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Allahabad High Court · body

2018 DIGILAW 837 (ALL)

BHAGWAT v. STATE OF U. P.

2018-04-06

B.AMIT STHALEKAR

body2018
JUDGMENT Hon’ble B. Amit Sthalekar, J.—The impugned orders in all the above writ petition are common and the identical questions of law and facts are involved in the above three writ petitions, therefore, with the consent of the learned counsel for the parties, the above writ petitions have been taken up together for hearing and are being decided by this common order. 2. The petitioners of W.P. No. 37410 of 2003, who are 3 in number, the petitioners of W.P. No. 33189 of 2003, who are 52 in number and the petitioners of W.P. No. 46388 of 2003, who are 18 in number are seeking quashing of the order dated 28.12.1998 whereby the resolution dated 18.8.1995 granting patta in favour of the petitioners and several other persons was canceled. By the other impugned order dated 14.7.2003, the revision preferred by the petitioners has also been rejected by the Additional Commissioner, Meerut Division, Meerut. 3. Briefly stated the case of the petitioners is that they are landless persons and were granted patta of the land in dispute on 26.8.1995 through a resolution of the Gaon Sabha dated 18.8.1995. According to the petitioners, they are continuously in possession of the land in question since the date of the grant of the patta/lease and continued to remain in possession thereafter, even as of today. It is further stated that on 23.7.1976, a lease was granted in favour of M/s. JK. Synthetics Ltd. for a period of thirty years and in clause 3 and 5 thereof, it was provided that in case the land leased out was not utilized within the specified period, the lessor would have a right of re-entry over the land. It is stated that the terms and conditions of the lease agreement were violated by M/s. J.K. Synthetics Ltd. and therefore, the land reverted back to the Gaon Sabha and the Gaon Sabha through a valid resolution granted patta/lease of the said land in favour of 77 persons including the petitioners by resolution dated 18.8.1995. 4. It is stated that the terms and conditions of the lease agreement were violated by M/s. J.K. Synthetics Ltd. and therefore, the land reverted back to the Gaon Sabha and the Gaon Sabha through a valid resolution granted patta/lease of the said land in favour of 77 persons including the petitioners by resolution dated 18.8.1995. 4. The categorical case of the petitioners is that on the date of allotment of the disputed land in favour of the petitioners, the land was lying vacant and there was no construction made on it by M/s. J.K. Synthetics Ltd. but with a view to grab the land and harass the petitioners, M/s. J.K. Synthetics Ltd. made a complaint against the petitioners and initiated proceedings under Section 198 (4) of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as the ‘Act, 1950’). The case of M/s. J.K Synthetics Ltd was that they had been granted lease of the said land on 23.7.1976 and since the land was not vacant, thereafter the patta granted in favour of the petitioners was liable to be canceled. 5. The petitioners contended that the Additional Collector (Finance and Revenue), Gautam Budh Nagar however, without considering the fact that M/s. J.K. Synthetics Ltd. had violated the terms and conditions of the lease canceled the entire resolution dated 18.8.1995 through which the patta had been granted in favour of the petitioners, by the impugned order dated 28.12.1998. The reason for cancellation of the resolution was that there was no approval for grant of the patta on paper No. 57 Kha. Aggrieved by the order of the Additional Collector dated 28.12.1998, revisions were filed by the patta holders which was rejected by the Additional Commissioner by his order dated 14.7.2003. It is also stated that in addition to initiating proceedings under Section 198 (4) of the Act, 1950, M/s. J.K. Synthetics Ltd. also filed a suit for injunction against the patta holders in 1996. The application for interim injunction was rejected by the Civil Judge, Senior Division, Ghaziabad by his order dated 27.2.1997 after recording a finding of fact that M/s. J.K. Synthetics Ltd. was not in possession of the land in dispute and that the patta holders were in possession of the said land. The application for interim injunction was rejected by the Civil Judge, Senior Division, Ghaziabad by his order dated 27.2.1997 after recording a finding of fact that M/s. J.K. Synthetics Ltd. was not in possession of the land in dispute and that the patta holders were in possession of the said land. M/s. J.K. Synthetics Ltd. preferred an appeal taking the plea that the resolution under which patta was granted to the patta holders has been canceled by the Additional Collector. The Additional District Judge, Ghaziabad allowed the miscellaneous application of M/s. J.K. Synthetics Ltd by his order dated 29.2.2000 but in the meantime directed the parties to maintain status quo with regard to possession. 