Allahabad High Court
Jagvir Singh vs The State Of U.P. And Others on 7 July, 2020
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 4.3.2020 Delivered on 7.7.2020 Court No. - 91 Case :- WRIT - C No. - 48767 of 2009 Petitioner :- Jagvir Singh Respondent :- The State Of U.P. And Others Counsel for Petitioner :- Dheeraj Singh Bohra Counsel for Respondent :- C.S.C.,Prashant Kumar Lal,Raghuvansh Chandra,Ram Jee Saxena,S.P. Singh Hon'ble Pankaj Bhatia,J.
Heard Shri Dheeraj Singh Bohra, learned counsel for the petitioner, learned Standing Counsel for the respondent Nos.1 & 2, Shri Ajay Rai, learned counsel for the respondent No.3 and Shri Surendra Pratap Singh, Shri Ram Jee Saxena and Shri Sudhakar Shukla, Advocate holding brief of Shri Prashant Kumar Lal, learned counsel for the respondent No.4.
Present petition has been filed by the petitioner challenging the orders dated 12.11.2003 and 8.7.2009 passed by the respondent Nos.1 & 2 respectively, whereby, the land, which was recorded as public utility land (Rasta) has been allotted to the petitioner and the challenge to the said allotment has resulted into passing of the order dated 12.11.2003 and affirmed by the order dated 8.7.2009.
Learned counsel for the petitioner argues that in the Khatauni and records property No.302 is recorded as a public way and is a public utility land, the record of Khatuani is on record as Annexure No.1 to the petition, which clearly proves that the land bearing Khasra No.302 is recorded as a public way. Learned counsel for the petitioner further argues that the proposal dated 29.10.1998 was moved for allotment of a part of the land bearing Khasra No.302 ad-measuring 0.506 Hectare which is under cultivation of the respondent No.4 and an acceptance was granted for allotting the same in favour of the respondent No.4. On the said proposal dated 29.10.1998 the S.D.M. passed an order on 30.10.1998 holding that as the property bearing No.302 is recorded as Rasta in the land records, as such, same cannot be allotted to any person in public interest and consequently, rejected the proposal dated 24.2.1995 for allotting the same in favour of respondent No.4, said order is on record as Annexure No.3 to the petition. After passing of the said order a letter was written by an M.L.A. in the State of U.P. recommending that the lease be executed in favour of respondent No.4 as the respondent No.4 had contributed in the family planning efforts, the said letter is on record as Annexure No.4 to the petition. Subsequently, vide separate proposal dated 31.12.1998 by the Lekhpal a request was made for changing the land use of the part of the property bearing Khasra No.302 ad-measuring 0.506 hectares, which was to be allotted to the respondent No.4. The said proposal of the Lekhpal dated 31.12.1998 was endorsed and recommended by the Revenue Inspector, whereby it was recommended that land use of a part of the property bearing Khasra No.302 be amended in the revenue records. Based upon the said two recommendations of the Lekhpal and the Revenue Inspector, an order dated 6.1.1999 was passed wherein it was recorded that in terms of the proposal dated 24.2.1995 allotment was accepted in favour of the respondent No.4 and the initial exparte order dated 30.10.1998 was recalled and after reviewing the same the allotment made in favour of respondent No.4 was accepted. There is nothing on record to demonstrate as to whether the land use was changed in the record or not, the order dated 6.1.1999 only accepted the proposal of allotment in favour of respondent No.4 made on 24.2.1995.
The petitioner herein preferred an application under Section 198(4) of the U.P.Z.A. & L.R. Act seeking cancellation of the allotment proposed in favour of respondent No.4 on 24.2.1995 and recommended on 6.1.1999 mainly on three main grounds, firstly, that the land in question allotted to the respondent No.4 is a public utility land and cannot be allotted, secondly, the process of allotment, which is prescribed, has not been followed and thirdly that the respondent No.4 was not entitled to allotment in view of the fact that her husband owned the land in excess of 12 bigha and thus, she was not eligible.
