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2010 DIGILAW 2453 (ALL)

GAJRAJ v. STATE OF U. P.

2010-08-12

SANJAY MISRA

body2010
JUDGMENT Hon’ble Sanjay Misra, J.—Rejoinder affidavit has been filed by the petitioner today. Let the same be taken on record. 2. Heard Sri S.C. Verma, alongwith Miss Neelam Pandey, learned counsel for the petitioner, learned Additional Chief Standing Counsel Sri Pankaj Rai for the State-respondents and Sri Kaushal Kishore Mishra for Respondent Nos. 6 to 86. 3. The submission of Sri S.C. Verma, learned counsel for the petitioner is basically that by virtue of provisions of Rule 176 of U.P.Z.A. & L.R. Rules, 1952 after selection for admission to the land the Land Management Committee has to prepare a list and it has to be forwarded to the Assistant Collector, In-charge of the sub-division, who on receipt of the documents should scrutinize the decision taken by the Land Management Committee and if he is satisfied that the decision of the Committee is in accordance with the Act and the Rules 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 with the direction that possession may be delivered to the lessee and report of mutation be submitted to Supervisor Kanoongo by the Lekhpal after delivery of possession. 4. According to him admittedly in the present case resolution of the Land Management Committee was made on 13.7.1996 and approval to the resolution relating to the Respondent Nos. 6 to 86 was given on 6.4.1997. Sri Verma states that it is clear violation of Rule 176(4) and hence the impugned orders rejecting the application under Section 198(4) of the U.P.Z.A. & L.R. Act for cancellation of the said pattas cannot be upheld. Sri Verma has referred to the submission made by the District Government Counsel (Revenue) as recorded in the impugned order in support of his submission : vr% mDr ds lac/k esa ftyk 'kkldh; vf/koDrk jktLo xkSrecq/kuxj dh cgl lquh x;h us rdZ fd;k fd vkcaVu djrs le; fu;e 173 rk 178 dk ikyu ugh fd;k x;k gSA vik= O;fDr;ksa dks vkcaVu djrs le; fu;e 173 rk 178 dk ikyu ugh fd;k x;k gSA vik= O;fDr;ksa dks vkoaVu fd;k x;k gSA vf/kdkj vkcaVh ds ikl Hkwfe gSA vkcaVu ckgj ds O;fDr;ksa dks Hkh fd;k x;k gSA vkcaVu esa vfu;ferrk cjrh x;h gSA blfy;s xzke QySnk dk izzLrko fnukad 13-7-1996 o Lohd`r fnukad 6-4-1997 fujLr gksus ;ksX; gSA 5. Learned Standing Counsel has submitted that in another writ petition filed by the persons whose patta had earlier been cancelled and who were found to be unsuitable persons a counter-affidavit was filed by the State-respondents in Writ Petition No. 21208 of 2008, ‘’Brij Pal and another v. State of U.P. and others’ on 5.12.2009 and which relates to the same land the stand of the State was clearly averred in paragraph 5 and 6 of the counter-affidavit which is available on the record of this writ petition as an annexure in the rejoinder affidavit filed by the petitioners. 6. Paragraphs 5 and 6 of the counter-affidavit of the State are quoted hereunder: 5. That the counter-affidavit of paragraphs 5 and 6 of the writ petition are not correct as stated, as such, denied. It is stated that Addl. Collector, (F&R) Gautam Buddh Nagar has issued proper notice to the petitioners, thereafter cancelled the lease which was not been granted to the eligible persons and also not followed the provisions and proceedings of Rule 173 to 178 of U.P.Z.A.& L.R. Act specially on the ground that the aforesaid patta has been granted on the basis of forged and fabricated proceedings to the some of the lease holders they are big agriculturists and some of the belonging to the out side of the concerned village. It is further stated that some persons have residing in the City and belong to the higher community. 6. That the contents of paragraphs 8 to 14 of the writ petition are not correct as stated, as such, denied. It is stated that the Addl. Collector (F&R) Gautam Buddh Nagar i.e. respondent Nos. 2 and 3 both the Courts below have cancelled the lease of the petitioners specially on the ground that the lease has been granted in favour of petitioners without following the Rules, 173 to 178 of U.P.Z.A. & L.R. Act. It is further stated that the Courts below have given finding specially that some of the allottees belongs to the other villages and also some allottees are residing in city with higher community and the competent authority has given proper notice and opportunity of hearing to the petitioners. 7. It is further stated that the Courts below have given finding specially that some of the allottees belongs to the other villages and also some allottees are residing in city with higher community and the competent authority has given proper notice and opportunity of hearing to the petitioners. 7. He, therefore, states that there is no controversy with respect to the violation of provisions of sub-clause 4 of Rule 176 of the U.P.Z.A. & L.R. Rules and since rules are mandatory in nature, therefore, violation would make the impugned orders rejecting the application of the petitioners under 198(4) of the U.P.Z.A. & L.R. Act illegally. He submits that even the Revisional Authority has committed the same error by not cancelling the pattas given to Respondent Nos. 6 to 86. 