Allahabad High Court
Smt.Raj Kali And Others vs State Of U.P. And Others on 7 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 14.12.2022 Delivered on 07.02.2023 Court No. - 7 Case :- WRIT - B No. - 39722 of 1994 Petitioner :- Smt.Raj Kali And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- A.A.Ansari,Ambuj Srivastava,Pankaj Kumar Srivastava Counsel for Respondent :- SC,Ajit Kumar Srivastava,Anuj Kumar,Ayank Mishra,Vijay Kumar Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Ambuj Srivastava, Counsel for the petitioners, Mr. Ayank Mishra, Counsel for respondent Nos.6 to 8, learned Standing Counsel for respondent Nos.1 to 4 and Mr. K.K. Mani Counsel for respondent No.5.
2. The brief facts of the case are that petitioners along with 38 others were granted patta in the year 1987 by the Gram Sabha, which was duly approved by the competent authority in the year 1987. On the basis of patta granted to the petitioners, the name of the petitioners as well as 38 others patta holders were recorded in the revenue record and all the patta holders including petitioners came in possession over the allotted land since 1987. One Private complaint has been filed by respondent Nos.5, 6 and 7 which was registered as case No.198 (4) of the U.P.Z.A.& L.R. Act against the petitioners and 38 others patta holders. A report was called for from Naib Tehsildar Gangoh, District-Saharanpur, who submitted his report dated 12th July, 1988, in which it is mentioned that petitioners were granted patta on the ground of the vasectomy operation. It is also mentioned in the report that complaint filed by respondent Nos.5, 6 and 7 is baseless and liable to be dismissed. Additional Collector Saharanpur (respondent No.4) heard the case under Section 198 (4) of U.P.Z.A& L.R. Act and vide order dated 31.05.1993 allowed the patta cancellation application filed by private respondent Nos.5, 6 and 7 in respect of petitioners only while in respect to other 38 patta holders the patta cancellation application was rejected. Against the order dated 31.05.1993 petitioners filed a revision before Commissioner which was registered as Revision No.124 of 1992-93 and was heard by Additional was Commissioner Meerut Division, Meerut. Additional Commissioner Meerut Division, Meerut (respondent No.3) dismissed the petitioner's revision vide order dated 30th April, 1994. Against the order dated 30th April, 1994, petitioners filed a revision before the Board of Revenue, which was registered as Revision No.210 of 1993-94 and Board of Revenue vide order dated 26.10.1994 dismissed the petitioner's revision. Hence this writ petition.
3. This Court while entertaining the writ petition has granted the interim order on 02.10.1995, which runs as follows:
"Issue notice.
Until further orders of this Court, petitioners shall not be dispossessed from the land in dispute."
4. In pursuance of the order dated 02.10.1995, private respondents as well as Gaon Sabha have filed their counter affidavit.
5. In reply, petitioners have also filed their rejoinder affidavit.
6. Counsel for the petitioners submitted that petitioners were granted patta on the basis of the Scheme of the Government as such the same cannot be cancelled on the private complaint on the ground that petitioners are not fulfilling the conditions mentioned in Section 195 of the U.P.Z.A.&.L.R. Act. He further submitted that even report submitted by the authority in the cancellation proceeding, in which it has mentioned that petitioners were granted patta under the Government scheme for vasectomy operation, as such unless it is proved that petitioners were not undergone for vasectomy operation, the patta cannot be cancelled at all. He further submitted that even case set up by the private respondents that petitioners are having more 3.125 acres of land is wrong and baseless. He further submitted that patta was granted to 41 Persons but the patta of the petitioners who are three in number have been cancelled without considering the report of the authority. He further submitted that State or Gaon Sabha has not initiated any proceeding for cancellation, as such the initiation of cancellation of proceeding at the instance of the private complainant is abuse of process of law. Counsel for the petitioners placed reliance upon paragraph Nos. 5 and 11 of the rejoinder affidavit dated 11.03.2018 which is as follows:
"5. That the contents of the Para no. 3 of the counter affidavit as stated are not correct hence denied. In reply thereto, the assertion made in Para no. 1and 2 of the writ petition are reiterated as reaffirmed as correct. The respondents no. 5, 6 and 7 filed a complaint under section 198(4) of the U.P.Z.A. and L.R. Act against the petitioners and 58 other persons seeking the cancellation of the Patta duly executed after passing a resolution to the effect that the persons who has been sterilized vasectomy operation under the Government Scheme of Family Planning, they will be allotted Land through Patta. he cancellation of the aforesaid Patta were sought by the respondent nos. 5, 6 and 7 on the ground that the Patta were executed in complete violation of the provision of U.P.Z.A. and L.R. Act. It is further alleged that all the persons are not illegible because they are landless agricultures and it is further alleged that the said Patta has not been duly approved by the Competent Authority and the allotment of the said Patta have not been done in accordance with the Acts and Rules. Section 126 of the U.P.Z.A. and L.R. Act which is germane to the controversy is being reproduced below:-
Gaon Panchayat or the Committee to carry on order and directions of the State Government.-(1) [*]. The State Government may issue such orders and directions to the [Land Management Committee] as may appear to be necessary for purposes of this Act.
