Balbir and Others vs Addl. Commissioner and Others

Anjani Kumar Mishra, J.—Heard Sri Pradeep Kumar Rai learned counsel for the petitioners and Sri S.C. Verma for the respondents.

The petition arises out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act and seeks quashing of the order dated 26.12.2006 passed by the respondent No. 1, Additional Commissioner, Saharanpur Division, Saharanpur and the order dated 31.10.1992 passed by the respondent No. 2, the Prescribed Authority.

The litigation wherefrom this writ petition arises, has a long and chequered history. The relevant facts briefly stated are that the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act were initiated against one Diley Ram.

By an order dated 31.05.1976 an area of 55 bigha 2 biswa 16 biswansi was declared surplus in his hands. On an appeal it was held that only 6 bigha 11 biswa was surplus in the hands of the tenure holder and in its pursuance, on 04.04.1977 an amaldaramad was made, but by mistake only an area 1 bigha 9 biswa 17 dhoor was taken possession of. An area of 5 bigha 1 biswa 3 dhoor was not taken possession of. When this mistake was detected another parvana amaldaramad was issued on 28.07.1979 as regards this remaining area.

Initially, plot No. 10 was declared surplus as per the choice of the tenure holder. Subsequently, this choice was changed to plot No. 55/1 by means of an application dated 18.04.1977.

The fresh parvana issued on 28.07.1979 was for taking the remaining area.

However, since consolidation operations had intervened upon an application by the Naib Tehsildar, an order was passed on 25.01.1989 that possession be taken from the plots allotted to Bhopal & Kanwarpal during consolidation.

This order was challenged by Bhopal, predecessor in interest of the petitioner, on the ground that no rectification could be made after an expiry of two years from the date of notification under Section 14 (4) of the Act.

The Prescribed Authority vide order dated 31.10.1992 directed that an area of 2-1-7 of plot No. 39 recorded in the name of Sultani widow of Diley Ram, an area of 1-5-18 lying towards North in plot No. 218 recorded in the name of Gopal and an equal area lying towards East in plot No. 219 recorded in the name of Kanwarpal be taken possession of to ensure full compliance of the final order whereby 6 bighas 11 biswas had been declared surplus.

In paragraph 54 of the writ petition it has been averred that this order was implemented on the spot and the land declared surplus was allotted to third parties.

Against the order dated 31.10.1992 Bhopal and Kanwarpal filed a time barred appeal. The appeal was filed on the ground that no rectification could have been made after the expiry of period of two years. Although, the main ground in the appeal does not appear to have been accepted, yet with the consent of the appellants, the appeal was allowed on 07.01.2002 and it was directed that an area of 3-19-17 of plot No. 220 recorded in the name of Gopal and an area of 1-2-2 of plot No. 221 recorded in the name of Kanwarpal be declared surplus and taken possession thereof.

Thereafter, it appears that by an order dated 07.01.2002 passed on an application filed by Bhopal and Kanwarpal the Prescribed Authority issued a direction to the Tehsildar to restore the possession of the applicants over plot No. 218 area 1-9-18 and plot No. 209 area 1-9-18. It is alleged that this order was complied with on the spot and a writ petition filed by the allottees challenging it was also dismissed.

It appears that thereafter respondent Nos. 11 and 12, namely Jagpal and Jaipal, filed an application for recall of the order dated 07.01.2002 on the ground that they had purchased plot No. 221 area 1-2-22 by means of a registered sale deed executed by Kanwarpal on 18.11.1985.

It is alleged that this restoration application was rejected on 10.10.2002 for non prosecution. It is stated that the aforesaid respondent Nos. 11 and 12 namely Jagpal and Jaipal filed a second restoration application which was allowed vide order dated 10.07.2003. Against the order allowing the restoration application the petitioners filed a recall application which was allowed and it was directed that the restoration filed by the respondent Nos. 11 and 12 be heard afresh.

Ultimately, by the order dated 27.12.2005 the restoration application filed by the respondent Nos. 11 and 12 was allowed and the order dated 19.01.1995 was set aside and Kanwarpal was directed to furnish a fresh choice in lieu of plot No. 221.

Against the order dated 27.12.2005, respondents II set namely the allottees filed an application for review. This review application has been allowed by the order dated 14.09.2006. The orders dated 27.12.2005 and 19.01.1995 have been set aside and the order dated 31.10.1992 has been maintained. Hence, this writ petition.

The contention of learned counsel for the petitioners is that the order dated 31.10.1992 was wrongly passed inasmuch as in view of Section 13-A of the Act, rectification of any mistake would be made only within two years from the date of notification under Section 14(4) of the Act.

The second submission made is that the order dated 31.10.1992 merged with the order dated 19.01.1995 passed in appeal and the same was affirmed by this court when the writ petition filed by the State of U.P. was dismissed and therefore, the order dated 19.01.1995 could not have been set aside.

