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ANIL KUMAR versus ADDL. COMMISSIONER & OTHERS

High Court of Judicature at Allahabad

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Anil Kumar v. Addl. Commissioner & Others - WRIT - C No. 16959 of 1999 [2006] RD-AH 3890 (20 February 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.26

Civil Misc.Writ Petition No.16959 of 1999

   Anil Kumar

      Versus

      Additional Commissioner, Allahabad Division, Allahabad & others

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the orders dated 15.12.1998 and 3.6.1997 by which the patta, which was allotted in favour of the petitioner has been cancelled and the revision filed by the petitioner has also been dismissed.

The fact arising out of the present writ petition is that after following the due procedure as provided under the law, a patta was allotted in favour of the petitioner by the Land Management Committee of Plot No.246 1m. area 10 biswas on 12.3.1991.  A copy of the allotment order in favour of the petitioner has been annexed as Annexure 1 to the writ petition.  The petitioner applied for mutation of his name before the Tehsildar and his no objection was filed by anybody, the name of the petitioner was recorded and the petitioner was to be in possession.  From the date of allotment the petitioner is in peaceful possession of the said land.  It appears that on the report of the Sub-Divisional Officer a proceeding under section 198 (4) of the U.P. Zamindari and Land Reforms Act was registered against the petitioner as Case No.85 of 1997 of cancellation of patta.  It appears that on the basis of the report of Sub Divisional Officer, the notices were issued at the address of village Osa and in the event of non- appearance, the District Magistrate has ordered for cancellation of patta on 3.6.1997.  The ground taken thereafter is that as the petitioner is not the resident of the village where the land is situated, therefore, he is not entitled for patta, which was allotted in favour of the petitioner.  When the petitioner came to know regarding the aforesaid order, the petitioner filed a revision before the Commissioner, which was numbered as Revision No.176 of 1997.  The petitioner along with the copy of the revision, filed various documents and an affidavit to this effect that no notice was ever served to the petitioner, as such, the petitioner was not afforded an opportunity therefore, the order passed by the authority concerned is liable to be quashed.  But the revisional court without considering the aforesaid fact whether the notice was served upon the petitioner or not only on the basis of the two witnesses who have signed on the notice at the time of fixation at the resident of the petitioner.  The revision was dismissed vide its order dated 15.12.1998.

Aggrieved by the aforesaid order, the petitioner has filed the present writ petition.

The writ petition was entertained on 22.4.1999 and the notices were issued to file a counter affidavit and till further orders, the operation of the order was stayed.  The petitioner submits that on the basis of the interim order, the petitioner is still in possession of the land in dispute.

It has been submitted on behalf of the petitioner that in view of the provisions of Section 198 (6) there cannot be any cancellation of patta beyond five years as proved under Section 198 (6) (b) of the U.P. Zamindari and Land Reforms Act.  The period mentioned in the said provision is five years from the date of allotment.  Admittedly, the patta was allotted in favour of the petitioner on 12.3.1991 and the same has been cancelled vide its order dated 3.6.1997.  Admittedly the order of cancellation dated 3.6.1997 is after a lapse of five years which is not permissible under the law. Rule 198(6) is being reproduced below:-

"198 (6)- Every notice to show cause mentioned in sub-section (5) may be issued-

(a) in the case of an allotment of land made before November 10,1980 (hereinafter referred to as the said date), before the expiry of a period of (seven years) from the said date; and

(b) in the case of an allotment of land made on or after the said date, before the expiry of a period of (five years from the date of such allotment or lease or up to November 10, 1987, which ever be later)."

The further submission made on behalf of the petitioner is that in view of the Rule 178-A the Land Management Committee was a necessary party and admittedly, the Land Management Committee is not impleaded as a party to the proceedings as such, the orders passed by the authorities below is nullity in view of the provision of Rule 178-A of the U.P.Zamindari and Land Reforms  Act.

