HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Judgment reserved on 17.02.2011) (Judgment delivered on 23.05.2011) Case :- WRIT - C No. - 43222 of 2000 Petitioner :- Jasveer & Others Respondent :- State Of U.P. & Others Petitioner Counsel :- B.Malik Respondent Counsel :- S.C.,P.K. Bishria,V.K.Singh Hon'ble S.U. Khan, J.
Heard learned counsel for the parties.
Some land was allotted to the petitioners, who are 14 in number, by Gaon Sabha/Land Management Committee (different parcels of land to each petitioner). Proceedings for cancellation of the allotment were initiated and both the courts below cancelled the allotment hence this writ petition.
One set of allotment was made for agricultural purposes and another set for residential purposes. Both the cancellation orders were challenged. However, the impugned judgments in both the writ petitions were mixed up. Thereafter, correct judgments were filed in both the writ petitions. The other writ petition has already been disposed of by me. The prayer clause has correctly been drafted in this writ petition and through the same, order passed by A.D.M. Finance and revenue on 16.06.1999 in case no. 4 of 1997-98 and order of revisional court/Additional Commissioner Meerut, Division Meerut passed on 17.08.2000 in revision no.135 of 1998-99 have been challenged. However, Annexure nos. 1 and 2 to the writ petition are copies of orders passed in case no.2 of 1997-98 and revision no.136 of 1998-99. Orders passed in these cases related to allotment for housing sites. Copies of orders passed in case no.4 by A.D.M. and revision no.135 by Revisional Court challenged through this writ petition have been separately supplied.
Allotment by Gaon Sabha/land management Committee of Village Vidyapur, Safaidabad pargana Jalalabad Tehsil Modinagar, District Ghaziabad was made through resolution dated 21.06.1992 to 16 allottees. It was approved by the S.D.O. on 05.09.1992. Proceedings for cancellation were initiated suo motu on the report of Deputy Collector Modi Nagar dated 09.03.1998. The report was that out of 16 allottees 7 belonged to higher castes and it was further reported that fathers/husbands of almost all the allottees were already having agricultural land and some of the allottees were members of panchyat also. Father of Jasvir (petitioner no.1), S/O Kripal (or Krishnapal) was having 22 bigha kachcha land and was also member of panchayat, husband of Smt. Birmati petitioner no.3. Father of Kunwar Pal was having 25 bigha Kaccha agricultural land.
It appears that earlier also proceedings were initiated for cancellation of patta. However, that case was dismissed in default and not on merit . Accordingly, both the courts below held that the proceedings in question were not barred by principles of res judicata. Plea of the cancellation application being time barred was also decided against the allottees. It was also the allegation against the allottees that some public utility land ear marked for Khalian, Panchayat Ghar and manure pits etc. during consolidation had also been allotted.
The earlier case was instituted by one Ved Prakash which was numbered as case no.61 of 1995-94. The A.D.M. (Finance and Revenue) Ghaziabad who decided the matter in question on 16.06.1999 summoned the file of the earlier case also. The earlier case was dismissed in default on 09.12.1997. The A.D.M. in the impugned order also found that in the date of Munadi there was cutting and there after 14.06.1992 was mentioned and in that plot numbers and area were not mentioned which was required to be mentioned in accordance with Rule 173 of U.P.Z.A.L.R. Rules. It is also mentioned that no list of deserving persons was preprepared and the list of allottees had already been prepared before the start of the meeting. It was also found by A.D.M. that Khasra plot no.84 area 3 bigha fasli which was entered as Khalian was changed to Navin Parhti. Some other irregularities were also found by the A.D.M. Revisional court also fully approved the finding of the A.D.M. I am of the opinion that on the ground of minor irregularities allotment can not be set aside. However, the fact that fathers, husbands or sons of the allottees were already having agricultural land was sufficient ground to cancel the allotment. Similarly, conversion of khalian into navin parhti was also illegal. Gaon sabha or S.D.O. can not change the user of the land from Khalian to Banjar etc. It is correct that if father or husband of some one has got agricultural land then this by itself is no ground to deprive him of right of allotment. However, for allotment preferential categories are given under Section 198 (1) U.P.Z.A.L.R. Act. If within a preferential category there are several persons in a village then obviously further restrictive criteria for allotment will have to be adopted. Landless agricultural labourers belonging to S.C., S.T. or other backward class or a person of general category living below poverty line or other landless agricultural labours are to be given preference.
If a piece of land is to be allotted to a landless agricultural labour belonging to scheduled caste and there are two such persons out of whom father of one has got some land but the father of the other has got no land then obviously that parcel of land is to be allotted to that person whose father has got no land in preference to that person in the same category whose father has got agricultural land. Petitioners claimed that in their village there was no person belonging to scheduled caste or scheduled tribe and that most of the petitioners are O.B.C. Even if it is correct still as there is no assertion that there are no other O.B.Cs in the village whose fathers or husbands do not possess any land allotment can not be sustained. The word landless is succeeded by agricultural labourers. A person whose father possess agricultural land of considerable area can not be agricultural labour. If the allotment is to be made under category (e) of Section 198(1) then preference will have to be given to those who have got no land or those who have got lesser land among other persons in the said category. If a parcel of land is to be allotted to the persons of the above category and there are two claimants one having 0.5 hectares of land and the other 1 hectare of land then the person who has got 0.5 hectares of land is to be preferred. (Clause (e) is as follows :- A bhumidhar or assami residing in the circle and holding land less than 1.26 hectars) Accordingly, writ petition is dismissed and it is further directed that fresh allotment of the land in dispute shall be made after due advertisement as directed through the authority reported in Raja Ram vs. Sonkali reported in 2009 (107) RD 796. Petitioners may also apply for the allotment and the fact that earlier allotment in their favour has been cancelled shall not ipso facto debar them from allotment if otherwise they are found to be entitled for the same.
Date: 23.05.2011 vkg