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1963 DIGILAW 329 (ALL)

Tara Chand v. Gram Samaj Abdulla Nagar

1963-12-09

SATISH CHANDRA

body1963
JUDGMENT Satish Chandra, J. - This is a defendants appeal and arises out of a suit for possession. The Gram Samaj, Abdulla Nagar, district Muzaffarnagar through the chairman of its land Management Committee came to court on the allegations that the land in suit was a portion of abadi plot No. 149 of the village and was lying as waste land. The plaintiff is its owner. The defendants have illegally taken its possession and have endorsed it by constructing walls around it. It prayed for possession and demolition of the walls. 2. The defendants pleaded that they were in possession of the land in suit for over 20 years and had been keeping "kuri", bitoras etc. and had been tethering their cattle on the land in suit and that they were entitled to continue to use the land as such. 3. The trial court held that though the land had vested in the plaintiff but as the defendants had been in possession of the land as alleged by them, paragraph 59 of the U.P. Gaon Samaj Manual dis entitled the plaintiff from obtaining any relief. 4. On appeal, the learned Judge has held that paragraph 59 aforesaid is only directory and does not debar the plaintiff from recovering possession. The suit was hence decreed. The defendants have come to this Court in Second appeal. 5. Under Section 6 of the U.P. Zamindari Abolition and land Reforms Act, 1950 with effect from the date of vesting (1-7-52) all rights, title and interest of all the intermediaries in every estate including land cultivable or barren, abadi sites etc. ceased and vested in the State of Uttar Pradesh, free from all encumbrances. 6. Section 113 of the said Act constitutes a body corporate called a Gaon Samaj for each village Section 117 of the Act provides that the State Government may declare that all land whether cultivable or otherwise, (except land for the time being comprised in any holding or grove), and abadi sites which had vested in the State, shall vest in the Gaon Samaj. It is common ground between the parties to this appeal that the land in suit has vested in the respondent Gaon Samaj. Section 122 of the Act lays down that the State Government shall establish a land Management Committee for each Gaon Samaj. It is common ground between the parties to this appeal that the land in suit has vested in the respondent Gaon Samaj. Section 122 of the Act lays down that the State Government shall establish a land Management Committee for each Gaon Samaj. Section 122-A of the Act charges the land Management Committee, for and on behalf of the Gaon Samaj, with the general superintendence, management, preservation and control of all the land, abadi sites etc. vested in the Gaon Samaj. It further provides that the functions and duties of the land Management Committee shall include inter alia the settling and management of land, the conduct and prosecution of suits and proceedings by or against the Gaon Samaj. Section 126 of the Act runs as follows: "126(1)-The State Government may issue such orders and directions to the land Management Committee as may appear to be necessary for purposes of this Act. (2) It shall be the duty of the land Management Committee and its office bearers to forthwith carry out such orders and comply with such directions." Section 128 of the Act empowers the State Government to make rules. Its sub-Section (2) Clause (f) says that such rule may provide for the matters on which and the manner in which directions may be issued by the State Government under Section 126 to the Land Management Committee. Of the rules framed, Rules 115-A and 115 are relevant. Under Rule 115-A the State Government may issue directions to the land Management Committee in respect of, inter alia, management and disposal of uncultivated area except land for the time being which is comprised in any holding or grove abadi sites whether in the abadi or in the wasteland. The explanation to Rule 115-B provides that the directions contained in the Gaon Samaj Manual shall be deemed to be the directions issued in accordance with Rule 115-A. 7. The position, therefore, is that the directions contained in the Gaon Samaj Manual will be deemed to be issued in accordance with Rule 115-A, and shall become orders and directions issued under Section 126 of the Act. In virtue of the provisions of Section 126 Clause (2) Of the Act, it shall be the duty of the land Management Committee and its office-bearers to forthwith carry out such orders and comply with such directions. In virtue of the provisions of Section 126 Clause (2) Of the Act, it shall be the duty of the land Management Committee and its office-bearers to forthwith carry out such orders and comply with such directions. Para 59 of the U.P. Gaon Samaj Manual runs as follows- "The existing rights of people living in the abadi shall not be interfered with, in particular their rights to land in which they tie their cattle dump refuse or affix a kolhu. If for any reason, it becomes necessary to change the location, other land should be allotted for the purpose." 8. It appears that the land Management Committee of the plaintiff Gaon Samaj reported to the Sub-Divisional Magistrate that the defendants had taken wrongful possession over the land in dispute and requested action. The Naib Tahsildar made a spot enquiry and reported that the defendants had their manure pits and tied their cattle on the land for a very long time. On this report, the Sub-Divisional Magistrate refused to take any proceedings for the ejectment of the defendants under Rule 115-C onwards of the Rules, framed under the Act. Both the courts below have found that the defendants have been in possession for about 25 years, and have been using the land in suit for the purposes mentioned by them. It is not the case of the plaintiff that it has become necessary to change the location or that, for that purpose other land was allotted to the defendants for being used by them in place of the land in suit. The plaintiff claims that it is the complete owner of the land in suit and that the defendants have no right to its possession. It is urged on its behalf that para 59 of the Gaon Samaj Manual is not an enforceable rule of law and in any event is merely directory in nature. 