Suraj Bali vs B.R. And Others
2024 Latest Caselaw 36708 ALL

Allahabad High Court

Suraj Bali vs B.R. And Others on 8 November, 2024

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:175650
 
Court No. - 49
 

 
Case :- WRIT - B No. - 13732 of 1991
 

 
Petitioner :- Suraj Bali
 
Respondent :- B.R. And Others
 
Counsel for Petitioner :- Ashok Kumar Singh Yadav,Krishna Mohan,Rajnarayn Singh Yadav
 
Counsel for Respondent :- Niladra Shekhar Singh,S.C.
 

 
Hon'ble Saurabh Shyam Shamshery,J.
 

Civil Misc. Restoration Application No.29 of 2024

1. This writ petition was filed in the year 1991, which was rejected by an order dated 02.05.2007 in the absence of counsel for petitioners since despite matter was called twice, none appears. For reference the same is reproduced hereinafter :-

"Though the case has been taken up in the revised list but no one has appeared on behalf of the petitioner to press this petition.

I have heard learned standing counsel for the State ? respondent and Sri V.K. Singh appearing for Gaon Sabha.

The petitioner claim to have been allotted land by the Land Management Committee vide Resolution dated 15.11.1972. Subsequently, on an application moved by Lalta and others seeking cancellation of the allotment, an inquiry was conducted and it was reported that 17 persons of the list were not landless agricultural labourers. It was further reported that a large number of persons who were landless, were not considered for allotment of land by the Land Management Committee. Relaying upon the said report, Collector Azamgarh vide order dated 15.11.1972 cancelled the lease granted in favour of the petitioners. Said order was challenged by the petitioners by filing two separate revisions. Additional Commissioner, Gorakhpur by a common order dated 21.06.1979 dismissed both the revisions. Aggrieved, petitioners approached the Board of Revenue by filing second revision which was also dismissed vide order dated 18.04.1991.

All the three Courts below have concurrently held that procedure prescribed under the law for making allotment, was not followed and thus cancelled the lease granted in favour of the petitioners. Having perused the impugned judgments, I find no illegalities in the same.

The writ petition appears to be concluded by findings of fact recorded by all the three Courts below. It, accordingly, fails and is dismissed."

2. Petitioners thereafter filed a recall/restoration application on 25.07.2007, however, it got dismissed on 23.08.2024 by following order :-

"1. Case is taken out of turn on the mention slip of Sri Krishna Mohan, learned Advocate, learned counsel for the petitioner. However, none is present for either of the parties. Learned Standing Counsel for the State-respondent is present.

2. Case is dismissed for want of prosecution. "

3. In the aforesaid circumstances, another restoration application was filed on 04.09.2024 being No.29 of 2024.

4. Heard Sri Rohit Verma, learned counsel for petitioners.

5. Cause shown is sufficient that counsel for petitioners was busy in another Court, therefore, the said application is allowed.

Civil Misc. Restoration Application No. 171779 of 2007

1. Heard counsel for petitioners.

2. Counsel for petitioners refers paragraph No.3,4 and 5 of application and for reference the same is reproduced hereinafter :-

"3. That, on 02.05.2007 the Counsel of the petitioner was out of station as he was to attend the marriage at his house in Village Bijoura, District Ghazipur. The Counsel of the petitioners has transfer the Brief of the case to Sri Gulab Singh, Advocate for adopting the appropriate Court in case the aforesaid Writ Petition is listed in absence of the Counsel of the petitioners.

4. That the aforesaid Counsel Sri Gulab Singh Advocate although was vigilant yet due to the inadvertent mistake the clerk of the aforesaid Advocate Sri Gulab Singh could not mark the present Writ petition on 02.05.2007 and none appeared on behalf of the petitioner on 02.05.2007 and the case was dismiss the absence of the Counsel of the petitioner. A true copy of the Ex-parte order dated 02.05.2007 is being filed and marked herewith as Annexure No. 1 to this Affidavit.

5. That the deponent came at Allahabad on 19.07.2007 was doing necessary pairavi of the aforesaid Writ Petition then he found the Writ Petition has been dismissed in absence of the Counsel of the petitioner."

3. Learned counsel for petitioners submits that this Court by an order dated 02.05.2007 has proceeded in absence of counsel for petitioner and dismissed the writ petition and since it is an error, therefore, a recall is being filed in support of his submission, he refers a judgment passed by Supreme Court in Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and others, 1981 AIR 606.

