# Mahesh @ Mahesh Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 731
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-10
- **Case number:** Misc. Single No. 2992 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-mahesh-kumar-ors-v-state-of-u-p-ors-46793
- **Pages:** 7

## Headnote

Civil Law-Proceeding for cancellation of
lease initiated after more than 5 yearswithout delay condonation applicationrevision -rejected-Chief Revenue Officer
recorded satisfaction after examination of
documentary
evidence-that
rules
not
followed-no prior permission taken from
the
Collector-this
fact
not
disputedImpugned order need no interference.

W.P. dismissed. (E-7)

List of Cases cited:-

## Text

2 All. Mahesh @ Mahesh Kumar & Ors. Vs. State of U.P. & Ors.
731
Principal Commissioner or any other
competent authority will take a decision in
respect of withholding of the refund
amount afresh within 15 days from the date
a certified copy of this order is produced
before him.

(ii) We also provide that the fresh
decision under this order shall be taken
by the competent authority of the
department on the basis of record already
available before it as the opportunity to
the petitioner had already been provided
and the submissions of the petitioner have
also been reduced in writing as "record of
personal hearing".

(iii) Once any order under section
54(11) of the Act is passed, keeping in
view the observations made herein above,
the same shall be communicated to the
petitioner forthwith and shall be served
upon the petitioner through appropriate
mode of service.

(iv) The investigation said to be
pending against the petitioner shall be
expedited and completed as far as
possible within a period of four months
from today. Once the investigation is
completed, the requisite orders for final
refund shall also be passed by the
competent authority.

(v) While deciding the matter afresh
under this order, the authority concerned
shall also pass an order on the prayer
made by the petitioner for provisional
refund.

(vi) For unblocking of the Electronic
Credit Ledger, the petitioner shall make
an
application
to
the
Principal
Commissioner within 10 days from today.
Once any such application is made, the
Principal Commissioner or any other
competent
authority
shall
take
appropriate decision which shall be
communicated to the petitioner forthwith.
----------
(2021)02ILR A731
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.02.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 2992 of 2021

Mahesh @ Mahesh Kumar & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ajay Kumar Pandey

Counsel for the Respondents:
C.S.C., Dilip Kumar Pandey, Mohammad
Ehtesham Khan

Civil Law-Proceeding for cancellation of
lease initiated after more than 5 yearswithout delay condonation applicationrevision -rejected-Chief Revenue Officer
recorded satisfaction after examination of
documentary
evidence-that
rules
not
followed-no prior permission taken from
the
Collector-this
fact
not
disputedImpugned order need no interference.

W.P. dismissed. (E-7)

List of Cases cited:-

1. Ghanshyam Vs St., reported in 2004 (97) RD
691,

2.1986 RD 137,

3. 2000 RD Supp 77

4. 2001 RD 476,

5. Suresh Giri & ors. Vs Board of Revenue, U.P.
Alld. & ors., 2010 (2) ADJ 514

6. Ram Pher Singh Vs Additional Collector,
Gonda, 2014 (122) RD 168
732 INDIAN LAW REPORTS ALLAHABAD SERIES
7. U.P. Awas Evam Vikas Parishad Vs Friends
Corporation Housing Society Ltd., (1995) Sup 3
SCC 456,

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

(Oral)

1. Heard Sri Ajay Kumar Pandey,
learned counsel for the petitioners, Sri
Upendra Singh, learned Additional Chief
Standing Counsel, Sri M.E. Khan, learned
counsel for the respondent no.5 and Sri
Mohan Singh, learned counsel appearing
for the Gaon Sabha.

2. This petition has been filed
challenging the order dated 30.11.2009
passed by the Chief Revenue Officer/
Collector, Faizabad, Ayodhya and the order
dated 07.01.2021 passed by the Additional
Commissioner (Administration) Ayodhya
Division, Ayodhya, rejecting the Revision
filed by the petitioners.

