Allahabad High Court
Bharat Singh vs Alld. Commissioner And Others on 11 April, 2017
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD (AFR) RESERVED ON 29.03.2017 DELIVERED ON 11.04.2017 Case :- WRIT - C No. - 41703 of 2001 Petitioner :- Bharat Singh Respondent :- Addl. Commissioner And Others Counsel for Petitioner :- A.K.Saxena Counsel for Respondent :- C.S.C.,Sukesh Kumar,V.K.Singh Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has bee filed by the petitioner challenging the order dated 03.09.2001 (Annexure - 6 to writ petition), 04.01.2001 (Annexure - 1 to writ petition) and 19.09.1997 (Annexure - 2 to the writ petition) by means of which the Additional District Magistrate, Etawah firstly cancelled the Patta issued in favour of petitioner and the Additional Commissioner, Kanpur Division, Kanpur rejected the revision filed by him thereafter. The case set up by the petitioner in his writ petition is to the effect that he was granted 2.01 acres of land through agricultural Patta on 27. 02.1998 in village Avinepur Pathakpur. Against the grant of such Patta one Ram Das (arrayed as Respondent No. 4) filed objections under Section 198(4) of the U.P.Z.A. & L.R. Act. These proceedings were initiated by Ram Das in the year 1996-1997 against not only the petitioner but three other persons also.
2. The Additional District Magistrate, Etawah vide his order dated 19.07.1997 rejected the claim set up by Ram Das on the ground that his father already had twenty two bighas of land in the village concerned as per the report submitted by Tehsil authorities dated 05.08.1996. However, from the report submitted by Tehsil authorities it was evident that the petitioner was son of Up-Pradhan of the village concerned at the time when the land was allotted to him and no permission under Section 29-C of the U.P. Panchayat Raj Act, 1947 was obtained for allotment of land to the son of Up-Pradhan who lived with him at the time of the said allotment.
3. Moreover, it was on record that Up-Pradhan concerned had more than twenty bighas of land and as such, petitioner could not be said to fall in the categories mentioned in the order of preference under Section 198 of the Act, 1950. The Patta made in favour of the petitioner was after ignoring the several eligible persons available under category - (c) of Section 198 (1) only on the ground that the petitioner had undergone sterilization operation. It was found on perusal of the record that no documentary evidence with regard to the eligibility under family planning programme for grant of agricultural Patta ignoring the order of preference given under Section 198 (1) was also available on record.
4. Against the order of cancellation of Patta dated 19.07.1997 the petitioner filed a revision being Revision No. 134 of 1997 (Bharat Singh Vs. Ram Das) before the Additional Commissioner, Kanpur Division, Kanpur, which was dismissed on 04.01.2001 although the Commissioner agreed with the argument raised by the revisionist that the order was passed ex-parte; but at the time of perusal of the record the Commissioner found that the petitioner had been given notice, but he deliberately did not appear in the Court below nor produced any evidence in his favour. If he had anything to say, he should have produced the evidence before the Court concerned on service of notice.
5. Also, the Revisional Court came to the conclusion that though the claim of Ram Das was not accepted, it did not bar the Additional District Magistrate to suo motu take cognizance and have an inquiry conducted and on the basis of the report in the inquiry, cancel Patta of the petitioners.
6. Against the order dated 04.01.2001 the petitioner filed a Recall Application which too was rejected on 03.09.2001.
7. A counter affidavit has been filed on behalf of the State-respondents in the aforesaid writ petition wherein it has been mentioned that the petitioner was not eligible to get the Patta in first place as he was living with his father who was Up-Pradhan at the time of allotment of land of Gaon Sabha. There was already much land owned by petitioner's father and no permission under Section 28-C of the U.P. Panchayat Raj Act had been taken before allotment was made in favour of the petitioner.
8. In the rejoinder affidavit petitioner has reiterated the contention raised by him in the writ petition that the land owned by the father of petitioner was to be divided amongst five brothers and after partition the petitioner possessed less than 3.125 acres and therefore became landless person and shall fall in the category of eligible persons as mentioned under Section 198(1) of the U.P. Zamindari Abolition and Land Reforms Act.
