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Sub-divisional Officer, Mathura and anr. Vs. Shivvali and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 657 of 1972
Judge
Reported inAIR1973All564
ActsUttar Pradesh Zamindari Abolition and Land Reforms Rules - Rule 115N
AppellantSub-divisional Officer, Mathura and anr.
RespondentShivvali and ors.
Appellant AdvocateStanding Counsel
Respondent AdvocateY.N. Sharma and ;J.N. Tewari, Advs.
DispositionAppeal allowed
Excerpt:
civil - allotment of land - rule 115 -n (iv) of u.p. zamindari abolition and land reforms rules - land allotted through resolution by land management committee - can be cancelled by authority by suo motu exercise of power by the authority. - - in our opinion, these tests are not satisfied in the present case......allotment which is based on a public auction as provided by rule 115-1. it does not authorise the assistant collector to cancel the allotment orders based upon a resolution passed by the land management committee. on this view the writ petition was allowed and the proceedings under rule 115-n were quashed. aggrieved, the sub-divisional officer and the state have come up in appeal.3. rule 115-l authorises the land management committee to allot abadi sites to various categories of persons mentioned in that rule. the allotment can either be by a public auction, or in other mentioned categories of cases, by a mere resolution. so, abadi sites vested in the gaon samai can be allotted by two different modes. rule 115-n empowers the assistant collector in charge of the sub-division to cancel.....
Judgment:

Satish Chandra, J.

1. On June 7, 1971 the Land Management Committee passed a resolution allotting plot No. 99 (area ,38 acres) to Sher Singh, predecessor of respondents Nos. 1 to 7, Dharam Singh respondent No. 8 made a complaint to the Chief Minister that the allotment has not been in accordance with the rules. The Chief Minister directed the Sub-Divisional Officer to look into the matter. The Sub-Divisional Officer issued a notice initiating proceedings under Rule 115-N of the Zamindari Abolition and Land Reforms Rules. Dharm Singh contested the proceedings. He inter alia pleaded that the Sub-Divisional Officer had no jurisdiction to examine the validity of the allotment in his favour. Nonetheless, the Sub-Divisional Officer continued with the proceedings. Thereupon Sher Singh instituted a writ petition in this Court.

2. A learned single Judge held that Rule 115-N applies to cancellation of an order of allotment which is based on a public auction as provided by Rule 115-1. It does not authorise the Assistant Collector to cancel the allotment orders based upon a resolution passed by the Land Management Committee. On this view the writ petition was allowed and the proceedings under Rule 115-N were quashed. Aggrieved, the Sub-Divisional Officer and the State have come up in appeal.

3. Rule 115-L authorises the Land Management Committee to allot abadi sites to various categories of persons mentioned in that rule. The allotment can either be by a public auction, or in other mentioned categories of cases, by a mere resolution. So, abadi sites vested in the Gaon Samai can be allotted by two different modes. Rule 115-N empowers the Assistant Collector in charge of the Sub-Division to cancel the allotment order. It provides :--

'115-N (1) The Assistant Collector In charge of the Sub-Division shall, on the application of any person interested, filed within three months of the date of auction and may at any time on his own motion cancel for reasons to be recorded in writing, the allotment order on one or more of the following grounds:

(i) The bid accepted was inadequate;

(ii) The auction was collusive or unfair;

(iii) The auction proceedings were not followed in accordance with the rules;

(iv) Any other ground.

(2) No order under Sub-rule (1) shall be passed unless the allottee has been given an opportunity to show cause against the proposed action.

(3) The decision of the Assistant Collector in charge of the Sub-Division shall be final.'

Under this rule any person Interested can make an application for cancellation of the allotment order. The Assistant Collector can suo motu take similar action. In both cases the power is to cancel the allotment order. As already seen, the order of allotment can be passed either as a result of auction, or a resolution. Ex. facie the power of cancellation has not. in the opening part of the rule, been confined to an allotment order based on an auction only.

4. It was urged that since the rule authorises a person interested to make an application within three months of the date of auction, it is implicit that a person interested cannot apply for cancellation of an order of allotment based upon a resolution. We are unable to agree. The rule as it stands provides for a period of limitation for an application to cancel the allotment order based upon 'an auction. If the commencement of the period of limitation is the date of auction, then on the plain language of the rule there is no prescribed period of limitation for an application to cancel the allotment order based on a resolution. The period of limitation of three months can apply to the latter class of cases if the term 'date of auction' is in that category of cases interpreted to refer to the date of the resolution, or the date of the order of allotment based on a resolution. In any way, it cannot be urged that the rule does not authorise a person interested to apply for the cancellation of an order of allotment in oases where it is based on a resolution.

5. Even if, for the sake of argument, the submission be accepted that a person interested can make an application only where an auction has taken place, yet this construction of the rule will not impinge upon the suo motu power conferred upon the Assistant Collector. He can without any time limit take action for cancellation of the order of the allotment. There is no restriction in such a case upon the power of the Assistant Collector to the effect that he can take action only where the allotment order is based upon auction. Unrestricted power has been conferred to cancel an allotment order: the only restriction being the grounds upon which the order can be cancelled.

