Mahendra And 13 Others vs State Of U.P. And 4 Others
2019 Latest Caselaw 5196 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 

 
Case :- WRIT - C No. - 47092 of 2015
 

 
Petitioner :- Mahendra And 13 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Sailesh Kumar Tripathi
 
Counsel for Respondent :- C.S.C.,Tariq Maqbool Khan
 
and
 
Case :- WRIT - C No. - 24674 of 2018
 

 
Petitioner :- Mahendra And 13 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Shailesh Kumar Tripathi
 
Counsel for Respondent :- C.S.C.,Tariq Maqbool Khan
 

 
Hon'ble Siddhartha Varma,J.

Writ - C No. 47092 of 2015 has been filed by 14 petitioners with a prayer that the physical possession over the land allotted to them by way of patta be granted to them. Further Writ - C No. 24674 of 2018 was filed when instead of making available the physical possession of the land granted to the petitioners by way of patta, an order was passed on 26.5.2018 by which the pattas themselves were cancelled. In Writ Petition No. 47092 of 2015, the petitioners had approached this Court with a case that though they were granted pattas in the year 1970-76 after due resolution and approvals, physical possession was not being given to them. It is the case of the petitioners that their names were also mutated in the revenue records. The further case of the petitioners was that when the petitioners insisted that physical possession be given, the District Magistrate Gorakhpur also constituted a team of 7 members to deal with the complaints of the petitioners by an order dated 15.7.2014. However, when nothing was done the petitioners were constrained to approach this Court by means of Writ petition No. 47092 of 2015. In this writ petition a counter affidavit was filed by the Sub Divisional Magistrate Goala district Gorakhpur. In the Counter Affidavit in paragraph 10 it was stated that efforts would be made for evicting persons who had taken illegal possession over the petitioners' land and also efforts would be made to handover the actual physical possession to the petitioners. Since the petitioners counsel read out the paragraph no. 10 of the counter affidavit the same is being reproduced here as under:-

"10. That the contents of paragraphs 5, 6 and 7 of the writ petition are admitted to the extent that the allotments were made in the year 1970 and 1976 in favour of number of persons including the predecessor of the petitioners. However, it is submitted that the allotment was made in favour of 28 persons in the year 1970 over the land of plot no. 2/1 (old) which was renumbered as plot no. 32M during consolidation operation and plot no. 167/173M, 78Kha, 26ka and 29. The total land which was subject matter of the allotment, was 5.25 acres including the plot no. 2/1. The rest of the land was from other plot numbers. The names of the allottees were duly entered in the revenue record when the village came under the consolidation operation. The names of allottees were also recorded in the final record and six of them namely (1) Ram Sajivan, Ram Sakal sons of Jatanu and Awadhi w/o Jatanu, (2) Jatanu s/o Birbal, Shyamu and Pramod sons of Ramu, (3) Beni, Ramashrey, Kuber sons of Barsati Sanjay and Dharmendra sons of Barsati and Smt. Shakuntala w/o Barsadi, (4) Mahabir son of Aganu (5) Madho son of Molahu and (6) Ram Bahal son of Mahabir are in the possession of the land allotted to them. It appears that rest of the land, though, recorded in the name of the allottees was occupied illegally by some of the members of backward classes who succeeded to raise construction over an area of 0.744 hectare equivalent to 1.84 acres and in the enquiry it was found that 0.324 equivalent to 0.80 acres is covered by the Pucca road. Similarly, a Primary School was constructed over an area 0.045 hectare equivalent to 0.11 acre of the same plot. Thus out 3.82 acres of the land (subject matter of allotment), 2.75 acre is under occupation and the allottees of the aforesaid land did not take any action preventing encroachment made in last four decades. However, the allottees of other plot numbers retained possession namely Achhey Lal s/o Bhagelu, Kamala, Ramayan sons of Tirath, Ghurahu son of Baldev, Sumer s/o Suleman. Thus the rest of allottees of 1970 except the aforesaid persons, did not retain possession of the land allotted to them and appears to be done anything during the consolidation operation when such encroachment was made. However, the deponent submits that appropriate proceedings will be taken against those who have occupied the land without any valid allotment."

