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2017 DIGILAW 2160 (ALL)

RAM NIWAS v. STATE OF U. P.

2017-09-13

MAHESH CHANDRA TRIPATHI

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JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard Shri A.P. Tiwari, learned counsel for the petitioners and Shri Sanjay Kumar Singh, learned Standing Counsel for the State respondents. Shri S.K. Tiwari appears for respondent Nos. 6 to 11. 2. The petitioners are before this Court assailing the order dated 23.9.2014 passed by the third respondent i.e. Additional Commissioner (Judicial), Moradabad Division, Moradabad in Revision No. C-201413000093; order dated 28.1.1997 passed by the fourth respondent i.e. Additional District Magistrate, Badaun (Now District Shambhal) in Case No. 109 (92-93) as well as the notice dated 16.7.1990 issued by the fourth respondent and for directions to the respondents not to dispossess them from their respective land. 3. Record in question reflects that on 21.12.1989 the Land Management Committee granted lease in favour of 21 villagers, including the petitioners, of village Rajwana, Pargana Asadpur, Tehsil Gunnaur, District Shambhal for agricultural purposes and the same was approved by the Sub Divisional Magistrate, Tehsil Gunnaur, District Badaun on 21.3.1990. Thereafter the names of the petitioners were recorded in the revenue record on the strength of the lease so approved and all the allottees were given possession of the land in question. Some complaint was made for cancellation of lease on the ground that the resolution was wrongly passed in favour of several persons in which some of the persons were relatives of the Pradhan and some of the persons were relatives of Lekhpal, who was Secretary of the Land Management Committee, and no prior permission for allotment was taken from the Collector for allotment of the lease to the relatives of Pradhan as well as Secretary of the Land Management Committee. On the aforesaid complaint, the Sub Divisional Magistrate, Gunnaur submitted a report on 5.7.1990 to the effect that the allotment made in favour of 21 allottees was irregular for certain reasons. The fourth respondent issued notices to all the allottees under Section 198 of U.P. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred to as ‘1950 Act’) on 16.7.1990. All the allottees including the petitioners submitted their objections/reply to the notices on 5.11.1990. 4. The fourth respondent issued notices to all the allottees under Section 198 of U.P. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred to as ‘1950 Act’) on 16.7.1990. All the allottees including the petitioners submitted their objections/reply to the notices on 5.11.1990. 4. Finally, the Additional District Magistrate vide his order dated 28.1.1997 decided the Case No. 109 (1992-93) and held that Ajai Kumar, Jai Prakash belong to one family, Nanak Chand, Subhash Chand and Naresh Chand belong to one family, Chhatra Pal, Ram Rahees and Rajpal belong to one family, Ramesh and Som Vir belong to one family and Dropa and Ram Jeemal were not eligible for grant of lease. Rampati and Naththoo were sons of Badam Singh, Pradhan, who had land in three villages and Naththoo was minor as such, no land could have been allotted to these persons. Ramwati wife of Om Prakash was resident of village Garhi, Tehsil Bisauli and wife of cousin of Kushiram Lekhpal and son’s wife of Badam Singh, Smt. Premwati was resident of Dhanipur and was the aunt of Lekhpal. Rampal son of Om Prakash was minor and was son of Ramwati wife of Om Prakash, and real grandson of Badam Singh Pradhan. Naththoo was the son of Up-Pradhan Raghu. Ram Niwas and Pappoo were daughter’s son of Pradhan Badam Singh and resident of village Garhi. The allotments were found to be irregular in favour of the aforesaid persons and lease of these persons have been cancelled. 5. Against the aforesaid order, two revisions were filed - one revision being Revision No. 215/185/1996-97 was filed by Rampati and Naththoo, sons of Badam Singh and other revision, being Revision No. 303/203/1997-98 was filed by the State of U.P. The petitioners have not preferred any revision and silently they were waiting for the outcome of the revision filed by Rampati and Naththoo. Both the aforesaid revisions were heard and decided by a common order of Additional Commissioner dated 4.2.2014, whereby the revision of Rampati and Naththoo was allowed and the revision of the State of U.P. was dismissed. Both the aforesaid revisions were heard and decided by a common order of Additional Commissioner dated 4.2.2014, whereby the revision of Rampati and Naththoo was allowed and the revision of the State of U.P. was dismissed. Being aggrieved with the order dated 4.2.2014, the petitioners, even though at no point of time they had assailed the validity of the order dated 28.1.1997, had approached this Court by preferring Writ C No. 17385 of 2014 assailing the order dated 4.2.2014 and also prayed for direction commanding the respondents to accord an opportunity of filing a fresh revision against the order dated 28.1.1997 passed by the third respondent in Case No. 109/92-93 under Section 194 of the 1950 Act. The said writ petition was dismissed by this Court on 21.5.2014 holding that the petitioners were not aggrieved by the order dated 4.2.2014 and as such, they have no locus or authority to assail the validity of the said order. However, the leave was accorded to the petitioners to file the revision and satisfy the revisional Court. 