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Allahabad High Court · body

1986 DIGILAW 97 (ALL)

Govind v. Sub-Divisional officer

1986-01-28

B.L.YADAV

body1986
JUDGMENT B.L. Yadav, J. - The Petitioners have filed the present petition Under Article 226 of the Constitution of India against the order dated 24.7.72 passed by the Board of Revenue, the order dated 3.10.69 (in part) passed by the Additional Commissioner and the order dated 26.9.67 passed by the Sub-Divisional Officer, Machchlishahr in proceedings u/s 198(2) of the UP ZA and LR Act (hereinafter referred to as the Act), as it was then applicable. 2. The facts in brief are that in respect of plot Nos. 2192 and 2178 etc. the Land Management Committee of village Molnapur, Pargana Mungra, Tahsil Machchlishahr, Distt. Jaunpur resolved on 8.8.64 to grant lease in respect of the land of the Gaon Sabha to Smt. Jokhni (Petitioner No. 11). Again on 20.12.65 it resolved to grant lease to a number of persons including the other Petitioners. No application for cancellation was filed within the period of six months as provided by Serial No. 24 of Appendix 3 for cancellation of lease in favour of the Petitioners, rather on 3.3.67, after about three years an application was filed by one Buddha for cancellation of the lease in favour of the Petitioners alleging that the leases were illegal and the procedure prescribed was not followed and most of the lessees were relations of the Pradhan. 3. The Sub-Divisional Officer by his order dt. 26.9.67 cancelled the leases. The Petitioner preferred appeal (as it was then maintainable) and the Additional Commissioner by his order dated 3.10.69 set aside the order of the Sub-Divisional Officer in respect of all the lessees except against Sheo Kumar and Basudeo. A revision was filed by Buddha which was allowed and the result was that all the leases except the lease in favour of Smt. Jokhani were cancelled, whereas the case of Smt. Jokhani was remanded for fresh order by the order dated 24.7.72 passed by the Board of Revenue. It is against these orders that the present petition has been filed. 4. I have heard the learned Counsel for the parties. It is against these orders that the present petition has been filed. 4. I have heard the learned Counsel for the parties. Learned Counsel for the Petitioners urged that the application of Buddha was time barred inasmuch as it was not filed within six months from the date of lease and even assuming that the Sub-Divisional Officer exercised sue motto action, for that he should have issued notices to the lessees concerned with a direction that he was proposing to take action sue motto for cancellation of the lease. The next point urged by the learned Counsel for the Petitioners was that Respondent Nos. 1 to 3 did not record a finding in pursuance of Section 28C of the U.P. Panchayat Raj Act that the Pradhan has derived any benefit out of the lease granted to the lessees even though some of them may be related to Pradhan, hence the impugned orders are manifestly erroneous. It was further urged that in view of Rule 178A(2) the Land Management Committee was a necessary party and since it has not been impleaded, the leases cannot be cancelled. 5. Learned Counsel for the Respondents on the other hand urged that sue motto action has correctly been taken and the leases were not granted in accordance with law and they were hit by Section 28C of the U.P. Panchayat Raj Act. 6. It is a fact that the application was not filed by Buddha within the period prescribed for cancellation of the lease as provided by Serial No. 24 of Schedule III (Rule 33S) and as regards the sue motto action being taken by the Sub-Divisional Officer, for that also he should have issued notices to the lessees after formulating a point that he was proposing to take sue motto action and communicating the same to the lessees and only after hearing them he could have taken the action summate. But he did not do so. It is thus obvious that the application for cancellation of lease was not within time nor the sue motto action was taken according to law. See D.N. Roy and S.K. Bannerjee and Others Vs. The State of Bihar and Others, AIR 1971 SC 1045 Chhengu Lai v. Dy. Director of Consolidation 1972 RD 43 . Swastik Oil Mills Ltd. Vs. H.B. Munshi, Deputy Commissioner of Sales Tax, Bombay, AIR 1968 SC 843 and State of Kerala Vs. See D.N. Roy and S.K. Bannerjee and Others Vs. The State of Bihar and Others, AIR 1971 SC 1045 Chhengu Lai v. Dy. Director of Consolidation 1972 RD 43 . Swastik Oil Mills Ltd. Vs. H.B. Munshi, Deputy Commissioner of Sales Tax, Bombay, AIR 1968 SC 843 and State of Kerala Vs. K.M. Charia Abdullah and Co., AIR 1965 SC 1585 . 