Hira Teli v. Shripati Rai — 1981 DIGILAW 707 (ALL)

JUDGMENT V.K. Mehrotra, J. - This is a plaintiff's second appeal who has lost in both the courts below. 2. The case of the plaintiff was that the land in suit was allotted to him by the Land Management Committee on March, 19, 1971 and he was put in possession thereof. The plaintiff then surrounded the land by bamboos. The first four defendants, according to the plaintiff, uprooted these bamboos and illegally encroached upon the land covered by the Patta in his favour, by raising constructions like Nad, Charan, Chhappar. Since they were not prepared to vacate the encroachment the plaintiff was compelled to sue for recovery of possession after removal of the encroachments. 3. Gaon Sabha Bagendra, which is said to have allotted the land to the plaintiff was impleaded as the 5th defendant in the suit. It took the stand in a separate written statement that a `patta' had validly been executed in favour of the plaintiff and that the first four defendants had illegally encroached upon the land. 4. The defence taken by the first four defendants was that no valid `patta' had been executed in favour of the plaintiff nor could one be so executed for the plaintiff was not a resident of the circle of the Gaon Sabha. In fact, the land in suit was appurtenant to their house and stood settled with them under section 9 of U. P. Act No. I of 1951. Further they had obtained a `patta' themselves from the Gaon Sabha on September 20, 1970. 5. The trial court framed several issues which arose on the pleadings of the parties. The first of these issues was "whether the plaintiff was the owner of the land in suit on the basis of 'patta' dated March, 19, 1971." The third and fourth issues were in regard to the claim of the first four defendants to the land in suit on the basis of its settlement with them under S. 9 of U. P. Act No. 1 of 1951 and of the 'patta' dated Sept. 20, 1970. Parties led evidence in support of their respective cases. 6. 20, 1970. Parties led evidence in support of their respective cases. 6. The trial Court, on appraisal of the evidence of the parties, came to the conclusion under issue No. 1 that the allotment in favour of the plaintiff appeared to be doubtful particularly when the original of the resolution under which the land was said to have been allotted to him had not been produced. It also concluded under issues Nos. 3 and 4 that the disputed land was not appurtenant to the house of the first four defendants nor had it been settled with them by the Gaon Sabha through any `patta' dated Sept. 20, 1970. In view of its finding on issue No. I the trial Court dismissed the suit. The plaintiff appealed. 7. The love or appellate Court summoned the original resolution on an application made on behalf of the plaintiff in that regard. It proceeded to consider the validity of the allotment in favour of the plaintiff in the first instance. It noticed pars of the U.P. Gaon Sabha and Bhumi Prabandhak Samiti Manual which was a compilation of the relevant rules of the U.P. Zamindari Abolition and Land Reforms Rules, 1952. The lower appellate Court was of opinion that Rule 115-L of these rules did not contemplate that allotment of land vesting in it could be made by the Gaon Sabha in favour of a person who was not a resident of the circle of that Gaon Sabha. The lower appellate Court held that inasmuch as the plaintiff was not a resident of the circle of Gaon Sabha Bagendra, no allotment could be made in his favour. As such, the allotment dated March 19, 1971 did not confer any right upon the plaintiff in respect of the land in suit. The lower appellate Court then proceeded to hold that the plaintiff's claim could not succeed even on possessory title for he was not in possession over the land in suit at the relevant time. The lower appellate Court upheld the decree of the trial Court. 8. Sri Sanktha Rai, appearing for the plaintiff-appellant in this Court. has argued that the view of the lower appellate Court that no allotment of land could be made by the Gaon Sabha to a person, like the plaintiff, who was not a resident of the circle of the Gaon Sabha, was incorrect. 8. Sri Sanktha Rai, appearing for the plaintiff-appellant in this Court. has argued that the view of the lower appellate Court that no allotment of land could be made by the Gaon Sabha to a person, like the plaintiff, who was not a resident of the circle of the Gaon Sabha, was incorrect. His submission is that the allotment made by the Gaon Sabha in favour of the plaintiff on March 19, 1971. was valid so that the plaintiff was entitled to recover possession of the land in suit after removal of the encroachments made by the first four defendants thereon. This submission has been countered by Sri R.N. Singh, appearing for the first four defendants-respondents, by urging that the allotment of the property vesting in the Gaon Sabha could only be made in favour of persons residing in the circle of that Gaon Sabha except in specific cases envisaged by the relevant rules. 