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2017 DIGILAW 654 (ALL)

Sobaran v. Board of Revenue, Allahabad

2017-02-28

ANJANI KUMAR MISHRA

body2017
JUDGMENT Anjani Kumar Mishra,J. Heard Shri R.C. Singh for the petitioner, Shri Ram Autar Verma for the contesting respondents, Shri Brij Kumar Yadav for the Gaon Sabha and learned Standing Counsel for the State-respondents. 2. The instant writ petition arises out of proceedings under Section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act and is directed against the orders dated 28.01.2009 passed by the Collector, Kannauj and the order dated 05.08.2016 passed by the Board of Revenue. 3. The land in dispute is situated in Village Tisauli, Pargana Talgram, Tehsil Chhibramau, District Kannauj, which was earlier, part of District Farrukhabad. 4. Two sets of allotments by the Gaon Sabha are in issue in this writ petition. Both the allotments pertained the same land. An allotment is alleged to have been made in favour of 49 persons by a resolution of the Gaon Sabha passed on 07.02.1995. This resolution is alleged to have been approved by the Sub Divisional Officer on 22.02.1995. 5. On the complaint made by the Pradhan that this alleged allotment is farzi, the Tehsildar, on 12.09.1997, submitted a report that the approval alleged to have been granted on 22.02.1995, had been granted by a person, who had ceased to be the Sub Divisional Officer on the date he granted approval. 6. On the basis of the aforesaid report, the ADM on 17.09.1997 submitted a report to the Collector that the allotment was farzi. The Collector, in turn, vide order dated 18.09.1997, cancelled the allotment. 7. Since the allotment was allegedly cancelled without affording any opportunity of hearing to the allottees, they filed a recall application before the Collector on 24.02.1998. The Collector vide order dated 03.08.1998 rejected the recall application. 8. The allottees (the contesting respondents in the instant writ petition) preferred a revision before the Commissioner, which was dismissed on 26.10.1998. The aggrieved persons, thereafter filed writ petition no. 3613 of 1999. 9. This writ petition no. 3613 of 1999 was disposed of vide order dated 21.08.2007. The orders cancelling the allotment were set aside and the matter was remitted back to the Collector to hear the allottees of the alleged allotment made 1995 as also the subsequent allottees who alleged that a resolution of the Gaon Sabha had been passed in their favour on 30.09.1998, which was approved on 24.08.1998. 10. These subsequent allottees are the petitioners in the instant writ petition. 11. 10. These subsequent allottees are the petitioners in the instant writ petition. 11. The writ court also directed that the validity of the alleged allotment of 07.02.1995 approved on 22.02.1995 be examined by the Collector. In case this allotment was found to be genuine, the subsequent allotment would stand automatically cancelled as the same land could not be allotted afresh. 12. In pursuance of the directions issued by the writ court, the Collector heard the matter and vide order dated 28.01.2009, upheld the allotment in favour of all except 12 persons who were found to be ineligible, as they were not landless and were of possessed on sufficient land. 13. Since the earlier allotment was upheld, the subsequent allotment made on 30.09.1998 and approved on 24.08.1998 was held to be illegal as the land was not vacant on the date of allotment. It was accordingly, set aside. 14. Against this order, the petitioners (the subsequent allottees) filed a revision before the Board of Revenue, which has been dismissed vide order dated 05.08.2016. Hence this writ petition challenging the orders dated 28.01.2009 passed by the Collector and the order dated 05.08.2016 passed by the Board of Revenue. 15. When this matter came up before this Court on 05.10.2016, the following order was passed: - "Supplementary affidavit filed today is taken on record. When the case is listed next the name of Sri R.C. Singh be also shown as a counsel for the petitioners. Standing Counsel may produce the record relating to allotment of land on 7.2.1995 as approved by order dated 22.2.1995. Put up as fresh on 3rd November, 2016." 