Allahabad High Court
Virendra Singh And Another vs State Of U.P. And 7 Others on 11 September, 2017
Author: Amreshwar Pratap Sahi
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 37 Case :- WRIT - C No. - 33729 of 2017 Petitioner :- Virendra Singh And Another Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Saurabh Srivastava Counsel for Respondent :- C.S.C.,Shiv Kumar Yadav Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajiv Lochan Mehrotra,J.
Heard Sri T.P. Singh Senior Advocate assisted by Sri Saurabh Srivastav learned counsel for the petitioners and Ms. Anjali Upadhyay learned Standing Counsel for the state and perused the record.
The present writ petition is an illustration of manipulations being attempted for acquiring wealth out of state exchequer in proceedings relating to award of compensation in respect of land acquired by the state for a public purpose. The entire web of facts that was strewn together, is sought to be possibly disentangled by us in order to arrive at the real truth as far as possible, and the disclosure whereof is startling. The manipulative process with the connivance of the bureaucracy at the lowest levels and then its percolation upwards in a well organized manner clearly reflects upon the intention of the petitioners. The involvement of the revenue officials in aiding and abetting the siphoning of Government funds in a clandestine manner is evident. It is trite law that fraud vitiates all solemn proceedings and the sooner it is detected and rectified the better it is to avoid any further complications.
The public at large should be grateful to such officials who have left no stone unturned to lay bare the truth in order to unearth any such activity that shocks the conscience of the Court as well. We have dealt with this matter on previous occasions and after having traversed the facts, we are convinced that not only should the relief claimed by the petitioners be dismissed but appropriate directions should also be given for immediate measures to be undertaken by the administration in order to redeem the wrong which appears to have been consummated in the circumstances of the present case. Our direction should not only be confined only to this case but the administration should now with an alert and attentive effort try to locate any such other frauds that might have been committed the possibility whereof cannot be ruled out.
The present is a case where the petitioners have succeeded in receiving compensation for land that was disbursed to them without possessing title over the land about which the claim was seriously disputed. Surprisingly, enough the disbursement of compensation was made despite restraint orders issued by the Collector. It is therefore, necessary to delineate the details of the facts that have led to the present controversy.
The land which the petitioners are claiming to be their holding for which they have received compensation, is part of Plot No. 27 of Village- Man Nivada, Block-Madararai Guman, Tehsil-Bilhor, District- Kanpur Nagar. The petitioner no. 1 claimed title over an area of 0.256 hectares whereas, the petitioner no. 2 claims title over 0.410 hectares for which area they have received compensation in proportion thereto. These two petitioners have based their claim of title over the disputed land alleging that they were in occupation of the aforesaid areas that was recorded as Usar(fallow unproductive land) belonging to the Gaon Sabha that stood regularized in their favour under law. Thus for all practical purposes it was Government land over which they claimed occupation. They also allege that this occupation came to be regularized in terms of sub-Section (4F) of Section 122-B of the then existing UPZA & LR Act, 1950 (now substituted by the Revenue Code of 2006). For ready reference the said provision is extracted hereinudner:-
"(4F) Notwithstanding anything in the foregoing sub-section, 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."
The impact of the aforesaid section and the other related sections shall be dealt with later on, but for the time being it would be appropriate to put on record that through the second supplementary affidavit filed by the petitioners, which is dated 8th August 2017, the orders under the aforesaid provision were issued by the Sub-Divisional Officer, Bilhor, District-Kanpur Nagar extending the benefits of such declaration to the petitioner no. 1 on 10th June, 2009 and to the petitioner no. 2 on 22nd July, 2008. Certified copies of these orders have been filed alongwith the aforesaid second supplementary affidavit dated 8.8.2017. At the very outset, we may put on record that different dates have been, however, mentioned in the orders passed by the authorities with regard to which we shall refer to hereinafter. The name of the petitioners found place in the revenue records in terms of the aforesaid orders whereafter, the acquisition proceedings for setting up a Thermal Power Station by the National Thermal Power Corporation was set into motion. A large chunk of the land including the said area as claimed by the petitioners was acquired and compensation was also awarded in respect thereof.