9. Chapter VII of the U.P.Z.A. and L.R. Act (U. P. Act No. 1 of 1951) which deals with Gaon Sabhas, as it stood at the relevant time, provided in S. 117(vii) that the State Government may, by notification in the Gazette, at any time after the publication of a notification under S. 4 of the Act, declare that on the specified date, abadi sites situate in the circle which had vested in it under the Act shall vest in the Gram Samaj established for the same circle. S. 122-A occurring in the same Chapter charged the land Management Committee for and on behalf of the Gaon Sabha with the general superintendence, management, preservation and control of all the abadi sites which vested in the Gaon Sabha under S. 117. Sub-sec. (2)(a) of that provision specified that the functions and duties of the Land Management Committee would include the settling and management of the land, while sub-sec. (2)(e) provided that the maintenance and development of abadi sites and village communications was amongst the functions and duties of that Committee. Sub-sec: (1) of S. 128 enabled the State Government to make rules for purposes of carrying into effect the provisions of that Chapter. 10. (2)(e) provided that the maintenance and development of abadi sites and village communications was amongst the functions and duties of that Committee. Sub-sec: (1) of S. 128 enabled the State Government to make rules for purposes of carrying into effect the provisions of that Chapter. 10. The State Government framed Rules, which included Rules 115-L; 115-M; 115-N and 115-P. They were in the following terms :- "115-L. Abadi sites situate in the abadi or in the waste land of the area vested in the Gaon Samaj shall be allotted for the purpose of construction of buildings in the following order of preference (a) a landless agricultural labourer or a landless servant of the village community such as Barhai, Dhobi, Lohar, Sweeper. etc. (b) a bhumidhar, sirdar, or adhivasi, who is holding less than 5 standard bighas. (c) others. Allotment shall be made on the result of public auction held for this purpose. The exact location of the site to be auctioned, the time, the date and venue of the auction shall be announced by beat of drum in the circle of the Gaon Samaj:- Provided that - (i)no auction auction shall be held where any of the applicants requires a site for the construction of a building for a charitable purpose. In case of such an applicant, the site shall be allotted to him without payment of premium. If there are more than one such applicants, the Land Management Committee shall decide as to whom the site may be allotted. The decision of the Land Management Committee in this respect shall be final subject to confirmation by the Assistant Collector incharge of the sub- division. (ii) the provision of cl. (i) shall also apply in cases where an applicant requires a site for setting up cottage industry, provided that a certificate to this effect is obtained from the Assistant Collector in charge of the sub- division. In case where there are two applicants for a site, one requiring it for charitable purpose and the other for setting up cottage industry, the Land Management Committee shall decide as to whom the site may be allotted. The decision of the Land Management Committee in this respect shall be final subject to confirmation by the Assistant Collector, in charge of the sub- division. The decision of the Land Management Committee in this respect shall be final subject to confirmation by the Assistant Collector, in charge of the sub- division. (iii) abadi sites in the area earmarked for abadi in the waste land shall not be put to auction unless there are more applicants than the sites available :- Provided further that if there is only one applicant requiring a site for the construction of a house it shall be allotted to him on payment of such premium as may be fixed by the Land Management Committee in this behalf:- Provided also that the provisions of this rule shall not apply in case where the abddi site is required for settling those who have lost their houses on account of floods. In such cases the land will be earmarked and allotted by the land Management Committee according to directions of the Collector. 115-M. Subject to the provisions of rule 115-L, the auction for abadi sites for it construction of houses shall be open to all persons residing in the circle of the Gaon Samaj. The first bidding shall be confined among the persons of categories (b) and (c) mentioned in rule 115-L, and the highest bid shall be recorded. Immediately thereafter, there shall be a second bidding among the persons of category (a) mentioned in rule 115-L. The highest bid in the second bidding, provided it is not less than 25 per cent of the highest bid recorded in the first bidding, shall be taken as the final bid and accepted, failing which the highest bid recorded in the first bidding shall be taken as the final bid and accepted if the bidder belongs to category (b) mentioned in rule 115-L. If the highest bid recorded in the first bidding is of the person belonging to category (c), the highest bidder among the persons of category (b) shall be given an option to pay the amount of the highest bid recorded in the first bidding. If he agrees to pay the amount, his offer shall be accepted, and if not, the highest bid recorded in the first bidding shall be taken as final and accepted. The person whose bid is accepted, shall be required to pay one-fourth of the bid money immediately and the balance within a time to be fixed by the Land Management Committee. The person whose bid is accepted, shall be required to pay one-fourth of the bid money immediately and the balance within a time to be fixed by the Land Management Committee. If the balance is not paid within the time so fixed, the advance money shall be liable to forfeiture in the discretion of the Land Management Committee. 