Phool Singh vs Tulai Ram Gangwar

For proper understanding, the predatory note of the petition is proliferated stating that proceeding under the provisions of U. P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter called as the Act) were initiated against the father of the petitioner and the Prescribed Authority vide its judgment and order dated 8th June, 1994 declares O. 630 hectares land as surplus (Annexure1). Being aggrieved the State preferred an appeal against the said judgment and order dated 8th June, 1994. During the pendency of appeal, petitioner''s father died and petitioner was substituted in his place. The Appellate Authority decided the said appeal vide its judgment and order dated 1051995 declaring 2.422 hectares land as surplus (Annexure2). Being aggrieved and dissatisfied, petitioner filed writ petition No. 18840 of 1995 before this Court challenging the said judgment and order and this Court vide its order dated 1471996, passed the following interim order :

"Until further orders of this Court, the operation of the impugned order dated 1051995 shall remain stayed."

The aforesaid order dated 14th July, 1995 was communicated to the opposite party No. 1 on 17th July, 1995 and to other respondents in this contempt petition on 19th July, 1995 (Annexure3A and 3B). It appears that the High Officials of the State issued directions to the effect that the land which has been declared surplus under the provisions of the Act be allotted to Harijans and other landless persons without any delay. In order to comply with the said direction the respondents herein acted in such a enthusiasm that they tried to dispossess the petitioner from the said land, even by circumventing the order of this Court passed on 14th July, 1995 and in pursuance of the said nefarious desire some of the opposite parties herein went to the village of the petitioner on 22nd July, 1995 and prepared a list of persons to whom the land of the petitioner could be allotted.

Petitioner, being very much vigilant, came to know about the contemptuous activities of the opposite parties and he lodged complaints immediately on 23rd July, 1995 to various authorities, (Annexure6). Petitioner also filed the instant petition before this Court alleging that the opposite parties tried and are even now trying to dispossess the petitioner from the land in dispute, in spite of the fact that the ad interim ex parte order passed by this Court on 1471995 was still in force. Petitioner also annexed a certificate dated 2371996, issued by the village Pradhan and Chairman of Land Management Committee (hereinafter called the LMC) to the effect that the LMC had not passed any resolution, to allot the land of the petitioner to the Harijans and other landless persons, till that date. It has further been stated in the said certificate that Tehsildar had come on 2271995 to the village and prepared a list of persons, who could be allotted the land of the petitioner, which had been declared surplus (Annexure8).

A large number of landless persons belonging to the same village filed applications on 26th and 27th July, 1995 before the District Magistrate, Shahjahanpur, requesting that their names should also be included in the said list prepared by the Tehsildar on 22nd July, 1995. The District Magistrate made an endorsement on the said applications directing the SubDivisional Magistrate Tilhar, opposite party No. 1, to consider the case of the said applicants and to give preference to the landless Harijans while allotting the said land. In the said applications, reference of the land of the petitioner, which is duly covered by the interim order of this Court dated 14th July, 1995, has specifically been made. It is also clear from the record that the said applications were received by the opposite party No. 1 on 26th and 27th July, 1995 as the endorsement has been made on the said applications by the office of the opposite party No. 1 (Annexures7A and 7B). The petitioner has also filed the copy of NamantarBahi (Mutation Register) belonging to his village, wherein at Serial No. 2 it has specifically been mentioned that the land of the petitioner has been declared surplus by the order of the Appellate Authority on 1051995, in case No. 229 of 1993 and the said endorsement was made on 571995. At serial No. 3 it has been mentioned that in respect of land of the petitioner, this Court has stayed the operation of the judgment and order dated 1051995 (Annexure2). The said endorsement was made on 22nd July, 1995 (Annexure4). Thus, it is crystal clear that so far as the land of petitioner''s village is concerned, there had been no mutation proceedings, whatsoever, between 571995 and 2171995, as both these orders had been endorsed consecutively. Had there been any mutation proceedings between the said two dates, it should have been entered in the Mutation Register between the aforesaid two entries and the latter entry could not have been made at Serial No. 3.

Being, satisfied from the averments of the petitioner, this Court issued show cause notice to opposite party No. 1 to explain as to why he should not be prosecuted and punished for willful defiance of the order dated 1471995, passed by this Court. Notices were not issued to other respondents as they were not parties in writ petition. In reply, opposite party No. 1 filed his counter affidavit, wherein, it was contended that all the formalities of allotment of the land in dispute had been completed prior to 14th July, 1995, thus the said interim order was meaningless. On the direction of this Court, respondent No. 1 remained present in the Court and produced the original record. Respondent No. 1 tried to justify the attempt of forcible dispossession of petitioner, on the following factual matrix :

I On 5th July, 1995 an agenda was prepared which was issued to all the members of the LMC of the village of the petitioner, asking them to attend a meeting scheduled to be held on 12th July, 1995 at 12 O''clock in the noon (AnnexureCAV);

