Laxmi Singh And 10 Others vs Board Of Revenue And 4 Others
2023 Latest Caselaw 8703 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 4
 
Case :- WRIT - B No. - 1695 of 2020
 

 
Petitioner :- Laxmi Singh And 10 Others
 
Respondent :- Board Of Revenue And 4 Others
 
Counsel for Petitioner :- Narayan Dutt Shukla,Akhilesh K. Dwivedi,Suresh Singh,Sr. Advocate R.C. Singh
 
Counsel for Respondent :- C.S.C.,Aloke Kumar,Syed Badshah Husain Naqvi
 

 
Hon'ble Jayant Banerji,J.

1. Heard Shri R.C. Singh, learned Senior Advocate assisted by Shri Suresh Singh, learned counsel for the petitioners. Shri O.P. Sharma, learned Additional Chief Standing Counsel appears for respondent Nos. 1, 2, and 3. Though, a counter affidavit has been filed by Shri Syed Badshah Husain Naqvi, learned counsel on behalf of respondent No.4- Nagar Palika Parishad, who is not present in the Court. Shri Aloke Kumar, learned counsel appears for respondent No.5.

2. This writ petition has been filed seeking a writ of certiorari for quashing the order dated 26.10.2020 passed by the Board of Revenue in case No. REV/830/2020/Fatehpur, Computerized No. AL2020022500830 (Laxmi Singh Vs Mohammad Fahim Khan). Also under challenge is the order dated 02.6.2016, passed by the Additional District Magistrate that has been filed as an Annexure No.8 to the writ petition.

3. It appears from the writ petition and is contended by the learned counsel for the petitioners that late Ghanshyam Singh, who was the father of the petitioner No.2, was a landless agricultural labourer. The Gaon Sabha passed a resolution on 30.07.1960, to lease out plot No.205 having an area of 3 Bigha, 13 Biswa. The resolution was approved by the Sub-Divisional Officer on 06.12.1960. Subsequently, mutation was effected and the aforesaid Ghanshyam Singh came to be recorded as 'Sirdar' in the revenue records. It is stated that the land was not used for any purpose other than agriculture. The contention is that one Shivbadan Prasad got a sale deed dated 13.09.1981, executed by putting up an imposter as Ghanshyam Singh. Ghanshyam Singh was oblivious of the sale deed which was an outcome of fraud. It is further stated that one Rajaram Dubey also executed a sale deed dated 03.7.1981, by putting up an imposter as Shri Ghanshyam Singh. It is stated that Ghanshyam Singh was also oblivious of the said sale deed which was an outcome of fraud. After the death of Ghanshyam Singh, the name of his successor was mutated in the revenue record. A report dated 28.12.1981 was submitted recommending initiation of the proceedings under Section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act, 19501 for cancellation of the lease/allotment made in favour of Ghanshyam Singh. It is stated that no notice was issued or served upon Ghanshyam Singh and he remained oblivious of the proceedings under Section 198(4) of the Act of 1950. By an order dated 29.04.1985, the Additional Collector cancelled the lease in favour of Ghanshyam Singh. An appeal was filed by Ghanshyam Singh before the Commissioner Allahabad Division which came to be dismissed by order dated 31.12.1987. A revision was filed by Ghanshyam Singh bearing No.46 of 1987-88. While allowing the revision by an order dated 12.09.1991, the Board observed that there was no rational for initiation of proceedings under Section 198(4). It was, therefore, observed that proceedings ought to have been initiated under Section 167 of the Act of 1950, after hearing all the parties concerned which was not done in the instant case. The previous orders passed by the subordinate Revenue Authorities was set aside by the Board and the matter was remanded to the trial court to hear the matter afresh under the provisions of Section 167 of the Act of 1950. It is stated that Ghanshyam Singh came to know about the existence of the aforesaid sale deeds thereafter and filed two civil suits within three years of obtaining knowledge of the sale deeds seeking their cancellation. It is stated that both the suits were decreed on 29.7.1994 and 8.2.2007 which decree became final.  It is stated that no fresh proceedings under Section 166 and 167 of the Act of 1950 were instituted, but the proceedings under Section 198(4) were revived. Thereafter, the heirs of the petitioners were substituted. The petitioners filed their objections and by the order dated 2.6.2016, the Additional District Magistrate dropped the proceedings.

