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2015 DIGILAW 577 (ALL)

PHULA v. BOARD OF REVENUE ALLAHABAD

2015-03-26

ANJANI KUMAR MISHRA

body2015
JUDGMENT Hon’ble Anjani Kumar Mishra, J.—Heard Shri Pradeep Kumar Rai, learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. The instant writ petition arises out of a suit under Section 167 of the U.P. Zamindari Abolition and Land Reforms Act and is directed against the order dated 5.11.2008 passed by the Collector and the order dated 8.9.2014 whereby the Board of Revenue has dismissed the revision of the petitioner and affirmed the order passed by the Collector. By these orders, the land in question, namely half portion of land 114 area 0.0057 hectares had been ordered to vest in the State. 3. The land in question was recorded in the name of one Chokat, who belonged to the scheduled caste. The said Chokat applied for permission to sell half portion of plot No. 114. The Additional Commissioner (Finance and Revenue by his order dated 23.9.2003, granted the permission subject to the condition that the vendor would purchase land equivalent to or more than that sold by him, failing which the permission would stand automatically rescinded. 4. In pursuance of the aforesaid permission Chokat executed a sale-deed in favour of the petitioners on 29.9.2003. 5. The suit was instituted by the District Government Counsel under Section 167 of the Act and was registered as No. 13 of 2007. After hearing the parties, the Collector by his order dated 5.11.2008, directed the land in question to vest in the State as the conditions specified in the permission of the ADM (Finance and Revenue) had not been complied with. 6. The consequential revision filed by the petitioner was dismissed by the Board of Revenue. Hence this writ petition. 7. Shri Pradeep Kumar Rai, learned counsel for the petitioner has submitted that proceedings had been initiated at the instance of the Government Advocate. No authority letter, authorizing him to initiate the proceedings as required under Rule 114 (4) was filed alongwith the application and, therefore, the proceedings were not maintainable and were wholly unauthorized. 8. The second submission of the learned counsel for the petitioner is that the condition imposed while granting permission was a condition imposed upon the petitioners’ vendor and was, therefore, not binding upon the petitioners and no order, adverse to the petitioners could be passed on its basis. 8. The second submission of the learned counsel for the petitioner is that the condition imposed while granting permission was a condition imposed upon the petitioners’ vendor and was, therefore, not binding upon the petitioners and no order, adverse to the petitioners could be passed on its basis. The petitioners are bona fide purchasers who had purchased the land after examining the permission granted in favour of the vendor. Merely because some subsequent action was required to be taken by their vendor which even if not taken, would not render the sale in favour of the petitioners’ void or illegal and, therefore the impugned orders deserve to be set aside. 9. I have considered the submission made by learned counsel for the petitioners and have perused the record. 10. In support of the first submission, learned counsel for the petitioners has placed reliance on Rule 114 (4) of the Rules framed under the U.P. Zamindari Abolition and Land Reforms Act. In the context of the submission made, it would be relevant to refer to the Rule 114 and its sub-Rules which are, therefore, extracted below: “114 (1). For the conduct of suits, applications and other proceedings, including objections, appeals, revisions, writs and special appeals, by or against the Gaon Sabhas, the following shall be appointed in the manner provided in the sub-rule (2) as panel lawyers for the Court specified against each: (a) ...................... (c) ...................... (d) ...................... (e) ...................... (f) ...................... (g) ...................... (h) ...................... (2) Manner of appointment—(a) The Tahsil Panel Lawyers shall be appointed by the Collector of the district. (b) Unless otherwise directed by the Government in any particular case or cases, a Government Counsel appointed by the Government to conduct suits for or against the Government in the revenue Courts at district headquarters shall be deemed to have been appointed by the Government as District Gaon Sabha Panel Lawyer (Revenue) for that district under clause (e) of sub-rule (1). Similarly, a Government Counsel appointed by the Government to conduct cases for or against the Government before the Civil Courts at the district headquarters or before the Court of Commissioner/and Additional Commissioner or the Board of Revenue or before the High Court shall be deemed to have been appointed respectively by the Government as District Gaon Sabha Panel Lawyer (Civil), Divisional Gaon Sabha Panel Lawyer (Revenue), Gaon Sabha Panel Lawyer (Board of Revenue) and the Gaon Sabha Panel Lawyer (High Court). (3) Terms and conditions.