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2016 DIGILAW 3510 (ALL)

Ramesh v. Collector, Unnao

2016-10-20

DEVENDRA KUMAR UPADHYAYA

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JUDGMENT Devendra Kumar Upadhyaya,J. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. The petitioner who was granted certain land situated in village Mawai, Pargana Maurawan, Tehsil Purwa, District Unnao under the provisions of U.P. Bhoodan Yagna Act, 1952, has instituted these proceedings under Article 226 of the Constitution of India for assailing the validity of the order dated 13.8.2004 passed by the Additional Collector (Finance & Revenue), Unnao whereby the patta executed in his favour by Bhoodan Yagna Committee under the provisions of Bhoodan Yagna Act, 1952 in respect of Gata No.5619-M, having an area of 3 bigha, 10 biswa has been cancelled. 3. The petitioner was granted patta by Bhoodan Yagna Committee on 21.9.1990 in respect of plot no.5619-M having an area of 3 bigha 10 biswa and also in respect of plot no.2667-M having an area of of 1 bigha, 10 biswa.The said patta is on record as Annexure 1 to the writ petition. 4. After lapse of the period of ten years, a notice was issued to the petitioner on 28.8.2000 by the Additional Collector (Finance & Revenue), Unnao requiring him to show cause as to why the patta granted to him in respect of Gata No.5619-M may not be cancelled.The said show cause notice dated 28.8.2000 recited the grounds on which the cancellation of patta in respect of the said Gata No.5619-M was proposed. The show cause notice indicates that on the land in dispute there exists Ghuras and houses of the villagers and secondly, that the petitioner does not reside in village Mawai as he resides in village Anwarpur, which is at a distance of 30 kms from Mawai and that he does not have any dwelling house in village Mawai and as such no possession can be handed over to him in respect of plot no.5619 situated in village Mawai. 5. The petitioner submitted his reply to the said show cause notice on 12.9.2000 to the Additional Collector (Finance & Revenue) stating therein interalia that though the petitioner is not the original resident of village Mawai, however, he has been residing with his Maternal Uncle in village Bhawanipur, Galibpur, Pargana Maurawan, District Unnao from where the distance of village Mawai is 1 km. In reply, it was further submitted by the petitioner that Bhoodan Yagna Committee had granted patta of two plots in his name namely plot no. In reply, it was further submitted by the petitioner that Bhoodan Yagna Committee had granted patta of two plots in his name namely plot no. 5619-M having an area of 3 bigha 10 biswa and plot no.2667 having an area of 1 bigha, 10 biswa and that the petitioner is in possession over the said plots. The petitioner further stated in his reply that it is wrong to state that on plot no.5619 there exits houses or Ghuras. The petitioner further stated that the plot no.5619 comprises of more area than the area of 3 bigha 10 biswa which has been allotted to him and on the spot there still remains an area of 1 bigha 1 biswas in the said plot no. 5619 which has not been allotted to anyone else. In this view, the submission of the petitioner in the reply was that he had moved an application for demarcation of plot no..1619 for an area of 3 bigha 10 biswa which was allotted to him and instead of demarcating his land in plot No.5619, grant has been illegally cancelled. 6. The petitioner has annexed copy of CH Form No.23 part-1, a perusal of which reveals that the name of the petitioner was recorded under the orders passed by the Consolidation Officer in Case No.913 on 9.6.1994. The CH Form No.-23 makes an endorsement of the said order and records thereon that in respect of plot nos. 5619 and 2667 over an area of 3 bigha 10 biswa and 1 bigha 1 biswa respectively, the name of Bhoodan Yagna Samiti be struck off and in that place, the name of the petitioner be recorded. The petitioner has also enclosed the copy of Form-CH No. 45 as Annexure 6 to the writ petition wherein the name of the petitioner has been recorded as category-2 tenure holder i.e. Bhoomidhar non-transferable rights. A perusal of CH form 45 also reveals that plot no. 5619 has been assigned new plot no. 8401 and similarly, plot no. 2667 has been assigned new plot no.5343. The CH Form 45 further establishes the fact that area of old plot nos. 5619 and 2667-M i.e. 3 bigha and 10 biswa and 1 bigha 10 biswa respectively, have been mentioned as the area of new plot nos. 8401 and 5343. 8401 and similarly, plot no. 2667 has been assigned new plot no.5343. The CH Form 45 further establishes the fact that area of old plot nos. 5619 and 2667-M i.e. 3 bigha and 10 biswa and 1 bigha 10 biswa respectively, have been mentioned as the area of new plot nos. 8401 and 5343. Thus, it is beyond any doubt that petitioner was granted patta way back in the year 1990 and during consolidation proceedings, no objection of any sort was raised from any corner as to the entitlement to the petitioner to hold the said two plots namely plot nos. 5619 and 2667-M having an area of 3 bigha 10 biswa and 1 bigha 10 biswa respectively. 