Allahabad High Court
Amar Singh vs Ranpal Singh And 3 Others on 3 September, 2021
Equivalent citations: AIRONLINE 2021 ALL 2635
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R
Reserved On:- 09.08.2021
Delivered On:- 03.09.2021
Case :- FIRST APPEAL No. - 428 of 2019
Appellant :- Amar Singh
Respondent :- Ranpal Singh And 3 Others
Counsel for Appellant :- Purnendu Prakash Pandey,Chandra Kumar Rai
Counsel for Respondent :- Himadari Batra,Kunal Shah,Manoj Kumar Dhuriya,Syed Fahim Ahmed
Hon'ble Siddharth, J.
1. Heard Sri Chandra Kumar Rai, learned counsel for the appellant and Sri Kunal Shah, learned counsel for the respondents and perused the record of the court below.
2. This first appeal has been preferred by the defendant-appellant against the judgment and decree dated 13.03.2019 passed by Civil Judge (Senior Division), Gautambuddh Nagar in Original Suit No. 1334 of 2010 (Ranpal Singh vs. Amar Singh and Others).
3. Plaintiff/respondent no. 1 instituted an Original Suit No. 1334 of 2020 praying for a decree of partition of 1/5 share in respect of property in dispute shown by letters A, B, C and D being Khasra No. 120, area 525 square yards. The pedigree mentioned in the plaint is as follows:-
- Ranpal (plaintiff/respondent no. 1)
- Amar Singh (defendant no. 1/appellant) Late Shri Ramphal - - Raghubar (defendant/respondent no. 2)
- Ram Niwas (defendant/respondent no. 3)
- Smt. Rameshari (defendant/respondent no. 4) It was pleaded in the plaint that plaintiff/respondent no. 1 and defendants, who are five in numbers, are real brothers and sister. Their father died on 29.08.2007 and after his death plaintiff/respondent no. 1 and defendants are entitled to 1/5 share each in the property in dispute which is shown by letter A, B, C and D in the plaint map.
4. Defendant No. 1/appellant filed his written statement denying the plaint case. In the additional pleas the defendant no. 1/appellant stated that suit is liable to be dismissed as 150 square yard area of Khasra No. 120 was given to defendant no. 1/appellant by lease dated 11.05.1974. The same is situated in disputed area shown by letter A, B, C and D in the plaint map. The remaining area of 525 square yard of Khasra No. 120 belongs to their father Ramphal Singh in which all the five brothers and sister will be entitled to equal share. It has been also stated in the written statement that in the 150 square yard area which belongs to defendant no. 1/appellant residential house was constructed by him from his own funds. The same has no concern with the plaintiff/respondent no. 1 and defendant/respondent nos. 2 to 4.
5. Defendant/respondent nos. 2 and 3 filed their joint written statement admitting the plaint allegations and defendant/respondent no. 4 filed her separate written statement admitting the plaint allegations.
6. The trial court framed the following six issues in the plaint:-
(1) Whether the plaintiff is owner of 1/5 part of disputed property shown in the plaint map ?
(2) Whether the suit is barred by provisions of Sections 34, 41 and 49 of Specific Relief Act ?
(3) Whether the suit is undervalued ?
(4) Whether the court fees paid by the plaintiff is insufficient ?
(5) Whether the plaintiff is entitled to partition of his share on the basis of pleadings in the plaint ? and (6) Whether the plaintiff is entitled to any other relief, if yes, then to what effect?
7. On behalf of the plaintiff/respondent no. 1, Ranpal Singh, was examined as P.W-1 and documentary evidences were also filed in support of his case.
8. On behalf of the defendant no. 1/appellant, Amar Singh, was examined as D.W-1 and in documentary evidence original lease receipt (82 Ga-83 Ga), C.H. Form 45 (84 Ga), C.H. Form 41 (85 Ga), Khatauni, Revenue map, Electricity Bill (86 Ga to 91 Ga) were filed in support of his case.
9. The trial court heard the counsel for the parties in Original Suit No. 1334 of 2010 and perused the evidence on record and decreed the plaintiff/respondent no. 1's Suit No. 1334 of 2010 for 1/5 share in respect of property in dispute by judgment and decree dated 13.03.2019.
