Uttarakhand High Court
Mohd. Ishak And Others vs Additional Commissioner And ... on 16 December, 2021
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
WPMS No. 2021 of 2008
Mohd. Ishak and others
..................Petitioners
Mr. Dushyant Mainali, Adv. for the petitioners
-versus-
Additional Commissioner and others
.........Respondents
Mr. Yogesh Pandey, Chief Standing Counsel for the State
Date of hearing and order
16.12.2021
Sri S.K.Mishra, J.
1. Heard Sri Dushyant Mainali, learned counsel for the
petitioners and Sri Yogesh Pandey, Addl. CSC for the
State.
2. By filing this writ petition, the descendants/legal heirs
of late Shri Bhuray have assailed the order passed by
the learned Additional Commissioner
(Administration), Kumaon Division, resuming the land
settled with late Shri Bhuray, which was found to be
ceiling surplus land of a tenant on the report of
Additional District Magistrate, Finance and Revenue,
Nainital.
3. The facts of the case are not disputed and detailed,
as follows:
On 05.04.1982, late Shri Bhuray - father of the
petitioner no. 1, who happens to be grandfather of
the petitioner no. 2 and 3 and late Azgar Ali was
allotted a piece of land measuring approximately one
acre, which was found to be surplus in a ceiling
proceedings and late Shri Bhuray was settled with the
land and given possession. On 05.08.1986, the
Additional District Magistrate submitted a report
before the Additional Commissioner, Administration
Kumaon Division, regarding the irregularity in
settlement of the land. The predecessors-in-interest
were noticed; they appeared before the Additional
Commissioner and filed their reply to the show cause
notice. On 15.07.1991, the order impugned was
passed cancelling the lease granted in favour of the
petitioners, giving order of resumption of the same.
In the year 1990, late Shri Bhuray filed a revision
before the Member of Board of Revenue bearing
Revision Case No. 286 of 1990. On 05.05.1993, the
revision was dismissed on the question of jurisdiction.
The original allottee late Shri Bhuray died in 1996. On
10.07.2002, the present writ has been filed.
4. In assailing the order passed by the learned
Additional Commissioner, Kumaon Division, the
learned counsel for the petitioner would argue that
the learned Additional Commissioner has
misinterpreted the provision that was enforced on the
relevant date i.e. on 05.04.1982 and has passed a
wrong order. He would further argue that delay in
preferring revision to this Court was caused because,
firstly, late Shri Bhuray approached the wrong forum
i.e. Member of Board of Revenue in the year 1990
and the revision was dismissed on 05.05.1993 and
secondly, the said late Shri Bhuray died in the year
1996 and his sons could not know about the order
passed in the revision by the learned Member of
Board of Revenue, therefore, they filed the writ
application in the year 2002. Hence, the learned
counsel for the petitioners would further argue that
the writ petition should not be dismissed on the
ground of delay and laches on the part of the
petitioners.
5. Shri Yogesh Pandey, learned Additional Chief
Standing Counsel, on the other hand, would argue
that in this case, the procedure for grant of lease/
allotment of ceiling surplus land has not been
followed and therefore, the order passed by the
learned Additional Commissioner is correct.
Moreover, he would argue that there is a delay of
about 12 years in filing the writ petition challenging
the order impugned.
6. At the outset, it is seen that the petitioners are poor
landless labourers, whose predecessor-in-interest,
was also a poor landless labourer belonging to a
minority community. He and his brother were granted
a piece of agricultural land, which is less than one
acre for sustenance. It is also submitted by the
learned counsel for the petitioners that the
petitioners are in possession of the same land, which
means that the land, in question, is in possession of
the petitioners from the time of their predecessor-in-
interest i.e. for the last 40 years, so at this stage to
disturb their possession, will be giving death blow to
the source of income/livelihood of the petitioners.
7. The next aspect, which strikes this Court is that
though a show cause notice was issued to the
petitioners' predecessor-in-interest whose name was
late Shri Bhuray, nowhere, in the order impugned, it
is mentioned that in fact, late Shri Bhuray was
intimated about the ground on which the land allotted
to him was sought to be resumed to the State of
Uttarakhand. Absence of intimation of such grounds
to the allottee would definitely constitute a violation
of principles of natural justice. This Court is of the
opinion that in case, the State or its instrumentalities
or authorities or officials propose to pass an adverse
order effecting property right of person, then a
simple show cause notice as to why the allotment or
the lease etc. should not be cancelled is not sufficient
compliance of the principles of natural justice. What
is required to be communicated to him is the ground
on which the authorities, in this case, the Additional
District Magistrate seeks cancellation of allotment and
resumption of the land. That having not been
communicated to the predecessor-in-interest of the
petitioner, there has been a violation of the natural
justice.
