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Judgment
Devi Prasad Singh, J.
Heard Shri Jai Singh Chauhan, learned counsel for the petitioner and Shri Rakesh learned counsel for the respondent No.4 as well as learned Standing Counsel representing respondent No.1,2 and 3.
The present writ petition has been filed against the order passed in a proceeding arising in pursuance to provision contained in SubSection 4 of the Section 198 of U.P.Z.A. and L.R. Act.
According to learned counsel for the petitioner, a patta of 0.63 hectare of land was given to him by the land Management Committee on 12.1.1986 and since then the land in question has been used by the petitioner''s family. Learned counsel for the petitioner further submits that in view of amendment made in U.P.Z.A. and L.R. Act by adding Section 131B in the said Act, in the year 1996 i.e. after expiry of ten years of period he had acquired Bhumidhari right. All of sudden on 22.2.2000 a notice under SubSection 4 of Section 198 U.P. Z.A. and L.R. Act was served on him, a copy of the said notice has been filed as Annexure No.4 to the writ petition. Learned counsel for the petitioner also submits that after receipt of a notice he filed an objection. After hearing the parties, by the impugned order dated 19.5.2001, the Additional District Magistrate Finance and Revenue had cancelled the patta. A copy of the impugned order dated 19.5.2001 is filed as Annexure No.2 to the writ petition.
Petitioner preferred a revision under Section 333 of the U.P.Z.A. and L.R. Act. Revision was also dismissed by the respondent No.1 reiterating the finding of Additional District Magistrate, finance and revenue. The patta was cancelled on the ground that while granting the patta in question no permission was obtained from the Collector of the district concerned. The land is a pond which belongs to Gram Samaj and it was allotted to the petitioner under the influence of the then Up Pradhan for extraneous reasons. Learned counsel for the petitioner assailed the impugned order mainly on three grounds:
(1) That under Section 131B of the U.P.Z.A. & L.R. Act the petitioner had acquired Bhumidhari right and accordingly the proceeding for cancellation of patta is not tenable under law.
(2) That under Section 28 (C) of the U.P. Panchayat Raj Act, permission is not required from Collector for grant of patta by the Land Management Committee under the facts and circumstances of present case.
(3) That the notice which was served on the petitioner, a copy of which is filed as Annexure No.4 to the writ petition, reveals that the land in question is a pond in the village and under the influence of the then Up Pradhan it was allotted to the petitioner.
Section 131B was added by amendment in the year 1996 in the U.P.Z.A. & L.R. Act. For convenience Section 131 B is reproduced as under:
"[131B. Bhumidhar with nontransferable right to become Bhumidhar with transferable rights after ten years:
(1) Every person who was a Bhumidhar with nontransferable rights immediately before the commencement of the Uttar Pradesh Zamindari Abolition and Land Reforms (amendment) Act 1995 and had been such bhumidhar for a period of ten years or more, shall become a bhumidhar with transferable rights on such commencement.
(2) Every person who is a bhumidhar with nontransferable rights on the commencement referred to in subsection (1) or becomes a bhumidhar with nontransferable rights after such commencement, shall become bhumidhar with transferable rights on the expiry of period of ten years from his becoming a bhumidhar with nontransferable rights.
(3) Notwithstanding anything contained in any other provision of this Act, if a person, after becoming a bhumidhar with transferable rights under Subsection (1) or subsection (2) transfers the land byway of sale, he shall become ineligible for a lease of any land vested in Gaon Sabha or the State Government or of surplus land as defined in the Uttar Pradesh Imposition of Ceiling of land Holdings Act, 1996.]"
Learned Standing counsel admits that on account of grant of patta of the land in question the petitioner was deemed to be bhumidhar having nontransferable right.
From the perusal of Subsection 2 of Section 131 B it is evident that the bhumidhar having nontransferable right will become bhumidhar with transferable right after lapse of ten years from the date he was possessing the nontransferahle bhumidhari right. It is not disputed that petitioner was having transferable Bhumidhari right on account of patta or lease.
In view of above there is force in the contention of learned counsel for the petitioner that he acquired bhumidhari right after lapse of ten years i.e. after 11.1.1996.
However, the provision contained in Section 131B will not come in the way in case the grant of lease under Subsection 4 of Section 198 is vitiated on the ground that the initial patta was allotted by abuse of process of law or for extraneous reasons or consideration or tor abuse of process of law. The benefit of Section 131B can be extended only to those tenure holders to whom the patta (lease) was granted in accordance to law.
Second contention of the learned counsel for the petitioner is that permission was not required under Section 28(C) of the U.P. Panchayat Raj Act, 1947 seems to have force.
For convenience Section 28(C) is reproduced as under:
"28(C). Members and officers not to acquire interest in contract, etc., with Bhumi Prabandhak Samit: (1) No member or officebearer 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 there wise 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 contacts 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 up to 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 base upon a transaction in contravention of the provisions of subsection (1).
