Tej Bahadur Singh And 3 Others vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 10703 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- WRIT - C No. - 5453 of 2022
 

 
Petitioner :- Tej Bahadur Singh And 3 Others
 
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue Lko. And 3 Others
 
Counsel for Petitioner :- Ajay Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Mohan Singh
 

 
Hon'ble Jaspreet Singh,J.

Heard learned counsel for the petitioners. Notice on behalf of the respondents No.1 to 3 has been accepted by the office of Chief Standing Counsel. Notice on behalf of the respondent No.4 has been accepted by Shri Mohan Singh, Advocate.

By means of the instant petition, the petitioners pray for the following reliefs:-

"(i) Issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned order dated 16.06.2022 passed by opposite party No.3 in Case No.RST/5896/2021, Computerized Case No.T-202104230705896, Tej Bahadur Singh and others versus State of U.P., under Section 76 of the U.P. Revenue Code, 2006 contained in Annexure No.1 to the writ petition, in the interest of justice.

(ii) Issue a writ, order or direction in the nature of Mandamus thereby commanding and directing the opposite parties to upheld the order dated 25.11.2021 passed by opposite party No.3, contained in Annexure No.6 to this writ petition, in the interest of justice."

The issue which has been raised while challenging the impugned order dated 16.06.2022 is that nominated counsel did not have the power to move the application concerned and as such the order dated 25.11.2021 which was assailed on an application by the nominated counsel of Tehsil Rudauli under his own signatures and the passing of the order on the same was bad and illegal.

It is submitted that initially a lease was granted in favour of the father of the petitioners No.1 and 2 and the grand-father of the petitioners No.3 and 4. The petitioners had moved an application under Section 76 of the U.P. Revenue Code, 2006 upon which a report was called for and thereafter after getting the necessary reports, the said application was allowed in favour of the petitioners vide order dated 25.11.2021.

The crux of the entire arguments and assailing the impugned order is that the nominated counsel did not have the locus and the right to file an application for recall under his own signatures, despite the fact that the Gaon Sabha had not made any proposal and even otherwise the application was delayed by about six months.

Learned counsel for the petitioners as well as learned standing counsel and Shri Mohan Singh, learned counsel for the respondent No.4 agree that the issue in question has already been considered by this Court in WRIT-C No.4788 of 2022 Ram Milan & Ors. v. State of U.P. & Ors., whereby a Coordinate Bench of this Court by means of the order dated 29.07.2022 held in following paragraphs as under:-

"6. The instant petition has been filed on various grounds, the primary ground being that the application having been filed by the nominated counsel of the Gram Sabha under his own signature was not maintainable and as such the authority could not have validly passed the stay order dated 27.05.2022 and thereafter recalled the order vide impugned order dated 16.06.2022 and thus contends that the impugned proceedings merit to be set aside on this ground alone.

7. The said ground being a legal ground and the Court having been informed at the bar that there is no authoritative judgement on the point, put the point to the bar to assist the Court. Accordingly, Shri Hemant Kumar Pandey, learned Standing Counsel, Shri Dilip Kumar Pandey and Shri Mohan Singh, learned counsels for the Gram Sabha and Shri Dev Prakash Mishra, Shri Tanay Hazari, Shri Ravi Shankar Tiwari and Shri Pritish Kumar, learned counsels have assisted the Court.

8. The issue which is to be decided is as to whether a nominated counsel of the Gram Sabha can file an application purporting it to be filed on behalf of the Gram Sabha under his own signatures? In this regard attention has been invited of this Court towards the provisions contained in Sections 62 and 72 of the Code 2006 read with Rule 74 U.P. Revenue Code Rules 2016 (hereinafter referred to as the Rules 2016) and Appendix II appended to the Rules 2016.

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13. The issue thus revolves around the question as to whether a panel lawyer or a nominated counsel appointed by the Gram Sabha can himself file an application under his own signatures alleging the said application to be on behalf of the Gram Sabha or the Village Panchayat and whether the same can be considered to be in accordance with law?