II The meeting of the LMC was held on 1271995 at 12 O''clock and it resolved to allot the land in dispute among six landless persons (Annexure CAVI);

III The said Resolution allotting the land to the landless persons was sent to Tehsildar, Tilhar on the same day i.e. 12th July, 1995 (Annexure CAVII);

IV Tehsildar, Tilhar did not accept the Resolution, passed by the LMC but after seeing the entire record, he prepared his own proposal on the same day and submitted his report to the SubDivisional Magistrate, opposite party No. 1 on the same day i.e. 12th July, 1995 (Annexure CAVII);

V SubDivisional Magistrate, opposite party No. 1 accepted the said Resolution and Report submitted by the Tehsildar, Tilhar on the same day i.e. 12th July, 1995 (Annexure CAVIII); and

VI The land had been allotted to six landless persons of the same village and mutation has also been entered in their favour on the same day i.e. 12th July, 1995 (Annexure9 and CAVIII).

Opposite party No. 1 while answering Court''s question stated that the distance between village of the petitioner and Tehsil Head Quarter, Tilhar was 32 Kms. The most vociferous submission of Sri M. D. Singh Shekhar, learned counsel for the petitioner has been that all the necessary formalities had been completed by the opposite parties in 5 hours, i.e. from 12 noon to 5 p.m. on 12th July, 1995, which is humanly impossible. And thus, the only logical conclusion, which can be drawn by any reasonable and prudent person, is that all the said entries/record has been forged showing the same antedated. This has been done with an ulterior motive to circumvent the order passed by this Court on 14th July, 1995, just to satisfy the whims of the superior officials, who were insisting to ensure the enforcement of 20 points programme of the State Government.

Opposite Party No. 1, who was confronted with the factsituation and was asked to explain as to how it was possible to complete all the formalities, from passing resolution by the LMC to record mutation in favour of the allottees, only in five hours could not furnish any explanation, whatsoever. His only case in the counter affidavit had been that the petitioner was still in possession of the land in dispute. This cannot be a satisfactory explanation. Had the petitioner not been vigilant and brought this petition, respondent No. 1 could have executed his will even by dispossessing the petitioner from the land in dispute. Opposite Party No. 1, when asked, could not give any explanation as under what circumstances the mutation has been recorded in favour of the six allottees on 12th July, 1995 itself particularly, when petitioner is still in possession of the land in dispute. It is in flagrant violation of the mandate of the Act.

I Section 12A of the Act provides that the tenure holder can give the choice or revised choice of land, he would like to retain within his ceiling limits.

II Section 14(3) of the Act provides that once the Collector has taken the possession of land, it would stand transferred and vest in the State Government free from all encumbrances and all rights, title and interests of the tenureholder shall, with effect from such date, stand extinguished.

Thus it is clear that settlement in favour of any person cannot be made under Section 27 of the Act unless the possession of the surplus land has been taken and the said land has vested in the State Government. In the instant case neither the choice was taken nor the possession was taken and mutation entries have been recorded. Paragraph13 of the counter affidavit reads as under :

"That the Tehsildar inspected the aforesaid Proposal/Aakar Patra 57 Kha prepared by the Land Management Committee and disagreed with the same and on the same date i.e. on 1271995 prepared his own proposal of allotment and produced the same for approval before the deponent which was duly approved by the deponent on 1271995..."

This itself falsifies the case of the respondent No. 1 as it is not in consonance with the scheme of the Act. It is also contrary to the procedure provided under the provisions of the U.P. Zamindari and Land Reforms Rules, 1952, which are applicable when LMC makes the allotment, particularly, Rules 174 to 176A. Rule 175 specifically provides for the participation of the prospective allottees, which is nonexistence here in this case. The provisions of the said Rules are mandatory. Shiv Shambhu v. State 1888 AWE (Rev) 43. Rule 175(4) reads as under :

"The Assistant Collector in charge of the SubDivision shall, on receipt of the documents,.. 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 57B 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 superior Kanungo by the Lekhpal immediately on the delivery of possession."

Subrule (5) of Rule 175 provides that if the SubDivisional Officer does not agree with the resolution of the Committee, he should return the papers to the Chairman of the Committee after recording his disapproval.

Subrule (4) of Rule 176A, further provides that in case the SubDivisional Officer, has disapproved a proposal of allotment of land, the Committee should decide the matter afresh. Thus Tehsildar does not have any power to pass any resolution and question of mutation would arise only after the allottees are put in possession. Further there is no explanation for contradicting the certificate issued by the Pradhan and Chairman LMC (Annexure8), wherein it has been stated that no resolution had been passed by the LMC regarding the allotment of the petitioner''s land in favour of landless persons till 23rd July, 1995. The same unsatisfactory position remained regarding the Namantar Bahi (Annexure4), as stated earlier, has there been any mutation in favour of any person between 5th July and 21st July, 1995, the two orders could not have been endorsed consecutively. This itself is a conclusive proof of forging the documents. No doubt, the entries made in the revenue record are admissible under the provisions of Section 35 of the Evidence Act, 1872, but the same are rebuttable. Thus the case of the respondent No. 1 is unrealistic and utterly unrelated to factsituation.

