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2017 DIGILAW 856 (ALL)

CHIDDU v. STATE OF U. P.

2017-03-24

ANJANI KUMAR MISHRA

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JUDGMENT : ANJANI KUMAR MISHRA, J. 1. In these three connected writ petitions, I have heard Shri Abhitab Kumar Tiwari for the petitioner in two of them and Shri V.K. Singh for the petitioner in writ petition no. 34392 of 2008. I have also heard learned Standing Counsel for the State respondents in all the three writ petitions. 2. The first writ petition namely writ petition no. 34392 of 2008 has been filed by Chiddu and 37 others seeking a writ of certiorari for quashing a letter dated 29.02.2008 written by the District Magistrate to the S.D.M. Sardhana, Meerut calling for a report within three days, about the consolidation staff, for taking proper disciplinary action against them. A further direction has been issued for expunging the name of 30 allottees, recorded over land on the basis of allotments, which have been found to be, farzi. 3. A mandamus has also been sought for restraining the respondents from interfering in the possession of the petitioners and further for restraining the respondents from allotting the land in the possession of the petitioners. 4. The next writ petition namely writ petition no. 40688 of 2009 has been filed by one Charan Singh seeking a writ of certiorari for quashing an order dated 21.05.2008 passed by the A.D.M. Sardhana, District Meerut, passed in proceedings under Section 33/39 of the U.P. Land Revenue Act. 5. By this order, the name of the petitioner and a host of others persons has been ordered to be expunged from various plots mentioned in the chart appended to the order and the land thereafter has been ordered to be recorded in the name of the Gaon Sabha. 6. It would be relevant to note that the revenue entries as regards 32 plots have thus been ordered to be changed/corrected. Only the petitioner has challenged this order and the other persons effected by the order are not parties in this writ petition either as petitioners or respondents. 7. Writ petition no. 42718 of 09 has been filed by one Chhiddu alone. It is also directed against the same order, which are impugned in writ petition no. 40688 of 2009. Even in this writ petition the other persons effected by the orders impugned are not arrayed as parties. 8. 7. Writ petition no. 42718 of 09 has been filed by one Chhiddu alone. It is also directed against the same order, which are impugned in writ petition no. 40688 of 2009. Even in this writ petition the other persons effected by the orders impugned are not arrayed as parties. 8. It would also be relevant to note that only two persons namely Charan Singh and Chhiddu had filed separate revisions against the order dated 21.05.2008. These revisions were decided by a common order dated 18.05.2009. This order was also passed in a revision filed by one Ratan Singh. However Ratan Singh does not appear to have preferred any writ petition against the same. 9. The identical facts of these petitions are that on 10.01.1975, a proposal for allotment of land belonging to the Gaon Sabha was made by the Naib Tehsildar. It is submitted that the Naib Tehsildar was authorised to act in place of the Land Management Committee by an order dated 21.026.1974 passed by the Additional Collector, Meerut as the Land Management Committee had failed to discharge its duties. This authorization was granted in difference to an order dated 05.05.1974 passed by the Collector, Meerut in exercise of powers conferred by Section 127 of the U.P. Zamindari Abolition and Land Reforms Act read with Rule 115-K of the Rules, framed thereunder. 10. The proposal for allotment by the Naib Tehsildar, was approved by the S.D.M., Sardhana on 10.01.1975, whereby land totalling 4-10-0 bighas was allotted in favour of 30 persons. It is submitted that thereafter the allottees were to be in possession. 11. Since the names of the allottees were not recorded and in the meantime consolidation operations commenced in the unit in the year 1980, objections were filed under Section 9A(2) of the Act before the Consolidation Officer, Meerut. 12. The Consolidation Officer vide order dated 19.07.2004 passed an order directing that Chhiddu be recorded as bhumidhar with transferable rights over the land, subject matter of allotment, in his favour. 13. A similar order was passed by the Consolidation Officer on an objection filed by Charan Singh, the other petitioner on 14.07.2005. 14. It is submitted that the allotment in favour of Chhiddu was of three plots. The objection was allowed with regard to two plots only. 13. A similar order was passed by the Consolidation Officer on an objection filed by Charan Singh, the other petitioner on 14.07.2005. 14. It is submitted that the allotment in favour of Chhiddu was of three plots. The objection was allowed with regard to two plots only. As regards the third plot, the objection was rejected on the ground that the land was not vacant on the spot having been allotted in the chak of others during the consolidation operations. 15. Aggrieved by the order, Chhiddu filed an appeal and the Settlement Officer Consolidation by his order dated 02.07.2008 allowed the appeal and the objection of the appellant, Chhiddu, with regard to the third plot also. 16. It is submitted that during the pendency of the proceedings before the consolidation authorities, proceedings under Section 198 (4) of the U.P. Zamindari Abolition and Land Reforms Act were initiated for cancellation of the allotments on 29.08.2007. However, these proceedings were dismissed as barred by time. 17. Thereafter, on a complaint being made, an enquiry was ordered by the Principal Secretary where after the name of the persons were ordered to be expunged in proceedings under Section 33/39 of the U.P. Land Revenue Act by the order dated 21.05.2008. 18. This order has been affirmed when the revisions filed by Chhiddu and Charan Singh came to be dismissed vide order dated 18.05.2009 passed by the Additional Commissioner, Meerut, Division Meerut. 