Since in both the writ petitions common orders are challenged, those are adjudicated upon by the following common orders.
Heard Mr R.S. Pandey and Mr S.A. Khan, learned counsel for respondents as well as Mr R.N. Gupta, learned counsel for Gaon Sabha and also learned Standing Counsel.
The petitioners have challenged the orders dated 22.2.2008, passed by the Collector, Sultanpur in Case Nos. 203,157 and 158 in exercise of powers provided under Rule 115- P of U.P. Zamindari Abolition and Land Reforms Act ( hereby referred to as Act). By means of order impugned the petitioners' leases have been cancelled on the reports submitted by the Revenue Officer, who submitted report that Mr Dal Singar, one of the allottees, who has been allotted 0.013 hectare of Gata No. 237 already keeps residential land measuring 6.47 square meter. Mr Ram Ajore, who has been allotted 0.010 hectare of Gata No. 436 already keeps 3.575 sq. ft. land. Mr Shailendra Kumar, who has been allotted 0.013 hectare of Gata No. 342 already keeps 1152 sq. ft land over which pucca house has been constructed. Mr Jawahar Lal, who has been allotted 0.013 hectare of Gata No.342 already keeps a constructed house over 500 sq. ft. land and he also keeps cattle shed over 448 sq. ft. Mr Sheo Nayak, who has been allotted 0.013 hectare of Gata No. 342 already keeps residential land measuring 8950 sq. ft. over which Kachcha and Pucca houes have already been constructed. One Mr Zamal, who has been allotted 0.008 hectare of Gata No. 397 also keeps 3355 sq. ft. land. Some of them live with other members of family. It is also reported that 20 eligible persons belonging to Scheduled Castes, who are eligible for allotment, have not been allotted land. One eligibility list has been prepared in whose their names are listed whereas names of persons, who have been allotted the land do not find place in the eligibility list.
Upon perusal of the order impugned I find that there is a finding of the cancelling authority that the allotment was made in haste manner as on 8th July, 1999, Lekhpal submitted report for approval of allotment. On 9th July, 1999 the Tehsildar recommended to the Sub Divisional Magistrate to make an allotment by exercising suo motu power. On that very date itself the report was called upon from the Naib Tehsildar, who submitted report on the same day and the Sub Divisional Magistrate also approved the allotment on the same very day. No resolution of the Land Management Committee was passed. The original record of allotment is also before me in which the Revenue Officer submitted that the effort was made to get resolved the resolution made by the Land Management committee for allotment of housing site but could not succeed. However, the record does not show any such effort was made by the authorities. Thus, it appears that the Revenue Officer has prepared such a report only to justify the action of the Assistant Collector for suo motu allotment.
Thus it is observed that the allotment was approved without verifying the eligibility of the allottees. It has further been observed that the approving authority also did not wait for any resolution of the Land Management Committee for allotment of land. However, the allotment made in favour of Ram Ajore, who is a Scheduled Caste candidate has been kept intact as there was no complaint against his allotment and further he belongs to Scheduled Caste candidate. The order of cancellation of allotment has been upheld by the revisional authority being in violation of the provisions of law.
Learned counsel for the petitioners submitted that the orders impugned are also discriminatory in nature as the allotment made by the same very authority in the same very manner has been upheld whereas the allotment of other allottees have been cancelled on the ground that they are ineligible. It is further stated that once the allotment through the same very procedure made in favour of one person has been upheld much less the same very procedure adopted for allotment cannot be disputed. So far as , the eligibility of the petitioners for allotment is concerned, it is stated by the petitioners that the petitioners are agricultural labours. Therefore, they stand on priority in order of preference for allotment under Section 122- C of the Act.
It is further stated that under Section 122-C(4) of the Act the Assistant Collector in charge of the Sub Division is empowered to allot the land himself on his own motion. He took such steps because of failure of the Land Management Committee to make necessary allotment in favour of the eligible persons. Therefore, the same cannot be said to be faulty.
On the other hand, Mr R.N. Gupta, learned counsel appearing for the Gaon Sabha further drew the attention of this Court towards sub- section (4) of Section 122-C of the Act and submitted that the Assistant Collector can exercise suo motu power of allotment only when the Land Management Committee has failed to discharge its duties or to perform its function under sub-section (2) or it is otherwise necessary or expedient so to do. It is relevant to quote complete provisions of Section 122- C of the Act;
" 122-C Allotment of Land for housing site for members of Schedules Castes, agricultural labourers etc. (1) The Assistant Collector in charge of the sub division of his own motion or on the resolution of the Land Management Committee, may earmark any of the following classes of land for the provisions of abadi sites for the members of the Schedules Castes and [the Schedules Tribes and the Other Backward Classes and the persons of general category living below poverty line] and agricultural labourers and village artisans.