It shall be the duty of the [Land Management Committee] and [its] office-bearers to forthwith carry out such orders and comply with such directions.
In exercise of such power the State Govt. had issued Govt. order providing therein that person going under tubectomy/ vasectomy operation will be entitled to take a lease from Gaon Sahba. The petitioners had under gone sterilization and benefit of the aforesaid Government Order was extended to them whereunder land in dispute was allotted to the petitioners and 38 other persons.
11. That the contents of the para no. 10, 11, 12 and 13 of the counter affidavit as stated are not correct hence denied. In reply thereto, the assertion made in para no. 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the writ petition is reiterated as reaffirmed as correct. It is admitted case that the petitioners have got sterilized (vasectomy operation) herself and on the basis of their sterilization they have been allotted the said land through resolution passed by the Goan Sabha which was duly approved by the Gaon Sabah which was duly approved by the competent authority, but the respondents nos. 2, 3 and 4 have committed manifest error of law in not recording a finding that the petitioners do not come within the category of sterilization (i.e.vasectomy operation) ,neither they have discarded the statement of fact that the petitioners were granted Patttas on the basis of sterilization (vasectomy operation) as such in the absence of such a finding the entire proceedings is vitiated and are liable to be set-aside by this Hon'ble High Court. It is also relevant to mention here that Smt. Roshan, Smt. Santosh, Vijai Pal, Narain and Vinod were allowed a Patta only on the ground of sterilization. It is further submitted that Vijai Pal, Karan and Vinod who had more than 100 Bighas agricultural land. The learned courts below have not considered this aspect of the matter whereas the petitioner's case is at par and as such the impugned orders passed by respondents no. 2,3 and 4 are liable to be quashed by this Hon' ble High Court. The respondents have cancellled the Pattas only on the ground that the petitioners are not landless persons. It is further submitted that it is admitted to the respondents that Smt. Roshan, Sirmati Santosh and they do not come in the ambit of provisions of section 198 U.P.Z.A. and L.R. Act and it is further held that the husband of the petitioners no. 1 and 2 being the number of the Gaon Sabha, the allotment be legally be permitted to take different view otherwise it would be infringement of fundamental rights-article 19 and 31 of the Constitution of India and also are in complete violation of Article 14 and 15 of the Constitution of India and against the principles of Natural Justice. It is further submitted that Smt. Nagini wife of Kali Ram having more than 100 bigha agricultural lands, but a Patta has been executed in her favour only on the ground of Nas-bandi (tubectomy/vasectomy operation) and as such the respondents have treated discriminatory and step motherly treatment meted out, which is un-constitutional and against the settled law of principles of natural justice. It is further submitted that all the 38 persons who had more than 25 bigha lands each. It is also relevant to mention here that the petitioners have specifically argued before the courts below that the petitioner no. 1 Smt. Raj Kali had no land and nor husband had any land at the time of allotment of Patta. It is further submitted that here father in law late Sri Kundan was died in the year 1991 and after his death the property was inherited by her husband on account of inheritance by her husband on account of inheritance and as such the findings given by the courts below is based on no evidence and the respondents have not produced any evidence that the husband of petitioner no. 1 had any agricultural land at the time of allotment of the said Pattas. It is further submitted that the husband of petitioner no. 2 had only 1/3 acre and according to the provisions of section 198(3) (i) of the U.P.Z.A. and L.R. Act that a person who belong to schedule caste may held the land, would aggregate up to 3.125 acres. In the instant case, the petitioner no. 2 had less than 3.125 acres aggregate and as such the impugned order passed by the respondents no. 2, 3 and 4 without giving any finding is otherwise, illegal band in law and erroneous. The courts below have not given any finding with regard to the sterilization (vasectomy operation) that on the basis of sterilization any person cannot be allotted a land which clearly indicates and presumed that the respondents nos. 2, 3 and 4 have admitted that in case of sterilization (tubectomy/vasectomy operation) in face of family planning scheme, as promulgated by the State of U.P. a Patta can be allowed to the person who had got sterilized under family planning schemes as sponsored and orders passed by the State of U.P. and as such the whole proceedings initiated against the petitioners by the respondents are vitiated and as such the impugned orders dated 26.10.94, 30.04.94 and 31.5.95 are liable to be quashed by this Hon'ble Court."
