(Oral)
1. Heard Sri Ajay Kumar Pandey, learned counsel for the petitioners, Sri Upendra Singh, learned Additional Chief Standing Counsel, Sri M.E. Khan, learned counsel for the respondent no.5 and Sri Mohan Singh, learned counsel appearing for the Gaon Sabha.
2. This petition has been filed challenging the order dated 30.11.2009 passed by the Chief Revenue Officer/ Collector, Faizabad, Ayodhya and the order dated 07.01.2021 passed by the Additional Commissioner (Administration) Ayodhya Division, Ayodhya, rejecting the Revision filed by the petitioners.
3. It is the case of the petitioners that the Land Management Committee of Gaon Sabha Chandipur Nagahara, Pargana Paschim Rath, Tehsil Bikapur, District Faizabad, made a proposal for grant of agricultural lease in favour of 134 persons including the petitioners herein, and the said proposal was approved by the Sub Divisional Magistrate Bikapur on 30.03.2002. The petitioner no.2- Sukhraj and the predecessor-in-interest of petitioner nos.4, 5 and 6 Ramesh Kumar being members of the Land Management Committee were granted permission from the Collector Faizabad for grant of lease as is required under Section 28 (C) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "the Act of 1947").
4. It has been submitted that in pursuance of such proposal, the petitioner no.1 was granted lease on Gata No.902 of 0.150 hectare, the petitioner nos.2 and 3 were granted lease on Gata No.902 on an area of 0.01 hectare, the petitioner no.4 and the father of the petitioner nos.5 and 6 were also granted lease on plot no.902 and 0.015 hectare only. Possession was delivered in July, 2002.
5. The grandfather and father of the respondent no.5 and Ram Jag filed a case for cancellation of lease under Section 198(4) of the U.P. Z.A. & L.R. Act (hereinafter referred to as "the Act of 1950") before the respondent no.3 which was dismissed on 19.08.2002. A recall application was moved which was also rejected on 02.09.2002. The respondent no.5 thereafter himself filed an application for cancellation of patta on 03.10.2007 under Section 198(4) of the Act, 1950. The respondent no.3 called for a report from the Tehsil official and on receipt of the same on 12.04.2008, notice was issued to the petitioners. The petitioners filed objections on 01.05.2009 saying that earlier also in similar proceedings for cancellation of patta, the case of the predecessor-in-interest of the respondent no.5 had been rejected and that the application for cancellation of patta given on 30.03.2002 after the period of five years six months on 03.01.2017 without any application for condonation of delay was not maintainable under the provisions of Section 198 (6)(b) of the Act of 1950.
6. Nevertheless, the order dated 30.11.2009 was passed by the Chief Revenue Officer saying that petitioners were ineligible to be granted patta in the first place and also saying that the land in question i.e. plot no.902 had been inspected by him personally and it had been found that the land is not fit for cultivation as it has trees standing thereon and also as two graves. In the Revision filed by the petitioners, the petitioners had taken specific ground regarding maintainability of the application for cancellation of patta filed by the respondent no.5, therefore, at the initial stage the Revision was entertained and stay of opertation of the order passed by the Chief Revenue Officer was granted on 11.12.2009. The petitioners continued to remain in possession and cultivated the land in question but later on the Revision was dismissed on 07.01.2021.
7. Hence this petition has been filed.
8. It is the case of the petitioners that the Chief Revenue Officer did not consider the objections regarding maintainability of the second application for the same cause of action and also did not consider the question of limitation under sub-clause 6 of Section 198. Learned counsel for the petitioners has referred to a judgment rendered by a Member of the Board of Revenue in Ghanshyam Vs. State, reported in 2004 (97) RD 691, wherein after noticing Section 198 (6)(b) of the Act of 1950 and other case laws reported in 1986 RD 137, 2000 RD Supp 77 and 2001 RD 476, the orders of the cancellation of patta were set aside on the ground of ignoring the limitation provided under Section 198 (6)(b).
9. Learned counsel for the petitioners has also referred to the judgment of this Court in Suresh Giri and others Vs. Board of Revenue, U.P. Allahabad and others, 2010 (2) ADJ 514, wherein this Court had noticed that the time frame prescribed for issuing notice before cancelling allotment of land is provided under Section 198(6) and it is applicable both to suo motto proceedings and on the proceedings initiated on the application of the person aggrieved.
10. This Court however has also observed in the judgment of Suresh Giri (supra), that the Collector was not forbidden to initiate proceedings for cancellation even after the expiry of limitation prescribed, provided he had reason to believe that the allotment is likely to vitiate on account of fraud. Even so, the Collector had to express a satisfaction with regard to the fraud in the order passed by him cancelling the patta.
11. It has been submitted by learned counsel for the petitioners that a perusal of the order of the Chief Revenue Officer would show that the Chief Revenue Officer has not considered the ground of limitation at all. The Chief Revenue Officer has also not cancelled the allotment of patta on the ground of fraud. He has cancelled the patta only on the ground that the petitioners' being the Members of the Land Management Committee and there being no prior permission granted by the Collector, the land could not have been allotted to them and on the ground that the land was not the vacant land. He has also referred to Rules 173, 175, 176 and 177 of the Rules framed under the Act of 1950 saying that such Rules were not followed, and therefore, the allotment has become vitiated. However, while cancelling the patta of the petitioners, he has vested the land of Gata No.902 and 909 in Gaon Sabha in its original category of Naveen Parti.