(a) lands referred to in clause (i) of sub-section (1) of section 117 and vested in the Gaon Sabha under that section.
(b) lands coming into possession of the Land Management Committee under section 194 or under any other provision of this Act;
(c) any other land which is deemed to be or becomes vacant under section 13, section 14, section 163, section 186 or section 211;
(d)where the land earmarked for the extension of abadi and reserved as abadi site for harijans under the U.P. Consolidation of Holdings Act, 1953 is considered by him to be insufficient, and land earmarked for other public purposes under that Act is available, then any part of the land so available.
(2)Notwithstanding anything in sections 122-A,195,196,197 and 198 of this Act, or in sections 4,15,16,28-B and 34 of the United Provinces Panchayat Raj Act, 1947, the Land Management Committee may with the previous approval of the Assistant Collector in charge of the sub division allot, for purposes of building of houses, to persons referred to in sub section (3)-
(a) any land earmarked under sub-section (1);
(b)any land earmarked for the extension of abadi sites for harijans under the provisions of the U.P. Consolidation of Holdings Act, 1953;
(c) any abadi site referred to in clause (vi) of sub-section (1) of section 117 and vested in the Gram Sabha;
(d)any land acquired for the said purposes under the Land Acquisition Act,1894.
(3)The following order of preference shall be observed in making allotments under sub section (2)-
(i)[an agricultural labourer or village artisan residing in the Gram Sabh and belonging to any of the following categories in the order of preference:-
(a) persons belonging to the Scheduled Castes and the Scheduled Tribes;
(b) persons belonging to other backward classes;
(c)persons belonging to the general category living below poverty line,]
(ii)any other agricultural labourer or village artisan residing in the village;
(iii)[any other person residing in the Gram Sabha and belonging to any of the following categories in the order of preference:-
(a) persons belonging to the Scheduled Castes and the Scheduled Tribes;
(b) persons belonging to other backward classes;
(c)persons belonging to the general category living below poverty line,
(iv) a person with disability residing in the village.
Explanation -I -The expression " agricultural labourer" shall have the same meaning as in section 198.
Explanation II- The expression '' village artisan' means a person who does not hold any agricultural land and whose main source of livelihood is manufacture or repair of traditional tools, implements and other articles or things used for agriculture or purposes ancillary thereto and includes a carpenter,weaver, potter, blacksmith, silversmith, goldsmith, barber, washer man, cobbler or any other person who normally earns his livelihood by practising a craft either by his own labour or by the labour of any member of his family in any rural area:
Provided that no person shall be deemed to be a village artisan whose total income( including income of his or her spouse and minor children) exceeds two thousand four hundred rupees in a year.
Explanation III- The expression "person with disability" shall mean a person with any disabilities mentioned in clause(i) of Section 2, of the Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( Act No. 1 of 1996).
Explanation IV- Preference shall be given to a person who either holds no house or has insufficient housing accommodation considering the requirement of his family, Explanation V- The expression "persons of general category living below poverty line" shall have the same meaning as in section 198.
(4)If the Assistant Collector in charge of the sub-division is satisfied that the Land Management Committee has failed to discharge its duties or to perform its functions under sub-section (2) or it is otherwise necessary or expedient so to do, he may himself allot such land in accordance with the provisions of sub-section (3).
(5)Any land allotted under this section shall be held by the allottee on such terms and conditions as may be prescribed.
(6)The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land under this section inquire in the manner prescribed into such allotment, and if he is satisfied that the allotment is irregular, he may cancel the allotment, and thereupon the right, title and interest of the allottee and of every other person claiming through him in the land allotted shall cease, (7)Every order passed by the Assistant Collector under sub-section(4) shall, subject to the provision of sub-section (6) and every order passed by the Collector under sub-section (6) shall be final, and the provisions of ( section 333 and section 333-A) shall not apply in relation thereto.
(8)[***] (9)In rule 115-L of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 sub rule(2) shall be deemed always to have been omitted."