10. That the trial court decided issue nos. 1 and 5 together and recorded the finding that the defendant no. 1/appellant failed to prove that he has been allotted the land of 150 square yard in Khasra No. 120 by any lease of land management committee and held that since the parties are brothers and sister, the plaintiff/respondent no. 1 is entitled to his 1/5 shares in his property. Issue nos. 3 and 4 regarding valuation and court fees paid in the suit were decided in favour of plaintiff/respondent no. 1. Issue no. 2 was decided holding that the same was required to be proved by the defendant no. 1/appellant which he has failed to prove and therefore it was decided against defendant no. 1/appellant. Finally, issue no. 6 was decided holding that the suit is liable to be decreed and 1/5 share of the plaintiff/respondent no. 1 was declared in the suit property.
11. Learned counsel for the defendant no.1/appellant has submitted that the trial court has failed to consider the lease executed in favour of the defendant/appellant on 11.05.1974 in accordance with law. Permission of Assistant Collector / Sub-Divisional Officer regarding execution of lease has came into existence on 01.11,1975 while lease in question was executed on 11.05.1974 when there was no such provision in the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. Hence, impugned judgment and decree dated 13.03.2019 passed by the court below is wholly illegal and manifestly erroneous.
12. Trial court has failed to consider that unless lease in question is cancelled by Revenue Court in accordance with law; the Civil Court cannot ignore it, as such impugned judgment and decree dated 13.03.2019 is illegal and manifestly erroneous.
13. Counsel for the plaintiff/respondent no. 1 has submitted that defendant no. 1/appellant claimed that he is exclusive owner of part of the suit property, area about 150 square yard and therefore as per Section 103 of the Evidence Act he was required to prove the ownership of the aforesaid area of land on the basis of residential lease dated 11.05.1974. He only filed a receipt of premium in evidence and not the lease granted in his favour. The trial court has rightly not accepted the receipt of premium as reliable evidence regarding the claim of defendant no. 1/appellant. At the relevant time the substantive provision for grant of lease was contained in Sections 122-C, 195, 197 and 198 of U.P. Zamindari and Abolition and Land Reforms Act, 1950 and also the procedural aspect of grant of lease by Rule 115-L to Rule 115-T of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 was incorporated on 25.03.1972 by way of 9th amendment. Clause 3 of Rule 115-N of the then existing rules provided that allottee of a housing site shall be given a certificate to allotment in Z.A. Form 49-F in two parts. Main certificate is to be given to the allottee and its counterpart shall remain with land management committee. No such certificate was produced in evidence by the defendant no. 1/appellant.
14. Section 64 of the Evidence Act provides that documents must be proved by primary evidence which as per Section 62 of the Evidence Act means the document itself. No allotment certificate or any such document was produced by the defendant no. 1/appellant.
15. Non-production of original lease / allotment certificate by the defendant no.1/appellant despite objection of the plaintiff/respondent no. 1 would lead to drawing of adverse interference against him. The plaintiff/respondent no. 1 had moved an application dated 25.04.2011, exhibit- 22 Ga 2, before the trial court asking the defendant no. 1/appellant to produce the original copy of the lease / allotment certificate but it was not produced before the Court. He has relied upon the judgment of the Apex Court in the case of Union of India vs. Ibrahim Uddin, 2012 (5) AWC 5003 SC, in this regard. During the pendency of suit the plaintiff/respondent no. 1 vide letter dated 26.03.2012 sought information from the office of Assistant Collector, Tehsil Dadri whether any lease / allotment certificate was issued in the name of defendant no. 1/appellant, Amar Singh and by letter dated 03.04.2012 it was informed that no record with respect to allotment of residential leases for the year 1974 exists in his office. This information was never disputed by the defendant no.1/appellant. In his cross-examination, defendant no. 1/appellant admitted that no possession certificate was issued in his favour.
16. After hearing the rival contentions, this court finds that the following points of determination are involved in this appeal:-
(1) Whether the defendant no. 1 / appellant has proved the disputed area of about 150 square yard in plot no. 120 to be his exclusive property on the basis of residential lease dated 11.05.1974 ?
(2) Whether prior to 01.11.1975 permission of Assistant Collector / Sub-Divisional Officer was required for execution of lease and the trial court has ignored the evidence produced before it by the defendant no. 1/appellant without considering the correct legal position ?
(3) Whether till the lease in question is cancelled by competent revenue court in accordance with law, it is binding on Civil Court and cannot be ignored by it ?