6. A supplementary-affidavit has been filed on 4.10.2016 on behalf of the petitioners in which it has been stated that Original Suit No. 134 of 1996 filed by M/s. J.K. Synthetics Ltd. has been dismissed by the Civil Judge, Senior Division, Gautam Budh Nagar vide judgment and order dated 22.8.2016 on the ground of non-appearance of the plaintiff and therefore, the interim order also stands vacated. 7. A counter-affidavit has been filed on behalf of the State-respondents stating therein that a lease was executed by the competent authority on behalf of the Government in favour of the respondent No. 5-M/s. J.K. Synthetics Ltd. on 23.7.1976 but the name of the respondent No. 5 has not been mutated in the revenue records due to mistake of the revenue authorities. It also stated that in the year 1995 the land was not vacant as such the Land Management Committee of the concerned village wrongly granted lease/patta in favour of 77 persons including the petitioners concealing material facts. But thereafter, the resolution was canceled by the Additional Collector (F& R) by his order dated 28.12.1998. Another supplementary counter-affidavit dated 16.1.2015 was filed on behalf of the State-respondents stating therein that the Land Management Committee of the Gaon Sabha while passing the resolution dated 18.8.1995 had not followed the mandatory provisions of Rules 173 to 176 of the Act, 1950. Another supplementary counter-affidavit dated 16.1.2015 was filed on behalf of the State-respondents stating therein that the Land Management Committee of the Gaon Sabha while passing the resolution dated 18.8.1995 had not followed the mandatory provisions of Rules 173 to 176 of the Act, 1950. Alongwith the counter-affidavit, the Munadi dated 25.11.1994 has also been filed as Annexure-1 to the supplement counter-affidavit and Munadi dated 25.8.1995 to show that a meeting of the Land Management Committee was to be held on 26.11.1994 and 18.8.1995 respectively and that the same was not in accordance with the Rule 173 of the U.P. Zamindari Abolition & Land Reforms Rules, 1952 (hereinafter referred to as the ‘Rules, 1952’). The case of the respondents further is that every page of Z.A. Form-57Ka was not signed by the Chairman as well as the Secretary of the Land Management Committee as required by the mandatory provisions of the Rule 174 of the Rules, 1952. It is further stated that the Z.A. Form-57Kha was not signed by the Sub Divisional Officer which was in violation of the provisions of Rule 176 of the Rules, 1952 and therefore, the contention of the respondents is that the resolution itself was an invalid resolution which could not have been acted upon. 8. In para 8 of Writ petition No. 33189 of 2003 (Kishan Pal and others v. Additional Commissioner, Meerut and others), it is stated that M/s. J.K. Synthetics Ltd. submitted an application under Section 198 (4) of the Act, 1950 before the Additional Collector for cancellation of allotment made in favour of the petitioners on the ground that only plot numbers 109, 73, 105, 106, 1085, 111 and 237 had been allotted to the opposite party No. 24, 50, 64, 65 and 79 in the application under Section 198 (4) of the Act, 1950 under the lease granted in the year 1976 by the State Government and therefore, these plots could not have been allotted to the petitioners. M/s. J.K. Synthetics Ltd. further stated in his application that he is aggrieved only with respect to allotment of plot numbers mentioned therein and to the opposite parties mentioned therein which means that he was not aggrieved by the other plots granted in favour of the petitioners and therefore, it was incorrect on the part of the Additional Collector to have canceled the entire resolution thereby affecting the petitioners. 9. 9. The case of the petitioners further is that M/s. J.K. Synthetics Ltd. was not a person aggrieved within the meaning of the definition of the term under Section 198 (4) of the Act, 1950 and, therefore, it could not file an application for cancellation of the patta before the Additional Collector and therefore, the entire proceeding was null and void being at the behest of the person who was not competent to file such an application. 10. I have heard counsel for the parties and perused the documents on record. 11. The lease deed granted in favour of M/s. J.K. Synthetics Ltd. on 23.7.1976 has been filed as Annexure-3 to the writ petition No. 37410 of 2003. Paragraph 3 of the agreement mentions that the lessee shall erect upon the said land or part thereof within three years from the date of the lease and that the lessee shall submit plans, sections, elevations and specifications for the construction of the building to be erected upon the said land for approval of an Officer appointed by the lessor in this behalf in duplicate and shall not start the work of construction unless and until the approval of the said officer is obtained in writing. The lessee shall not make any major additions or alterations to the said building either externally or internally without first obtaining the permission of the said officer in writing. 