There were other tenure holders also expecting compensation and some of them including the respondent nos. 6 to 8 namely Prem Kumar, Smt. Shashi and Suresh Kumar were claiming allotment of land over some area of Plot No. 27 which had been acquired and therefore, they claimed compensation. A dispute arose and the present petitioners instituted a statutory complaint against the respondent nos. 6 to 8 and three others before the Collector, District-Kanpur Nagar under Section 198(4) of the UPZA & LR Act, 1950 praying that these persons have obtained allotment fraudulently over a part of the area of Plot No. 27 presently involved and therefore, their allotment be cancelled. The allegation by the petitioners was that the allotment claimed by these persons as agricultural leases dated 19.8.2003 and 28.12.2007 should be cancelled as they are not eligible for grant of such agricultural leases. This, however, had a consequential effect as well, namely, if the respondent nos. 6 to 8 and the other three persons were held to be ineligible, then their entitlement to maintain their allotment would come to an end, and consequently they would also not be entitled for any compensation for the land so acquired for building the Thermal Power Station. This application was filed by the petitioners on 23rd June, 2014 copy whereof is annexed as Annexure No. 6 to the writ petition on which the Tehsildar Bilhor submitted his report dated 18.7.2014 which is annexed as Annexure No. 7 to the writ petition clearly stating therein that the entire area of Plot No. 27 was 1.763 hectares whereas allotments had been made on an area of 2.203 hectares as a result whereof an excess area of 0.440 hectares had been shown erroneously to have been allotted beyond the recorded total area. The said report dated 18th July, 2014 therefore, became the basis of adjudication before the Collector. The Collector on 19th February, 2016, according to the brief history of the case as submitted on 2nd August, 2017 by Sri Sameer Verma, ADM, Land Acquisition, Kanpur Nagar before us, directed the National Thermal Corporation not to release any payments in view of the aforesaid proceedings for the disputed Plot No. 27 in question. The Collector finally passed an order on 29th March, 2016 cancelling the allotments and the leases of the respondent nos. 6 to 8 and the other three persons at the instance of the petitioners, but at the same time recorded certain findings that did not acknowledge the claim of the petitioners either. The Collector observed that the applicants, namely the petitioners herein, who had lodged the complaint also could not produce any evidence relating to their title in terms of Section 122B4(F) of the 1950 Act. Not only, this the order of the Collector in the last paragraph surprisingly enough mentions that the petitioners and the contesting respondents proposed a compromise but the Collector refused to accept the same on the ground that such a dispute of land belonging to the State cannot be disposed of on the basis of a compromise of these private contending parties and consequently, the allotment of the agricultural leases in favour of the respondent nos. 6 to 8 and other three persons was cancelled. The land stood reverted in the Gaon Sabha.
In spite of the aforesaid development, where the Collector had observed that the petitioners who were applicants in those proceedings had not been able to produce any evidence of any order passed in their favour, the Land Acquisition Officer of the district proceeded to release the payments to the petitioners vide directions dated 10th April, 2016 and the disbursement was affected on the next date on 11.4.2016. It is thus to be noted that even though the Collector had issued instructions on 19th February, 2016 not to pay any compensation in respect of the disputed land, and had passed final orders on 29th March, 2016 neither accepting the claim of the petitioners or the respondent nos. 6 to 8, yet the payments were released and disbursed to the petitioners as well.
The respondent nos 6 to 8, however, filed a revision against the cancellation of their allotment vide Collector's order dated 29.3.2016 before the learned Commissioner. An order of status quo, was passed by the Commissioner on 12th May, 2016. After passing of the status quo notices were also issued to the petitioners on 10th June, 2016 to deposit the entire amount of compensation received by them immediately. It is thus clear that the refund was sought promptly within two months of its disbursement. The revision filed by the respondent nos. 6 to 8 where the order of status quo was passed, was dismissed on 7th September 2016. The petitioners did not choose to give any reply to the notice dated 10th June, 2016. The respondent nos. 6 to 8 and the other unsuccessful allottees filed Writ Petition No. 50894 of 2016 that was dismissed by the High Court on 24.10.2016 observing that since the land has been acquired, therefore, the dismissal of the revision by the Commissioner did not suffer from any infirmity as no title existed in favour of the petitioners. Thus, the agricultural leases of the respondent nos. 6 to 8 and three other persons and its cancellation became final coupled with the order of the Collector dated 29.3.2016 where the observations against the petitioners was maintained.
