Har Chandi and Others Vs. State of U.P. and Others - Court Judgment

Excerpt:
property- land ceiling - section 27(3) of u.p. imposition of ceiling on land holdings act, 1960 - proclamation before settlement of the surplus land is sine qua non - settlement of surplus land open to scrutiny by the commissioner - liable to cancellation if found irregular - settlement of the surplus land without prior notification - may lead to arbitrary exercise of statutory power - may frustrate the basic object of the ceiling act - designed to attain the goal of distributive justice - in relation to material resources of the community. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 4. learned counsel for the petitioners has also aitacked the other findings recorded in the impugned order but in view of the fact that we are inclined to sustain the cancellation of the settlement of the surplus land in favour of the petitioners for failure to make proper proclamation prior to settlement, it is not necessary to consider any other submission of the learned counsel assailing the impugned order.orderd.s. sinha, j.1. the petitioners feel aggrieved by the order dated 25th july, 1979 passed by the additional commissioner, meerut division, meerut, in exercise of powers under s. 27(4) of the u.p. imposition of ceiling on land holdings act, 1960, hereinafter called the ceiling act, whereby the settlement of surplus land in their favour under sub-sec. (3) of s. 27 of the ceiling act has been cancelled.2. the impugned order is based on the finding that the settlement of the surplusland in favour of the petitioners was irregular for the following reasons :--(a) that there was no proper proclamation before the settlement of the surplus land took place; (b) that the preferences enumerated under s. 198 of the u.p. zamindari abolition and land reforms act, 1950, hereinafter referred to as the z.a. and l.r. act, were not considered while making the settlement of the surplus land in favour of the petitioners; (c) that for settlement of the surplus land in favour of the petitioners har chandi, gopi and mantoori, there was no permission of the collector as required by s. 28c of the u.p. panchayat raj act, 1947 and (d) that with the allotment of the surplus land in favour of the petitioners shiv dull and hari ram, the land in their possession exceeded the maximum limit prescribed under s. 198(3) of the u.p.z. a. and l.r. act. 3. with regard to first irregularity of lack of proper proclamation before the settlement of the surplus land in favour of the petitioners, contention of sri g. n. varma, learned counsel for the petitioners, is that there is no provision in law for making proclamation before settling the surplus land under s. 27(3) of the ceiling act, and as such the lack of proclamation would not render the settlement of land in favour of the petitioner to be irregular. we are not impressed with the contention of the learned counsel for the petitioners. assuming that there is no statutory provision requiring proclamation before settlement of the surplus land under s. 27(3) of the ceiling act, the rule of fair play required proclamation before the settlement of surplus land in favour of the petitioners. distribution and settlement of surplus land under the provisions of the ceiling act cannot be done without adopting a procedure which ensures the compliance of the rule of fair play. it cannot be gainsaid that in distributing the surplus land under the ceiling act, the order of preferences and limits, specified in sub-sections (1) and (3) of s. 198 of the u.p.z.a. and l.r. act, have to be considered and non-consideration thereofwould render the settlement illegal. if the settlement is made without proper proclamation the persons entitled to be considered for settlement of the surplus land will not have the opportunity to raise grievance if their claim is ignored. the fact that settlement of surplus land under sub-sec. (3) of s. 27 of the ceiling act has been made open to scrutiny by the commissioner of his own motion, and on the application of any aggrieved person, and liable to cancellation, if found irregular, leaves no room for doubt that proclamation before settlement of the surplus land is sine qua non. settlement of the surplus land without prior notification may lead to arbitrary exercise of statutory power under sub-sec. (3) of s.27 of the ceiling act and may frustrate the basic object of the ceiling act which is designed to attain the goal of distributive justice in relation to material resources of the community enshrined in cl. (b) of art. 39 of the constitution of india. non-proclamation before settlement of the surplus land in favour of the petitioners under s. 27(3) of the ceiling act is enough to vitiate the settlement of the land in question and make it irregular as contemplated by sub-sec. (4) of s. 27 of the ceiling act. in this view of the matter, cancellation of the settlement of surplus land of the petitioners, by means of the impugned order, has got to be upheld and sustained.4. learned counsel for the petitioners has also aitacked the other findings recorded in the impugned order but in view of the fact that we are inclined to sustain the cancellation of the settlement of the surplus land in favour of the petitioners for failure to make proper proclamation prior to settlement, it is not necessary to consider any other submission of the learned counsel assailing the impugned order.5. for the reasons stated, hereinbefore, the impugned order is upheld. the petition fails and is, hereby, dismissed. however, in the circumstances of the case, we make no order as to costs.6. petition dismissed.

