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2013 DIGILAW 1575 (ALL)

VIRENDRA v. STATE OF U. P.

2013-05-28

RAN VIJAI SINGH

body2013
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri S.M.A. Abdy, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Vijai Bhan Singh, holding brief of Sri Anuj Kumar, learned counsel for the Gaon Sabha. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 30.7.2009 passed by the Sub Divisional Officer, Sikandrabad, District Bulandshahar, by which the proposal of the gaon sabha to allot the land to the petitioner has been disapproved by the Sub Divisional Officer. 3. Learned counsel for the petitioner contends that the order dated 30.7.2009 is a cryptic order and has been passed without assigning any reason while disapproving the allotment of the land.He has further submitted that the Sub Divisional Officer has although taken note of the reports of the Lekhpal and Tehsildar, which were sent alongwith the proposal for allotment of land while passing the impugned order, but in both the reports there is nothing against the petitioner, who is placed at serial No. 16 in the list prepared by the Land Management Committee. In his submissions, otherwise also there was no material before the Sub Divisional Officer to refuse the approval on the proposed allotment. Therefore, the impugned order deserves to be quashed. 4. Learned Standing Counsel has submitted that he does not propose to file counter-affidavit and the writ petition may be decided as per the record on its own merit. With the consent of the learned counsel for the parties, the writ petition is taken up for final disposal. 5. The facts giving rise to this case are that it appears, for grant of lease for agricultural purpose after munadi, 27 persons were allotted agricultural land by the Land Management Committee of Village Pilkhanwali, Tehsil Sikandrabad District Bulandshahar. The proceeding was recorded on Form 57-B and with the reports of Lekhpal and Tehsildar, the matter was placed for approval before the Sub Divisional Officer in view of the provisions contained under sub-rule (4) of Rule 176 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the Rules). The Sub Divisional Officer, taking note of that, has approved the allotment of land made in favour of 13 persons, who were placed at serial Nos. 1, 2, 5 to 11, 13, 14, 15 and 17. So far as the persons placed at serial Nos. The Sub Divisional Officer, taking note of that, has approved the allotment of land made in favour of 13 persons, who were placed at serial Nos. 1, 2, 5 to 11, 13, 14, 15 and 17. So far as the persons placed at serial Nos. 3, 4, 12 and 16 are concerned, the proposal for allotment of land in their favour has been disapproved by the Sub Divisional Officer. The order dated 30.7.2009 passed by the Sub Divisional Officer, disapproving the proposal for allotment of land in favour of the petitioner, is reproduced hereinunder: “dze la[;k 3] 4] 12] 16] ij vfHkfyf[kr O;fDr;ksa dks Hkwfe dk izcU/k nsus ds fy;s Hkwfe izcU/kd lfefr ds izLrko dks fuEufyf[kr dkj.kksa ls vuqefr ugha nh xbZ AÞ 6. For appreciating the controversy, it would be useful to go through the relevant rules meant for settlement of lease under Sections 195 and 197 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act), which are reproduced hereinunder: “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 number 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 the all persons who are present and who express their desire to be admitted to the land shall be prepared in ZA form 57 A. The list shall be drawn up separately in respect of the land to be settled to a sirdar and to be settled to an asami. The names of the persons arranged in the list in the order of preference laid down in Section 198. 175. The names of the persons arranged in the list in the order of preference laid down in Section 198. 175. If the member of applicants does not exceeds the number intended to be settled on the land in respect of which announcement has been made under Rule 173, the Committee shall examine the eligibility of the persons included in the list in ZA Form 57 A and take a decision regarding the plots of land to be settled with each such person. The Committee shall in the same meeting announce the names of the persons selected for settlement of land also the revenue or rent to be fixed for the land proposed to be settled. If the number of applicants belonging to the categories mentioned in clauses (c), (d) and (e) of sub-section (1) of Section 198 is more than the number with whom land is intended to be settled the list of applicants shall be placed before a meeting of the residents of the village call by the Land Management Committee and such of the applicants shall be selected for allotment as are considered to be the most suitable on merits on the basis of a consensus arrived at the meeting so convened. If such a consensus cannot arrived at the Land Management Committee shall draw lots to determine the persons with whom the land should be settled. 