Thursday, June 21, 2018
Allahabad High Court
Civil Misc. Writ Petition No. 48859 of 2007
(1 Apr, 2011)
Prakash Krishna, J.;-
1. Arazi No.8 area 200 hectare situate in Village Makdumpur District Mau is the subject matter of the present writ petition. The said plot was earmarked as pasture land in the revenue record.
2. The grievance of the petitioner is that the respondents have unauthorizedly allotted the said plot to the contesting respondent no. 6 Smt.Dulari W/o Shanker.
3. An application for cancellation of allotment of the aforesaid plot in favour of Smt. Dulari was filed by certain persons including the petitioner before the Upper Collector, Mau.
4. The application was filed on the ground that the petitioner is a poor Harizan Agricultural Labourer. The land in question being pasture land which is public utility land, could not have been allotted to the contesting respondent. It was further stated that the Revenue Inspector intentionally submitted a false report dated 2.5.1996 by changing the land use of the said plot. The lease was given to the contesting respondent without there being any public notice etc. in a clandestine manner. The application has been dismissed by the order dated 23.10.2004 on the ground that lease was granted in the year 1996 and the application for its cancellation was filed in the year 2001 I.e beyond three years; the period prescribed for filing an application for cancellation of a lease, by an aggrieved person. The matter was carried in revision No.348/426/B of 2004 before the Additional Commissioner(1st) Azamgarh Division, Azamgarh who by his order dated 19.10.2006 confirmed the order and the said revision was dismissed.
5. Challenging the aforesaid two orders, the present writ petition has been filed. Heard Shri Arun Kumar Singh, learned counsel for the petitioner and the learned standing counsel on behalf of the respondents no. 1 to 4. Notices were issued to respondent no.6 but her counsel Shri D.B.Yadav and Shri R.D.Yadav, Advocates are not present even in the revised list.
6. The learned counsel for the petitioner submits that the land in question being a pastureland cannot be subject matter of allotment to anybody. He further submits that the procedure prescribed for allotment was not followed. The said plot has been allotted to the respondent no. 6 in a fraudulent manner without there being any public notice. The respondent no. 6 is not a landless agricultural labourer. Her husband has already got three bighas of land besides two medical shops and gun license. The learned standing counsel on the other hand supports the impugned orders.
7. The only question that arises for consideration in the present petition is whether the authorities below were justified in rejecting the application filed by the petitioner for cancellation of the allotment in favour of the contesting private respondent on the plea that the same is barred by time.
8. Along with the writ petition, a copy of Khatauni has been filed which shows that in pursuance of the order of Sub Divisional Officer, Ghosi and the resolution dated 25.2.1996 approved on 30.12.1996, the user of the plot no.8 was changed from pastureland and the name of respondent no. 6 was recorded as Bhumidari with non transferable rights. The above document clearly shows that the respondents have allotted a public utility land in favour of the respondent no.6.
9. The learned counsel for the petitioner submits that it was a public utility land and therefore, it could not have been allotted. Reliance has been placed upon a judgment of this Court in Atar Singh versus State of U.P and others 2010 (109) RD 156, wherein it has been held that a land recorded as Charagah cannot be allotted in favour of any person.
10. There are mainly two objects of pasture land or grazing land:
Firstly, it provides rights to the villagers to graze their cattle, free of cost, and without any money.
Secondly, pasture land is a part of our ecology and helps a lot in maintaining our ecological balance by providing domestic animals of the tribes, their natural environmental and natural home and natural environmental and natural vegetation, where they eat food (grass), drink water, get pure air, sunlight, rest, move and enjoy freedom, freedom from the shackles of farm house, freedom from the fetters of rope and freedom from every iron bar. Otherwise, it would be a perpetration of cruelty, torture, exploitation and degrading treatment of domestic animals unbalancing our ecological system.
11. The fact is that a large chunk of land measuring 200 hectares has been allotted to the respondent no. 6 without following the prescribed procedure under section 198 of U.P.Z.A & L.R Act.
12. Section 197 of U.P.Z.A & L.R Act 1950 empowers the Land Management Committee with the previous approval of the Assistant Collector incharge of the Sub Division to admit any person as Bhumidhar with non transferable rights to any land to a vacant land, landvested in the Land Management Committee. This section also refers Section 132.
"Section 132 provides that notwithstanding anything contained in Section 131 Bhumidhari rights shall not accrue in pasture lands or lands covered by water........................................".
13. The scheme of the Act suggest preservation of pasture land. This is one aspect of the case. There appears to be no provision to convert a pasture land at the whims of an authority into a vacant land and open such converted land for allotment under section 197 of the Act.
14. A complete procedure for allotment of vacant land vested in the Land Management Committee under section 194 or any other provision of the Act has been provided therein. Section 198 is in the nature of self code. It lays down the order of preferences in admitting persons to land as Bhumidar with non transferable right. Its sub section (3) provides that the land that may be allotted under sub section (1) shall not exceed.
(i)in the case of a person falling under Clause (C) such areas together with the land held by him as bhumidar or asami immediately before the allotment would aggregate to 1.26 hectares (3.125 acres):
(ii) in any other case, an area of 1.26 hectare (3.125 acres)
15. Procedure for cancellation of allotment has also been provided therein. In any case in view of sub section (3) of section 198 an area more than 1.26 hectares cannot be allotted to a person.