Therefore, I am of the view that all these documents from passing resolution by LMC to recording mutation in favour of six landless persons, purported to have been made on 12th July, 1995 are forged and fabricated. The filing of the same before this Court, amounts to gross contempt of Court. Thus in totality of circumstances, I hold the opposite Party No. 1 guilty of committing the gross contempt of Court as he has forged and fabricated the documents with the help of others, just to satisfy the whims of his superiors and for that he had not shown any hesitation, whatsoever, and in his zeal to circumvent the order passed by this Court, he had gone to the extent of fabricating record. It further indicates that the intention of respondent No. 1 was to dispossess the petitioner on the strength of the antedated and forged documents. It flows from the same that intention of respondent had been to defeat the order of this Court passed on 1471995, to become the blueeyed boy of the Government.

There can be no scheme or development programme of any State, or Authority, which may permit willful defiance of any order passed by any competent Court of law. The statutory functionaries cannot be permitted to volteface, exercise the power to defeat the order passed by the Court. In the case of T. R. Dhananjaya v. J. Vasudevan 1995 (6) JT 234, the Supreme Court has observed as under :

"It is no longer open to the Government to go behind the orders and truncate the effect of the orders passed by this Court by hovering over the rules to get round the result, to legitimise legal alibi to circumvent the orders passed by this Court."

Opposite party No. 1 had tried to take cover behind the notion of enforcing the State Policy. It is not tenable at all. Opposite Party No. 1 did not feel any remorse. He did not express any sorrow for his contumous act. He did not offer any apology in the beginning on the contrary tried to throw dust in the eyes of this Court by filing forged and fabricated document to protest himself. The opposite party No. I lacks the candours and his conduct has been unbecoming of a responsible officer. It was only on the next day of hearing i.e. on 29th September, 1995, after the opposite party No. 1 could understand, that he was likely to be convicted for committing contempt, he tendered unconditional apology by filing an affidavit, which is undoubtedly after thought and can safely be termed as paper apology and not a heart felt apology.

In the case of T. M. A Pai Foundations v. State of Karnataka 1995 (4) SCC 1, the Supreme Court has observed that unconditional apology tendered by the contemner may be farcial. In a case, where the act of contrition of the contemner flouting the orders of the Court is not bona fide but a mere ruse to escape punishment, having failed to meet the charges of contempt, a sentence of imprisonment is necessary in the ends of justice. The Court further observed as under :

"It is equally necessary to erase an impression which appears to be gaining ground that the ''Mantra'' of unconditional apology is a complete answer to violations and infraction of the order of this Court."

Undoubtedly, apology is not a weapon of defence to purge the guilt and it can be allowed to be ignored, even in special circumstances.

(Vide K. J. Mehta v. State of Maharashtra 1995 Supp (2) SCC 503)

Accepting the apology in such a case, would amount to subscribing to the ''slapsay sorry and forget'' school of thought, in the administration of contempt jurisdiction.

(L. D. Jaikwal v. State of U. P. AIR 1984 SC 1374).

Tendering apology at a late state is not an apology but an act of a cringing coward. (Mulak Raj v. State of Punjab AIR 1972 SC 1197).

In such undeserving cases, Court cannot afford to be charitable in the administration of justice.

1n the case of Sevaka Perumal v. State of Tamil Nadu (1991) 3 SCC 471 : (AIR 1991 SC 1463), the Supreme Court observed as under :

".... undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats."

In the instant case, considering all the circumstances, it would be proper to reject his apology and punish him for committing the contempt of Court and censor his conduct. It is also settled law that the sentence of imprisonment is an exception while sentence of fine is the rule, (vide Smt. Pushpaben v. Naraindas V. Badiani AIR 1979 SC 1536).

Thus the contemner, opposite party No. 1 is sentenced to pay a fine of Rs. 2000 and in default, to undergo simple imprisonment for two weeks. The fine shall be deposited by the contemner in the Court of the Chief Judicial Magistrate, Shahjahanpur within four weeks from today.

A copy of this order shall from part of the Annual Character Rolls/Confidential Rolls of the opposite party No. 1 Registry of this Court is directed to send copies of this order to the District Magistrate and Chief Judicial Magistrate, Shahjahanpur, and the concerned Authorities are directed to carry out the spirit of this order strictly in accordance with law. Petitioner shall also be entitled to a sum of Rupees one thousand (Rs. 1000) from the contemner as costs.

Order accordingly.