7. As regards the leases being hit by the provisions of Section 28C of the U.P. Panchayat Raj Act, it is fruitful to set out the statutory provisions of Section 28(c): 28C. Members and Officers not to acquire interest in contracts etc. with Bhumi Prabandhak Samiti (1) No member or office-bearer of Gaon Panchayat or Bhumi Prabandhak Samiti shall, otherwise than with the permission in writing of the Collector, knowingly acquire or attempt to acquire or stipulate for or agree to receive or continue to have himself or through a partner or otherwise any share or interest in any license, lease, sale, exchange, contract or employment with, by, or on behalf of the Samiti concerned. 8. From the aforesaid statutory provision it is evident that no member or office bearer of the Gaon Panchayat or the Bhumi Prabandhak Samiti can acquire or deemed to acquire any interest in the license or lease except with the permission in writing of the Collector. It is, thus clear that there must be a finding that the Petitioner has acquired any interest in the lease. Simply because some of the family members of the Pradhan have obtained the lease, it would not lead to inference that the Pradhan has received some interest. In other words the Sub-Divisional Officer must record a finding as to whether the Petitioner has received any interest in the lease even though it might have been obtained in the name of some of the relations or family members of the Pradhan or office bearers of the Gaon Panchayat or Bhumi Prabandhak Samiti. 9. It is well known principle of interpretation that 'animus impotents " i.e. intention of the law givers has to ascertain and if the words are clear the duty of the Court is not to add some more words. Even in the case of " cause missus " (the case for omission) while interpreting statute even though there appears to be some omission, it is for the Legislature to rectify it and not for the courts. Even in the case of " cause missus " (the case for omission) while interpreting statute even though there appears to be some omission, it is for the Legislature to rectify it and not for the courts. In Nalinakhya Bysack Vs. Shyam Sunder Haldar and Others, AIR 1953 SC 148 , page 152 it was observed as follows: It is not competent to any court to proceed upon assumption that the legislature has made mistake. The court must proceed on the footing that the legislature intended that it has said. Even if there is some defect in the phraseology used by the legislature the court cannot aid the legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is casus-omisus it is for the others than the Courts to remedy the defect. See also Abdullah Ashgar Ali v. Ganesh Das, AIR (20) 1933 PC 63 . 10. It is clear that Section 28C does not provide that in case some leases is sought to be obtained in favour of relations or family members or office bearer of the Gaon Panchayat or the Pradhan or Chairman the permission of the Collector must be obtained. The only statutory requirement is that in case the member or the office bearer or the Pradhan etc. acquires any interest in the proposed lease he should obtain a permission of the Collector. In the instant case no such finding has been recorded that the Pradhan or the member or office-bearer of the Gaon Panchayat has obtained any interest. It cannot, therefore, be said that the lease was hit by the provisions of Section 28C of the U.P. Panchayat Raj Act. See Smt. Vidyawati v. The Gaon Sabha 1982 RD 326. 11. As regards the last point that the Land Management Committee was not made party, suffice it to say that Rule 178A(2) of the UP ZA and LR Rules is mandatory and the statutory requirement is that that the Land Management Committee and the lessees should be made parties and opportunity of hearing must be afforded to them. In the instant case the Land Management Committee has not been made party rather the Gaon Sabha through its Parham and the Chairman of the Land Management Committee were made parties. In the instant case the Land Management Committee has not been made party rather the Gaon Sabha through its Parham and the Chairman of the Land Management Committee were made parties. The statutory requirement is that the Land Management Committee through its Chairman must have been specifically made party. Hence the provisions of this rule are also violated. 12 In view of the discussions made above the impugned orders are manifestly erroneous and cannot be sustained. 13. In the result, the petition succeeds and is allowed. The impugned orders are hereby quashed and the case is remanded back to the Sub-Divisional Officer, Machchlishahr to decide the case afresh in accordance with law and in the light of the observations made in the body of the judgment. Under the circumstances, there shall be no order as to costs.