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 ZA Form 57 B. (b) a certificate of admission to land in ZA Form 58; and (c) a counterpart in ZA Form 58 A. (2) The documents 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 person 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 ZA 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 Supervisor Kanoongo by the Lekhpal immediately after delivery of possession. (5) If the Assistant Collector in charge of sub division finds that the whole or part 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 ZA Form 57 B and return the paper s to the Chairman.” 7. From the perusal of the aforesaid Rules, it transpires that while admitting a person under Section 195 or 197 of the Act as Asami or Sirdar, it shall be incumbent upon the Land Management Committee to announce the date by beat of drums in the circle of the gaon sabha, where the land is situated at lease 7 days before the date of meeting for admission to the land disclosing the details of the plots, etc. Rule 174 requires that 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. Rule 174 requires that 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. Rule 175 provides that if the member of applicants does not exceeds the number intended to be settled on the land in respect of which announcement has been made under Rule 173, the Committee shall examine the eligibility of the persons included in the list in ZA Form 57 A and take a decision regarding the plots of land to be settled with each such person. The Committee shall in the same meeting announce the names of the persons selected for settlement of land also the revenue or rent to be fixed for the land proposed to be settled. If the number of applicants belonging to the categories mentioned in clauses (c), (d) and (e) of sub-section (1) of Section 198 is more than the number with whom land is intended to be settled the list of applicants shall be placed before a meeting of the residents of the village call by the Land Management Committee and such of the applicants shall be selected for allotment as are considered to be the most suitable on merits on the basis of a consensus arrived at the meeting so convened. If such a consensus cannot arrived at the Land Management Committee shall draw lots to determine the persons with whom the land should be settled. Rule 176 requires the Committee to prepare the list, etc for approval of the Assistant Collector. Sub rule (4) of Rule 176 requires that the Sub Divisional Officer 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 ZA 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 Supervisor Kanoongo by the Lekhpal immediately after delivery of possession. Sub rule (5) of Rule 176 provides that if the Assistant Collector in charge of sub division finds that the whole or part 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 ZA Form 57 B and return the papers to the Chairman. 8. From the conjoint reading of sub rules (4) and (5) of Rule 176, it is apparent that while recording the approval/disapproval, the Sub Divisional Officer is required to scrutinize the papers sent by the Land Management Committee and in case he finds that the decisions taken by the Committee is not in accordance with the provisions of the Act and the Rules, he shall record the disapproval on the list in ZA Form 57-B. The language used in these rules are unambiguous and clear which requires that before approving or disapproving the proposal of the Land Management Committee the Sub Divisional Officer is required to scrutinise the papers and thereafter pass an order of approval or disapproval. I am of the opinion that once the Statute has conferred the power of approval or disapproval only after scrutinising the papers, certainly, it requires an application of mind and only after the application of mind an opinion has to be formed by the authority concerned as to whether it is a case for approval or disapproval and once opinion is formed, the basis of the opinion should be recorded in writing may be in one line. The power of approval or disapproval may be discretionary but discretion is to be exercised in the judicious manner. Although in view of the language used in the sub Rule 5 of the Rule 176 the matter of disapproval is not discretionary one and it is to be done only on the basis of the scrutinization of papers relating to the proceeding. The view taken by me finds support from the decision of the Apex Court in the case of Smt. Sahodara Devi and others v. Government of India and another, AIR 1971 SC 1599 , wherein the Apex Court has held that the power to grant lease under rule 27 of the Cantonments Land Administration Rules, 1937 is discretionary, but the refusal should only be in suitable cases where the sufficient reason exists for that purpose. 