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2018 DIGILAW 793 (ALL)

RAMPHOOL v. STATE OF U. P.

2018-04-03

MAHESH CHANDRA TRIPATHI

body2018
JUDGMENT : Mahesh Chandra Tripathi, J. Heard learned counsel for the petitioners; learned Standing Counsel for the State respondent nos.1 to 3 as well as Shri Kaushal Kishore Mishra, learned counsel for the respondent nos.5 and 6. 2. The petitioners are before this Court assailing the order dated 12.8.2016 passed by Additional Commissioner (Administration) Agra, Division Agra in Revision No.5 of 1996 and the order dated 17.9.1996 passed by Additional Collector (Finance and Revenue), Mathura in Case No.41/95-96 and for direction commanding the respondents not to give effect to the impugned orders dated 12.8.2016 and 17.9.1996. 3. Record in question reflects that the petitioners are resident of village Bharna Khurd, Tehsil Chhata, District Mathura. The proceedings under Section 122-C of U.P. Z.A. & L.R. Act, 1950 were initiated in the year 1988 for allotment of land situated in the village in question for housing site. The agenda was prepared by the then Pradhan on 25.11.1988 and the same was circulated in the area. Thereafter the Munadi for the meeting was also done in the village. The meeting of the Gaon Sabha was held on 5.2.1988 in which the Pradhan of the said village informed that he had received 17 applications. After making spot inspection, 19 plots were carved out for allotment and list of preference of eligible persons were prepared, wherein the name of petitioners was mentioned at serial nos.13 and 17. The Land Management Committee of the Gaon Sabha passed the resolution and the same was sent to the Sub Divisional Magistrate, Chhata, District Mathura for his approval. The same was approved by the Sub Divisional Magistrate on 12.7.1989. After allotment and issuance of Form No.49 Cha, the possession of the plots were handed over to the petitioners on 3.3.1990 and since then, they are in possession over the land in question. 4. Meanwhile, the private respondent nos.5 and 6 made certain objections against the aforesaid allotment and the proceedings were initiated for cancellation of the said allotment. When the respondent nos.5 and 6 could not succeed in the matter, they filed a Suit No.4 of 1989 for injunction and obtained an exparte injunction order on 8.5.1990 on the ground that the aforesaid plot no.1256 was not vacant for allotment and the same was already allotted to them. When the respondent nos.5 and 6 could not succeed in the matter, they filed a Suit No.4 of 1989 for injunction and obtained an exparte injunction order on 8.5.1990 on the ground that the aforesaid plot no.1256 was not vacant for allotment and the same was already allotted to them. It has also been alleged that in the said proceeding proper, Munadi was not made and the entire allotment was forged and illegal. The said suit was dismissed on 2.3.1994. The respondent nos.5 and 6 had preferred an appeal and the same was also dismissed on 24.5.1997. Finally, by the order dated 17.9.1996 the allotment in question was cancelled by the Competent Authority and the same was assailed by the petitioners by preferring Revision No.5 of 1996 before the Commissioner, Agra Division, Agra. The said revision was dismissed by the Additional Commissioner on 31.5.1997 on the ground that the revision is not maintainable. The said order was also assailed by the petitioners by preferring Writ No.409 of 1998 Sukhan and others v. State and others, which was allowed by this Court on 29.7.2013 with following observations:- "The petitioners were aggrieved by an order relating to the cancellation of the housing lease granted to them under Section 122-C of the U.P.Z.A. & L.R. Act, 1950. They filed a revision against the same, which has been dismissed as not maintainable in view of the judgment relied upon by the Additional Commissioner delivered by the High Court. Sri Sharma submits that this issue has now been decided by the High Court in the case of Janab and others v. State of U.P. 2001 (3) AWC 1809 and he contends that once the order of cancellation under sub Section 6 of Section 122-C has been passed then a revision would be maintainable in terms of Section 333 of the 1950 Act. The judgment in the case of Janab (supra) in paragraph 4 refers to the judgment reported in 1996 RD 163 (Smt. Sumartiya v. Commissioner), which was made the basis for rejecting the revision. I have heard learned counsel for the parties and the judgment in the case of Janab (supra) squarely applies on the facts of the present case. There is absolutely no reason to defer from the view taken in the aforesaid decision. Learned Additional Commissioner has rejected the revision simply on the ground that the revision is not maintainable. I have heard learned counsel for the parties and the judgment in the case of Janab (supra) squarely applies on the facts of the present case. There is absolutely no reason to defer from the view taken in the aforesaid decision. Learned Additional Commissioner has rejected the revision simply on the ground that the revision is not maintainable. In the circumstances, the order dated 31.5.1997 is set aside and the matter is remitted back for decision afresh in the light of the observations made hereinabove as expeditiously as possible preferably within a period of six month from the date of production of a certified copy of this order before him. Accordingly the writ petition is allowed." 