6. In the garb of the order dated 21.5.2014, the petitioners had preferred the revision before the third respondent on 13.6.2014 alongwith an application under Section 5 of Limitation Act for condonation of delay. Consequently, the third respondent vide order dated 23.9.2014 had allowed the application under Section 5 of the Limitation Act and admitted the revision for disposal. Finally the said revision was dismissed vide order dated 23.9.2014 holding that after cancellation of the allotment in favour of the petitioners on 28.1.1997 the land in question was re-allotted in favour of other villagers. The revisionists filed a Case No. 38 (Ram Pati v. Sarnam and others) under Section 198 (4) of 1950 Act in the Court of Additional Collector (Finance/Revenue), Badaun and the same was dismissed vide order dated 20.7.2012. The said order was again subjected to challenge by Ram Pati before the Board of Revenue, U.P. at Allahabad in Civil Revision No. 50 of 2011-12 and the said case is pending consideration. The petitioners had preferred the revision without disclosing the said fact. They have not approached to the revisional Court with clean hands and as such, the revision filed by the petitioners was not maintainable and the same was dismissed. 7. The petitioners had preferred the revision without disclosing the said fact. They have not approached to the revisional Court with clean hands and as such, the revision filed by the petitioners was not maintainable and the same was dismissed. 7. Learned counsel for the petitioners precisely submits that at no point of time the petitioners had concealed any material facts, whereas the Case No. 38 was filed by Ram Pati, son of Badam Singh assailing the re-allotment dated 23.6.2009 in favour of 25 other villagers under Section 198 (4) of 1950 Act impleading 25 subsequent allottes alongwith the Land Management Committee. It has been claimed that the petitioners were not party in Case No. 38, which was instituted by Ram Pati, son of Badam Singh against Sarnam and others and as such, at no point of time the petitioners were before the Board of Revenue. The petitioners had no knowledge about the aforementioned proceeding and they had not concealed any material fact and as such, this Court should come for rescue and reprieve to the petitioners. 8. On the other hand, Shri Sanjay Kumar Singh, learned Standing Counsel has vehemently opposed the writ petition and submits that there is exhaustive procedure provided in the 1950 Act and the U.P. Zamindari Abolition and Land Reforms Rules, 1952 (in short, 1952 Rules) for grant of lease of agricultural land under the management of the Gaon Sabha. Once a finding of fact had been recorded by the concerned Sub Divisional Magistrate in the order dated 28.1.1997 that all the allotments were made contrary to the provisions and at no point of time the procedure had been adhered and the persons, who were not eligible for such benefits, have been extended the benefits, then in such situation the Competent Authority had rightly proceeded to reject the claim after according full opportunity to the petitioners. He has further apprised to the Court that in the present matter, the entire resolution has been passed behind back of the Pradhan (Chairman) and at no point of time the charge of Pradhan was assigned to the Up-Pradhan or any other person for convening such meeting. He has further apprised to the Court that in the present matter, the entire resolution has been passed behind back of the Pradhan (Chairman) and at no point of time the charge of Pradhan was assigned to the Up-Pradhan or any other person for convening such meeting. Various other discrepancies have also been highlighted regarding grant of lease to the ineligible persons and as such, no interference is required to be made by this Court under Article 226 of Constitution of India and the writ petition is liable to be dismissed. 9. Shri S.K. Tiwari, learned counsel for the respondent Nos. 6 to 11 submits that the fresh resolution had been passed in the present matter and the allotment had already been approved by the Sub Divisional Magistrate on 23.6.2009. The respondent Nos. 6 to 10 are interested parties and as such, their interest may also be ensured by this Court. He has placed reliance on the relevant revenue record, which has been brought on record alongwith the impleadment application whereby it has been claimed that the resolution has been approved by the Competent Authority i.e. Additional District Magistrate, Badaun in favour of applicants/proposed respondents on the basis of allotment, which was approved on 23.6.2009 and their names have also been recorded in the revenue record. The relevant Khatauni has also been brought on record. It has been claimed that the petitioners, who were fence sitters, were fully conscious that their claim has rightly been rejected on 28.1.1997 and only on the basis of the revisional order dated 4.2.2014, which has been passed in favour of Ram Pati and Naththoo, they have started agitating their rights and as such, their claims are liable to be rejected on this score. 10. The dispute relates to grant of lease of agricultural land under the management of the Gaon Sabha under the provisions of the then existing 1950 Act with the 1952 Rules. The provision, that allowed such grant of leases under which the aforesaid proceedings were undertaken, is Section 195 of the then 1950 Act. Section 195 of the 1950 Act reads as follows : “Section 195. The provision, that allowed such grant of leases under which the aforesaid proceedings were undertaken, is Section 195 of the then 1950 Act. Section 195 of the 1950 Act reads as follows : “Section 195. Admission to land.