9. 9. Learned Standing Counsel could not defend the order successfully from the bare perusal of the order, which has been brought on record as Annexure 2 to the writ petition showing that reasons have been recorded while passing the order of disapproval to the proposal of allotment to the petitioner. 10. Otherwise also under Rule 176(1) (a) of the Act, the Land Management Committee is required to prepare a list of selected person on form 57-B. For appreciating the controversy, the list on form-57-B, which has been sent for approval to the Sub Divisional Magistrate (annexure 2 to the writ petition) is reproduced herein under : t0fo0 vkdkj i= 57&[k ¼fu;e 176 nsf[k;s½ O;fDr;ksa dh lwph ftUgsa xkWo fiy[kuokyh ijxuk o rglhy fldUnzkckn ftyk cqyUn’kgj dh Hkwfe izcU/kd lfefr us fnukad 22-6-2009 dks viuh cSBd esa Hkwfe ds izcU/kd ds fy, vla0 Hkwfe/kj ds :i esa pquk x;kA 1& fu;e 173 ds v/khu cSBd ds fy, ?kks"k.kk djus dk fnukad 16-6-2009 2- cSBd esa lfefr ds le{k mifLFkr izkfFkZ;ksa dh lka[;k 27@17 3& izn’kZu ds fy;s izLrkfor Hkwfe dk C;kSjk dqy xkVk la[;k 18] {ks=Qy 2&244 gS0] ekyxqtkjh yxku 106&95 iSls cUnkscLr ds fy, izLrkfor Hkwfe izekf.kr fd;k tkrk gS fd LrEHk 4]5 rFkk 6 esa mfYyf[kr C;kSjs lgh gSA ys[kiky@lsdszVjh g0 lUrksnsoh Hkwfe izcU/kd lfefr iz/kku 1-7-2009 xzke iapk;r fiy[kuokyh fo0[k0 fldcUnzkckn cqyUn’kgj v/;{k Hkwfe izcU/k lfefr ijxuksa ds vf/kdkjh vflLVsUV dysDVj mi;qZDr lwph dks t0fo0 vkdkj&i= 57d esa lwph ftlds lkFk fnukad 22-6-2009 dks gqbZ Hkwfe izcU/kd lfefr dh cSBd dh dk;Zokfg;ksa dh izfrfyfi djuh gS C;qckS) pk;Z izLrqr fd;k tkrk gSA g0 lUrksnsoh iz/kku 1-7-2009 xzke iapk;r fiy[kuokyh fo0[k0 fldcUnzkckn cqyUn’kgj ijxus ds vf/kdkjh vflLVsUV dysDVj dh vkKk 1- dze la[;k ¼1] 2] 5] 7] 8] 9] 10] 11] 13] 14]15]17½ ¼dqy 13½ ij vfHkfyf[k O;fDr;ksa dks muds uke ds lkeus LrEHk 4]5 rFkk 6 esa fufnZ"V Hkwfe lhnkj@vkleh ds :i esa mBkus dh vuqefr nh xbZ gSA 2- dze la[;k 3]4]12]16 ij vfHkfyf[kr O;fDr;ksa dks Hkwfe dk izcU/k nsus ds fy;s Hkwfe izcU/k lfefr ds izLrko dk fuEufyf[kr dkj.kksa ls vuqefr ugh nh xbZA ijxuk vf/kdkjh eftLVªsV g0 vifBr ,l-Mh-,e- ¼fldUnzkckn½ 30-7-2009 11. From the perusal of the Item No. 2, i.e, of the order of the disapproval passed by the Sub Divisional Officer sent on Z.A. Form 57-B, it would transpire that the allotment of person placed at serial Nos. From the perusal of the Item No. 2, i.e, of the order of the disapproval passed by the Sub Divisional Officer sent on Z.A. Form 57-B, it would transpire that the allotment of person placed at serial Nos. 3, 4, 12 and 16 of the list sent by the Land Management Committee has been disapproved by noting that it is disapproved for the following reasons, but reason has not been recorded which renders the decision of the authority illegal and arbitrary and without application of mind which cannot be sustained in the eye of law. 12. The matter may be examined from another angle also as has been held by me on the basis of statutory provisions contained under the Rules that the impugned decision is arbitrary, but that is not arbitrary only under the statute but otherwise also in usual course, where statute do not require to record reason. 13. The Apex Court in Sant Lal Gupta and others v. Madan Cooperative Group Housing Limited and others, 2010 (13) SCC 336 , has held that reason is the heartbeat of every conclusion and in absence of any reason, the order becomes just like a dead corpse and such order cannot be sustained in the eye of law. This is general observation with respect to each and every order which has either been passed by the authorities or by the Courts or where the statute is silent on the point as to whether before passing the order, reason is to be recorded or not. 14. The learned Standing Counsel has not been able to dispute the contents of the impugned order. Otherwise also when the power of approval or disapproval is conferred upon the authority, even if the statute is silent with respect to recording of reason, the authority while disapproving the proposal has to record its own reason, whereas it may not be required to give reason under the statute. 