When still the petitioners were not given possession, this Court on 16.3.2018 passed an order that the land which was occupied by unauthorized occupants would be freed of encroachments and the encroachers would be evicted and the petitioners would be given possession. The order dated 16.3.2018 is being reproduced here as under:-

"Admittedly all the 14 petitioners have been granted pattas between 1970 and 1976. Under Section 198-A, it has been provided that the Assistant Collector either on his own or on an application of an allottee would put him in possession if he finds that he was not in possession. For convenience Section 198-A(1) of the Uttar Pradesh Zamindiari Abolition and Land Reforms Act, 1950 is being reproduced here as under:

"198-A(1) Where any person is admitted as a bhumidhar with non-transferable rights of any land, under Section 195, or as an asami of any land, under Section 197, (such person hereinafter referred to in this section as the allottee) or where any land is let out to any person by the State Government (such person hereinafter referred to in this section as the lessee) and any person other than the allottee or lessee is in occupation of such land in contravention of the provisions of this Act, the Assistant Collector may of his own motion and shall on the application of the allottee or lessee, as the case may be, put him in possession of such land and may, for that purpose, use or cause to be used such force as he considers necessary."

An Assistant Collector or the Sub-divisional Officer has the duty to inspect the land which is under his supervision. The Land Revenue Act and the Uttar Pradesh Zamindiari Abolition and Land Reforms Act, 1950 function simply on the basis of the inspections done by the Sub-divisional Officers or the Assistant Collectors. The Sub-divisional Officer is the in-charge of his division. He has to see that a person who has been granted a patta has to be put in possession over the land allotted. He has not to depend on the mutation proceedings. In fact, if he finds that the mutation has not taken place in pursuance of the patta then he has to make effort to see that the possession and mutation both are there as per the patta.

Respondents to see that the land which is occupied by unauthorised persons, is vacated and the petitioners are put in possession. Also, such authorities who are responsible for not putting the petitioners in possession after patta was granted should be found out and should be punished.

Put up on 23.3.2018 in the additional cause list. "

Thereafter when enquiries were made as to why the possession was not being given then one Gaurav Srivastava, Sub Divisional Magistrate, Gola, District Gorakhpur filed a personal affidavit of his stating that efforts would be made to give possession to the petitioners and in fact in paragraph 9 of the personal affidavit he had also stated that the petitioners would be put in possession over certain vacant plots. Paragraph no. 9 of the personal affidavit of Sri Gaurav Srivastava filed on 27.2.2018 is being reproduced here as under:-

"That since some plots including plot no. 26 and 11 are Miljumla plots and at present are vacant and as such on these plots the petitioners may be put into possession."

The petitioners while were waiting for the possession, an impleadment application was also filed by 27 persons stating that they be also heard as they in one manner or the other had taken over possession over such plots which belonged to Gaon Sabha and they had also moved applications for the cancellation of the pattas given to the petitioners under Section 198(4) of the U.P. Zamindari Abolition and Land Reforms, 1950, (hereinafter referred to as 'the Act').

While these proceedings were pending before the High Court and only questions were being put to the Authorities as to why despite the pattas, possession was not being given, acting on the application given by the persons who had sought impleadment, the Sub Divisional Officer submitted that on the basis of a report dated 25.7.2014 an order was passed on 26.5.2018 by which the pattas of the petitioners alongwith the other allottees were cancelled. Aggrieved by the cancellations of the pattas, another Writ Petition No. 24674 of 2018 was filed. In this writ petition also affidavits were exchanged between the parties and, thereafter, the matter was heard.

Learned counsel for the petitioners in both the petitions submitted as follows:-

I. When the pattas were allotted in the year 1970-76 they could not have been cancelled on 26.5.2018 by the Collector as the application given by the respondents was barred by limitation. Learned counsel submitted that as no limitation had been provided in the U.P.Z.A. & L.R. Act, 1950, for initiating proceedings for the cancellation of pattas it would be deemed that the limitation for initiating proceedings for the cancellation of pattas would be three years and, therefore, the proceedings for cancellation of pattas could not have been initiated at all.

II. The reason given in the order by which the pattas have been cancelled was not available to the Collector for cancelling the pattas. Under Section 198 A of the U.P.Z.A. & L.R. Act when patta was given to a tenure holder it was the duty of the Government and it's officers to see that physical possession was actually given to the persons to whom pattas were granted.

III. Prudence demanded that if land over which pattas had been granted were illegally occupied then either the illegal occupation was removed or the allottees should have been given alternative land. Learned counsel for the petitioners submitted that the U.P. Z.A. & L.R. Act, 1950, and the U.P. Revenue Code, 2006, both were beneficial legislations. They had been enacted to see that the poor in the State of U.P. get land to till and that they do farming and live on their own and are not dependent on Government largesse.