On the basis of averment made in paragraph Nos. 5 and 11 of rejoinder affidavit counsel for the petitioners submitted that impugned order cannot be maintained and are liable to be set aside.
7. On the other hand, Mr.Ayank Mishra, Counsel for respondent No. 6, 7 and 8 submitted that private complaint dated 28.04.1998 was rightly filed for cancellation of patta granted to the petitioners as provisions of the Government order/ scheme for grant of patta in lieu of the vasectomy operation was not complied with, as such the patta was rightly cancelled. He further submitted that petitioners are not land less agricultural labourers, as such they are not entitled to the patta. He further submitted that petitioner No.1 at the time of allotment was not competent as her husband was member in Land Management Committee, petitioner No.2 was not competent as her husband was member of gram panchayat and petitioner No.3 was not competent as her husband was Pradhan. He further submitted that order for cancellation passed by trial court was rightly maintained in revision. He further submitted that no interference is required in the matter and the writ petition is liable to be dismissed.
8. Counsel for the Gaon Sabha submitted that petitioners have not filed the copy of the Government Order / Scheme by which the patta was granted to them for vasectomy operation, as such petitioners are not entitled to any relied in the matter. He further submitted that husband of the petitioners were members in the office bearers of the Gram Sabha/ Gram Panchayat, his allotment to the petitioners is forbidden. He further submitted that writ petition is liable to be dismissed.
9. I have considered the arguments advanced by the Counsel for the parties and perused the record.
10 There is no dispute about the fact that petitioners along with 38 others were granted patta under the Government Order / Scheme of vasectomy operation in the year 1987. There is also no dispute about the fact that State or Gaon Sabha have not initiated any proceeding against the petitioners along with other patta holders rather the private complaint has been filed and out of 41 patta holders, the patta of the petitioners who are three in number have been cancelled and the revision filed by the petitioners has also been dismissed.
11. Since the petitioners along with 38 patta holders were granted patta under the Government Scheme that they will be allotted land through patta in lieu of vasectomy operation, as such there can be no cancellation on the ground of irrelevant consideration on the private complaint coupled with the fact that report dated 12.07.1988 submitted by Tehsildar demonstrate that patta was executed following due procedure. The report dated 12.07.1988 submitted by Naib Tehsildar in the cancellation proceeding will be relevant which is as Follows:
"प्रस्तरवार आख्या श्रीमान् जी, आपके आदेश के अनुपालन में उपरोक्त वाद में प्रस्तरवार आख्या निम्नवत हैः-
1:- यह कि वादीगण में से अजब सिंह के पिता मंगलू के नाम काश्त की भूमि जनेश्वर के पिता हरि सिंह के पास 40 बीघा खाम भूमि है ज्ञान सिंह के पिता मंगलू के पास 30 बीघा खाम भूमि है।
2:- यह कि प्रस्तरवार नम्बर अस्वीकार 9.11.87 का प्रस्ताव विधि अनुपारित किया गया है।
3:- यह कि अलाटमेन्ट करने से पूर्व विधि में प्रदत्त प्राविधानों के अनुरूप पात्र व्यक्तियों की सूची बनायी गयी थी जिसकी नकल आवंटन पत्रावली में सन्निहित है।
4:- यह कि वाद पत्र का प्रस्तर नं०4 गलत है।
