Heard Shri Vijay Kumar, learned counsel for the petitioners, Shri M.C. Singh, learned counsel for respondent no.3 and the learned Standing Counsel for the State.
This matter was heard at length on 11.8.2014 and the following order was passed:
"Heard the learned counsel for the petitioners.
The petitioners were allotted patta of agricultural land in pursuance of the resolution of the Land Management Committee dated 10.10.1986 after the approval by the Sub-divisional Magistrate dated 21.2.1987. Certain complaints were made by the respondents herein that the allottees were not landless agricultural labourers. Based on the aforesaid complaint, the patta was cancelled by the Additional Collector by order dated 24.8.1999. A revision was filed against the order of cancellation of the patta, which was also dismissed by order dated 5.12.2000. Being aggrieved, the petitioners filed this writ petition challenging the aforesaid orders.
The contention of the learned counsel for the petitioners is that though the finding has been recorded in the cancellation order that the petitioners are not landless agricultural labourers, but there is no material to support the same. The report of the Tehsildar in favour of the petitioners has also not been considered.
Learned counsel for the respondent no.3, on the other hand, submits that not only the petitioners have land in excess of 1.26 hectares but even otherwise, they do not fall in the preferential order of allottees under section 198 of U.P.Z.A.& L.R. Act. As most of the petitioners do not belong to the category of scheduled castes and are not landless agricultural labourers, therefore, they could not have been given the patta in preference to other persons belonging to the scheduled castes.
The officers of the State have passed the impugned order but have not filed counter affidavit, though this case is pending before the court for the past 14 years.
In view of the submissions made above, it is necessary that the records be summoned from the respondents and they be asked to file a counter affidavit so as to enable the Court to ascertain firstly, as to whether the petitioners possessed land in excess of 1.26 hectares; secondly, as to whether at the time of allotment of patta there were other categories of landless agricultural labourers who could have been given preference vis-a-vis petitioners in such matters, in view of the provisions of section 198 of the U.P.Z.A. & L.R. Act.
Learned Standing Counsel prays for and is granted two weeks' time to file counter affidavit subject to payment of Rs.10,000/- as costs to be deposited by the next date. Respondent no.7 shall file the affidavit in reply to the averment made in the writ petition annexing all the relevant records and shall produce the relevant records on the next date.
List/put up this case as an unlisted matter on 25.8.2014.
A copy of this order shall be provided to the learned Standing Counsel within 48 hours."
In pursuance thereto a counter affidavit was filed on behalf of respondent no.7 and the records were also produced on the next date, i.e., 28.8.2014 and the following order was passed on the said date:
"List this case on 18.09.2014.
On the next date, learned standing counsel shall produce the complete records, which were available before the Additional Collector, who cancelled the allotment vide order dated 24.08.1999, as also the records, which were available before the revisional authority, which passed the order dated 05.12.2000, so as to ascertain that there was any such evidence before the said authorities to justify the observations contained in the impugned orders or not. Records pertaining to allotment shall also be produced before this court.
A counter affidavit filed by the respondent No.3 on 29.05.2014 is not on record. A rejoinder affidavit filed by the petitioner on 17.07.2014 is also not on record. Office is directed to trace the aforesaid affidavits and place the same on record. The original order sheet of the case as ordered by the earlier order shall also be placed on record."
The original records have been placed before the Court. The records reveal that statements of several villagers to the effect that the allottees had landed property, they were wealthy persons, some of them were not resident of the village and there were several villagers falling under the preferential category under Section 198(1) of the U.P.Z.A.& L. R.Act, who were not considered for allotment of patta and the patta was illegally granted to the allottees who belonged to upper castes. In the statements it has also been alleged that some of the allottees were related to the Gram Pradhan or member of Land Management Committee.
In the cross-examination, however, it has come out that the documents pertaining to the land holdings were not filed and it is also not known as to whether the allottees were employed elsewhere or not.
The records reveal that there is a report of the Tehsildar dated 18.7.1987 which is contrary to the statements recorded during the proceedings by the Additional Collector. The said report of the Tehsildar indicates that the allottments were made to eligible persons, the respondents were not in possession of the land allotted to the allottees who were either landless labourers or possessed land less than the permissible limit and the allotment had been made after approval of the proposal of the Land Management Committee by the Sub-divisional Magistrate.
Apparently, there are contradictions in the report of the Tehsildar and the statements made by the villagers before the Additional Collector.
On a perusal of the impugned order dated 24.8.1999, I find that none of the parties were present before the Additional Collector at the time of hearing and the Additional Collector after hearing the arguments of District Government Counsel (Revenue) to the effect that the allotments were illegally made and the allotments were fraudulent, but without considering the other material before him and without being satisfied as to whether the allottees were landless labourers or not passed the impugned order. The findings of the Additional Collector are not based on a proper consideration of the material before him, neither the statements of the villagers were considered nor the cross-examination of the witnesses as recorded in the proceedings have been discussed nor the report of the Tehsildar has been considered. The contradictions in the statements of the villagers and the report of the Tehsildar have also not been considered or dealt with and merely on the arguments of the District Government Counsel (Revenue), a cryptic finding has been recorded by the Additional Collector. The Additional Collector has not considered the matter in the right perspective, with the right approach and in the right manner. The order of the Additional Commissioner also does not disclose any better application of mind. It is a completely non speaking order.