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19. From perusal of sub-section (1) of Section 62 of the Code 2006, it emerges that for the conduct of suits and legal proceedings, the Chairman or members of Bhumi Prabandhak Samiti, as may be authorised in this behalf by such Samiti, may sign any document and do all things for the proper conduct and prosecution of suits and other proceedings for and on behalf of the Gram Panchayat. Sub-section (2) provides that no suit or other proceedings to which any Gram Panchayat is a party, shall be compromised or withdrawn on behalf of such Gram Panchayat. However sub-section (2) may not detain the Court in as much as the provisions of sub-section (1) of Section 62 are categoric in this regard that it is the Chairman or such members of the Bhumi Prabandhak Samiti as may be authorised in his behalf by such Samiti who have to sign any document and do all other things for the proper conduct and prosecution of suits.

20. Section 72 of the Code 2006 provides for appointment of Standing Counsels and other lawyers. So far as Gram Panchayat and Gram Sabha is concerned the provisions are contained in Section 72(3) which provides that subject to the provisions of Section 62(2) the legal practitioners appointed under Section 62(1) and 62(2) may plead or act without any written authority on behalf of any Gram Sabha, Gram Panchayat or Bhumi Prabahdhak Samiti. The words used in Section 72(3) of the Code 2006 are 'plead' or 'act'. Once Section 62(1) of the Code 2006 categorically provides that it is the Chairman or the members of the Bhumi Prabandhak Samiti who may sign any document and do all other things for proper conduct and for prosecution of suits then obviously the 'pleading' or 'acting' of the legal practitioner as provided in Section 72(3) would not include signing of a plaint or plea or pleadings or other documents on behalf of Gram Panchayat rather the legal practitioner could only plead or argue the matter.

21. Rule 74 over which reliance has been placed by Shri Mohan Singh, learned counsel appearing for the Gram Sabha also indicates that Rule 74(e) provides that no panel lawyer shall institute, contest or conduct any case unless he is authorized to do so by the Sub-Divisional Officer or the Collector or the Board of Revenue or the Government as the case may be. Appendix II to the Rules 2016, though provides in instruction number 4(2) that the panel lawyer may appear, plead and act without any written authority on behalf of any Gram Panchayat yet instruction 4(2) of the Appendix II will have to give way to the mandatory provisions of Section 62(1) of the Code 2006 which only gives the authority to the Chairman or such members of the Bhumi Prabandak Samiti to sign any document. This would also be amply clear from a perusal of instruction 20(1) of Appendix II of the Rules 2016 which provides that in all cases of Land Management Committee in which it enters into litigation the Chairman shall sign the plaint or the written statement on an application on its behalf meaning thereby that the only power in terms of the instructions given in Appendix II of the Rules 2016 to a panel lawyer is for pleading of a case and not for signing of any plaint purporting the same to be on behalf of the Gram Panchayat.

22. Thus, from perusal of the aforesaid discussion it is apparent that no pleading or application can be signed by the nominated counsel and thus any such application or pleading signed by the nominated counsel would be per-se bad.

23. The next question that arises is as to whether non signing of the application/plaint in terms of Section 62 of the Code 2006 would be a curable defect or a fatal defect. The said question may not detain the Court in as much as it is settled position of law that matters pertaining to procedural errors are always curable and as such the said defects can always be cured by the parties in accordance with law.

24. Accordingly, keeping in view the aforesaid discussion, more particularly, when all proceedings subsequent to passing of the order dated 21.03.2022 have been started / initiated on the basis of an application signed by the nominated counsel, which as per the discussion made above, could not have been validly done, the writ petition deserves to be allowed and is allowed. The impugned orders dated 16.06.2022 and 27.05.2022, copies of which are annexures 1 and 7 respectively to the petition, are set aside."

Learned counsel for the respective parties also agree that the issue involved in the instant petition is squarely covered by the aforesaid judgment of Ram Milan & Ors. (supra) and the benefit of the judgment may also be provided to the petitioners.

Having noticed the aforesaid as well as gone through the decision of Ram Milan & Ors. (supra), this Court finds that the instant petition deserves to be allowed in terms of the judgment and order of this Court in Ram Milan & Ors. (supra). Accordingly, the order dated 16.06.2022 contained in Annexure No.1 shall stand quashed. The consequence of setting aside of the order dated 16.06.2022 shall follow and it would be open for the Gaon Sabha to proceed in accordance with law.

The writ petition is allowed. There shall be no order as to cost.

Order Date :- 22.8.2022

Rakesh/-