# Surendra Kumar v. State of U.P. and

- **Citation:** (2013) 1 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-12
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-kumar-v-state-of-u-p-and-42425
- **Pages:** 4

## Headnote

U.P. Panchayat Raj Act, 1947 Section 28
(c) readwith U.P. Zamindari and Land
Reforms Act 1950, Section 198 (1) (c)-
cancellation of patta granted to land less
agricultural labor belonging to backward
class-living
below
the poverty
linecancellation on basis of Lekhpal report
on ground when the patta was granted
the petitioner was office bearer of Bhumi
Prabhandak Samiti-hence in view of
provisions contained under section 28
(c) of Panchayat Raj Act not eligible to
get the patta-same is outcome of fraudheld-court below committed no illegality
or infirmity-petition dismissed.

## Text

1 All] Surendra Kumar V. State of U.P. and others
67

10. Considering peculiar facts and
circumstances of the case in particular the
fact
that
weight
of
the
substance
recovered is in close proximity to the
weight provided for less than commercial
quantity, application for grant of bail to
the applicant is allowed.

11. Bail to the satisfaction of the
court concerned.

12. Heavy surety.
---------
ORIGINAL URISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.12.2012

BEFORE
THE HON'BLE ANIL KUMAR, J.

Misc. Single No. - 6998 of 2012

Surendra Kumar

 ...Petitioner
Versus
State Of U.P. Thru Collector, Sitapur &
Others

 ...Respondents

Counsel for the Petitioner:
Sri S.M. Waseem

Counsel for the Respondents:
C.S.C.
Sri R.N. Gupta

U.P. Panchayat Raj Act, 1947 Section 28
(c) readwith U.P. Zamindari and Land
Reforms Act 1950, Section 198 (1) (c)-
cancellation of patta granted to land less
agricultural labor belonging to backward
class-living
below
the poverty
linecancellation on basis of Lekhpal report
on ground when the patta was granted
the petitioner was office bearer of Bhumi
Prabhandak Samiti-hence in view of
provisions contained under section 28
(c) of Panchayat Raj Act not eligible to
get the patta-same is outcome of fraudheld-court below committed no illegality
or infirmity-petition dismissed.

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Sri S.M. Waseem , learned
counsel for the petitioner, learned State
Counsel as well as Sri R.N.Gupta, learned
counsel appearing on behalf of Gaon Sabha.

2. Facts, in brief , of the present case
are that the land recorded in Gata No. 5110.101 and 571-0.229 as per version of the
petitioner was allotted to him on 11.8.2004
by the Land Management Committee of the
village Panchayat under Section 198(1) (c )
of the U.P. Zamindari Abolition and Land
Reforms Act, 1950 ( hereinafter referred to
as 'Act') as he is a landless labourer,
belonging to backward class living below
the poverty line.

3. However, the same was cancelled
on the basis of Lekhpal report dated
19.3.2008 ( Annexure no.3) by opposite
party no.3/Additional Collector, Sitapur on
29.6.2011.

4. Aggrieved by the said fact,
petitioner for redressal of his grievance ,
filed a revision ( Revision No. 3 of 2010-11,
Surendra Kumar Vs. State of U.P. and
others) under Section 333 of the Act,
dismissed
by
opposite
party
no.2/
Additional
Commissioner(
Judicial)
Lucknow Division, Lucknow vide order
dated 7.9.2012 ( Annexure no.4).

5. Learned counsel for the petitioner
has challenged the impugned orders on the
ground that the same are illegal arbitrary in
nature as well as the in contravention of the
facts and circumstances of the case because
there is no irregularities or infirmity in
allotting the land to him by way of patta/
lease as he falls under the backward
68 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
category as per the provisions provided
under Section 198 of the Act.

