Allahabad High Court
C.M.W.P. No. 9539 of 1978 (18 Jul, 2011)
Prakash Krishna,J.-
1. Heard the learned counsel for the petitioners and Ms. Madhu Tandon, learned standing counsel for the respondent nos.1, 2 and 3. The dispute relates to plot No.312/1 area 1.06 acres situate in village Chakia, Tappa Bhatni, Pergana Shahjahanpur, Tehsil and District Deoria. During the consolidation operation, Gaon Sabha filed objection against the recorded tenure holders over the said plots. The Gaon Sabha came forward with the case that the aforesaid plot is a pasture land and is wrongly recorded in the basic year in favour of the petitioners herein. The case of the Gaon Sabha has been accepted by all the three authorities below.
2. Challenging the orders passed by the Consolidation Officer, Settlement Officer Consolidation in appeal and of Deputy Director of Consolidation in revision, the present writ petition has been filed.
3. The learned counsel for the petitioners submits that the petitioners took the aforesaid plot from the Ex-Zamindar. A suit under section 59/61 of the u.p. tenancy act was filed against Chhedi and others who were co-sharers in Khewat Khata No.1 wherein the plot in dispute is comprised. Petitioners' names were recorded on the basis of the decree passed in the aforesaid suit. An application to recall the judgment and decree in the said suit was filed by the Gaon Sabha which was ultimately rejected. The submission is that in view of the judgment and decree passed in the aforesaid suit, the authorities below were not justified in expunging the names of the petitioners over the plot in question.
4. Ms. Madhu Tandon, learned standing counsel, on the other hand, submits that in view of section 8 of the U.P.Z.A. & L.R. Act, the decree passed in the aforesaid suit is not binding on the State. Elaborating the argument it was submitted by her that there is ample evidence on record to show that in the revenue record the plot in dispute was recorded as pasture land. The said pasture land could not be let out or transferred in any manner by the Zamindar in view of the Section 8 of the U.P.Z.A. & L.R. Act after 8th of August, 1946. Further it was submitted by her that in the present case the transfer in favour of the petitioners is after that date.
5. Considered the respective submissions of the learned counsel for the parties and perused the record.
6. A bare perusal of the order of the Deputy Director of Consolidation would show that theland in dispute was recorded as grass growing land in the revenue year 1355 to 1359 which corresponds to the year 1946 and onwards. Section 8 of the UPZA & LR Act provides that any contract for grazing or gathering of produce from land or the collection of forest produce or fish from any forest or fisheries entered into after the eighth day of August, 1946, between an intermediary and any other person in respect of any private forest, fisheries, or land lying in such estate shall become void with effect from the date of vesting.
7. In order that section is attracted it is necessary that such contract shall be entered into after 8th of August, 1946 and shall be in respect of any forest rights, fisheries, or landlying in such estate. The reason is that if the estate is vested any contract with respect to anything produced or coming from the same also becomes incapable of performance since the date of vesting. The importance of date 8th of August, 1946 is on that date the United Province Legislative Assembly passed a resolution which reads as follows:-
"This Assembly accepts, the principle of abolition of Zamindari system in this Province which involves intermediaries between the cultivator and the State, cannot resolve that the rights of such intermediaries should be payment of equitable compensation and that the Government should appoint committee to prepare a scheme for this purpose."
8. Accordingly, a Committee was appointed who gave its report in July, 1948 and thereafter, the aforesaid Act was enacted which received the assent of the President on 24th of January, 1951.
9. The cut off date 8th of August, 1946 was fixed to prevent unscrupulous Zamindar to make contracts with a view to acquire benefits when the Zamindari was abolished. With that view in mind, section 8 provides that certain contracts shall be deemed void made after 8th of August, 1946. Coming to the facts of the case on hand, according to the own showing of the petitioner the Zamindar gave him the land in dispute (plot No.312/1) after the aforesaid date. The said plot was earlier recorded as Charagah in the revenue record. It appears that a collusive suit was filed being suit No.1531 of 1951 by the petitioner just to get the seal of the Court on the contract given to him by the Zamindar. The suit was decreed on 26th of July, 1951. In the said suit the Gaon Sabha was not a party and it was a suit against other co-sharers of Zamindar alone. The suit being collusive and was filed with an oblique motive, to take the benefit of the forthcoming new enactment relating to the abolition of Zamindari, such decree has no legal sanctity. Any entry in the revenue record on the basis of this decree of such suit will not confer any right, title or interest to a person who was a party to such collusive proceedings. At least, such person cannot be permitted to invoke the extraordinary jurisdiction of this Court under article 226 of the constitution of india. The said power has been given to High Court to do justice and not to perpetuate a collusion or fraud. Justice should be necessarily in conformity with the statutory provision and it cannot be violative of statutory provision.
10. The object of Gochar or grazing land is to provide to villagers to graze their cattle free of cost and without any money. Grazing land provides economic support to indigent villagers and it is a very source and means of livelihood for such persons. Grazing land is part of our ecology and helps a lot in maintaining our ecological balance by providing domestic animals of the villagers, their natural habitation, natural home and natural environment and natural vegetation.
11. Recently, the Apex Court in the case of Jag Pal Singh and others v. State of Punjab and others, JT 2011 (1) SC 617 examined the dispute with regard to the public utility landin the villages. It has taken a very serious view of one such public utility land namely pond and has provided that the land recorded as pond must not be allowed to be allotted to anybody for construction of house or any like purpose. Hinch Lal Tiwari Vs. Kamla Devi, JT 2001(6) SC 88, is an authority for the above proposition. In para 20 of the judgment in the case of Jag Pal Singh, the Apex Court has observed that
"The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices."
12. In para 22 of the judgment the following general direction has been given:-
"Before parting with the case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
13. The submission of the learned counsel for the petitioner that under section 8 of the Act only certain contracts have been laid down to be void which is not so here as in the case on hand a decree has been passed, is of no substance.
14. It is difficult to agree with him. On own showing of the petitioners they took the land in dispute from the intermediary after 8th of August, 1946. The object and purpose of enacting the Section 8 was to protect the pasture land, private forest, fisheries etc..
15. In view of the above discussion, I do not find any merit in the writ petition. The writ petition is devoid of substance. It is dismissed accordingly. The stay order is vacated.
Source : https://www.casemine.com/judgement/in/56b49150607dba348fffbcaa
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