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2001 DIGILAW 1117 (ALL)

YOG SANSTHAN v. COLLECTOR, MORADABAD

2001-12-03

ASHOK BHUSHAN

body2001
ASHOK BHUSHAN, J. ( 1 ) HEARD Sri D. V. Jaiswal, counsel for the petitioner. ( 2 ) THIS writ petition has been filed by the petitioner praying for issue of a writ of certiorari quashing the Order dated 22. 3. 2001 passed by the Collector, Moradabad and the Order dated 1. 8. 2001 passed by the Commissioner, Moradabad. ( 3 ) THE facts of the case as emerge from the pleadings of the parties are : petitioner claimed to be a registered society registered under the Societies Registration Act. Land Management Committee, Lakari Fazalpur, tahsil and district Moradabad passed a resolution on 30. 12. 1993 for allotment of 0. 62 decimals land of plot No. 1549 which was recorded as rasta in favour of the petitioner. The said resolution is claimed to have been approved by the Sub-Divisional Officer on 12. 9. 1994. The petitioner has further claimed that the consolidation Officer vide his Order dated 27. 5. 1996 also directed that the name of the petitioner be recorded over plot No. 1549 area 0. 62 decimals who Ordered that from 0. 62 decimals the name of Gaon Sabha (rasta) be expunged and the name of Yog Sansthan, sansthapak Sri Prahalad Narain Khanna son of Munna Lal Khanna resident of Bartan Bazar. Moradabad be recorded. Respondent No. 4 filed an application under Rule 115p of U. P. Zamindari Abolition and Land Reforms Rules before the Collector for canceling the allotment In favour of the petitioner. The allegation in the application was that the land is recorded as rasta and by allotment of this land rasta will come to an end. It was further alleged that the respondent No. 1 is not an eligible person and procedure for allotment was not followed. An objection was filed by Prahalad Narain Khanna Founder of Yog Sansthan. It was stated in the objection that objector is only Founder and Director and the application ought to have been filed against Yog Sansthan. It was stated that the land is left out from the land of rasta and is not being used as rasta. It was stated that the Yog Sans than is a charitable society. It was further stated that the complainant is not an aggrieved person. The Collector by his Order dated 22. 3. It was stated that the land is left out from the land of rasta and is not being used as rasta. It was stated that the Yog Sans than is a charitable society. It was further stated that the complainant is not an aggrieved person. The Collector by his Order dated 22. 3. 2001 cancelled the lease in favour of the petitioner and directed the land to be recorded In category of rasta. Against this Order the petitioner filed a revision before the Commissioner under Section 333 of U. P. Zamindari Abolition and Land Reforms Act. The revision has been rejected by the Commissioner by his Order dated 1. 8. 2001. The petitioner has come up in this writ petition challenging the Order dated 22. 3. 2001 of the Collector. Moradabad and the Order dated 1. 8. 2001 passed by the Commissioner. Moradabad. ( 4 ) THE counsel for the petitioner submitted that the petitioner is eligible person and the allotment in favour of the petitioner was made under Rule 115m. The allotment in favour of the petitioner was made for charitable purpose. Counsel for the petitioner secondly submitted that the land was allotted to the petitioner after getting the category of the land changed from rasta. The counsel for the petitioner has placed reliance on the decision of this Court in Padam Chand and others v. State of U. P. and others. 1999 RD 34. Reliance has also been placed on Union Bank of India v. Khader International Construction and Others. 2001 (3) AWC 2017 (SC ). ( 5 ) 1 have heard counsel for the petitioner and perused the record. The grounds on which the allotment (n favour of the petitioner has been cancelled and have found favour with both the authorities below are : (1) The petitioner is a private institution and is not eligible for allotment. (2) The land allotted to the petitioner is recorded as rasta in the revenue records which could not have been allotted to the petitioner without first getting the category of land changed. ( 6 ) THE first question which is required to be considered in the present case Is as to whether the petitioner falls In any eligible category in whose favour allotment can be granted under the U. P. Zamindari Abolition and Land Reforms Act and Zamindari Abolition and Land Reforms Rules. Both the authorities, i. e. . ( 6 ) THE first question which is required to be considered in the present case Is as to whether the petitioner falls In any eligible category in whose favour allotment can be granted under the U. P. Zamindari Abolition and Land Reforms Act and Zamindari Abolition and Land Reforms Rules. Both the authorities, i. e. . the Collector and Commissioner have found that the petitioner does not fall in any of the eligible categories. ( 7 ) CHAPTER VII of the U. P. Zamindari Abolition and Land Reforms Act, 1950, deals with Gaon sabhas and Land Management Committees. Section 117 provides