17. All the points of determination are being considered and decided together.
18. The pleadings of the defendant no. 1/appellant is that on the basis of lease receipt, paper no. 82-Ga and 83-Ga, he is in possession of 150 square yards of land and he has constructed his house over the same after grant of lease to him on 11.05.1974. He claims that this area of 150 square yard of land is not the part of the property inherited from his father and therefore, after excluding this land 1/5 share of the plaintiff/respondent no. 1 and each of the defendants should be declared. The case of the plaintiff/respondent no. 1 is that the receipt produced by the defendant no. 1/appellant to prove grant of lease by land management committee in his favour is only a receipt of premium and not the copy of lease / allotment certificate itself, therefore, in the absence of the copy of the lease / allotment certificate no rights can accrue to the defendant no. 1/appellant. The submission is that the burden of proving the due allotment and execution of lease of 150 square yards of land in favour of defendant no. 1/appellant was on him and in case he failed to prove the same by way of primary evidence he cannot be granted any rights on its basis.
19. This court finds that the defendant no. 1/appellant in his Written Statement as well as in his examination in chief, had taken only one ground to resist the claim of partition viz., a portion of suit property, (about 150 square yards), which lies on the western side of the suit property as exclusive property which he had acquired by means of a residential lease dated 11.05.1974, and thus the same could not form a part of the subject matter of partition.
20. Section 103 of the Indian Evidence Act, 1872 provides that the burden of proof of any particular fact lies on the party who alleges it and who wishes the Court to believe in its existence. Section 103 of the Evidence Act is reproduced herein below for ready reference of this Hon'ble Court:
103. Burden of proof as to particular fact.--The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
21. In Woodroffe & Amir Ali: Law of Evidence (21st Edition), the relevant law is stated thus:-
"When, however, the defendant, or either litigant party, instead of denying what is alleged against him, relies on some new matter which if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him, Reus excipendo fit actor"
22. Since, the defendant no. 1/appellant had asserted the fact of sole ownership of a portion of suit property on the basis of a lease, Section 103 of the Evidence Act casted an obligation upon the defendant no. 1/appellant to prove the particular fact about grant of lease. The documentary evidence filed by the defendant no. 1/appellant in support of claim of grant of lease, was not the lease/Allotment Certificate itself but a receipt of premium.
23. This court finds that a receipt of premium was produced before the trial Court and the trial Court has not ascribed any value to the receipt of premium, and has returned the finding that the defendant no. 1/appellant has not been able to prove the fact of issuance of grant of lease in his favour. Another important fact of the matter which is based purely on law is that the receipt of premium, which has been filed by the defendant no. 1/appellant is not the same as Lease/Allotment Certificate and on its basis the exclusive rights claimed by defendant no. 1/appellant cannot be sustained and court below has rightly held so.
24. The case of the defendant / appellant that prior to 1.11.1975 permission of Assistant Collector / Sub-Divisional Officer was not required for execution of lease such an amendment came into force on 01.11.1975 when the lease was granted to the defendant/appellant on 11.05.1974. He has relied upon the notification no. 605/ Rajaswa 1-2 (8) - 75 dated 01.11.1975 which shows that Rule 115-N of U.P. Zamindari Abolition and Land Reforms Rules, 1952 was incorporated on 01.11.1975 in the rules. The case of the plaintiff/respondent no. 1 is that the civil court cannot ignore the lease executed in favour of the defendant/appellant since as per Full Bench judgment of the court in the case of Similesh Kumar vs. Gaon Sabha, Uskar, Ghazipur and Others, AIR 1977 All 360, the lease granted by land management committee / gaon sabha can only be cancelled by Revenue Court cannot even consolidation authorities have no jurisdiction to cancel the same. On the contrary, the case of the plaintiff/respondent no. 1 is that the substantive provision for grant of lease is contained in Sections 122-C(2), 195, 197, 198 of U.P. Zamindari Abolition and Land Reforms Act and in the aforesaid provisions there is requirement of previous approval of lease by Assistant Collector much prior in time than 11.05.1974. Section 122-C(2) was inserted in the act aforesaid on 22.07.1971 and it provides for obtaining previous approval of the Assistant Collector before making allotment. The relevant part of the U.P. Land Laws (Amendment) Act, 1971, is being quoted below:-
In pursuance of the provisions of clause (3) of Article 348 of the Constitution of India, the Governor is pleased to order the publication of the following English translation of the Uttar Pradesh Bhoomi-Vidhi (Sanshodhan) Adhiniyam, 1971 (Uttar Pradesh Adhiniyam Sankhya 21 of 1971) as passed by the Uttar Pradesh Legislature and assented to by the President on August 22, 1971.
UTTAR PRADESH LAND LAWS (AMENDMENT) ACT, 1971 (U.P. Act No. 21 of 1971) (As passed by the Uttar Pradesh Legislature) An Act further to amend the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956.
It is hereby enacted in the Twenty-Second Year of the Republic of India as follows:-
CHAPTER I Preliminary
1. ..................