In this background the petitioners who had also been called upon to return back the compensation received by them were sitting tight without giving any reply to the notice dated 10th June, 2016. The Collector was therefore, left with no option but to initiate recovery proceedings against the petitioners and citations were issued to the petitioner nos. 1 and 2 separately on 11th May, 2017 for the recovery of Rs. 24,27,792/- and Rs. 38,88,260/- respectively.
Aggrieved by the issuance of the said citations the petitioners filed Writ No. 28194 of 2017 that was dismissed on 4th July, 2017 with liberty to file a fresh petition as relevant averments were missing. This is how, the present writ petition came to be filed.
The matter was taken up by this Bench on 1st August, 2017 when the following order was passed:-
"Supplementary affidavit filed today, is taken on record. Along with the supplementary affidavit Khatauni has been filed for the Fasli Year 1422-1427. In the column with regard to the change of entries there is an endorsement of the order of the Additional District Magistrate dated 31.03.2016.
Learned counsel for the petitioners may explain and produce a copy of the order aforesaid whereby a direction has been issued to expunge the name of the petitioners.
Put up day after tomorrow as prayed for."
On 3rd August, 2017 after examining the available material on record, we passed the following order:-
"This writ petition discloses a sordid state of affairs with regard to an unlawful disbursement of compensation in respect of a land which has been acquired and which the petitioners allege to be their holding.
We had adjourned the matter on the previous occasion and had called for the original records relating to the proceedings as also the order dated 31.3.2016 as indicated in the relevant Khatauni.
Today a brief history through written instructions of the Additional District Collector (Land Acquisition), Kanpur Nagar has been placed before us which discloses that so far as the claim of the petitioners is concerned their allotment came to be cancelled vide order dated 31.5.2014. In spite of the cancellation of their grant, the acquisition proceedings which had commenced has resulted in disbursement of a sum of Rs. 63,16,052/- to both the petitioners. The written instructions clearly indicates that there were orders passed by the then Collector for not disbursing the amount, yet the disbursement has been made on 11.4.2016.
The records which have been produced before us relate to the complaint that came to be lodged in this regard and also refers to the names of those persons who were involved in the disbursement including the then Additional District Magistrate (Land Acquisition), and his staff namely, Rajendra Prasad Pal, clerk, Jitendra Kumar Bajpayee, head clerk and the petitioners who took the assistance of an alleged tout Mr. Ram Gopal s/o Shiv Balak Awasthi, R/o village Dondwa Jamauli, Uttari Shivrajpur, Tehsil- Bilhaur, Kanpur Nagar.
This, therefore, prima facie indicates that the entire amount has been pilfered in spite of the aforesaid facts on record.
It is also the admitted case that against the order dated 31.5.2014, the petitioners had filed a recall application before the Sub Divisional Magistrate on 10.5.2014 which is still pending and no orders have been passed by the Sub Divisional Magistrate, Bilhaur on the same.
If that is the position, then the petitioners are under an obligation to explain to this Court as to how they managed the disbursement and release of the entire amount as referred to in the instructions when they had no title to receive the compensation as on the date of the disbursement i.e. 11.4.2016.
The Court also proposes to launch a criminal prosecution in this matter keeping in view the aforesaid breach that appears to have been committed in the disbursement of the compensation amount in spite of the orders of the Collector.
The records pertaining to the disbursement of the amount have not been produced before us. We direct the Collector, Kanpur Nagar and the concerned Additional District Magistrate to produce the said records of disbursement as well before this Court on Tuesday i.e. 8th August, 2017. The Additional District Magistrate (Land Acquisition) shall also be present in person alongwith his entire staff to assist the Court.
Put up on Tuesday i.e. 8.8.2017.
The petitioners shall forthwith proceed to deposit the amount which is sought to be recovered from them or appropriate action shall be taken against them.
The petitioners shall also be present in person before this Court on Tuesday i.e. 8.8.2017."
On a prima-facie view expressed by us, we had also observed that the matter may require launching of a criminal prosecution and a direction was issued to the petitioners to forthwith deposit the entire amount received by them. The reason mentioned by us was categorical, namely, that the orders relied upon by the petitioners for declaring them as tenure holders as mentioned hereinabove had already been recalled on 31st May, 2014 against which the petitioners had filed a recall application on 10th May, 2014 that remained pending and was rejected on 8.8.2017. The petitioners received the compensation amount on 11.4.2016 almost two years after the cancellation of the orders in their favour. Thus, on the date of the disbursement of the compensation there were no orders in existence of the rights of the petitioners as tenure holders. They had therefore, no authority to receive any compensation yet the same had been disbursed, and as indicated above this was done in spite of the direction of the Collector dated 19.2.2016 and the observations made by him about no evidence having been produced of the title of the petitioners in the order dated 29.3.2016.
