Umesh & 2 Others vs State Of U.P. & 33 Others
2017 Latest Caselaw 3895 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 7
 

 
Case :- WRIT - B No. - 40184 of 2017
 

 
Petitioner :- Umesh & 2 Others
 
Respondent :- State Of U.P. & 33 Others
 
Counsel for Petitioner :- P.C. Mishra
 
Counsel for Respondent :- C.S.C.,Bachcha Lal Yadav,Manoj Kumar Yadav
 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard learned counsel for the petitioners, learned Standing Counsel appearing for the respondent nos. 1 to 5, Sri Manoj Kumar Yadav, learned counsel appearing for the respondent no. 6-Gaon Sabha and Sri B.L. Yadav, learned counsel appearing for the caveator.

2. Present petition has been filed for quashing the orders dated 31.1.2017 and 1.6.2017 passed by the Board of Revenue.

3. By the impugned order dated 31.1.2017 revision filed by the contesting respondent-Rama Yadav was allowed by the Board of Revenue upholding the order of the trial court dated 29.9.2013 by setting aside the order of the Additional Commissioner (Administration), Varanasi dated 15.12.2013 on the ground that the land is recorded as 'pond' and is covered under Section 132 of the U.P. Z.A. & L.R. Act, 1950 (hereinafter referred to as the Act), therefore, the suit under Section 176 of the Act being Suit No. 145 of 1964 was not maintainable and hence, the order dated 24.3.1964, which was passed on the basis of an agreement between the parties dated 24.3.1964 without issuing notice to the Gaon Sabha, was illegal and therefore, the order of remand, in view of the original record that have been perused by the Board of Revenue, was not correct.

4. Submission of learned counsel for the petitioner is that the petitioners are bonafide purchaser of total 1.04 acre of Plot No. 126 situate at Mauja Basantpur, Taluka Arangi, District Chandauli and are therefore, entitled for opportunity of hearing before any adverse order is passed against them. It is next submitted that the appeal for recall of the order dated 24.3.1964 passed under Section 176 of the Act was filed after a gap of 46 years on 15.10.2010, which was allowed by the trial court on 23.9.2013, however, the case was also decided on merits on the same date without affording any opportunity of hearing to the petitioner. Submission is that the trial court was bound to fix a date to provide opportunity of hearing to the petitioners to pass order on merits. It is next submitted that in such view of the matter the order dated 23.9.2013 was rightly set aside by the Additional Commissioner (Administration), Varanasi vide order dated 15.12.2013 and was rightly remanded to the trial court for decision on merits. It is further submitted that in this case private persons are pursuing the case, which is not permissible unless resolution is passed by the Gaon Sabha. Therefore, submission is that the impugned order dated 31.1.2017 passed by the Board of Revenue is liable to be set aside and that for this reason the review application was wrongly rejected vide order dated 1.6.2017 and thus, both the orders are liable to be set aside and the matter has to be remanded back to the trial court for affording opportunity of hearing to the petitioners. In support of his argument learned counsel for the petitioner has placed reliance on a judgment of Hon'ble Single Judge in the case of Jagdish Pandey Vs. Additional Collector (City) 2011 (7) ADJ 891.

5. Per contra, learned counsel appearing for the respondents have supported the orders.

6. Sri Yadav, learned counsel appearing for the caveator has produced a certified copy of the order dated 29.1.2014, whereby the District Magistrate has granted permission to pursue the cause of the Gaon Sabha, the same is taken on record.