9. At the time of the argument Mr. Avijit Saxena holding brief of Mr. A.K. Saxena, the counsel for petitioner, drew this Court's attention to Section 198 (5) and (6) wherein it was mentioned that no order of cancellation of allotment or lease shall be made under Sub Section (4) unless a notice to show cause is served on the person in whose favour the allotment or lease was made. Also, no proceedings for cancellation should be initiated after expiry of period of five years from the date of such allotment or lease if such allotment was done after 10th of November, 1987. Petitioner's allotment was made in February, 1988 and therefore, the cancellation proceedings could not have been initiated in the year 1996-1997. The order passed by the Additional District Magistrate being admittedly ex-parte and admittedly in a proceeding initiated in the year 1996-1997 was in violation of both Section 198 (5) and Section 198 (6) of the U.P. Z.A. And L.R. Act. With regard to the contention raised in the counter affidavit that the petitioner was son of Up-Pradhan, the counsel for the petitioner has drawn attention of the Court to Explanation - I to Section 198 (1) and said that for the purpose of determining whether a person was "landless" only Explanation - I should be taken into account which refers to a person who or whose spouse or minor children hold no land as bhumidhar or asami and also held no land as such within two years immediately preceding the date of allotment.
10. According to the counsel for the petitioner, the land of petitioner's father would not be included while considering the land of the petitioner. Moreover, the land of father of petitioner would become available to him only after his father's death and at the time of allotment the petitioner had only 0.90 acres of land and even after allotment of 2.01 acres of land, the total land available with him would be still less than 3.125 acres of land.
11. Having considered the arguments advanced by the petitioner, with respect to the order impugned being ex-parte it is necessary to remember that show cause notice was served upon the petitioner in terms of Section 198(5) of the U.P. Z.A. & L.R. Act, but he chose not to appear before the authority concerned. This fact has been recorded in the order passed by the Divisional Commissioner and has not been disputed by the petitioner in his writ petition. It is settled law that if a person chooses not to appear despite service of notice before adjudication before the authority concerned he cannot turn around and say that the order passed against him was ex-parte [See Union of India Vs. Ramphal : 1996 SCC (L. & S.) 638].
12. With regard to the second argument raised by the counsel for the petitioner that the order impugned had been passed in violation of limitation prescribed for initiation of proceedings under Section 198 (6) it must be remembered that the petitioner was, admittedly, son of Up-Pradhan and did not fall under any of the categories of eligibility in the order of preference given under Section 198 (1) of the Act. His case if at all falls under sub-category (e) i.e. a bhumidhar or asami residing in the circle and holding land less than 1.26 hectares (3.125 acres).
13. The Tehsil authorities in report had submitted that there were other persons available in category (c) of Section 198 (1) and if at all the case of petitioner was to be considered, it could have been considered after the persons available in sub-category (c) were found to be otherwise ineligible. Clearly, this was not the case. The petitioner was allotted land only on the basis of some application with regard to the family planning programme for which the Tehsil authorities in their report had found that no documentary evidence was available.
14. There is a specific finding also to the effect that being son of Up-Pradhan permission under Section 28-C of the U.P. Panchayat Raj Act was to be obtained before the allotment of land which was not done. Section 28-C of the U.P. Panchayat Raj Act is quoted herein below:-
Section 28-C of the Act reads as follows:-
"Section 28-C. Members and officers not to acquire interest in contract, 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)."
15. For a better appreciation of the controversy, it would be worthwhile to examine Section 198(1) in its totality. It is being quoted herein below :-
Section 198 (1) of the U.P.Z.A. & L.R. Act is reproduced below:-
198. Order of preference in admitting persons to land under Sections 195 and 197.-- "In the admission of persons to land as [Bhumidhar with non-transferable rights] or asami under Section 195 or Section 197 (hereinafter in this section transferred to as allotment of land) the Land Management Committee shall, subject to any order made by a Court under Section 178 observe the following order of preference:
1[(a) landless widow, sons unmarried daughters or parents residing in the circle of a person who has lost life by enemy action while in active service in the Armed Forces of the Union;
(b) a person residing in the circle, who has become wholly disabled by enemy action while in active service in the Armed Forces of the Union;
(c) a landless agricultural labourer residing in the circle and belonging to any one of the following categories in the order of preference:--
(i) persons belonging to the Scheduled Castes or the Scheduled Tribes;
(ii)persons belonging to Other Backward Classes;
(iii)persons belonging to the general category living below poverty line.