The other submission on behalf of the petitioner is that no notice and opportunity has been given which is apparent from the order passed by the Collector vide dated 6.3.1997. Admittedly, the notices were sent at the address of Village Osa.  No notices were sent to village pata.  From the finding recorded by the competent authority it is clear that the witnesses before whom the notices were pasted at the resident of the petitioner has stated that the petitioner has gone to Allahabad, meaning thereby on the day when the notices were alleged to be served upon the petitioner he was not present.  Therefore, it would have been proper for the respondents to wait for the return of the petitioner from Allahabad and to make it sure that the notices are served because directly a mode of fixation of notice without making effort to this effect regarding personal service upon the person concerned cannot be adopted.  The revisional court has also without verifying this fact that whether there was any proper notice to the petitioner regarding the pendency of the proceeding.  This clearly goes to show that before passing the aforesaid order, no notice and opportunity has been given to the petitioner.  The order is an ex-parte order without considering the relevant records.

A counter affidavit has been filed.  In Para 6 of the counter affidavit, it has been stated that after perusal of the said patta, it appears that there is no signature of the Secretary of the Land Management Committee and no date is mentioned. In paragraph 9 of the said affidavit, it has been stated that before the order dated 3.6.1997 the notices were issued.  Nothing has been stated in the counter affidavit regarding service upon the petitioner.  In the counter affidavit, the notices have been annexed as Annexure C.A.2 which shows that the notices were issued but it has been issued at the address of village Osa where admittedly the land does not belong. From the said notice it also appears that the case number and year have not been mentioned.

I have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.

From the record it is clear that Annexure 1 to the writ petition an allotment was made in favour of the petitioner on 12.3.1991 and the address mentioned is village pata and the notices have been sent at the village Osa.  No notices have been sent  to the address mentioned in the order of allotment of patta in favour of the petitioner.  There is no evidence on record to show that the notices were actually served upon the petitioner as no finding has been recorded by both the authorities.  The finding to this effect by the revisional court is that on the basis of the statement of one Ramdas and Nattu, it appears that the petitioner is a resident of village Osa. As such, allotment order can be cancelled on this ground alone.  From the finding recorded by the Courts below it is also clear that the petitioner has not been afforded an opportunity to submit before the authorities concerned regarding the validity of allotment and regarding the alleged allegation against the petitioner that the petitioner by concealing the aforesaid fact that he is a resident of village Osa were the land is situated, has got allotment of patta in his favour. Though in para 6 of the counter affidavit it has been mentioned that there is no signature of the Secretary of the Land Management Committee and there is no date on the document by which the patta has been allotted in favour of the petitioner.  Though this fact has been stated from the perusal of the patta which has been filed as Annexure 1 to the writ petition which clearly goes to show that the date of allotment has been mentioned  as 12.3.1991 and there is a signature of the Secretary of the Land Management Committee.  The respondents have not come with the case in the counter affidavit that the document by which the petitioner claims allotment of patta and annexed as Annexure 1 to the writ petition is a forged document. The respondents have also not denied this fact that the Land Management Committee was a necessary party to be impleaded while cancellation of patta against the petitioner according to the rules mentioned above. Therefore, as the Land Management Committee was not impleaded who was a necessary party in view of  Rule 178-A of the U.P. Zamindari and Land Reforms Act, therefore, it can be held that the total proceeding against the petitioner  is void and illegal.

In view of the aforesaid finding the orders passed by the respondents cannot be sustained and is liable to be quashed.  In such circumstances, the orders dated 3.6.1997 and 15.12.1998 (Annexure 3 and 6 to the writ petition) are hereby quashed. It is, however, open to the respondents to initiate a proceeding against the petitioner for cancellation of allotment of patta according to law and the petitioner will be afforded full opportunity before passing the order against the petitioner.

The writ petition is allowed.

There shall be no order as to costs.

20.2.2006

SKD    


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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