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2024 DIGILAW 1058 (ALL)

Surjeet Kumar v. State of U. P.

2024-04-16

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : Hon'ble Ashutosh Srivastava, J.-Heard Shri Suresh Chandra Verma, learned counsel for the petitioners, Shri Abhishek Shukla, learned Additional Chief Standing Counsel, for the State respondent Nos. 1 to 3 and Shri Hari Narayan Singh, learned counsel for the respondent No. 4, Land Management Committee. 2. The instant writ petition has been filed questioning the order dated 19.10.2023, passed by the Additional Commissioner (Second) Kanpur Division, Kanpur/Respondent No. 2 whereby and whereunder, Revision No. 1782 of 2022, under Section 210 of the U.P. Revenue Code, 2006 has been dismissed and the order dated 5.9.2022 passed by the Collector/District Magistrate, Farrukhabad/Respondent No. 3 has been upheld. 3. The writ petition arises out of proceedings under Section 128 of the U.P. Revenue Code, 2006. 4. The petitioners claim to be landless agricultural labourers belonging to the Scheduled Caste and OBC Categories and therefore, claim themselves, to be persons of preferential category under Section 126 (1) of the U.P. Revenue Code, 2006. They filed respective applications to the Land Management Committee of the village concerned for allotment of the agricultural leases under Section 125 of the Code. The Land Management Committee is stated to have held its meeting on 2.3.2020 after strictly following the provisions of Rule 119 of the U.P. Revenue Code Rules, 2016 found 17 persons of Schedule Caste, 102 of Other Backward Classes and 3 persons of General Categories, respectively, to be eligible for allotment of the agricultural leases vide its resolution dated 2.3.2020. The Tehsildar, under his report dated 17.12.2020 made recommendation to the Deputy Collector/Sub Divisional Officer, Tehsil Amritpur for according approval to as many as 81 persons found eligible for grant of leases as Bhumidhars with non transferable rights. The Deputy Collector/Sub Divisional Officer, Tehsil Amritpur, accorded approval for 81 leases including that of the petitioners vide approval order dated 5.1.2021 and the petitioners as well as other allottees were granted possession over the respective lands allotted under the respective leases. 5. Learned counsel for the petitioners vehemently submits that even though under Rule 121 of the U.P. Revenue Code Rules there is no power to the Deputy Collector to review his order granting approval, the Deputy Collector, illegally and arbitrarily after a period of more than 1 year and 6 months passed an ex-parte order/reference to the Collector on 27.8.2022 pointing out irregularities in the allotment of the leases to the allottees including the petitioners. The Collector/District Magistrate, Farrukhabad relying on the reference made by the Deputy Collector dated 27.8.2022, ignoring the provisions of sub-rule 3 of Rule 126 of the U.P. Revenue Code Rules, without issuing notices to the allottees including the petitioners and without giving any opportunity of hearing to the petitioners or other allottees passed the order dated 5.9.2022 whereby cancelling the entire allotment dated 2.3.2020 as also the approval order dated 5.1.2021 and sent back the case to the Sub Divisional Officer for fresh consideration. Aggrieved by the order dated 5.9.2022 the petitioners preferred a Revision under Section 210 of the Revenue Code 2006 being Revision No. 1782 of 2022 which too has been rejected. 6. Learned counsel for the petitioners, in the aforesaid backdrop, has vehemently argued that both the authorities i.e. the District Collector as also the Additional Commissioner while passing the impugned orders have committed manifest error of law in overlooking the fact that the petitioners were not issued any notices as required under the mandatory provisions of Sub-rule 3 of Rule 126 of the U.P. Revenue Code Rules which provides that the allottees were required to be impleaded as parties and opportunity of hearing was to be afforded to them before final orders were passed in the proceedings. Learned counsel for the petitioners further submits that the impugned order dated 5.9.2022, of the Collector, suffered from the vice of non compliance of the elementary principles of natural justice and as such was liable to be set aside and the Revision preferred by the petitioners was liable to be allowed on this ground alone. It is also contended that the petitioners are in possession over the land allotted to them under the respective leases and the respondents are making attempts to dispossess them. 7. Per contra, Shri Abhishek Shukla, learned Additional Chief Standing Counsel for the respondents submits that the entire proceeding of allotment has been cancelled by the Collector noticing certain irregularities in the allotment process and no illegality can be attributable to the order of the Collector. The petitioners cannot be said to be aggrieved in as much as the order only remands the matter to the Deputy Collector/Sub Divisional Officer for consideration afresh. The petitioners have every chance to be considered for fresh allotment. The Revisional order also cannot be said to suffer from any infirmity warranting any interference by this Court. The petitioners cannot be said to be aggrieved in as much as the order only remands the matter to the Deputy Collector/Sub Divisional Officer for consideration afresh. The petitioners have every chance to be considered for fresh allotment. The Revisional order also cannot be said to suffer from any infirmity warranting any interference by this Court. It is accordingly submitted that the writ petition as framed is liable to be dismissed at the threshold. 8. I have heard the learned counsels for the parties and have perused the record. A perusal of the impugned order dated 5.9.2022 passed by the Collector/District Magistrate, District-Farrukhabad/Respondent No. 3 reveals that the Tehsildar Amritpur under his report dated 17.12.2020 had submitted the proposal of the Land Management Committee dated 2.3.2020 shortlisting 81 allottees for grant of the agricultural lease. A Case under Section 126 of the U.P. Revenue Code 2006 was registered and notice dated 17.12.2020 fixing 2.2.2021 was issued. However the date fixed 2.2.2021 was preponed to 2.1.2021 and on 5.1.2021 approval order was passed. The learned Collector observed that the objections if any could have been filed by the date fixed. On the portal the proceedings were reflected as pending. The entire exercise of approval was carried out not in a fair manner. The learned Collector/District Magistrate has recorded adequate reasons for passing the impugned order dated 5.9.2022. The Revisional Court has also noticed the irregularities committed in the process of obtaining approval. 