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BRIJ BRHARI LAL versus STATE & OTHERS

High Court of Judicature at Allahabad

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Brij Brhari Lal v. State & Others - WRIT - C No. 1097 of 1993 [2003] RD-AH 373 (14 October 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.34

Civil Misc. Writ Petition No.1097 of 1993.

Brij Behari Lal ......... Petitioner

Versus

State of U.P. & Ors ......... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. D.P. Gupta, J.

( By Hon. Dr. B.S. Chauhan, J.)

This writ petition has been filed for quashing the impugned order dated 09.11.1992, passed by the District Collector, Allahabad cancelling the allotment made in favour of the petitioner, an agricultural land for being used for the purpose of residential land without prior sanction of the authority concerned and on the ground that allotment had not been made by the Competent Authority initially, and for quashing the proceedings in Case No. 780 of 1992, State Vs. Brij Behari Lal, pending before the Prescribed Authority, A.C.M.II.

Facts and circumstances giving rise to this case are that the petitioner claims that he was granted a patta on 01.04.1965 under the provisions of U.P. Tenancy Act, 1939, hereinafter called ''the Act 1939'.  The said allotment made was in respect of the land in dispute measuring .0023 hectare in village Beli Uperhar, Tehsil Chail, District Allahabad for agricultural purpose. The petitioner applied for permission under Section 65 (1) read with Section 3(8) of the Act 1939 for raising the construction of a residential house in the said land and the petitioner claimed that it was so granted. The land still exists in the revenue record as an agricultural land. First time, a letter dated 14.07.1987 was issued to the petitioner by the District Collector stating that the patta was granted to the petitioner for agricultural purposes, though in violation of the terms of allotment, he has raised the construction without getting the land use changed and, thus, the patta was liable to be cancelled. The petitioner submitted his reply and further proceedings were not taken at that time. Subsequently, again on 25.08.1992, petitioner was issued a fresh notice on the same grounds which the petitioner submitted reply on 03.09.1992 and after considering the same, impugned order has been passed cancelling the said patta. Hence this petition.

Shri B.P. Srivastava, learned counsel for the petitioner has vehemently urged that the order impugned is liable to be quashed for the reason that it is without jurisdiction and the petitioner can be dispossessed only resorting to the provisions of Section 172 of the Act 1939 and not otherwise.  He also placed two judgments of this Court arising out of the same village, raising similar issues wherein this Court has held that ejectment for detrimental act for breaching of a condition of an allotment letter, proceedings have to be resorted under the said Act 1939 and, thus, the order of the District Collector in similar cases were set aside and, therefore, he submitted that as the case is squarely covered by the judgment cited by him, no further argument was required nor other issue is to be decided and the petition deserves to be allowed.

On the other hand, learned Standing Counsel has submitted that it has specifically been mentioned in paragraph 4 of the counter affidavit filed by the State that as the petitioner had been working as a Naib Tehsildar, he was not eligible to make an application for allotment of the agricultural land in his favour. He obtained the said patta by misusing his official position. The issue had been agitated before the Lok Sabha and the State Assembly from time to time and State Government issued instructions to take action against such officers who had taken pattas illegally. In the counter affidavit, it has also been mentioned that the patta was executed by the Patwari/Lekhpal and the mutation in the revenue record has been made only on the basis of the said allotment, though the Competent Authority was only the District Collector to make allotment. As the patta had never been issued by the Competent Authority under the provisions of the Act 1939, the petitioner cannot have any grievance whatsoever and admittedly, as there is no permission to change the land use by any Competent Authority  and the petitioner himself has admitted it that he has raised the construction  without getting the land used changed, the petitioner is not entitled for any relief whatsoever. The judgment cited by the petitioner of other persons of the same village are quite distinguishable as their allotments were made by the Competent Authority. In the instant case, as the patta has not been granted under the Act by the Competent Authority, no relief can be granted to him. Rejoinder affidavit has not been filed by the petitioner denying the averments made in the counter affidavit. More so, it has been submitted by learned Standing Counsel that the provisions of the Act 1939 are not attracted in this case at all, as it is governed by the Government Grants Act, 1895, as amended by Uttar Pradesh Legislature from time to time.