8. Now, coming to the contention raised by the learned
counsel for the petitioners, it is seen that the learned
Additional Commissioner in a single line in the last
paragraph of the order held that 'neither the
petitioners could establish that they are included
within the preferential persons, as enunciated in the
relevant law to be the beneficiary of the scheme nor
there is any report of the proposal of the Gram
Sabha'. As far as, the order of preference is
concerned and prior to the Amendment Act of 2007 -
the U.P. Zamindari Abolition and Land Reforms
(Amendment) Act, w.e.f. 31.07.2007, the relevant
provision reads as follows:-
"198. Order of preference in admitting persons
to land under Section 195 and 197.- (1) In the
admission of persons to land as (Bhumidhar with
non-transferable rights) or asami under Section
195 or Section 197 (hereinafter in this section
referred to as allotment of land) the Land
Management Committee shall, subject to any
order made by a Court under Section 178,
observe the following order of preference:
(a) Landless widow, sons, unmarried daughters
or parents residing in the circle of a person who
has lost his life by enemy action while in active
service in the Armed Forces of the Union;
(b) a person residing in the circle, who has
become wholly disabled by enemy action while in
active service in the Armed Forces of the Union;
(c) a landless agriculatural labourer residing in
the circle and belonging to a Scheduled Caste,
Scheduled Tribe, other backward class or a
person of general category living below poverty
line.
(d) xxxxxxxxxxxxx
(e) xxxxxxxxxxxxx
(f) xxxxxxxxxxxxx
(The rest of the preference categories are not
relevant for this case)."
9. A plain reading of this provision leaves no doubt in
the mind of this Court that in first category of person,
who was required to be settled with land, is landless
widow, sons, unmarried daughters or parents
residing in the circle of a person, who has lost his life
by enemy action while in active service of the Armed
Forces of the Union of India. The second category is
of a person residing in the circle, who has become
wholly disabled by enemy action while in active
services Armed Forces of the Union of India and the
third category is of a person, who is landless
agricultural labourers residing in the circle and
belonging to a Scheduled Caste or Scheduled Tribe or
other backward class or a person of general category
living below the poverty line.
10. This category was added only after amendment in the
year 2007. There is further classification of the
categories mentioned in clause (c). So, only after an
amendment of 2007 a further classification of many
categories persons are mentioned in Clause (c) and
hence, this Court is of the opinion that on the date of
settlement of land on resumption from a ceiling
surplus holder, as a benevolent act of the State of
Uttarakhand then part of Uttar Pradesh, the
petitioners / predecessor-in-interest were placed at
par with persons belonging to Scheduled Castes or
Scheduled Tribes or other backward classes. So, the
order passed by the Additional Commissioner to that
extent is also erroneous.
11. As far as, the second aspect is concerned that there
is no proposal of the Gram Sabha regarding
settlement of land, in question, in favour of the
predecessor-in-interest of the petitioners. This Court
has observed that even though there are no such
recommendations in favour of the other allottees of
the same land but no adverse order has been passed
against them. Because the learned Additional
Commissioner passed an order only against late Shri
Bhuray and Shri Azgar Ali, in that view of the
matter, this Court is of the opinion that the order
passed by the Additional Commissioner is also liable
to be set-aside on the ground of discrimination.
12. Moreover, this proposal of the Gram Sabha for
settlement of land is directory in nature and not
mandatory. Even there is no violation of substantive
provisions only because the Gram Sabha has not
proposed the name of late Shri Bhuray and Shri
Azgar Ali, the allotment should not have been
cancelled. In that view of the matter, the writ
petition, being a meritorious one, succeeds and
therefore, is allowed. The impugned judgment and
order passed by the Additional Commissioner,
Kumaon Division, is hereby quashed. The authorities
are directed to record the name of the petitioners, if
not already recorded, after due inquiry in the revenue
records and they shall not disturb in their possession.
The land was settled in the name of late Shri Bhuray
and late Shri Azgar Ali. Late Shri Azgar Ali, who was
brother of late Shri Bhuray, died in the meantime
without any legal heirs (as submitted by the counsel
for the petitioners under instructions).
13. There shall be no order as to costs.
14. Urgent certified copy of this order be granted on
proper application as per Rules.
(S.K.Mishra)
Judge
A/-