12. Paragraph 4 of the agreement further provides that the lessee shall before the said building is ready for occupation connect the same with gravitating waivers and lay on water to the said building and employ a licensed plumber to make and do all such connections and works. 13. Paragraph 5 of the agreement provides that in case the lessee fails to utilise the demised land for the purpose aforesaid within the period specified in sub-clause (3) above, the lessor shall have the option to reenter upon the demised land and in that they shall forfeit the 1/4th amount of the price paid for the land and be entitled to refund the 3/4th amount, thereof from the lessor. 14. Paragraphs 3, 4 and 5 of the agreement reads as under : “(3). 14. Paragraphs 3, 4 and 5 of the agreement reads as under : “(3). That the lessee shall erect upon the said land or a part thereof within three years from the date of this lease (which period of three years may from time to time extended by the lessor in special circumstances) to satisfaction of an officer appointed by the Lessor and at any outlay expenses of Rs. 25 lacs (Rupess Twenty Five lacs only at the lease in a good substantial and workman like manner factory building and at all times during the said term to maintain the same according to the bye-laws rules and regulations framed by the local authority having jurisdiction in the area in which the said land is situated and or in accordance with any other law, rule or regulation for the time being applicable thereto in respect of materials to be used in and the method of construction of buildings in the quarter in which the said land is situated. That the lessee shall submit plans sections elevations and specifications for the construction of the building to the erected upon the said land for the approval of an officer appointed by the lessor in this behalf in duplicate and shall not start the work of construction unless and until the approval of the said officer has been obtained in writing. The lessee shall not make any major additions or alterations to the said building either externally or internally without first obtaining the permission of the said officer in writing. (4). That the lessee shall before the said building is ready for occupation connect the same with the gravitating waivers and lay on water to the said building and employ a licensed plumber to made and do all such connections and works. (5). That in case the lessee fails to utilize the demised land for the purpose aforesaid, within the period specified in sub-clause (3) above, the lessor shall have option to reenter upon the demised land and in that they shall forfeit the 1/4th amount of the price paid for the land be entitled to refund the 3/4th of the amount thereof from the lessor.” 15. The specific case of the petitioners is that the respondent No. 5-M/s. J.K. Synthetics Ltd. did not fulfill its obligations under paragraphs 3 and 4 of the lease agreement and therefore, the land in question would automatically revert to the Gaon Sabha and thereafter, the same was allotted to the petitioners and other persons under the resolution of the Gaon Sabha dated 18.8.1995 and 26.11.1994. Under the resolution dated 18.8.1995 allotment was made in favour of 14 persons for agricultural purposes and by the other resolution dated 26.11.1994 allotment of land was made in favour of 63 persons, total 77 persons including the petitioners. 16. At this stage, it would be relevant to refer to the provisions of Rules, 1952. Rule 172, 174, 175, 176, 176-A of the Rules, 1952 read as under : “172. Section 230 (2)(i)—(1) An application under Section 194 for declaration of the extinction of tenure-holder’s rights shall be filed in the Court of the Assistant Collector in-charge of the Sub-Division by the Land Management Committee in whose local jurisdiction the extinction has occurred. Where on the application of the Land Management Committee or on facts coming to his notice otherwise, the Assistant Collector is satisfied that there is a prima facie, case for declaration of the extinction of the tenure holder’s rights under Section 194, he shall issue a proclamation in Z.A. Form 57 and where the tenure-holder is alive, a copy of the proclamation shall be served on him in person asking him to show-cause why the declaration in question should not be granted. (2) The Assistant Collector shall, on the date fixed in the proclamation, and after personal service, if required, has been effected, proceed to make such inquiry as he deems necessary. (3) If after inquiry, he comes to the conclusion that a declaration in favour of the Land Management Committee should be made, he shall make a declaration to that effect and specify the number of the plots with their respective areas of which the Committee is entitled to take a possession. The possession shall then be delivered to the Committee on behalf of the [Gaon Sabha] in accordance with the procedure laid down in Rule 154. 