Sheetal vs State Of U.P. And 5 Others
2021 Latest Caselaw 6661 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 40
 
									            AFR
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 240 of 2021
 

 
Appellant :- Sheetal
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Appellant :- Jamil Ahamad Azmi,Mohd. Isa Khan
 
Counsel for Respondent :- C.S.C.,Rameshwar Prasad Shukla
 

 
Hon'ble Manoj Misra,J.

Hon'ble Rohit Ranjan Agarwal,J.

(Delivered by Hon'ble Manoj Misra, J.)

1. This intra court appeal arises from a judgment and order dated 02.07.2019 of a Single Judge in Writ-C No.14609 of 2019 dismissing the writ petition of the appellant.

2. As per the report, the limitation for filing the appeal was upto 02.08.2019 but the same has been presented in February 2021 with a delay condonation application.

3. Considering the explanation offered and the fact that in between there had been large scale restriction in movement due to COVID-19 pandemic, we deem it appropriate to condone the delay in filing this appeal. Consequently, the delay condonation application is allowed. The delay in filing the appeal is condoned. Office shall assign a regular number to the appeal.

4. We have heard the learned counsel for the appellant; learned Standing Counsel for the respondents 1 to 4; and Sri Rameshwar Prasad Shukla for the respondent no.5.

5. In brief, the facts giving rise to this appeal are as follows: The husband of the sixth respondent in the year 2013 obtained a fishery lease for a period of 10 years with effect from 14.08.2013. On 18.12.2015, the sixth respondent was declared elected as a member of the Gram Panchayat concerned. On 25.04.2018, the husband of the sixth respondent died. As an interest in a fishery lease is inheritable, the sixth respondent applied for substitution as a lessee in place of her late husband. When no action was taken on her application, she filed Writ-C No.42598 of 2018 which was disposed off with a direction upon the Sub-Divisional Magistrate, Azamgarh to decide the application of the sixth respondent. Pursuant thereto, by order dated 28.02.2019, the Sub Divisional Magistrate, Sigari, Azamgarh, upon finding that the period of lease remains, allowed the application and substituted the sixth respondent in place of her deceased husband. Questioning the order dated 28.02.2019 the appellant filed Writ-C No.14609 of 2019 by claiming that without the permission of the Collector, as is necessary under Section 28-C of the U.P. Panchayat Raj Act, 1947 (for short the Act), the sixth respondent, who is member of Gram Panchayat concerned, could not acquire interest in a village tank by way of lease, etc. Negativing the above claim, the learned Single Judge dismissed the writ petition of the appellant by declaring that Section 28-C of the Act would not apply to a case where the right devolves upon a person by operation of law such as in a case of succession.

6. Aggrieved with the order of the learned Single Judge, this appeal has been filed.

7. As the fate of the appeal would depend on the import of Section 28-C of the Act, the same is extracted below:-

28-C-- "Members and officers not to acquire interest in contract etc., with

Bhumi Prabandhak Samiti - (1) No member or office bearer of Gram 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, sale, exchange, contract or employment with, by or on

behalf of the Samiti concerned;

Provided that a person shall not be deemed to acquire or attempt to acquire or

continue to have or stipulate for or agree to receive any share or interest in any

contract or employment by reason only of his -

(a) having acquired any interest before he became a member or office bearer;

(b) having a share in a joint stock company which makes the contract; and

(c) having a share or interest in the occasional sale through the Samiti concerned of an article in which he regularly trades upto a value not

exceeding Rs. 50 in any one year.

(2) No court or other authority shall enforce at the instance of any person a

claim based upon a transaction in contravention of the provisions of sub-section (1)."

8. The contention of the learned counsel for the appellant is that the restriction placed by the provisions of Section 28-C would also cover a case of acquiring interest through succession and therefore, without the permission of the Collector, the sixth respondent could not have been substituted in place of her late husband as a lease holder of the fishery lease.

9. We have given our thoughtful consideration to the contentions of the learned counsel for the appellant and have perused the provisions of Section 28-C of the Act carefully. It is well settled that Section 28-C has been inserted with an object to protect the property of Gram Panchayat so that persons who are in a position to influence settlement of interest in Gram Panchayat property do not utilise their position to gain unethical advantage for themselves. However, what is important is that clause (a) of the proviso to sub-section (1) of Section 28-C saves those interests that were acquired by a person before he became a member or office bearer. When a person inherits the estate, it is by operation of law; the person steps into the shoes of his or her predecessor by devolution of interest which takes place immediately on the death of the predecessor though such devolution may be recognised later. Recognition of such devolution may be by way of mutation or substitution in the records but such mutation or substitution by itself does not create any right though it may amount to a recognition of the right. Thus, where the right devolves upon a person by operation of law on occurrence of an event over which a person does not have control, no occasion arises to seek for permission before such devolution. The legislature therefore to serve the legislative object of controlling acquisition of interest in Gram Panchayat property, in its wisdom, qualified the phrase "acquire or attempt to acquire any share or interest...... in any license, lease, sale, exchange, contract or employment with, by, or on behalf of the Samiti concerned" with the word "knowingly". In P. Rama Natha Aiyar's Treatise "Advanced Law Lexicon" (4th Edition), it is provided that the primary meaning of the word "knowingly" is with "knowledge". The treatise thereafter proceeds to notice various facets of the term "knowingly" as interpreted by courts in different contexts. One of them being the decision in Horn Vs. State Ind, 445 N.E.2d 976-978, wherein it was held that "act is done "knowingly" or "purposely" if it is willed, is the product of a conscious design, intent or plan that it be done, and is done with awareness of probable consequences. As succession takes place by operation of law on the death of the estate holder and death though is certain but the time of it cannot be controlled, particularly, when it occurs naturally, the successor in the event of death simply steps into the shoes of the estate holder immediately on his death, by operation of law and, therefore, no question of seeking prior permission to acquire interest arises. Accordingly, by keeping in mind the legislative intent for inserting Section 28-C as also the import of clause (a) of the proviso to its sub-section (1), we respectively agree with the view of the learned Single Judge that the provisions of Section 28-C of the U.P. Panchayat Raj Act, 1947 will not place any restriction on acquisition of interest in a fishery lease by succession. The appeal has no merit and is, accordingly, dismissed.

Order Date :- 25.06.2021

AKShukla/-