Pursuant to our observations made in the order quoted hereinabove on 3rd August, 2017 a second supplementary affidavit was filed on 8.8.2017. It is alongwith this affidavit that petitioners came up with their alleged original orders dated 10.6.2009 and 22.7.2008 stated to have been passed in their favour.
Since, we had directed the petitioners to refund the amount and deposit the same in the order dated 3rd August, 2017, the petitioners moved an application on 5.8.2017 praying for some time to deposit the amount received by them and also prayed that the fact that recall application was pending for recalling the cancellation order should also be noticed. The petitioner no. 2 also raised a plea that on a calculation the petitioner no. 2 was entitled to retain part of the land as per the order of cancellation dated 31st May, 2014. For this, he urged that 0.184 hectares would only be in excess and therefore, out of 0.410 hectares allotted, the petitioner no. 2 can be compelled to refund the amount only of the aforesaid excess area and not of the entire area. This argument has also been pressed into service by Sri T.P. Singh, learned Senior Counsel with which we shall deal later on.
We had also called upon the learned Standing Counsel to inform the Court about the status of the recall application filed by the petitioners for recall of the order dated 31.5.2014 on which an information was given that the orders were to be delivered on 8.8.2017 itself. We accordingly, posted the matter for the next date on 9.8.2017 and the following order was passed by us:-
"Supplementary affidavit filed by the petitioners today captioned as third supplementary affidavit, is taken on record.
Heard learned counsel for the petitioners and learned Standing Counsel.
Learned Standing Counsel has produced two documents; one the certified copy of the order dated 08.08.2017 passed by the Sub Divisional Magistrate whereby the restoration application of the petitioners dated 10.06.2014 has been rejected; the second document is a report of the Sub Divisional Magistrate indicating the extent of amount which is sought to be recovered from the petitioners on account of the disputed payment as involved in the present case.
A photostat copy of both the documents shall be handed over by the learned Standing Counsel to the learned counsel for the petitioners today itself. The petitioners are directed to file their personal affidavits relating to the investment of the amount received by them its current status and any expenditure with accurate proof along with the affidavits. The affidavits should candidly disclose as to where the balance amount of money has been either invested or kept including any bank account fixed deposits receipts or investment in movable or immovable properties with details. The affidavits shall be filed by day after tomorrow.
Put up day after tomorrow."
We noticed the facts stated in third supplementary affidavit filed by the petitioners and also the affidavit on behalf of the state bringing on record the rejection of the recall application on 8.8.2017 as well as the report of the Sub-Divisional Magistrate indicating the calculation of the entire amount that was sought to be recovered from the petitioners and the deposits made by them. Noticing the same a direction was issued to the petitioners to file their personal affidavits in order to locate the whereabouts of the entire amount that had been disbursed to them on 11.4.2016 and the status of the investment, if any.
The matter was again taken up on 11th August, 2017 on which date the State filed an affidavit and we passed the following order:-
"Heard learned counsel for the petitioner Sri Saurabh Srivastava, learned Additional Advocate General Sri Ajit Kumar Singh and learned Standing Counsel Smt Anjali Upadhyay for the state.
Learned counsel for the petitioner prays for further time to file the affidavit as he contends that the information that was sought has been tendered to him today.
The time prayed for is granted, let the matter come up on 16.08.2017. The presence of all the official shall not be required on the date fixed except one officials who may be present alongwith the records in order to assist the Court."
On 16th August, 2017 the petitioners complied with by filing two separate affidavits disclosing the acquisition of assets, and the petitioner no. 2 again sought to justify the withholding of part of the amount on the ground that his area of retention of land was partially saved and, therefore, he should not be made to deposit the entire amount received by him as compensation. Both the affidavits recite that the petitioners prays for three months further time to collect the amount and deposit the same.
On 21st August, 2017 the matter was taken up and we passed the following order:-
"Heard learned counsel for the petitioners and the learned Standing Counsel for the State. We have also perused the affidavits which were filed on 16.8.2017.