He further submits that the procedure for allotment of land for housing sites is regulated under Rule 115 L,M and N. Rule 115 regulates the allotment of land earmarked for the extension of abadi for Harijans under the provisions of the U. P. Consolidation of Holdings Act, 1953 and any other land of abadi site vested in Gaon Sabha. Rule 115 M regulates the allotment of abadi sites other than those referred to in Rule 115-L. Rule 115-N speaks that whenever the Land Management committee proceeds to allot housing sites under rule 115-L or 115-M-, it shall announce by beat of drum in the village the exact location of the sites to be allotted, the time, the date and venue of allotment. All allotments shall be made by the Land Management Committee held for the purpose on the date announced under sub-rule (1). Under Rule 115-P (4) the Collector is empowered to cancel the allotment and thereupon the right, title and interest of the allottee , if he is satisfied that allotment is irregular.
In light of the aforesaid provisions it is stated by Mr R.N. Gupta, learned counsel for Gaon Sabha that at first hand, it is the Land Management Committee to proceed for allotment and if it fails to proceed for allotment only then the role of Assistant Collector comes into play to exercise his suo motu power for allotment. However, no where it is stated that the Land Management Committee was asked to proceed for resolution of allotment and it failed to do so, therefore, the Assistant Collector exercised his suo motu power. He reiterated that role of Assistant Collector comes into play only when the Land Management Committee fails to proceed for allotment. All these exercises provided under the law to be done by the Land Management Committee for allotment of housing site are missing in the present case. Further the decision of the Assistant Collector for allotment appears to be in haste manner as he has completed whole formalities of allotment and approved allotment also on the same very day which creates doubt in the fairness of his decision. Accordingly it is stated by him that the Collector, Sultanpur has rightly cancelled the petitioners' allotment which do not require interference by this Court.
After hearing the learned counsel for the parties as well as perusal of the record I find that the exercise of allotment has been completed on one day on the basis of the report submitted by Lekhpal on preceding date without verifying the eligibility of allotment. After enquiry all the allottees have been reported to have kept other housing land or house itself.
The power of allotment of housing sites under Section 122-C of the Act is regulated by Rules 115 L,115 M and 115 N. Sub -section (1) of Section 122-V provides that Assistant Collector in-charge of the sub-division of his own motion or on the resolution of the Land Management Committee, may earmark any of the classes of land for the provisions of abadi sites. Sub-section (2) empowers the Land Management Committee to allot for purposes of building of houses with previous approval of the Assistant Collector in charge of the sub division to persons referred to in sub-section (3). Sub-section (3) provides the order of preference to be observed in making allotment under sub-section (2) . Sub-section (4) provides that if the Assistant Collector in charge of the sub division is satisfied that the Land Management Committee has failed to discharge its duties or to perform its functions under sub-section (2) or it is otherwise necessary or expedient so to do, he may himself allot such land in accordance with the provisions of sub-section(3). Thus, under sub section (4) the Assistant Collector can exercise his power of allotment in the event of failure of the Land Management Committee to discharge its duty or to perform its function under sub-section (2) or it is otherwise necessary or expedient so to do in accordance with the provisions of sub-section (3). After reading of the aforesaid provisions it is obvious that the Assistant Collector can exercise his suo motu power of allotment either on the failure of the Land Management Committee or if he feels otherwise necessary or expedient so to do, but in the second situation the Assistant Collector has to record his satisfaction regarding necessity and expediency to proceed for suo motu allotment.
Thus it is unambiguous that the resolution of the Land Management Committee for allotment of housing sites is not mandatory in the second event of exercising suo motu power by the Assistant Collector. The necessary ingredients in exercising of suo motu power for the Assistant Collector is to record his satisfaction to do so. But in this case such satisfaction of the Assistant Collector is also missing. Therefore, suo motu power exercised by the Assistant Collector cannot be said to be exercised in accordance with law.
Under the circumstances, I do not find any error in the orders impugned. At this juncture, I feel it appropriate to observe that the allotment made in favour of Sri Ram Ajore, who has been found eligible therefor, cannot be said to be valid through same very procedure which has been held faulty as above. Therefore, direction is issued to the Collector, Sultanpur to res-consider his allotment also in light of the observations made herein-above and pass appropriate order after providing opportunity of hearing to him. It is further provided that opposite party no. 4 shall be at liberty to prepare a fresh eligibility list of prospective allottees, if the land for housing sites for the persons, who are eligible for allotment are available and shall call upon the Land Management Committee to make necessary resolution therefor in accordance with law.
In the aforesaid terms, the writ petitions are disposed of finally.
Original record is returned to the learned Chief Standing Counsel to send it back to the office concerned.
Order Dated:20th of March, 2012 Tripathi