Charan Das v. Gaon Sabha — 1979 DIGILAW 624 (ALL)

JUDGMENT I.B. Singh, Member - This is a revision application of Charan Das against the order dated April 17, 1976 passed by Tahsildar/Assistant Collector, 1st Class, Tahsil Mahoba, district Hamirpur, in a case under section 122-B of Act I of 1951 read with Rule 115-C of ZA and LR Rules imposing Rs. 195-80 as damages but holding that demolition was not within the scope of the proceeding in question. 2. The learned Additional Commissioner, Jhansi Division by his order dated September 25, 1976 has recommended to allow the application and to modify the order of the lower court and to pass order of ejectment by demolition of the unauthorised construction made by the applicant and to award Rs. 89/- only as damages which was claimed in form 49-A. 3. In brief the case is that the Lekhpal of village Nanaura made a report under rule 115-C of the ZA and LR Rules against the applicant that he had trespassed on plot No. 1331 area .55 acres illegally which was Gaon Sabha property and had thereby caused damages to the Gaon Sabha. Notice was issued in form 49-A to the applicant to show cause why he should not be ejected from the disputed land and the amount of damages of Rs. 89/- may not be recovered from him. The applicant filed objection that he had occupied the land in dispute with the written permission dated October 18, 1974 of the Chairman of the LMC and had thereafter constructed a Pucca house and a boundary over it ; that the dispute is of civil nature and this court has got no jurisdiction to try it. 4. I have perused the file and have heard the learned counsel for the applicant and the learned DGC (R) for the opposite party. 5. It has been argued by the learned counsel for the applicant that the notice in form 49-A was defective as no boundary was given of the plot in dispute in it and that a bona fide question of title existed and the revenue court has got no jurisdiction as the case is of demolition and that the possession of the applicant was permissive and was not in contravention of the provisions of Act I of 1951 as Chairman had given him permission in writing. Objection was filed against the recommendation of the Additional Commissioner. 6. Objection was filed against the recommendation of the Additional Commissioner. 6. The learned DGC (R) has argued in reply to the above argument and in support of recommendation of the Additional Commissioner that the alleged permission dated October 18, 1974 (Ex. Ka-1) was void and Land Management Committee was not bound by it. It created no right or interest in land to the applicant and that it was not a case of primary relief of demolition but was the case of primary relief of possession or ejectment which can be granted only by the Revenue Court and the Civil Court has got no jurisdiction. He has reported several rulings in support of this submission. 7. The first question for determination is whether the possession of the applicant on the basis of the alleged written permission executed by the Chairman of the Land Management Committee creates any right or interest in land to the applicant or not and whether his possession is otherwise than in accordance with the provisions of Act I of 1951 or not. Chairman of the Land Management Committee is not authorised by the Act to permit any body to occupy Gaon Sabha Land against the provisions of Act I of 1951. Section 122-A of the Act (Act I of 1951) authorises only the Land Management Committee regarding superintendence, management and control of land of Gaon Sabha and not the Chairman. The Land Management Committee has been empowered under sections 195 and 197 read with section 198 of the Act and read with Rules 173 to 178-A. Regarding settlement of Gaon Sabha's land to persons for Sirdari (now Bhumidhar with non-transferable rights) or Asami as the case may be. Similarly, allotment for housing sites provisions of section 122-C (c) read with Rules 115-L to 115-0 of ZA and LR Rules are to be observed. If the relevant provisions of law are not complied with by the Land Management Committee no right can accrue in the land as an allottee. In the present case nothing has been done by the Land Management Committee according to the said provisions of the Act and the Rules to allow the applicant to occupy the land in question. The Chairman had no power to permit the applicant for the construction of the house over Gaon Sabha land. In the present case nothing has been done by the Land Management Committee according to the said provisions of the Act and the Rules to allow the applicant to occupy the land in question. The Chairman had no power to permit the applicant for the construction of the house over Gaon Sabha land. This act of the Chairman will be deemed to be an act of a persona designata at the most and not on behalf of the Land Management Committee. His act cannot be said to be on behalf of Land Management Committee as there is no provision in the Act or Rule sanctioning such an Act of the Pradhan. 8. Every one has right to waive and to agree to waive, the advantage of law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. A particular private right is a matter of fact though depending upon rules of law but in the case of statutory rights which are enacted for the benefit of a section of the public i.e. on ground of public policy in a general sense, where the statute imposes a duty of a positive kind, not avoidable by the performance of any formality for the doing of the very act which he seeks to do, it is not open to the person in whose favour he did so to set up an estoppel to prevent it. As the estoppel is only a rule of evidence which under special circumstances can be invoked by a party to an action ; but it cannot help such person to release that person from an obligation to obey such a statute and the person claiming through him cannot escape from a statutory obligation. The duty of each party is to obey the law (1937 BC 114). A corporation body cannot indirectly do by placing itself under the disability of estoppel, what it could not have directly done by reason of statutory prohibitions. 9. Further, there is a fundamental distinction between, the capacity of natural person and of an artificial person which has been created by statute to a natural person whatever is not expressly forbidden by the law is permitted by the law. He has the capacity to do everything save and except those forbidden by law. 9. Further, there is a fundamental distinction between, the capacity of natural person and of an artificial person which has been created by statute to a natural person whatever is not expressly forbidden by the law is permitted by the law. He has the capacity to do everything save and except those forbidden by law. In the case of a corporate body (e.g. the Land Management Committee and its Chairman which is the creation of the statute) the rule applicable to a natural person is reverse. Whatever is not permitted expressly or by necessary implication by the Act or rules is prohibited not by any express or implied prohibition by the Legislature but by the doctrine of ultra vires. (1949 Calcutta 20). This analogy also finds support from the principle laid down in 1964 Himanchal Pradesh page 20 which is in respect of the Government Officer and the Government. Estoppel cannot be pleaded where statutory requirements are disobeyed with full knowledge by the officers entrusted with the discharge of public duties. 