CHAPTER II
2. ..................
3. After section 122-B of the principal Act, the following sections shall be inserted, namely ;
"122-C, (1) The Assistant Collector In-charge of the sub- division, of his own motion or on the resolution of the Land Management Committee, may ear-mark any of the following classes of land for the provision of abadi sites for the members of the Scheduled Castes and the Scheduled Tribes and agricultural labourers allotment of land for housing sites for members of Scheduled Castes, agricultural labourers, etc., and village artisans -
(a) lands referred to in clause (i) of sub-section (I) of section 117 and vested in the Gaon Sabha under that section ;
(b) lands coming into possession of the Land Management Committee under Section 194 or under any other provision of this Act;
(c) any other land which is deemed to be or becomes vacant under section 13, section 14, section 163, section 186 or section 211;
(d) where the land ear-marked for the extension of abadi and reserved as abadi site for Harijans under the U.P. Consolidation of Holdings Act, 1953, is considered by him to be insufficient and land ear-marked for other public purpose under that Act is available, then any part of the land so available.
(2) Notwithstanding anything in sections 122-A, 195, 196, 197 and 198 of this Act, or in Section 4, 15, 16, 28-B and 34 of the United Provinces Panchayat Raj Act, 1947, the Land Management Committee may with the previous approval of the Assistant Collector In-charge of the sub-division, allot, for the purpose of building of houses, to persons referred to in sub-section (3) -
(a) any land ear-marked under sub-section (1);
(b) any land ear-marked for the extension of abadi sites for Harijans under the provisions of the U.P. Consolidation of Holdings Act, 1953;
(c) any abadi site referred to in clause (vi) of section (i) of section 117 and vested in the Gaon Sabha;
(d) any land acquired for the said purpose under the Land Acquisition Act, 1894.
25. The defendant no. 1/appellant in Paragraph 20 of his Written Statement had averred that the Lease/Allotment Certificate had been granted to him on 11.05.1974. At the relevant point in time, i.e. on 11.05.1974, the substantive provision for grant of lease was contained in Section 122-C, 195, 197 and 198 of the UP Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "U.P.Z.A & L.R Act"). The aforesaid provisions provided for grant of lease "with the previous approval of the Assistant Collector".
26. The procedural aspect of grant of Lease/Allotment Certificate is governed by Rule 115-L to Rule 115-T of the Zamindari Abolition and Land Reform Rules, 1952.
27. Vide Uttar Pradesh Zamindari Abolition and Land Reforms (Ninth Amendment) Rules, 1972, published in the Official Gazette on 25.03.1972, the previous existing Rules 115-L to Rule 115-R were amended and were substituted by Rule 115-L to Rule 115-T. The aforesaid amendment remained in vogue till 01.11.1975 when further amendment was carried out in the said Rules. As the date of grant of alleged Lease/Allotment Certificate is 11.05.1974, the Rules 115-L to Rule 115-T as introduced by Uttar Pradesh Zamindari Abolition and Land Reforms (Ninth Amendment) Rules, 1972, is the relevant Rules on the basis of which the validity of the argument of the plaintiff/respondent No. 1 is to be tested.
28. Rule 115 N of the UPZALR Rules as it existed then is reproduced herein below:
115N (1) Whenever the Land Management Committee proceeds to allot housing sites under Rule 115-L or 115-M it shall announce by beat of drum in the village the exact location of the sites to be allotted, the time, the date and venue of allotment.
(2) All documents shall be made by the Land Management Committee in a meeting held for the purpose on the date announced under the preceding sub-rule. Where more than one person belonging to the same order of preference express their desire to be allotted a particular site, the said committee shall draw of lots to determine the person to whom the site should be allotted.
(3) The allottee of the housing site shall be given receipt for the premium, if any, paid by him to the Land Management Committee and a certificate of allotment. The certificate shall be in Z.A. Form, 49-F which shall be prepared in two parts, the main certificate being given to the allottee and its counter-part remaining with the Land Management Committee for record.
29. A bare perusal of Clause 3 of Rule 115-N of the then existing Rules reveals that the receipt for premium has no semblance to the Allotment Certificate and is not the same as the Allotment Certificate itself.
30. Moreover, Clause 3 of Rule 15-N of the then existing Rules makes it evident that the allottee of the housing site shall be given a certificate of allotment which shall be in Z.A. Form, 49-F and which shall be prepared in two parts, the main certificate being given to the allottee and its counter-part remaining with the Land Management Committee for record.