7. Sri Yadav has placed reliance on a judgment of Hon'ble Division Bench of this Court rendered in the case of Om Prakash Verma Vs. State of U.P. 2014 (5) ADJ 427 to contend that the Hon'ble Division Bench has clearly held that in case the Land Management Committee or local authority is not coming forward, an application moved otherwise i.e. by any other person i.e. a third person alleging therein illegal occupation on and damage caused to the Gaon Sabha land, will be maintainable. While considering Section 122-B of the Act and Rule 115-C and Rule 115-D of the U.P. Z.A. and L.R. Rules held that a third person may move application for removal of unauthorized occupation from the Gaon Sabha land. In the aforesaid judgment Hon'ble Division Bench has also considered the Government Order dated 23.3.2011 and a letter / order dated 16.1.2009, whereby it has been provided that complaint may also be invited from members of Gaon Sabha. Submission, therefore, is that a private person can pursue the cause of Gaon Sabha land or the State land. He further submitted that even otherwise in the present case, as it is clear that the District Magistrate had already granted such permission therefore, there is no defect in pursuing the matter. He further submitted that the petitioners may be the purchaser of land from the erstwhile owner, however, it would not confer better title to the petitioners in case of illegal occupation of Gaon Sabha land by previous owner. It is next submitted that the petitioners have contested the restoration application on merits. It is next submitted that throughout and even before the Board of Revenue the petitioners sought to contest the restoration only on technical grounds, however, the factual aspect of the matter was never sought to be disputed by the petitioners.

8. I have considered the rival submissions and have perused the record.

9. On the question of locus of the contesting respondent to file recall application, before proceeding further it would be appropriate to quote Sections 117, 132 and 176 of the Act.

"117. Vesting of certain lands, etc., in Gaon Sabhas and other Local Authorities. - (1) At any time after the publication of the notification referred to in Section 4, the State Government may [by general or special order to be published in the manner prescribed], declare that as from a date to be specified in this behalf, all or any of the following things, namely-

(i) lands, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove,

(ii) forests,

(iii) trees, other than trees in a holding or on the boundary of a holding or in a grove or abadi,

(iv) fisheries,

(v) hats, bazars and melas, except hats, bazars and melas held on lands to which the provisions of Clauses (a) to (c) of sub-section (1) of Section 18 apply or on sites and areas referred to in Section 9, and

(vi) tanks, ponds, private ferries, water channels, pathways and abadi sites,

which had vested in the State under this Act, shall vest in a Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate or partly in one such local authority (including a Gaon Sabha) and partly in another:

Provided that it shall be lawful for the State Government to make the declaration aforesaid subject to such exceptions and conditions as may be specified in [such order].

(2) Notwithstanding anything contained in this Act or in any other law for the time being in force, the State Government may, [by general or special order published in the manner prescribed], declare that as from a date to be specified in this behalf, all or any of the things specified in Clauses (i) to (vi) of sub-section (1) which after their vesting in the State under this Act, had been vested in a Gaon Sabha or any other local authority, either under this Act or under Section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, shall vest in any other local authority (including a Gaon Sabha) established for the whole or part of the village in which the said things are situate.

(3) Where any declaration has been made under sub-section (1) or sub-section (2) vesting any of the things specified in Clauses (i) to (vi) of sub-section (1) in any Gaon Sabha and the village or the part of the village in which that thing is situate lies outside the circle of the Gaon Sabha, such Gaon Sabha or its Land Management Committee shall in respect of that thing perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P. Panchayat Raj Act, 1947, on a Gaon Sabha or a Land Management Committee, as the case may be, as if that village or part of village also lay within that circle.

(4) Where a declaration has been made under sub-section (1) or sub-section 2 vesting any of the things specified in Clauses (i) to (vi) of sub-section (1) in a local authority other than a Gaon Sabha and the village or the part of village in which the thing is situate is outside the limits of such local authority or where after any declaration is made under sub-section (1) or sub-section (2), the thing vests or as the case may be, had vested in a Nagar Mahapalika under Section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, such local authority shall in respect of that thing perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P. Panchayat Raj Act, 1947, on a Gaon Sabha or Land Management Committee:

Provided that the local authority shall in the performance, discharge and exercise of its functions, duties and powers under this sub-section follow such procedure as may be prescribed.

(5) Where any of the things specified in Clauses (i) to (vi) of sub-section (1) is vested in a local authority other than a Gaon Sabha the provisions of Sections 126 and 127 shall, subject to such exceptions and modifications, if any, as the State Government may specify in this behalf [by general or special order to be published in the manner prescribed] apply, mutatis mutandis, to such local authority.