15. The impugned decision can be examined from another angle also. It is well-settled that any order either passed by Court /tribunal or authority, which leads to civil consequences must be passed after giving an opportunity of hearing and the procedure adopted must be just, fair, reasonable, unarbitrary and impartial. 15. The impugned decision can be examined from another angle also. It is well-settled that any order either passed by Court /tribunal or authority, which leads to civil consequences must be passed after giving an opportunity of hearing and the procedure adopted must be just, fair, reasonable, unarbitrary and impartial. A seven-Judges’ Bench of the Hon’ble Apex Court in the case of Maneka Gandhi v. Union of India, 1978 (1) SCC 248 , has held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14 of the Constitution. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic, otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable, even though there is no specific provision in a statute or rules, made thereunder, for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of, or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done, but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of the natural justice. 16. In Mohinder Singh Gill v. Chief Election Commissioner, 1978 (1) SCC 405 , the Apex Court reiterated the same view. Following that, in the case of D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 269, the Apex Court observed that an order which involves civil consequences, must be just, fair, reasonable, unarbitrary and impartial and meet the principles of natural justice. Same view has been reiterated in the cases of Canara Bank v. V.K. Awasthy, 2005 (6) SCC 321 ; Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board and others, (2007) 6 SCC 668 ; and Devdutt v. Union of India and others, 2008 (3) ESC 433 (SC). Same view has been reiterated in the cases of Canara Bank v. V.K. Awasthy, 2005 (6) SCC 321 ; Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board and others, (2007) 6 SCC 668 ; and Devdutt v. Union of India and others, 2008 (3) ESC 433 (SC). The basic idea of observing the principles of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The aforesaid decisions still hold field and have been followed in numerous cases, decided thereafter, which need not to detailed here. 17. Here from the perusal of the list of the selected persons for allotment, it would transpire that the approval has been granted to sixteen persons and four persons have been dropped including the petitioner. By this allotment, a right of Bhumidhar with non-transferable right has been conferred by the Land Management Committee to the petitioner, of course, subject to approval of the Sub Divisional Officer. This right certainly relates to the livelihood of the petitioner as he is the poor agriculturist and the land was allotted for agricultural purpose, therefore, by this action of the Sub Divisional Officer, he has been deprived of his right to get the land as Bhumidhar with non-transferable right. In my opinion, power to accord approval/disapproval was to be exercised with great caution strictly in accordance with law. I am of the view that once the Sub Divisional Officer decides not to agree with the proposal of Land Management Committee, it must give an opportunity, with a view to defend the allotment, to the Land management Committee as well as against whom order of disapproval is passed. 18. In view of the foregoing discussions, the impugned order dated 30.7.2009 passed by the Sub Divisional Officer, Sikandrabad, District Bulandshahar cannot be legally sustained. The same is hereby quashed so far as it relates to the petitioner. 19. The writ petition succeeds and is allowed. 20. The Sub Divisional Officer, Sikandrabad, District Bulandshahar is directed to pass a fresh reasoned order taking note of the observation made in this judgment as well as the reports submitted by the Lekhpal and Tehsildar. This exercise is to be done within a period of three months from the date of receipt of certified copy of the order of this Court after hearing the Land Management Committee as well as the petitioner. This exercise is to be done within a period of three months from the date of receipt of certified copy of the order of this Court after hearing the Land Management Committee as well as the petitioner. It is also provided that in case till date, no third party right has been created, the same shall not be created till the question of approval is considered by the Sub Divisional Officer concerned afresh. —————