8. Sri K.K. Mishra, learned counsel for the Respondent Nos. 6 to 86 has referred to his counter-affidavit by justifying that the Land Management Committee prior to passing the resolution had properly published the agenda and that munadi had been made in the village for the purpose of allotment of land of the gaon sabha to poor and landless persons. He has referred to the proceedings and states that those persons who were found not eligible to be granted lease their allotment was subsequently cancelled and ultimately it is only the Respondent Nos. 6 to 86 who were found eligible and, therefore, their allotment has been maintained and the application of the petitioner under Section 198(4) of the U.P.Z.A. & L.R. Act has rightly been rejected by the Authority. 9. Insofar as the provisions of Rule 176(4) is concerned Sri Mishra has not been able to make any convincing submission so as to say that the violation of the rule would not render the allotment proceedings illegal. 10. Sri Pankaj Rai, learned Additional Chief Standing Counsel has not disputed that the procedure prescribed in Rule 176(4) of the U.P.Z.A. & L.R. Rules was not followed in the present proceedings. 11. In the aforesaid circumstances without going into the merit of the procedure for allotment adopted or the eligibility of Respondent Nos. 6 to 86 it is sufficient to set aside the impugned orders for the simple reason that there is violation of the mandatory provisions in making the admission to the land hence the entire proceedings would stand vitiated. 11. In the aforesaid circumstances without going into the merit of the procedure for allotment adopted or the eligibility of Respondent Nos. 6 to 86 it is sufficient to set aside the impugned orders for the simple reason that there is violation of the mandatory provisions in making the admission to the land hence the entire proceedings would stand vitiated. Sections 176(1)(2)(3)(4) and (5) are quoted below : 176(1) After selecting the person or persons for admission to the land in accordance with Rule 175, the Committee shall prepare- (a) a list of persons so selected in Z.A. Form 57-B; (b) a certificate of admission to land in Z.A. Form 58: and (c) a counterpart in Z.A. Form 58-A. (2) the document referred to in clauses (a) and (b) of sub-rule (1) shall be duly signed by the Chairman of the Land Management Committee but the document referred to in clause (c) shall be signed by the persons so selected for admission to the land. (3) The document referred to in sub-rule (1) shall then be forwarded to the Assistant Collector in-charge of the sub-division alongwith- (a) a copy of the proceeding of the meeting of the committee in which the decision to settle land was taken; and (b) a certificate from the Lekhpal concerned to the effect that the particulars of the land mentioned in the list are correct and that the admission to the land is in accordance with the provisions of the Act and the Rules. (4) The Assistant Collector in-charge of the sub-division shall, on receipt of the documents referred to in sub-rule (3); 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 57-B 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 Supervisor Kanungo by the Lekhpal immediatley after delivery of possession. (5) If the Assistant Collector in-charge of sub-division finds that the whole or pat of the decisions taken by the Committee is not in accordance with the provisions of the Act and Rules, he shall record his disapproval on the list in Z.A. Form 57-B and return the papers to the Chairman”. 12. From the aforesaid provisions it is quite clear that when the resolution was made by the Land Management committee on 13.7.1996 the list ought to have been approved in Z.A. Form-57B certificate in ZA Form 58 and Form 58A ought to have been prepared and returned to the Land Management Committee for the purpose of delivery of possession. That having not been done and the approval having been granted by the Assistant Collector on 6.4.1997 i.e. more than 8 months thereafter it is a clear case of violation of provisions of Rule 176(4) of the U.P.Z.A. & L.R. Rules. 13. For the aforesaid reason without going into the other factual controversies raised in this writ petition and as discussed in the impugned orders, the impugned orders are liable to be set aside for non-compliance of the mandatory provisions. 14. The writ petition succeeds and the impugned order dated 31.3.2008 passed by the Additional Commissioner, Meerut Region, Meerut (Annexure No. 5 to the writ petition) as also the order dated 30.9.2006 passed by the Additional District Magistrate (F&R) Gautam Buddh Nagar are quashed. 15. As prayed by Sri Pankaj Rai this order shall not prevent the competent authority to proceed for admission to land in accordance with law. 16. It is further made clear that insofar as the suitability/eligibility of the Respondent Nos. 6 to 86 for admission to the land is concerned the impugned order recites that they are suitable/eligible and this Court has not expressed its opinion on the aforesaid findings recorded in the impugned orders relating to the Respondent Nos. 6 to 86. 17. With the above directions, the writ petition is allowed. 18. No order is passed as to costs. —————