173. The possession shall then be delivered to the Committee on behalf of the [Gaon Sabha] in accordance with the procedure laid down in Rule 154. 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 number of plots, their areas and the date on which admission thereto is to be made. 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. 175. If the number of applicants does not exceed the number 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. 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 to 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 within 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 Kanungo 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. (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, licence 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.]” 17. The petitioners have vehemently stressed that the provisions of the Rules 172 to 176-A were duly carried out and that Munadi was also done and thereafter, the resolution of the Land Management Committee was drawn up. The petitioners have vehemently stressed that the provisions of the Rules 172 to 176-A were duly carried out and that Munadi was also done and thereafter, the resolution of the Land Management Committee was drawn up. The case of the respondents, on the other hand, was that before passing the resolution dated 18.8.1995, mandatory provisions of the Rules, 1952 were never followed. The copies of the Munadi dated 25.11.1994 and 25.8.1995 have been filed as Annexure-1 to the short counter-affidavit. The case of the respondents further is that the Z.A. Form 57Ka has not been signed by the Chairman as well as the Secretary of the Land Management Committee and that only the last page was signed by the Chairman and Secretary of the Land Management Committee, which is in contravention of the mandatory provisions of Rule 174 of the Rules, 1952. It is also stated that ZA Form 57 Kha has not been signed by the Sub Divisional Officer which is in violation of the mandatory provisions of Rule 172 of Rules, 1952. 18. Since there was a dispute with regard to the question as to whether the Chairman and Secretary of Land Management Committee had signed the resolution of the Land Management Committee or not and whether the signature of the Sub Divisional Officer was there on Form 57 Kha, this Court had directed the respondents to produce the original records. In pursuance thereof, the original records have been produced by the learned Standing Counsel. The Munadi which is dated 18.8.1995, however, records that on 15.8.1995 Vijay Pal S/o Buddhan r/o Beel Akbarpur had done the Munadi by beat of drum and by voice call informing the residents of the village that the Land Management Committee would be holding a meeting on 18.8.1995 in the Panchayat House for purposes of allotment of land for agricultural purposes to landless persons and that a list of eligible persons would be prepared and, therefore, the residents of the village should be present in the Village Panchayat House on 18.8.1995 at 11.00 A.M. The next document is a list prepared on 18.8.1995 containing a list of eligible persons which contains only 14 names with a resolution of the Gaon Sabha. This resolution contains the signature of several persons but what is noticed is that each page of the resolution of the Land Management Committee does not bear the signature of the Chairman, Land Management Committee or of the Secretary. Only the last page contains the signature of the Pradhan and one other person. There is one page which is marked as 47 which speaks of the resolution dated 26.11.1994 and 18.8.1995. This paper contains the signature of the SDM/Tehsildar. A list containing names of villagers dated 26.11.1994 is also available on record. This resolution or list of villagers also does not bear the signature of the Chairman or the Secretary of the Land Management Committee on each page. Photocopies of these documents have also been filed by the learned Standing Counsel alongwith his short counter-affidavit dated 6.1.2015. It is, therefore, clear that the resolution of 26.11.1994 or of 18.8.1995 does not fulfill the requirements of Rules 172 to 176 of the Rules, 1952. The provisions of Rules 172 to 176 are mandatory and lay down the procedure to be followed in the case of allotment to be made by Gaon Sabha land to eligible persons who are residents of the village concerned and any infraction of procedure would render the entire procedure of allotment illegal and invalid. 