Judgment:
ORDER

D.S. Sinha, J.

1. The petitioners feel aggrieved by the order dated 25th July, 1979 passed by the Additional Commissioner, Meerut Division, Meerut, in exercise of powers under S. 27(4) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, hereinafter called the Ceiling Act, whereby the settlement of surplus land in their favour under sub-sec. (3) of S. 27 of the Ceiling Act has been cancelled.

2. The impugned order is based on the finding that the settlement of the surplusland in favour of the petitioners was irregular for the following reasons :--

(a) that there was no proper proclamation before the settlement of the surplus land took place;

(b) that the preferences enumerated under S. 198 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, hereinafter referred to as the Z.A. and L.R. Act, were not considered while making the settlement of the surplus land in favour of the petitioners;

(c) that for settlement of the surplus land in favour of the petitioners Har Chandi, Gopi and Mantoori, there was no permission of the Collector as required by S. 28C of the U.P. Panchayat Raj Act, 1947 and

(d) That with the allotment of the surplus land in favour of the petitioners Shiv Dull and Hari Ram, the land in their possession exceeded the maximum limit prescribed under S. 198(3) of the U.P.Z. A. and L.R. Act.

3. With regard to first irregularity of lack of proper proclamation before the settlement of the surplus land in favour of the petitioners, contention of Sri G. N. Varma, learned counsel for the petitioners, is that there is no provision in law for making proclamation before settling the surplus land under S. 27(3) of the Ceiling Act, and as such the lack of proclamation would not render the settlement of land in favour of the petitioner to be irregular. We are not impressed with the contention of the learned counsel for the petitioners. Assuming that there is no statutory provision requiring proclamation before settlement of the surplus land under S. 27(3) of the Ceiling Act, the rule of fair play required proclamation before the settlement of surplus land in favour of the petitioners. Distribution and settlement of surplus land under the provisions of the Ceiling Act cannot be done without adopting a procedure which ensures the compliance of the rule of fair play. It cannot be gainsaid that in distributing the surplus land under the Ceiling Act, the order of preferences and limits, specified in sub-sections (1) and (3) of S. 198 of the U.P.Z.A. and L.R. Act, have to be considered and non-consideration thereofwould render the settlement illegal. If the settlement is made without proper proclamation the persons entitled to be considered for settlement of the surplus land will not have the opportunity to raise grievance if their claim is ignored. The fact that settlement of surplus land under sub-sec. (3) of S. 27 of the Ceiling Act has been made open to scrutiny by the Commissioner of his own motion, and on the application of any aggrieved person, and liable to cancellation, if found irregular, leaves no room for doubt that proclamation before settlement of the surplus land is sine qua non. Settlement of the surplus land without prior notification may lead to arbitrary exercise of statutory power under sub-sec. (3) of S.27 of the Ceiling Act and may frustrate the basic object of the Ceiling Act which is designed to attain the goal of distributive justice in relation to material resources of the community enshrined in Cl. (b) of Art. 39 of the Constitution of India. Non-proclamation before settlement of the surplus land in favour of the petitioners under S. 27(3) of the Ceiling Act is enough to vitiate the settlement of the land in question and make it irregular as contemplated by sub-sec. (4) of S. 27 of the Ceiling Act. In this view of the matter, cancellation of the settlement of surplus land of the petitioners, by means of the impugned order, has got to be upheld and sustained.

4. Learned counsel for the petitioners has also aitacked the other findings recorded in the impugned order but in view of the fact that we are inclined to sustain the cancellation of the settlement of the surplus land in favour of the petitioners for failure to make proper proclamation prior to settlement, it is not necessary to consider any other submission of the learned counsel assailing the impugned order.

5. For the reasons stated, hereinbefore, the impugned order is upheld. The petition fails and is, hereby, dismissed. However, in the circumstances of the case, we make no order as to costs.

6. Petition dismissed.