3. It is the case of the petitioners that
the Land Management Committee of Gaon
Sabha
Chandipur
Nagahara,
Pargana
Paschim Rath, Tehsil Bikapur, District
Faizabad, made a proposal for grant of
agricultural lease in favour of 134 persons
including the petitioners herein, and the
said proposal was approved by the Sub
Divisional
Magistrate
Bikapur
on
30.03.2002. The petitioner no.2- Sukhraj
and the predecessor-in-interest of petitioner
nos.4, 5 and 6 Ramesh Kumar being
members
of
the
Land
Management
Committee were granted permission from
the Collector Faizabad for grant of lease as
is required under Section 28 (C) of the U.P.
Panchayat Raj Act, 1947 (hereinafter
referred to as "the Act of 1947").

4. It has been submitted that in
pursuance of such proposal, the petitioner
no.1 was granted lease on Gata No.902 of
0.150 hectare, the petitioner nos.2 and 3
were granted lease on Gata No.902 on an
area of 0.01 hectare, the petitioner no.4 and
the father of the petitioner nos.5 and 6 were
also granted lease on plot no.902 and 0.015
hectare only. Possession was delivered in
July, 2002.

5. The grandfather and father of the
respondent no.5 and Ram Jag filed a case
for cancellation of lease under Section
198(4) of the U.P. Z.A. & L.R. Act
(hereinafter referred to as "the Act of
1950") before the respondent no.3 which
was dismissed on 19.08.2002. A recall
application was moved which was also
rejected on 02.09.2002. The respondent
no.5 thereafter himself filed an application
for cancellation of patta on 03.10.2007
under Section 198(4) of the Act, 1950. The
respondent no.3 called for a report from the
Tehsil official and on receipt of the same
on 12.04.2008, notice was issued to the
petitioners. The petitioners filed objections
on 01.05.2009 saying that earlier also in
similar proceedings for cancellation of
patta, the case of the predecessor-in-interest
of the respondent no.5 had been rejected
and that the application for cancellation of
patta given on 30.03.2002 after the period
of five years six months on 03.01.2017
without any application for condonation of
delay was not maintainable under the
provisions of Section 198 (6)(b) of the Act
of 1950.

6. Nevertheless, the order dated
30.11.2009 was passed by the Chief
Revenue Officer saying that petitioners
were ineligible to be granted patta in the
first place and also saying that the land in
question i.e. plot no.902 had been inspected
by him personally and it had been found
that the land is not fit for cultivation as it
2 All. Mahesh @ Mahesh Kumar & Ors. Vs. State of U.P. & Ors.
733
has trees standing thereon and also as two
graves. In the Revision filed by the
petitioners, the petitioners had taken
specific ground regarding maintainability
of the application for cancellation of patta
filed by the respondent no.5, therefore, at
the
initial
stage
the
Revision
was
entertained and stay of opertation of the
order passed by the Chief Revenue Officer
was granted on 11.12.2009. The petitioners
continued to remain in possession and
cultivated the land in question but later on
the Revision was dismissed on 07.01.2021.

7. Hence this petition has been filed.

8. It is the case of the petitioners that
the Chief Revenue Officer did not consider
the objections regarding maintainability of
the second application for the same cause
of action and also did not consider the
question of limitation under sub-clause 6 of
Section 198. Learned counsel for the
petitioners has referred to a judgment
rendered by a Member of the Board of
Revenue in Ghanshyam Vs. State, reported
in 2004 (97) RD 691, wherein after
noticing Section 198 (6)(b) of the Act of
1950 and other case laws reported in 1986
RD 137, 2000 RD Supp 77 and 2001 RD
476, the orders of the cancellation of patta
were set aside on the ground of ignoring
the limitation provided under Section 198
(6)(b).

9. Learned counsel for the petitioners
has also referred to the judgment of this
Court in Suresh Giri and others Vs. Board
of Revenue, U.P. Allahabad and others,
2010 (2) ADJ 514, wherein this Court had
noticed that the time frame prescribed for
issuing notice before cancelling allotment
of land is provided under Section 198(6)
and it is applicable both to suo motto
proceedings
and
on
the
proceedings
initiated on the application of the person
aggrieved.

