Surendra Kumar vs State Of U.P. Thru Collector, ...
2012 Latest Caselaw 6007 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- MISC. SINGLE No. - 6998 of 2012
 

 
Petitioner :- Surendra Kumar
 
Respondent :- State Of U.P. Thru Collector, Sitapur & Others
 
Petitioner Counsel :- S.M. Waseem
 
Respondent Counsel :- C.S.C.,R.N. Gupta
 

 
Hon'ble Anil Kumar,J.

Heard Sri S.M. Waseem , learned counsel for the petitioner, learned State Counsel as well as Sri R.N.Gupta, learned counsel appearing on behalf of Gaon Sabha.

Facts, in brief , of the present case are that the land recorded in Gata No. 511-0.101 and 571-0.229 as per version of the petitioner was allotted to him on 11.8.2004 by the Land Management Committee of the village Panchayat under Section 198(1) (c ) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 ( hereinafter referred to as 'Act') as he is a landless labourer, belonging to backward class living below the poverty line.

However, the same was cancelled on the basis of Lekhpal report dated 19.3.2008 ( Annexure no.3) by opposite party no.3/Additional Collector, Sitapur on 29.6.2011.

Aggrieved by the said fact, petitioner for redressal of his grievance , filed a revision ( Revision No. 3 of 2010-11, Surendra Kumar Vs. State of U.P. and others) under Section 333 of the Act, dismissed by opposite party no.2/ Additional Commissioner( Judicial) Lucknow Division, Lucknow vide order dated 7.9.2012 ( Annexure no.4).

Learned counsel for the petitioner has challenged the impugned orders on the ground that the same are illegal arbitrary in nature as well as the in contravention of the facts and circumstances of the case because there is no irregularities or infirmity in allotting the land to him by way of patta/ lease as he falls under the backward category as per the provisions provided under Section 198 of the Act.

He further submits that the action on the part of the opposite party no.3 to cancel the same in view of the provisions as provided under Section 28 (C ) of the U.P. Panchyat Raj Act is an illegal exercise and contrary to law as the same cannot be cancelled in view of the said provisions as per the facts and circumstances of the case. In support of his arguments , he has placed reliance on the judgment of this Court in the case of Govind and others Vs. Sub- Divisional Officer , Machlishahar , District Jaunpur and others, 1986 All.C.J. 479, and Jiya Ram and others Vs. State of U.P. and others 2012 (2) ADJ 683 Accordingly, it is submitted by learned counsel for the petitioner that the impugned orders are illegal , arbitrary in nature, liable to be set aside.

Learned State Counsel as well as Sri R.N.Gupta, learned counsel appearing for Gaon Sabha submits that as the petitioner was the member of Land Management Committee at the time of allotment of land by way of patta/ lease hence the same cannot be granted to him in view of the provisions as provided under Section 28-C of the U.P. Panchyat Raj Act, 1947 hence there is neither any illegality or infirmity in the impugned orders under challenge in the present writ petition.

I have heard the learned counsel for the parties and perused the record.

From the perusal of the pleadings, as made by the petitioner in the present writ petition ( specially in para-8) undisputed facts are that the petitioner was a member of Land Management Committee at the time of allotment of land by way of patta/ lease, so in view of the said fact and as per the provisions of Section 28-C of U.P. Panchayat Raj Act, he could not have been alloted the land in question without permission in writing of the Collector as the said section provides as under:-

"28-C. Members and officers not the acquire interest in contracts etc. with Bhumi Prabandhak Samiti,-- (1) No member or office bearer of Gaon Panchayat or Bhumi Prabandhak Samiti shall , otherwise than with the permission in writing of the Collector, Knowingly acquire or attempt to acquire or stipulate for or agree to receive or continue to have himself or through a partner or otherwise any share or interest in any licence, lease, exchange, contract or employment with , by , or on behalf of the Samiti concerned."

