Allahabad High Court
Ghanshyam Singh And Others vs Addl. Commissioner And Others on 28 August, 2023
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:172551 Reserved Court No. - 5 Case :- WRIT - C No. - 36731 of 2003 Petitioner :- Ghanshyam Singh And Others Respondent :- Addl. Commissioner And Others Counsel for Petitioner :- V. Singh,A.B. Maurya Counsel for Respondent :- C.S.C.,Anuj Kumar,K.S. Verma,Sudhir Kumar HON'BLE PIYUSH AGRAWAL, J.
1. Heard Mr. V. Singh for the petitioner, Mr. Anupam Kulshrestha for contesting respondent and Mr. K.M. Mishra, learned Additional Chief Standing Counsel for State.
2. By means of present petition, the petitioner is assailing the order dated 23.6.2003 passed by respondent no. 1 in Revision No. 62 of 1999-2000 (Jagdish Vs. Ghanshayam Singh and others).
3. Brief facts of the case are that respondent no. 2 namely Jagdish was allotted a lease of plot no. 117, area 0.033 hectare of village Balachaur, Tehsil Hadaura, Distt. Saharanpur by the resolution of land management committee dated 12.3.1994, which was duly approved by the Sub Divisional Magistrate by order dated 2.6.1994. Thereafter the petitioner has moved an application u/s 198 (4) of UP Z.A. & L.R. Act before the Collector challenging the said allotment on 22.7.1994 in which by order dated 28.7.1994, the Collector has stayed the operation of the order dated 22.7.1994 and thereafter by the order dated 15.12.1999 the allotment was cancelled. Thereafter respondent no. 2 challenged the said order in revision before the Additional Commissioner, who has set aside the order 15.12.1999 and restored the lease in favour of respondent no. 2 by the impugned order. Hence the present writ petition.
4. Learned counsel for the petitioner has submitted that plot in question has been allotted in committing gross violation of the provisions of UP Zamindari Abolition and Land Reforms Act as well as Rules framed thereunder. He further submitted that neither proper agenda was prepared nor any munadi ( beating of drum) was done nor any list of eligible persons was made by the Land Management Committee prior to the said allotment. He further submitted that respondent no. 2 is having sufficient land apart from large chunk of land with the ownership of his father however without considering the said fact, the lease has been restored in favour of respondent no. 2 by the impugned order. He further submitted that in contravention of the provisions specifically mentioned under Rule 173 and 174, the grant of lease in favour of respondent no. 2, cannot be held valid and restoration of the same by the impugned order is illegal.
5. In support of his claim, learned counsel for the petitioner has relied upon the judgement of this Court in the case of Rajdhar Vs. Board of Revenue, 1984 0 Supreme (All) 225. He prays for allowing the writ petition.
6. Per contra, learned counsel for respondent no. 2 has supported the impugned order and submitted that procedure prescribed under Rules 173 and 174 of the Rules is not mandatory provisions even without admitting the fact that the procedure has not been followed, the action taken thereof will not vitiate. He submitted that the land in question was recorded as 'Naveen Parti' in Khatauni 1399-1404 Fasli and since the land in question was belonging to the Land Management Committee, the same has rightly been given to the respondent no. 2. He further submitted that the Collector was not correct to observed that the land in question has been described as 'Pathwara' on the strength of entry of the year 2000. He further submitted that on the strength of aforesaid entry, the allotment of the land in question cannot be cancelled as on the date of allotment i.e. in the year 1994, the nature of the land was correctly recorded in the revenue records as 'Naveen Parti' which was more relevant. He further submitted that as per Section 198 sub clause 1(e) a bhumidhar or asami residing in the circle and holding land less than 1.26 hectares (3.125 acres) is held entitled for allotment. He prays for dismissal of this writ petition.
7. Learned Additional Chief Standing Counsel also supports the impugned order.
8. After hearing learned counsel for the parties, the Court has perused the records.
9. It is admitted that land in question was allotted to respondent no. 2 namely Jagdish in the year 1994 however on the application of the petitioner, the allotment was cancelled by the Additional Collector by order dated 15.12.1999. While cancelling the lease granted in favour of respondent no. 2, the Additional Collector has recorded certain findings of fact which has not been reversed by the Additional Commissioner while passing the impugned order. The record reveals that the finding of fact was recorded by the Additional Collector that in the agenda dated 4.3.1994, there was no mention of plot in question. Further the record reveals that neither the munadi (beating of drums ) was not conducted nor the list of eligible persons was prepared by the Land Management Committee prior to the allotment of the land in question, which is required under provisions of Rule 173 and 174 of the Rules.
