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Allahabad High Court · body

2017 DIGILAW 3025 (ALL)

Sudhirendra v. State Of U. P.

2017-12-21

MANOJ MISRA

body2017
JUDGMENT : MANOJ MISRA, J. 1. Supplementary affidavit filed today, is taken on record. 2. Heard Sri Vishal Khandelwal for the petitioners; learned Standing Counsel for respondents 1, 2 and 4 to 8 and Sri Ashish Kumar Srivastava for respondent no.3. 3. Considering the proposed order as also the ground on which it is being passed, learned counsel for the respondents do not pray for time to file counter affidavit, therefore with the consent of learned counsel for the parties, this petition is being finally decided, at this stage itself. 4. The petitioners were provided allotment of certain land. To cancel the allotment made in favour of the petitioners, proceedings were initiated under Section 198(4) of U.P.Z.A. & L.R. Act. The petitioners submitted their reply to the show cause notice issued to them and claimed that allotment was made after following due procedure prescribed and that they were landless agricultural labourers therefore were eligible for allotment. 5. It appears that after submitting their reply, the petitioners did not further participate in the proceedings and the Additional Collector, Mainpuri by order dated 20th November, 1990 cancelled the allotment made in favour of the petitioners as well as other allottees on the ground that since, after submission of the reply, the petitioners had not participated in the proceedings, it appears that they were not interested in retaining the Patta, therefore the Patta being irregular is liable to be cancelled. 6. While passing the order dated 20th November, 1990, the Additional Collector, Mainpuri did not record any finding as to how the allotment made was irregular or illegal. The eligibility of the allottees and infraction of any provision of any Rule, which could have vitiated the allotment, was not discussed in the said order. 7. Aggrieved by the order dated 20th November, 1990, the petitioners filed revision before the Additional Commissioner, Agra Division, Agra, which came to be allowed by order dated 19th July, 2001, whereby the order dated 20th November, 1990 and the order rejecting the restoration application dated 23rd October, 1996 were set aside and the matter was remanded back to the Collector, Firozabad to pass fresh order, in accordance with law, after giving opportunity of hearing to both sides. 8. 8. The Additional Commissioner proceeded to pass the order on the ground that Additional Collector, Mainpuri did not have jurisdiction to proceed with the matter, therefore the order passed by the Additional Collector was void. 9. It appears that by the time the Additional Commissioner had passed the order, the land had come within the territorial jurisdiction of district Firozabad, therefore the matter was remanded back to Collector, Firozabad. 10. Aggrieved by the order passed by the Additional Collector dated 19th July, 2001, the State filed revision before the Board of Revenue. 11. The Board of Revenue (Circuit Bench at Agra), allowed the revision by order dated 19th May, 2015 and restored the orders dated 20th November, 1990 and 23rd October, 1996, passed by Additional Collector on the ground that the Additional Collector had jurisdiction. 12. Aggrieved by the order passed by the Board of Revenue, an application for restoration/review was filed by the petitioners before the Board of Revenue. 13. Pending review application, this petition was filed with prayer that a direction be issued upon the respondents not to dispossess the petitioners from the disputed plot. Subsequently, the petitioners' counsel moved an application for amendment in the petition so as to incorporate prayer to quash the order dated 19th May, 2015. 14. The said amendment application was allowed and, today, a supplementary affidavit has been filed giving an undertaking that the petitioners would withdraw the review application filed against the order dated 19th May, 2015. 15. Learned counsel for the petitioners submitted that neither the Additional Collector, Mainpuri nor the Commissioner or the Board has discussed the merits of the allotment made in their favour. The Additional Collector had cancelled the allotment by assuming that the petitioners were not interested in retaining the Patta, therefore the same is liable to be cancelled whereas the Additional Commissioner allowed the revision of the petitioners on ground that the Additional Collector did not have jurisdiction. But none of the Courts below have discussed whether the allotment made in favour of the petitioners was liable to be cancelled on account of infraction of any of the provisions of the U.P.Z.A. & L.R. Act or the Rules framed thereunder. But none of the Courts below have discussed whether the allotment made in favour of the petitioners was liable to be cancelled on account of infraction of any of the provisions of the U.P.Z.A. & L.R. Act or the Rules framed thereunder. It has been submitted that under the circumstances, the order passed by the Board of Revenue requires to be set aside and the order passed by the Commissioner needs to be modified so that the allotment cancellation proceeding is carried out by the competent authority in accordance with law and brought to its logical conclusion after affording opportunity of hearing to both sides. 16. Learned Standing Counsel as also counsel appearing for the Land Management Committee are in agreement that at no stage the validity of the allotment made in favour of the petitioners was tested by the authorities, therefore it would not be inappropriate if the matter is remanded back to the competent authority to deal with allotment cancellation proceeding afresh, in accordance with law, after giving opportunity of hearing to both sides. 17. I have given thoughtful consideration to the submissions of learned counsel for the parties and have perused the record carefully. 18. A perusal of the record would reveal that the Additional Collector had cancelled the allotment made in favour of the petitioners as well as other allottees primarily on the ground that the allottees had not participated in proceeding after submission of their response, therefore it could be assumed that the allottees were not interested in retaining the Patta. 19. The reasoning adopted by the Additional Collector to cancel the allotment is not legally justified. Once the allotment is made, the same has to be cancelled only after recording satisfaction in respect of non-eligibility of the allottees or non-fulfilment of the procedure prescribed for allotment. In case the allottees are not eligible or the procedure prescribed for allotment has not been followed, then after recording such satisfaction, the authority can very well cancel the allotment but the cancellation cannot be made only on ground that the allottees after filing their response have not appeared therefore it could be assumed that they are not interested in retaining the Patta. Accordingly, the order passed by the Additional Collector dated 20th November, 1990 was not legally sustainable and was liable to be set aside. 20. Accordingly, the order passed by the Additional Collector dated 20th November, 1990 was not legally sustainable and was liable to be set aside. 20. Whether the Additional Collector had jurisdiction to decide the cancellation proceeding or not is not very much relevant at this stage because this Court is of the view that in any case the order passed by the Additional Collector cannot stand and therefore the order passed by the Additional Commissioner needs to be modified than set aside, as has been done by the Board of Revenue. 21. Accordingly, this Court considers it appropriate to allow this petition. The order dated 19th September, 2015, passed by the Board of Revenue, Circuit Bench Agra in revision nos.73/2001-02 and 74/2001-02 is set aside. The order passed by the Additional Commissioner Circuit Bench, Agra dated 19th July, 2001 in revision no.5/1996 and 6/1996 is restored subject to modification that the Collector, Firozabad, or any other authority competent to decide Patta cancellation proceeding under Section 198(4) of the U.P.Z.A. & L.R. Act, shall restore the Patta cancellation proceeding initiated against the petitioners as well as other allottees to its original number and, thereafter, shall proceed in accordance with law and take appropriate decision after giving opportunity of hearing to the parties concerned. The certified copy of this order shall be submitted by the petitioners before the Collector, Firozabad by 15th January, 2018 so that the proceedings pursuant to this order can be brought to its logical conclusion expeditiously. 22. It is made clear that the competent authority shall not entertain unnecessary adjournment from the parties and shall endeavour to complete the proceeding preferably within a period of six months from the date of production of certified copy of this order before the Collector, Firozabad. It is also made clear that this court has not expressed any opinion on the merits of the allotment. It is further provided that the petitioners as per their undertaking shall withdraw the review proceeding alleged to be pending against the order of the Board, which has already been set aside by this order. 23. The petition stands allowed to the extent indicated above.