The affidavit of the petitioner No. 1 discloses the fact that the petitioner No. 1 had given money to his father and it is for the said petitioner to retrieve it and to deposit it immediately with the respondents.
The affidavit of the petitioner No. 2 has given an explanation of having purchased jewelry, Bolero car and some expenses with regard to the land deal and loan being advanced to one Subhash Chandra Shukla and another person for construction of a house.
The petitioners may retrieve the entire amount and deposit it, or else, this Court will proceed to issue necessary direction for launching a criminal proceeding against both the petitioners.
List on 4th September, 2017 on which date the petitioners shall comply with the observations made by this Court, or else, action will be taken."
The petitioners as well as the learned Standing Counsel informed the Court about the partial deposits made by the petitioners but a substantial amount still remained to be deposited. We had been adjourning the matter in order to accommodate the petitioners so that they may abide by our directions. However, on 4th September, 2017 Sri T.P. Singh learned Senior Counsel alongwith Sri Saurabh Srivastava advanced their submissions on behalf of the petitioner no. 2 justifying only part deposit as observed above and also contending that since the dispute of title is still pending adjudication further recovery should not be made from the petitioners.
After having heard the learned counsel for the parties including the learned Standing Counsel for the state, we reserved orders.
On a perusal of the pleadings and the documents on record we find that there are three sets of transactions of allotment and settlement over the entire area of Plot No. 27. In order to have an idea of the controversy involved, the undisputed facts which emerge from all the records and the pleadings of the parties is that the recorded area of Plot No. 27 is 1.763 hectares that is entered as Usar in the Khata of the Gaon Sabha of the village in question.
The first set of transaction relates to a narration of allotment of 1.230 hectares of land on 25th March, 2003, the endorsement whereof in the Khatauni (revenue record of rights) is stated to have been made on 10th August, 2008.
The second set of transaction is of allotment of agricultural leases to six persons including the respondent nos. 6 to 8. The Land Management Committee of the Gaon Sabha is stated to have passed the resolution on 27th July, 2003 on which a report by the Tehsildar dated 19th August, 2004 was prepared and the approval of the Competent Authority was obtained on 28th December, 2007. This allotment and approval of the second set was ultimately cancelled on 29.3.2016 by the Collector in proceedings under Section 198(4) of the UPZA & LR Act, 1950 that has been upheld by the High Court as noted above.
The third set of transaction is where the petitioners and two other persons namely Arvind and Rajendra have claimed benefit of regularization. It deserves to be clarified that according to the orders and reports placed on record Arvind and Rajendra also claimed occupation of the land to the extent of 0.307 hectares and they obtained orders from the Sub-Divisional Officer on 18th August, 2008 in terms of Section 122B(4F) of the 1950, Act. Similarly, the petitioners claimed regularization of their rights under the aforesaid provisions for which they rely on the allotment orders dated 22.7.2008 and 10.6.2009 filed alongwith the second supplementary affidavit. The said allotment orders mention the report of the Tehsildar dated 30th January, 2008 and 1st March, 2009 respectively in favour of the petitioner no. 2 and the petitioner no. 1 for extending the benefit of regularization. The reports of the Tehsildar referred to in the orders of the Sub-Divisional Officer are not on record nor have been filed by either of the parties.
The calculation of the area of the land that can be gathered from the pleadings on record are that out of the total area of 1.763 hectares of Plot No. 27, 1.230 hectares are stated to have been allotted as agricultural leases on 25.3.2003. The endorsement of the aforesaid leases is said to have been made on 10.8.2008. Thus, if the said allotment is valid then the remaining area would be only 0.533 hectares.
The order passed in favour of the petitioner no. 2 for regularizing his claim over an area of 0.410 hectares in terms of Section 122B(4F) of the 1950, Act was passed on 22.7.2008. Similarly, order of regularization in favour of Arvind and Rajendra is stated to have been made for an area of 0.307 hectares on 18.8.2008. The order of the same nature in favour of petitioner no. 1 is stated to have been passed for an area of 0.256 hectares on 10.6.2009. If the entire area of allotment and regularization as aforesaid is added, the area swells to 2.203 hectares, whereas the recorded available area is only 1.763 hectares. Thus, 0.440 hectares is in excess. Consequently, the entire area of the petitioner no. 1 which was regularized at last on 10.6.2009 stood in excess of the available area. Similarly, the allotment in favour of the petitioner no. 2 after excluding the area of the petitioner no. 1 also became in excess of 0.184 hectares.