that the State Government may declare by general or special Order that land, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove which had vested in the State shall vest in gaon Sabha or any other local authority. Section 122a provides that Land Management committee shall be charged, for and on behalf of the Gaon Sabha with the general superintendence, management, preservation and control of all the land falling within the village boundary. Sub-section (2) of Section 122a enumerates the functions and duties of the Land management Committee. Section 122c provides for allotment of land for housing site for members of Scheduled Castes, agricultural labourers, etc. Subsection (1) of Section 122c provides that the Assistant Collector of his own motion or on the resolution of the Land management Committee, may earmark any of the classes of land as mentioned for the provision of abadi sites for the members of the Scheduled Castes and the Scheduled Tribes and agricultural labourers and village artisans. Section 122c (1), (2) and (3) are extracted below : "122c. Section 122c (1), (2) and (3) are extracted below : "122c. Allotment of land for housing site for members of Scheduled Castes, agricultural labourers, etc.-- (1) The Assistant Collector in charge of the subdivision of his own motion or on the resolution of the Land Management Committee, may earmark any of the following classes of land for the provision of abadi sites for the members of the Scheduled Castes and the Scheduled tribes and agricultural labourers and village artisans : (a) lands referred to in clause (1) of Sub-section (1) of Section 117 and vested in the Gaon sabha under that Section ; (b) lands coming into possession of the Land Management Committee under Section 194 or under any other provisions of this Act : (c) any other land which is deemed to be or becomes vacant under Section 13 Section 14. Section 163, Section 186, or Section 211 ; (d) where the land earmarked for the extension of abadi and reserved as abadi site for Harijans under the U. P. Consolidation of Holdings Act. 1953, is considered by him to be insufficient, and land earmarked for other public purposes under that Act is available, then any part of the land so available. (2) Notwithstanding anything in Sections 122a. 195. 196, 197 and 198 of this Act, or Sections 4, 15, 16, 28b and 34 of the United Provinces Panchayat Raj Act. 1947, the Land Management committee may with the previous approval of the Assistant Collector in charge of the sub-division allot for purposes of building of houses, to persons referred to in sub-section (3): (a) any land earmarked under sub-section (1) ; (b) any land earmarked for the extension of abadi sites for Harijans under the provisions of the u. P. Consolidation of Holdings Act. 1953 ; (c) any abadi site referred to in Clause (iv) of subsection (1) of Section 117 and vested in the caon Sabha ; (d) any land acquired for the said purposes under the Land Acquisition Act, 1894. (3) The following Order of preference shall be observed in making allotment under Subsection (2)- (i) an agricultural labourer or village artisans residing in the village and belonging to a scheduled Caste or Scheduled Tribe ; (ii) any other agricultural labourer or village artisan residing in the village ; (iii) any other person residing in the village and belonging to a Scheduled Caste or Scheduled tribe. " ( 8 ) RULE 115l to Rule 115u of the Zamindari Abolition and Land Reforms Rules, 1952, deals with allotment of land for housing site. Rule 115l. A provides for abadi sites for preferential categories. The allotment in this Rule is for preferential categories as mentioned in Section 122c sub-section (3) which is for members of Scheduled Castes, Scheduled Tribes, agricultural labourers and village artisans or any other person residing in the village belonging to Scheduled castes and Scheduled Tribes. The next provision under Rules is Rule 115m which deals with other abadi sites. It provides that the abadi sites other than those referred to under Rule 115l and vested in the Gaon Sabha may be allotted for construction of buildings for residential or charitable purposes or for purpose of cottage industry in Order of preference as mentioned in the rule. Rule 115l and Rule 115m is quoted below : "115l. A Abadi sites for preferential categories.-- (1) The Assistant Collector-in-charge of the sub-division may, wherever land earmarked for the extension of abadi for Harijans under the provisions of the U. P. Consolidation of Holdings Act. 1953 and any other land of abadi site vested in Gaon Sabha is Insufficient to meet the housing requirements of persons referred to in sub-section (3) of Section 122c, proceed to earmark land for abadi sites in accordance with sub-section (1) of the said Section. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Before allotting housing sites to persons referred to in Sub-section (3) of Section 122c, the assistant Collector-in-charge of the Sub-division shall, in respect of each village, cause to be prepared the following lists and extracts : (i) a list in Z. A. Form 49d showing separately particulars of persons of the three categories mentioned in Sub-section (3) of Section 122c : (ii) a list in Z. A. Form 19e of lands enumerated in Subsection (2) of Section 122c ; and (iii) an extract of village map showing the plots given in the above list. (4) In making allotment of housing sites under this Rule, the Order of preference mentioned in sub-section (3) of Section 122c shall be observed. (5) No premium shall be charged for allotment of housing sites under this Rule. (4) In making allotment of housing sites under this Rule, the Order of preference mentioned in sub-section (3) of Section 122c shall be observed. (5) No premium shall be charged for allotment of housing sites under this Rule. "115m. Other abadi sites.-- (1) Abadi sites other than those referred to in Rule 115l and vested in a Gaon Sabha may be allotted for construction of buildings for residential or charitable purposes or for purposes of cottage Industry in the following Order of preference : (a) a landless agricultural labourer or a village artisan residing in the village ; (b) a bhumidhar, sirdar or asami residing in the village and holding land less than 1. 26 hectares (3. 125 acres) ; (c) any other person residing in the village. (2) Every allottee under this Rule shall be required to deposit an amount equal to 40 times of the rent of the land calculated at hereditary rates which shall be credited to the Gaon Fund : provided that no premium shall be charged in respect of site allotted for charitable purpose. " ( 9 ) PETITIONER has claimed allotment of land under Rule 115m. Counsel for the petitioner referred to Sub-section (3) which defines "charitable purpose" and has submitted that petitioners society is engaged in charitable purpose, hence is eligible for allotment. Rule 115m talks about three categories which are entitled for allotment. Petitioner does not claim in category a and b and is claiming to be included In category c, i. e. , "any other person residing in the village". The question to be seen is as to whether the petitioner falls in category c as mentioned above. Two key words which require consideration are words "person" and "residing". The word "person" has not been defined in U. P. Zamindari Abolition and Land Reforms Act or in Zamindari abolition and Land Reforms Rules. 1952. U. P. General Clauses Act. 1904, defines the word "person" in Section 4 (33) which is extracted below : "4. Definitions.--In all (Uttar Pradesh) Acts, unless there Is anything repugnant In the subject or context : (33) "person" shall include any company or association or body of individuals, whether incorporated or not ;" ( 10 ) ON the strength of the above definition, It is submitted that the petitioner falls within the word "person" as mentioned under Rule 115m since it is a registered society. Section 4 of the U. P. General Clauses Act provides that unless there is anything repugnant on the subject or context, the definition given in Section 4 is to be taken. It has now to be examined as to what is the meaning of word "person" in context of Rule 115m. Whether the word "person" used in Rule 115m denotes a natural person or the person as defined in Section 4 (33 ). has to be read under rule 115m. As noted above. Section 122c in the Act and Rule 115l and Rule 115m deal with allotment of land for housing sites. Words "any other person in the village" has also been used In section 122c (3) (iii) of the Act. The third category which has been mentioned under sub-section (3) of Section 122c only refers to persons which can be natural persons. Category (1) deals with agricultural labourers or village artisans. Naturally agricultural labourers or village artisans have to be natural persons belonging to Scheduled Castes and Scheduled Tribes. Category (2) again refers to agricultural labourers or village artisans residing in the village (other than Scheduled Castes and Scheduled Tribes ). The third category "any other person residing in the village and belonging to Scheduled Castes or Scheduled Tribes" also refers to natural persons. Since there cannot be any concept of artificial or juridical person belonging to scheduled Castes and Scheduled Tribes. Thus provisions of Section 122c refers to categories of persons which are all natural persons. The purpose of Section 122c is allotment of land for housing site. The object is to allot housing sites so that persons belonging to categories mentioned therein may be relieved of housing problems so as to advance their welfare and the functions of the Land Management Committee is development of abadi sites. Prom the above, it is clear that the words "other person" used in Section 122c have been used in context of natural person and if definition as given in Section 4 (33) of U. P. General Clauses Act, 1904, is read in section 122c (3), the same will lead to absurdity and repugnancy. ( 11 ) RULE 115 including its various sub-rules deals with allotment of land for housing sites. ( 11 ) RULE 115 including its various sub-rules deals with allotment of land for housing sites. Rule 115l, Rule 115m and other rules have now to