10. This Court in the case of Rajdhar (supra) has held that provisions of Rules 173 and 174 of UP Z.A. & L.R. Rules are mandatory provisions. The relevant para of the said judgement is quoted hereunder:-
"7. To my mind the compliance of Rules 173 and 174 of the UP Z.A. and L.R. Rules is mandatory and if a lease has been granted to the petitioner in contravention of the above mentioned Rules 173 and 174, it was rightly cancelled by the Assistant Sub Divisional Officer through its order dated 16.11.1971 and the same has rightly maintained by the appellate court and the revisional court. The petitioner has no legs to stand and cannot successfully challenge the impugned judgements."
11. This Court in the case of Bhagwan Sahai and others Vs. Additional Commissioner, Meerut Divison and others (Writ C No. 59212 of 2007) decided on 3.7.2017 has held as under :-
"At the very outset it is relevant to note that the impugned order records that the procedure as statutorily prescribed embodied in Rules 173 and 174 of the Rules framed under the 1950 Act was not followed. It has been found that proceedings for allotment were taken out on 18 January 2003 and the resolution for allotment in favour of the petitioners passed on the same day. It has also been found by the respondents that no adequate publicity of the proposed allotment process was undertaken and the meeting itself is stated to have been conducted at the residence of Mishri Lal, the Gram Pradhan.
It is pertinent to note that Rules 173 and 174 lay down in substantive terms the procedure which is to be adhered to before an allotment is made in favour of landless persons and other beneficiaries contemplated under Section 198(1). Rules 173 and 174 read thus:
"173. Sections 195, 197 and 198. Admission to land.--Whenever the Land Management Committee intends to admit any person to land under Section 195 or 197, it shall announce by beat of drum in the circle of the Gaon Sabha in which the land is situate at least seven days before the date of meeting for admission of land, the members of plots, their areas and the date on which admission thereto is to be made.
174. On the said date, a meeting of the Committee shall be held to select persons for admission to land as sirdar or asami as the case may be. A list of all the persons who are present and who express their desire to be admitted to the land shall be prepared in Z.A. Form 57-A. The list shall be drawn up separately in respect of the land to be settled to a sirdar and land to be settled to an asami. The names of the persons shall be arranged in the list in the order of preference laid down in section 198."
From a bare conspectus of the aforesaid rules, it is evident that prior to admitting any person to land under Section 195 or 197, the Land Management Committee must make known its intent to admit persons by beat of drums in the circle of the Gaon Sabha at least seven days before from the date of meeting. The reason behind this rule and its rationale is not far to seek. Its aim is to enable all persons falling within the ambit of Section 198 to apply for allotment. Before this Court the facts which stand recorded in the impugned order are not disputed. In that view of the matter, it is manifest that there has been an abject failure to comply with the mandatory statutory requirements as placed by Rules 175 and 176."
12. Again this Court in the case of Moinuddin Vs. Board of Revenue, 2002 All LJ 2082 has held as under:-
"9. The land in dispute is not covered by any one of the aforesaid clauses of Section 195. Therefore, the same could not be subject matter of allotment under any provision of the Act. The allotment of the land in dispute in favour of the contesting respondents was, thus, made wholly without jurisdiction and on the basis of the same, the contesting respondents cannot get any right in the land in dispute. Further, according to the findings recorded by the Additional Collector, the provisions of Rules 173 and 174 of the rules framed under the Act were not followed and the provisions of Section 28 of the U. P. Panchayat Raj Act were violated. Neither there was announcement by beat of drum in the circle of the Gaon Sabha in which the land is situate at least seven days before the date of meeting of the Land Management Committee for admission of the land regarding number of plots, their areas, the date on which admission/allotment was to be made nor the list of landless persons was prepared nor other provisions contained under Rules 174, 175 and 176 were followed and allotment was made in violation of the provisions of Section 28 of the U. P. Panchayat Raj Act, as stated above. Thus, the allotment was totally illegal and without jurisdiction. ...."
13. In view of aforesaid law laid down by this Court, it has been held that provisions of Section 173 and 174 are mandatory and Land Management Committee was duty bound to comply with the same in its letter and spirit.
14. The record further reveals that the proper procedure was not adopted as required under Rule 173 and 174 of the Rules, which is categorically held by the order of Additional Collector dated 15.12.1999, however without controverting / reversing the said findings, the impugned order has been passed and lease was restored, which is not justified in the eyes of law.
15. In the results, the writ petition is allowed. The impugned order is set aside.
Order Date :- 28.8.2023
Rahul Dwivedi/-