B. L. Yadav, J. - (1.) THIS petition under Article 226 of the Constitution of India is directed against the order dated 19-8-1987 passed by the Additional Commissioner, Agra Division, Agra, cancelling the allotment of land made in favour of the petitioners under Section 27 of the U. P. Imposition of Ceiling of Land Holdings Act (for short the Act), and the order dated 11-4-1988, passed by the Additional Commissioner, rejecting the restoration application filed by the petitioner.
(2.) THE factual matrix of the case is that in village Kunjera, Tahsil and District Mathura, certain land was declared as surplus under the Act in pursuance of the proceedings conducted against the original tenure holders and the question arose for settlement of that land declared as surplus. THE settlement was made in favour of petitioners under Section 27 (2) of the Act. An objection was filed by respondent nos. 4 to 6 with the allegations that the petitioners were not proper persons with whom the settlement could have been made, nor they were preferential claimants in view of the provisions of Section 198 of the UP ZA and LR Act, hence the allotment of land made in favour of petitioners may be cancelled. THE parties led evidence and the lease in favour of petitioners were cancelled by the impugned order dated 19-8-1987. It is against these orders the present petition has been filed. Learned counsel for the petitioner urged that the petitioners were afforded no opportunity of hearing and the matter was decided exparte without hearing them. Under Section 27 (4) of the Act there was a mandatory provision that a notice may be served on the person in whose favour such settlement has been made, but no such notice was served on the petitioners. In the instant case even though the petitioners filed objections, but when the matter was disposed of by the impugned order, the petitioners were not aware of the date fixed and by the exparte order the allotment has been cancelled. Hence the impugned order may be quashed. Learned Standing Counsel, on the other hand, urged that the expression 'he may after notice to the person' under Section 27 (4) indicates that it is directory, otherwise also while dismissing the restoration application the petitioners were given opportunity of hearing and that being post decisional hearing was sufficient. Both the parties have, however, agreed that the petition may be disposed of finally on merits as the counter and rejoinder affidavits have been exchanged.
(3.) RESTORATION application was filed by petitioner 2 Bhagwat, which was dismissed in default on 4-2-1988. Another restoration application was filed by Pooran, petitioner no. 1 making averments in favour of allottees including Bhagwat, petitioner no. 2. The Additional Commissioner has taken the view that as no restoration was filed by Bhagwat, rather it has been filed by Pooran, petitioner no. 1, that cannot be said to be restoration application. In such matters statutory hearing is provided under Section 27 (4) that the allottee shall be given notice before any order for cancellation of allotment is made. The relevant statutory provision of Section 27 (4) of the Act is set out below : "27 (4). The Commissioner may of his own motion and shall on the application of any aggrieved person enquire into such settlement and if he is satisfied that the settlement is irregular he may after notice to the person in whose favour such settlement is made to show cause- (i) cancel the settlement and the lease, if any, and thereupon, notwithstanding anything contained in any other law or in any instrument, the rights, title and interest of the person in whose favour such settlement was made or lease executed or any person claiming through him in such land shall cease, and such land shall revert to the State Government ; and (ii) direct that every person holding or retaining possession thereof may be evicted, and may, for that purpose use or cause to be used such force as may be necessary." A bare reading of the aforesaid provision would indicate that the provision is mandatory and it is not directory as it pertains to the rights of allottees and the opportunity of hearing. In such matters there are catena of decisions that where the rights of parties are involved, in that event the expression 'may' has to be considered as 'shall'. It was consequently obligatory on the part of Additional Commissioner to have afforded hearing to the petitioners and other allottees before passing the order of cancellation of lease in their favour.;