9. Now coming to the contention of the learned counsel for the petitioners. Much emphasis has been laid upon the Rule 126 of the Rules. Rule 126 of the Rules framed under the Revenue Code 2006 is referable to Section 128 of the Code which provides for cancellation of allotment in case of any irregularity has been caused. The Section 128 of the U.P. Revenue Code 2006 and the Rule 126 of the Rules referable to Section 128 are being quoted hereunder: 10. Section 128-(1) The Collector may, of his own motion and shall on the application of any person aggrieved, inquire in the manner prescribed into any allotment and if he is satisfied that the allotment is in contravention of the provisions of this Code or any of the enactments repealed by this Code or the rules made thereunder, he may cancel the allotment and the lease, if any. [(1-A) Under the provisions of sub-section (1) an application may be moved in the case of an allotment or lease of land made before or after the commencement of this Code, within five years from the date of such allotment of lease.] (a) the right, title and interest of the allottee of leassee or any other person claiming through him in such land and in every tree or other improvement existing thereon shall cease, and the same shall revert to the [Gram Panchayat]; (b) the Collector may direct delivery of possession over such land, tree or improvement forthwith to the [Gram Panchayat] after ejectment of every person holding or retaining possession thereof and may for that purpose use or cause to be used such force as may be necessary. (3) Where in proceedings for cancellation of allotment or lease referred to in clause (b) of sub-section (1) the Collector is satisfied that any land referred to in Section 77 excepting clause (a) or clause (h) or (i) thereof has been allotted to any person as bhumidhar with non-transferable rights, he may instead of cancelling the allotment or lease, direct that the allottee or lessee shall be treated as an asami under clause (b) of Section 125. (4) Every order made by the Collector under this section shall, subject to the provisions of Section 211, be final. (5) The provisions of Sections 5 and 49 of the Uttar Pradesh Consolidation of Holding Act, 1953 shall not apply to the proceeding under this section. Rule 126- Cancellation of allotment (Section 128) - (1) The Collector may on his own motion and shall on the application of any person aggrieved by the allotment made under Section 125, inquire into the irregularity of such allotment. (2) Where an application is made under sub-rule (1), the Collector may inquire whether the applicant is an aggrieved person, whether the application is within the limitation prescribed under Section 128(1), and whether he would like to initiate proceedings on his own motion. (3) If the Collector decides to proceed with the inquiry, the Samiti and the allottee shall be impleaded as parties and an opportunity of hearing shall be afforded to them, before final orders are passed in such proceedings. (3) If the Collector decides to proceed with the inquiry, the Samiti and the allottee shall be impleaded as parties and an opportunity of hearing shall be afforded to them, before final orders are passed in such proceedings. (4) During the pendency of the proceedings under this rule, the Collector shall have the power to pass such interim orders as the circumstances of the case may justify. (5) The allottee and the Samiti shall be allowed three weeks' time for filing the counter-affidavit/objection from the date of the issuance of the notice which may be extended on the sufficient reasons shown. Two weeks' time for filing replica/rejoinder-affidavit shall be afforded to the applicant, which may be extended on the sufficient reasons shown. (6)The Collector shall endeavor to conclude the enquiry within the period of three months from the date of issuance of notice and if the enquiry is not concluded within the period of three months, the reasons for the delay shall be recorded. 11. From the perusal of the Rule 126 it is apparent that the Collector is empowered to cancel an allotment made under Section 125 either on his own motion or on an application of any person aggrieved by the allotment made. If an application is made by any aggrieved person the Collector may inquire as to whether the person making the application is an aggrieved person, whether the application is within the period of limitation prescribed under Section 128 (1) and proceed with the enquiry after impleading the Samiti (Land Management Committee) and the allottee as parties and afford them opportunity of hearing before passing final orders. However, where the Collector proposes to act on his own motion he is not required to implead the Samiti or the allottee or even afford any opportunity of hearing before passing final orders. In the case at hand the Collector has acted on his own motion and as such there was no occasion to either implead the Land Management Committee/Samiti or the allotteess (petitioners herein) as parties and afford them an opportunity of hearing before passing the order dated 5.9.2022. The Court in such circumstances does not find that the order dated 5.9.2022 suffers from patent illegality as submitted by learned counsel for the petitioners. The Submissions made by learned counsel for the petitioners do not merit consideration and are hereby rejected. 12. The Court in such circumstances does not find that the order dated 5.9.2022 suffers from patent illegality as submitted by learned counsel for the petitioners. The Submissions made by learned counsel for the petitioners do not merit consideration and are hereby rejected. 12. Since the impugned orders entail that the learned Sub-Divisional Officer is to consider granting approval afresh, the petitioners cannot be said to be aggrieved in any manner. The writ petition in such circumstances lacks merit and is accordingly dismissed.