This Court in the case of Ram Pal Singh and others Vs. The Board of Revenue, U.P. Allahabad and others, 1981 RD 333 after taking into consideration the provisions as provided for allotment of land by way of patta/ lease under Section 195, 197 read with Section 198 of the Act and Section 28-C of the U.P. Panchyat Raj Act held that the land cannot be allotted by way of patta/ lease to the member or office bearer of Gaon Panchayat or Bhumi Prabandhak Samiti, otherwise than with the permission in writing of the Collector .

Further in the case of Govind (Supra) this Court has held as under:-

"From the aforesaid statutory provision , it is evident that no member or office bearer of the Goan Panchyat or the Bhumi Prabandhak Samiti can acquire or deemed to acquire any interest in the licence or lease except with the permission in writing of the Collector. It is , thus clear that there must be a finding that the petitioner has acquired any interest in the lease. Simply , because some of the family members of the Pradhan have obtained the lease, it would not lead the inference that the Pradhan has received some interest. In other words the Sub-Divisional Officer must record a finding as to whether the petitioner has received any interest in the lease even though it might have been obtained in the name of some of the relations or family members of the Pradahan or office bearers of the Gaon Panchayat or Bhumi Prabandhak Samiti.

Thus, it is clear that land by way of patta/ lease cannot be granted to any members of the office bearers of Gaon Panchyat or Bhubhi Prabandhak Samiti without taking permission in writing of the Collector, so there is no illegality or infirmity in the impugned orders passed in the present case

In the case of Jiya Ram and others (Supra) this Court in para -17 has held as under:-

"Moreover, allowing the collector to initiate suo motu proceedings for cancellation of allotment/lease at any time would mean that the allotment would never be final and there would always be danger of its cancellation. This perhaps could never be the intention of the legislator. The limitation of three years as contained in Appendix III of the Rules and five years provided under Section 198(6) of the Act is a well thought of as the aforesaid period of time is sufficient enough either for the person aggrieved to make a complaint against the irregular allotment or for the authorities to examine and verify the record and to take action for cancellation suo motu , if necessary."

As stated herein above, once it is admitted by the petitioner himself that he is a member of Gaon Sabha when the land was allotted to him on patta/lease which cannot be done in view of the provisions as provided under Section 28-C of the U.P. Panchayat Raj Act then in that circumstances once initial grant of patta in his favour is without jurisdiction/ void ab initio as he is not eligible for the same as per the procedure as provided for grant of patta rather the said act is nothing but amounts to be outcome of fraud played on behalf of the petitioner with oblique motive and purpose only to get the land in question by way of patta hence he cannot derive any benefit from the law as laid down in the case of Jiya Ram (Supra) as it is settled proposition of law that if the court is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim because fraud and justice never dwell together. ( Frans at Jus Nunquam Cohabitant) is a pristine maxim which has never lost its temper over all these centuries.

In Smith V. East Elloe, Rural Distt. Council (1956) L All ER 855 the House of Lord held that the effect of fraud would normally be to vitiate any act or order.

In another case , Lazarus Estates Ltd. V. Beasley,(1956) I ALL ER 341 Denning L.J. Said:

" No judgment of a court , no order of a Minister, cant be allowed to stand if it has been obtained by fraud . Fraud unravels everything."

In the case of Indian Bank Vs. Satyam Fibres (INDIA) Private Limited, (1996) 5 Supreme Court Cases,550 Hon'ble Supreme Court after taking into consideration above two judicial pronouncement had held as under:-

" The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the court's business.

Since fraud affects the solemnity, regularity and orderliness of the proceeding of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court.

In the case of S.P. Chengalvaraya Naidu(dead) by LRs. V. Jagannath (dead) by LRs. and others , 1994 (1) SCC 1 Hon'ble Supreme Court has held :-

" Fraud avoids all judicial acts, ecclesiastical or temporal- observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non exit in the eyes of law . Such a judgment decree- by the first court or by the highest court- has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings".

For the foregoing reasons, I do no find any illegality or infirmity in the impugned orders under challenge in the present writ petition thus lacks merits and is dismissed.

Order Date :- 12.12.2012

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