(d) any other landless agricultural labourer residing in the circle;
(e) a Bhumidhar, 2[***] or asami residing in the circle and holding land less than 1.26 hectares (3.125 acres);
(f) landless person residing in the circle who is retired, released or discharged from service other than service as an officer in the Armed Forces of the Union;
(g) a landless freedom fighter residing in the circle who has not been granted political pension;
(h) any other landless agricultural labourer, not residing in the circle, but residing in the Nyaya Panchayat circle referred to in Section 42 of the United Provinces Panchayat Raj Act, 1947 and belonging to any of the following categories in the order of preference;--
(i) persons belonging to the Scheduled Castes or the Scheduled Tribes;
(ii)persons belonging to Other Backward Classes;
(iii)persons belonging to the general category living below poverty line.
16. Though the term "any other person" is very wide under clause (d) and (e) and law has not attached any qualification to this, but a person to be benefited by this clause should be considered for allotment when all eligible persons falling under the categories enumerated prior to this, have been considered and have either been benefited or have been found ineligible on some ground to be admitted to the proposed allotment of land. In this case, however, this was not the situation. If at all the petitioner belonged to the category (e), his case could have been considered only after specific report was made to the effect that no person of sub-categories (a), (b), (c) or (d) were available in the village concerned.
17. The counsel for the petitioner had also argued that there is no prohibition for the son of Pradhan or Up-Pradhan who is otherwise landless or who possessed land less than 3.125 acres to be considered for allotment under Section 198 (1). True, it is so, as per the language of the U.P. Z.A. & L.R. Act 'any other person' may be considered; but his case could have been considered only after specific report was made to the effect that no person of sub-categories (a), (b), (c) or (d) were available in the village concerned and there had been never any such report by the Tehsil authorities concerned.
18. It has been argued by the counsel for petitioner that once a statute provides period of limitation of five years from the date of allotment, the same could not have been ignored by the Additional District Magistrate in suo motu proceedings by initiating inquiry in the case of allotment of the land in dispute in favour of the petitioner by Gaon Sabha.
19. It is true that Hon'ble Supreme Court in the case of Nohar Lal Verma Vs. District Co-operative Central Bank Ltd., Jagdalpur, 2008 (14) SCC 445 has observed in paragraph - 32 as under :-
"Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation Court or an adjudicating authority has no jurisdiction, power or authority to entertain such a suit, appeal or application and to decide it on merits................"
And has further held after referring to Sub-section (1) of Section 3 of the Limitation Act, 1963 that a suit or appeal preferred after the prescribed period has to be dismissed even though no such plea has been raised or defence has been set up at the threshold, by the Court itself.
At the same time, the Hon'ble Supreme Court has also held if by quashing of illegal order another illegality revives, in that eventuality, the Court should not interfere with such order under writ jurisdiction (See Gadde Venkateswara Rao Vs. Government of Andhra Pradesh and others, AIR 1966 SC 828, Champalal Binani Vs. CIT, West Bengal, AIR 1970 SC 645, Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and others, AIR 1999 SC 3609, Malikarjuna Mudhagal Nagappa and others Vs. State of Karnataka and others, AIR 2000 SC 2976, Chandra Singh Vs. State of Rajasthan, AIR 2003 SC 2889, S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. and others, 2003(4) Supreme 44, State of Uttaranchal and another Vs. Ajit Singh Bhola and another, (2004) 6 SCC 800 and State of Orissa and another Vs. Mamata Mohanty (2011) 3 SCC 437.
20. This Court is of the considered opinion that as and when it came to the notice of the authority concerned that allotment of land of Gaon Sabha had been made illegally to ineligible person ignoring the rightful claim of several others of the same village who came within the eligibility zone/order of preference given under sub-section (1) of Section 1998 of the Act, the authority concerned was duty bound to set up an inquiry and take action as legally permissible to remedy the wrong. Hence, the allotment order being ex-facie illegal, even if the suo motu inquiry was set up by the Revenue Authority and action taken thereafter to correct the wrong could be said to be a bit delayed, this Court would not interfere and set aside such an order as it would revive the illegal allotment made in favour of the petitioner.
21. The allotment of the petitioner was a result of nepotism and corruption amounting to fraud played upon the Statute. Each day passing with the allotment of petitioner over the land in question continuing a fresh cause of action would arise. Being a continuing cause of action of which suo motu cognizance was taken by the Additional District Magistrate, it cannot be said to be an illegal or arbitrary exercise of jurisdiction by the Revenue Authorities. As such, I do not think that there is any good ground on which extra-ordinary jurisdiction under Article 226 of the Constitution should be exercised by me to quash the order impugned.
22. The writ petition is dismissed.
23. No order as to costs.
Order Date :- 11.04.2017 LBY