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2024 DIGILAW 2467 (ALL)

Bhura v. State of U. P.

2024-12-05

J.J.MUNIR

body2024
JUDGMENT : J.J. Munir, J. 1. Heard Mr. Deepak Kumar Kulshrestha, learned Counsel for the petitioner in support of the motion to admit this petition to hearing at length, Mr. Anuj Kumar Gupta, learned Counsel appearing on behalf of the non-party caveator under Chapter XXII Rule 5A of the Rules of Court, 1952 and Mr. Amresh Kumar Tiwari, learned Standing Counsel appearing on behalf of respondents Nos. 1, 2 and 3. No one appears on behalf of respondents Nos. 4 and 5. 2. Plots of land comprised in Gata No.419, admeasuring a total of 0.9790 hectare, situate in Village Asharpur, Tehsil and District Sambhal were allotted in the year 2000 in favour of four brothers, to wit, Bhura, Akhtar, Munna and Tahir, all sons of Ishtiaq Hussain. Bhura was allotted Gata No.419/1, admeasuring 0.2460 hectare, Akhtar Gata No.419/2, admeasuring 0.2460 hectare, Munna Gata No.419/3, admeasuring 0.2440 hectare and Tahir Gata No.419/4, admeasuring 0.2430 hectare. They were granted agricultural patta by a resolution of the Land Management Committee, Village Asharpur dated 15.01.2000. The resolution received the approval of the Sub-Divisional Magistrate, Sambhal on 27.02.2000. There is nothing objectionable to the said settlement, but for one fact that renders it invalid and utterly vitiated. All the allotments when made on 15.01.2000 by the Land Management Committee, the Gram Pradhan was Kallu son of Ishtiaq Hussain, the fifth brother of these allottees. The resolution received the approval of the Sub-Divisional Magistrate, Sambhal on 27.02.2000. There is nothing objectionable to the said settlement, but for one fact that renders it invalid and utterly vitiated. All the allotments when made on 15.01.2000 by the Land Management Committee, the Gram Pradhan was Kallu son of Ishtiaq Hussain, the fifth brother of these allottees. Section 28-C of the Uttar Pradesh Panchayat Raj Act, 1947 (for short, 'the Act of 1947') reads: “ 28-C. Members and officers not to acquire interest in contract etc., with Bhumi Prabandhak Samiti – (1) No member of 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 upto 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 subsection (1).” 3. A reading of the orders impugned passed by the two Authorities below, that is to say, the Collector, Sambhal dated 06.09.2023 and the revisional order passed by the Additional Commissioner-II, Moradabad Region, Moradabad dated 26.09.2023, show that they are categorical in their findings that the allotment was made in the petitioners' favour, when their brother was the Village Pradhan. A reading of the orders impugned passed by the two Authorities below, that is to say, the Collector, Sambhal dated 06.09.2023 and the revisional order passed by the Additional Commissioner-II, Moradabad Region, Moradabad dated 26.09.2023, show that they are categorical in their findings that the allotment was made in the petitioners' favour, when their brother was the Village Pradhan. It is true that the embargo under Section 28-C against acquisition of interest in land of the Gaon Sabha is upon a member or an office bearer of the Gram Panchayat or the Land Management Committee without the Collector's permission in writing and not upon members of his family as such. However, the provision does stipulate very clearly that the embargo upon the office bearer would extend to acquisition of interest or share in a licence or lease etc., relating to Gaon Sabha land by the office bearer 'through a partner or otherwise'. 4. The sudden and odd allotment of Gaon Sabha land to four brothers of the Village Pradhan raises a presumption, given the prevalent social conditions and the rather poor moral values that the allotment after all was an acquisition by the Pradhan himself, though in the name of his brothers. It is too much of a coincident to be accepted for truth that all the four brothers of the Pradhan were found suitable for allotment of the agricultural pattas in issue, assuming that they were all eligible. Section 28- C is a provision brought to curtail the mischief of nepotism and annexation of public property by the elected office bearers of the Panchayat or the Land Management Committee, in whose trust it is placed. The provision, therefore, has not to be interpreted literally, but very purposively. A pedantic approach that mathematically reads the statute to mean that it would place an embargo upon the right of a member or office bearer alone to acquire interest in Gaon Sabha land, without prior permission of the Collector, would ultimately defeat its purpose. An allotment of Gaon Sabha land in favour of a blood relative of an office bearer of the Panchayat or the Land Management Committee must be presumed to be an acquisition by such member and within mischief of the words 'through a partner or otherwise', occurring in sub-Section (1) of Section 28-C of the Act of 1947. An allotment of Gaon Sabha land in favour of a blood relative of an office bearer of the Panchayat or the Land Management Committee must be presumed to be an acquisition by such member and within mischief of the words 'through a partner or otherwise', occurring in sub-Section (1) of Section 28-C of the Act of 1947. If this presumption of fact, which of course would be rebuttable, is not raised, the very purpose of Section 28-C of the Act of 1947 would stand defeated. 5. In this case, matters become all the more suspicious because on a perusal of record, the Collector has returned a finding to the effect that the allotment papers show that the minute book of the Gaon Sabha of the day does not carry the signatures or thumb impressions of members of the Land Management Committee and at the end of the resolution, the Gram Pradhan alone has signed it. In the same manner, the agenda too is signed by the Pradhan alone and not by the other members of the Land Management Committee or the Lekhpal. The allotment being in favour of the four brothers of the Pradhan, the very suspicious record of minutes of the Land Management Committee, signed by the Pradhan alone, place the proceedings under an unignorable cloud of doubt. 6. I do not find it to be a fit case for interference by this Court under Article 226 of the Constitution. 7. In the result, this petition fails and stands dismissed.