5:- यह कि प्रतिवादी नं०3 राजकली व प्रतिवादिनी नं०17 श्रीमती कली प्रतिवादिनी नं० 29 श्रीमती कमलेश ने नसबन्दी करायी थी इसलिये उनको आवंटन किया गया था।
6:- यह कि प्रतिवादिनी नं०34 श्रीमती सन्तोष ग्राम ठोला फतेहपुर में रहती है इसके पति का कोई मकान कस्बा गंगोह में नहीं है श्रीमती सन्तोष अरसा 6 वर्ष से इसी गांव में रह रही है और अपने पति से अलग रह रही है इसका पति इसका भरण पोषण नहीं करता है। प्रतिवादिनी नं० 35 श्रीमती रोशन का पति इस गांव का मूल निवासी है। नसबन्दी कराने के एवज में श्रीमती रोशन को आवंटन किया गया था यह दोनो प्रतिवादिनी नं०34 व 35 पात्रता सूची में थी।
7:- यह कि प्रतिवादी नं० 36, 37 व 39 भूमिहीन खेतीहर मजदूर की परिभाषा में आती है इनके नाम कोई भूमि नहीं है न ही इनके बाप के नाम काश्त की कोई भूमि है।
78:- यह कि प्रतिवादी विजेन्द्र के नाम कोई भूमि अलाटशुदा भूमि के अलावा नहीं है।
9:- यह कि प्रतिवादी नं० 40 इसी ग्राम का निवासी है पात्र व्यक्ति है।
10:- यह कि प्रतिवादी नं०41 अशोक कुमार बालिग है किसी स्कूल में अध्ययनरत नहीं है।
11:- यह कि प्रस्ताव पारित करने से पूर्व विधिवत एजेण्डा व मुनादी की कार्यवाही की गयी थी जिसकी सभी ग्रामवासियों को जानकारी थी।
12:- यह कि भूमि प्रबन्ध समिति ठोला फतेहपुर व बहलोलपुर की एक ही है मौजा बहलोलपुर की भूमि का आवंटन किया गया था बहलोलपुर का लेखपाल उपस्थित था समस्त कार्यवाही उसके द्वारा लिपिबद्ध की गयी थी।
13:- यह की प्रस्तर नं०13 अस्वीकार है भू०प्र०सं० ही आवंटन करती है तहसील कर्मचारियों का कोई अधिकार नहीं है।
14:- यह कि आवंटित की गयी भूमि पहले खाली थी अलाटीज के कब्जे काश्त में है।
15:- यह कि वाद सत्र का प्रस्तर नं० 15 अस्वीकार है अलाटीज भूमिहीन खेतीहर मजदूर के पात्र व्यक्ति है।
16:- यह कि वादीगण पात्र व्यक्ति नहीं है।
17:- यह कि वादी अतर सिंह का कोई कब्जा खसरा नम्बर 43 मौजा बहलोलपुर पर राजस्व अभिलेखों में दर्ज नहीं है और न ही मौके पर काबिज है।
18:- यह कि अलाटमेन्ट की कार्यवाही विधि अनुरूप है वर्तमान वाद गांव की पार्टीबाजी व वैमनस्य के कारण किया गया प्रतीत होता है नसबन्दी में सहयोग देने वाली महिलाओं को आवंटन किया गया है कुछ दूसरे पात्र व्यक्तियों को आवंटन किया गया है।
ह० अपठनीय,
प्रेषित 12-7-88
ह० अपठनीय नायब तहसीलदार
17-7-88 गंगोह ।
तहसीलदार
नकुड़।
12. A perusal of the report submitted by the Naib Tehsildar fully demonstrate that petitioners were granted patta under the Government order/ Scheme for vasectomy operation as well as it has also came in the report that allotment has been done in accordance with law and the private complaint which has been filed for cancellation of the petitioners' patta due to village enmity of the parties.
13. The perusal of the report demonstrate that allotment was made according to the Government Scheme as such there can be no cancellation on the irrelevant consideration. The perusal of the impugned order also reveals that impugned order has been passed without considering the report of the Naib Tehsildar and out of 41 patta holders the patta of the petitioners who are three in numbers has been cancelled on the irrelevant consideration.
14. It is relevant that State/ Gaon Sabha has not initiated any proceeding for cancellation of petitioner's patta rather report dated 12.07.1988 submitted by Tehsildar supported the petitioner's right on the basis of patta executed in the year 1987.
15. Considering the entire facts and circumstances of the case the impugned orders dated 26.10.1994, 30.04.1994 and 31.05.1993 passed by respondent Nos.2, 3 and 4 are liable to be set aside and are hereby set aside. The writ petition stands allowed and patta granted in favour of the petitioners in the year 1987 is hereby affirmed.
16. No order as to costs.
Order Date :- 7.2.2023 PS*