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 he final. 115-O .......................... 115-P. The person to whom an abadi site is allotted shall be required to build a house, either Kachcha or pucca, and begin to reside in it or use it for the purpose for which it was built within two years from the date of allotment. If he fails to do so, his rights shall be extinguished and the site may be re- auctioned." 11. A careful perusal of these rules would indicate that allotment for purposes of construction of buildings was to be made by the Gram Samaj in the order of preference contained in Rule 115-L by public auction held for that purpose except in cases where the necessity for auction had been obviated by the rule itself. The first proviso envisaged that where the allotment was sought for construction of a building for a charitable purpose or for setting 4 of a cottage industry, the allotment must be made by the Land Management Committee subject to the confirmation by the Assistant Collector, in charge of the Sub-Division without recourse to the procedure of auction. Likewise, under the third proviso, where abadi site was required for settling those who had lost houses on account of flods, allotment was to be made according to the direction of the Collector. There is no difficulty so far. Likewise, under the third proviso, where abadi site was required for settling those who had lost houses on account of flods, allotment was to be made according to the direction of the Collector. There is no difficulty so far. 12. The argument on behalf of the plaintiff-appellant is that cases covered by the second proviso in Rule 115-L which contemplated allotment of the site for construction of a house by the Committee where only one apolicant was before it for such allotment, also fell in the same category as cases covered by the first and the third provisos. As such, like in the case of the first and the third provisos, wherein it could not be envisaged that the applicant had necessarily to be a resident of the circle of the Gaon Sabha which was to make the allotment, an allotment to a lone applicant could also be made even though he was not a resident of the circle of the Gaon Sabha. 13. The opening part of Rule 115-M provides that subject to the provisions of Rule 115-L, the auction for abadi sites for construction of houses shall be open to all persons residing in the circle of the Gram Samaj. It is obvious that the normal rule envisaged in the matter of allotment was to permit the residents of the circle of the Gram Samaj alone to obtain it by participating in an auction. The fact that in the case of a lone applicant, where no auction was contemplated, allotment could be made also in favour of a non-resident of the circle, does not seem to be intended by the rules. The reason is obvious. By a fortuitous chance of there being only a single applicant for allotment of a prticular site, the necessity for an auction stood obviated. If there were more than a single applicant, recourse was to be had to an auction which was, in terms of Rule 115-M, to be confined to the residents of the circle alone. The rules have to be harmoniously construed or else, it may, become difficult to make them workable in some situations. For example, where there were more applicants than one, all residing outside the circle of the Gaon Sabha, how would the allotment be made. Due to the number of applicants being in excess of one it will be necessary to make the allotment through an auction. For example, where there were more applicants than one, all residing outside the circle of the Gaon Sabha, how would the allotment be made. Due to the number of applicants being in excess of one it will be necessary to make the allotment through an auction. But, in term of Rule 115M, they would not be eligible to participate in an auction so held. It is reasonable, therefore, to hold that except in cases which were covered by the first and the third provisos, namely, where the applicants were seeking to get the land for construction of a building for a charitable purpose or for setting up a cottage industry or where the Collector required the land for settling those who had lost their houses on account of floods, settlement had to be confined to applicants who were residents of the circle of the Gram Samaj. 14. The aforesaid intention of the rule becomes manifest also from the fact that announcement about the auction, namely, its time, date and venue is to be made by beat of drums in the circle of the Gram Samaj as provided in Rule 115-L. There is no error in the view taken by the lower appellate Court in this regard. 