9. Para 59 aforesaid is in effect an order made by the State Government in exercise of the powers vested in it by Section 126 of the Act. It has the same force and effect as if it has been contained in the Act itself. It is a rule of law and is enforceable in a court of law. In view of Section 126 sub-clause (2) of the Act, it is the duty of the land Management Committee to comply with this direction. It has the same force and effect as if it has been contained in the Act itself. It is a rule of law and is enforceable in a court of law. In view of Section 126 sub-clause (2) of the Act, it is the duty of the land Management Committee to comply with this direction. The Land Management Committee has a breach of its duty in not complying with it. It wants possession in defiance of its statutory duty. In this situation, the defendants can legitimately urge that the attempt to recover possession is ultra vires the powers of the plaintiff Gaon Samaj. Civil Courts have the undoubted jurisdiction to inquire into and restrain ultra vires actions of a statutory body. See District Board, Farrukhabad v. Prag Dutt, A.I.R 1948 Alld. 382 Trustees for the Improvement of Calcutta v. Chandra Kant Ghosh, A.I.R. 1920 P.C. 51 Secretary of State v. Mask and Co., A.I.R. 1940 P.C. 105. If a statutory body does not comply with the provisions of para 59 of the Gaon Samaj Manual and misuses its powers, the Civil Courts have jurisdiction to interfere. 10. The position, therefore, is that the plaintiff has come to Court and wants possession. It has not complied with the provisions of para. 11. The lower appellate court has held that paragraph 59 of the Gaon Samaj Manual is directory, and as such the plaintiff if otherwise entitled, will not be debarred from relief merely because it has not complied with it. 12. The rule whether a statute is mandatory or directory is a rule of construction. The determining factor is the true intention of the legislature. These rules of construction are only meant for ascertaining that intention. What the intention is depends on the context. Here the legislature specifically provides for the issue of orders and directions by the State Government. It expressly lays down that it shall be the duty of the Land Management Committee to comply with them. The intention is clear. The legislature wants that the directions be complied with. The enactment is absolute. The provisions of Section 126(2) of the Act do not confer any discretion on the Land Management Committee in the matter of compliance. The requirement of the legislature that the orders and directions be complied with is mandatory. 13. The intention is clear. The legislature wants that the directions be complied with. The enactment is absolute. The provisions of Section 126(2) of the Act do not confer any discretion on the Land Management Committee in the matter of compliance. The requirement of the legislature that the orders and directions be complied with is mandatory. 13. It is urged that the provisions of para 59 of the Gaon Samaj Manual themselves are not mandatory. In Banwarilal v. State of Bihar, A.I.R. 1961 S.C. 850 it was observed that it has been recognised again and again by the courts that no general rule can be laid down for deciding whether any particular provision in a statute is mandatory or directory. In each case, the Court has to decide the legislative intent. Their Lordships laid down the following tests to determine this question. "Did the legislature intend in making the statutory provisions that non observances of this would entail invalidity or did it not? To decide this we have to consider not only the actual words used but the scheme of the statute, the intended, benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention of the same." In Commissioner of Police v. Gordhandas, AIR 1952 SC 16 (21) the Supreme Court approved of the following observations of the House of Lords in Julius v. Lord Bishop, (1880) 5 A.C. 214:- "There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so." 14. The power conferred on the Land Management Committee to manage and control lands vested in the Gaon Samaj has been coupled with a duty mentioned in paragraph 59 of the Gaon Samaj Manual. The provisions of para 59 are intended for the benefit of the public, are meant to protect the existing rights of the people living in the abadi and are designed to prevent material danger to the public by their contravention. The provisions of para 59 are intended for the benefit of the public, are meant to protect the existing rights of the people living in the abadi and are designed to prevent material danger to the public by their contravention. The order has been made for public reason and for public benefit. In my opinion the power of management is subject to the rights of the people living in the abadi mentioned in para 59 of the Gaon Samaj Manual. 15. On its true interpretation, para 59 of the Gaon Samaj Manual confers no discretion on the land Management Committee. It prohibits it from interfering with the existing rights of the people living in the abadi. It permits the land Management Committee to change the location only after it has allotted some other land to those people. The Land Management Committee cannot change the location arbitrarily; that is without there being any reason therefor or without allotting other land. In my opinion the provisions are mandatory and an act of the Land Management Committee in its contravention would be invalid. 16. In the instant case, the land Management Committee has contravened the provisions of para 59 of the Gaon Samaj Manual. Its prayer for possession cannot, therefore, be granted. 17. In the result, the appeal succeeds. It is allowed, the decree is set aside and the suit is dismissed with costs throughout.