6. He further submits that the action
on the part of the opposite party no.3 to
cancel the same in view of the provisions as
provided under Section 28 (C ) of the U.P.
Panchyat Raj Act is an illegal exercise and
contrary to law as the same cannot be
cancelled in view of the said provisions as
per the facts and circumstances of the case.
In support of his arguments , he has placed
reliance on the judgment of this Court in the
case of Govind and others Vs. Sub-
Divisional Officer , Machlishahar , District
Jaunpur and others, 1986 All.C.J. 479,
and Jiya Ram and others Vs. State of U.P.
and others 2012 (2) ADJ 683 Accordingly,
it is submitted by learned counsel for the
petitioner that the impugned orders are
illegal , arbitrary in nature, liable to be set
aside.

7. Learned State Counsel as well as
Sri R.N.Gupta, learned counsel appearing
for Gaon Sabha submits that as the
petitioner was the member of Land
Management Committee at the time of
allotment of land by way of patta/ lease
hence the same cannot be granted to him in
view of the provisions as provided under
Section 28-C of the U.P. Panchyat Raj Act,
1947 hence there is neither any illegality or
infirmity in the impugned orders under
challenge in the present writ petition.

8. I have heard the learned counsel for
the parties and perused the record.

9. From the perusal of the pleadings,
as made by the petitioner in the present writ
petition ( specially in para-8) undisputed
facts are that the petitioner was a member of
Land Management Committee at the time
of allotment of land by way of patta/ lease,
so in view of the said fact and as per the
provisions of Section 28-C of U.P.
Panchayat Raj Act, he could not have been
alloted the land in question without
permission in writing of the Collector as the
said section provides as under:-

"28-C. Members and officers not the
acquire interest in contracts etc. with Bhumi
Prabandhak Samiti,-- (1) No member or
office bearer of Gaon 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, exchange, contract or
employment with , by , or on behalf of the
Samiti concerned."

10. This Court in the case of Ram Pal
Singh and others Vs. The Board of
Revenue, U.P. Allahabad and others,
1981 RD 333 after taking into consideration
the provisions as provided for allotment of
land by way of patta/ lease under Section
195, 197 read with Section 198 of the Act
and Section 28-C of the U.P. Panchyat Raj
Act held that the land cannot be allotted by
way of patta/ lease to the member or office
bearer of Gaon Panchayat or Bhumi
Prabandhak Samiti, otherwise than with the
permission in writing of the Collector .

11. Further in the case of Govind
(Supra) this Court has held as under:-

"From
the
aforesaid
statutory
provision , it is evident that no member or
office bearer of the Goan Panchyat or the
Bhumi Prabandhak Samiti can acquire or
deemed to acquire any interest in the
licence or lease except with the permission
in writing of the Collector. It is , thus clear
1 All] Surendra Kumar V. State of U.P. and others
69
that there must be a finding that the
petitioner has acquired any interest in the
lease. Simply , because some of the family
members of the Pradhan have obtained the
lease, it would not lead the inference that
the Pradhan has received some interest. In
other words the Sub-Divisional Officer must
record a finding as to whether the petitioner
has received any interest in the lease even
though it might have been obtained in the
name of some of the relations or family
members of the Pradahan or office bearers
of
the
Gaon
Panchayat
or
Bhumi
Prabandhak Samiti.

12. Thus, it is clear that land by way
of patta/ lease cannot be granted to any
members of the office bearers of Gaon
Panchyat or Bhubhi Prabandhak Samiti
without taking permission in writing of the
Collector, so there is no illegality or
infirmity in the impugned orders passed in
the present case

13. In the case of Jiya Ram and
others (Supra) this Court in para -17 has
held as under:-

"Moreover, allowing the collector to
initiate
suo
motu
proceedings
for
cancellation of allotment/lease at any time
would mean that the allotment would never
be final and there would always be danger
of its cancellation. This perhaps could never
be the intention of the legislator. The
limitation of three years as contained in
Appendix III of the Rules and five years
provided under Section 198(6) of the Act is
a well thought of as the aforesaid period of
time is sufficient enough either for the
person aggrieved to make a complaint
against the irregular allotment or for the
authorities to examine and verify the record
and to take action for cancellation suo motu
, if necessary."

