# Ram Naumee v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 616
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-21
- **Case number:** Civil Misc. Writ Petition No. 48859 of 2007
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naumee-v-state-of-u-p-and-others-41942
- **Pages:** 6

## Headnote

C.S.C.
Sri Anuj Kumar

U.P.Z.A.
&
L.R.
Act-Section
198(3)
Cancellation of Patta-granted about 200
hectares of Pasture Land-objection that
Public utility land can not be subject
2 All] Ram Naumee V. State of U.P. and others
617
matter of Patta apart from other legal
flaw-rejected by both authorities below
on ground of limitation-ignoring the
aspect in view of law laid down by the
Apex Court in several decisions if lease
relate to public utility-the authorities
below ought to have take suo motoaction-order
not
sustainable-petititon
allowed with cost of Rs. 50000/ out of
which 10 thousand shall be given to
petitioner and remaining 40000/ shall go
in Gaon Sabha fund.

Held: Para 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.
Case law discussed:
2010 (109) RD 156; JT 2011 (1) SC 617; JT
1999 (5) SC 42; JT 2001 (6) SC 88

## Text

616 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
on half of the aforesaid sale consideration
i.e. Rs.16,000/- is payable as a deed of
conveyance.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. The petitioner has filed this writ
petition against the impugned order dated
7.8.2007,
passed
by
the
Additional
Collector (Finance & Revenue), Mathura
and the revisional order dated 29.3.2010,
passed by the Additional Commissioner,
Agra Division, Agra, determining the
deficiency in stamp duty treating the
instrument dated 4.7.2010 as a sale-deed.

2. The submission of the petitioner is
that
the
aforesaid
instrument
is
an
agreement of sale of immovable property
without possession and therefore, the
authorities have erred in charging the stamp
duty on the same treating it to be a saledeed. On an agreement or a memorandum
of agreement stamp duty in accordance with
Article 5 of Schedule 1-B of the Indian
Stamp Act is payable. Sub clause (b-1) of
Article 5 of Schedule 1-B of the Act
provides that an agreement relating to sale
of immovable property where possession is
not delivered shall be chargeable to stamp
duty as a conveyance No.23 clause (a) on
half of the amount of consideration as set
forth in the agreement. In other words, it
provides for charging stamp duty on half of
the amount of sale consideration set out in
the agreement.

3. Admittedly the instrument in
question is an agreement to transfer 2 Acres
50 Decimals of land without possession for
a
sale
consideration
of
Rs.32,000/-.
Therefore, in accordance with Article 5(b-1)
of Schedule 1-B of the Act, stamp duty on
half of the aforesaid sale consideration i.e.
Rs.16,000/- is payable as a deed of
conveyance.

4. The authorities below as such have
manifestly
erred
in
determining
the
deficiency in stamp duty on the aforesaid
instrument as a sale deed on the market
value. Accordingly, the impugned orders
cannot be sustained in law and are liable to
be quashed.

5. In view of the aforesaid facts and
circumstances of the case, the impugned
orders dated 7.8.2007, passed by the
Additional Collector (Finance & Revenue),
Mathura and the revisional order dated
29.3.2010, passed by the Additional
Commissioner, Agra Division, Agra are
quashed.

6. The writ petition is allowed with no
order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2011

BEFORE
THE HON'BLE PRAKASH KRISHNA,J.

Civil Misc. Writ Petition No. 48859 of 2007

Ram Naumee

 ...Petitioner
Versus
State Of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri Arun Kumar Singh

Counsel for the Respondent :
C.S.C.
Sri Anuj Kumar

U.P.Z.A.
&
L.R.
Act-Section
198(3)
Cancellation of Patta-granted about 200
hectares of Pasture Land-objection that
Public utility land can not be subject
2 All] Ram Naumee V. State of U.P. and others
617
matter of Patta apart from other legal
flaw-rejected by both authorities below
on ground of limitation-ignoring the
aspect in view of law laid down by the
Apex Court in several decisions if lease
relate to public utility-the authorities
below ought to have take suo motoaction-order
not
sustainable-petititon
allowed with cost of Rs. 50000/ out of
which 10 thousand shall be given to
petitioner and remaining 40000/ shall go
in Gaon Sabha fund.

Held: Para 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.
Case law discussed:
2010 (109) RD 156; JT 2011 (1) SC 617; JT
1999 (5) SC 42; JT 2001 (6) SC 88

(Delivered by Hon'ble 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 pasture land 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 laborer. Her husband
has already got three bighas of land besides
618 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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 pasture
land 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, land vested 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.
2 All] Ram Naumee V. State of U.P. and others
619

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 decision M.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 JT 1999(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.
620 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

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:
month

"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 land and 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
2 All] Dr. Pradyumna Singh V. The Chancellor, D.D.U.,Gorakhpur Univeristy and others
621
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.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE K. N. PANDEY, J.

Civil Misc. Writ Petition No.46071 of 2000

Dr. Pradyumna Singh
 ...Petitioner
Versus
The
Chancellor,
Din
Dayal
Upadhyay,Gorakhpur
Univeristy
and
others

 ...Respondents

Counsel for the Petitioner:
Sri O.P. Singh
Sri S.K. Rao
Sri A.K. Singh
Sri R.C. Yadav

Counsel for the Respondents:
Sri R.K. Ojha
Sri Dilip Gupta
C.S.C.

U.P. State Universities Act, Section 35(2)
readwith
Para
17.06
of
status
of
university-Dismissal of Principal-enquiry
conducted
in
accordance
with
lawinspite of full fledged opportunity the
petitioners tried his best to avoid the
disciplinary
proceeding-even
on
first
opportunity never raise voice regarding
non availability of supported documentsappellate
authority
confirmed
the
punishment
of
dismissal-considering
gravity of charges-writ court declined to
interfere.

Held: Para 24 and 25

The entire correspondence annexed to
the writ petition establishes that the
petitioner was only trying to avoid and