10. In view of the above, the Chairman himself had no authority to allow the applicant to occupy the disputed land to make construction of a house. Therefore, no estoppel against the Gaon Sabha or the Land Management Committee can be pleaded in such a case under section 115, Evidence Act, where the Chairman has acted in utter disregard to the provisions of the Act mentioned above. His permission was in contravention of the provisions of the Act. The alleged permission is void ab initio and empty which cannot be recognised in the court of law. So the occupation of the applicant over the land in suit is certainly in contravention of the provisions of the Act and action against him under Section 122-B (3) is maintainable. 11. Now the second question to be determined is whether Collector is competent to grant relief for ejectment together with demolition of the construction made in this case by the applicant as ancillary relief. In my considered opinion the court below is entitled to grant both the reliefs. Lower courts are under a misapprehension that in such proceedings relief of possession where demolition is also involved cannot be granted by them as has been done in this case also. The apprehension is not justified at ail. In my considered opinion the court below is entitled to grant both the reliefs. Lower courts are under a misapprehension that in such proceedings relief of possession where demolition is also involved cannot be granted by them as has been done in this case also. The apprehension is not justified at ail. The revenue courts are competent under the Act to grant both the reliefs, if the relief of demolition is ancillary relief and the relief of possession or ejectment is the primary relief. It is now well settled principle, it has been held in Ram V. hanker Prasad v. Sarabjit, 1975 RD 38 that " In those cases where dispossession alleged only by wrongful constructions and a decree for possession is claimed only in respect of the area encroached upon by wrongful constructions respecting which demolition is sought, the relief of demolition should be treated as the main relief because dispossession has resulted only from construction and demolition and is confined only to the portion on which wrongful constructions have been made. But where dispossession is not only confined to the site of wrongful constructions but extends to land beyond it, it cannot be said that dispossession has resulted only from wrongful constructions-and in cases of the latter category the main relief is the relief of possession and the relief of demolition must be treated as an ancillary relief. Such a relief of possession over agricultural land from which the Bhumidhar has been dispossessed by a trespasser could be obtained and granted exclusively by the Revenue Court under Section 331 of the U.P. Zamindari Abolition and Land Reforms Act and jurisdiction of the Civil Court is barred." It is also held in Mewa v. Baldeo, 1966 RD 392 that- "When a trespasser makes any construction without a right upon the land of another person, he thereby gets no right in the land and also loses all rights in the materials which he fixes to the land of another. These materials became a part of the land itself and belonged to the owner of the land. The plff. in such a case is entitled to obtain possession of the land, as it is, along with the building, if necessary. These materials became a part of the land itself and belonged to the owner of the land. The plff. in such a case is entitled to obtain possession of the land, as it is, along with the building, if necessary. Of course, the defendant has a right to take away his materials when a decree for possession is granted against him but if he does not take away the materials, it is the right of the plaintiff decree-holder to take possession of the land, as it is, and thereafter to throw away the material himself so that the right to remove the material became vested in himself and he does not need the assistance of the Court any more. In such a case, the cause of action for the plaintiff is his dispossession and therefore, the relief in such cases would be relief of possession which the revenue courts, can give under the U.P.Z.A. and L.R. Act. The relief for demolition would be merely ancillary and an unnecessary relief and on account of such a relief, therefore, it cannot be said that the cause of action is such on which the revenue courts cannot grant any relief within the meaning of Section 331 of the U.P.Z.A. and L.R. Act. That being so, such a suit would be barred from being filed in the Civil Court." It is, therefore, clear that in the present case in an action under section 122-B (3) the lower court is fully competent to pass an order by ejectment together with the demolition of the constructed boundary wall as it has been found as a fact that only boundary wall was constructed. Section 122-B (4) and (4-D) of ZA and LR Act as amended by U.P. Act No. 30 of 1975 also authorise the Collector to use or cause to be used such force as may be necessary to carry out the order of ejectment order. 12. The argument that bona fide question of title is involved, therefore, provisions of section 122-B (4-B) should have been adhered and this argument has got no force. The alleged possession is very recent and no question of title is involved merely because the applicant has constructed a boundary wall. The argument that notice in form 49-A was defective as no boundary was given has got no force because ejectment is sought from the specific plot which has been mentioned. The alleged possession is very recent and no question of title is involved merely because the applicant has constructed a boundary wall. The argument that notice in form 49-A was defective as no boundary was given has got no force because ejectment is sought from the specific plot which has been mentioned. Nevertheless, absence of boundaries in the notice may amount to slight deviation in the notice in Form 49-A but it did not mislead the revisionist. In the circumstances of the case, the benefit of the provisions of Section 10-C of U.P. General Clauses Act (as amended in 1975) can be given to Gaon Sabha. The amount of damages awarded is not excessive according to law as in the notice only Rs. 89/- was mentioned. Therefore, it cannot be exceeded as provided by law. 13. In view of the above the recommendation is accepted. The revision is allowed and the order of the court below is modified to the effect that applicant shall be ejected from the plot in suit. The boundary wall shall also be demolished by the applicant and Rs. 89/- only shall be realised as damages.