—The Land Management Committee with the previous approval of the Assistant Collector incharge of sub-division shall have the right to admit any person as bhumidhar with non-transferable right to any land (other than land falling in any of the classes mentioned in Section 132) where— (a) the land is vacant land, (b) the land is vested in the Gaon Sabha under Section 117, or (c) the land has come into the possession of Land Management Committee under Section 194 or under any other provisions of this Act.” 11. In order to appreciate the controversy in hand it would be relevant to have a glance of relevant provisions for allotment of the land by Land Management Committee. Rules 173 to 176 of 1952 Rules are quoted below hereinafter : “Section 195. Admission to land.—The Land Management Committee with the previous approval of the Assistant Collector incharge of sub-division shall have the right to admit any person as bhumidhar with non-transferable right to any land (other than land falling in any of the classes mentioned in Section 132) where— (a) the land is vacant land, (b) the land is vested in the Gaon Sabha under Section 117, or (c) the land has come into the possession of Land Management Committee under Section 194 or under any other provisions of this Act.” Rule 173 : Sections 195, 197 and 198 : Admission to land.—Whenever the Land Management Committee intends to admit any person to land under Section 195 or 197, it shall announce by beat of drum in the circle of the Gaon Sabha in which the land is situate at least seven days before the date of meeting for admission of land, the numbers of plots, their areas and the date on which admission thereto is to be made. 1. Grant of lease—Provisions not followed - In respect of resolution of Gaon Panchayat only 83 pattas were granted, complaints were made and inquiry conducted. It was found that pattas were granted on back date and in an irregular manner. Rule 173 of Rules was not followed. The Parganadhikari found that 25 pattas were granted against the rules to the persons who were not eligible. It was found that pattas were granted on back date and in an irregular manner. Rule 173 of Rules was not followed. The Parganadhikari found that 25 pattas were granted against the rules to the persons who were not eligible. Hence, pattas were cancelled. 2. Non-following of Rules—Effect of—As per findings recorded by Additional Collector, the provisions of Rules 173 and 174 of the Rules, framed under the Act, were not followed, neither there was any beat announcement nor list of landless persons was prepared nor provisions under Rules 174, 175, 176 were followed, hence, such allotment was wholly illegal. Rule 174 : On the said date, a meeting of the committee shall be held to select persons for admission to land as sirdar or asami as the case may be. A list of all the persons who are present and who express their desire to be admitted to the land shall be prepared in Z. A. Form 57-A. The list shall be drawn up separately in respect of the land to be settled to a sirdar and land to be settled to an asami. The names of the persons shall be arranged in the list in the order of preference laid down in Section 198. 174-A. [***] 174-AA. [***] 174-B. [***] Rule 175 : If the number of applicants does not exceed the number of intended to be settled on the land in respect of which announcement has been made under Rule 173, the Committee shall examine the eligibility of the person included in the list in Z.A. Form 57-A and take a decision regarding the plots of land to be settled with each such person. The Committee shall in the same meeting announce the names of the persons selected for settlement of land and also the revenue or rent to be fixed for the land proposed to be settled. The Committee shall in the same meeting announce the names of the persons selected for settlement of land and also the revenue or rent to be fixed for the land proposed to be settled. If the number of applicants belonging to the categories mentioned in clauses (c), (d) and (e) of sub-section (1) of Section 198 is more than the number with whom land is intended to be settled, the list of applicants shall be placed before a meeting of the residents of the village called by the Land Management Committee and such of the applicants shall be selected for allotment as are considered to be the most suitable on merits on the basis of a consensus be arrived at the meeting so convened. If such a consensus cannot be arrived at, the Land Management Committee shall draw lots to determine the person or persons with whom the land should be settled. 176. (1) After selecting the person or persons for admission to the land in accordance with Rule 175, the Committee shall prepare— (a) a list of persons so selected in Z.A. Form 57-B, (b) a certificate of admission to land in Z.A. Form 58, and (c) a counterpart in Z.A. Form 58-A. (2) The documents referred to in clauses (a) and (b) of sub-rule (1) shall be duly signed by the Chairman of the Land Management Committee but the document referred to in clause (c) shall be signed by the person so selected for admission of land. (3) The document referred to in sub-rule (1) shall then be forwarded to the Assistant Collector-in-charge of the Sub-Division alongwith - (a) a copy of the proceedings of the meeting of the Committee in which the decision to settle land was taken ; and (b) a certificate from the Lekhpal concerned to the effect that the particulars of the land mentioned in the list are correct, and that the admission of the land is in