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Allahabad High Court · body

2022 DIGILAW 1712 (ALL)

Chandra Prakash v. State of U. P.

2022-10-31

CHANDRA KUMAR RAI

body2022
JUDGMENT : 1. Heard Ms. Pratima Singh, learned counsel for the petitioner, learned standing counsel for the respondent nos. 1 to 5 and Sri Hari Narain Singh, learned counsel for respondent no.6. 2. The brief facts of the case are that petitioner belong to scheduled caste community. Petitioner’s father Mewa Lal along with sixteen others, was granted lease for agriculture purpose in the year 1975 in respect to plot no.107M, area 0.256 hectare and plot no.232 M, area 0.154 hectare, the name of petitioner’s father has been recorded in the revenue records, accordingly, petitioner father came in possession of disputed plot and started agriculture in the same. Petitioner was paying irrigation charges also as per provision. In the year 1994, Lekhpal submitted a report on 3.9.1994 that petitioner’s father is not doing agriculture for that last two years, accordingly, recommendation was made for taking action under Rule 61, under Section 186 of the U.P. Z.A. & L.R. Act. Petitioner’s father filed his objection on 14.9.1994 to the proceeding initiated under Section 186 of the U.P.Z.A. & L.R. Act, stating that he is doing agriculture in the plot in dispute and the crops are standing in the same. The Tahasildar vide order dated 8.2.1995 affirmed the Lekhpal report, cancelled the lease of petitioner’s father and vested the land in favour of Gaon Sabha. Petitioners filed Revision before the Board of Revenue under Section 333 of the U.P. Z.A. & L.R. Act on 6.5.2013 against the order dated 8.2.1995, along with the stay application and prayer for condonation of delay was also made. Board of Revenue dismissed the Revision vide order dated 12.4.2016 on the ground of limitation as well as on merit and affirmed the order dated 8.2.1995. Out of 17 allottees, 9 allottees were served notice for the proceeding under Section 198 of the U.P.Z.A. & L.R. Act, 8 allottees had not been served notice. Additional Collector vide order dated 17.2.1995 passed the order against the lease holders, accordingly, the lease holders Mani Ram and Others filed revision before the Commissioner, Kanpur Region, Kanpur which was dismissed for non-prosecution vide order dated 12.31996 and restoration application was rejected vide order dated 19.8.1999. Additional Collector vide order dated 17.2.1995 passed the order against the lease holders, accordingly, the lease holders Mani Ram and Others filed revision before the Commissioner, Kanpur Region, Kanpur which was dismissed for non-prosecution vide order dated 12.31996 and restoration application was rejected vide order dated 19.8.1999. Against the order of the Additional Commissioner, Mani Ram and Others filed revision before the Board of Revenue which was allowed vide order dated 9.8.2004, setting aside the order dated 12.3.1996 and 19.8.1999 and matter was remanded back before the Collector to decide the dispute on merit. In pursuance of the order dated 27.8.2004, passed by the Board of Revenue, the matter was heard by the Collector concerned in Case No.88 of 2005-06 (State vs. Mani Ram) in which physical verification was made and report dated 6.9.2007 was submitted before the Collector, Kanpur Dehat. The Collector vide order dated 15.4.2010 set aside the order dated 17.2.1995, dropped the notice, issued to the lease holders, Mani Ram and Others and ordered to record the name of lease holders as bhumidhar with transferable rights, the finding has been recorded that the crops are standing in the disputed plot and the lease was executed long back about 27 years before, as such, the proceeding for cancellation of lease is wholly illegal. On the basis of the order dated 15.4.2010, the name of the lease holders has been recorded in the revenue records. Hence, this petition on behalf of petitioner in respect of his lease against the order of Board of Revenue dated 12.4.2016 and order dated 8.2.1995 passed by Tahasildar. 3. Counsel for the petitioner submitted that petitioner’s father along with 16 others, belonging to scheduled caste community was granted lease for agricultural purpose in the year 1975, petitioner’s father, accordingly, started cultivation in the alleged land but the present proceeding after about 20 years has been initiated against the petitioner’s father under Section 186 of the U.P.Z.A. & L.R. Act, on the basis of the alleged report of Lekhpal that petitioner’s father was not doing cultivation for the last 2 years, although petitioners’ father was doing cultivation continuously in the disputed plot but under impugned order, disputed plot of the petitioner’s father was vested in the Gaon Sabha and the revision filed by the petitioner has been arbitrarily dismissed by passing a cryptic order on limitation as well as on merit. It is further submitted that no physical verification was done and on the basis of the collusive report of the Lekhpal only the plot in disputed has been vested in the Gaon Sabha. He further submitted that according to the provisions contained under Section 186(5) of the U.P.Z.A. & L.R. Act, proceeding was liable to be dropped as petitioner’s father filed objection to the notice issued to him under Section 186 of the U.P. Z.A. & L.R. Act. He placed reliance upon Section 186 of the