With these three sets of transactions it appears that a report was submitted by the Tehsildar before the Sub-Divisional Officer on 17th January, 2014 for cancellation of the orders in favour of the petitioners that were issued in terms of Section 122B(4F) of the 1950 Act.
The Sub-Divisional Officer vide order dated 31st May, 2014 cancelled the regularization orders of the petitioners which the petitioners stated to be dated 22.7.2008 and 10.6.2009, the dates whereof have been mentioned as 23.10.2008 and 23.6.2009 in the cancellation order. We are mentioning this fact because even though the dates are different yet the orders are in relation to the same plot and same transaction.
According to the affidavit dated 10.6.2014 filed in support of the recall application of the petitioners of the same date and appended as Annexure No. 5 to the writ petition, the petitioners after the submission of the said report of the Tehsildar put in appearance through counsel on 25th February, 2014 before the SDO. This fact that the petitioners appeared before the Sub-Divisional Officer through counsel in the cancellation proceedings initiated against them is admitted in paragraph 3 of the above mentioned affidavit which is on record. Thus, the petitioners were fully aware of the proceedings of cancellation initiated against them. They have alleged in the affidavit that they were misled by the information given in the office by the Sub-Divisional Officer and therefore, they had not come to know of the cancellation order dated 31st May, 2014 whereafter they moved an application for recall on 10th June, 2014. The said recall application has been rejected on 8.8.2017 as noted above.
While cancelling the orders in favour of the petitioners it was categorically recorded that since the total area of Plot No. 27 was 1.763 hectares, and the earlier allotments as well as regularization of the petitioners had resulted in swelling of the area to 2.203 hectares, there was an excess of allotment and regularization to the extent of 0.440 hectares. In this chain of events since the regularization orders of the petitioners were the latest orders therefore, their regularization was found to be in excess and was cancelled on 31st May, 2014.
It appears that upon the cancellation of the orders in favour of the petitioners, the petitioners initiated a process of the cancellation of allotment of leases of the respondent nos. 6 to 8 and three other persons over Plot No. 27 by filing an application on 23rd June, 2014. This was clearly done in order to demolish the allotment of the aforesaid six persons in order to save the allotment of the petitioners. This counter measure by the petitioners was lodged before the Collector in terms of Section 198(4) of the 1950 Act, but a copy of the application which has been filed as Annexure No. 6 to the writ petition nowhere states that proceedings for cancellation of the orders in favour of the petitioners had already been undertaken. As noted above the petitioners had already put in appearance through counsel on 25.2.2014 before the Sub-Divisional Officer in respect of their cancellation but for reasons best known to the petitioners they categorically stated in the application dated 23.6.2014 that they have perfected their rights under Section 122B(4F) and as a matter of fact they did not even disclose the cancellation order dated 31.5.2014 even though they had moved the recall application on 10.6.2014 itself. The petitioners, therefore, had full knowledge about their cancellation but when they moved the application for cancelling the allotment of the respondent nos. 6 to 8 and three other persons, they did not choose to disclose this fact before the Collector. There is no explanation coming forth from the petitioners as to why they did not do so. On the filing of the said application for the cancellation of the allotment of those six persons by the petitioners, a report of the Tehsildar was submitted on 18th July, 2014, copy whereof is annexed as Annexure No. 7 to the writ petition which reports that there has been an excess of allotment of 0.440 hectares. The said proceedings remained pending and the Collector of the district in the wake of the acquisition proceedings of the entire land having been undertaken, wrote a letter to the National Thermal Power Corporation not to disburse the compensation vide letter dated 19th February, 2016, the reference whereof has already been made in the prelude recorded hereinabove.
