VIJAI BHAN SINGH v. ITWARI — 1998 DIGILAW 999 (ALL)

D. K. SETH, J. ( 1 ) THE petitioner has challenged the order dated 29th November, 1982 passed by the Additional commissioner in Objection No. 2/80/81, being Annexure-I to the petition. ( 2 ) THIS writ petition was dismissed by the order dated 5th March. 1998 by this Court. ( 3 ) THE petitioner has filed an application for recalling the said order dated 5th March. 1998 through Mr. S. P. Singh, learned counsel. ( 4 ) I have heard Sri S. P. Singh and Sri B. K. Srivastava learned counsel for the respondents on the application for restoration. ( 5 ) IT appears that sufficient ground has been made out for recalling the said order dated 5th march. 1998. ( 6 ) THE order dated 5th March. 1998 is, hereby, recalled. ( 7 ) AFTER the above order is recalled, both the learned counsel Insisted that the matter should be taken up for hearing. With the consent of the parties learned counsel, the matter is treated to be on the list of date and is taken up for hearing. ( 8 ) I have heard Sri S. P. Singh learned counsel for the petitioners and Sri B. K. Srivastava, learned counsel for the respondents at length. Mr. S. P. Singh contends that the land being surplus land belongs to the Gaon Sabha and the same can be allotted only by the Gaon Sabha through its Land Management Committee as contemplated in Section 198 of the U. P. Zamindari Abolition and Land Reforms Act. 1950. ( 9 ) IN the present case, according to the pleading made out in the writ petition, the same was allotted by the Tehsildar in favour of the private respondents alleged to be landless labours. According to him. Tehsildar is not the competent authority, who can allot the land in terms of section 198 of the U. P. Zamindari Abolition and Land Reforms Act. 1950 (hereinafter referred to as the 1950 Act ). His second contention was that by virtue of Section 5, subsection (2) of imposition of Ceiling on Land Holdings Act. 1960 (hereinafter referred to as the 1960 Act), the provisions of the said Act would not be applicable in respect of the land belonging to the Gaon sabha. 1950 (hereinafter referred to as the 1950 Act ). His second contention was that by virtue of Section 5, subsection (2) of imposition of Ceiling on Land Holdings Act. 1960 (hereinafter referred to as the 1960 Act), the provisions of the said Act would not be applicable in respect of the land belonging to the Gaon sabha. Inasmuch subsection (2) of clause (a) provides that the land belonging to a local authority does not come within the perview of the said Act. Therefore, the Commissioner has no jurisdiction to decide the dispute. Accordingly, the order impugned is wholly without jurisdiction. He next contends that the land had been allotted to the petitioner as landless labourers by the Gaon Sabha for a period of 3 years initially in 1966 and, thereafter it was further allotted for a period of 5 years in 1969. During the subsistence of the Patta granted in favour of the petitioner. Patta having been granted in favour of the private respondents, the same is wholly illegal, since without cancelling the Patta of the petitioner and without evicting him from the possession of the land, the land could not be distributed to Landless labourers, On these grounds, he has supported his contention and prayed for setting aside of the order dated 29th November, 1982, contained in Annexure-I to the writ petition. ( 10 ) MR. B. K. Srivastava, learned counsel for the respondents, on the other hand has opposed the said contentions and, pointed out that the petitioner has no legal right and as such, the writ petition should be dismissed. ( 11 ) FROM the prayer of the writ petition, it appears that the petitioners have sought for the following reliefs : (i) Issue a writ order or direction in the nature of certiorari calling for the record and after perusal thereof, quash the order passed by the learned Commissioner, opposite party No. 9. dated 29. 11. 