Naseem Akhtar vs Sub-Divisional Officer, Budaun and another

S.U. Khan, J.—Heard learned Counsel for the parties.

Petitioner was a lekhpal. His services were terminated on 2.3.1991 against which he filed this writ petition. Through interim order dated 13.3.1991, operation of the impugned termination order was stayed. Under the said interim order, petitioner continued to work. Thereafter, he retired and now he has also died and substituted by his legal representatives (substitution application has been allowed on 26.11.2008).

The allegation against the petitioner was that while preparing the list of deserving candidates for allotment of land under the Management of Gaon Sabha for housing sites he did not follow the preferential criteria provided under section 122C of U.P.Z.A. & L.R. Act. Departmental proceedings were initiated against the petitioner and enquiry officer submitted the report on 5.1.1991. The said report along with show cause notice dated 25.1.1991 was sent to the petitioner by S.D.O., Badaun/ appointing authority of the petitioner. The said show cause notice along with enquiry report is Annexure4 to the writ petition.

Under section 3(9) of U.P.Z.A. & L.R. Act, it is provided that land management committee shall have the meaning assigned to it in the U.P. Panchayat Raj Act, 1947 and under section 28A of the latter Act, it is provided that Gramin Panchayat shall also be Land Management Committee and Pradhan and Uppradhan shall be Chairman and Vicechairman and lekhpal of the area shall be Secretary of Land Management Committee.

In the enquiry report, it is mentioned that under section 122C (3) of U.P.Z.A. & L.R. Act (as it stood at the relevant time), it is provided that land vested in the State and under the Management of Gaon Sabha shall be allotted for housing purposes in the following order of preference:

Agricultural labourer or village artisans residing in the village belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes or general category living below poverty line.

Any other agricultural labourer or village artisans residing in the village.

Any other person residing in the village and belonging to SC, ST or OBC or General category living below poverty line.

In the enquiry report, it is further mentioned that from perusal of resolution of Gaon Sabha dated 16.7.1989 and the list prepared by the petitioner lekhpal, it was clear that the petitioner had prepared the list of only those persons who had applied for allotment before the Pradhan. Enquiry officer held that from the said recital of the petitioner in the resolution and the list, it was clear that preference as provided under the aforesaid section was not maintained and only the list of those persons was prepared who had applied before Pradhan for allotment. It is further mentioned that in the list against certain persons, it is mentioned that they were resident of the same mandal (or circle) while under the aforesaid section, allotment can be made only to the resident of same village. It is further mentioned that in the said list, petitioner lekhpal mentioned the names of some Muslims also against the category of SC, ST while only a Hindu or a Sikh can be member of SC and ST. It is also mentioned in the enquiry report that the profession of certain applicants had been shown to be weaving which is not included in the definition landless agricultural labour. It is also mentioned that if in the village no person belonging to the preferential category was available, then it should have been mentioned in the Resolution and the list.

Some other minor charges regarding Gaon Sabha property were also made against the petitioner, which were found proved.

As far as the main charge of allotment to undeserving persons is concerned, it is mentioned in the report of the enquiry officer that irregularities or the illegalities in the preparation of the list of allottees applicants for allotment were apparent from the perusal of the Resolution and the list prepared by petitioner lekhpal itself.

Firstly, lekhpal is only secretary of Land Management Committee and if the decision was taken by the Land Management Committee, then action ought to have been taken against other members of the Land Management Committee also, which was not done.

The second more important aspect of the matter is that under section 122C2, it is provided that "Land Management Committee may with the previous approval of the Assistant Collector in charge of the Subdivision allot for the purposes of building of houses, to persons referred to subsection (3) any land earmarked for abadi site."

Obviously the allotment must have been made with the approval of S.D.O. (which may be either the S.D.O. who passed the punishment order against the petitioner or his predecessor). Action should have also been taken against the S.D.O. on the ground that he had approved the proposal for allotment in favour of undeserving applicants/persons. From the resolution of allotment itself, it was clear that the applicants/recommendees did not deserve allotment under section 122C(3) of the Act. Catching the small fries in the net and letting the sharks go is not the policy of law. In the following authority, the Supreme Court has held that if a decision taken by a Committee is found to be illegal and disciplinary proceedings are to be initiated then either proceedings should be initiated against all the members of the Committee or against none.

"Bongaigaon Refinery and P.C. Ltd. v. Girish Chandra Sarmah, 2007 (57) AIC 118 (SC) = 2007 (115) FLR 4 (SC) = AIR 2007 SC 2860."

Accordingly, writ petition is allowed. Impugned termination order is set aside.