16. In the case on hand therefore, allotment of 200 hectares of land to the contesting private respondent on the face of it is illegal, void and beyond the statutory provisions.
17. There is another flaw in the impugned orders. The impugned orders would show that the resolution of Gaon Sabha for allotment of the land in dispute is dated 25.2.1996 which was approved on 30.12.1996. No such resolution could have been passed on 25.2.1996 or approved on 30.12.1996, as on these dates the land continued to be recorded in revenue record as "charagah' i.e 'pasture land'. The entry of pasture land was struck off by the order dated 2.1.1997. Thus, on the date of proposal or its acceptance, it was not a vacant land open for allotment.
18. The authorities below have also failed to consider the plea that the allottee is not a landless agricultural labourer. Her husband is a rich person and possesses three bighas of land and two medical stores. The said averment made in para 9 of the writ petition, in the above of any denial, is liable to be accepted as correct.
19. It is apt to consider the judgment of the Apex Court in Jagpal Singh & others versus State of Punjab & Others JT 2011 (1) SC 617. This was a case with respect of a Village Pond. In that connection, the Apex Court has made certain observations which are relevant for the present purposes. The Apex Court has deprecated the action of the State Authorities either in allotting the public utility land in favour of a person or in permitting an encroacher to occupy such public utility land. It has relied upon its earlier decisionM.I.Builders (P) Ltd. Versus Radhey Shyam Sahu JT 1999(5) SC 42: where the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs.100 crores. It has been observed that the principle laid down in the said decision of M.I.Builders (P) Ltd. Versus Radhey Shyam Sahu JT1999(5) SC 42: will apply with even greater force in cases of encroachment of village common land. In para 15 of the report, the settlement of such Gaon Sabha land to private persons and commercial enterprises on payment of some money has not been approved and it has been provided that even if there is general order in favour of such settlement, the same should be ignored.
20. In the case of Hinch Lal Tewari versus Kamala Devi JT 2001 (6) SC 88 and others the Apex Court has observed thus:
"13. It is important to note that material resources of the community like forests, tanks, ponds, hillock, mountain et.c are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enable people to enjoy a quality life which is essence of the guaranteed right under Article 21 of the constitution. The Government, including revenue authorities, i.e respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites. '
21. The ratio of the aforesaid decisions is that a public utility land should be preserved as such and under no circumstances it should be allotted or leased out to any person. Any action on behalf of the state authorities contrary to above, is illegal and is liable to be ignored.
22. In the case of Jagpal Singh & Others (Supra), the following observation in respect of illegal allotment of such lands has been made:
"The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices."
23. Not only this, general directions have been issued to all State Governments directing them to prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land. It has been further provided that all these land be restored to Gaon Sabha/Gram Panchayat for the common use of Villagers of the Village.
24. In view of above, the action of the respondents is void and without any jurisdiction. The authorities below were not justified in rejecting the application for cancellation of the lease. It is settled principal of law if an order has been obtained by fraud, the said order is void and its validity can be questioned as soon as the fraud comes to knowledge of the concerned party. The authorities below have not examined the case from the said angle and proceeded to dismiss the application for cancellation of lease. Such approach is wholly unwarranted in law.
25. It is not out of place to mention here that under section 198 power to cancel lease is granted not only to aggrieved person but it is also confers suo moto power on the authority. The authorities below, therefore, should have exercised the suo moto power for cancelling the illegal allotment in favour of the contesting private respondent no.6.
26. In the counter affidavit filed on behalf of the State, the fact that it was a pasture landand its land use is being changed has not been disputed.
27. In this view of the matter, the impugned orders cannot be allowed to stand. No counter affidavit has been filed by the respondent no. 6 and in the counter affidavit filed on behalf of the respondent no. 1 to 4, it has not been disputed that the said plot was not a pasture land, it is necessary in the interest of justice to issue a direction to the respondent no. 3, the Collector, Mau to evict the respondent no. 6 forthwith, in any case not later than one month from the date of production of certified copy of this order before him.
28. The respondents are further directed not to allot or lease out the said plot to any person. The said plot shall be restored as pasture land. No person or authority shall be entitled to change its use.
29. From the record, prima facie it is evident that the officials were hands in glove with the contesting private respondent no.6 with a view to illegally grab the common land of the villagers. Let an inquiry be conducted against the then officials who accorded the permission for treating the land in dispute as a vacant land by ordering the change of revenue entry and the officials who have accorded the sanction of the proposal of Gaon Sabha if any for allotment of the disputed land to the contesting respondent no.6.
30. In the result, the writ petition succeeds and is allowed with cost of Rs.50,000/- payable by the contesting private respondent no.6. Out of the said amount, a sum of Rs.10,000/- shall be payable to the petitioner and the remaining amount shall be payable to the Gaon Sabha. One month time is granted to pay the said cost failing which it shall be open to the Collector to recover the said amount along with the collection charges from the contesting private respondent in accordance with law. Both the impugned orders dated 23.11.2004 and 19.10.2006 are hereby set aside. The authority concerned is required to take immediate action for the restoration of the land in question as public utility land by evicting the respondent No. 6 from the land in dispute, as directed above.
Source : https://www.casemine.com/judgement/in/56b49129607dba348fffb5cd