4. It is stated that, thereafter, the respondent No.5, who was not a person aggrieved, and not even authorized by the Nagar Palika Parishad, filed a revision before the Commissioner being Revision No.0069/2020, Computerized Case No. C202002000000069, (Mohammad Fahim Khan vs Dr. Om Prakash Singh). It is stated that as the revision was barred by time and therefore, an application under Section 5 of the Limitation Act was also filed. By an order dated 6.02.2020, the revision was admitted and the operation of the order passed by the Additional District Magistrate dated 2.6.2016 was stayed. The petitioner No.1 challenged the aforesaid order dated 6.2.2020 before the Board of Revenue. By the order dated 26.10.2020, the Board of Revenue set aside the order dated 2.6.2016 passed by the Additional Collector, Fatehpur as well as the order dated 6.2.2020 passed by the Additional Commissioner (Administration) Prayagraj, and the record was remitted to the trial court with a direction to initiate proceedings in accordance with the law for vesting of the property in dispute in favour of the State Government.

5. The contention of learned counsel for the petitioners is that the revision filed by the respondent No.5 before the Commissioner Allahabad Division was not maintainable. It is stated that the respondent No.5 is not a person aggrieved and neither was he authorized by the Nagar Palika Parishad. As such, the revision ought not to have been entertained by the Commissioner. It is further urged that the provision of section 167 of the Act of 1950 will apply where there is a voluntary transfer. It is contended that the sale deeds were fraudulent as the predecessor of the petitioners, namely Ghanshyam Singh, had never executed those two sale deeds. On coming to know of the sale deeds, suits for their cancellation were filed, which were decreed. It is stated that by the order dated 2.6.2016 the Additional Collector had observed that in view of the cancellation of the sale deeds, there was no cause left for initiation of proceedings under Section 167 of the Act of 1950 and, therefore, the Board of Revenue was not justified in reopening the matter. It is stated that the aforesaid decrees of the Civil Court are binding on all concerned. It is further stated that the Board of Revenue has passed the impugned order only on the revision filed by one of the petitioners namely Lakshmi Singh and without issuing notice to any other petitioner.

6. No other arguments were advanced by the learned counsel for the petitioners.

7. Shri Aloke Kumar, learned counsel for the respondent No.5, has referred to paragraph No.6 of the writ petition in which it is mentioned that Ghanshyam Singh was a landless agricultural labour. It is his contention that Ghanshyam Singh was a person of eminence and a medical practitioner and had obtained the land for construction of his hospital. To support his contention the learned counsel has referred to Annexure CA-2 and Annexure CA-3 to the counter affidavit filed on behalf of the respondent No.5, in which it is clearly reflected that the petitioner was a medical practitioner. It is contended by the learned counsel that only after the previous order dated 12.9.1991 was passed by the Board, did Ghanshyam Singh file suits in 1992 and 2001, respectively. It is stated that the order impugned passed by the Board of Revenue is justified and requires no interference. 

8. The learned Additional Chief Standing Counsel has adopted the arguments of the learned counsel for the respondent No.5. 

9. A perusal of the order of the Board dated 26.10.2020 reflects that the Board was of the opinion that once a sale deed was executed and thereafter that deed is canceled, it would not have any effect on vesting of the property in the State Government under Section 167 of the Act 1950, which vesting would come into effect as soon as, the sale deed was executed. Accordingly, the orders dated 02.6.2016 and 06.2.2020 were set aside and the trial court was directed to initiate proceedings for vesting of the land in favour of the State Government in accordance with law.

