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2023 DIGILAW 1423 (ALL)

Bhupendra v. State of U. P.

2023-05-24

KSHITIJ SHAILENDRA

body2023
JUDGMENT Kshitij Shailendra, J. These two writ petitions contain common questions of fact and law and, therefore, the same are being decided by this common judgement. 2. One Smt. Revti was granted a lease in respect of Gata Nos.1150 and 645 by the Land Management Committee in the year 1992. Certain proceedings under Section 198(4) of the U.P. Zamindari Abolition & Land Reforms Act-1950 (in short 'the Act- 1950') were initiated alleging the lease as invalid, however, the same were dismissed on 29.12.1995. Smt. Revti executed a sale deed in respect of Gata No.1150 in favour of her son Jagpal Singh in the year 2006 whereas another sale deed was executed in favour of Anita Sharma and others in respect of Gata No.645 in the year 2003. 3. A complaint was made by the complainant-respondent in the year 2015 alleging that lease granted in favour of Smt. Revti was invalid as, at the time of grant of lease, her son Jagpal Singh was Village Pradhan, i.e. head of the Land Management Committee. Further allegations were made in respect of transfer of land in favour of Jagpal Singh and Anita Sharma. 4. The proceedings were opposed by Jagpal Singh and Anita Sharma etc. and, by a common order dated 30.01.2016, the Additional Collector (Finance & Revenue)-Hapur, by placing reliance upon provisions of Section 28-C of the U.P. Panchayat Raj Act-1947 (in short 'the Act-1947'), held that allotment made in favour of Smt. Revti in relation to Khasra No.645, being hit by Section 28-C of the Act-1947, stood cancelled and, insofar as allotment made in respect of Gata No.1150 was concerned, objections were rejected. 5. There is no dispute about the fact that Smt. Revti died on 29.04.2006 after executing aforesaid sale deeds. There is also no dispute about the fact that Smt. Revti was not Village Pradhan nor did she hold any other post in the Land Management Committee in the year 1992, or otherwise, however, her son Jagpal Singh, admittedly, was Pradhan at that time. 6. Two revisions were filed against order dated 30.01.2016, one by the complainant-respondent and the other by Smt. Anita Sharma and others. 6. Two revisions were filed against order dated 30.01.2016, one by the complainant-respondent and the other by Smt. Anita Sharma and others. The revision filed by the complainant was allowed by the order impugned dated 12.05.2016 whereby the allotment made in favour of Smt.Revti in respect of Gata No.1150 which was saved by the previous order dated 30.01.2016 was cancelled as hit by Section 28-C of the Act- 1947. Insofar as other revision is concerned, the same was filed by Anita Sharma and others which was also dismissed by order dated 12.05.2016. In both the matters, review applications were also filed by the parties aggrieved which were also rejected. 7. Learned counsel for the petitioners has made following submissions:- (a). The proceedings initiated under Section 198 (4) of the Act 1950 were barred by limitation; (b). The finding recorded in the order impugned that allotment being hit by Section 28-C of the Act-1947 is contrary to law as the said Section does not prohibit execution of lease/sale etc. in favour of a family member of the Village Pradhan. (c) The land was declared as "abadi" under Section 143 of the Act 1950 in the year 2007 and, therefore, even on the date of filing of complaint in the year 2015, it ceased to be a "land" and, hence the proceedings under Section 198(4) of the Act 1950 were not maintainable. 8. Per contra, leaned Standing Counsel as well as learned counsel for the respondent-complainant have argued that the petitioner-Jagpal Singh has abused his position, inasmuch as, taking advantage of his position as Village Pradhan, he deliberately got executed lease deed in favour of his mother Smt. Revti and the lessee (Revti) transferred the land in 2003- 2006 in favour of her son as well as Anita Sharma and others and the entire transactions were made to usurp the land of the Land Management Committee. They further submit that bar of limitation under Section 198(4) of the Act 1950 would not apply in those cases where transactions are fraudulent and as per section 17 of the Limitation Act, 1963, period of limitation would begin to run from the date when the fraud stands revealed. They further submit that lessee (Revti) could not transfer the land and, therefore, sale deeds executed by her in the year 2003 and 2006 are invalid. 9. They further submit that lessee (Revti) could not transfer the land and, therefore, sale deeds executed by her in the year 2003 and 2006 are invalid. 9. I have heard learned counsel for the parties and perused the record. 