RESERVED ON 05.12.2017 DELIVERED ON 27.07.2018 Case :- WRIT - C No. - 58666 of 2012 Petitioner :- Smt. Rajni Rani Respondent :- Addl. Commissioner And Others Counsel for Petitioner :- Saurabh Sachan,A.K. Sachan,K N Tripathi,K.R. Sirohi Counsel for Respondent :- C.S.C.,Ajay Kumar,Anuj Kumar,Dinesh Kumar Rai,Rakesh Pande
Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed challenging the order dated 10.10.2012 passed by the Additional Commissioner, Meerut Division, Meerut, the Respondent No. 1, rejecting the application for condonation of delay and recall of the order dated 11.07.2001 passed in Revision No. 35 of 1999-2000.
2. The case of the petitioner as stated in the writ petition is to the effect that the petitioner was a landless agricultural labour belonging to scheduled caste and as such, plot No. 243 M area 12 Biswas and plot No. 649 area 4 Bighas and 13 Biswas, a total of 5 Bighas of land was allotted to her by the Land Management Committee on 15.09.1971. The petitioner continued in possession over the land in question and when the consolidation proceedings in the village concerned started, she filed an application under Section 9-A and the Consolidation Officer entered the petitioner as Bhumidhar recognizing her possession over the land. This order of the Additional Commissioner was challenged by the Gaon Sabha in appeal. But the Settlement Officer Consolidation rejected the appeal No. 406 of 1992 on 26.08.1996. No revision was filed against the said order. All of a sudden on 13.07.1999 one Jagdish son of Ratan Singh, resident of village and post Jarcha, Tehsil Dadari, District Gautam Buddha Nagar moved an application under Section 198 (4) of the U.P.Z.A. & L.R. Act before Additional Collector (F & R), District Gautam Buddha Nagar alleging that the Patta said to be made in favour of the petitioner by the Village Land Management Committee of Jarcha was fraudulent. No such Patta was ever granted. The petitioner Rajani Rani wife of Lalla Ram was shown in the voter list of 1993 to be 25 years of age and as such, she would have been only two years old when the such Patta was allegedly granted to her. The Additional Collector disregarded the arguments raised by the counsel for petitioner regarding the non-maintainability of the such application under Section 198 of the U.P.Z.A. & L.R. Act after such a long time of grant of the Patta and allowed the application and cancelled the allotment on 25.05.2000 without summoning the original record of the Gaon Sabha in respect of the proceeding for allotment.
3. It has been stated in the writ petition that the Consolidation Officer in Case No. 98 of 1993 had declared the petitioner Bhumidhar by his order dated 16.09.1993. The Settlement Officer Consolidation had also dismissed the appeal on 26.08.1996. Her title being perfected, it could not have been set aside by holding that the Patta granted by the Gaon Sabha was a forged document.
4. Aggrieved by the order of Additional Collector, the petitioner filed Revision No. 35 of 1999-2000 before the Additional Commissioner, Meerut Division, Meerut. During the pendency of the said revision the petitioner moved another Revision No. 10 of 2001 before the Board of Revenue against the same order dated 25.05.2000. She was granted an interim order by the Board of Revenue, U.P. at Allahabad. She, therefore, filed an application on 11.07.2001, for dismissal of Revision No. 35 of 2000 as withdrawn which was allowed on the same date with a cost of Rs.400/-.
5. The Board of Revenue allowed the Revision No. 10 of 2001 by its order dated 18.02.2002 holding that the Additional Collector had passed the order without jurisdiction ignoring the order passed by the Consolidation Officer. The Respondent No. 5, Jagdish, preferred Writ Petition No. 25714 of 2002 against the order passed by the Board of Revenue alleging that second revision filed before the Board of Revenue was not maintainable under Sub Section (2 ) of Section 333 of the U.P.Z.A. & L.R. Act. This Court by its judgment and order dated 31.08.2012 set aside the order passed by the Board of Revenue on 18.02.2002. The petitioner thereafter filed an application for recall of the order dated 11.07.2001 before the Respondent No. 1 along with an application under Section 5 read with Section 14 of the Limitation Act in which grounds for condoning the delay were taken regarding the writ petition of the Respondent No. 5 being allowed by this Court on 31.08.2012 and the order passed by the Board of Revenue on 18.02.2002 being set aside. In the writ petition Section 14 of the Limitation Act has been quoted and it has been stated that the Additional Commissioner, Meerut Division, Meerut dismissed the restoration application as not maintainable without giving any reason.