10. The contention of the learned counsel for the petitioners regarding the respondent no.5 not being an aggrieved or an authorized person, Shri Aloke Kumar has referred to a judgment of the Coordinate Bench of this Court in Pyarelal and others v. Deputy Director of Consolidation2. Paragraph 6 of the judgment reads as follows:

"6. Section 198 of the U.P.Z.A. and L.R. Act prescribes the procedure for cancellation of the allotment made by Gaon Sabha. The said section also provides that order of preference to be followed while making allotment of land. Section 198 (2) as it originally stood provided for an appeal by any "person aggrieved" against the order of allotment or lease made by Gaon Sabha before the Sub-Divisional Officer. The section has undergone frequent changes. By Section 36 of the U.P. Amendment Act XX of 1954 sub-section (2) was substituted by a new section and the Sub-Divisional Officer came to be vested with the power to inquire into the allotment under sub-section (1) either on his own motion or on the application of any "person aggrieved". By Section 23 of the U.P. Act XXXVII of 1958 the said power came to be vested in Assistant Collector in-charge of Sub-Division instead of Sub-Divisional Officer. Again by Section 14 of U.P. Act (IV) of 1969 the power came to be vested in the Collector which could be exercised by him either on his own motion or on the application of any "person aggrieved" by the allotment. The section as it stands now, the power of cancellation is vested with Collector which can be exercised by him either on his own motion or on the application of any person aggrieved. Whatever the amendments, the position that cancellation proceedings can be initiated by a "person aggrieved" has remained unaltered throughout. Thus, in order to maintain the cancellation proceedings the petitioners have to demonstrate that they are persons aggrieved."

11. Shri R.C. Singh, learned counsel has referred to Paragraph No.21 and 22 of a judgment in the case of Sitaram vs DDC3 in support of his contention that the respondent No.5 is not a person aggrieved. A perusal of the aforesaid two paragraphs of the judgment in Sitaram (supra) reveals that the objection filed by one Sheo Prasad on behalf of Gaon Sabha, under Section 9A(2) of the U.P. Consolidation of Holdings Act on the ground that he himself was an interested person under section 9A(2) of the Act, was wholly incompetent.

12. However, the aforementioned judgment in Pyarelal (supra), is in an identical situation as that appearing in the present writ petition and the respondent no.5 herein would be an aggrieved person entitled to object. The phrase "aggrieved person" appearing in Section 9A (2) of the Consolidation of Holdings Act, and, in Section 198 (4) of the Act of 1950 envisage differing situations and circumstances. Therefore, no benefit can be gained by the petitioners by relying on the judgment of Sita Ram (supra).

13. The objection of Shri R.C. Singh, learned Senior Advocate that other petitioners were not heard before the Board of Revenue or that the Civil Courts' decrees were binding on all concerned, have to be viewed in the light of the order of the Board passed on 26.10.2020 and the background of the case. The previous order of the Board dated 12.09.1991 had achieved finality. Till the order dated 12.09.1991 was passed, the petitioners or their predecessor had not filed any suit. Now on 26.10.2020, the matter has been remanded back by the Board to the trial court for its decision with regard to vesting of the property in question. The matter would be considered by the authority in accordance with law, that is, after providing due opportunity of hearing to the persons who are likely to be aggrieved by the proceedings. The observation of the Board that at the very moment the sale deed is executed, the property would vest in the State Government under Section 166/167 of the Act of 1950, would have to be viewed by the trial court in the light of the decrees passed by the Civil Court as also the background of the case and other facts and circumstances.

14. Under the circumstances and given the long history of the dispute that exists, this Court is not inclined to interfere in the order of the Board of Revenue dated 26.10.2020 or in the order of the Additional Commissioner (Administration) dated 6.2.2020. The parties before this Court shall not require any further notice from the Court before which the matter has been remanded by the Board of Revenue. The petitioners are directed to present a certified copy of the order passed today before the competent court within a period of 15 days. The court shall then fix a date and proceed accordingly. The parties are expected to cooperate in the proceedings and the competent court is directed to conclude the proceedings expeditiously without granting any unnecessary adjournments within a period of six months.

15. This writ petition is, accordingly, dismissed. It is made clear that the observations made herein are only for purpose of adjudication of this case and shall not be treated as observations on merits of the case.

Order Date :- 24.3.2023

k.k.tiwari

(Jayant Banerji, J.)