1982 (Annexure-I ). (ii) Issue a writ, order or direction in the nature of mandamus directing the learned commissioner, opposite party No. 9, to decide the case in accordance with Law after applying his mind to the merits of the case. (iii) Issue any other suitable writ, order or direction as this Honble Court may deem fit and proper in the circumstances of the case. (iv) Award costs of the petition to the petitioners. (iii) Issue any other suitable writ, order or direction as this Honble Court may deem fit and proper in the circumstances of the case. (iv) Award costs of the petition to the petitioners. ( 12 ) A perusal of the said reliefs show that the petitioner has prayed that the order dated 29th november, 1982, contained in Annexure-1, passed by the Commissioner, should be quashed and that the Commissioner should be directed to decide the case in accordance with law after applying his mind. Thus, it appears that the petitioner himself has submitted to the jurisdiction of the Commissioner. The jurisdiction of the Commissioner has not been disputed in the writ petition, which is apparent from the prayer (ii) it self, in which the petitioner had sought the relief that after quashing the order, the Commissioner should decide the matter afresh in accordance with law by applying his mind on the merits of the case. Therefore, the contention that the Commissioner had no jurisdiction to decide the dispute as contended by Mr. Singh, cannot be sustained. ( 13 ) ADMITTEDLY, the land is a surplus land after having been declared surplus in the hand of one thakur Nahar Singh, since deceased. The respondents in their counter-affidavit had pointed out that the petitioners are direct descendants of Thakur Nahar Singh. The Commissioner had also come to a finding that the father of the petitioner was the grandson of Thakur Nahar Singh. In the rejoinder-affidavit, the petitioner admits Thakur Nahar Singh as his great grandfather. The petitioner is admittedly, son of one Jeet Singh, who was found to be the grandson of Thakur nahar Singh, by the Commissioner. Therefore, this fact is not in dispute. Such land was declared surplus in the hands of Thakur Nahar Singh by reason of application of Section 5 of the imposition of Ceiling on Land Holdings Act. Section 5 of the said Act in subsection (1) provides that upon commencement of the said Act, a tenure-holder will not be entitled to hold land in excess of ceiling applicable to him. Subsection (2) provides that the provisions of sub-section (1)of Section 5 would not apply in respect of the land held by the authorities mentioned in clause (a) of sub-section (2), including any local authority. Admittedly. Gaon Sabha is the local authority. Therefore. Section 5 (1) cannot be applied in respect of land held by Gaon Sabha. Subsection (2) provides that the provisions of sub-section (1)of Section 5 would not apply in respect of the land held by the authorities mentioned in clause (a) of sub-section (2), including any local authority. Admittedly. Gaon Sabha is the local authority. Therefore. Section 5 (1) cannot be applied in respect of land held by Gaon Sabha. Admittedly, the land having been declared surplus under the 1960 Act, the same vested with the gaon Sabha. Therefore, there cannot be any application of Section 5 (1) afresh in respect of the said land at the hands of Gaon Sabha but the said proposition is completely a different proposition from the proposition advanced on behalf of the petitioners in this case. Sub-section (2) of Section 5 never contemplates that the entire provisions of the 1960 Act will not be applicable in respect of the land held by the Gaon Sabha. It has only excluded the application of section 5 (1) of the said Act. On the other hand, the scheme of the Act indicates that it applies to lands held by Gaon Sabha as contemplated in Chapter IV of the 1960 Act. The said Chapter deals with disposal or settlement of surplus land. The surplus lands are the lands, which are declared surplus under the 1960 Act. Section 27 empowers the Government to settle the surplus land in a village in which no land is available for community purposes or in which the land, as available, in less than 15 acres with the Gaon Sabha. If the land exceeds 15 acres, in that event such excess land would be settled with the Gaon Sabha for being used for planting trees, growing fodder or for such other community purposes, as may be prescribed, which is apparent from sub-section (1) thereof. Sub-section (2) empowers the State Government to settle the surplus land either in accordance with sub-section (1) or in accordance with subsection (3) or use of permit its use in accordance with Section 25 or manage or otherwise deal with it in such manner as it thinks fit. Now sub-section (3) empowers the Government to settle remaining surplus land through the Collector in accordance with the order of preference and subject to the limits specified in sub-sections (1) and (3) of Section 198 of the 1960 Act. Now sub-section (3) empowers the Government to settle remaining surplus land through the Collector in accordance with the order of preference and subject to the limits specified in sub-sections (1) and (3) of Section 198 of the 1960 Act. ( 14 ) THUS, the provisions of Section 27 make it clear that the land declared surplus under