31. Thus it becomes evident that the factum of grant of lease can be proved by adducing the allotment certificate which shall be in Z.A. Form 49-F and not by adducing receipt of premium, which at best can prove the payment of some premium to the Land Management Committee but cannot establish the factum of grant of Lease/Allotment Certificate.
32. Further the particulars of Allotment Certificate, Z.A. Form 49-F , clearly reveals that it must apart from the Signature of Chairman of Land Management Committee also bear the signatures of Assistant Collector-in-charge of Sub-Division. However the document that had been filed before the trial court by the defendant no. 1/appellant, cannot by any stretch of imagination be said to be an allotment certificate which is required to be issued in Z.A. Form 49-F.
33. Document filed by the defendant no. 1/ appellant in support of his claim that he has been granted a Lease/Allotment Certificate does not classify as a Allotment Certificate contemplated in Section 122-C of the U.P.Z.A.L.R Act read with Rule 115-N of the Rules in vogue then.
34. Moreover, Section 64 of the Evidence Act provides that documents must be proved by primary evidence, which as per Section 62 of the Evidence Act means the document itself. Thus, for proving the factum of grant of Lease/Allotment Certificate, the statutory requirement as per Section 64 read with Section 62 of the Evidence Act was of adducing of Allotment Certificate and not any other document.
35. Further, as the defendant no. 1/appellant has not laid any foundational basis for proving the factum of grant of Lease / Allotment Certificate by way of secondary evidence, no secondary evidence can be lead to prove the same.
36. It is trite law that secondary evidence is inadmissible until the non production of the original is accounted for so as to bring it within one or other of the cases provided for in Section 65 of the Evidence Act. The Hon'ble Supreme Court in H. Siddiqui v. A . Ramalingam, AIR 2011 SC 1492 held thus:
10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
37. As the defendant no. 1/appellant could not adduce the copy of Allotment Certificate, which alone could have proved the fact of grant of lease in his favour, the necessary corollary is that the defendant no. 1/appellant failed to prove his special pleaded fact.
38. The plaintiff/respondent No.1 had moved an Application dated 25.04.2011 before the Trial Court, which is marked as Exhibit 22 Ga 2 and is also available on Trial Court's record, asking the defendant/ appellant to produce the Original Copy of the Lease/Allotment Certificate. However, despite the demand of production of Original Copy of Lease/Allotment Certificate the defendant/appellant did not produce the same, but filed a photo-copy of receipt of premium.
39. The aforesaid action of the defendant no. 1/ appellant warrants drawing an adverse inference against the defendant/appellant as per Clause g of Section 114 of the Evidence Act.
40. Reliance in the aforesaid regard can be placed upon the dictum of the Hon'ble Supreme Court in Union of India v. Ibrahim Uddin, 2012 (5) AWC 5003 (SC). The relevant extract of the judgment of the Hon'ble Supreme Court in Union of India v. Ibrahim Uddin, 2012 (5) AWC 5003 (SC), is reproduced herein below,
6. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence.
.16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot loose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court's order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.
41. The plaintiff/respondent no. 1 had vide Letter dated 26.03.2012, under the provisions of Right to Information Act, 2005 (hereinafter referred to as "RTI Act") sought information from the Office of Assistant Collector, Tehsil Dadri, on the point as to whether any Lease/ Allotment Certificate was issued in the name of some Shri Amar Singh son of Shri Ramphal Singh.
42. Vide letter dated 03.04.2012 the Tehsildar, Dadri, pursuant to the information sought by the plaintiff/respondent No. 1 under the provisions of Right to Information Act, informed the plaintiff/respondent No. 1 that there exists no record in the Office with respect to allotment of residential lease for the year 1974.
43. It is also notable that the response by the Public Information Officer under the provisions of RTI Act is a public document. Reliance in this regard is placed upon Section 74 of the Evidence Act. Section 74 of the Evidence Act is reproduced hereinbelow:
74. Public documents.--The following documents are public documents :--
(1) Documents forming the acts, or records of the acts-- =
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;
(2) Public records kept in any State of private documents.
44. Amongst others, Sub-clause (iii) of Sub-Section 1 of Section 74 of the Evidence Act provides that documents forming the acts or records of acts of public officers, legislative, judicial, or executive are considered public documents.
45. The definition of public documents under Section 74 does not specify the form of the document. It merely states that any document which forms an act or a record of an act of a ''public officer', whether of the executive, legislature, or judiciary, must be considered a public document.