19. So far as the objection of the petitioners that M/s. J.K. Synthetics Ltd. was not a person aggrieved and therefore, was not competent to file the application under Section 198 (4) of the Act, 1950 is concerned, this submission of the learned counsel for the petitioner is completely misconceived for the reason that the land in question had originally been allotted to M/s. J.K. Synthetics Ltd. in the year 1976 and therefore, whether they failed to fulfill the terms and conditions of paragraphs 3 and 4 of the lease deed and in the absence thereof what would be its effect is quite another matter. But if the land originally allotted to them is subsequently allotted to the petitioners without cancelling the patta of M/s. J.K. Synthetics Ltd., for purposes of present writ petition, it cannot be said that they were not the person aggrieved and, therefore, it must be held that they were the persons aggrieved within the meaning of the term as used in Section 198 (4) of the Act, 1950. 20. 20. There is another aspect of the matter if, for a moment it is to be accepted that M/s. J.K. Synthetics Ltd. had not fulfilled the terms and conditions of paragraphs 3 and 4 of the lease executed between them and the Nagar Palika, Gautam Budh Nagar, it cannot be assumed by legal fiction that the land would automatically vest in the State Government because the language used in the lease deed in paragraph 5 is that the lessor shall have the option to re-enter upon the demised land and for that it shall forfeit 1/4th amount of the price paid for the land and be entitled to return 3/4th of the amount. Thus, the language of paragraph 5 clearly demonstrates that the factum of re-entery was based solely on the part of the lessor to re-enter the land. There is nothing on record to show that this option had been exercised by the lessor, namely, the Governor and, therefore, in the absence of anything on record to show that such an option had been exercised it cannot be assumed by way of legal fiction that the State Government had reentered upon the land in dispute extinguishing the rights of M/s. J.K. Synthetics Ltd. 21. Reference may also be made to the provisions of Rule 176-A of the Rules, 1952. The proviso to the said Rule clearly and unambiguously lays down that no lease be made to an asami for a period exceeding five years. Sub-section (2) thereof, further lays down that it would be lawful for the Assistant Collector Incharge of the sub division to determine such lease any time and upon such determination, the asami shall not be entitled to any possession. A bare reading of sub-section (2) shows that it relates to a situation where the period of five years had not yet expired and there may be an instance requiring determination of lease granted to the asami and if this power is exercised by the Assistant Collector Incharge of the sub division he may determine the lease granted in favour of the asami. The provision of sub-section (2) to Section 176-A comes into play if the term of the lease has expired by efflux of time of five years. The provision of sub-section (2) to Section 176-A comes into play if the term of the lease has expired by efflux of time of five years. The proviso to sub-section (1) of Section 176-A, however, clearly prescribes the time period of five years during which the lease shall be valid and emphatically declares that no lease shall be made to an asami for a period exceeding five years. There is no provision under Section 176-A which may provide for extension of the time period of five years, which implies that the lease would determine automatically by fiat of law on expiry of the period of five years by efflux of time. Even assuming for a moment that the lease had been granted to the petitioners through the resolution dated 26.11.1994 and 18.8.1995 that lease would stand expired on the expiry of five years thereafter. Therefore, the petitioners would have no right, as of today, to maintain this writ petition questioning the impugned order of the Additional Collector cancelling the resolution. The petitioners as of today, are rank trespassers over the land in dispute. 22. This Court has to consider another aspect of the matter that even if, it is assumed for a moment that there was a valid lease granted in favour of the petitioners under the Resolution dated 26.11.1994 and 18.8.1995 but as of today, the impugned orders if, set aside would have effect of restoring the petitioners to their original position as lease holders. This is not permissible in view of the fact that the patta would have automatically came to an end on the expiry of 5 years from the date of its grant and, therefore, in any case, no such relief can be granted to the petitioners in this writ petition which would have the effect of nullifying the statutory consequences of the proviso to Section 176-A of the Act, 1950 and thereby perpetuate an illegality. 23. For reasons aforesaid, I do not find any illegality or infirmity in the impugned orders. 24. The writ petition lacks merit and is accordingly, dismissed. 25. The original records provided by Sri Rajesh Singh, learned Standing Counsel shall be returned to him.