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2017 DIGILAW 2498 (ALL)

CHANDRAMA PRASAD v. DEPUTY DIRECTOR CONSOLIDATION

2017-11-01

AJIT KUMAR

body2017
JUDGMENT Hon’ble Ajit Kumar, J.—Heard Sri B.N.Upadhyaa, learned counsel for the petitioner, learned Standing and Sri Diwarkar Singh, learned counsel appearing for Gaon Sabha. 2. The facts of the case are that the petitioner was given lease of agricultural land under Government Policy offering lease of land for promotion of sterilization. The lease was granted on 12.1.1973 by Gaon Sabha in favour of the petitioner and the petitioner came in possession thereof immediately. The lease dated 12.1.973 executed by Gaon Sbha has not been disputed. However, when the village got notified under the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as “Act, 1953), the petitioner filed an objection to mutate the name in the revenue records in pursuance of the lease dated 12th January, 1973, which was granted to him and prayed that the name of the Gaon Sabha over the land in question may be struck off. The Consolidation Officer held that lease could not have been granted in the first instance; because the petitioner was not landless person; and secondly, the land was a public utility land being used as passage/road. Thus objection of the petitioner was rejected and against that, petitioner preferred an appeal before Settlement Officer Consolidation raising specific plea that Consolidation Officer could not have entered into question if validity of lease as separate procedure was providing for cancellation of the same under Section 198 of U.P.Z.A & L.R. Act. However, Settlement Officer Consolidation too dismissed the appeal and petitioner then preferred revision before Deputy Director of Consolidation. 3. Besides the plea of jurisdiction, it was pleaded that it was not a case of fraud or forgery, therefore Consolidation Authority were not competent enough to look into those documents from which title was derived and which were not forged or void documents. However, revision filed before the Deputy Director, Consolidation met the same fate revision too came to be dismissed and hence the present writ petition before this Court. 4. I have perused the impugned order passed by the Consolidation Authorities, and have examined the pleadings and records filed by the parties. 5. In the first instance, it is to be seen whether there was any stand taken by the Gaon Sabha that lease in question was result of an act of fraud or forgery and therefore, no title or right accrued from such document. 5. In the first instance, it is to be seen whether there was any stand taken by the Gaon Sabha that lease in question was result of an act of fraud or forgery and therefore, no title or right accrued from such document. Having gone through t he orders of Consolidation Authorities, I find that objection that was taken by the Gaon Sabha before Consolidation Authority, no such plea was taken and on the contrary in the counter-affidavit filed by the Gaon Sabha, in the writ petition, the plea taken is that Gaon Sabha wrongly granted leased to the petitioner. 6. Gaon Sabha has admitted execution of lease in favour of the petitioner and no second opinion can be taken in respect thereof. It is well-settled law that only exception to authority going into question of rights and title in a collateral or other proceedings other than those provided specifically in an Act are those cases were fraud and forgery is pleaded. There is no such plea as alleged here in this case. The question of title flowing from the lease should have been accepted by the Consolidation Authorities. 7. In the second instance, it has to be seen as to whether Consolidation Authorities were competent to look into the validity of lease on the ground that on the spot it seems to be public utility land. The Supreme Court in a number of decisions has held that when law requires anything to be done in a particular manner, the same should be done in that manner only. In a recent judgment State of Kerala and others v. Kerala Rare Earth Minerals Ltd. and others, 2016 (6) SCC 323 , Apex Court vide para 17 holds: “It is well-settled that if the law requires a particular thing to be done in a particular manner, then, in order to be valid the act must be done in the prescribed manner alone [See: Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and others, (2002) 1 SCC 633 ; Captain Sube Singh and others v. Lt. Governor of Delhi and others, (2004) 6 SCC 440 ; State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 ; and Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 ]. Governor of Delhi and others, (2004) 6 SCC 440 ; State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 ; and Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 ]. Absence of the Central Government’s approval to reservation and a notification as required by Section 17A, therefore, renders the State Government’s claim of reservation untenable till such time a valid reservation is made in accordance with law. It is trite that the State Government’s general executive power cannot be invoked to make a reservation dehors Section 17A.” 8. In UPZA & LR Act, 1950 (hereinafter referred to as “Z.A.Act”) provides for grant of lease of land in rural areas for agricultural as well as residential purposes etc. and Section 198 lays down a detailed procedure for cancellation of lease suo motu as well as on complaint. These provisions (Supra) are very exhaustive Act provides forum where such action in terms of adjudication can be reviewed. 9. The Apex Court in the case of Ameer-Un-Nissa Begum and others v. Mahboob Begum and others, AIR 1955 SC 352 , Kaushalya Rani v. Gopal Singh, AIR, 1964 SCC 260, Ramala Sahkari Chini Mills Ltd, UP v. Commr. Of Central, (2004) 7 SCC 601, and Godawat Pan Masala Products I.P. Ltd. v. Union Of India and others, 2004 (2) FAC 33, has held that special law overrides the general law. So the Consolidation Authority who are in general to look into the title under Section 9 and 9A(2) including the legality of entry in the basic year in the revenue records (Khatauni), are denuded from any such power and authority to go into the question of validity of lease. 