46. It is undeniable that a Public Information Officer is a ''public officer' as per Clause 17 of Section 2 of C.P.C. The response letters, moreover, are issued under a statutory duty. The response of a Public Information Officer issued in the course of his duty under, the RTI Act on a bare perusal falls within the ambit of a document forming an act of a public officer and thus is a public document, which could be proved either by adducing the original copy of the same as per Section 64 of the Evidence Act, or by filing a certified copy of the same as per Section 77 of the Evidence Act.
47. The Hon'ble Punjab and Haryana High Court in Munshi Ram v. Balkar Singh, 2016 SCC Online P&H 11166 held thus:
8. .................................. At the Appellate Court, the owner has filed an application under Order 41 Rule 27 CPC that has elicited through RTI a response to say the license number had been wrongly given as 18690/Ag/2003 when it was actually 16690/Ag/2003 and that it had been issued in the name of Balkar Singh. A response through RTI is of a public officer and it is a public document and would require no further corroboration in the manner contemplated under Section 77 of the Evidence Act. The document must be taken to be true of what its recitals state.
48. In the Cross-Examination the defendant no. 1/appellant has stated that he has no knowledge about the existence of records in the Office of the Revenue Authorities pertaining to allotment of lease in his favour.
49. The defendant no.1/appellant has very categorically admitted that (i) a possession certificate has never been issued in his favour (ii) he never got the lease registered (iii) the receipt of lease does not specify the duration for which the lease has been granted.
50. The defendant/appellant has further stated in his cross examination that he is not aware about the fact as to whether any previous approval of the Assistant Collector was taken or not before grant of lease.
51. The relevant extract of the Cross Examination of the defendant / appellant is reproduced hereinbelow:-
Cross Examination of defendant no. 1/defendant-Witness No. 1 चूंकि मेरे पास इस पट्टे की रसीद है इसलिये मुझे तहसील दादरी तहसील सिकन्दाबाद अथवा राजस्व रिकार्ड बुलन्दशहर, गाजियाबाद अथवा गौतमबुद्ध नगर में यह मालूम करने की आवश्यकता नहीं थी क्योंकि इस पट्टे की आवंटन पत्रावली व संबंधित रिकार्ड आदि उपलब्ध हैया नहीं। [Page 39, 2nd Para of Appellants Paper Book] यह कहना सही है कि ग्राम सभा इटैंडा द्वारा मुझे कोई कब्जा -प्रमाणपत्र जारी न किया गया हो। [Page 39, 5th Para of Appellants Paper Book] यह कहना भी सही है कि मैंने इस पट्टे का रजिस्ट्रेशन नहीं कराया है।यह कहना भी सही है कि इस रसीद में यह नहीं लिखा है कि यह पट्टा कितनी अवधि का है। [Page 39, 6th Para of Appellants Paper Book] ग्राम प्रधान ने मुझे मौखिक बताया था कि यह पट्टा हमेशा के लिये है।मुझे नहीं पता कि असिस्टेन्ट कलक्टर कौन होता है। मुझे नहीं पता कि असिस्टेन्ट कलक्टर का इस पट्टे से पूर्व स्वीकृति ली गयी थी अथवा नहीं।
मुझे नहीं पता कि इस आवंटन का कोई रिकार्ड ग्राम सभा इटैडा केपास है अथवा नहीं। मेरे गवाह रामवीर मेरे सगे साढूं है।
52. Though the defendant no. 1/appellant has in evidence filed a receipt of premium which is not the same as Allotment Certificate but even if, for the sake of argument the receipt of premium, is assumed to be an Allotment Certificate itself, the same bears no endorsement of approval of the Assistant Collector much less previous approval.
53. The defendant no. 1/appellant never asserted that the Assistant Collector had accorded previous approval to his lease, but has rather chosen to assert that at the relevant point in time i.e on 11.05.1974 there was no requirement of seeking prior approval of the Assistant Collector and that the said requirement was brought for the first time on 01.11.1975, when Rule 115-N of the UPZALR Rules was amended and a specific provision in this regard was inserted.
54. Substantive provision for grant of lease is contained in Section 122-C, 195, 197 and 198 of the U.P.Z.A.L.R Act and the aforesaid provisions of the Act contained provision of previous approval of Assistant Collector much prior in time than 11.05.1974.
55. Section 122-C of the U.P.Z.A.L.R Act was inserted for the first time, vide Uttar Pradesh Land (Laws) Amendment Act, 1971 which was published in the Official Gazette on 22.08.1971. Sub-Section 2 of Section 122-C which was inserted vide the aforesaid amendment specifically required obtaining of previous approval of the Assistant Collector before making allotment.