16. In pursuance of the aforesaid order, the original file of the alleged allotment made on 07.02.1995 and approved on 22.02.1995 was produced and on 18.11.2016, the following order was passed: - "Learned standing counsel has produced the records relating to allotment of the Patta. It transpires therefrom that it contains only true copies of the proceedings held by the Land Management Committee and not the original proceedings. Learned counsel for the Gaon Sabha states that true copies of the proceedings of the Land Management Committee are forwarded to the Sub Divisional Magistrate for obtaining approval, whereas the original records are retained by the Land Management Committee. Learned counsel for the Gaon Sabha states that true copies of the proceedings of the Land Management Committee are forwarded to the Sub Divisional Magistrate for obtaining approval, whereas the original records are retained by the Land Management Committee. Since there is a dispute between the parties as to whether the original proceedings contain signatures of members of the Land Management Committee or not, it is hereby directed that counsel for the Gaon Sabha shall ensure production of the original records of the Land Management Committee relating to the allotment in favour of the contesting respondents of the year 1995 before this Court on 12 December 2016. List on 12 December 2016. Until then, the parties shall maintain status quo as on date in regard to the land in dispute. Learned standing counsel shall retain the original records with him for being produced before the Court on the next date." When the matter came up before this Court on 06.01.2017, counsel for the Gaon Sabha produced a copy of the instructions received by him. 17. Perusal of the instructions reveals that it has been reported that Ram Bharose who was the Pradhan at the relevant point of time, on being contacted has made a statement that he does not have the proceedings register with him. The subsequently elected Pradhans have made a statement that the proceedings register was never handed over to them by the erstwhile Pradhan, Ram Bharose, the Pradhan in the year, 1995. 18. The Court has examined the original record produced by learned Standing Counsel. 19. Although, the parties are at issue as to whether or not Shri R.N. Singh was the Sub Divisional Officer on 22.02.1995, when the resolution of the Gaon Sabha dated 07.02.1995 is alleged to have been approved, this Court, upon examining the original record, is of the considered opinion that the petition can be decided finally, without entering into this controversy. 20. The contention of Shri R.C. Singh, learned counsel for the petitioner is that although the record indicates that a munadi was made. However, the date on which the munadi was made is not available on record. 21. 20. The contention of Shri R.C. Singh, learned counsel for the petitioner is that although the record indicates that a munadi was made. However, the date on which the munadi was made is not available on record. 21. Referring to Rule 176 of the U.P. Zamindari Abolition and Land Reforms Rules, he has submitted that ZA Form 58, which is the certificate of admission to land, is not available on the file nor is its counter part, which is required to be furnished in Form 58A. He submits that this Form 58 and 58A were necessarily required to be forwarded to the Sub Divisional Officer, along with other documents, for his approval. It is therefore clear that the file forwarded for approval did not contain documents which were mandatorily required to be furnished. 22. In the context of the submissions made, I have carefully examined the record. 23. Only the resolution passed by the Gaon Sabha reveals that the munadi was made on 30.01.1995. This date is mentioned in the resolution forwarded. A copy of the munadi does not bear any such date. This copy also reveals that the meeting fixed for consideration of the agenda, mentions two dates namely 04.02.1995 and 07.02.1995. 24. The relevant portion reads as follows: - %hnd1%**lwfpr fd;k tkrk gS fd fnukad 04-02-1995 / 7-02-1995 dks ,d vko';d cSBd Jh jke Hkjksls iz/kku dh v/;{krk es LFkku Bkdqj }kjk ij fnu ds le; 10 cts gksxhA------------------**%hnd2% 25. In my considered opinion, the munadi or the agenda has to mention a specific date. There is no justification for giving two dates for a meeting nor is any such justification to be found on the record. The munadi therefore, cannot be held to be in accordance with law. This fact also fortifies the case of the petitioner that the entire allotment proceedings were fabricated and were, on paper alone. This discrepancy clearly puts the alleged meeting of 07.02.1995 under a serious cloud. 26. Neither counsel appearing for the contesting respondents nor learned Standing Counsel have been able to explain as to why the certificate of admission to land which is necessarily required to be furnished with the file sent to the Sub Divisional Officer for his approval, is not available on record. 27. 26. Neither counsel appearing for the contesting respondents nor learned Standing Counsel have been able to explain as to why the certificate of admission to land which is necessarily required to be furnished with the file sent to the Sub Divisional Officer for his approval, is not available on record. 