14. As stated herein above, once it is
admitted by the petitioner himself that he is
a member of Gaon Sabha when the land
was allotted to him on patta/lease which
cannot be done in view of the provisions as
provided under Section 28-C of the U.P.
Panchayat
Raj
Act
then
in
that
circumstances once initial grant of patta in
his favour is without jurisdiction/ void ab
initio as he is not eligible for the same as per
the procedure as provided for grant of patta
rather the said act is nothing but amounts to
be outcome of fraud played on behalf of the
petitioner with oblique motive and purpose
only to get the land in question by way of
patta hence he cannot derive any benefit
from the law as laid down in the case of
Jiya Ram (Supra) as it is settled
proposition of law that if the court is
convinced that the order was wangled
through fraud or misrepresentation of such a
dimension as would affect the very basis of
the claim because fraud and justice never
dwell together. ( Frans at Jus Nunquam
Cohabitant) is a pristine maxim which has
never lost its temper over all these centuries.

15. In Smith V. East Elloe, Rural
Distt. Council (1956) L All ER 855 the
House of Lord held that the effect of fraud
would normally be to vitiate any act or
order.

16. In another case , Lazarus Estates
Ltd. V. Beasley,(1956) I ALL ER 341
Denning L.J. Said:

" No judgment of a court , no order of
a Minister, cant be allowed to stand if it has
been obtained by fraud . Fraud unravels
everything."

17. In the case of Indian Bank Vs.
Satyam Fibres (INDIA) Private Limited,
70 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
(1996) 5 Supreme Court Cases,550 Hon'ble
Supreme
Court
after
taking
into
consideration
above
two
judicial
pronouncement had held as under:-

" The judiciary in India also possesses
inherent power, specially under Section 151
CPC, to recall its judgment or order if it is
obtained by fraud on court. In the case of
fraud on a party to the suit or proceedings,
the court may direct the affected party to
file a separate suit for setting aside the
decree obtained by fraud. Inherent powers
are powers which are resident in all courts,
especially of superior jurisdiction. These
powers spring not from legislation but from
the nature and the constitution of the
tribunals or courts themselves so as to
enable them to maintain their dignity,
secure obedience to its process and rules,
protect its officers from indignity and wrong
and to punish unseemly behavior. This
power is necessary for the orderly
administration of the court's business.

Since fraud affects the solemnity,
regularity and orderliness of the proceeding
of the court and also amounts to an abuse of
the process of court, the courts have been
held to have inherent power to set aside an
order obtained by fraud practiced upon that
court.

18. In the case of S.P. Chengalvaraya
Naidu(dead) by LRs. V. Jagannath (dead)
by LRs. and others , 1994 (1) SCC 1
Hon'ble Supreme Court has held :-

" Fraud avoids all judicial acts,
ecclesiastical or temporal- observed Chief
Justice Edward Coke of England about
three centuries ago. It is the settled
proposition of law that a judgment or decree
obtained by playing fraud on the court is a
nullity and non exit in the eyes of law .
Such a judgment decree- by the first court
or by the highest court- has to be treated as
a nullity by every court, whether superior or
inferior. It can be challenged in any court
even in collateral proceedings".

19. For the foregoing reasons, I do no
find any illegality or infirmity in the
impugned orders under challenge in the
present writ petition thus lacks merits and is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2012

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No.8082 (SS) of 2003

Babu Ram

 ...Petitioner
Versus
State of U.P. And another

 ...Opposite Parties

U.P. Recruitment of Dependants of Govt.
Servants Dying in Harness Rule 1974,
Section
2(1)-
compassionate
appointment-petitioner being grand son
of deceased employee although can not
be terms of family-where the son of
deceased
employee
being
physically
handicapped unable to do any jobcertainly the petitioner being grandson
stepped to save the family for survivalbeing lineal decedent of deceased-heldentitle to get appointment.

Held: Para-7 and 8

I am of the view that the dependents,
who are placed even beyond the term of
'family', are definitely entitled to get the
appointment under the Rules, otherwise
the
purpose
of
framing
the
Rules
definitely shall be defeated, therefore, I
am of the view that the purposive
construction of the Rules would be to
extend the benefit of compassionate