the 1960 act, can be settled by the State Government in the manner provided in Section 27. Section 27 empowers the State Government to settle the land either under sub-section (1) or under subsection (3), as the case may be or use or permit its use in accordance with Section 25. Sub-section (1) provides for settlement of land with the Gaon Sabha. whereas sub-section (3)provides settlement of the land to any person in accordance with the preference provided in sub-sections (1) and (3) of Section 198 of the 1950 Act. ( 15 ) IN the present case, it is alleged in the writ petition that the land was settled by Tehsildar. In the counter-affidavit filed by the private respondents, it has been specifically averred that the land was settled by the Collector, whereas in the rejoinder-affidavit, while dealing with the said paragraph of the counter-affidavit, no specific statement has been made denying that the settlement has been made by the Collector. ( 16 ) BE that as it may, since it is within the jurisdiction of the Government to settle the land in section 27, it cannot be said that the said land cannot be dealt with by the provisions of 1960 act, as contended on behalf of the petitioner. That apart, the petitioner himself had invoked subsection (4) of Section 27 against such settlement made under Section 27 (3) of the 1960 Act. Thus, he had submitted to the jurisdiction of the Commissioner after having made an application/objection under Section 27 (4) of the 1960 Act and having prayed in the writ petition that the Commissioner, the authority, under sub-section (4) of Section 27, should decide the matter afresh, it is no more open to the petitioner to challenge the jurisdiction of the commissioner to decide the said objection. However, the land being surplus land, it can be disposed of and settled in terms of Chapter IV of the 1960 Act. Thus, the said land can very well be dealt with under Section 27. However, the land being surplus land, it can be disposed of and settled in terms of Chapter IV of the 1960 Act. Thus, the said land can very well be dealt with under Section 27. Accordingly objection can be filed under sub-section (4) thereof and it would be well within the jurisdiction of the Commissioner the authority prescribed under subsection (4) to deal with the same. ( 17 ) ADMITTEDLY, there was a finding that the petitioner was not a landless labour in the order passed by the Commissioner. Such finding is a finding of fact. This Court sitting in writ jurisdiction, cannot enter into disputed question of fact. But in the present case, it was found by the Commissioner, which finding has since been admitted in the rejoinder-affidavit, that the petitioner is the son of Jeet Singh, grandson of Thakur Nahar Singh. Thus, this fact is not in dispute. In the counter-affidavit, it has been alleged that the family of the petitioner possess land and are not landless labourers. In the rejoinder-affidavit, the petitioner has pleaded that he has no land in his possession. He also contends that no land is recorded in his name. Despite specific statement that the petitioners family do possess land, no denial with regard thereto has been made in the rejoinder-affidavit. In absence of specific denial, it is to be presumed or an inference can safely be drawn that the family of the petitioner do possess land. ( 18 ) MR. S. P. Singh, learned counsel for the petitioners in his usual fairness has admitted that the petitioner is a Hindu and is governed by Mitakshara School of Hindu Law. By virtue of the principals of Mitakshara School of Hindu Law, every member of the family has a right in the property held by such a family. The petitioner does not disown the family. He does not claim that there has been any partition and that the petitioner himself constitutes a separate nucleus of a joint Hindu Family, distinct and different from that of his other member of the family. Thus, even if no land is recorded in favour of the petitioner, he cannot claim that he is not a member of the said family, which possess land. Thus. It cannot be said that he is a landless person. ( 19 ) IT is alleged that the petitioner is a landless labour. Thus, even if no land is recorded in favour of the petitioner, he cannot claim that he is not a member of the said family, which possess land. Thus. It cannot be said that he is a landless person. ( 19 ) IT is alleged that the petitioner is a landless labour. In order to qualify for allotment, of surplus land, one has to be a landless labour. Therefore, the qualification is not only landless, but he should also be a labourer. It is Insisted that the petitioner is