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2016 DIGILAW 2824 (ALL)

Mohd. Naim v. State of U. P.

2016-08-16

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. 1. Heard Sri D.K. Tripathi, learned counsel for the petitioner, learned Standing Counsel appearing for respondents No.1, 2, 3, 4, Sri Manoj Kumar Yadav for respondent No.5 and Sri A.N. Pandey for respondents No.6 and 7. 2. The pleadings exchanged between the contesting parties have also been perused. 3. The order impugned is an order dated 4.6.2010 passed by the Additional Collector (Finance & Revenue), Jaunpur in proceedings under Section 122-C(6) of the U.P. Z.A. & L.R. Act, 1950 (hereinafter referred to as the 'Act') read with Rule 115-P of the Rules framed under the Act (hereinafter referred to as the 'Rules'). 4. The petitioners No.1 & 2 were allotted Gaon Sabha land on 16.10.1994, the petitioner No.3 on 26.03.1996 and the petitioner No.4 on 02.11.2007 under Section 112-C of the Act. The aforesaid allotments made in favour of the petitioners have been cancelled by the impugned order. 5. Sri Tripathi, learned counsel for the petitioners submits that the order impugned is violative of Rule 115-B as Land Management Committee was not made a party to the proceedings. Secondly, a similar application filed by respondent No.6 for cancellation of the allotments/lease deeds was rejected on 11.7.2007. Even a suit filed by respondent No.6 seeking cancellation of the above allotment/lease deeds was dismissed. Therefore, the authority below has manifestly erred in law in entertaining the application of the respondent No.6 for cancellation of the above allotments/lease deeds. Thirdly, it is submitted that the application filed by respondent No.7 for cancellation of the above allotments/lease deeds was barred by time. No application for condoning the delay was filed and the delay was not explained. Lastly, The petitioners were all eligible persons and the finding that they had other properties with them before the allotments or grant of lease is perverse. 6. Learned Standing Counsel in defence of the order has submitted that the allotments made in favour of the petitioners were totally illegal as the Land Management Committee was not taken into confidence while making the allotments and granting lease deeds. The land was inspected by the Additional Collector himself and he has found that the petitioners had in their possession sufficient land and were not eligible for allotment. 7. The land was inspected by the Additional Collector himself and he has found that the petitioners had in their possession sufficient land and were not eligible for allotment. 7. Learned counsel for respondents No.6 and 7 submitted that he has brought on record the material to show that the petitioners were having sufficient land at the time of allotment which dis-entitled them for allotment of land under Section 122-C of the Act. 8. Section 122-C of the Act provides for allotment of Gaon Sabha land for housing purposes in favour of the Scheduled Castes, Scheduled Tribes, Other Backward Classes and the persons of general category living below poverty line etc. It also lays down the procedure for allotment. Sub-Section (6) of Section 122-C of the Act provides that the Collector on his own motion or on the application of any "person aggrieved" by any allotment of land, if satisfied that the allotment is irregular, may cancel the allotment. The order so passed by the Collector is to be treated as final and the provisions of Section 333 and 333-A of the Act shall not apply. 9. There is no dispute to the fact that the impugned order of cancellation has been passed on the applications filed by respondents No.6 and 7 and not in suo-motto exercise of power. 10. Therefore, in order to seek cancellation of allotment of the above land they have to show that they are the "persons aggrieved" by the said allotment. 11. A "person aggrieved" is a person who suffers some loss or injury either personal, pecuniary or in respect of proprietary rights. In other words, a person aggrieved is one whose legal right is invaded upon or whose pecuniary interest is affected by the order. 12. The Apex Court in Adi Pheroz Shal Gandhi Vs. H.M. Seervai AIR 1971 SC 385 carved out a distinction between a "person aggrieved" and a "person disappointed" and held that any person who feels disappointed by the order is not a person aggrieved unless it wrongfully deprives him of something. 13. In the instant case there is no material to establish that respondents No.6 and 7 are persons aggrieved entitle to seek cancellation of the above allotments through they may appear to be annoyed with the allotments for the reason they have their property in the vicinity or adjacent to the land allotted. 14. 13. In the instant case there is no material to establish that respondents No.6 and 7 are persons aggrieved entitle to seek cancellation of the above allotments through they may appear to be annoyed with the allotments for the reason they have their property in the vicinity or adjacent to the land allotted. 14. In any case as the authority below has not considered the matter from this angle and has not recorded any finding that respondents No.6 and 7 are "persons aggrieved" or not, I think the matter requires reconsideration. 15. The petitioners in the writ petition have specifically averred that the respondent No.6 had filed Suit No.469 of 1996 (Devi Prasad Vs. Israil and others) in the court of Civil Judge seeking cancellation of the above allotments/lease deeds and for a permanent injunction. The said suit was dismissed on 26.08.2004. None of the respondents in their counter affidavit have controverted the aforesaid allegation of the petitioners, meaning thereby they accept the filing of the aforesaid suit and its dismissal. 16. The petitioners have also averred in the writ petition that the respondent No.6 had previously filed an application in the year 1996 purported to be under Rule 115-P of the Rules for cancellation of the allotment made in favour of the petitioners. The said application was rejected on 11.7.2007 and the order became final. These averments have also not been denied in the counter affidavit by respondents No.6 and 7. 17. The dismissal of the suit and earlier application of respondent No.6 seeking cancellation of the allotment of the lands disentitles respondent No.6 from filing any further application seeking cancellation of the same very allotments. The authority below has not considered this aspect of the matter and has not cared to scrutinise the record in passing the impugned order. 18. In view of the above, it appears to be incumbent to relegate the matter on the above point of maintainability of the application of respondent No.6 and for consideration of the impact of the dismissal of suit and the above application upon any further action on the above cause of action. 19. The respondent No.7 filed the application on 11.8.2009 seeking cancellation of the allotments/lease made in favour of the petitioners. The allotments were made in 1994, 1996 and 2007 respectively. Therefore, in view of 2004 (97) RD 691 Ghanshyam etc. Vs. 19. The respondent No.7 filed the application on 11.8.2009 seeking cancellation of the allotments/lease made in favour of the petitioners. The allotments were made in 1994, 1996 and 2007 respectively. Therefore, in view of 2004 (97) RD 691 Ghanshyam etc. Vs. State (B.R.) wherein it has been held that the application seeking cancellation of allotments/lease deed can be filed within five years of the lease, the application filed by respondent No.7 was clearly barred by time so far as the lease deeds executed in the years 1994 and 1996 are concerned. 20. In view of the above, the authority below could not have ordered for cancellation of the lease deeds either without condoning the delay in filing the same or holding the application of respondent No.7 to be within time. 21. In addition to the above, Rule 115-P (2) of the Rules clearly provides that the allottee and the Land Management Committee shall be necessary parties to all such cases. The use of the word 'shall' therein indicates that it is mandatory to make Land Management Committee a party to the proceedings. The record do not reveal that the Land Management Committee was not made a party or was given any opportunity of hearing before passing the impugned order. There is no reference to the Land Management Committee either in the order impugned or the applications of respondents No.6 and 7. 22. In view of all that has been said above, the impugned order cannot be sustained in law. Accordingly, the order dated 4.6.2010 passed by the Additional Collector (Finance & Revenue), Jaunpur under Section 122-C(6) of the U.P. Z.A. & L.R. Act, 1950 read with Rule 115-P of the Rules framed under the Act is quashed and the matter is remanded to the Collector with the direction to pass a fresh order examining all the above aspects of the matter and by making Land Management Committee a party and giving it an opportunity of hearing. 23. The writ petition is allowed.