ABDUL RAHMAN Vs. STATE OF U P

JUDGEMENT

(1.) SHITLA Prasad Srivastava, J. Though this petition was listed for admission but as the parties have exchanged counter and rejoinder affidavits and as the learned coun sel for the parties have agreed; this petition is being disposed of finally.

(2.) THE brief facts are that aggrieved by the order dated 25-4-90 passed by respon dent No. 2, the petitioners have filed this petition under Article 226 of the Constitu tion of India. THE petitioners' contention is that they were landless agricultural Labourer and when the land was declared as surplus land in a proceeding under the provisions of U. P. Imposition of Land Holdings Act started against Mohd. Shafi & others, the State after taking possession of the surplus land settled the land with the petitioners in accordance with law on a lease. THE petitioners on the basis of the lease-deed came in possession and con tinued in possession. It is further contended that in pursuance of the lease-deed the names of the petitioner were recorded in the revenue record and it is admitted in para 7 of the writ petition that some dispute between respondent No. 1 and 3 and the State Government, was going on, but the petitioner were not aware of such dispute. THEy only came to know of it when in 1990 some official of respondent No. 1 tried to disposes the petitioners from the land in dispute. It is further stated that on 25-4-90 some order was passed by the respondents and Parwana-amal-daramad was issued. It is further stated that prior to 17-9-90 the petitioners were not aware of the order dated 25-4-90 passed by respondent No. 2 Grievance of the petitioners is that as the petitioners were allottees in possession of the property on the basis of a valid allot ment order and a deed was executed in their favour by the State, respondent No. 2 has no jurisdiction to pass such order without giving any notice to the petitioners as the order amounts to cancellation of the lease granted to the petitioners in respect of the land in question. THE petitioners have at tacked the aforesaid order on number of grounds, but the main ground of attack is that the petitioners should have been given opportunity of hearing before passing the impugned order.

(3.) HEARD learned counsel for the par ties at length. Learned counsel for the petitioner Sri Subodh Kumar has vehe mently urged that since the petitioners were granted lease in respect of the land which was declared surplus land by the Prescribed Authority, lease deed was executed in favour of the allottees, names have been mutated in the revenue paper, they came in possession and continued in possession, then respon dent No. 2 had no jurisdiction to allow the application for choice without hearing the petitioners as that would amount cancellation of the lease of the particular plot which has been given in choice by the tenure-holder. His further contention was that even if the order which was subsequently set aside in appeal on the basis of which they were granted Patta, but the petitioners continued in possession, in equity they have a right of hearing and they should be impleaded as party to the proceeding before respondent No. 2. In reply it has been urged by learned counsel for the respondent Sri K. M. Sinha that it was not a proceeding under Section 27 of the Act before the Commissioner which lays down that before cancelling the lease, opportunity of hearing must be given to the leasee, but it was proceeding of choice which given to the tenure-holder in view of direction given by the High Court in a writ petition and it was a right of the tenure-holder under Section 12 (A) whether the petitioners who were allottees were party or not is not a point for consideration. His contention is that the impugned order is not vitiated in law. In my view the argument of Sri K. M. Sinha has much force. A bare perusal of the order of the High Court passed in the writ petition would show that after setting aside the order passed by the appellate authority, the matter was sent to the Prescribed authority to re- determine the ceiling area and the tenure-holder was given liberty to give choice in respect of the land as to which land he wants to retain or which he wants to partwith. The Prescribed authority is only a competent authority to deal with the matter and if an area was subsequently reduced by the prescribed authority which was on earlier occasion and no appeal was filed against that judg ment by the State then respondent No. 2 has committed no error in law in allowing the application of the tenure-holder for giving choice. Therefore, the choice subject was not a dispute between the petitioners and the tenure-holder, rather it was only an ad justment between the tenure-holder and the State which wanted to take the land of the petitioner. Therefore, the petitioners have no right to interfere in the matter of choice and they were not a necessary party in a proceeding of choice. In other way also their lease has not been cancelled by the order of respondent No. 2, rather an area was declared surplus and the State has taken possession which was given to the petitioners, but subsequently the order was modified, changed or cancelled then the petitioners have no right to continue. The State is entitled to acquire that much area which was declared to be surplus land keeping in view the choice of the tenure- holder given by him under Section 12-A of the Act.