10. Insofar as, first submission of learned counsel for the petitioners that the proceedings under Section 198(4) of the Act 1950 were barred by limitation, I am not inclined to accept the same as question of limitation is a mixed question of fact and law and it depends upon the facts and circumstances of a particular case. It is well settled that bar of limitation under Section 198(4) of the Act 1950 would not come in the way when cancellation of lease is sought on the basis of revealing of fraud. 11. Reliance has been placed by learned counsel for the respondents upon the judgement of this Court in Surendra Kumar v. State of U.P. & Ors. reported in 2013 (119) RD 270 wherein, after interpreting the effect of fraud, this Court has held that limitation would not come in the way of cancellation of lease. 12. Insofar as the second contention regarding applicability/non-applicability of Section 28-C of the Act 1947 is concerned, the argument is that the said provision restricts grant of licence, lease, sale, exchange, contract or employment in favour of members and officers of the Land Management Committee. 12. Insofar as the second contention regarding applicability/non-applicability of Section 28-C of the Act 1947 is concerned, the argument is that the said provision restricts grant of licence, lease, sale, exchange, contract or employment in favour of members and officers of the Land Management Committee. For a ready reference, Section 28-C of the Act 1947 is quoted here in below:- "28-C- "Members and officers not to acquire interest in contract etc., with Bhumi Prabandhak Samiti - (1) No member or office bearer of [Gram Panchayat] or Bhumi Prabandhak Samiti shall, otherwise than with the permission in writing of the Collector, knowingly acquire or attempt to acquire or stipulate for or agree to receive or continue to have himself or through a partner or otherwise any share or interest in any licence, lease, sale, exchange, contract or employment with, by or on behalf of the Samiti concerned; Provided that a person shall not be deemed to acquire or attempt to acquire or continue to have or stipulate for or agree to receive any share or interest in any contract or employment by reason only of his (a) having acquired any interest before he became a member or office bearer; (b) having a share in a joint stock company which makes the contract; and (c) having a share or interest in the occasional sale through the Samiti concerned of an article in which he regularly trades up to a value not exceeding Rs. 50 in any one year. (2) No court or other authority shall enforce at the instance of any person a claim based upon a transaction in contravention of the provisions of sub-Section (1)." 13. Learned counsel for the petitioners on this issue has placed reliance upon the following judgements:- (a). Order dated 05.12.2018 passed in Writ C No.23951 of 2018 (Dhanmani Devi & Anr. v. State of U.P. & 5 Ors.); (b). Ram Nandan & Anr. v. Deputy Director of Consolidation & Ors. reported in 1982 LawSuit (All) 610; (c). Govind & Ors. v. Sub Divisional Officer & Ors. reported in 1986 LawSuit (All) 390; (d). Lalloo & Ors. v. Commissioner, Allahabad Division & Ors. reported in 2009 (4) AWC 4021 . 14. v. State of U.P. & 5 Ors.); (b). Ram Nandan & Anr. v. Deputy Director of Consolidation & Ors. reported in 1982 LawSuit (All) 610; (c). Govind & Ors. v. Sub Divisional Officer & Ors. reported in 1986 LawSuit (All) 390; (d). Lalloo & Ors. v. Commissioner, Allahabad Division & Ors. reported in 2009 (4) AWC 4021 . 14. The ratio of law laid down in the aforesaid Authorities is that Section 28-C of the Act 1947 does not create a bar in acquisition of any interest by relatives or family members of the Village Pradhan. This Court, in the case of Lalloo & Ors. (supra), has gone to the extent that even if, such transactions are treated to be fraudulent or for unlawful settlement of the land of Gaon Sabha in favour of the family members or relatives of Pradhan, provisions of Section 28-C of the Act 1947, in its existing form, would not be attracted and in order to bring such transactions within the category of unlawful transactions, legislature has to amend Section 28-C of the Act 1947. Relevant paragraph nos.11 and 19 of the said judgement are quoted here in below:- "11. However, I would like to observe that Section 28-C requires amendment. The giving of lease or acquisition of interest over the Gaon Sabha property by its members or its close relatives should be specifically barred. The peoples' representatives holding office as member of Gram Sabha or its office bearer are public representative and they adorn the office to provide a selfless service to the village at large. They are not expected to abuse their office for their near relatives or family members. In any case, appropriate safeguard should be provided by appropriate amendment in the U.P. Panchayat Raj Act 1947 so that Gram Sabha or its members may not abuse their office in the interest of their relatives or close associates." 