Allahabad High Court
Ajuddhi vs State Of U.P. Thru' Revenue Secretary ... on 28 February, 2012
Author: Pankaj Mithal
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- WRIT - B No. - 18312 of 2006 Petitioner :- Ajuddhi Respondent :- State Of U.P. Thru' Revenue Secretary State Of U.P. & Others Petitioner Counsel :- S.K Purwar Respondent Counsel :- C.S.C.,Anuj Kumar Hon'ble Pankaj Mithal,J.
The following brief facts giving rise to the present writ petition would suffice the purpose.
Petitioner alleges that being a landless agricultural labourer, he was granted lease (Patta) of plots No.2240 and 2241 of two acres each situate in village Gariya, Pargana & Tehsil Jhansi, District Jhansi for agricultural purposes by the Land Management Committee (L.M.C.) of the village concerned in the year 1980. Petitioner is in possession of the said land eversince then but his name could not be mutated in the revenue records due to some mistake on the part of the Lekhpal. Thus, he filed a suit under Section 229-B of the U.P.Z.A. & L.R. Act, 1950 (hereinafter referred to as the Act) for declaring his rights over the said land. The suit was dismissed by the Assistant Collector (First Class) vide judgment and order dated 30.12.1995. Petitioner challenged the aforesaid order in appeal and the same was allowed by the Additional Commissioner (First) on 29.2.1996 after setting aside the judgment and order passed by the trial court. However, the aforesaid appellate judgment and order was set aside in revision by the Board of Revenue by the impugned judgment and order dated 18.5.2004.
Petitioner has filed this writ petition seeking writ in the nature of certiorari quashing the judgment and order dated 18.5.2004 passed by the Board of Revenue allowing the revision of the State of U.P. respondent No.1.
Heard D.B. Tripathi and Sri M.K. Pandey, learned counsel for the petitioner and learned Standing Counsel and Sri Anuj Kumar for the respondents.
The record of the writ petition, the counter affidavit filed by respondent No.4 and the rejoinder affidavit thereof has been perused by me.
The submission of learned counsel for the petitioner is that the petitioner has been non-suited on the ground that photocopy of the certificate of lease produced by the petitioner is inadmissible in evidence. He submits that as it has been accepted that the original record has been lost therefore, photocopy of the certificate of lease is admissible as secondary evidence in view of the Section 63 read with Section 65 of the Indian Evidence Act.
Sri Rajesh Kumar, learned Standing Counsel as well as Sri Anuj Kumar, learned counsel for Gaon Sabha, to counter the above submission submitted that under the provisions of the Act as well as Rules framed thereunder, whenever a person is admitted as a lessee over the Gaon Sabha land, a certificate of lease is issued to the person concerned. Even if the record of the authorities stood destroyed, petitioner could have produced the original of the certificate to prove the grant of lease. The revisional court has not erred in refusing to rely upon the photocopy of the certificate and in passing the impugned order.
Admittedly, the land in question is recorded as Banzar land in the revenue records. Petitioner is not a recorded tenure holder or the lessee of the same. Therefore, burden to prove that the said land was allotted to the petitioner after following the procedure prescribed is upon the petitioner who is alleging the same. Petitioner has not produced any resolution of the Land Management Committee resolving to allot the land in his favour or a copy of the order of approval of any such resolution or the lessee or the certificate of lease in original. He has only brought on record a photocopy of the certificate of lease and has tried to prove the lease by oral evidence. Oral evidence in respect of a matter which can be established with certainty by a documentary evidence pales into insignificance.
Ordinarily documents are required to be proved by leading primary evidence i.e. the document in original. Secondary evidence of a documentary evidence is admissible only in certain cases as enumerated under Section 65 of the Indian Evidence Act, 1872. One of the cases in which secondary evidence is admissible is when the original is destroyed or lost. A copy of the original document obtained by a mechanical process i.e. a photocopy of a document is a secondary evidence as per Section 63 of the Indian Evidence Act, 1872.
In the instant case, undisputedly the record of the allotment made in favour of the petitioner has been lost due to mistake of the Lekhpal. Therefore, secondary evidence in respect of originals contained in the record may be admissible, but whether the original of the certificate of lease would be part of the aforesaid original record is a question required to be considered to make the photocopy of it admissible as secondary evidence.
In this connection, it would be relevant to refer to the procedure of allotment laid down in the Act and the Rules framed thereunder. The allotment procedure is contained in Rules 173 to 176 of the Rules.
The time, date and place of meeting of the Land Management Committee fixed for allotment of land under Section 195 or 197 is announced by the beat of drums. A list of persons who expresses their desire for allotment of land and are present is prepared. The eligible candidates from the selected list are considered for allotment. Once selection is made, a list of selected persons is prepared along with a certificate of admission with a counterpart. The select list & the certificate of admission is required to be duly signed by the Chairman and the counterpart of it by the selected person. All the above documents are then forwarded to the Assistant Collector in charge of the subdivision along with copy of the proceedings of the meeting of the L.M.C. for approval. The Assistant Collector in charge of the subdivision on scrutinizing the decision of the L. M. C. and on being satisfied that the allotment is in accordance with law accords its approval whereupon the entire documents are returned to the L. M. C. It is on the receipt of the approval of the Assistant Collector in charge of the subdivision that the selected persons are called by the L.M.C. and handed over with a certificate of admission in the prescribed form after retaining the counterpart on record.
In this way the original certificate of admission is given to the allottee and only a counterpart is retained on the record. The said certificate in original does not form part of the record of the L.M.C. or the Assistant Collector.
The law is settled that the party should produce the best evidence possible within his reach and not merely rely upon the secondary evidence and that when secondary evidence is produced instead of the primary some reason or explanation must be given for not producing the original. 1.
The evidence on record is that the record of the L.M.C. has been lost or destroyed but it is not the case of the petitioner that the certificate of lease issued to him has been lost or destroyed or that no such certificate was never given to him. There is no explanation for not producing the original of the certificate of admission so given. In the absence of such a case and evidence form the side of the petitioner, secondary evidence in the form of photocopy of the certificate of admission was not admissible in evidence.
In view of above, I am of the opinion that no illegality or error has been committed either by the trial court or the Board of Revenue in refusing to rely upon the photocopy of the certificate of lease. The oral evidence to prove that the lease was actually granted to the petitioner in the absence of the documentary evidence is of no avail.
Accordingly, in my opinion the writ petition has no merit and requires no indulgence by the court under Article 226 of the Constitution of India. It is accordingly, dismissed.
Order Date :- 28.2.2012 piyush