56. Likewise Section 195, 197 and 198 of the UPZALR Act also much prior to 01.11.1975 contained provision requiring previous approval of the Assistant Collector before grant of lease. Section 195, 197 and 198 of the UPZA & SLR Act was amended by Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1968, and by the aforesaid Act and by its Sections 6, 7 and 8, the following words "with the previous approval of the Assistant Collector-in-charge of the sub division" were inserted in Section 195, 197 and 198 of UPZALR Act. A Co-ordinate Bench of this Court in Lal Bhadur v. Additional Commissioner, Writ C No. 30114 of 2016, was confronted with an identical argument. It was contended, as herein contended, that the procedure for grant of an approval to a resolution of the Land Management Committee by the Assistant Collector was introduced for the first time on 01.11.1975 and thus prior to this date there was no requirement of obtaining previous approval of the Assistant Collector. This Hon'ble Court rejecting the argument observed thus:
Upon receipt of the instructions, a supplementary affidavit has been filed by the petitioner. In Paragraph No. 2 of this affidavit, it has been stated that the procedure, for grant of an approval to a resolution of the Land Management Committee by the S.D.O., was introduced by Notification No. U.O. 605/Rajaswa-1-2(8)-75 dated November 1, 1975.
This Court is not satisfied that the provisions for grant of an approval by the S.D.O., were incorporated from November, 1975 as is the stand of the S.D.M., Phoolpur as also the petitioner. Sections 195, 197 and 198 of the UP ZA & LR Act, 1950 were amended by Presidents Act, 17 of 1968 and the Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1968. By the aforesaid Act and by its Sections 6, 7 and 8, the following words "with the previous approval of the Assistant Collector-in-charge of the sub division" were inserted in each of the aforesaid three sections.
The stand, taken in the letter of the Sub-Divisional Officer, Phoolpur, Allahabad, that the previous approval of the SubDivisional Officer, was required only after 1974, therefore, cannot be accepted.
Even, the contention, raised on behalf of the petitioner that approval of the Sub-Divisional Officer, was required only after Notification No. U.O. 605/Rajaswa-1-2(8)-75 dated November 1, 1975, is also without substance.
This notification will not over-ride the amendment in the Principal Act itself, especially, Sections 195, 197 and 198 of the Act, wherein the words "with the previous approval of the Assistant Collector-incharge of the sub division" were added much prior in time. It necessarily follows that even in 1974, when the petitioner is alleged to have been allotted the land in question, the previous approval of the Sub-Division Officer was mandatorily required.
57. Thus it becomes evident that the provision requiring previous approval of the Assistant Collector before grant of allotment under Sections 195, 197 and 198 of U.P.Z.A.L.R, was brought into force by the Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1968 and the provision of previous approval of Assistant Collector before grant of allotment under Section 122-C was brought into force by the Uttar Pradesh Land Laws (Amendment) Act, 1971. As the provisions contained in the UPZALR Act prescribed for previous approval of the Assistant Collector before allotment and the same was very much in force prior to 11.05.1974, i.e. the date of grant of alleged lease, the contention of the defendant no. 1/appellant that the same was introduced for the first time on 01.11.1975 by amending Rule 115-N, can be of no help as it is settled law that Rules cannot override or control the provisions contained in the Parent Act.
58. Hence in light of the provisions contained in Section 122-C, Section 195, 197 and 198 of UPZALR Act, as it stood at the relevant point in time as also the dictum of this Hon'ble Court in Lal Bhadur v. Additional Commissioner, Writ C No. 30114 of 2016, there remains no iota of doubt that the requirement of obtaining previous approval of the Assistant Collector was mandatory.
59. A Co-ordinate Bench of this Court in Abdul Rauf Khan v. Abdul Samad, 1999 (2) AWC 939 held that previous approval of the Assistant Collector is mandatory and any allotment made without his previous approval would be rendered void ab-initio and the Civil Court has sufficient powers to ignore it. The relevant extract of the judgment of this Hon'ble Court in Abdul Rauf Khan v. Abdul Samad, 1999 (2) AWC 939 is reproduced hereinbelow:-
8. A perusal of the aforesaid statutory provisions reveals that without prior approval of the Assistant Collector incharge of the Sub-Division, no allotment of the land could be made by the land management committee. In the present case, it was pleaded and proved that no approval was ever accorded by the Assistant Collector, incharge of the Sub-Division, what to say of prior approval. Resolution of the Land Management Committee alleged to have been passed in favour of the plaintiff-appellant was thus non-est and void ab initio.