accordance with the provisions of the Act and the Rules. (4) The Assistant Collector-in-charge of the Sub-Division shall, on receipt of the documents, referred to in sub-rule (3) scrutinize the decision taken by the Committee and if he is satisfied that the decision of the Committee is in accordance with the Act and the rules made thereunder, he shall record his approval on the list in Z.A. Form 57-B and return the papers to the Land Management Committee wihtin a week of its receipt from the Chairman with the direction that the possession may be delivered to the lessees and the report of the mutation be submitted to the Supervisor Kannongo by the lekhpal immediately after delivery of possession. (5) If the Assistant Collector in-charge of the Sub Division finds that the whole or part of the decision taken by the Committee is not in accordance with the provisions of the Act and Rules, he shall record his disapproval on the list in Z.A. Form 57-B and return the papers to the Chairman.] 176-A. (1) On receipt of the list in Z.A. Form 57-B with the order of the Assistant Collector in-charge of the Sub-Division, the Chairman of the Land Management Committee shall call the person whose selection for allotment of land has been approved by the Assistant Collector in-charge of the Sub-Division and shall furnish to him a certificate in Z.A. Form 58 and shall get a counterpart in Z.A. Form 58-A executed by him. If the land sought to be allotted is a land referred to in Section 132, the person concerned shall be furnished with a certificate in Z.A. Form 59 and shall be asked to execute a counterpart in Z.A. Form 59-D : Provided that no lease shall be made to an asami for a period exceeding five years. (2) It shall be lawful for the Assistant Collector in-charge of the Sub-Division to determine at any time the lease in favour of an asami and upon such determination, the asami shall not be entitled to any compensation. (3) Every order of determination of lease under sub-rule (2) shall be effective from the commencement of the agricultural year following the date of the order. (3) Every order of determination of lease under sub-rule (2) shall be effective from the commencement of the agricultural year following the date of the order. (4) Where the decision of the Land Management Committee regarding admission to any land is not approved by the Assistant Collector in-charge of the Sub-Division, steps will be taken afresh for settlement of such land in accordance with the procedure laid down in sub-rule (1) read with Rules 173 to 176-A. All contracts relating to a lease, license or allotment of land shall be executed in duplicate. One copy of the contract shall be given to the lessee, licencee or allottee and the other copy shall be retained by the Land Management Committee for record.” 12. In the present matter, nothing has been brought on record to indicate that at any point of time the Land Management Committee was authorised to admit any person as bhumidhar with non-transferable right with the previous approval of Assistant Collector in-charge of Sub-Division, under Section 195 of the 1950 Act. Admittedly the alleged meeting was not presided over by the Chairman. Contrarily, on record it is reflected that on the said date the Pradhan was not available and the entire proceeding had been finalized behind his back. Chapter VII of 1952 Rules relates to Gaon Sabha and Bhumi Prabandhak Samiti (Land Management Committee). Rule 110 deals with the meetings of the Land Management Committee wherein it is categorically provided that the Chairman of the Land Management Committee shall call its meetings and fix the date, time and place of the same, notice for which shall be given to all members of the Land Management Committee at least 3 days before the date of the meeting. The signature or thumb impression of each member shall be taken on the notice which shall thereafter be pasted on the Proceedings Book. The notice shall contain the agenda for the meeting, but any item other than the sale or lease of any land not mentioned in the notice may be considered with the permission of the Chairman. Sub-rule (2) of Rule 110 provides that the notice shall be served personally on the members of the Land Management Committee. The notice shall contain the agenda for the meeting, but any item other than the sale or lease of any land not mentioned in the notice may be considered with the permission of the Chairman. Sub-rule (2) of Rule 110 provides that the notice shall be served personally on the members of the Land Management Committee. If it is not possible to serve the notice on any member personally, service on any adult male member of his family, and if that be also not possible, affixation of the notice at a conspicuous place at the residence of the member, shall be sufficient. 13. Once this is factual situation, which is emerging from the record in question that in the present matter, the Sub Divisional Officer vide his order dated 28.1.1997 cancelled the lease of agricultural land in respect of all the 21 allottees including the petitioners on the ground that all the allotments were made contrary to the provisions of 1950 Act and 1952 Rules and the procedures were not followed in the allotment in question and admittedly, the fresh allotment had taken place and the same has already been approved by the Sub Divisional Magistrate on 23.6.2009, and this Court does not find any illegality or infirmity in the impugned orders, then no relief can be accorded in favour of the petitioners. 14. The writ petition sans merit and is accordingly dismissed.