# Smt. Dhanauti & others v. Addl. Commsssioner

- **Citation:** (2012) 1 ILRA 469
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-12
- **Case number:** Civil Misc. Writ Petition No. 9349 of 1998
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-dhanauti-others-v-addl-commsssioner-42204
- **Pages:** 3

## Headnote

U.P.Z.A. & L.R. Act 1950-Section-198 (5)-
Cancellation of lease-on basis of report
submitted by Tehsildar-without issuing
notice or opportunity of hearing-held
order nullity.

Held: Para 12 and 13

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
Collectorrespondent no.2 to afford an opportunity
of hearing to the petitioners and then
pass an appropriate order in accordance
with law.

## Text

1 All] Smt. Dhanauti & others V. Addl. Commsssioner
469
had neither been withdrawn nor cancelled
by the Board but in the present case, the
vacancy for the post of Headmaster which
was earlier invited was withdrawn and the
advertisement made by the Board was
cancelled as such there was no legal bottle
neck in finalizing the transfer proposal of
the opposite party no. 6. Moreover, the
transfer of opposite party no. 6 was
accorded final approval by the Additional
Director of Education, who is said to be
the competent authority. The opposite
party no. 6 thereafter has submitted his
joining on the post in question on
27.12.2011.

29. Under the aforesaid facts and
circumstances, I am of the considered
opinion that the writ petition being devoid
of merit is liable to be dismissed, it is
accordingly dismissed.

30. Interim order, if any, stands
discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 9349 of 1998

Smt. Dhanauti & others
 ...Petitioner
Versus
Addl. Commsssioner
 ...Respondent

Counsel for the Petitioner:
Sri Triveni Shankar

Counsel for the Respondents:
Sri Ajeet Srivastava
Sri V.K. Singh
Sri Sudhakar Pandey
S.C.

U.P.Z.A. & L.R. Act 1950-Section-198 (5)-
Cancellation of lease-on basis of report
submitted by Tehsildar-without issuing
notice or opportunity of hearing-held
order nullity.

Held: Para 12 and 13

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
Collectorrespondent no.2 to afford an opportunity
of hearing to the petitioners and then
pass an appropriate order in accordance
with law.

(Delivered by Hon'ble A. P. Sahi,J. )

1. Heard Sri Triveni Shanker,
learned counsel for the petitioners, Sri
Ajeet Srivastava, learned counsel for the
respondent nos.3 & 4 and learned
Standing Counsel for the respondent
nos.1, 2 & 5.

2. 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
470 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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.

3. 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.

4. 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.

5. 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 subsection (5) of Section 198 of the Act and
even otherwise against the weight of
evidence on record.

6. 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.

7. Learned counsel for Gaon Sabha
on the other hand contends that a finding
has been recorded that ineligible persons
have been allotted land and that the
petitioners were not party to the said
allotment proceedings, as such, the entire
procedure is vitiated. He contends that the
petitioners had opportunity to demonstrate
their bona fides before the Commissioner
in appeal and as such, the plea of
opportunity does not hold water. He
contends that the impugned order clearly
records findings of fact which does not
deserve any interference in the exercise of
discretionary jurisdiction of powers under
Article 226 of the Constitution of India.

8. Learned Standing Counsel also
adopts the same arguments.

9. Having perused the documents on
record
and
having
considered
the
aforesaid submissions, the dispute in so
far as it relates to the allotment of
petitioners is concerned it is undisputed
that the petitioners were allotted land and
the same was approved by the Sub-
1 All] Smt. Kavita V. State of U.P. and others
471
Division
Officer,
Saidpur.
If
the
authorities were proceeding to cancel the
said allotment, in the opinion of the Court
the mandatory requirement of sub-section
(5) of Section 198 of the 1950 Act had to
be fulfilled inasmuch as sub-section (5)
clearly
recites
that
no
orders
for
cancellation shall be made unless a notice
of show cause is given to the allottee. The
principles of natural justice are, therefore,
engrained as a statutory requirement and
there is nothing on record to indicate that
the petitioners were ever put to notice
about the said proceedings initiated by the
Collector.

10. Apart from this the counter
affidavit of the Gaon Sabha does not
demonstrate that any such notice was
served on the petitioners.

11. 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.

12. 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.

13. 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.

14. The writ petition is accordingly
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2012

BEFORE
THE HON'BLE DHARNIDHAR JHA, J.
THE HON'BLE RAMESH SINHA, J.

Civil Misc. Habeas Corpus Writ Petition
No. 10715 of 2012

Smt. Kavita

 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar Srivastava

Counsel for the Respondents:
Sri A.K.Pandey
Govt. Advocate

Constitution of India, Article 226-Habeas
Corpus Petition-determination of ageC.J.M. By placing reliance upon medical
report-confined
petitioner
in
Nari
Niketan-confirmed by Session Judgeadmittedly when the offence committed
she was about 18 years-as per law
developed by Apex Court in Jai Mala
Case 3 years have to be added-petitioner
not committed any offense-if taken away
from Lawful custody of her guardian-her
liberty can not be confined-petition
disposed of by giving liberty to go at any
place or person of her choice