(6) The State Government may at any time, [by general or special order to be published in the manner prescribed], amend or cancel any [declaration, notification or order] made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority and resume such thing and whenever the State Government so resumes any such things, the Gaon Sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that things:

Provided that the State Government may after such resumption make a fresh declaration under sub-section (1) or sub-section (2) vesting the thing resumed in the same or any other local authority (including a Gaon Sabha), and the provisions of sub-sections (3), (4) and (5), as the case may be, shall mutatis mutandis, apply to such declaration.

132. Land in which [bhumidhari] rights shall not accrue. - Notwithstanding 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 or by a municipality for a purpose mentioned in Clause (a) or Clause (c) of Section 8 of the U.P. Municipalities Act, 1916 and

(vi) lands set apart for public purposes under the U.P. Consolidation of Holdings Act, 1953.

176. Holding of a bhumidhar divisible. - (1) A bhumidhar may sue for [division] of his holding.

(2) To every such suit the [Gaon Sabha] concerned shall be made a party."

(emphasis supplied)

10. It is also profitable to take note of certain paragraphs of Om Prakash Vema (supra), which are quoted as under:-

"4. In Writ Petition No. 6472 (MB) of 2012, an order was passed by this Court on 07.08.2012 taking note of the judgments in the cases of Jagpal Singh and others (supra) and Hinch Lal Tiwari and others (supra), directing the Chief Secretary, Government of Uttar Pradesh to constitute a committee consisting of a Senior Bureaucrat, a Senior Police Officer and Legal Remembrancer or his nominee to publicize the letter/order dated 16.01.2009 issued by the Commissioner and Secretary, Board of Revenue to all the District Collectors. This Court by the said order further directed that the letter/order dated 16.01.2009 shall be publicized by all means on regular basis for two months in order to invite complaints from the members of all Gaon Sabhas throughout State of Uttar Pradesh and upon receipt of such complaints, immediate steps shall be taken to get such land freed from encroachment and illegal occupation.

10. We may emphasize that the scheme contained in Section 122-B (1) and (2) not only empowers the Assistant Collector to act upon the information received from the Land Management Committee or from the local authority concerned but it empowers the Assistant Collector to act on the information received otherwise as well. The occurrence of word 'otherwise' in sub-section (2) of Section 122-B widens the source of information on which the Assistant Collector can act and take appropriate proceedings for eviction of unauthorized/illegal occupants. The initiation of proceedings by the Assistant Collector is not confined only on the information received from the Land Management committee or local authority concerned but the Assistant Collector can act and initiate proceedings on an information received by him 'otherwise' as well. The word 'otherwise' occurring in sub-section (2) of Section 122-B of the Act entitles even a third person i.e. a person other than the land management committee or a local authority to furnish information about unauthorized occupation of the gaon sabha land to the Assistant Collector, who on being satisfied that property has been damaged/misappropriated or is being illegally occupied, is duty bound to issue notice to such person.

It is common experience that for seeking remedy in respect of illegal occupation of gaon sabaha land and other public utility land the person concerned usually rushes to this Court by way of filing writ petitions without taking recourse to the remedy available under sub-section (2) of Section 122-B of the Act.

16. We have also come across in various cases, the fact that even where after conclusion of the proceedings under Section 122-B of U.P.Z.A & L.R. Act, the orders for eviction and recovery of compensation for damages or misappropriation of gaon sabha land have been passed by the authorities concerned, the said orders are lying unattended and the same are not being executed. We cannot appreciate such state of affairs."

(emphasis supplied)

11. From perusal of the judgment of Hon'ble Division Bench in the case of Om Prakash Verma (supra) particularly it may be observed that in a public utility land recorded as such, the Hon'ble Division Bench has provided for some sort of a 'whistle blower' at local level within the scheme of the Act.

12. In view of the above, it is not difficult to cull out the ratio of law that any person, other than the Land Management Committee or local authority, in case such bodies are not coming forward to initiate proceedings or file complaint/information/application, the 'the other person i.e. a third party' moreso, member of Gaon Sabha, can come forward in picture and lodge a complaint.

