Ashok Bhushan, J.@mdashHeard Sri S. Alim Shah learned Counsel appearing for the Petitioners.
2. By this writ petition, the Petitioners have prayed for quashing the order dated 15th March, 2003 passed by Additional Commissioner, Agra
Division, Agra and the order dated 23rd March, 1998 passed by Additional Collector, Etah.
3. The Additional Collector, Etah vide his order dated 23rd March, 1998 cancelled the lease granted to the Petitioners exercising jurisdiction u/s
198 (4) of U.P. Zamindari Abolition and Land Reforms Act. A revision was filed by the Petitioners, which has been rejected by the Additional
Commissioner. The Petitioners were granted lease of plots No. 108, 113 and 115 after approval of the Sub-Divisional Officer dated 25th March,
1992. The Petitioners claim that Petitioners became bhumidhar with non-transferable right of the aforesaid plots by virtue of the aforesaid lease.
Respondent No. 5 filed an application u/s 198 (4) of the U.P. Zamindari Abolition and Land Reforms Act praying for cancellation of the lease
granted to the Petitioners. The grounds taken in the application was that aforesaid plots are recorded as ""Jangal Dhaka"" which is land of public
utility and grant of lease of the said land was illegal. The Petitioners filed objection to the said application and challenged the entitlement of
Respondent No. 5 to file the application. The Additional Collector vide his order dated 23rd March, 1998 cancelled the lease. The Additional
Collector held that plots No. 108, 113 and 115 are recorded as ""Jangal Dhaka"", the land being land of public utility leases were illegally granted
and are cancelled. The revisional court also affirmed the said finding that land is recorded as ""Jangal Dhaka"" which is land of public utility and could
not have been leased out.
4. The counsel for the Petitioners submitted that several leases of plots recorded as ""Jangal Dhaka"" have been granted by Land Management
Committee, hence the lease of the Petitioners alone cannot be cancelled. The counsel for the Petitioners further submitted that order cancelling the
lease was passed by Additional Collector who has no jurisdiction to cancel the lease since the jurisdiction is vested only in the Collector.
5. I have considered the submissions and perused the record.
6. Both the courts below have recorded finding that all the three plots were recorded as ""Jangal Dhaka"". The word ""Jangal Dhaka"" means Dhaka
Forest, Dhaka is a kind of small tree having large leaves. The entry of the aforesaid plot clearly indicates that the said plots are a kind of forest
recorded as Dhaka Forest. The use and utility of forest cannot be denied. Existence of forest are beneficial for human life and environment. There
cannot be any denial that forest land is a land of public utility. Section 132 of U.P. Zamindari Abolition and Land Reforms Act mentions about the
land in which bhumidhari rights shall not accrue. Section 132 of U.P. Zamindari Abolition and Land Reforms Act is extracted below :
132. Land in which (bhumidhari) rights shall not accrue.-Notwithstanding anything contained in Section 131, but without prejudice to the
provisions of Section 19, (bhumidhari) rights shall not accrue in :
(a) pasture lands or lands covered by water and used for the purposes of growing singhara or other produce or land in the bed of a river and used
for casual or occasional cultivation ;
(b) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the Gazette ; and
(c) lands declared by the State Government by notification in the Official Gazette, to be intended or set apart for taungya plantation or grove lands
of a (Gaon Sabha) or a local authority or land acquired or held for a public purpose and in particular and without prejudice to the generality of this
clause :
(i) land set apart for military encamping grounds ;
(ii) lands included within railway or canal boundaries ;
(iii) lands situate within the limits of any cantonment ;
(iv) lands included in sullage farms or trenching grounds belonging as such to a local authority ;
(v) lands acquired by a town improvement trust in accordance with a scheme sanctioned u/s 42 of U.P. Town Improvement Act, 1919 (U.P. Act
VII of 1919), or by a municipality for purpose mentioned in Clause (a) or Clause (c) of Section 8 of the U.P. Municipalities Act, 1916 (U.P. Act
VII of 1916) ; and
(vi) lands set apart for public purposes under the U.P. Consolidation of Holdings Act, 1953 (U.P. Act No. 5 of 1954).