7. Apart from the aforesaid facts which go on to establish the right of the petitioner over the plots in question, it is also worth noticeable that notice for cancellation of patta granted to the petitioner by Bhoodan Yagna Committee way back in the year 1990 was issued under Section 15-A of U.P. Bhoodan Yagna Act, 1952 after a period of ten years i.e. on 28.8.2002. Though Section 15-A of the said Act does not describe any limitation for issuing notice for initiating action for cancellation of the grant made under the said Act, however, it can be expected of the authority concerned that any such proceedings under the said Act has to be initiated and completed within a reasonable time. The dispute appears to have arisen only after the petitioner prayed that the area of 3 bigha 10 biswas in the old plot no. 5619 (new plot no.8401) be demarcated. 8. Learned counsel for the petitioner has stated that the total area of old plot no. 5619 is 7 bigha 1 biswa out of which 3 bigha 10 biswa area was granted to the petitioner under section 14 of the U.P. Bhoodan Yagna Act, 1952 as grant. He has also stated that out of the total area of 7 bigha 1 biswa which comprised in the old plot no.5619, apart from the petitioner, two other persons were also given grants. It has also been contended by learned counsel for the petitioner that even after grant for certain area to the petitioner and other two persons, an area of about 1 bigha 1 biswa out of the old plot no.5619 remains unallotted. It has also been contended by learned counsel for the petitioner that even after grant for certain area to the petitioner and other two persons, an area of about 1 bigha 1 biswa out of the old plot no.5619 remains unallotted. In this view of the matter, submission is that it is possible that Ghuras and abadi if any, exists on the remaining portion of 1 bigha 1 biswa on the old plot no. 5619 and not on the area which was allotted to the petitioner. 9. The Additional Collector (Finance & Revenue) while passing the impugned order has taken into account the report of Sub Divisional Magistrate dated 31.5.2000 and another report submitted by Tehsildar dated 11.12.2001, however, learned Standing Counsel has not brought the said report on record. In any case, so far as the entitlement of the petitioner for an area of 3 bigha 10 biswa in old plot no. 5619 (New Plot No. 8401) is concerned, I have no doubt that he has legal right over the said plot and that he was validly and legally allotted the said land under section 14 of U.P. Bhoodan Yagna Act, 1952 by the Bhoodan Yagna Committee. 10. It is further noticeable that cancellation of any grant made under the said Act 1952 can be made only on the ground available in Section 15-A. Section 15-A of the said Act provides that "the Collector may of his own motion and shall on the report of the Committee or on the application of any person aggrieved by the grant of any land made under section 14, whether before or after the commencement of Act, inquire into such grant, and if he is satisfied that the grant was irregular or was obtained by the grantee by misrepresentation of fraud, he may, cancel the same." The authority and the power vested in the Collector under section 15-A is thus to inquire into irregularity where the grantee is found to have misrepresented or committed any fraud. So far as the misrepresentation by the petitioner or fraud is concerned, the record of this case does not reveal any such factum which could have been taken into account by the Collector or Additional District Magistrate while passing the impugned order as show cause notice dated 28.8.2000 does not disclose any such ground of misrepresentation of fact or fraud. So far as the misrepresentation by the petitioner or fraud is concerned, the record of this case does not reveal any such factum which could have been taken into account by the Collector or Additional District Magistrate while passing the impugned order as show cause notice dated 28.8.2000 does not disclose any such ground of misrepresentation of fact or fraud. In respect of the reason indicated by the Additional Collector (Finance & Revenue) while passing the impugned order that the petitioner is not the resident of village Mawai where the land in dispute is situated is concerned, I may only indicate that admittedly, the petitioner belongs to the Scheduled Caste and further that section 14 (4) (b) of the Act, 1952 only states that the land situate in one village shall, as far as possible, be granted to persons residing in that very village. Thus, the said provision does not make any prohibition of grant under the said Act to a person residing in another village. 11. It is also noticeable that petitioner has submitted sufficient explanation as to why he was entitled to be given the grant in respect of the aforesaid plot Nos. 5619 and 2667 situated in village Mawai, though he is not the resident of the said village. It is possible, as generally happens in rural areas that a person may have certain reasons for residing at the house of his Maternal Grandfather or Maternal Uncle which is not something unusual which can be taken as exception for the purposes of cancelling the grant made to a landless member of the Society, who belongs to Scheduled Caste category. 12. For the aforesaid reasons, I have no hesitation to hold that the impugned order dated 13.8.2004 passed by the Additional Collector, (Finance & Revenue) Unnao under Section 15-A, U.P. Bhoodan Yagna Act, 1952 in case No. 35/2005, (State vs. Ramesh) as contained in Annexure 7 to the writ petition ought to be quashed, which is hereby quashed and the writ petition is allowed. 13. It is directed that the District Revenue Authorities shall demarcate the area of 3 bigha 10 biswa of old plot no. 5619 (new plot no. 8401) of the petitioner and put him in possession thereof within a period of three months from the date of production of certified copy of this order. 14. There shall be no order as to costs.