be examined to find out as to whether they contemplate allotment of housing site to only natural persons or to persons as defined in Section 4 (33) of U. P. General Clauses Act, 1904. Rule 115l refers to allotment of abadi sites for preferential categories as mentioned in Section 122c Sub-section (3 ). Thus, Rule 115l refers only to natural persons since as held above, the categories under Subsection (3) of Section 122c only refers to natural persons. Category a in Sub-rule (1) of Rule 115m refers to landless agricultural labourers or village artisans residing in the village. This again leads to natural person since no artificial or juridical person can be agricultural labourer or village artisan. Category b refers to bhumidhar, sirdar or asami residing in the village and holding land less than 1. 26 hectares. This category intends to refer those bhumidhar, sirdar or asami who are residing in the village and have land less than 1. 26 hectares. The object is to allot land to those bhumidhars, sirdars or asamis who are residing in the village and have land up to certain extent only. This again intends to be natural persons. If other two categories mentioned in categories a and b are any Indication, category c can also be presumed to be referring to natural persons. However, examination of other rules of Rule 115 throw sufficient light. ( 12 ) RULE 115r provides that allottee shall have no right to transfer the land, site or house within a period of ten years from the date of the allotment. The proviso to the said Rule is important which says that the restriction regarding the period of ten years shall not apply to the heirs of a deceased allottee. The proviso Indicates that allottee is a natural person whose death is also contemplated. Rule 115r is quoted below : "115r. The proviso to the said Rule is important which says that the restriction regarding the period of ten years shall not apply to the heirs of a deceased allottee. The proviso Indicates that allottee is a natural person whose death is also contemplated. Rule 115r is quoted below : "115r. (1) Where any land or site is allotted in accordance with Rules 115l to 115-Q and house is built thereon, then, subject to the provisions of Sub-rule (2), the allottee shall have no right to transfer such land, site or house within a period of ten years from the date of the allotment : provided that the restriction regarding the period of ten years shall not apply to the heirs of a deceased allottee. (2) Subject to the provisions of Rules 115l or 115-Q all allotments of land or site be subject to the following conditions, namely : (a) the allottee as well as his heirs shall have a heritable Interest in the land or site so allotted ; (b) the allottee and his heirs shall not be liable to ejectment ; (c) the succession shall be governed by the personal law to which the allottee was subject to ; (d) the allottee may mortgage, without possession, his interest In the land or the site allotted to him under Rules 115l to 115-Q as security for a loan taken from a Co-operative Society or from u. P. Harijan and Weaker Sections Housing Corporation, or from State Bank of India, or from any hank which is a Scheduled Bank within the meaning of Clause (e) of Section 2 of the reserve Bank of India Act, 1934 for construction of a house on the land or site so allotted ; and (e) if the building is abandoned or if the owner thereof dies without any heir entitled to succeed the land or site, the building shall vest in the Gaon Sabha. " ( 13 ) SUB-RULE (2) of above Rule further reveals that succession to the allottee shall be governed by personal law. Sub-clause (e) of Sub-rule (2) contemplates that this again Indicates that the allotment is contemplated to natural persons. ( 14 ) THE scheme of the Rules as extracted above clearly intends that the allotment Is contemplated to natural person and the extended definition of "person" as given in Section 4 (33)is not contemplated. Sub-clause (e) of Sub-rule (2) contemplates that this again Indicates that the allotment is contemplated to natural persons. ( 14 ) THE scheme of the Rules as extracted above clearly intends that the allotment Is contemplated to natural person and the extended definition of "person" as given in Section 4 (33)is not contemplated. ( 15 ) THE above conclusion is further reinforced by taking into consideration the other word "residing" which clarifies the word "person". The Law Lexicon by P. Ramanatha Aiyar, 1997 second Edition defines the word "reside" as follows : "the word "reside" where there is nothing to show that it is used in a more extensive sense, denotes the place where an individual eats, drinks and sleeps, or where his family or his servants eat, drink and sleep" (per Bayley, J. . R. v. North Curry, 4 Bandc 959 ). " ( 16 ) THE Division Bench of Madras High Court had occasion to consider the word "reside" and madras High Court in Azizuddin and Company v. Union of India, AIR 1955 Mad 345 . held in paragraph 3 : "it may be taken as now well established that the word "resides" must be taken to refer to natural persons and not to legal entitles, such as limited companies or Governments. (Vide govindarajulu Naidu v. Secretary of State. AIR 1927 Mad 689 at pages 690. 