10. This Court however has also
observed in the judgment of Suresh Giri
(supra),
that
the
Collector
was
not
forbidden to initiate proceedings for
cancellation even after the expiry of
limitation prescribed, provided he had
reason to believe that the allotment is likely
to vitiate on account of fraud. Even so, the
Collector had to express a satisfaction with
regard to the fraud in the order passed by
him cancelling the patta.

11. It has been submitted by learned
counsel for the petitioners that a perusal of
the order of the Chief Revenue Officer
would show that the Chief Revenue Officer
has not considered the ground of limitation
at all. The Chief Revenue Officer has also
not cancelled the allotment of patta on the
ground of fraud. He has cancelled the patta
only on the ground that the petitioners'
being
the
Members
of
the
Land
Management Committee and there being no
prior permission granted by the Collector,
the land could not have been allotted to
them and on the ground that the land was
not the vacant land. He has also referred to
Rules 173, 175, 176 and 177 of the Rules
framed under the Act of 1950 saying that
such Rules were not followed, and
therefore,
the
allotment
has
become
vitiated. However, while cancelling the
patta of the petitioners, he has vested the
land of Gata No.902 and 909 in Gaon
Sabha in its original category of Naveen
Parti.

12.

Learned
counsel
for
the
petitioners says that in so far as the ground
being taken of the land not being fit for
cultivation because of the trees standing
thereon is concerned, such ground is
734 INDIAN LAW REPORTS ALLAHABAD SERIES
erroneous as observed by this Court in Ram
Pher Singh Vs. Additional Collector,
Gonda, 2014 (122) RD 168.

13. This Court has carefully perused
the judgment cited by learned counsel for
the petitioners and finds that same is
inapplicable to the case of the petitioners.

14. This Court in the aforecited case
of Ram Pher Singh (supra) had clearly
observed that by virtue of Section 4 of the
Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950, all estates vested
in the State and the "estate" has been
defined under Section 3 sub Section 8 of
the Act which means "an area included
under one entry in any of the Register
described under Section 32 of the U.P.
Land Revenue Act", and the land included
trees standing thereupon. Trees that have
been mentioned to have been planted on
Gaon Sabha land would not give right of
ownership of the land which belongs to the
Gaon Sabha.

15. Learned Standing Counsel on the
other hand has pointed out from Section
28(C) of the Act of 1947 that if a person is a
Member
of
the
Land
Management
Committee, he cannot derive any interest in
any property belonging to the Gaon Sabha
unless there is a permission in writing of the
Collector.
In
this
case,
although
the
petitioners have alleged that the file was sent
for grant of permission, but the permission
was actually granted after such allotment of
patta and after delivery of possession. He has
argued
that
permission
means
"prior
approval" and not later confirmation. It is not
disputed that the petitioner no.2 was a
Member
of
the
Land
Management
Committee, petitioner no.3 is his wife, and
predecessor-in-interest of petitioners nos.4 to
6 Ramesh Kumar was also the member of the
Land Management Committee. In so far as
the petitioners no.1 is concerned, he was the
real brother of the said Ramesh Kumar, who
was the Member of the Land Management
Committee, and the predecessor-in-interest of
the petitioners nos.4 to 6.

16. It has been submitted by learned
standing counsel that while cancelling the
patta of the petitioners, an observation has
been made by the Chief Revenue Officer that
the allottees have been adjusted by allotment
of land at some other place to them by the
Land
Management
Committee
on
17.04.2002. It has been pointed also by the
learned standing counsel that alternative land
having been allotted to them by the Land
Management
Committee
itself
on
17.04.2002, there was no reason for the
petitioners to approach this Court. They
should have made an attempt to get the
possession over the land that was allotted to
them on 17.04.2002.

17. It has been pointed also by learned
standing counsel and Sri M.E.Khan,
learned counsel appearing on behalf of
respondent no.5, that there is no pleading
with regard to the limitation in the
objections filed by the petitioners before
the Chief Revenue Officer. However, it is
not disputed that the question of limitation
ought to have been considered by the Chief
Revenue Officer as he was duty bound to
notice Section 198 (6)(b).