6. Four grounds have been mentioned, of which the first three specifically refer to the auction. The 4th is a general ground couched in the widest possible terms. In the context, the fourth, viz., 'any other ground' is extensive and not a limitative ground. The ground contemplated by Clause (iv) is to be a ground other than the grounds mentioned in Clauses 1. 2 and 3. The question is whether the fourth Clause has to be read ejusdem generis with the preceding three grounds.

7. Section 6(a) of the Bombay Land Requisition Act, 1948 contemplated vacancy when a tenant ceased to be in occupation upon termination of his tenancy, eviction, or assignment, or transfer, or transfer in any other manner of his interest in the premises, or otherwise. Before the Supreme Court it was argued that the word 'otherwise' should be read ejusdem generis with the preceding words of the section. The Supreme Court repelled the submission. It observed in the case of Smt. Lilavati Bai v. State of Bombay, AIR 1957 SC 521 that the Legislature has been cautious and thorough going enough to bar all avenues of escape by using the words 'or otherwise' in explanation (a). Section 6 of the Bombay Land Requisition Act, 1948. Those words are not words of limitation, but of extension so as to cover all possible ways in which a vacancy may occur. Generally, a tenant's occupation of his premises ceases when his tenancy is terminated by acts of parties, or by operation of law. or by eviction by the landlord, or by assignment or transfer of the tenant's interest. But the Legislature when it used the words 'or otherwise' apparently intended to cover other cases which may not come within the meaning of the preceding clauses: for example, a case where the tenant's occupation has ceased as a result of trespass by a third party. Hence far from using those words ejusdem generis with the preceding Clauses of the explanation, the Legislature used those words in an all inclusive sense. Their lordships held that the rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature, on the established rule of construction that the Legislature is presumed to use the general words in a restricted sense; that is to say. as belonging to the same genus as the particular and specific words. A restricted meaning has to be siven to the words of general import only where the context of the whole scheme of legislation requires it. But, where the context and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the Courts to give those words their plain and ordinary meaning.

8. In Raia Bhanupratao Singh v. Assistant Custodian, (AIR 1966 SC 245) it was held that the rule of ejusdem generis applies where a general word follows particular and specific words of the same nature as itself. It has no application where there is no genus or category indicated by the Legislature.

9. Here the three clauses give the grounds upon which an auction can be challenged, but the fourth is entirely a different ground. It covers grounds other than those mentioned in the preceding three clauses. This is a case where the general words follow particular and specific words of a different nature. This would exclude the application of the doctrine of ejusdem generis. Further, the context of Rule 115-N shows that the Legislature did not intend to use Clause (iv) in a restricted sense. It appears to have used it in an extensive sense. It has been seen that an allotment order can be made either through an auction or by a resolution. When power has been conferred upon the Assistant Collector to cancel the order of allotment there is no indication of any intention to confine this power to allotment orders based on an auction alone. There seems to be no indication that the rule making authority intended to leave an uncontrolled and arbitrary power upon the Land Management Committee to make an allotment order by a resolution simpliciter without any control by the Assistant Collector.

10. For the respondents reliance was placed upon Amar Chandra Chakraborty v. Collector of Excise 1972 (2) SCC 442 = (AIR 1972 SC 1863). It was held in this case that the doctrine of ejusdem generis applies when (i) the statute contains an enumeration of specific words; (ii) subjects of enumeration constitute a class or category; (iii) that class or category is not exhausted by the enumeration; (iv) the general term follows the enumeration; and (v) there is no indication of a different legislative intent. In our opinion, these tests are not satisfied in the present case. As seen above, the legislative intent is not restrictive but extensive. Clause (iv) gives a ground which is not confined in nature, to the grounds mentioned in the preceding clauses. It is true that grounds Nos. 1, 2 and 3 are applicable to a case of auction only, but then the nature of the grounds is different than the ground mentioned in Clause (iv). The very words 'any other ground' takes Clause (iv) in a category entirely different and distinct from the other three categories. It is clear that the enumeration of the ground in Clause (iv) is not of the same category as the grounds mentioned in Clauses 1, 2 and 3. The rule of eiusdem generis cannot be pressed in service to confine clause (iv) to a ground upon which only an auction can be cancelled.

11. In our opinion, Rule 115-N confers power upon the Assistant Collector to take action in respect of an allotment order passed on the basis of a resolution also, and the proceedings initiated by the Sub-Divisional Officer were not without jurisdiction.

12. Learned counsel for the respondent urged that the proceedings are barred by limitation and by Rule 115-E. These pleas ought to be taken before the Sub-Divisional Officer. For this reason we have not gone into it.

13- In the result, the appeal succeeds and is allowed with costs. The judgment of the learned Single Judge is set aside and the writ petition is dismissed with costs.


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