U.P. Z.A. L.R. Act which is as follows:- “186. Abandonment. -(1) Where a [bhumidhar with non-transferable rights] (other than a minor, lunatic or idiot) or asami has not used his holding for a purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming for two consecutive agricultural years, [the tahsildar may, on the application of the [Gaon Sabha] or the landholder or on facts coming to his notice otherwise, issue a notice] to such [bhumidhar with non-transferable rights] or asami, as the case may be, to show cause why the holding be not treated as abandoned. (2) The application shall contain such particulars as may be prescribed. (3) If the tahsildar finds that the application has been duly made he shall cause to be served on the [bhumidhar with non-transferable rights] or the asami or publish in the manner prescribed a notice in the form to be prescribed requiring him to appear and show cause on a date to he fixed why the holding be not held as abandoned. (4) If the [bhumidhar with non-transferable rights] or the asami does not appear in answer to the notice or appears but does not contest it, the tahsildar shall declare the holding as abandoned and thereupon, except provided in [Section 172], the holding shall be deemed to be vacant land[:] [Provided that no declaration under this sub-section shall made in respect of a holding or any part thereof, if the same has been mortgaged by the [bhumidhar with non-transferable rights] under sub-section (2) of Section 153 and the mortgage has not been fully redeemed, in which case the tahsildar shall move the Collector for the realization of the loan in such manner as may be prescribed.] [(5) If the [bhumidhar with non-transferable rights] or asami appears to contest the notice, the tehsildar shall drop the proceedings.]” 4. He further submitted that petitioner along with 16 other persons was granted lease in 1975 and the lease of similarly situated persons after the remand order passed by Board of Revenue has been maintained by the Collector vide order dated 15.4.2010 /27.8.2010 but in respect of the petitioner, the land has been vested in the Gaon Sabha on the ground that the petitioner was not doing cultivation for the last 2 years. He further submitted that there was no discrimination among the similarly situated persons as the ground for cancellation was same against all the lease holders. Counsel for the petitioner further finally submitted that the impugned order be set aside and lease granted in 1975 be affirmed. Counsel for the petitioner placed reliance upon Section 131-B of U.P. Z.A. & L.R. Act which is as follows:- “[131-B. Bhumidhar with non-transferable rights to become bhumidhar with transferable rights after ten years. (1) Every person who was a bhumidhar with non-transferable rights immediately before the commencement of the Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1995 and had been such bhumidharfor a period of ten years or more, shall become a bhumidhar with transferable rights on such commencement. (2) Every person who is a bhumidhar with non-transferable rights on the commencement referred to in sub-section (1), or becomes a bhumidhar with non-transferable rights after such commencement, shall become bhumidharwith transferable rights on the expiry of period of ten years from his becoming a bhumidhar with non-transferable rights. (3) Notwithstanding anything contained in any other provision of this Act, if a person, after becoming a bhumidharwith transferable rights under sub-section (1) or sub-section (2), transfers the land by way of sale, he shall become ineligible for a lease of any land vested in Gaon Sabha or the State Government or of surplus land as defined in he Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960.] 5. Counsel for the petitioner submitted that petitioner’s father was granted lease in the year 1975, as such, due to operation of law as provided under Section 131-B of the U.P. Z.A. & L.R. Act, petitioner’s father became bhumidhar with transferable right of the plots in dispute. 6. Counsel for the petitioner submitted that petitioner’s father was granted lease in the year 1975, as such, due to operation of law as provided under Section 131-B of the U.P. Z.A. & L.R. Act, petitioner’s father became bhumidhar with transferable right of the plots in dispute. 6. On the other hand, the learned standing counsel as well as counsel for respondent no.5-Land Management Committee submitted that petitioner was not doing agricultural work on the land allotted to him, as such, the proceeding was rightly initiated against the petitioner and the land was rightly vested in the State. He further submitted that the revision filed by the petitioner against the order of the Collector was highly time barred, as such, the revision was rightly dismissed on the ground of limitation as well as on merit. They finally submitted that no interference is required against the impugned order and the writ petition is liable to be dismissed. 7. I have considered the arguments advanced by learned counsel for the parties and perused the record. 