7. The Sub-clause (3) of Section 132 includes land held for a public purpose on which bhumidhari rights shall not accrue. The aforesaid three plots
being recorded as ""Dhaka Jangal"" were covered by land as enumerated in Section 132 and lease of bhumidhari rights with non-transferable right
cannot be granted on the said plots. No error has been committed by the courts below in cancelling the lease granted in favour of the Petitioners.
The submission of Petitioners is that other persons have also been granted lease of ""Dhaka Jangal"", hence Petitioners have been discriminated in so
far as the lease of other persons have not been cancelled and the Petitioners have only been singled out for cancellation. The counsel for the
Petitioners has raised the submission based on discrimination. As noted above, lease of ""Dhaka Jangal"" is not permissible in accordance with
Section 132 of U.P. Zamindari Abolition and Land Reforms Act and the fact that leases were granted to certain other persons cannot validate the
lease of the Petitioners which was in violation of Section 132 of U.P. Zamindari Abolition and Land Reforms Act. The plea of discrimination is not
available in a case where the benefit which was taken by other persons cannot be said to be in accordance with law. Apex Court in Chandigarh
Administration and another Vs. Jagjit Singh and another, , held that mere fact that the Respondent has passed a particular order in the case of
another person similarly situated can never be the ground for issuing a writ in favour of the Petitioner on the plea of discrimination in case the order
in favour of other persons is found to be contrary to law or not warranted in the facts of this case. Following was laid down in paragraph 8 :
8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is
unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at
a little length. Generally speaking, the mere fact that the Respondent authority has passed a particular order in the case of another person similarly
situated can never be the ground for issuing a writ in favour of the Petitioner on the plea of discrimination. The order in favour of the other person
might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the Petitioner. If
the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that
such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the Respondent authority to repeat the illegality or to pass
another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because
the Respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality
over again and again. The illegal/ unwarranted action must be correct, if it can be done according to law indeed, wherever it is possible, the Court
should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see
how it can be made a basis for its repetition. By refusing to direct the Respondent authority to repeat the illegality ; the Court is not condoning the
earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would
be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law....
8. Thus the submission of counsel for the Petitioners that other persons have been granted leases of plots recorded as ""Jangal Dhaka"" is not
relevant nor can validate the lease of Petitioners. No error has been committed by the Respondents in cancelling the lease of the Petitioners.
9. The next submission of the Petitioners is to the effect that Additional Collector is not Collector within the meaning of U.P. Zamindari Abolition
and Land Reforms Act and has no jurisdiction to cancel the lease. Assuming without admitting that power to cancel the lease only vests with
Collector, this Court will not exercise its jurisdiction under Article 226 of the Constitution to interfere with an order of Additional Collector, the
effect of which is to restore the illegal lease granted to the Petitioners. This Court while exercising jurisdiction under Article 226 of the Constitution
will not exercise its jurisdiction in a manner the effect of which is to restore illegal order.
10. The Apex Court in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, , has observed that while exercising
jurisdiction under Article 226, High Court will not exercise its jurisdiction, the effect of which is to restore an illegal order. The relevant paragraph
of the aforesaid judgment is extracted below :
(17) The result of the discussion may be stated thus. The Primary Health Centre was not permanently located at Dharmajigudem. The
representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier
resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the
orders of the Government, namely the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed ; the former, because it
was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power u/s 72 of the Act to review an
order made u/s 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. In those circumstances, was
it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had
quashed the said order, it would have restored an illegal order, it would have given the health centre to a village contrary to the valid resolutions
passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the
circumstances of the case.
11. Both the submissions of counsel for the Petitioners being without any substance, the orders impugned in the writ petition need to interference
by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
12. The writ petition lacks merit and is summarily dismissed.