6. Heard Sri A.K. Sachan, learned counsel for the petitioner, who has placed the facts of the case before this Court that initially the petitioner had been declared as Bhumidhar under Section 122B4-F by the Consolidation Officer of old Plot No. 243M and 649, total area being five bighas, which was converted into new Plot No. 378-Gha of village Gulahwati Khurd, District Gautam Budh Nagar.
7. The Consolidation Officer having declared the petitioner as Bhumidhar in Case No. 981 on 16.6.1993 and the Appeal being dismissed by the Settlement Officer, Consolidation on 26.8.1996, the title of the petitioner had been perfected. Hence, the respondent no. 5 Jagdish son of Ratan Singh could not have filed an application under Section 198(4) of the U.P.Z.A. & L.R. Act for cancellation of allotment initially made to her by the Land Management Committee on 15.9.1971. The Additional Collector, Finance and Revenue had cancelled the allotment dated 15.9.1971 on 25.5.2000, without jurisdiction and without looking into the limitation prescribed under Section 198(6) of the U.P. Z.A. & L.R. Act.
8. The petitioner thereafter approached the Additional Commissioner, Meerut Division, Meerut in Revision No. 35 of 1999- 2000 filed under Section 333 of the U.P. Z.A. & L.R. on 30.5.2000. After filing of Revision, the petitioner on wrong advice filed a second Revision before the Board of Revenue, namely Revision No. 10 of 2000-01, which was entertained and an interim order granted in her favour by the Board of Revenue.
9. The petitioner thereafter moved an application again on wrong advice before the Additional Commissioner on 11.7.2001 praying for withdrawal of Revision No. 35 of 1999-2000, which was allowed on the same date i.e. the 11.7.2001 by the Additional Commissioner. The Board of Revenue thereafter allowed the Revision No. 10 of 2000-01 by its order dated 18.2.2002 and it set aside the order passed by the Additional Collector, Finance and Revenue dated 25.5.2000 and upheld the allotment in favour of the petitioner.
10. Against such an order passed by the Board of Revenue, the respondent no. 5 filed Writ Petition No. 25714 of 2002, wherein he raised the legal plea regarding maintainability of second Revision against the very same order of the Additional Collector.
11. This Court on examination of the case on merits found that the first Revision was filed by the petitioner against the order dated 25.5.2000 before the Additional Commissioner, which was dismissed with cost on 11.7.2001 as withdrawn. There was no recitation in the order dated 11.7.2001 that the petitioner had been granted liberty to file a second Revision before the Board of Revenue. The second Revision filed before the Board of Revenue was against the provisions of Section 333 sub clauses 1 & 2 of the U.P. Z.A. & L.R. as under sub-clause 2 of Section 333, it is provided that if an application under Section 333 has been moved by any person either to the Board or to the Commissioner, or to the Additional Commissioner no further application by the same person shall be entertained by any other of them.
12. In this case the original Revision was filed by the petitioner before the Additional Commissioner, namely Revision No. 35 of 1999-2000 and during the pendency of the said Revision a second Revision was filed, namely Revision No. 10 of 2000-01 before the Board of Revenue, which could not have been entertained. This Court allowed the writ petition and set aside the order passed by the Board of Revenue dated 18.2.2002.
13. The petitioner thereafter moved an application for restoration of original Revision No. 35 of 1999-2000 before the Additional Commissioner along with the application under Section 5 read with section 14 of the Limitation Act. This application for restoration moved on 11.9.2012 has been rejected by the Additional Commissioner, Meerut Division, Meerut on 10.10.2012, which order has been impugned in this writ petition.
14. Counsel for the petitioner has submitted that the Additional Commissioner ought not to have rejected the application for restoration as the petitioner being a lady and a scheduled caste person was not legally educated enough and believed the wrong advice given by her counsel in moving the initial application for recall of the Revision.
15. He has referred to judgments of the Hon'ble Supreme Court on the ground that a litigant should not be made to suffer due fault of the counsel, namely Rafiq & another Vs. Munshilal & another, AIR 1981 SC 1400 and Prakash Seshmal Jain Vs. Sukhmal & sons & others 2000 (Suppl.) R.D. 623.
16. Learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court in Haryana State Co-op. Land Development Bank Vs. Neelam 2005 SC 1843 to argue that when a writ petition is dismissed as withdrawn, there is no adjudication on merits and it could not operate as res-judicata, and it was open for the litigant concerned to move the Labour Court by filing a claim petition.
17. Learned counsel for the respondents on the other hand has pointed out from the pleadings made in the writ petition and also from the application moved by the petitioner for withdrawal of the case before the Additional Commissioner on 11.7.2001 that the petitioner had initially filed Revision against the order dated 25.5.2000 before the Additional Commissioner and during the pendency of the said Revision, she moved a second Revision under Section 333 before the Board of Revenue for the same relief. She was granted an interim order by the Board of Revenue and thereafter moved an application for recall before the Additional Commissioner saying that she has already got an interim order before the Board of Revenue, and therefore, the pending Revision No. 35 of 1999-2000 be dismissed as not pressed.
18. It is the case of the counsel for the respondents that ignorance of law cannot be an excuse and the petitioner cannot be allowed to re-initiate proceedings, as proceedings should have attained finality at some point in time, and in this case after this Court passed an order in the writ petition filed by the respondent no. 5, setting aside the order of the Board of Revenue, things had attained finality and could not be allowed to be reopened in this manner.
19. In this case, the petitioner had chosen a forum and could not now plead that she was acting under wrong legal advice. The action of the petitioner in moving first Revision against the order dated 25.5.2000 before the Additional Commissioner and the second Revision against the same order before the Board of Revenue amounted to forum shopping and now when this Court has held that the second Revision was not maintainable, the petitioner could not be allowed to take advantage of her own wrong.
20. Having heard the learned counsel for the parties and having carefully perused the record, it is evident that the case set up by the petitioner before the consolidation authorities was with respect to grant of benefit under Section 122B (4-F) of the U.P.Z.A. & L.R. Act being in possession of Gaon Sabha land since long and her application under Section 9 was allowed by the Consolidation Officer and the appeal filed by the Gaon Sabha was also dismissed by the Settlement Officer Consolidation on 26.08.1996. An application under Section 122 B(4-F) can only be filed by a person who is in unauthorized possession of Gaon Sabha land. Section 122 B(4-F) is being quoted herein below:-
“Notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under Section 117 (not being land mentioned in Section 132) having occupied it from before [May 13, 2007] and the land so occupied together with land, if any, held by him from before the said date as bhumidhar, sirdar or asami, does not exceed 1.26 hectares (3.125 acres), then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and [he shall be admitted as bhumidhar with non-transferable rights of that land under Section 195 and it shall not be necessary for him to institute a suit for declaration of his rights as bhumidhar with non-transferable rights in that land.
Explanation. - The expression "agricultural labourer" shall have the meaning assigned to it in Section 198.”
21. I have also perused the decision of the Consolidation Officer dated 16.06.1993 on the application moved by the petitioner under Section 9-A of the U.P. Consolidation of Holdings Act. In the application the petitioner had submitted that her possession over the plots in question had been recognized by the Sub Divisional Magistrate on 16.09.1969. It had been submitted by the petitioner before the Consolidation Officer that Gaon Sabha had initiated proceedings under Section 122 B against the petitioner and the Additional Collector had given her notice. She had filed her claim for protection under Section 122 B (4-F) and the proceedings under Rule 115 and Section 122 B of the U.P.Z.A. & L. R. Act were dropped against her on 17.07.1982/17.07.1992. It was on the basis of her belonging to scheduled caste category that petitioner was directed to be entered in the Khatauni as Bhumidhar with nontransferable rights.