In these proceedings of cancellation against the respondent nos. 6 to 8 and the other three persons alongwith them, the Collector passed orders on 29th March, 2016 clearly accepting the report of the Tehsildar and recording that the allotment made in favour of those six persons deserved to be cancelled and further observed that the petitioners who were the applicants therein had failed to produce any evidence about the existence of any orders in their favour. Not only this the Collector observed that the petitioners and the contesting respondents had proposed a compromise but the Collector refused to acknowledge the same as any such compromise would not confer title on either of the parties. The aforesaid order of the Collector has become final as narrated hereinabove with the dismissal of the Writ Petition No. 50894 of 2016 on 24.10.2016 but at the same time a relevant fact which deserves to be clearly observed is that the petitioners concealed the factum of the cancellation order dated 31st May, 2014 and also of their having moved a recall application on 10th June, 2014. It is for this reason that the Collector categorically recorded in his order dated 29.3.2016 that the petitioners have failed to produce any evidence of allotment in their favour. The petitioners, therefore, deliberately did this inspite of the fact that they were the applicants before the Collector in the aforesaid proceedings.
Thus, neither the petitioners nor the contesting respondents had any subsisting right, title or interest on the date when the Collector passed the order i.e on 29th March, 2016 and it is for this reason that the Collector had clearly instructed not to disburse the compensation amount to any of these persons. The same position existed on 11.04.2016 when the petitioners received compensation.
Apart from this the Khatauni (revenue record of rights) filed by the petitioners in their first supplementary affidavit dated 1.8.2017, there is a clear endorsement in the remarks column that the Additional District Magistrate, Land Acquisition had dispatched a letter dated 31st March, 2016 on the basis whereof the entries in favour of the petitioners were directed to be expunged and the name of the National Thermal Power Corporation was directed to be endorsed.
There is nothing on record to indicate that the petitioners have challenged the expunging of their names from the revenue record which stood endorsed in the Khatauni in the remarks column.
What appears is that the manipulation started thereafter in the Land Acquisition Office and since the name of the petitioners was entered in the main column of the record of rights inspite of the cancellation order dated 31.5.2014 and the order expunging their names dated 31.03.2016, the petitioners probably in connivance with the officials of the land acquisition office obtained orders for release of the compensation treating them to be the tenure holders entitled to receive the same on 10.4.2016. Immediately thereafter on 11.4.2016, the disbursement of the entire amount of almost Rs. 66,00,000/- was made to both the petitioners as compensation in respect of the same land about which cancellation order had already been passed on 31st May, 2014. This, therefore, was a clear manipulation that enters the realm of fraud.
It is also evident that not only the petitioners but the contesting respondent nos. 6 to 8 had attempted to dodge the Collector by proposing a compromise before him that was rejected in his order dated 29th March, 2016. Thus, the intention was clear to somehow the other obtain the compensation inspite of the fact that none of them had any subsisting title over the land in question.
In order to further perpetuate this, a revision was filed by the contesting respondents before the learned Commissioner against the order dated 29.3.2016 and an order of status quo, was passed on 12.5.2016.
Notices were issued to the petitioners by the Collector on 10.6.2016 calling upon them to deposit the entire amount of compensation that they had received on 11th April, 2016. It appears that the Collector took a prompt and swift action after having come to know about the said manipulation in the land acquisition office.
The Commissioner dismissed the revision filed by the contesting respondent nos. 6 to 8 on 7.9.2016. The petitioners did not respond to the notice dated 10.6.2016. It was thus, evident that the petitioners in league with the officials of the Land Acquisition Department had succeeded in withdrawing a huge amount and had walked away with the compensation money which compelled the Collector to issue necessary orders for recovery of the entire amount consequent whereto the two impugned citations dated 11th May, 2017 were issued and the petitioners were subjected to the recovery proceedings.
The aforesaid facts narrated are so convincing and we have every reason to believe the same to conclude that the petitioners and the officials were hand in gloves with each other to siphon of a huge amount inspite of the aforesaid facts being on record.
It is after having traversed the said facts that we had passed orders from time to time as extracted hereinabove and had called upon the petitioners to deposit the entire amount as we also found the recovery authorities not strictly pursuing the recovery against the petitioners.
It is here that we may now advert to the argument which has been advanced on behalf of the petitioner no. 2 by the learned counsel for the petitioner. It is urged that so far as the petitioner no. 2 is concerned the order of cancellation dated 31st May, 2014 itself indicates that only 0.184 hectares of land in excess has been retained by the petitioner no. 2 namely Pappu alias Ghanshyam and accordingly, it was only that area which would stand cancelled. So far as the allotment of petitioner no. 1, 0.256 hectares is concerned, the same was cancelled in its entirety. We may put on record that the Sub Divisional Magistrate even while passing the order in favour of the petitioners in 2008-2009 as alleged by them has nowhere mentioned about their status as agricultural labourers as defined under Section 198 of the Act and their entitlement to receive such regularization. The proceedings are still shrouded in mystery as no record has been filed before us except the certified copies of the orders dated 22.07.2008 and 10.6.2009. We are expressing this doubt not merely on account of non-filing of these papers before us but also because of the fact that the petitioners themselves never produced any such evidence or document before the Collector when he passed the orders on 29th March, 2016. They did not even mention these facts in their application dated 23.6.2014 as observed hereinabove.