IV. Further, learned counsel for the petitioners submitted that when on various occasions the State Authorities were always filing affidavits that they were making efforts to see that the petitioners were given actual physical possession then they should have made efforts to give vacant land to the petitioners and should not have cancelled the pattas. After almost 48 years of the grant of pattas, the State Government could not have stated that since the land was not available the pattas were being cancelled. This learned counsel for the petitioners submitted was an absolutely a perverse attitude of the State Government and its officials. He submitted that the Government in this country was a welfare government and instead of seeing that people become poor it should see that they are given opportunities so that they may work, produce food grains for their own livelihood and live well.

The individuals who had wanted impleadment through their applications and the learned Standing Counsel submitted that the petitioners after the grant of pattas had approached the Court very belatedly and illegal occupants, had, therefore, matured rights and, therefore, it would not be possible for the State to give actual physical possession to the petitioners. Learned Standing Counsel also submitted that because the petitioners had not tilled the land they had been ousted from their plots which were allotted to them. Further, learned Standing Counsel submitted that since further pattas had been allotted and some civil litigations were going on vis-a-vis the plots of land involved in the case, it would very difficult for the State Government to give possession and the learned Standing Counsel, therefore, submitted that it was in the fitness of things that the pattas themselves were cancelled.

Having heard the learned counsel for the petitioners and learned Standing Counsel and after having gone through the affidavit filed alongwith the impleadment application, I am the view that the order dated 26.5.2018 by which the pattas of the petitioners and of the other lessees were cancelled could not have been so cancelled. First of all, the proceedings which were initiated were absolutely barred by limitation as has been held in Writ - C No. - 22369 of 2009 (Saroj Devi vs. State of U.P. And Others) decided on 19.4.2019. The period of limitation for filing an application for cancellation of pattas was only three years. Further as, it was pointed out by the State Government and its officials, under Section 198 A (1) of the U.P.Z.A. & L.R. Act actual physical possession had to be given to the lessees to whom the pattas were granted and as and when they were ousted from possession they had to be given back their possession. It is the duty of the Sub Divisional Officer to inspect the land which comes under his Division and to see that everything is being fairly done in it. It is also the duty of the Sub Divisional Officer to see that such land over which pattas are granted for agricultural purposes, agricultural work is done and if he finds that the allottee has been ousted from possession then it is also his pious duty to see that the lessee is put back in possession. From the various provisions of the U.P.Z.A. & L.R. Act, 1950, as also from the various provisions of the Land Record Manual, I also find that it is the duty of the Lekhpal, Tehsildar and Sub Divisional Officer to inspect as to who is in possession and tilling the land. This exercise, of seeing who is in possession has to be carried out thrice every year. They also have to see as to who is entered in the khatauni. Further more, if they find that if any illegal occupation is there, either over the Gaon Sabha land or, over the land which has been given out in patta then it becomes their bounden duty to see that the land is freed from encroachments.

Under such circumstances, I hold that it did not lie in the mouth of the officers to say that they could not give physical possession to the petitioners over the plots of land which had been given out to them by way of patta.

Still further, I find that since the State Officers are officers of a welfare government they cannot evict any person to whom rights might have accrued, therefore, they cannot out right evict the occupiers.

Under such circumstances, the order dated 25.6.2018, which has been passed maliciously only to circumvent the orders passed in Writ C No. 47092 of 2015, is quashed.

Further, a direction is being issued that the petitioners in Writ C No. 47092 of 2015 may either be given physical possession over the plots of land which they were allotted or they may be given alternative land. In the event there is no alternative land available then the market value of the land shall be calculated at the rate which is prevalent today and the same shall be given to the pattedars as if their land had been acquired under the Land Acquisition Act as it exists today. Still further, since the petitioners have been deprived of the actual physical possession over their plots of land because of the apathy of the State Officials ever since the dates when they were allotted the pattas they shall be compensated and shall be given Rs. 1 lac each by the State Government within a period of two months from the date of presentation of a certified copy of this order. This compensation shall be given to them in addition to the actual physical possession of the land which was allotted to them.

It is made clear that benefits which flow from this order shall be made available only to the petitioners.

Under such circumstances, the Writ - C No. 47092 of 2015 and Writ - C No. 24674 of 2018 are allowed.

Order Date :- 30.5.2019

praveen.