692 (A ). " ( 17 ) FROM the above, It Is clear that Section 122c as well as Rules 115l and 115m of the Rules contemplate allotment of site only to natural persons. Natural persons may be allotted abadi site under Rule 115m for charitable purposes or for purpose of cottage industry. In view of the above. It is held that the petitioner who is registered society was not eligible for allotment under rule 115m and no error was committed by the respondents in cancelling the lease granted In favour of the petitioner. ( 18 ) THE judgment of this Court in Padam Chand and others (supra) does not help the petitioner in any manner. In the aforesaid case, this Court held that the land which was earmarked as abadi site for allotment under Section 122c could not have been allotted to the petitioner of that case since he did not fall in any of the preferential categories. In the aforesaid case, this Court held that the land which was earmarked as abadi site for allotment under Section 122c could not have been allotted to the petitioner of that case since he did not fall in any of the preferential categories. It was held in paragraph 10 of the aforesaid judgment: "in my opinion, the disputed land which was initially banjar was recorded as abadi and was earmarked for allotment to preferential category of persons mentioned in Section 122c (3] of the act. The disputed land, in my opinion, was not abadi site which had vested in Gaon Sabha so as to be treated other than abadi sites referred to under Rule 115l available for allotment. Thus. In my opinion, the Collector has rightly held in adjudicating the matter under sub-section (6) of section 122c of the Act that the land was earmarked as abadi site for allotment under Section 122c and the petitioners did not fall in any of the preferential category indicated therein. " ( 19 ) THE second case which was relied by the counsel for the petitioner is Union Bank of India (supra ). In the aforesaid case, the Apex Court considered the provisions of Order XXXIII, Rules 1 and 3 of the Civil Procedure Code. The Apex Court in the aforesaid judgment held that word "person" has to be given its meaning in the context in which It is used. The Apex Court in that case held that in Order XXXIII. Rule 3, the word "person" has been used in the context in which it gives right both to natural or juridical person to file a suit. It was held by the Apex Court in paragraph 26 : "26. Therefore, the word person has to be given its meaning in the context in which it is used. It refers to a person who is capable of filing a suit and this being a benevolent provision, it is to be given an extended meaning. Therefore, we are of the view that a public limited company, which is otherwise entitled to maintain a suit as a legal person, can very well maintain an application under Order XXXIII, Rule 1, C. P. C. We hold that the word person mentioned in Order XXXIII includes not only a natural person but other juridical persons also. Therefore, we are of the view that a public limited company, which is otherwise entitled to maintain a suit as a legal person, can very well maintain an application under Order XXXIII, Rule 1, C. P. C. We hold that the word person mentioned in Order XXXIII includes not only a natural person but other juridical persons also. The appeal is, therefore, without any merit and dismissed without any Orders as to costs. " Thus, the aforesaid Judgment of the Apex Court does not help the petitioner in any manner, rather it clearly lays down that the word person has to be given its meaning in the context in which it is used. As discussed above, the context in which the word person has been used in rule 115m is with regard to natural person. ( 20 ) THE second ground on which the lease of the petitioner has been cancelled also needs to be considered. From the pleadings in the writ petition specially the copy of the resolution which has been filed by the petitioner as Annexure-3 to the writ petition, it is clear that the plot No. 1549 is recorded as rasta. The plot which was recorded as rasta could not have been proceeded to be allotted nor any agenda or notice can be issued by the Land Management Committee for such allotment, even under Rule 115m allotment of abadi sites is contemplated. Plot which is rasta cannot be allotted. The records of the writ petition also do not reveal as to at what point any decision was taken to convert the category of land from rasta to abadi site. To the contrary, the order of the Consolidation Officer which has been filed as Annexure-5 to the writ petition indicates that the land continued to be recorded as rasta and the petitioners name was directed to be recorded on the aforesaid land by deleting the name of rasta recorded in the name of Gaon sabha. Due to this reason also, the petitioner could not have been allotted plot in question and the allotment has rightly been set aside. ( 21 ) IN view of what has been said above, the writ petition lacks merit and is dismissed. .