DHANAUTI (DEAD) THROUGH LRS.AND OTHERS Vs. ADDL.COMMISSIONER, EXECUTIVE II, VARANASI DIVISION, VARANASI AND OTHERS

JUDGEMENT

(1.) HEARD Sri Triveni Shanker, learned counsel for the petitioners, Sri Ajeet Srivastava, learned counsel for the respondent nos.3 and 4 and learned Standing Counsel for the respondent nos.1, 2 and 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.

(2.) 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.

(3.) 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.