suit is filed, the period spent in pursuing the present writ petition shall be excluded for the purposes of calculating the period of limitation, if there be any, in giving benefit of Section 14 of the Limitation Act. 8. There will be, however, no order as to costs. Petition dismissed. .