22. Thus, the case set up by the petitioner that she had been granted Patta in 1971 by the Gaon Sabha Jarcha falls to the ground. Moreover, the Additional Collector in his order dated 25.05.2000 has considered the judgments of this Court and of Supreme Court and the age of the petitioner as mentioned in the voter list of village Gulhawati Khurd, Pergana and Tehsil Dadari, District Gautam Buddha Nagar of 1993 wherein the petitioner's age was mentioned as 25 years and that of her husband as 30 years. In 1971 the petitioner would have been only two years of age. The Additional Collector has also taken into account the statement of the petitioner showing herself to be resident of Gulhawati Khurd and the Patta was allegedly granted to her in 1971 by the Land Management Committee of village Jarcha. It was improbable that she being a resident of a different village, who was not even major in 1971, would have been granted Patta by the Land Management Committee of a different village. The Additional Collector also took into account the Khatauni of Gram Sabha Jarcha, which showed that plot Nos. 243 and 649 had all along been recorded as a Gaon Sabha land and as “Usar”. It was during the consolidation operations that were ongoing in the village when the order dated 16.06.1993 was passed by the Consolidation Officer that petitioner's unauthorized possession over Gaon Sabha land was recognized under Section 9 A (2) of the U.P. Consolidation of Holdings Act. The Additional Collector has also dealt with the observations made by this Court and Hon'ble Supreme Court regarding the fraud vitiating all actions. He has, therefore, allowed the application under Section 198 (4) of the U.P.Z.A. & L.R. Act of the Respondent No. 5.
23. When the petitioner filed Revision No. 35 of 2000, she was not granted any interim order. The Lower Court Record was summoned and the matter fixed for 31.05.2001. In the meantime the petitioner filed a second revision before the Board of Revenue namely Revision No. 10 of 2001 in which she was granted an interim order staying the operation of the order dated 25.05.2000. It was thereafter the petitioner moved an application on 11.07.2001 for permission to withdraw the Revision No. 35 of 2000 stating clearly therein that she had moved a revision to the Board of Revenue namely Revision No. 10 of 2001 in which she had been granted an interim order staying the impugned order dated 25.05.2000 and she did not wish to press the revision any longer. This withdrawal application was allowed with cost by the Respondent No. 1 on 11.07.2001. When the Board of Revenue eventually allowed the revision of the petitioner on 18.02.2002, the Respondent No. 5 preferred Writ – B No. 25714 of 2002: Jagdish Vs. Board of Revenue. This Court after considering Sub Clause 1 and 2 of Section 333 of the U.P.Z.A. & L.R. Act, passed a detailed order finding that the revision filed before the Board of Revenue was the second revision against the same order passed by the Additional Collector, which was specifically barred under Sub Section (2) of Section 333 of the Act. This Court set aside the order passed by the Board of Revenue. It was thereafter that the petitioner moved an application on 11.09.2012 before the Respondent No. 1 praying for recall of the order dated 11.07.2001. In her application under Section 5 of the Limitation Act the petitioner set up a case that the matter remained pending before appropriate court till the decision of this Court on 31.08.2012 in writ petition filed by the Respondent No.
5. She was advised to file recall application against the order dated 11.07.2001 by her lawyer and therefore, she moved the application for recall. This application for recall has been rejected by the order impugned passed by the Respondent No. 1. The Respondent No. 1 has considered the facts as mentioned in the application for condonation of delay and also perused the original record relating to Revision No. 35 of 2000, the application for withdrawal and its contents, and the order passed earlier by the Respondent No. 1 on 11.07.2001, and has come to the conclusion that this Court had specifically held that the second revision was not maintainable and has rejected the application.
24. I have considered the argument raised by the learned counsel for petitioner that she is an illiterate scheduled caste woman and therefore, could not properly appreciate the intricacies of law and she believed the wrong advice given by her lawyer and moved the second revision before the Board of Revenue during the pendency of the revision before the Additional Commissioner and observations made by the Hon'ble Supreme Court in the judgment rendered in Rafiq and another Vs. Munshi Lal (supra) and Prakash Seshmal Jain Vs. Sukhmal & Sons & others (supra) and as also the observations made by the Supreme Court in Haryana State Co-op. Land Development Bank Vs. Neelam (supra). This Court finds the judgments rendered by the Hon'ble Supreme Court in the aforecited cases turning on different facts altogether; the observations of the Court related to the conduct of lawyer engaged by the litigant.
25. In this case it is not the conduct of the lawyer but the conduct of the litigant which is in question. The petitioner does not deserve equity. It is the settled principle that equity follows the law. One who invokes the equitable and extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, must invoke it with clean hands. Petitioner's intentions were suspect when she moved the first revision against the order dated 25.05.2000 namely Revision No. 35 of 2000 on 30.05.2005 and when no interim order was granted, she moved a second revision during the pendency of the first revision before the Board of Revenue and was granted an interim order.
26. Finding no factual or legal infirmity in the order impugned, this writ petition is dismissed. No order as to costs.
Order Date :- 27.7.2018 LBY