Court No. - 11
Case :- WRIT - B No. - 18446 of 1986 Petitioner :- Sita Ram & Others Respondent :- Board Of Revenue U.P.& Others Counsel for Petitioner :- R.M. Singh,J.S.Tomar,Jagdish Lal,Man Bahadur Singh,T.D. Singh Counsel for Respondent :- S.C.,R.K. Yadav
Hon'ble Salil Kumar Rai,J.
Heard counsel for the petitioners and the Standing Counsel representing respondent nos. 1, 2 and 3.
A lease was granted by the Land Management Committee to one Smt. Babuni i.e. the mothers of the petitioners. Subsequently, it was reported by the concerned Naib Tehsildar that major irregularities were committed in allotment of lease to Smt. Babuni and Smt. Babuni was the wife of Garib who was a member of the Land Management Committee at the time of allotment of the said lease and consequently proceedings under Section 198 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') were instituted for cancellation of the aforesaid lease registering Case No. 217 under Section 198 of the Act, 1950 in the court of Sub-Divisional Magistrate, Mohammadabad, District Azamgarh. In the said case Smt. Babuni appeared in response to notice issued to her and denied the allegations made in the report of the Naib Tehsildar. However, on the statement of the Lekhpal, who was also the Secretary of the concerned Land Management Committee, the Sub-Divisional Magistrate, Mohammadabad vide his order dated 17.11.1970 cancelled the lease granted in favour of Smt. Babuni on the ground that the total land reserved for public purposes in the village was less than 8 per cent of the total village land and at the time of allotment of lease, the husband of Smt. Babuni was a member of the Land Management Committee and therefore the allotment of lease in favour of Smt. Babuni was illegal. Against the order dated 17.11.1970 passed by the Sub-Divisional Magistrate, Smt. Babuni filed a Revision before the Additional Commissioner, Gorakhpur, District Gorakhpur registering Revision No. 643/990A of 1971 and in the said revision, the Additional Commissioner vide his order dated 18.9.1971 submitted a reference before the Board of Revenue recommending that the order dated 17.11.1970 passed by the Sub-Divisional Magistrate be set-aside. However, the Board of Revenue vide its judgment and order dated 22.9.1981 rejected the recommendation of the Additional Commissioner and dismissed the revision filed by Smt. Babuni. The orders dated 22.9.1981 passed by the Board of Revenue and 17.11.1970 passed by the Sub- Divisional Magistrate have been challenged in the present writ petition.
It has been argued by counsel for the petitioners that the findings of the Sub-Divisional Magistrate and the Board of Revenue in impugned orders dated 17.11.1970 and 22.9.1981 to the effect that Garib, i.e., husband of Babuni was a member of L.M.C. on the relevant date are without any evidence. Counsel for the petitioners has also argued that similarly the findings of the Sub-Divisional Magistrate that the total land reserved for public purpose in the village was less than 8 per cent of the total village land was also without any evidence. It has been further argued by counsel for the petitioners that the aforesaid facts and grounds were not part of the report of Naib Tehsildar and therefore Smt. Babuni had no opportunity to rebut the aforesaid allegations and thus, the order dated 17.11.1970 was passed by the Sub-Divisional Magistrate in violation of the principles of natural justice and is liable to be set-aside. It was also argued by counsel for the petitioners that there was no prohibition on grant of lease of any property vesting in the Gaon Sabha to a spouse or other family member of any member or office bearer of the Land Management Committee and the opinion of the Sub-Divisional Magistrate and the Board of Revenue that the lease granted in favour of Smt. Babuni was invalid and illegal as the husband of Smt. Babuni was a member of the Land Management Committee at the relevant time is vitiated by error of law apparent on the face of record.
I have considered the submissions of counsel for the petitioners and perused the records.
A perusal of Section 28-C of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as, 'Act, 1947') clearly prohibits any member or office-bearer of the Gram Panchayat or the Land Management Committee to 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 without the permission in writing of the Collector. It is not the case of the petitioners that the Collector had permitted any allotment in favour of Smt.
Babuni by the Land Management Committee when her husband Garib was a member of the said committee. It was contended by the petitioners in the courts below that Section 28-C of the Act, 1947 prohibits a member or office-bearer of the Land Management Committee only from acquiring any interest in lease either himself or through a partner or otherwise and the said prohibition does not apply on the wife of the said member or office- bearer. The aforesaid argument of counsel for the petitioners is not acceptable. A reading of Section 28-C of the Act, 1947 shows that the office-bearer or member of the Land Management Committee is prohibited from acquiring any interest either himself or through a partner or otherwise. The word 'otherwise' is comprehensive in nature and it includes the spouse and family members of a member or office-bearer of the Land Management Committee. The other argument raised by counsel for the petitioners that the report of the concerned Naib Tehsildar did not contain the ground that Smt. Babuni was the wife of a member of Land Management Committee at the relevant time and the lease was invalid because the total land reserved in the village for public purpose was less then 8 per cent of the total village land and therefore the petitioners had no opportunity to rebut the aforesaid grounds and thus, the impugned orders have been passed in violation of the principles of natural justice, is also belied from the records. A perusal of the order dated 17.11.1970 clearly shows that in his aforesaid order, the concerned Sub-Divisional Magistrate has recorded the fact that the Naib Tehsildar had reported that Smt. Babuni belonged to the family of the Chairman of the Land Management Committee. It has also been recorded in the aforesaid order dated 17.11.1970 that Smt. Babuni had filed her objections to the report of the Naib Tehsildar. There is no averment in the writ petition stating that the recital in the order dated 17.11.1970 regarding the contents of the report of the Naib Tehsildar are wrong. Further, after the order of the Sub-Divisional Magistrate, the petitioners had an opportunity to argue the matter and an opportunity to raise the said ground before the Board of Revenue. However, a reading of the order dated 22.9.1981 shows that, before the Board of Revenue, the argument of Smt. Babuni was only regarding her entitlement for grant of lease even though her husband Garib was a member of the Land Management Committee at the relevant time. There is no averment in the writ petition that before the Board of Revenue, the petitioners had raised the issue that Garib was not a member of the Land Management Committee at the relevant time and therefore the findings of the Sub- Divisional Magistrate are contrary to the records or that the recital in the order dated 17.11.1970 regarding the contents of the report of the Naib Tehsildar were wrong. The reliance placed by counsel for the petitioners on the order dated 18.9.1971 passed by the Additional Commissioner appears to be misconceived. The findings of the Sub-Divisional Magistrate and the Board of Revenue regarding the total area of the land reserved for public purposes in the village could have been proved only by the Lekhpal who was also the Secretary of the Land Management Committee. It is apparent from the order dated 17.11.1970 passed by the Sub-Divisional Magistrate that the Lekhpal as Secretary of the Land Management Committee had stated that the total land reserved for public utility in the village was less than 8 per cent of the total village land. In the circumstances, there is no illegality or perversity in the orders dated 22.9.1981 passed by the Board of Revenue and 17.11.1970 passed by the Sub-Divisional Magistrate.
The writ petition lacks merit and is hereby dismissed. Interim order, if any, stands vacated.
Order Date :- 26.4.2018 Satyam