4. I find merit in above argument, therefore, order dated 02.05.2007 is recalled and writ petition is restored on its original number.

Civil Misc. Delay Condonation Application Nos. 3/18, 5/18, 7/18, 9/18, 11/18, 13/18, 15/18, 17/18, 19/18 and 21/18

1. Heard.

2. Cause shown is sufficient.

3. Delay in filing substitution applications are hereby condoned.

4. Applications are allowed.

Civil Misc. Substitution Application Nos. 4/18, 6/18, 8/18, 10/18, 12/18, 14/18, 16/18, 18/18, 20/18 and 22/18

1. Heard.

2. Substitution applications are allowed. Necessary amendments be carried out within 72 hours.

Order on memo of petition

1. Learned counsel for petitioners submits that petitioners are allottees of Patta which was conducted in a due process.

2. In pursuance of a resolution dated 15.11.1972, a belated objection was filed on behalf of one Lalta Ram and others in the year 1973. On basis of said application, on 01.07.1974, Collector Azamgarh directed Nayab Tehsildar to conduct an inquiry for suo moto action that was undisputedly within a prescribed limitation.

3. In pursuance of above order, Nayab Tehsildar conducted an inquiry and submitted a report dated 23.10.1974 that due process was followed while passing the resolution and there was no illegality in allotment of pattas in favour of petitioners.

4. Subsequently, the said complainant filed a fresh application on 25.04.1975, making allegation that about 17 eligible persons were not considered. A further list of 50 persons was submitted, disclosing that despite they have less land in comparison to land of petitioners i.e. allottees but they were also not considered for Patta.

5. In the aforesaid circumstances, the Collector Azamgarh passed an order for conducting a fresh inquiry.

6. In pursuance of above order, Teshildar conducted a fresh inquiry and submitted a report dated 12.09.1975 and pointed out that such number of persons who were having much less land than allottees were not considered for allotment of land. The Collector Azamgarh, placed reliance on said report has cancelled the resolution dated 15.11.1972 as well as the lease by an order dated 25.05.1978. The relevant part thereof is mentioned hereinafter :-

"In his report dated 12.09.1975 submitted that the 17 persons contained in the first list were admittedly were landless but they were not agricultural labourers and so they could not be allotted the land. Tehsildar Mohammadabad has given a list of large number of persons who were having much less land as compared to the allottees and yet they were not considered at the time of allotment thus from the report of Tehsildar it is absolutely clear that at the time of passing the resolution the list of persons eligible for allotment was not properly prepared and the allotment was made against priorities foxed in section 198 ZA and LR Act alongwith other allegations made by Lalta etc. have been found to be false. But the very fact that allotment was made against the priorities prescribed under Section 198 Z.A. and L.R. Act make the resolution dated 15.11.1972 illegal."

7. The petitioners thereafter filed separate revisions against order dated 26.05.1978, however, both revisions were dismissed by Additional Commissioner Gorakhpur by order dated 21.06.1979. The relevant part thereof is mentioned hereinafter :-

"It is true that on this report of the Tehsildar an order was passed by the Collector what suo moto action be taken but that order was passed in routine. The Collector has already passed an order dated 01.07.1975 for taking suo moto action and proceeding was pending when the collector asked Tehsildar to make fresh enquiry and submit report. This report of the Tehsildar was not a preliminary report. It was given during the pendency of the case. The Collector was perfectly justified in placing reliance on the report of the Tehsildar. No illegality or irregularities has been committed by the Collector. He has given cogent reason for cancelling the patta."

8. In the aforesaid circumstances, petitioners thereafter filed a revision petition before Board of Revenue which also got dismissed by an order dated 18.04.1991. The relevant part thereof is mentioned hereinafter :-

"???? ??????? ?????? ?? ????? ????? ?????????????? ?? ??? ???????? ?? ?????? ?? ???? ?? ???? ??? ??????? ???? ???????? ?? ????? ?? ?? ?? ?????? ?? ????? ???? ??????? ?? ???????? ???? ??? ???????? ?? ????? ??? ?? ?????? ?? ??????? ?? ?? ???????? ?????? ??? ????????? 1 ??????? ?? ???????? ?? ?? ??? ?????? ?? ???? ?? ?? ?????? ???? 4,5 ??? ????? ??? ?? ?? ????? ??????? ???? ?? ????? ?? ???? ????? ??? ??? ??? ?????? ??? ???? 173 ????? ??? ????? ??????? ?? ??????? ???? ???? ??? ??? ??? ???? ????? ?? ????????? ???? ??? ??? ???????? ?? ????? ????? ??? ????? ???? ?? ??????? ???? 198 ??? ??? ??? ?? ?????? ???? ??? ?? ?? ??????? ??? ??? ?? ???? ???? 10-11-87 ?? ?? ???? ??? ??? ???????? ?? ???? ??????? ??? ???? ?? ?????? ??????? ??????? ?????? ????????? ???? ?? ??? ?????? ???? ??? ??????? ??????? ??? ??? ?? ???? ?? ?? ????? ?? ???? ??? ??????? ???? ???? ????? ????? ??? ???????"