On the said application of the petitioner an order dated 7.7.2000 was passed by the Collector holding that the land in question was a public utility land recorded in the revenue records as Rasta, he further held that the said land cannot be allotted in public interest. He further recorded that the S.D.M. did not have the power to review the earlier order passed rejecting the proposal by his subsequent order dated 6.1.1999 as no power of review vests in him. He further held that the allotment was in violation of the Rule 173 to 178 and the Form 57 and 58 did not bear the signature of the Viparna Adhikari and thus, he allowed the implication and quashed the order dated 6.1.1999, whereby acceptance was granted to the proposal dated 24.2.1995 allotting the land in question to the respondent No.4.
The order dated 7.7.2000 was challenged by the respondent No.4 by filing a revision No.39/99-2000, which was allowed vide order dated 30.12.2000 and the matter was remanded for deciding afresh.
On remand the matter was heard once again and a fresh order dated 12.11.2003 was passed rejecting the application filed by the petitioner under Section 198(4) of the U.P.Z.A. & L.R. Act placing reliance on the Government Order dated 4.4.1993 and recording that the said Government Order permitted the allotment of the lands belonging to the public utility for furtherance of environmental protection and thus, on that ground the allotment as made on 24.2.1995 and as approved on 6.1.1999 was held to be in accordance with law requiring no interference. The said order dated 12.11.2003 was challenged by the petitioner by filing a revision wherein the petitioner reiterated his submission that was made earlier, however the revision came to be dismissed vide order dated 8.7.2009 on the same ground as taken by the Collector and based upon the Government Order dated 4.4.1993.
The present petition has been filed challenging the order dated 8.7.2009 as well as the order dated 12.11.2003.
Learned counsel for the petitioner has extensively argued that there is no provision under the U.P.Z.A. & L.R. Act empowering any authority to allot the land earmarked as a public utility land in favour of anyone and thus, the orders impugned are liable to be set aside on that ground. He further argues that at the first instances the authorities had rightly recorded that the public utility land cannot be allotted and had refused the confirmation, however under political pressure subsequent orders were passed based upon the Government Order. He further argues that even in terms of the Government Order there is no provision for allotting the public utility land and the authorities have erred in placing reliance on the Government Order. He further argues that statutory enactment once made is to govern the allotments and the executive instructions in the form of Government Orders cannot override statutory enactment and that too contrary to the statutory scheme.
Learned counsel for the respondents on the other hand have extensively argued that the power to change the nature of the land is provided under Section 155A of the U.P. Land Records Manual and in terms of the said powers, there is nothing wrong in changing the nature of the land, they further argued that there is no error in the allotment in favour of respondent No.4 as the same was duly approved and the respondent No.4, who had undergone family planning operation, was entitled to the said allotment. They further argue that in fact the petitioner before this Court has also encroached the part of property bearing Khasra No.302.
In view of these submissions advanced at the Bar, the first point to be considered is whether the land earmarked for public utility land can be allotted to any person. Second question to be considered is whether the S.D.M. has power of review vested in him and the third question to be considered by this Court is whether the Government Order dated 4.4.1993 will prevail over the statutory provisions.
The first and the third point of determination are being decided simultaneously.
The scheme of the Act in totality shows that the Act was enacted to provide for abolition of Zamindari system and for determination of the right, title and interest in the land tenures. Chapter-VII of the said Act provides for creation of Gaon Sabha and the Land Management Committee. Section 117 of the Act specifically provides for vesting of certain lands in the Gaon Sabha and other local authorities and Section 117(i)(vi) provides for lands, which are earmarked for pathways shall vest with the Gaon Sabha or any local authority established for the whole or part of the Village.
Section 122-A of the said Act specifically confers the power of superintendence, management and control of the lands vested in the Gaon Sabha with the Land Management Committee and includes pathways also.
Section 122-B in fact confers the powers on the Gaon Sabha to take action in the case of misappropriation of Gaon Sabha land by approaching the Assistant Collector for orders in that respect.
Section 131-A provides that every person in cultivatory possession of the land vested in the Gaon Sabha before 30th Day of June, 1978 shall be deemed to be a Bhumidhar with non-transferable rights, however, it specifically excludes the lands mentioned in Section 132.