10. Learned counsel for the petitioner has further placed reliance on Full Bench Judgment of this Court in the case Simlesh Kumar v. Gaon Sabha (F.B.), 1977 AWC 259 , in which it was held that when there is specific provision under the UPZA & LR Act and proceedings undertaken under Section 198 of the said Act are not summary in nature, but are complete and competent proceedings and legislature had intended that any question with regard to validity of lease should be given into only by the authority and under the provisions prescribed under the UPZA & LR Act. The Consolidation Authority according to Full Bench judgment, do not have any power to look into the question of validity of lease and cannot go behind title in matters of lease. Revision against the order of authority of first instance is also provided for. Thus for the purposes of lease and cancellation therefore special law has been enacted. The Consolidation Authorities are not having any competence to go into the validity of lease. 11. In the ordinary course, it could have been left open for Gaon Sabha or the concerned authorities to take such action as may be permissible in law but in case like this present one, where Gaon Sabha was fully aware of the lease and did not take any action for cancellation of the same question of limitation will come into play. 12. This Court in the case of Suresh Giri and others v. Board of Revenue, Uttar Pradesh Allahabad and others, 2010(2) ADJ 514 , has held vide Para 12 and 13 as under: “12. The provisions of sub-section (4), (5) and (6) of Section 198 of the Act are to be construed in conjunction with one another and cannot be read in-isolation. The aforesaid provisions are unambiguous and the language used therein is plain and simple which makes no distinction between proceedings for cancellation of allotment initiated suo motu or on the application of a person aggrieved. Therefore, they have to be construed in the ordinary sense and in no other way. Sub-Section (4) of Section 198 of the Act provides for cancellation of allotment/lease by the Collector on his own motion as well as on the application of the person aggrieved. In both the cases, allotment/lease cannot be cancelled without affording an opportunity of hearing to the allottee or the person concerned, as otherwise the action of cancellation would be termed arbitrary and violative of principles of natural justice. Sub-section (6) of Section 198 of the Act follows Section 198(4) of the Act which as such covers both the types of proceedings for cancellation viz. suo motu as well as on application of person aggrieved. 13. Sub-section (6) of Section 198 of the Act follows Section 198(4) of the Act which as such covers both the types of proceedings for cancellation viz. suo motu as well as on application of person aggrieved. 13. Accordingly, in my opinion, the inevitable conclusion is that the time frame prescribed for issuing notice before cancelling the allotment/lease of a land provided under sub-section (6) of Section 198 of the Act is applicable to both suo motu proceedings as well as proceedings on the application of the person aggrieved.” 13. Again in case of Subhag and another v. Board of Revenue and others, 2011(7) ADJ 937 , this Court has held that “limitation so prescribed attaches finality to the right of the parties by operation of law” and therefore, I hold that it will not be open for the Gaon Sabha to re-open the issue of validity of lease after 40 years. 14. Thus fraud and forgery cases are only exceptions to the general rule and rightly so because no right or title can flow from an act of fraud or forgery. It has been held by the Apex Court in the case of Ram Chandra Singh v. Savitri Devi and others, 2003 (8) SCC 319 , that fraud vitiates every solemn act and fraud and justice cannot dwell together. Even law of limitation is held to give way to that. 15. In Lazarus Estates v. Beaslay Beasley, (1956) 1 All ER 341, [1956] 1 QB 702, Lord Denning LJ observed “ No judgment of Court, nor order of minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.” 16. However, in Sri M. Sankaranarayana v. Deputy Commissioner Bangalore and anothers, 2017 (4) SCC 374: 2017 (5) JT 26 , the Apex Court has held that, fraud cannot be prescribed but has to be specifically pleaded and proved. 17. Even the law of limitation is held to give way to the proceedings of cancellation of lease in cases of fraud and forgery. In view of the aforesaid fact that in the case herein neither such plea has been taken nor, it can be otherwise inferred from the pleadings. Thus the orders passed by the Consolidation Authorities in the present case are not sustainable in the eyes of aw and are accordingly hereby set aside. 18. In view of the aforesaid fact that in the case herein neither such plea has been taken nor, it can be otherwise inferred from the pleadings. Thus the orders passed by the Consolidation Authorities in the present case are not sustainable in the eyes of aw and are accordingly hereby set aside. 18. It is worth noticeable that the Full Bench has also relied upon judgment of Hon’ble Apex Court, wherein it has been held that unless and until documents is void, Consolidation Authority should not empower to look into the grievance of anyh such document. 19. In view of the above, I hold that now matter cannot be reopened even at the instance of the Gaon Sabha. 20. Writ petition succeeds and is accordingly allowed. The orders passed by the Consolidation Authorities are set aside. The revenue authorities are further directed to carry out necessary correction in the revenue records. 21. There will be no order as to cost.