a labourer. But the Commissioner has come to a finding that he is not a landless labourer. Whether the petitioner is a labourer or not, is a question of fact. This Court cannot decide such dispute on the basis of assertion of the petitioner that he is a labourer and then landless. We have already found that he is not landless. Therefore, even if he is a labourer, though the same has been disputed by the respondents in their counter-affidavit and it has also been found by the Commissioner though not specifically but in conjunction, he is not a landless labourer. ( 20 ) THUS, the petitioner has not been able to make out any legal right to get a Patta in his favour as landless labourer. It he has got a Patta from Gaon Sabha as such, in that event, such Patta has been granted dehors the provisions contained in Section 198 sub-sections (1) and (3 ). As such, it cannot be a valid Patta. Unless the same is valid, the petitioner cannot claim any right on the basis of such patta. ( 21 ) THEN again in view of Section 27 of 1960 Act, it is the Government, who can settle the land with the Gaon Sabha or the landless labourers, which has been declared surplus under the 1960 act. 1960 Act in Chapter IV has not provided any power to the Gaon Sabha to settle the land in favour of any person even within the scope and ambit of Section 193 of sub-sections (1) and (3), it is not alleged that the land was allotted to the Gaon Sabha under Section 27, sub-section (1 ). Then again any land allotted under Section 27, sub-section (1) to the Gaon Sabha, cannot be allotted to any one else. Then again any land allotted under Section 27, sub-section (1) to the Gaon Sabha, cannot be allotted to any one else. Inasmuch sub-section (1) prescribes that 15 acres of land has to be allotted, which should be available for community purposes. The land for community purposes is the land meant for usage by the whole community. It cannot be allotted to the individual like the petitioner. Any land in excess of 15 acres can also be allotted to the Gaon Sabha, but for the purposes of planting trees. growing fodder or for such other community purposes, as may be prescribed. Thus, the surplus land belonging to the Gaon Sabha cannot be utilized in any other purpose than community purposes. Therefore, if the petitioner claims that the land was allotted by virtue of Patta granted by the Gaon Sabha, in that event, it can safely be concluded that such grant is wholly without jurisdiction. Since the Gaon Sabha was not empowered to allot the land, therefore, the Patta, which had been allotted to it under Section 27 (1) of the 1960 Act. Is invalid patta. No where it has been contended that this land was allotted to the Gaon Sabha under section 27 (1) of the 1960 Act. ( 22 ) ON the other hand, this land was allotted in exercise of power under Section 27 (3) of the 1960 Act, by the Collector. It is specifically contended in the counter-affidavit by the private respondents that the land was allotted to them in 1969 by the Collector, who had executed a deed of lease in their favour. This specific averment has not been denied or disputed, specifically in the rejoinder-affidavit. Therefore, the petitioner cannot claim any legal right on the basis of Patta granted by the Gaon Sabha. which is void ab initio. Even if for the sake of argument, it is assumed that the petitioner was granted Patta by the Gaon Sabha for a period of 5 years in 1969 and that the Collector had granted the said Patta in 1969 during the subsistance of the petitioners patta for 5 years, still then the Collector having jurisdiction under sub-section (3) of Section 27 of 1960 Act and the Gaon Sabha having no such jurisdiction under any of the provisions of chapter IV of the 1960 Act, the Patta granted by the Collector under Section 27 (3) shall prevail. ( 23 ) THEN again, though, however, the petitioner has alleged that he was granted Patta in 1969 for 5 years, but he has not annexed any copy of such Patta along with the writ petition. Though at the Bar, learned counsel for the petitioner contends that he is in possession of the original Patta, but the same cannot be looked into because the same has not been made a part of the proceedings before this Court. Therefore, the pleading that the petitioner had a Patta in his favour for a period of 5 years also does not bear out from the records. In absence of such pleading, it is not open to the petitioner to claim any legal right on the basis thereof. ( 24 ) FOR all these reasons. I do not find any merit in this writ petition. ( 25 ) THE writ petition, therefore, fails, and is accordingly dismissed. No. costs. .