It has further been submitted that as the initial allotment made in favour of the petitioner has been made in the collusion with the Lekhpal who was not the competent authority and there is no allotment in favour of the petitioner by the District Collector, i.e. the competent authority under the Act 1939, petitioner is not entitled for any equity relief before the writ Court. The petitioner has not filed the copy of the patta rather filed the photocopy of the acceptance of patta signed by the petitioner and the Lekhpal of the area, not by the District Collector. It has been submitted that the patta itself has been void ab initio being granted illegally, entering the name of the petitioner in the revenue record  or acceptance of patta by the Lekhpal, are inconsequential and, thus, the petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.  

Admitted facts are that the petitioner has nowhere mentioned in the petition that he had been granted patta by the District Collector, the competent authority. What he says in paragraph 3 of the writ petition is that he was granted patta by the Government Estate Department, Allahabad without specifically mentioning the authority concerned. More so, it has further been submitted by the petitioner that the Officer Incharge, Government Estate had communicated him permission to raise constructions but no such order has been placed on record rather it is submitted that the said document had been destroyed in heavy floods of 1971. There is a document dated 21.04.1971 showing the minutes of meeting of the Controlling Authority, Regulated Area, Allahabad, wherein it has been mentioned that as the sanction plan for construction of the house remained pending for more than three months, deemed sanction of the plan be considered and the construction already made be compounded on penal rates but that document is of no use because the basic issue involved herein is as to whether the petitioner has ever obtained the permission of the District Collector to change the land use. The order impugned is basically based on three grounds; firstly, change of land use without permission; secondly, allotment being not made by any competent authority; and thirdly there was no provision under the Act/Rules to regularize the constructions, already made.

In this petition, petitioner has not taken any ground to these effects challenging the impugned order of cancellation that lease had not been granted by the Competent authority, i.e. the District Collector. Learned counsel for the petitioner could not point out any pleading in the writ petition challenging the order on that count.

It  is settled proposition of law that  a party has  to plead the case and produce/adduce  sufficient   evidence   to    substantiate his submissions  made in the petition and in case the pleadings are not complete, the Court is under no obligation  to  entertain the pleas. In  Bharat Singh Vs.   State  of Haryana, AIR 1988 SC  2181, the Hon'ble Supreme Court has observed as under:-

"In  our opinion, when a point, which  is ostensibly a point of law is required to be  substantiated  by  facts,  the  party raising  the  point,  if he is  the  writ petitioner,  must  plead and  prove  such facts  by evidence which must appear from the  writ  petition  and  if  he  is  the respondent,  from the counter  affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded.  In a writ petition or   in the   counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."        

Similar view has been reiterated in M/s. Larsen &  Toubro  Ltd.  Vs.  State of Gujarat & ors., AIR 1998 SC 1608; National  Building Construction  Corporation Vs. S. Raghunathan  & ors., AIR  1998  SC 2779;  Ram Narain  Arora  Vs. Asha Rani  &  ors.,  (1999) 1  SCC 141; Chitra Kumari Vs.   Union  of India & ors., AIR 2001  SC 1237;  and  State  of U.P.  & ors.  Vs.   Chandra Prakash Pandey, AIR 2001 SC 1298.              

In   Atul   Castings   Ltd.   Vs. Bawa  Gurvachan  Singh,  AIR 2001 SC 1684, the  Hon'ble  Apex Court observed as under:-    

"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."                        

Similar view has   been reiterated in Vithal N. Shetti  &  Anr.  Vs.   Prakash   N. Rudrakar & ors., (2003) 1 SCC 18.                

 There is no ground in the petition challenging the said finding of fact. The main thrust of the argument of the petitioner was non compliance of the provisions of Section 172 of the Act 1939. As the petitioner has not challenged the said finding of fact taking any ground or making any pleadings in the petition, it amounts to admission of the findings recorded by the learned District Collector and there is no scope for us to examine its correctness. Again and again, whatever question put to the learned counsel for the petitioner, the parrot like reply came that the order passed by the District Collector is without jurisdiction being not in accordance with the provisions of Section 172 of the Act 1939. Even if it is so, in view of the fact that the petitioner has not mentioned anywhere in the petition that he had been granted patta by the competent authority under the Act 1939 nor he filed rejoinder affidavit to the allegations made by the State in counter affidavit that the patta had never been issued by the competent authority rather it was issued by the Patwari in collusion with the petitioner and as the petitioner himself had been Naib Tehsildar during that period and was ineligible to apply for allotment what to talk of issuing allotment, the conduct of the petitioner disentitled him for any relief whatsoever.