9. It is well-settled in law that the civil court has got jurisdiction to consider and decide the legality of the allotment, if it is called upon to decide the same. Reference in this regard may be made to the decision in Chikhuri Bollu Koen v. Santoo Koeri and another 1983 ALJ 687. wherein it was ruled as under :
"What is made final by subsection (7) of Section 122C is the order of the Assistant Collector subject to the provisions of subsection (6), and the provisions of Section 333 of the Act, that is to say the Assistant Collector's order is subject to the order of the Collector under sub-section (6) of Section 122C and the order of the Collector is subject to the order of the Board of Revenue under Section 333, U. P. Zamindari Abolition and Land Reforms Act, and the orders so passed are final. Under sub rule (5) of rule 115P, it is the order of the Collector which is made final. In the present case, no application for cancellation of the allotment was ever made. The result is that there is no order of the Assistant Collector or the Collector or the Board of Revenue. Under the circumstances, these provisions do not operate to bar the Jurisdiction of the civil court to go into the question whether the allotment of land made by the Gaon Sabha was incompetent and, therefore, non est in law. I may here observe that the Schedule II to the Zamindari Abolition and Land Reforms Act read with Section 331 thereof does not exclude the jurisdiction of the civil court in the matter of applications covered by Section 122C or Rule 115P. The civil court could always see whether the land belonged to the plaintiff or not, and if it came to the finding that the land was settled with the plaintiff under Section 9, U. P. Zamindari Abolition and Land Reforms Act, and did not, therefore, belong to the Gaon Sabha and was not open to allotment as an abadi site under Section 122C, it could hold or declare the allotment to be invalid and ineffective in law and ignore it."
60. It is also fairly settled in law that if a transaction is void ab initio, for avoiding the same no declaration or cancellation is required, as law does not take notice of the same and it can be disregarded in collateral proceedings. Reliance in this regard is placed upon the dictum of the Hon'ble Supreme Court in Dhurandar Prasad Singh v. Jai Prakash University, AIR 2001 SC 2552, wherein it was held that:
21. Thus the expressions void and voidable have been subject matter of consideration on innumerable occasions by courts. The expression void has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise............
61. Reiterating the aforesaid principle the Hon'ble Supreme Court in Prem Singh v. Birbal Singh, (2006) 5 SCC 353 held thus:
16......... When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity.
62. An echo of the aforesaid principle resonates in the dictum of the Hon'ble Supreme Court rendered in Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Co-operative Housing Society, Jaipur, (2013) 5 SCC 427, wherein the Hon'ble Supreme Court observed that:
15. In Kalawati v. Bisheshwar, AIR 1968 SC 261, this Court held:
".........Void means non-existent from its very inception......."
16. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC 906, this Court held:
"7......The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity or the infirmity, as to whether it is, fundamental or otherwise......."
17. The word, "void" has been defined as: ineffectual; nugatory; having no legal force or legal effect; unable in law to support the purpose for which it was intended. (Vide: Black's Law Dictionary). It also means merely a nullity, invalid; null; worthless; sipher; useless and ineffectual and may be ignored even in collateral proceeding as if it never were.
18. The word "void" is used in the sense of incapable of ratification. A thing which is found non-est and not required to be set aside though, it is sometimes convenient to do so. There would be no need for an order to quash it. It would be automatically null and void without more ado. The continuation orders would be nullities too, because no one can continue a nullity.
63. An overview of the aforesaid facts clearly reveal that Firstly, the defendant no. 1/appellant has failed to adduce Allotment Certificate and hence could not prove the factum of grant of Lease /Allotment in his favour. Secondly, even if for the sake of arguments, the receipt for premium is taken to be the Allotment Certificate itself, in absence of previous approval of the Assistant Collector the same is void-ab initio and is liable to be ignored for which no separate proceedings are required to be initiated. Finally, the document dated 11.05.1974 was not a lease / allotment certificate. It never required cancellation or declaration as a void document from revenue court.
64. All the points of determination are decided thus, (1) defendant no. 1/appellant has failed to prove that disputed area of 150 square yards in plot no. 120 in dispute was his exclusive property on the basis of residential lease dated 11.05.1974. (2) Even prior to 09.11.1975 permission of Assistant Collector/ Sub-Divisional Officer was required for execution of residential lease. (3) The receipt dated 11.05.1974 was not a lease / allotment letter and not binding on civil court. It required no cancellation / declaration from court as void document and has rightly been ignored by the court below.
65. In view of the above answers to the points of determination, judgment and decree of the trial court deserves to be confirmed.
66. This appeal is accordingly, dismissed with costs.
Order date:- 03.09.2021 Rohit