13. This being the ratio of law, I find no difficulty in holding that, as the land of public utility, wherein provisions of Section 176 of the Act would not be applicable, was grabbed by filing collusive suit under Section 176 of the Act and by obtaining a collusive decree on the basis of collusive agreement between private parties dated 24.3.1964, the recall application filed by the Gram Pradhan and other residents of village was clearly maintainable as the object is to protect the Gaon Sabha land of public utility, particularly in view of the fact that even after decision of Hon'ble Apex Court in Hinch Lal Tiwari Vs. Kamla Devi 2001 (92) RD 689 no action was taken by the Land Management Committee or the local body or even by district authorities. In such view of the law, as laid down by Hon'ble Division Bench, I am not inclined to place reliance on Jagdish Pandey (supra) sited by learned counsel for the petitioner.

14. A perusal of the writ petition would indicate that the findings recorded by the Board of the Revenue that the land in dispute is recorded as banjar, chhabar, talab, pokhari, which is Gaon Sabha land and is covered under various provisions of the Act as quoted above, therefore, the suit under Section 176 of the Act for such category of land covered was not at all maintainable. Even otherwise, the record clearly reflects that the Suit No. 145 of 1964 filed under Section 176 of the Act was decided vide order dated 24.3.1964 on the basis of compromise entered into between the private parties without notice having been issued to the Gaon Sabha. In such view of the matter, it was a case of fraud and it is settled law that in case of fraud law of limitation would not apply and therefore, the delay of 46 years is inconsequential in the present case.

15. This Court finds no difficulty in holding that in a suit filed under Section 176 of the Act making Gaon Sabha a party is must but not issuing notice to Gaon Sabha is, infact, no effective compliance of Section 176 (2) of the Act.

16. The findings recorded by the revisional court may be profitably quoted as under:-

"eSus mHk;i{k ds fo}ku vf/koDrk }kjk izLrqr rdksZa ij fopkj fd;k rFkk i=koyh ij miyC/k vfHkys[kksa dk voyksdu fd;kA

i=koyh ij miyC/k vfHkys[kksa ,oa voj U;k;ky;ksa ds vkns'kksa ds voyksdu ls Li"V gS fd fookfnr Hkwfe xzke lekt dh lkoZtfud mi;ksx dh Hkwfe Fkh ftlds lEcU/k esa nk;j /kkjk 176 t0fo0vf/k0 ds okn esa oknh o izfroknh fookfnr Hkwfe;ksa ij [kkrsnkjksa ds :i esa ntZ ugha FksA vr% mUgsa foHkktu djkus dk vf/kdkj ugha FkkA vkns'k fnukad 24-03-1964 nqjfHklaf/k djds QzkM ds vk/kkj ij ikfjr djk;k x;k gS vkSj QzkM dh rtohtlkuh dk dksbZ le; lhek ugha gSA