It is settled legal proposition of law that if the order initially is bad, it cannot be made good by efflux of time or by any subsequent improvement. In Upen Chandra  Gogai Vs. State of Assam and & Ors., (1998) 3 SCC 381, the Hon'ble Apex Court held that a writ Court should not validate an action which was not lawful at inception.

Writ jurisdiction is a discretionary. It is not issued merely because if it is lawful to do so. Once a factual stand is taken, it cannot be changed on any legal proposition whatsoever nor it is permissible for the Court to examine the correctness of the findings of fact unless it is found to be perverse being based on no evidence or contrary to evidence, as the writ Court exercises its supervisory jurisdiction and not of appellate forum. The purpose of the writ Court is not only to protect a person from being subjected for violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. However, being the power discretionary, the Court has to balance competing interest, keeping in mind that interest of justice and public interest can coalesce in certain circumstances. (Vide Champalal Binani Vs. Income Tax Commissioner, West Bengal, AIR  1970 SC 645; Ramniklal N. Bhutta Vs. State of Maharastra, (1997) 1 SCC 134; Chimajirao K. Shrike Vs. Oriental Fire and General Insurance Co. Ltd., AIR 2000 SC 2532; Ganpatrao Shama Prashant Raje Vs. Ganpat Rao, AIR  2000 SC 3094; LIC of India Vs. Asha Goyal, AIR  2001 SC 549; Roshandeen Vs. Preeti Lal, AIR  2002 SC 33; S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. & Ors., 2003 (4) Supreme 44; and Chandra Singh Vs. State of Rajasthan & Anr. JT 2003 (6) SC 20).

More so, it is settled legal proposition that writ Court should not quash the order if it revives a wrong and illegal order. [Vide Gadde Venkateswara Rao Vs. Government of Andhra Pradesh & Ors., AIR  1966 SC 828; Maharaja Chintamani Saranath Shahdeo Vs. State of Bihar & Ors., (1999) 8 SCC 16; Mallikarjuna Muddnagal Nagappa & Ors. Vs. State of Karnataka & Ors., (2000) 7 SCC 238; and Chandra Singh (supra)].

In A.M. Allison Vs. B.L. Sen, AIR 1957 SC 227, the Apex Court held that writ Court can refuse to exercise its jurisdiction as the writ proceedings cannot ''of course', if it is satisfied that there has been no failure of justice.

In Dal Singh Vs. King Emperor of India, 1917 PC 25, the Privy Council held that in case the authority/court has done substantial justice, the appellate court may not interfere even if the order was passed with jurisdiction or suffers from some kind of illegality. Same view has been reiterated in Mohammad Swalleh & ors. vs. IIIrd Addl. District Judge, Meerut, AIR 1988 SC 94; and Shree Jain Swetambar Terapanthi Vid (s) Vs. Phundan Singh & ors., AIR 1999 SC 2322.

In Collector, Land Acquisition, Anantnag Vs. Mst. Katiji & ors.,AIR 1987 SC 1353, the Hon'ble Apex Court held as under:-

"............When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done........"

Therefore, Court has to examine the case with this angle also bearing in mind that cause of substantial justice cannot be defeated on mere technicalities.

To sum up, admittedly, there is no document on the record to show that the petitioner has ever been granted the lease by competent authority nor there is any pleading to this effect in the writ petition. The respondent-State has filed the counter affidavit making allegations that the petitioner at the relevant time was a Naib Tehsildar and was not eligible even for making such an application for allotment, though he obtained the patta from the Patwari, not from the competent authority under the law, by misusing his official position. The said allegations go unrebutted as the petitioner did not file any rejoinder affidavit. The order impugned is based on the ground that the patta had never been issued by the competent authority and there is no ground in the writ petition challenging that finding.

In view of the admitted position, we find no ground to interfere with the impugned order. The case does not represent any special feature warranting judicial review of the order impugned by a writ Court. Petition is accordingly dismissed.

14.10.2003

AHA

                                                                                                                                                                                                       


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