18. Learned Standing Counsel on the
other hand has argued that the land having
been allotted to the persons who were
ineligible, without prior permission of the
Collector as required under Section 28(C)
of the Act, 1947, such allotment was void
ab initio, and therefore, there was no
question of limitation being a bar in such a
matter wherein initial order is nonest.
2 All. Mahesh @ Mahesh Kumar & Ors. Vs. State of U.P. & Ors.
735

19. This Court has perused the order
passed by the Chief Revenue Officer and
also the order passed by the Additional
Commissioner (Judicial). It has duly
recorded the submission made by the
petitioners and then found from the record
that the allotments made to the petitioners
in 2002 were against the Rules framed
under the U.P.Z.A. & L.R. Act. The
relevant extract of Rules 173, 176 and 177
of the U.P. Z.A. & L.R. Act Rules are
being quoted herein below:-

173. Sections 195, 197 and 198 :
Admission to land. - Whenever the Land
Management Committee intends to admit
any person to land under Section 195 or
197, it shall announce by beat of drum in
the circle of the Gaon Sabha in which the
land is situate at least seven days before
the date of meeting for admission of land,
the numbers of plots, their areas and the
date on which admission thereto is to be
made.

176. - (1) After selecting the person or
persons for admission to the land in
accordance with Rule 175, the Committee
shall prepare-

(a) a list of persons so selected in Z.A.
Form 57- B;

(b) a certificate of admission to land
in Z.A. Form 58; and

(c) a counterpart in Z.A. Form 58-A.

(2) The documents referred to in
clauses (a) and (b) of sub-rule (1) shall be
duly signed by the Chairman of the Land
Management Committee but the document
referred to in clause (c) shall be signed by
the person so selected for admission of
land.

(3) The document referred to in subrule (1) shall then be forwarded to the
Assistant Collector-in-charge of the SubDivision along with-

(a) a copy of the proceedings of the
meeting of the Committee in which the
decision to settle land was taken; and

(b) a certificate from the Lekhpal
concerned to the effect that the particulars
of the land mentioned in the list are
correct, and that the admission to the land
is in accordance with the provisions of the
Act and the Rules.

(4) The Assistant Collector in-charge
of the Sub-Division shall, on receipt of the
documents, referred to in sub-rule (3)
scrutinize the decision taken by the
Committee and if he is satisfied that the
decision of the Committee is in accordance
with the Act and the rules made thereunder,
he shall record his approval on the list in
Z.A. Form 57-B and return the papers to
the Land Management Committee within a
week of its receipt from the Chairman with
the direction that the possession may be
delivered to the lessees and the report of
the mutation be submitted to the Supervisor
Kanungo by the lekhpal immediately after
delivery of possession.

(5) If the Assistant Collector in-charge
of the Sub-Division finds that the whole or
part of the decision taken by the Committee
is not in accordance with the provisions of
the Act and Rules, he shall record his
disapproval on the list in Z.A. Form 57-B
and return the papers to the Chairman.

177. - (1) A certificate of admission to
land under Section 195 to 197 may be
attested by any Revenue Officer not below
the rank of a Supervisor Kanungo.

(2) Before attesting the certificate of
admission, the Revenue Officer shall satisfy
himself that-

(a) the provisions of Rules 173 to 176A have been followed ; and

(b) the land leased out is not a part of
the land which has been reserved for
planned use.
736 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) If the revenue officer finds that
the conditions laid down in sub-Rule (2)
have not been observed, he shall refer the
matter,
to
the
Assistant
Collector
incharge
of
the
Sub-Division
for
necessary action.

20. If the Chief Revenue Officer
after
examination
of
documentary
evidence has recorded his satisfaction
that
the
aforesaid
Rules
were
not
followed in the allotment made to the
petitioners, this Court has no reason to
disbelieve this observation in the order
impugned as the findings of fact recorded
by the Chief Revenue Officer have not
been
disputed
specifically
in
the
pleadings in the writ petition.

21. This Court has also considered
the argument raised by the learned
standing counsel that under Section 28(C)
of the Act of 1947, prior approval of the
Collector in writing should have been
taken before allotment of Gaon Sabha
land to the petitioners. The relevant
Section
28(C)
is
being
quoted
hereinbelow:-

"28-C. Members and officers not to
acquire interest in contracts, etc., with
Bhumi Prabandhak Samiti.-

(1) No member or office bearer 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 otherwise 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 contract 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 based upon a transaction
in contravention of the provisions of
sub-section (1)."

