R.P.Singh - (1.) BY means of writ petition under Article 226 of the Constitution the petitioners in these writ petitions have challenged the proceedings initiated against them under sections 186, 194 and 198 (4) of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) in an attempt to oust the petitioners from their land in dispute. Since the facts and the law points involved in both the writ petitions are similar and hence both the writ petitions are being decided together.
(2.) THE facts of the case as averred in the writ petitions briefly are that the petitioners who are residents of village Sultanpur and village Gajeh Tala- phatabad in the district of Ghaziabad were landless agricultural labourers who were granted pattas in respect of land in dispute by the Land Management Committee in the year 1981 which were duly approved by the Sub-Divisional Officer on 30-3 1981. THE petitioners were put in possession over the land in dispute in April 1981 and continued to remain in possession over their respective land obtained in pursuance of the grant of lease in their favour and their names were also duly recorded in the revenue record as bhumidhars with nontransferable rights. THE petitioners continued in peaceful possession over the land in dispute and after investing good amount of money and labour, started growing good crops over it. Later on, proceedings were started for cancellation of pattas granted in favour of the petitioners and the Lekhpal was called upon to submit a report who vide his report dated 22-6-1985, which is annexed as Annexure No. 1, reported that the pattas were validly granted in favour of the petitioners and denied that they were not residents of the village and submitted the report that the names of the petitioners are duly recorded in the voters list and were residing in the village who were duly qualified to be granted the pattas. THE Collector, Ghaziabad, respondent No. 2 was, however, determined to throw out the petitioners from the land in dispute and directed the Tehsildar, respondent No. 4 to start proceedings under section 186 of the Act, on the ground that the petitioners had abandoned the village and hence started proceedings for declaring the land as abandoned by the petitioners so that the land in dispute may be deemed vacant land and taken possession of in a summary and arbitrary manner. THE petitioners, however, did not receive any notice issued under section 186 of the Act nor came to know of any proceedings taken under section 186 or section 194 (a) of the Act for declaring the land in dispute to be abandoned by the petitioners in order to take possession of the same as vacant land, till the petitioners came across a news item published in the newspaper 'Nav Bharat Times' dated 2-8-1986 that the petitioners' land was being declared as vacant. It was then that the petitioners came to know that some proceedings are going on to declare the petitioners' land vacant on the ground that the petitioners had abandoned the village and the land in dispute and all these proceedings were being taken behind the back of the petitioners without affording any opportunity of hearing to the petitioners or giving any notice to them and since the petitioners apprehended that they would be thrown out and dispossessed from their land in dispute by respondents 2, 3 and 4 in a wholly arbitrary manner and against the principles of natural justice, the petitioners rushed to this Court and filed a writ petition No. 12441 of 1986, Abdul Rasheed and others v. State of U. P. and others which petition was allowed by this Court vide its order dated 4-9-1986 which runs as follows : "THE petitioners claim to be tenure-holders of certain agricultural land in Gejah Tilaktabad, pargana and Tehsil Dadri, District Ghaziabad. THEy assert that they held the land under the pattas granted by the competent Gaon Sabha. Details of land are given in the Annexures to the writ petition. THE petitioners apprehend that the pattas granted in their favour, although have not been cancelled, but without doing so the respondents are going to dispossess them from the land in dispute. Cancellation of leases granted by the Gaon Sabha can not be done without notice to the grantees of the lease. If cancellation proceedings are to take place, the petitioners will be given notice and orders, if any, will be passed after hearing them. In any case, respondents can not dispossess the petitioners without the authority of law. We, therefore, direct that if proceedings for cancellation of pattas are to be taken the petitioners will be given notice and orders will be passed after hearing them. We further direct that the petitioners shall not be dispossessed from the land in dispute except in accordance with law. This order is being passed on the presumption that the petitioners have valid leases in their favour in respect of the land in dispute. With these observations, the writ petition is disposed of finally. Sd/-B. N. S. Dated : 4-9-1986 Sd/- S. K, D. Thus, this Court clearly directed that the petitioners shall not be dispossessed from their land in dispute except after giving the petitioners a notice and opportunity of hearing. THE respondents were also directed that if any proceedings are taken in respect of the land in dispute against the petitioners, the petitioners shall be given due notice and no order shall be passed against the petitioners behind their back." However, inspite of the orders passed by this Court dated 4-9-1986, the Collector, Upper Parganadhikari and Tehsildar, in utter disregard of the order passed by this Court continued the proceedings for ejecting the petitioners from the land in dispute in wholly arbitrary and summary manner without giving any opportunity of hearing to the petitioners and without giving any notice of the proceedings taken against the petitioners. Since the petitioners were tried to be dispossessed from the land in dispute in pursuance of some proceedings taken behind their back, and the petitioners came across certain entries made in the khatauni of 1393 F. making reference to some alleged orders dated 25-6-86 and 5-7-86 passed by the Tehsildar and S.D.M respectively ordering the name of the petitioners