19. In so far as writ petition no. 34392 of 2008 is concerned, it appears that upon the complaint, which culminated in the proceedings under Section 33/39, having been made by the respondents in this writ petition namely Hasnain and Mohabbat Ali, the Principal Secretary to the Chief Minister, on 12.10.2007, directed the District Magistrate to ensure proceedings against the allottees. 20. The S.D.M., Sardhana submitted his report on 20.02.2008 in this regard. Relying upon this report, the letter dated 29.02.2008 was issued by the District Magistrate, Meerut, which has been impugned in this writ petition. 21. In this writ petition, contention of Shri V.K. Singh is that valid allotments had been made in favour of the petitioners and the consolidation courts had already passed orders but without any opportunity of hearing the impugned letter dated 29.02.2008 had been issued. At the point of time the allotments were made, the petitioners became Sirdar of the land allotted to them. At the point of time the allotments were made, the petitioners became Sirdar of the land allotted to them. Thereafter, by operation of law they became its bhumidhar with transferable rights in accordance with Section 131B of the Act. 22. It is submitted that the letter dated 29.02.2008, as also the subsequent orders, in proceedings under Section 33/39 of the U.P. Land Revenue Act have been passed on account of political pressure. 23. Another fact which emerges from the record is that some of the allottees had earlier filed writ petition no. 15530 of 2008. This writ petition was also directed against the letter dated 29.02.2008, which is impugned in the instant writ petition. 24. This writ petition came to be dismissed vide order dated 07.04.2008. 25. It is therefore, clear that the letter/order dated 29.02.2008 already, stands affirmed by the order dated 07.04.2008 passed in writ petition no. 15530 of 2008. 26. However, Shri V.K. Singh submits that the instant writ petition has been filed because the petitioners herein were not parties in writ petition no. 15530 of 2008 and since complete and correct facts had not been brought to the notice of the Court in that petition, its dismissal shall not preclude this court from considering the petitioners challenge to the order dated 29.02.2008. 27. I have perused the order dated 07.04.2008, which is available on record and such perusal reveals that all the submissions that are being made by Shri V.K. Singh in the instant writ petition no. 34392 of 2008 have been duly considered by the writ court while passing the order dated 07.04.2008. 28. Under the circumstances, it is not open for this court of concurrent jurisdiction to sit in appeal or to review the earlier order passed by the writ court on 07.04.2008. 29. Writ petition no. 42718 of 2009 therefore, is liable to be dismissed as the order/letter impugned therein, already stands affirmed by this court. 30. From the facts noticed herein above and on the basis of the submissions made by Shri V.K. Singh and Shri Abhitab Kumar Tiwari, as also a perusal of the writ petitions filed by them, the basic contentions raised are that the Naib Tehsildar proposed allotment in favour of 30 persons since the Land Management Committee stood suspended. The proposal was made strictly in accordance with law after following the procedure prescribed for the same. The proposal was made strictly in accordance with law after following the procedure prescribed for the same. Such proposal was duly approved by the S.D.O., the competent authority in this regard. Not only were the allotments given effect to on the spot, the allottees were also recorded over the land allotted to them by valid orders passed by the consolidation authorities. Moreover, proceedings under Section 198 (4) of the U.P. Zamindari Abolition and Land Reforms Act for cancellation of the allotments had failed. The revenue entries in favour of the petitioners therefore, could not have been expunged in summary proceedings under Section 33/39 of the U.P. Land Revenue Act and the orders in this regard have been passed on account of political pressure alone. These orders are therefore unsustainable and must necessarily, be set aside. 31. Learned Standing Counsel on the other hand has supported the impugned orders. He has submitted that all the allotments are forged and fabricated. Upon enquiry it was revealed that only 11 files pertaining to the allotments were available in the record room. No files apart from these 11, out of the 30 allotments, are available. 32. He further submits that the order passed by the Consolidation Authorities were patently illegal and without jurisdiction. The petitioners were ordered to be recorded as bhumidhars with transferable rights on the basis of allotments in their favour. This could not have been done. An allottee can only be a bhumidhar with non transferable rights. 33. It is next contended that dismissal of the application for cancellation of the allotments under Section 198 (4) of the U.P. Zamindari Abolition and Land Reforms Act is of no consequence once it is found that no valid allotment was made and the entire proceedings are forged and fabricated. 34. It is lastly contended that consolidation operations admittedly commenced in the year 1980. The alleged allotment is of 1975. The objections under Section 9A(2), whereon the Consolidation Officer has passed orders, in favour of the petitioners, Chhiddu and Charan Singh, were preferred after the final records had been sent to the Tehsil for publication of notification under Section 52 of the Act. The alleged allotment is of 1975. The objections under Section 9A(2), whereon the Consolidation Officer has passed orders, in favour of the petitioners, Chhiddu and Charan Singh, were preferred after the final records had been sent to the Tehsil for publication of notification under Section 52 of the Act. There is no explanation why the objections under Section 9A(2) were filed at such a highly belated stage in the year 2004-05 after the final consolidation operations had been sent to the Tehsil for issuing a notification closing consolidation operations, especially when the alleged allotments were of 1975. 