22. In U.P. Awas Evam Vikas
Parishad
Vs.
Friends
Corporation
Housing Society Ltd., (1995) Sup 3 SCC
456, the Supreme Court has observed
that there is a distinction between
permission
or
"prior
approval"
or
"approval".
The
difference
between
approval and permission is that in the
first case the action hold good until it is
disapproved, while in the other case it
does
not
become
effective
until
permission
is
obtained.
No
prior
permission in writing was taken from the
Collector to allot and deliver the
possession of Gaon Sabha land to the
petitioners or their family members.

23. This Court finds no good ground
to
show
interference
in
the
order
impugned.

24. The petition is dismissed.

25. No order as to costs.
----------
2 All. Exec. Committ. of The Thauri Edu. Trust & Anr. Vs. Addl. Commissioner (J) Ayodhya
 Mandal, Ayodhya & Ors.
737
(2021)02ILR A737
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 2995 of 2021

Exec. Committ. of The Thauri Edu. Trust &
Anr. ...Petitioners
Versus
Addl. Commissioner (J) Ayodhya Mandal,
Ayodhya & Ors. ...Respondents

Counsel for the Petitioners:
Sridhar Awasthi

Counsel for the Respondents:
C.S.C., Ajay Pratap Singh, Pankaj Gupta

Civil Law-Alternative remedy-where rights
and liabilities determined under statuteremedy provided in the statute-no gross
injustice in the impugned order for court
to exercise judicial review.

W.P. dismissed. (E-7)

List of Cases cited: -

1. Balkrishna Ram Vs U.O.I. & anr., 2020 (2)
SCC 442,

2. L. Chandra Kumar Vs U.O.I.; 1997 (3) SCC
261

3. St. of Tripura Vs Manoranjan Chakraborty &
ors.; 2001 (10) SCC 740

4. U.O.I. Vs St. of Haryana & anr.; 2000 (10)
SCC 482

5. Gujarat Agro Industries Co. Ltd. Vs. Municipal
Corporation of the City of Ahmedabad; 1999 (4)
SCC 468

6. Shyam Kishore Vs Municipal Corporation of
Delhi; 1993 (1) SCC 22
7. N.P. Ponnuswami Vs Returning Officer, AIR
1952 SC 64

8. Mool Chand & ors. Vs D.D.C. & ors.; 1995 (5)
SCC 631

9. Ram Adhar Vs Ram Roop Singh; 1968 (2)
SCR 95

10. Chattar Singh & ors. Vs Thakur Pal Singh
1975 (4) SCC 457

11. Satyanarayan Prasad Sah & ors. Vs St. of
Bih. & anr. 1980 Supp SCC 474

12. Bibi Rahmani Khatoon & ors. Vs Harkoo
Gope & ors. 1981 (3) SCC 173

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

(Oral)

1. Heard Sri Sudeep Seth, learned
Senior Advocate, assisted by Sri Sridhar
Awasthi,
learned
counsel
for
the
petitioners, Sri Upendra Singh, learned
Standing Counsel, Sri Ajay Pratap Singh,
learned counsel appearing on behalf of
respondent nos.3 and 4 and Sri Pankaj
Gupta, learned counsel appearing on behalf
of the respondent no.6.

2. This petition has been filed
challenging the order dated 02.03.2020
passed by the Additional Commissioner
(Judicial), Ayodhya Mandal, Ayodhya in
Appeal No.01825 of 2019: The Thauri
Educational
Trust
Vs.
Intermediate
College, Thauri and others, and also the ex
parte order dated 06.01.2015 passed by the
respondent no.2-Sub Divisional Magistrate,
Musafirkhana, District Amethi in Case
No.285/38/60/107/32 under Section 229-B
of the U.P.Z.A. & L.R. Act: Intermediate
College Thauri Vs. State of U.P. and
others. The petitioner also prays for
mandamus to be issued to the Sub-