Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1572 (ALL)

Babu Ram v. State of U. P.

2019-07-02

ANJANI KUMAR MISHRA

body2019
JUDGMENT : 1. Heard, Shri. Anupam Kulshreshtha, learned counsel for the petitioner and Shri Santosh Tripathi, who has filed his appearance on behalf of respondent nos.4 an 5 after having obtained no objection from Shri Ramesh Pundir, who had filed caveat on behalf of the said respondents. 2. The instant writ petition arises out of proceedings under Section 138 of the U.P. Revenue Code, 2006 for cancellation of an allotment made in favour of the petitioner in so far as it pertains to plot no.342 area 0.0950 hectare. 3. The application for cancellation of the allotment was filed by Ranvir Singh, respondent no.5 on the ground that the plot in question had been allotted to the petitioner by a resolution of the Gaon Sabha Ataur dated 16.09.1984, which was approved by the Sub Divisional Officer on 11.03.1985. It was alleged that the petitioner is not cultivating the said plot and that he has executed a sale deed of part of some plot, which was also allotted to him. Plot no.342 was coming within the area of National Level Stadium being developed by the Ghaziabad Development Authority and therefore, its allotment was liable to be cancelled in the public interest. It was also averred that a resolution for development of the Gaon Sabha land for a National Level Stadium was passed on 22.08.2016. 4. The application was contested by the petitioner on the ground that he was in cultivatory possession over the plot in question. 5. It was also his case that the allotment having been made in the year 1983, the proceedings for its cancellation were barred by time. An allotment would be cancelled in accordance with Section 128 of the U.P. Revenue Code, 2006 only if the allotment had been made within 5 years from the date of the enforcement of the said Act. 6. The Additional Collector by his order dated 10.01.2019 cancelled the allotment in favour of the petitioner on the ground that the land in question was recorded as naveen parti in the khasra of 1417 to 1425 F and because there was a report of the Tehsildar dated 01.05.2018 that the land in question was not under cultivation. Referring to Section 127 (2) of the Act, the authorities below found that the terms of the allotment were not complied with and therefore, also the allotment was liable to be and was cancelled. 7. Referring to Section 127 (2) of the Act, the authorities below found that the terms of the allotment were not complied with and therefore, also the allotment was liable to be and was cancelled. 7. The order aforesaid has been affirmed upon dismissal of the revision filed by the petitioner vide order dated 18.04.2019 passed by the Additional Commissioner, Meerut Division, Meerut. 8. The Additional Commissioner has additionally observed that the petitioner had entered into an agreement to sell regarding some other land, which was also allotted to him. 9. The contention of counsel for the petitioner is that the proceedings for cancellation of the allotment was hopelessly barred by time. 10. It is next contended that the allotment was liable to be cancelled only in case of a irregularity in the process of allotment. The report that the petitioner was not cultivating the land in question is incorrect and a got up document. Evidence has been produced by the petitioner in the form of Khasra extracts of 1413, 1414 and 1415 F, wherein crops sown by the petitioner were entered in the relevant column thereof. 11. It has also been submitted that no finding of any irregularity in the process of allotment in favour of the petitioner has been found by the two Courts below. 12. It is lastly contended that the entire proceedings have been initiated by the respondent no.5 in his individual capacity. There is material on record to show that in the proceedings for cancellation before the Additional Collector, the Land Management Committee was not a party. The proceedings therefore, were defective and should have been dismissed. In deciding to the contrary, the Courts below have committed manifest illegality. The impugned orders are therefore, liable to be set aside. 13. Counsel appearing for the respondent nos.4 and 5 has submitted that the plot in question is not being cultivated on the spot. 14. It has additionally been submitted that on 26.03.2008 a sale deed of portion of plot no.75 was executed by the petitioner in favour of Premwati and that the plot in question is lying uncultivated since the year 2009. 15. It is lastly contended that the opposite party filed applications under Section 101 of the U.P. Revenue Code, 2006 for exchange of plot no.342. The impugned orders are therefore, liable to be sustained. 16. 15. It is lastly contended that the opposite party filed applications under Section 101 of the U.P. Revenue Code, 2006 for exchange of plot no.342. The impugned orders are therefore, liable to be sustained. 16. I have considered the submissions made by counsel for the parties and perused the record. 17. In my considered opinion, an allotment made in the year 1983 or 1985 could be cancelled, in case of an irregularity in the process of allotment within five years from the date of allotment of the lease in accordance with sub-section 6(b) of Section 198 of the U.P. Zamindari Abolition and Land Reforms Act. The said provision has been replaced by Section 138 of the U.P. Revenue Code consequent to the Repeal of the U.P. Zamindari Abolition and Land Reforms Act. 18. Section 128 of the U.P. Revenue Code, 2006 reads as follows : “The Collector may, of his own motion and shall on the application of any person aggrieved, inquire in the manner prescribed into any allotment and if he is satisfied that the allotment is in contravention of the provisions of this Code or any of the enactments repealed by this Code or the rules made there under, he may cancel the allotment and the lease, if any." 19. Therefore, the allotment made in favour of the petitioner was liable to be cancelled only in case, the procedure prescribed for making the allotment was not followed. Since, no such finding has been returned in the impugned orders, they cannot be sustained and are liable to be set aside. 20. The contention is that the land allotted to the petitioner falls within the area of National Level Stadium being developed cannot be a reason for cancelling the allotment in favour of the petitioner. In case, the land allotted to the petitioner is required for a public purpose, the authorities have no other option but to acquire the same. 21. There is material on record to indicate that the plot no.342 falls within the domain of the Gaon Sabha, respondent no.4. 22. There is no denial of the contention of counsel for the petitioner that the application for cancellation of the allotment in favour of the petitioner was by the Pradhan in his individual capacity, without impleading the Land Management Committee. 22. There is no denial of the contention of counsel for the petitioner that the application for cancellation of the allotment in favour of the petitioner was by the Pradhan in his individual capacity, without impleading the Land Management Committee. Even before this Court, the concerned Gaon Sabha, respondent no.4 is being represented through a Private counsel and not by the Panel lawyer, which is not permissible in view of para 128 of the Gaon Sabha Manual. Neither, there exists any material to show that respondent no.5 was per aggrieved within the meaning of the said term used in Section 128 of the Act. 23. It is also admitted on the record that the National Level Stadium is being developed by the Ghaziabad Development Authority. These facts indicate that the proceedings against the petitioner are malafide. 24. The allegation that the petitioner has executed a sale deed of some other plot, which was also the subject matter of allotment in his favour, does not improve the case of the respondents in any manner. 25. Besides, the narration of the facts in the impugned orders is only to the effect that the petitioner has executed an agreement to sell regarding the said plot. 26. It is settled law that an agreement to sell does not confer any right on the prospective purchaser, except granting him a right to sue for specific performance. An agreement to sell is not a transfer. 27. In view of the foregoing discussion and since, the impugned orders are being found to be patently illegal, the writ petition is allowed. The impugned orders dated 18.04.2019 and 10.01.2019, passed by the respondent nos.2 and 3 respectively, are hereby quashed.