35. He also submits that a categorical finding has been returned by the impugned orders that the order passed by the Consolidation Officer does not bear the name of the Consolidation Officer and just a signature is available. This is an additional circumstance, which indicates that forgery and fabrication was resorted to, while obtaining the orders. 36. I have considered the submissions made by learned counsel for the parties and have perused the record of writ petition nos. 40688 of 2009 and 42718 of 2009, which alone survive for consideration. 37. In my considered opinion, the first aspect which requires consideration is whether, even if the Land Management Committee stood superseded, the Naib Tehsildar could have been authorised to make proposals for allotment of land. 38. In this connection, the provisions contained in Section 127 of the U.P. Zamindari Abolition and Land Reforms Act are material and the same are extracted below:- "Section 127:- Alternative arrangement for carrying on the work of the Land Management Committee in certain circumstances. - (1) If at any time the State Government is satisfied that- (a) [Land Management Committee] has failed without reasonable cause or excuse to discharge the duties or to perform the functions imposed or assigned by or under this Act, (b) circumstances have so arisen that the [Land Management Committee] is rendered unable or may be rendered unable to discharge the duties or perform the functions imposed or assigned by or under this Act, or (c) it is otherwise expedient or necessary to do so, it may by notification in the Gazette, declare that the duties, powers and functions of the [Land Management Committee] under this Act shall be discharged, exercised and performed by such person or authority and for such period and subject to such restrictions as may be specified. (2) The State Government may make such incidental and consequential provisions as may appear to be necessary for this purpose." 39. Sub-section (c) of the afore quoted provision stipulates that when the duties, powers and functions of the Land Management Committee are to be discharged, exercised or performed by such other person or authority, the same may be done by a notification in the Gazzette. This Gazzette notification is also required to specify the period for such exercise of powers, as also the restrictions, on such exercise of powers. 40. The procedure for exercise of power conferred by Section 127 aforesaid is prescribed by Rule 115-K of the Rules framed under the Act. This rule provides that when action is taken by the Collector, a report is immediately required to be submitted to the Land Reforms Commissioner and the Revenue Department of the State Government. 41. The claim of the petitioners that the Naib Tehsildar was authorised to propose an allotment, is based upon a letter dated 21.06.1994, written by the District Magistrate, Meerut to the Secretary Revenue Department. This letter, which is on record, has been signed by the District Magistrate, Meerut. However, there is no material on record to show that necessary intimation was sent, also to the Land Reforms Commissioner. 42. From a perusal of the Section 127 quoted above, this court is of the opinion that a Gazzette notification, authorising a particular person to exercise the functions of the Land Management Committee is necessarily required to be published. This notification is also required to specify the period for which such arrangement will continue and the restrictions, if any, on the power to be exercised. There is no material on record to show that any Gazzette notification was ever issued. 43. Under the circumstances and in the absence of any Gazzette notification, authorising the Naib Tehsildar to perform the functions of the Land Management Committee, this Court is constrained to hold that it was not open for the Naib Tehsildar to have made a proposal of allotment of land. For the same reason the proposal, if any, should not have been approved by the S.D.O. and even if approval was granted, the same was patently illegal. 44. In this connection, it would be relevant to note that the order of the Consolidation Officer was passed, relying upon the oral testimony of a Revenue Officer. For the same reason the proposal, if any, should not have been approved by the S.D.O. and even if approval was granted, the same was patently illegal. 44. In this connection, it would be relevant to note that the order of the Consolidation Officer was passed, relying upon the oral testimony of a Revenue Officer. There appears to be no other material in this regard available before the Consolidation Officer. 45. In my considered opinion, a Revenue Officer cannot make a statement before any court admitting any claim against the Gaon Sabha without obtaining prior approval of the Collector in writing. Even such a prior approval of the Collector is not established on record. Therefore, the orders passed by the consolidation authorities are also illegal and fraudulent and the petitioners cannot derive any benefit from them. 46. The submission that the orders impugned were illegal, since an application for cancellation of the allotments under Section 198 (4) of the Act had already been dismissed, has already been dealt with by this Court in the order dated 07.04.2008 passed in writ petition no. 15530 of 2008 and the same therefore does not require consideration, afresh. 47. In view of the above discussion, this Court holds that no valid allotment was ever made in favour of the petitioners. The alleged allotments have already been found to be forged by the impugned orders, which finding calls for no interference. 48. Accordingly, all the three writ petitions are, hereby dismissed.