8. There is no dispute about the fact that petitioner along with 16 others belonging to scheduled casts community was granted lease for agricultural purposes in the year 1975 and the proceeding under Section 186 of the U.P. Z.A. & L.R. Act has been initiated after expiry of about 20 years. On the basis of the report of the Lekhpal that petitioner is not doing any cultivation work in the plot in dispute, the Tahasildar vide order dated 8.2.1995 vested the land in the Gaon Sabha. The revision filed by the petitioner against the order dated 8.2.1995 was dismissed on the ground of limitation as well as on merits. Although, in respect of the other least holders, the lease was affirmed vide order dated 15.4.2010/27.8.2010. 9. Since petitioner was granted lease in the year 1975 along with 16 others and was continuously doing cultivation work in the alleged land, as such, the vesting of land in the Gaon Sabha only on the basis of the report of Lekhpal is arbitrary. In respect of the other lease holders, the physical verification was conducted and it was found that they are cultivating in the lease land, as such, the lease under the similar circumstances executed in their favour was maintained by the Collector but in the case of the petitioner, no physical verification, etc. In respect of the other lease holders, the physical verification was conducted and it was found that they are cultivating in the lease land, as such, the lease under the similar circumstances executed in their favour was maintained by the Collector but in the case of the petitioner, no physical verification, etc. was done and the lease was cancelled and the land was vested in the Gaon Sabha, although in view of provisions contained under Section 186(5) of the U.P. Z.A. & L.R. Act, the proceedings was liable to be dropped. After the order dated 8.2.1995 passed against the petitioner, petitioner filed revision with delay before the Board of Revenue, praying for condonation of delay (as petitioner was approaching the authorities for redressal of his grievance under advice) but Board of Revenue has dismissed the revision on the ground of delay as well as on merit, saying that order passed by the courts below is in accordance with law. 10. So far as the delay in filing revision is concerned, the Hon'ble Supreme Court in the case, reported in AIR 1987 SC 1353 , Collector, Land Acquisition, Anantnag and Another vs. Mst. Kantiji and Others has held that in place of deciding the dispute on technical grounds the matter should be adjudicated on merit. Paragraph no.3 of the judgment are quoted hereunder: "The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides." 11. Although in the revision, there was delay of more than 10 years but the lease of the other lease holders has been ultimately maintained on the same ground, as such, discrimination to the petitioner will be illegal and will cause irreparable injury to the petitioner, as such, the interest of justice requires that petitioner’s lease be also affirmed. 12. Another important aspect of the case is that Section 186 (5) of U.P.Z.A. & L.R. Act specifically provides for dropping of the proceeding under Section 186 of U.P.Z.A. & L.R. Act if the bhumidhar with non transferable rights or asami appears to contest the proceedings. 12. Another important aspect of the case is that Section 186 (5) of U.P.Z.A. & L.R. Act specifically provides for dropping of the proceeding under Section 186 of U.P.Z.A. & L.R. Act if the bhumidhar with non transferable rights or asami appears to contest the proceedings. In the present case petitioner’s father appears and filed his objection even then the Tahsildar has passed the impugned order dated 8.2.1995 vesting the disputed plot in favour of Gaon Sabha. The provisions of Rule 168 & 169 of U.P.Z.A. & L.R. Rules prescribes the procedure for initiation of proceeding under Section 168 of U.P.Z.A. & L.R. Act as well as its disposal, Rule 169 (2) of U.P.Z.A. & L.R. Rules are as follows:- “169(2) If the tenureholders does not appear in spite of service or publication of the notice as laid down in sub-rule (1), or if the tenureholder appears and does not contest the notice, the Tahsildar shall, except where the holding or any part thereof has been mortgaged under sub-section (2) of Section 153 and the mortgage has not been fully redeemed, declare the holdings as abandoned and order the annual registers to be corrected accordingly. If the tenureholder appears and contests the notice, the Tahsildar shall drop the proceedings.” 13. Section 168 (5) of U.P.Z.A. & L.R. Act as well as Rule 169 (2) of of U.P.Z.A. & L.R. Rules very specifically provides for dropping of the proceedings under Section 186 of U.P.Z.A. & L.R. Act but Tahsildar has passed the impugned order for vesting the land in Gaon Sabha in spite of the fact that petitioner’s father appears and filed his objection to the proceeding, as such, impugned orders cannot be sustained in the eye of law. 14. Considering the entire facts and circumstances of the case, provisions of U.P.Z.A. & L.R. Act/Rules as well as the ratio of law laid down by the Apex Court in Land Acquisition, Anantnag and Another (supra), the impugned order dated 12.4.2016 passed by the Board of Revenue, Allahabad Bench, Allahabad and order dated 8.2.1995 passed by the Tehsildar, Kanpur Dehat are liable to be set aside and the same are hereby set aside. 15. 15. The writ petition stands allowed and respondent no.2/Collector, Kanpur Dehat is directed to record the name of petitioner in the revenue record in respect to disputed plots within period of six weeks from the date of production of the certified copy of this order. 16. No order as to costs.