The valuable rights of the parties relating to allotment of Gaon Sabha land are involved which have to be considered and decided with due and proper application of mind in the light of the legal provisions and the law declared by the courts. The impugned orders do not satisfy the test of proper application of mind and the orders have been passed ignoring the material on record.
For the reasons aforesaid, the impugned orders cannot be sustained and the same are quashed. The matter is remanded back to the Additional Collector for consideration afresh and passing of a fresh order after due and proper opportunity to all the parties and also after due and proper inspection/verification of the facts and evidence relating to the controversy. This exercise shall be completed by the Additional Collector within four months from the date a certified copy of the order is produced before him.
During the course of arguments, Shri M.C.Singh, learned counsel for the respondent no.3 invited the attention of the Court to the provisions of section 198 wherein categories of allottees have been mentioned in the order of preference for the purposes of allotments under Sections 195 and 197 of U.P.Z.A.& L.R. Act. He also invited the attention of the Court to Rules 171 to 177 regarding the procedure to be followed in the matter of such allotment. The submission of the learned counsel was that the provisions contained in Rule 173 etc. are in conflict with the substantive provision contained in Section 198, therefore, the same are not sustainable and do not serve the object for which Section 198 has been included in the Act.
Section 198 provides that in the admission of persons to land as bhumidhar with non transferable right or asami under Sections 195 and 197, the Land Management Committee shall select persons for such admission to land as per the order of preference mentioned in clause (a) to (e) therein. Rule 173 of U.P.Zamindari Abolition and Land Reforms Rules of 1952 provides that whenever Land Management Committee intends to admit any person to land under Section 195 or Section 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 to land, the numbers of plots, their areas and the date on which admission is to be made. Under Rule 174 thereof on the said date, a meeting of the committee shall be held to select persons for admission to land as sirdar or asami as the case may be. A list of all the persons who are present and who expressed their desire to be admitted to the land, shall be prepared in Z.A. Form 57-A. The names of the persons shall be arranged in the list in the order of preference laid down in Section 198. Thereafter under Rule 175, the committee shall examine the eligibility of persons included in the list and shall take a decision based thereon.
The object of section 198(1)(d) is to provide land to the landless labourers belonging to downtrodden section of the society in preference to other categories of persons who have expressed their desire to be admitted to land. In the social and economic context prevailing in our country where people from the downtrodden society may not muster the courage to present themselves in the meeting of the Gaon Sabha/Land Management Committee or even if they do, they may be hesitant to express their desire to be admitted to such land or may be prevented from doing so by the socially and economically powerful people of the village having vested interest, therefore, in order to further the object of section 198, it would be more appropriate that for the purposes of such allotment/admission to land in favour of socially and economically weaker sections of the society, the revenue authority or such other authority, as may be competent, may prepare a list of such candidates belonging to the preferential category of allottees as mentioned in section 198, on the basis of the family register, revenue records and such other records as may be relevant and admissible in law and provide the same to the Gaon Sabha/Land Management Committee which may take a decision based on such records, without there being a requirement of asking such persons to be present in the meeting of Gaon Sabha/Land Management Committee and to express their desire to be admitted to such land under Section 195 or Section 197 read with Section 198 of the Act of 1950. This will allay the possibility of manipulation and deprivation of benefits due to the downtrodden class and shall ensure transparency and fairness in such allotment. If the person belonging to the preferential category does not desire to be admitted to such land, he may express such disinclination in writing before the Sub-divisional Magistrate concerned by presenting himself before him and in such eventuality the next eligible person can be offered allotment. It has also been noticed by the Court that at the time of time of granting approval or disapproval in exercise of powers under Section 196 of the Act or Rule 176(4), the concerned authority passes a cryptic order worded as "approved" or "disapproved" which does not disclose due and proper application of mind. It would be appropriate that guidelines be issued by the State Government to the concerned authorities indicating the manner in which such power is to be exercised.
As the vires of Rule 173 is not under challenge in this writ petition as such the same cannot be considered nor a writ of mandamus be issued for making any amendment therein, as aforesaid, nevertheless, the State Government is requested to consider the aforesaid aspect of the matter. It is accordingly provided that the Principal Secretary Revenue, Government of U.P. Lucknow and such other authorities of the State Government who are competent in this regard may look into the matter and consider if suitable amendments are required in the U.P.Z.A.& L.R. Act and the Rules framed thereunder for the purpose of such allotments in the light of the observations made hereinabove.
A copy of this judgment shall be sent to the Chief Secretary, Government of U.P. as well as the Principal Secretary Revenue, Government of U.P. Lucknow for necessary compliance.
With the aforesaid observations, this writ petition is allowed.
Order Date :- 18.9.2014 sc