9. All above orders are impugned in present writ petition.

10. Learned counsel for petitioner submits following arguments :-

(a) The complainant has no locus to file any objection to the allotment of lease since he could not fall within the ambit of 'an aggrieved person' as mentioned in Section 198 (4) of U.P. Z.A. and L.R. Act.

(b) In order to pass an order for cancellation of lease, the Collector ought to have adopted the procedure as prescribed under Rule 178 (A) of U.P. Z.A. and L.R. Rules i.e. to grant opporutnity not only the Land Management Committee but the allottees of land also but the same was not undertaken.

(c) The Tehsildar concerned in his first report has specifically stated that due procedure was followed and no illegality was pointed out, however, in the second report, it was pointed out that some of persons who have less land in comparison to petitioners were not considered for allotment, however, the concerned Collector has not scrutinized the said inquiry by applying independent mind and passed the order only on basis of said report without granting any opportunity to file objection to it either by the Land Management Committee or by allottees i.e. petitioners.

(d) None of persons who have been alleged to have less land in comparison to petitioners i.e. allottees have approached before the Tehsildar or Collector to raise any objection.

11. Learned counsel submits that Revisional Court has proceeded on alien grounds which was not being part of order of Collector or Appellate Court i.e. no proper Munadi was conducted as required under Rule 173 of U.P. Z.A. and L.R. Act.

12. Sri Anshul Nigam, learned Standing Counsel for State has supported the impugned order that resolution itself was bad since not only the proper pre-requisite procedure was not followed but eligible persons were also not included in the lease, however, it is not disputed that no aggrieved person has come forward to make any complaint.

13. Heard counsel for parties and perused the record.

14. As referred above, few facts are not under dispute that on objections were filed by complainant, a report of Tehsildar on first complaint of complainant was submitted but has not pointed out any irregularity or error in procedure adopted for allotment of lease/patta which was in a way accepted by Collector since no order was passed.

15. The complainant thereafter submitted a fresh complaint mainly on two grounds though one ground was not found to be true but second ground that some of persons have less land in comparison to allottees were not part of lease was accepted in the second inquiry report of the Tehsildar and the Collector passed the order to cancel the resolution on said ground only, therefore, any other ground mentioned in subsequent orders are alien, therefore, that cannot be considered as a valid ground.

16. The argument of learned counsel for petitioner has a substance that complainant may not fall within the category of aggrieved persons since he has not claimed to be claimant for the Patta as well as it is also not under dispute that no other person has claimed to be aggrieved, has approached the Collector or Tehsildar to challenge the procedure adopted for the purpose of allotment.

17. As referred above, a procedure has been prescribed for Collector to conduct inquiry even suo moto, however, admittedly neither the land management committee nor petitioner that allottees were put on notice, therefore, the procedure prescribed under the above referred rules was not followed, which has prejudiced the petitioners.

18. The Court also takes note that Collector has simply accepted the second inquiry report of Tehsildar without even applying its independent mind on referred issues. The Court also takes note that this Court has passed interim order on 13.05.1991 that petitioner shall not be dispossessed and there is no material on record that even during the period when this writ petition remained dismissed, the petitioners were dispossessed from the land.

19. In the aforesaid circumstances, the Court is of considered opinion that procedure adopted by Collector for cancelling the resolution dated 15.11.1972 for allotment of Patta is illegal since not only due procedure as prescribed to conduct the inquiry by Collector was not followed but even the complainant would not fall within the ambit of aggrieved persons. Otherwise also, it was an ex-parte exercise conducted behind the petitioners since they were not granted any opportunity of hearing.

20. This writ petition is accordingly, allowed.

21. As rightly pointed out by learned Standing Counsel for State that present order will applicable only to the petitioners since not only interim order was only in regard to petitioners but no other party has approached this Court despite this writ petition remained pending for last 34 years.

Order Date :- 8.11.2024

P. Pandey