Heard Sri Triveni Shanker, learned counsel for the petitioners, Sri Ajeet Srivastava, learned counsel for the respondent nos.3 & 4 and learned Standing Counsel for the respondent nos.1, 2 & 5.
Notices were issued to other respondents. Some of them have already filed writ petition no.17310 of 1998 (Loknath and others Vs. Board of Revenue and others). The petitioners herein claim that they were allotted land by the Gaon Sabha in the meeting held on 10.07.1994. The same came to be approved by the Sub-Divisional Officer, Saidpur on 09.12.1994. The dispute arose on account of an application having been moved by Chandra Deo the then Gram Pradhan in the year 1996 and a copy of the said application on which proceedings were initiated, is filed as Annexure No.2 to the writ petition.
Sri Triveni Shanker, learned counsel for the petitioner submits that the first question that arises for consideration is that such a proceeding could not have been initiated or concluded without putting the petitioners to notice in terms of sub-section (5) of Section 198 of the U.P. Z.A. & L.R. Act, 1950. He further contends that the findings which have been recorded on the basis of an alleged report of the Tehsildar dated 15.07.1996, was never made known to the petitioners, and the said report has been made the basis for the cancellation of the lease. A categorical plea has been raised to this effect in paragraph nos.14 to 16 of the writ petition. It is further urged that there was neither any irregularity nor were the petitioners ineligible for grant of lease and in the absence of any notice and without any explanation in this regard, the conclusions drawn are ex-parte without allowing the participation of the petitioners under the statutory requirement aforesaid.
A counter affidavit has been filed on behalf of respondent nos.3 and 4 Gaon Sabha but no counter affidavit has been filed on behalf of the State. The other respondents, as noted above, have already filed a separate writ petition. They are also aggrieved by the action of the Collector in proceeding to take suo motu action for allotment of leases in accordance with the directions given in the impugned order dated 29.08.1996.
Aggrieved by the order of the Collector dated 29.08.1996 and the dismissal of the revision of the petitioners on 26.02.1998 the present writ petition has been filed contending that the impugned orders are in violation of principles of natural justice as enshrined under the statutory provisions of sub-section (5) of Section 198 of the Act and even otherwise against the weight of evidence on record.
Sri Triveni Shanker, learned counsel for the petitioner, therefore, submits that the impugned orders deserve to be quashed and the writ petition deserves to be allowed.
Learned counsel for Gaon Sabha on the other hand contends that a finding has been recorded that ineligible persons have been allotted land and that the petitioners were not party to the said allotment proceedings, as such, the entire procedure is vitiated. He contends that the petitioners had opportunity to demonstrate their bona fides before the Commissioner in appeal and as such, the plea of opportunity does not hold water. He contends that the impugned order clearly records findings of fact which does not deserve any interference in the exercise of discretionary jurisdiction of powers under Article 226 of the Constitution of India.
Learned Standing Counsel also adopts the same arguments.
Having perused the documents on record and having considered the aforesaid submissions, the dispute in so far as it relates to the allotment of petitioners is concerned it is undisputed that the petitioners were allotted land and the same was approved by the Sub-Division Officer, Saidpur. If the authorities were proceeding to cancel the said allotment, in the opinion of the Court the mandatory requirement of sub-section (5) of Section 198 of the 1950 Act had to be fulfilled inasmuch as sub-section (5) clearly recites that no orders for cancellation shall be made unless a notice of show cause is given to the allottee. The principles of natural justice are, therefore, engrained as a statutory requirement and there is nothing on record to indicate that the petitioners were ever put to notice about the said proceedings initiated by the Collector.
Apart from this the counter affidavit of the Gaon Sabha does not demonstrate that any such notice was served on the petitioners.
The contention raised on behalf of the petitioners that the order has been passed on the basis of a report of the Tehsildar dated 15.07.1996 also deserves to be noticed inasmuch as if the said report is the basis of the cancellation order then in that event it was obligatory on the Collector to put the petitioners to notice about the evidence which was sought to be utilized for cancelling the lease of the petitioners.
In these circumstances, the only conclusion that can be drawn is that the cancellation has been carried out in violation of the provisions of sub-section (5) of Section 198 of the Act.
Thus, in my opinion, the order of the Collector dated 29.08.1996 being in violation of principles of natural justice and in violation of the aforesaid statutory provisions is a nullity. Accordingly, the order dated 29.08.1996 and the affirmance thereof by the Commissioner dated 26.02.1998 in so far as it relates to the petitioners' allotment and its cancellation is hereby set aside with a direction to the Collector-respondent no.2 to afford an opportunity of hearing to the petitioners and then pass an appropriate order in accordance with law.
The writ petition is accordingly allowed.
Order Date :- 12.4.2012 AKShukla/-