A plain reading of Section 28(C) shows that it relates only to the persons who are member or office bearer of Gram Panchayat or Bhumi Prabandhak Samiti. In case lease is granted to the member or office bearer of Bhumi Prabandhak Samiti then to such persons patta can not be granted except with the prior permission of the Collector in writing. While giving a literal interpretation to the provision contained under Section 28(C) of the Act it appears that the provision contained Section 28(C) of the Act shall not be applicable in the present case as the petitioner is neither office bearer nor member of Gram Panchayat or Bhumi Prabandhak Samiti. Accordingly the provision contained in 28(C) of the U.P. Panchayat Raj Act, 1947 shall not be applicable and finding given by the court below by attracting the provision is not tenable under law and submission of learned counsel of petitioner seems to be correct.
Third submission of the learned counsel of the petitioner is that the original notice was bad in law because it speaks the existence of pond in the land in question. A certified copy of notice dated 22.2.2000 has been filed as Annexure No.4 to the writ petition, which shows that the notice was issued under Subsection 4 of Section 198, was served on the petitioner for the cancellation of patta for two reasons viz, the land in question is a pond belonging to Gram Sabha secondly the petitioners'' brother who was Up Pradhan of the village had not obtained prior permission to the Collector concerned while allotting the patta of land in question. At the face of record the notice dated 16.3.2000 seems to be issued by non application of mind ana does not contain the correct fact. The extract of Khasra filed as Annexure No.3 to the writ petition shows that land in question contained tubewell and also wheat crop. The extract of Khatauni filed as Annexure No.1 to the rejoinder affidavit shows that the petitioner possesses the transferable bhumidhari right of the land in question. Genuineness of entry in Khasra and Khatuani have not been denied by respondent.
Every notice issued by the authorities must contain the correct fact because party to whom a notice is issued have to give reply to the factum of charges contained in the said notice. Petitioner had submitted his reply to the facts and allegations contained in the notice dated 16.3.2000. The court below was having no right to expand the factum of charges contained in notice dated 16.3.2000. Petitioner was having an opportunity to give his reply or file objection only to the original notice served on him issued by Additional Collector, Unnao on 16.3.2000. The dispute adjudicated by the authorities below should have been confined to the factum of charges contained in the notice itself and not beyond. At the face of record it seems that the original notice was issued with vague allegation and seems to contain incorrect allegations. Since the original notice itself contained the incorrect fact entire subsequent proceeding deems to be illegal and not tenable under law.
Learned counsel for the petitioner in support of his contention relied upon the judgment of Division Bench of this Court reported in 1996 RD 190, Shiy Autar v. Nabi and others. Learned Standing Counsel submits that the said judgment has been referred to the larger bench of this Court at Lucknow.
The other judgment relied upon by the petitioner has been reported in 1985 AWC 263, Govind and others v. SubDivisional Officer Machchlishahr, district Jaunpur and other Hon''ble Single Judge in the said case of Govind (supra) held that a person who is not a member, office bearer or Gram Panchayat may be granted patta without having approval from the Collector. Para 9 and 10 of the said judgment is reproduced as under:
".......It is well known principle of interpretation that "animus important is" i.e. intention of the law givers has to ascertain and if the words are clear the duty of the Court is not to add some more words. Even in the case of ''casusomisus" (the case for omission, it is for the legislature to rectify it and for the courts. In Naili Nakhya Bysack v. Shyam Sunder Haider, AIR 1953 SC 148, page 152 it was observed as follows:
"It is not competent to any court to proceed upon assumption that the legislature has made mistake. The court must proceed on the footing that the legislature intended that it has said. Even if there is some defect in the phraseology used by the legislature the court cannot aid the legislature''s defective phrasing of an Act or add and amend on. By construction make up deficiencies which are left in the Act. Even where there is casusomisus it is for the others then the Courts to remedy the defect. See also Hansraj Gupta v. Dehradun Mussosorie Electrict Tramway Co. Ltd., AIR 1933 PC 63."
(10) It is clear that Section 28C does not provide that in case some leases is sought to be obtained in favour of relations or family members or office bearer of the Gaon Panchayat or the Pradhan or Chairman the permission of the Collector must be obtained. The only statutory requirement is that in case the member or the office bearer or the Pradhan etc. acquires any interest in the proposed lease he should obtain a permission of the Collector. In the instant case no such finding has been record that the Pradhan or the member or officebearer of the Gaon Panchayat has obtained any interest. It cannot, therefore, be said that the lease was hit by the provisions of Section 28C of the U.P. Panchayat Raj Act."
In view of above writ petition deserves to be allowed. Accordingly impugned orders dated 10.12.2001 passed by opposite party No.1 in revision No.521 of 2001 and 19.5.2001 passed by opposite party No.2 in case No.443/234 as contained in Annexure No.1 and 2 respectively to the writ petitioner, are quashed with all consequential benefits. Writ of certiorari is issued accordingly. No Costs.
(Petition allowed)