The orders of regularization of the status of the petitioners as Bhumidars with non-transferable rights under Section 195 of the UPZA & LR Act, 1950 is yet to be established as the process of such passing of the orders is admittedly based on a total mis-calculation of the entire area of Plot No. 27. Apart from this the examination of facts that led to such passing of orders on the basis of an excess area is allegedly being contested by the petitioners which they will have to establish before a Court of competent jurisdiction. The fact remains, that the orders that came to be cancelled on 31st May, 2014 were clearly an outcome of manipulation of the area of the plot in question. The payment of compensation either on account of suppression of the cancellation order or it's deliberate avoidance is clearly unlawful. The recipients, namely the petitioners as well as the facilitators, both are equally liable. This therefore, vitiates the entire transaction and no part of it can be saved. So far as the claim of the petitioner no. 2 that the cancellation order itself makes an allowance of part of the area as excess as against the total area claimed by the petitioner no. 2, this aspect pales into insignificance as fraud vitiates all solemn proceedings. It is trite that fraud and justice do not dwell together. For this we may cite the following decisions:-
(1) 2016 (4) SCC 791 where the Court in paragraph 8 quoted the ratio of an earlier judgment with approval in the case of Ram Chandra Singh Vs. Savitri Devi 2003 (8) SCC 319. The other decision is that of Meghmala & Others Vs. G. Narasimha Reddy & Others 2010 (8) SCC 383. Applying the ratio of the said decision, it is apparent that was a deliberate attempt to create an excess area and then regularize the claim of the petitioners. Any such order that was based on a fraudulent act of calculating an excess area is a nullity and for that reference may be made to the judgment in the case of A.V. Papayya Sastry & Others Vs. Government of A.P. & Others 2007 (4) SCC 221.
It is in this highly disputed status of title and its non-existence in favour of the petitioners as on the date of disbursement of the compensation, that is on 11.4.2016, that we clearly find the disbursement to be unlawful, illegal and even malafide which is an outcome of clear manipulation. The Collector was therefore, fully justified in issuing the citation of recovery and the petitioners cannot even claim any partial retention, including the petitioner no. 2 who is a party to this entire transaction of disbursement in the background aforesaid. The petitioners, therefore, are not entitled to retain a single penny of the entire amount so long as they are unable to establish their title over the land in question. The Collector, therefore, is obliged to recover the entire amount as per the citation and this Court in exercise of Article 226 of the Constitution of India cannot invoke the extra-ordinary discretion vested in it at the instance of such persons who are party to a transaction which is absolutely unlawful.
We, therefore, dismiss the writ petition with a direction to the Collector to forthwith recover the entire amount, and in order to ascertain the status and source and in view of the investment allegedly made by the petitioners, he can take aid of the personal affidavits filed by both the petitioners before this Court on 16th August, 2017. The petitioners themselves realising their status have also prayed for time to deposit the amount with justifications for not having done so. We are not impressed by any such justification in view of the findings recorded hereinabove. Additionally, we may put on record that the learned counsel has submitted that the order of recall and cancellation against the petitioners is being contested before the appropriate authorities. We are not to adjudicate upon any such fact inasmuch as, so long as the petitioners are not able to establish their right title and interest atleast on the date of the disbursement of the compensation, they are not entitled to retain any amount received by them. We therefore, without any prejudice to the rights of the petitioners in respect of any future claim dismiss this writ petition with the observations hereinabove.
Before parting with the case we also direct the District Magistrate Kanpur Nagar to hold an enquiry into such transactions including the present one in order to find out the complicity of the officials in the land acquisition office and further to launch a criminal prosecution against all such persons who may be involved in this conspiracy for disbursement of compensation to persons not entitled to receive the same.
Order Date:- 11.09.2017 S.Chaurasia