27. Coupled with the aforesaid facts, non production of the proceedings register of the Gaon Sabha also renders the alleged resolution of allotment in favour of the contesting respondents, extremely doubtful. The paper that is available in the file produced by learned Standing Counsel does not bear the signature of any of the members of the Land Management Committee. The explanation for this is that the original is not sent and it is a only of the copy of the resolution which is sent to the Sub Divisional Officer for his approval. Even, if this explanation is accepted the Gaon Sabha should necessarily have produced the original proceedings register and its non production only goes to support the case of the petitioner. 28. In view of the aforesaid discussion, this Court is of the opinion that it is not proved on record that a valid meeting of the Gaon Sabha was held on 07.02.1995, after circulation of a proper agenda and after due munadi. Necessary documents required to be forwarded to the Sub Divisional Officer for his approval were never duly forwarded and that ZA Form 58 and 58A are not available in the original file whose pages have been numbered sequentially. It therefore, cannot be even to be argued that these ZA Forms 58 and 58A were subsequently sent back to the Land Management Committee. 29. Although, this Court in the judgment passed in writ petition no. 3613 of 1999, had directed the Collector to examine as to whether the alleged allotment dated 07.02.1995 approved on 22.02.1995 was a valid allotment or not, the Collector has passed the impugned order dated 28.01.2009, on the basis of reports regarding actual physical possession over the land in question. Discrepancies, which have been noticed by this Court, herein above, have not at all been adverted to by the Collector. Discrepancies, which have been noticed by this Court, herein above, have not at all been adverted to by the Collector. However, since this Court has examined the original record and it finds several discrepancies which render the allotments illegal, the orders impugned are, in my considered opinion, liable to be set aside and the allotment in favour of the respondents must be held to be invalid. 30. However, one aspect still needs to be considered. This relates to the relief, if any, liable to be granted to the petitioners. Admittedly the petitioners are subsequent allottees and claim allotment by means of a resolution dated 30.09.1998, approved by the Sub Divisional Officer on 24.08.1998. This allotment was primarily cancelled on the ground that since the earlier allotment made in 1995, was a valid allotment, the land was not vacant and could not have been subject matter of a subsequent allotment in favour of the petitioners. 31. In this connection, it is relevant to note that the Collector in his order has observed that the allotment in favour of the petitioners had been made despite an interim order having been granted by him on 18.09.1997 on the the restoration application, filed by the contesting respondents, for recall of his order dated 18.09.1997. 32. It is therefore established on record that even the allotment in favour of the petitioners as also its approval, was despite an order granted passed by the Collector, restraining such allotment. The allotment in favour of the petitioners, is therefore, also patently illegal and must necessarily be cancelled, although not for the reasons for which it has been cancelled by the courts below. Therefore, the operative portion of the order of the Collector, whereby even the allotment in favour of the petitioners has been cancelled, is liable to be and is hereby affirmed. 33. Accordingly and for the reasons given above, this petition is allowed in part. The impugned orders, in so far as they affirm the allotments made in favour of the respondents vide resolution dated 07.02.1995, approved on 22.02.1995, are set aside. 34. However, the impugned orders in so far as they cancel the allotment made in favour of the petitioners are hereby, upheld. 35. The impugned orders, in so far as they affirm the allotments made in favour of the respondents vide resolution dated 07.02.1995, approved on 22.02.1995, are set aside. 34. However, the impugned orders in so far as they cancel the allotment made in favour of the petitioners are hereby, upheld. 35. As a consequence the land subject matter of the two allotments, is directed to be recorded in the name of the Gaon Sabha and it shall be open for the Gaon Sabha to take steps for allotment of this land in favour of eligible persons, hereafter.