5. In response of the aforesaid order of this Court dated 29.7.2013, the proceeding of the revision in question was again revived and finally the same was again dismissed by the Additional Commissioner on 12.8.2016, giving rise to the present writ petition. 6. Learned counsel for the petitioners submits that the revisional authority while rejecting the revision has erred in law and at no point of time, there was any requirement to take into consideration of Rule 173 of U.P. ZA & LR Rules, 1952 (in short, the Rules). He has also placed reliance on Sections 195 and 197 of UP ZA & LR Act, 1950 (in short, the Act). Section 195 of the Act provides that the Land Management Committee with the previous approval of the Assistant Collector in charge of the sub-division shall have the right to admit any person as bhumidhar with non-transferrable rights to any land other than land being in any of the classes mentioned in Section 132. Section 197 of the Act gives power to the Land Management Committee to admit any person as an asami over the land as described therein with the previous approval of the Tehsildar whereas Sections 198 gives the order of preference in admitting persons to land under Sections 195 and 197 wherein after giving the order of preference with respect to the eligible person for allotment of land, it also gives power of cancellation of patta under sub-section (4) with power of revision or review. 7. 7. In this backdrop, learned counsel for the petitioners submits that for allotment of housing sites, there was no requirement of seven days' notice before the date of meeting for admission of land, the numbers of plots, their areas and the date on which admission thereto is to be made. The provision of Rule 173 would be applicable in case the land in question is to be settled for agricultural purpose and the same would not be applicable as per provisions contained under Sections 195 and 197 for settlement of land for residential purpose. He submits that the revisional Court has erred in law in relying upon the provisions contained in Rule 173 of the Rules. 8. On the other hand, learned Standing Counsel appearing for the State respondents as well as private respondents raised objections that admittedly, in the present matter the procedure had not been adhered and as per provisions contained under Rule 173 of the Rules, it was incumbent upon the Gaon Sabha, in which the land is situated, to announce by beat of drum at least seven days before the date of meeting for admission of the land, the numbers of plots, their areas and the date on which admission thereto is to be made but at no point of time the said provision has been taken care of and admittedly seven days' notice has not been given in the matter. Learned Standing Counsel has also placed reliance on Rule 115-Q of the Rules, which provides that the person to whom the housing site is allotted shall be required to build a house and begin to reside in it or to use it for the purpose for which it was built within three years from the date of allotment. It is sought to be contended that in the present matter, admittedly the alleged formality for allotment of the land in question had taken place in the year 1988 and as per provisions contained under Rule 115-Q the construction had not been made. Once the formalities, which are required to be followed as per provisions contained under Rule 115-Q, had not been followed while making the allotment in question, then at this stage no reprieve can be extended to the petitioners. 9. Heard rival submission and perused the record in question. 10. Once the formalities, which are required to be followed as per provisions contained under Rule 115-Q, had not been followed while making the allotment in question, then at this stage no reprieve can be extended to the petitioners. 9. Heard rival submission and perused the record in question. 10. In the present matter, it is admitted situation that the entire claim has been set up on the basis of alleged resolution of the Gaon Sabha dated 25.11.1988. It has also been claimed that the Munadi for the meeting was also done. Finally, after making spot inspection, the allotment in question was made in favour of 19 persons for housing purpose and the same was approved by the Sub Divisional Magistrate on 12.7.1989. After allotment and issuance of Form No.49 Cha, the possession of the plots were handed over to the petitioners on 3.3.1990 and since then, they are in possession over the land in question. It is also admitted situation that at no point of time any construction has been made over the allotted site. Rule 173 of the Rules clearly provides that 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 numbers of plots, their areas and the date on which admission thereto is to be made. There is no distinction that Rule 173 are not applicable for allotment of housing sites and as such, the argument of learned counsel for the petitioner cannot sustain and the same is rejected. 11. Once this is factual situation, which is emerging from the record in question, then this Court is of the considered opinion that at no point of time the provisions contained under Rule 173 of the Rules had been adhered by the respondents while settling the alleged lease in favour of the petitioners and as such, no reprieve can be extended to the petitioners. 12. Consequently, the writ petition sans merit and it is, accordingly, dismissed. 13. However, it made clear that in case there is any vacant land, then the authority on the spot would be at liberty to proceed strictly in accordance with law.