to be expunged from the land in dispute on the ground that the same have been abandoned by the petitioners, the petitioners applied to the Teshildar Dadari for obtaining the copy of the orders dated 25-6-86 and 5-7-86 in pursuance of which the names of the petitioners were ordered to be expunged from the laud in dispute on the ground that the petitioners have abandoned the land and have left the village but the applications of the petitioners were returned back by the Tehsildar and the Sub-Divisional Magistrate by making an endorsement that no such file is available in their office and there was no record available in the office about the orders dated 25-6-86 and 5-7-86, passed by the Tehsildar and the Upper Parganadhikari, Dadari, Ghaziabad for expunging the names of the petitioners from the land in dispute. Since the Collector, Ghaziabad, respondent no. 2 was continuing his effort to dispossess the petitioners and cancel the pattas in their favour in a wholly arbitrary manner and behind their back, the petitioners filed Revision No. 34 of 1986 before the Additional Commissioner, Meerut Division, even without a copy of the orders as the same were not available inspite of the best efforts by the petitioners, and the Commissioner passed a stay order staying further proceedings started on suo motu basis by the Collector, Ghaziabad. The petitioners also filed a transfer application before the Additional Commissioner, Ghaziabad for the transfer of the cases started suo motu by the Collector, Ghaziabad against the petitioners but the applications were rejected by the Additional Commissioner vide his order dated 10-2-1987 against which the petitioners filed a Revision before the Board of Revenue who on 27-2-87 passed an order staying further proceedings before the Collector, Ghaziabad till further orders. Inspite of all this, the respondents 2, 3 and 4 continued to pressurise the petitioners to be forcibly evicted from the land in dispute on the ground that certain orders have been passed in proceedings under section 186 of the Act treating the petitioners to have abandoned the land as a result of which the land has been declared vacant and the petitioners' names have been ordered to be expunged from the same which were hence liable to be taken possession of and the petitioners apprehending their forcible eviction from the land in dispute in a wholly arbitrary manner and in pursuance of some proceedings conducted behind the back of the petitioners which are against the principles of natural justice, again have preferred this writ petition, before this Court with a prayer to quash the proceedings conducted behind their back, and to direct the respondents not to dispossess the petitioners from the land in dispute in pursuance of proceedings taken behind their back and to supply the petitioners the copies of the impugned orders and notices and further providing them an opportunity of bearing.
(3.) HEARD the learned counsel for the parties. It would be relevant here to quote the provisions of section 186 of the UP ZA and LR Act which runs as follows : "186. Abandonment.-(1) Where a (bhumidhar with non-transferable rights) (other than a minor, lunatice or idiot) or asami has not used his holding for a purpose connected with agricultrue, horticulture or animal husbandry which includes pisciculture and poultry farming for two consecutive agricultrual years (the Tahsildar may, on the application of the Goan Sabha or the landholder or on facts coming to his notice otherwise, issue a notice) to such (bhumidhar with non-transferable rights) or asami, as the case may be, to show cause why the holding be not treated as abandoned. (2) The application shall contain such particulars as may be prescribed. (3) If the Tashildar finds that the application has been duly made he shall cause to be served on the (bhumidhar with non-transferable rights) or the asami or publish in the manner prescribed a notice in the form to be prescribed requiring him to appear and show cause on a date to be fixed why the holding be not held as abandoned. (4) If the (bhumidhar with non-transferable rights) or the asami does not appear in answer to the notice, or appears but does not contest it, the Tahsildar shall declare the holding as abandoned and thereupon, except as provided in (Section 172) the holding shall be deemed to be vacant land. Provided that no declaration under this sub-section shall be made in respect of a holding or any part thereof, if the same has been mortgaged by the (bhumidhar with non-transferable rights) under sub-section (2) of Section 153 and the mortgage has not been fully redeemed, in which case the Tahsildar shall move the Collector for the realisation of the loan in such manner as may be prescribed. (5) If the (bhumidhar with non-transferable rights) or asami appears to contest the notice, the Tahsildar shall drop the proceedings." It would be important to note here that the moment any one appears to contest the notice, the statute provides that the Tahsildar shall drop the proceedings under Section 186 of the Act. Section 194 may also be quoted here which runs as follows : "194. Land Management Committee to take over land after extinction of interest therein-The (Land Management Committee) shall be entitled to take possession of land comprised in a holding or part thereof if- (a) the land was held by a bhumidhar, and his interest in such land is extinguished under clause (a) or clause (aa) of Section 189 or clause (a), clause (b), clause (c), clause (cc) or clause (e) of Section 190. (b) (* * * * ) (c) The land being land falling in any of the clauses mentioned in Section 132, was held by an asami and the asami has been ejected or his interest therein nave otherwise extinguished under provisions of this Act." It would thus be clear that if no one appears to contest the notice issued under section 186 that the land has been abandoned by the tenure holder, in that case the land so declared vacant shall be taken possession of by the Land Management Committee under section 194 and in this view of the matter I will examine whether any proceedings had been validly started against the petitioners under sections 186, 194 or 198 (4) of the Act.;