15. The question that now needs attention is whether it was open to the civil Court to go into the validity of the allotment made in favour of the plaintiff on March 19, 1971. The submission of the learned counsel for the appellant is that the jurisdiction to determine the validity or otherwise of the allotment was exclusively that of the Assistant Collector in charge of the Sub-Division under Rule 115-N and that by necessary implication the jurisdiction of the civil Court to do so stood excluded. It has been urged that apart from the first three reasons for cancellation of an order of allotment by the Assistant Collector, R. 115-N(l) contemplated cancellation of that allotment on any other ground as well. Further, that the decision of the Assistant Collector was made final by sub-rule (3) of that rule. 16. In Sub-Divisional Officer, Mathura v. Shivvali ( AIR 1973 All 564 ) : (1973 All L J 439), a Division Bench of this Court took the view that cl. Further, that the decision of the Assistant Collector was made final by sub-rule (3) of that rule. 16. In Sub-Divisional Officer, Mathura v. Shivvali ( AIR 1973 All 564 ) : (1973 All L J 439), a Division Bench of this Court took the view that cl. (iv) of Rule 115-N(l) was not confined in its nature to the grounds mentioned in the preceding clauses and that the rule of ejusdem generis could not be pressed into service to confine it in that manner. It covered grounds other than those mentioned in the preceding three clauses. In view of this decision, it must be held that the reason that allotment had been made to a person who was not eligible for such allotment, would be covered by cl. (iv) and the Assistant Collector would be competent to cancel an order of allotment on that ground. The order of allotment would not become void merely because it had been made in contravention of the rules of eligibility. Until it is cancelled, the right conferred by it upon the allottee had to be recognised. The position of an order of allotment made under Rule 115-L will be akin to the one made in terms of S. 198(3) of the Act under Rr. 173 to 175 of the Rules. In respect of an allotment of land made under S. 198, the decision of this court has been that unless it is cancelled by the appropriate authority it would have to be recognised and the right conferred upon the allottee given effect to. (See Rasala v. Deputy Director of Consolidation 1970 All L J 274). In Dhulabhai v. State of Madhya Pradesh (AIR 1969 S C 78) it was held by a Constitution Bench that where the statute gives finality to the orders of the special tribunals, the civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Court would normally do in a suit. It is clear from a perusal of Rule 115-N, as also interpreted by the Division Bench in Sub-Divisional Officer, Mathura v. Shivvali (supra) that the allotment made in favour of a person who was not eligible for such allotment could be cancelled on that ground by the Assistant Collector in charge of the Sub-Division and under sub-r. (3) of that Rule, the decision of the Assistant Collector shall be final. It was clearly intended by the rule-making authority that in the matter of cancellation of allotment, the Assistant Collector in charge of the Sub-Division would be the finat authority and would, thus, be able to give all the reliefs that could be obtained in a civil Court in the matter. By necessary implication, the jurisdiction of the civil Court was excluded. A Full Bench of this Court had occasion to consider the question whether it was open to Consolidation Authorities to ignore a lease given by Land Management Committee which had not been cancelled in accordance with the provisions of S. 198 of U. P. Act No, I of 1951. That was in the case of Similesh Kumar v. Gaon Sabha, Uskar Ghazipur, (1977 All L J 310) : ( AIR 1977 All 360 Para 6). Satish Chandra, J. (as he then was) observed in para 24 of the Report as follows : "The provisions of the Zamindari Abolition Act lay down rules for admission of persons to land vesting in the Land Management Committee, and the grounds and the period of limitation within which such grants can be challenged. It created a special authority in the shape of the Collector to adjudicate such disputes. It then provides for a finality. All this shows that in this matter the Act creates a self-contained Code creating rights and indicating the manner of settlement of disputes. No other authority has jurisdiction to re-adjudicate matters covered thereby. The Consolidation Authorities have to recognise and respect the action of Land Management Committee or order of the Collector or Board of Revenue, if any. They cannot go behind them." A. Banerji, J. observed as follows (in para 30 of the Report (Para 12 of AIR)) : "....... The basic question, therefore, is whether the Consolidation Authorities could cancel the lease or set aside the allotment made by the Land Management Committee. In Dhula Bhai's case the Supreme Court has laid down that where the statute gave finality to the orders of the special tribunals there was an exclusion of the jurisdiction of the civil Court. This principle