-The terms of a Panel Lawyer referred to in clause (a) or clause (d) of sub-rule (2) shall be three years. It may be renewed thereafter for another period not exceeding three years, if his work, conduct and integrity is found to be satisfactory. But it shall be in the exclusive discretion of the appointing authority to terminate the appointment at any time during the first or subsequent terms without assigning any reason therefor. (4) The appointment of all the Gaon Sabha Panel Lawyers referred to in sub-rule(2) shall be subject to the following terms and conditions- (a) No Panel Lawyer shall institute, contest or conduct any case unless he is authorized to do so by the Sub-Divisional Officer, or the Collector, or the Board of Revenue or the Government, as the case may be. He will also be under a disability to appear in any case against a Gaon Sabha except with the permission of the Government or the Collector of the district in which the Gaon Sabha is situate. This permission may be granted if there is no conflict of interest between the party for which he appears and the Gaon Sabha. (b) Where State is impleaded alongwith the Gaon Sabha, the Panel Lawyer shall unless, directed otherwise by the Collector, also defend the interest of the State.” 11. A bare reading sub rule (4) of Rule 114 relied upon by Shri Rai, clearly indicates that it pertains to Gaon Sabha panel lawyers for the purposes of litigation for or against the Gaon Sabha. This sub rule 4 does not refer to Government counsel appointed by the Government to conduct suits for or against the Government in the Revenue Court in accordance with sub-rule 2b of the Rule 114. 12. This sub rule 4 does not refer to Government counsel appointed by the Government to conduct suits for or against the Government in the Revenue Court in accordance with sub-rule 2b of the Rule 114. 12. A conjoint reading of the provisions of Rule 114, extracted above, would show that the Government counsel and the Gaon Sabha Panel lawyers are separate entities. It is no doubt true that there exists a deeming clause namely Rule 114 (2) (b) where under a Government counsel will be deemed to be a Gaon Sabha Panel Lawyer (Revenue). However this deeming clause will apply only if a Gaon Sabha Panel Lawyer has not been appointed as provided under the various sub rules of Rule 114 (1). 13. It is clear from the record that the application whereupon the instant proceedings were initiated had been filed on behalf of the State Government and not on behalf of the Gaon Sabha and, therefore, the deeming clause referred to above, would not come into play. For the same reason, the provisions contained in sub-rule (4) of rule 114 have no application in the instant case and the permission referred to therein was not required to be furnished. 14. This Court is, therefore, constrained to hold that the application whereupon the suit under Section 167 was registered had been filed by Government Counsel on behalf of the State and, therefore, he was not required to furnish any permission or authorization by the Sub-Divisional-Officer or the Collector or the Gaon Sabha or the Board of Revenue as provided in Rule 114 (4) (a) and, therefore, the submission of the learned counsel for the petitioner, lacks substance. Such permission or authorisation is required only by the Gaon Sabha Panel lawyers for institution, conducting or contesting any case by or on behalf of the Gaon Sabha. The suit under Section 167 of the Act, involved only the interest of the State and not of the Gaon Sabha. The suit was on behalf of the State and the Gaon Sabha was not a party therein and therefore Rule 114 (4) is not attracted and has absolutely no application in the instant case. 15. The second argument raised by the learned counsel for the petitioner that the condition in the permission granted by the ADM (Finance and Revenue) was not applicable to the petitioner also cannot accepted. 16. 15. The second argument raised by the learned counsel for the petitioner that the condition in the permission granted by the ADM (Finance and Revenue) was not applicable to the petitioner also cannot accepted. 16. The permission for sale was granted subject to the condition that the vendor would purchase an equivalent amount of land after having sold his half share in the plot in question failing which, the permission would stand automatically rescinded. It is, therefore, clear that the composite permission involved two parts; sale by the land holder; followed by an equivalent purchase by him. The two conditions, therefore, formed part of the composite permission and it is not possible to bifurcate the two and treat them, separately. The permission for sale had been granted subject to certain conditions and failure to adhere to them would invalidate the permission as a whole. 17. Under the aforesaid circumstances, I am unable to agree with the submissions made by the learned counsel for the petitioner that the petitioners were bona fide purchasers and, therefore, would not be bound by the conditions specified in the order granting permission to their vendor to execute the sale-deed. 18. The permission to sell the land was conditional and the condition has admittedly not been complied with by the petitioners’ vendor and especially in view of the fact that the permission clearly provided that in case, the condition of purchase of an equivalent amount of land by the vendor was not a complied with, the permission would stand automatically rescinded, the consequence specified naturally followed. 19. Under the circumstances, and due to non-compliance of the condition of purchase of an equivalent amount of land the sale-deed in favour of the petitioners must be held to be without permission. 20. Section 157 (a) clearly lays down that a sale-deed by a member of the scheduled caste in favour of the one who does not belong to the scheduled caste, executed without permission for the same, is a void transaction and the land which is the subject-matter of such sale without permission, will vest in the State. 21. The orders impugned, therefore, cannot be faulted with and since the submissions made by the learned counsel for the petitioners have been repelled, the writ petition deserves to be and is, accordingly dismissed. ——————