12. Learned counsel for the petitioners says that in so far as the ground being taken of the land not being fit for cultivation because of the trees standing thereon is concerned, such ground is erroneous as observed by this Court in Ram Pher Singh Vs. Additional Collector, Gonda, 2014 (122) RD 168.
13. This Court has carefully perused the judgment cited by learned counsel for the petitioners and finds that same is inapplicable to the case of the petitioners.
14. This Court in the aforecited case of Ram Pher Singh (supra) had clearly observed that by virtue of Section 4 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, all estates vested in the State and the "estate" has been defined under Section 3 sub Section 8 of the Act which means "an area included under one entry in any of the Register described under Section 32 of the U.P. Land Revenue Act", and the land included trees standing thereupon. Trees that have been mentioned to have been planted on Gaon Sabha land would not give right of ownership of the land which belongs to the Gaon Sabha.
15. Learned Standing Counsel on the other hand has pointed out from Section 28(C) of the Act of 1947 that if a person is a Member of the Land Management Committee, he cannot derive any interest in any property belonging to the Gaon Sabha unless there is a permission in writing of the Collector. In this case, although the petitioners have alleged that the file was sent for grant of permission, but the permission was actually granted after such allotment of patta and after delivery of possession. He has argued that permission means "prior approval" and not later confirmation. It is not disputed that the petitioner no.2 was a Member of the Land Management Committee, petitioner no.3 is his wife, and predecessor-in-interest of petitioners nos.4 to 6 Ramesh Kumar was also the member of the Land Management Committee. In so far as the petitioners no.1 is concerned, he was the real brother of the said Ramesh Kumar, who was the Member of the Land Management Committee, and the predecessor-in-interest of the petitioners nos.4 to 6.
16. It has been submitted by learned standing counsel that while cancelling the patta of the petitioners, an observation has been made by the Chief Revenue Officer that the allottees have been adjusted by allotment of land at some other place to them by the Land Management Committee on 17.04.2002. It has been pointed also by the learned standing counsel that alternative land having been allotted to them by the Land Management Committee itself on 17.04.2002, there was no reason for the petitioners to approach this Court. They should have made an attempt to get the possession over the land that was allotted to them on 17.04.2002.
17. It has been pointed also by learned standing counsel and Sri M.E.Khan, learned counsel appearing on behalf of respondent no.5, that there is no pleading with regard to the limitation in the objections filed by the petitioners before the Chief Revenue Officer. However, it is not disputed that the question of limitation ought to have been considered by the Chief Revenue Officer as he was duty bound to notice Section 198 (6)(b).
18. Learned Standing Counsel on the other hand has argued that the land having been allotted to the persons who were ineligible, without prior permission of the Collector as required under Section 28(C) of the Act, 1947, such allotment was void ab initio, and therefore, there was no question of limitation being a bar in such a matter wherein initial order is nonest.
19. This Court has perused the order passed by the Chief Revenue Officer and also the order passed by the Additional Commissioner (Judicial). It has duly recorded the submission made by the petitioners and then found from the record that the allotments made to the petitioners in 2002 were against the Rules framed under the U.P.Z.A. & L.R. Act. The relevant extract of Rules 173, 176 and 177 of the U.P. Z.A. & L.R. Act Rules are being quoted herein below:-
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 numbers of plots, their areas and the date on which admission thereto is to be made.
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 along with-
(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.
177. - (1) A certificate of admission to land under Section 195 to 197 may be attested by any Revenue Officer not below the rank of a Supervisor Kanungo.
(2) Before attesting the certificate of admission, the Revenue Officer shall satisfy himself that-
(a) the provisions of Rules 173 to 176-A have been followed ; and
(b) the land leased out is not a part of the land which has been reserved for planned use.
(3) If the revenue officer finds that the conditions laid down in sub-Rule (2) have not been observed, he shall refer the matter, to the Assistant Collector incharge of the Sub-Division for necessary action.
20. If the Chief Revenue Officer after examination of documentary evidence has recorded his satisfaction that the aforesaid Rules were not followed in the allotment made to the petitioners, this Court has no reason to disbelieve this observation in the order impugned as the findings of fact recorded by the Chief Revenue Officer have not been disputed specifically in the pleadings in the writ petition.
21. This Court has also considered the argument raised by the learned standing counsel that under Section 28(C) of the Act of 1947, prior approval of the Collector in writing should have been taken before allotment of Gaon Sabha land to the petitioners. The relevant Section 28(C) is being quoted hereinbelow:-
"28-C. Members and officers not to acquire interest in contracts, 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)."
22. In U.P. Awas Evam Vikas Parishad Vs. Friends Corporation Housing Society Ltd., (1995) Sup 3 SCC 456, the Supreme Court has observed that there is a distinction between permission or "prior approval" or "approval". The difference between approval and permission is that in the first case the action hold good until it is disapproved, while in the other case it does not become effective until permission is obtained. No prior permission in writing was taken from the Collector to allot and deliver the possession of Gaon Sabha land to the petitioners or their family members.
23. This Court finds no good ground to show interference in the order impugned.
24. The petition is dismissed.
25. No order as to costs.
Order Date :- 10.2.2021 Rahul