would also be applicable to Courts or Tribunals which had taken the place of civil Court. In Dhula Bhai's case the Supreme Court has laid down that where the statute gave finality to the orders of the special tribunals there was an exclusion of the jurisdiction of the civil Court. This principle would also be applicable to Courts or Tribunals which had taken the place of civil Court. In my opinion, the principle of law laid down in Dhula Bhai's case would exclude the jurisdiction of the Consolidation Authorities from considering the validity or otherwise of the lease granted by the Land Management Committee." K. C. Agrawal, J. the third member of the Bench, also observed (in para 13 of the Report (Para 29 of AIR)) as under : "....... Accordingly, so long as the lease is not cancelled or the allotment made is not set aside, the person obtaining the land from the Land Management Committee would be entitled to hold it for his or her benefit. A transaction which is voidable is valid until repudiated. I am not prepared to accept, as was urged on behalf of the respondent No. 2, that the lease having not been executed in accordance with the Act in the instant case, was void." and later (in para 14 (Para 30 of AIR)) that : "....... In case of a lease or allotment of a land made contrary to the provisions of S. 198 of the Act, it appears to us that as such a transaction would be voidable, the Consolidation Authorities would have no right to inquire into and adjudicate the validity of the same." 17. On parity of reasoning, it must be held that unless an order of allotment made under Rule 115-L is cancelled in proceedings under Rule 115-N, it subsists and the right conferred by it has to be recognised. However, exclusive jurisdiction has been conferred upon the Assistant Collector in charge of the Sub-Division to adjudicate about the validity of the order of allotment and the jurisdiction of the civil Court in the matter has, by necessary implication, been excluded. 18. The submission of Sri R.N. Singh, based upon the observation of the Supreme Court in Dhulabhai's case, may now be noticed. 18. The submission of Sri R.N. Singh, based upon the observation of the Supreme Court in Dhulabhai's case, may now be noticed. The submission is that as observed by the Supreme Court in that case a provision giving finality to the decision of the Special Tribunal would not exclude the jurisdiction of the civil Court in those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial proceedings. Allotment of land by the Gaon Sabha to a person who was not eligible for such allotment would, according to Sri Singh, amount to a non- compliance with the provisions of the, statutory Rule so that the jurisdiction of the civil Court would not be excluded in such a case. The submission overlooks the basic distinction between a case where the order impugned is not one under the Act and a case where it is in contravention of some provision thereof. What was laid down by the Supreme Court in the aforesaid decision was that in a case where, by breach of some mandatory provisions of the Act, the impugned order ceased to be one under the Act, the jurisdiction of the civil Court will not be barred when it was called upon to pronounce upon its validity. That is not the situation in a case like the present where the grievance is that the allotment had been made in favour of a person who was not eligible for such allotment. Determination of this question has been left to be made by the Assistant Collector in charge of the Sub-Division by Rule 115-N. It is akin to the one which was up for consideration before the full Bench in Similesh Kumar's case. 19. It is not in dispute that the order of allotment in favour of the plaintiff made on March 19, 1971 has not been cancelled by the appropriate authority, namely, the Assistant Collector in charge of the Sub-Division. The rights which the plaintiff acquired in the land in dispute under this allotment order had to be recognised. The lower appellate Court was in error in taking the view that the order was invalid for it had been made in favour of a person who was not a resident of the circular of the Gaon Sabha concerned. The rights which the plaintiff acquired in the land in dispute under this allotment order had to be recognised. The lower appellate Court was in error in taking the view that the order was invalid for it had been made in favour of a person who was not a resident of the circular of the Gaon Sabha concerned. The plaintiff was entitled to a decree for possession over the suit land an account of the order of allotment in his favour dated March 19, 1971. The Courts below were in error in refusing that relief to him. Their decree cannot be upheld. 20. The appeal is allowed. The plaintiffs suit is decreed for the relief of possession over the land in dispute. The first four defendant-respondents are directed to remove the encroachment made by them upon it within a period of four months failing which the plaintiff will be entitled to get it removed through Court at the cost of those defendant-respondents. In the circumstances of the instant case, however, I direct the parties to bear their own costs.