Section 132, which is quoted hereinbelow, specifically provides that Bhumidhari rights shall not be created in the land mentioned in the said Sections and a perusal of Clause-C whereof makes it clear that no Bhumidhari rights accrue in the lands, which are held for a public purposes:-
"132. Land in which [bhumidhari] rights shall not accrue.- Notwithstand-ing anything contained in Section 131, but without prejudice to the provisions of Section 19, [bhumidhari] rights shall not accrue in-
(a) pasture lands or lands covered by water and used for the purpose of growing singhara or other produce or land in the bed of a river and used for casual or occasional cultivation;
(b) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the Gazette; and [(c) lands declared by the State Government by notification in the Official Gazette, to be intended or set apart for taungya plantation or grove lands of a [Gaon Sabha] or a Local Authority or land acquired or held for a public purpose and in particular and without prejudice to the generality of this clause-
(i) lands set apart for military encamping grounds;
(ii) lands included within railway or canal boundaries;
(iii) lands situate within the limits of any cantonment;
(iv) lands included in sullage farms or trenching grounds belonging as such to a local authority;
(v) lands acquired by a town improvement trust in accordance with a scheme sanctioned under Section 42 of the U.P. Town Improvement Act, 1919 (U.P. Act VII of 1919) or by a municipality for a purpose mentioned in Clause (a) or clause (c) of Section 8 of the U.P. Municipalities Act, 1916 (U.P. Act VII of 1916); and
(vi) lands set apart for public purposes under the U.P. Consolidation of Holdings Act, 1953 (U.P. Act V of 1954).]"
In the overall scheme of the Act, it is clear that the legislature intended to excluded the public lands and the lands which are for the common benefit of the public to be excluded for creation of any personal rights. The said Act being an Act of socio beneficial intent has to be interpreted on its plain language and there being a specific provisions, as quoted above, in respect of the public utility land including pathways, the only interpretation possible is that no private rights can be created over the lands, which are public utility lands. Thus, I have no hesitation in holding that the land in question, allotted to the respondent no. 4, being a public utility land (pathway) could not have been allotted in favour of the respondent no. 4, as has been done in the present proceedings.
The question whether a Government Order can deviate from the mandate of the Act leads to the question as to whether the mandate of the Act permits the deviation from the specific provisions of the Act? The answer is clear as there is no provision in the Act which provides for intervention of the executive by a Government Order amending the mandatory provisions of the Act and thus even if the interpretation as sought to be advanced by the respondent no. 4 in terms of the Government Order dated 4.4.1993 is accepted, it is clear that the public utility land cannot be altered or modified or allotted to any one.
Now coming to the second question whether S.D.M. has any power of review, it is well settled that power of substantive review is not inherent and has to be conferred by a statute. In the present statue or the rules framed thereunder, there is no provision conferring the power of review on the S.D.M. and thus once the S.D.M. had rejected the proposal of allotment in favour of the respondent no. 4 vide order dated 30.10.1998, the same could not have been recalled invoking the power of review, as was done by the S.D.M. while passing the order dated 6.1.1999. Thus, I have no hesitation in holding that without there being any substantive power of review conferred upon the S.D.M., the exercise of power of review by the S.D.M. was wholly without jurisdiction.
Thus, on the question as answered above, I have no hesitation in holding that the allotment made in favour of the respondent no. 4 on 24.2.1995 and as accepted by the S.D.M. vide his order dated 6.1.1999 are bad in law and the allotment is liable to be quashed and is accordingly quashed. The order dated 12.11.2003 as well as the order dated 8.7.2009, dismissing the application under Section 198(4) of the Act filed by the petitioner and dismissing the revision filed by the petitioner, respectively are set aside with further directions to the respondent authorities to ensure that the public utility land i.e. the public pathway over Khasra No. 302 is restored to its original shape and forum by taking appropriate proceedings. In case, there is any other encroachment/allotments over the public way/Rasta on property bearing Khasra No. 302, the same shall also be removed and the public way shall be restored.
The writ petition is allowed in terms of the said order.
Order Date :- 7.7.2020 SR