esjk lqfopkfjr er gS fd fookfnr Hkwfe xkao lHkk dh lkoZtfud mi;ksx dh Ncj] rkykc] iks[kjh ,oa catj [kkrs dh Hkwfe Fkh tks foHkktu okn dk vax FkhA vr% mlds lEcU/k esa xkao ds fdlh Hkh O;fDRk dks rtohtlkuh izkFkZuk&i= izLrqr djus dk vf/kdkj Fkk vkSj pawfd mDr vkns'k QzkM ds vk/kkj ij ikfjr Fkk vr% le; dh dksbZ lhek ugha gksxhA vr% ijh{k.k U;k;ky; }kjk rtohtlkuh Lohdkj dj iwoZ ikfjr vkns'k fnukad 24-03-1964 dks fjdky djds fof/klEer vkns'k ikfjr fd;k x;k gS vkSj pawfd /kkjk 176 t0fo0vf/k0 dk okn ftu Hkwfe;ksa ds lEca/k esa nk;j fd;k x;k Fkk og xkao lHkk dh Hkwfe FkhA vr% rtohtlkuh izkFkZuk&i= dks Lohdkj djus ds lkFk&lkFk okn dks fujLr dj fn;k x;k] blesa Hkh dksbZ fof/kd =qfV ugha gS] D;ksafd ijh{k.k U;k;ky; }kjk vius foLr`r vkns'k esa ;g Li"V :i ls foosfpr fd;k x;k gS fd foHkkftr dh tkus okyh Hkwfe oknh izfroknh ds uke ls vafdr ugha FkhA vr% rtohtlkuh izkFkZuk&i= Lohdkj dj vkns'k fnukad 24-03-1964 fujLr djus ds ckn fopkj.k ;ksX; dksbZ fcUnq cpk gh ugha FkkA bl izdkj ijh{k.k U;k;ky; }kjk ikfjr vkns'k fof/klEer Fkk] ijUrq voj U;k;ky; }kjk ijh{k.k U;k;ky; dks rtohtlkuh izkFkZuk&i= ij vkns'k ikfjr djus ds i'pkr /kkjk 176 t0fo0vf/k0 ds okn ds lEcU/k esa vkns'k ikfjr djus ds funsZ'k fn;s x;s gSa] og fjek.M vkns'k mfpr ugha gS] D;ksafd ;fn ijh{k.k U;k;ky; }kjk rtohtlkuh o foyEc ds fcUnq ij vkns'k ifjr fd;k tkrk gS rks izfroknhx.k mlh fcUnq ij l{ke U;k;ky; esa mDr vkns'k dks pqukSrh nsdj lkoZtfud mi;ksx dh Hkwfe ds ekeys esa okn dks yfEcr cuk;s j[ksaxsA pwafd ijh{k.k U;k;ky; dh foospuk ls Li"V gks pqdk Fkk fd fookfnr Hkwfe xkao lHkk dh Hkwfe gS ftldk caVokjk gks gh ugha ldrkA vr% muds }kjk ,d lkFk vkns'k ikfjr djus esa dksbZ Hkwy ugha dh xbZ gSA blds foijhr voj U;k;ky; }kjk vkns'k ikfjr djds xyr fu.kZ; ikfjr fd;k x;k gSA"

(emphasis supplied)

17. The findings of fact so recorded, which are based on original record, are not under challenge. Much emphasis was given by the learned counsel for the petitioners that no opportunity of hearing was granted to the petitioner before passing such order. During course of arguments this Court offered an opportunity of hearing to learned counsel for the petitioner to prove that the land is not covered under the abovenoted provisions of the Act and that in such factual situation, whether the suit under Section 176 of the Act would at all be maintainable? Learned counsel for the petitioners could not substantiate his arguments on the issue, on which the findings of fact have been recorded by the trial court, even before this Court.

18. Such findings of fact having been recorded and moreso, a finding of fact that it is a case of fraud and the land is recorded as pokhari and talab etc., this case is squarely covered by the decision of Hon'ble Apex Court in the case of Hinch Lal Tiwari (supra) and Jagpal Singh and others Vs. State of Punjab and others 2011 (113) RD 329.

19. In paragraph 21 of Jagpal Singh (supra) it has been held that long duration of such occupation or huge expenditure in making constructions thereon must not be taken as a justification for condoning this illegal act or for regularizing the illegal possession, which is quoted as under:-

"21. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat / Poramboke / Shamlat land and these must be restored to the Gram Sabha / Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

(emphasis supplied)

20. In such view of the matter, even if the petitioners are bonafide purchasers of the land, they cannot get any right better than that of vendor of the property and this long occupation of purchaser of land or of construction would be of no consequence.

21. In the present case, it is clear that the order dated 24.3.1964 was obtained under Section 176 of the Act by playing fraud on the basis of compromise entered into between the two private parties without issuing notice to the Gaon Sabha. From perusal of the record it is clear that the authorities concerned have recorded finding that the disputed land is recorded as banjar chhabar, talab, pokhari in the revenue record and thus, the land is of public utility, therefore, no right or title can accrue in favour of any private person. Such findings of fact are not under challenge.

22. In such view of the matter, even if opportunity of hearing is afforded to the petitioners at the trial court stage, as offered by this Court during course of arguments, the case of the petitioners would not improve on any count and thus, the revisional court was right in observing that no fruitful purpose would be served by remanding back the matter to trial court and if remanded it would only give a handle to the petitioner to somehow linger on the matter.

23. In such view of the matter, I do not find any legal infirmity in the order impugned herein. Present petition is devoid of merit and is accordingly dismissed.

Order Date :- 1.9.2017

Lalit Shukla