19. Let a copy of the judgement be sent by the registry to the Principal Secretary, Revenue and Principal Secretary, Law to take appropriate steps for amendment in the U.P. Panchayat Raj Act keeping in view the observations made in the present judgement to safeguard the interest of the members of the property of Gram Sabha." 15. Let a copy of the judgement be sent by the registry to the Principal Secretary, Revenue and Principal Secretary, Law to take appropriate steps for amendment in the U.P. Panchayat Raj Act keeping in view the observations made in the present judgement to safeguard the interest of the members of the property of Gram Sabha." 15. Nothing has been brought on record pursuant to the aforesaid directions issued by this Court to Principal Secretary, Revenue and Principal Secretary, Law, that any amendment has been made in Section 28-C of the Act-1947. Therefore, the allotment made in favour of Smt. Revti in the year 1992 when Jagpal was holding the post of Village Pradhan would not be hit by Section 28-C of the Act 1947. 16. It is to be noted that while cancelling the allotment made in respect of Gata No.645, the Additional Collector had observed that Jagpal Singh has succeeded the rights of Smt. Revti and, therefore, he is a beneficiary of the illegal transaction. The said finding does not appear to be according to law as even if, Jagpal Singh succeeded rights of Smt. Revti being her son, the question before the Court was regarding validity of the allotment made in the year 1992 and if it is held that lease hold rights were rightly granted in favour of Smt. Revti in the year 1992, the allotment to this effect would not become invalid, merely on the basis of succession. 17. Insofar as third contention of the learned counsel for the petitioners that the land was declared as "abadi" under Section 143 of the Act 1950 in the year 2007 and, therefore, it ceased to be a "land" is concerned, the submission of learned counsel for the respondents is that though the declaration was made in the year 2007, since the matter was in relation to the lease hold rights granted in the year 1992 when the nature of land was agricultural land, the argument of the petitioners has no force. 18. 18. I have analyzed this aspect of the matter and I find that for exercise of powers under Section 198 of the Act 1950, the "land" has to be a land as defined under Section 3(14) of the Act 1950 which reads as under:- "3(14) "Land" [except in Sections 109, 143 and 144 and Chapter VII] means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming;" 19. A perusal of the aforesaid provision shows that the land in respect whereof, declaration under Section 143 of the Act-1950 has been made, has been kept into exceptional clause in the definition of "land" itself and, hence, once a declaration was made under Section 143 eight years prior to lodging of complaint, the Authorities had no jurisdiction to exercise powers under Section 198 of the Act 1950. I also find that though this aspect was pleaded and raised by the petitioners' side before the courts below, no finding has been recorded by the courts below in this regard and simply by interpreting Section 28-C of the Act 1947, lease has been cancelled. 20. Insofar as submission of learned counsel for the respondents to the effect that sale deeds executed by lessee (Revti) in favour of Jagpal Singh and Anita Sharma were invalid, I am not in a position to accept this submission at least, in the present proceedings, as the validity of transactions of sale is not an issue before this Court and the entire proceedings were in relation to analysis of validity of lease granted in favour of Smt. Revti in the year 1992. 21. In view of the above discussion, the writ petitions succeed and are allowed. 22. The order impugned dated 11.07.2016 passed by Additional Commissioner, Meerut, Division Meerut and order 12.05.2016 passed by the respondent no.2-Commissioner, Meerut Division Meerut in Case No.33 of 2015-16 (Sheeshpal v. Jagpal & Ors.) impugned in Writ C No.14693 of 2017 and order dated 30.01.2016 passed by the Additional Collector (Finance & Revenue) Hapur in Case No.T-2015117300484 and order dated 12.05.2016 passed by the Additional Commissioner, Meerut, Division Meerut in Case No.35 of 2015-16 (Anita Sharma & Ors. v. State of U.P. & Ors.) and dated 11.07.2016 passed by Additional Commissioner, Meerut, Division Meerut impugned in Writ C No.39956 of 2016 are hereby quashed.