It is next contended that the order impugned has been passed upon a review application filed by the respondents in II set. The Additional Commissioner, while exercising appellate powers under the U.P. Imposition of Ceiling on Land Holdings Act, does not possess the power of review and therefore, the order impugned is wholly without jurisdiction. In support of his contention learned counsel for the petitioner has relied upon the case of M/s. U.P. Steels Ltd. Naran Vs State of U.P. and others 2002 (93) RD 900 as also Ram Autar and others Vs State of U.P. and others 1989 RD 338.

It is next been submitted that possession in view of the order dated 31.10.1990 had been taken and this land was allotted to third parties but subsequently, the possession of the petitioners was restored, in pursuance of the order dated 19.01.1995. Therefore, also the impugned orders insofar as it maintains the order dated 31.10.1992 is liable to be set aside.

Learned counsel for the respondents as also learned Standing Counsel have supported the impugned orders.

I have considered the submissions made by learned counsel for the parties and have perused the record.

From the facts noticed above, it is clear that it has finally been decided that 6 bigha 11 biswa land was surplus in the hands of the tenure holder Diley Ram. Although possession of only 1 bigha 9 biswa 17 dhoor had been taken by the State, the State was entitled to a further 5 bigha 1 biswa 3 dhoor of land in pursuance of the final order of the Ceiling Authorities passed against Diley Ram.

The entire dispute in the instant writ petition is as to the plots from which this area is to be taken.

By the order dated 31.10.1992 it was provided that this area be taken from three plots namely 39, 219 and 209. It is admitted on record that this order of 31.10.1992 was duly complied with and the land totalling 5-1-3 was also allotted under Section 27 of the Act.

Subsequently, this order has been set aside by the order dated 19.01.1995 and in pursuance thereof it is alleged that the possession to these plots has been restored to the petitioners. Although petitioners were required to hand over possession of 6 bigha 11 biswa land, yet they handed over possession of only 1 bigha 17 biswa and continued to retain the remainder despite the orders passed in this regard having attained finality in 1997 itself. Although the mistake was discovered in 1999 itself, yet the possession of the remainder of the land could not be taken on account of the intervening consolidation operations. It was in this context that the report of Naib Tehsildar was filed on the basis of which an order dated 25.01.1989 was passed by the Prescribed Authority directing that fresh parvana be issued to make good the short fall.

In these proceedings it appears that Kanwarpal first made an application that the surplus land be taken from plot No. 10. He moved yet another application on 02.03.1990 that the land be taken from khasra Nos. 39 and 34. The petitioners filed an objection that the choice given by Kanwarpal could not be accepted inasmuch as the land given by him was land not recorded in his name. A finding in this regard was also returned and the objection was found to be correct and thereafter the order dated 31.10.1992 was passed.

It is therefore, clear that the orders dated 31.10.1992 had been passed after considering the choice given by the successors of the tenure holder. Against this order and after its implementation on the spot, an application appears to have been filed only taking a plea that rectification could not have been made after a period of two years had elapsed from the date of issuance of notification under Section 14(4) of the Act. This legal plea was not accepted yet in the process the order dated 19.01.1995 appears to have been passed where under the appellants namely Gopal and Kanwarpal consented that the surplus be taken from plot Nos. 220 and 221. This order, in my considered opinion could not have been passed, once the legal ground of challenge in this appeal, was not accepted.

Besides the appellants could not have consented to the surplus being taken from plot No. 221 inasmuch as Kanwarpal had already sold his land in the year 1985 itself. The consent therefore, was clearly malafide and the order dated 19.01.1995 was obtained by misleading the court and by concealing material facts.

Insofar as the legal submission that the Ceiling Authorities specially the appellate authority, respondent No. 1 does not possess the power of review, same is a perfectly sound submission. There is absolutely no dispute that the Ceiling Authorities do not possess the power of review. However, the opposite party No. 1 has exercised the power of review and set aside the order dated 19.01.1995 which as already noticed herein above, is an illegal order and had been obtained by mis-representation and by concealing a material fact that plot No. 221 was no longer recorded in the name of Kanwarpal. Yet this plot was given as a choice for being taken possession of by the State as surplus land.

It is therefore, in my considered opinion, abundantly clear that any interference with the impugned order on the ground that the opposite party No. 1 did not possess the power of review, would lead to restoring an equally illegal order dated 19.01.1995.

In these circumstances therefore, this court refuses to interfere with the impugned order because any interference would amount to revival of equally illegal order. The order dated 19.01.1995 is illegal inasmuch as the choice given by Kanwarpal as regards plot No. 221 was wrongly given because he had already sold all his land in 1985 in favour of third parties and the same no longer belonged to him.

Insofar as the petitioners are concerned, this order dated 19.01.2015 is illegal also because the petitioners had filed a writ petition being Writ Petition No. 13188 of 1993, against the order dated 31.10.1992. This writ petition was dismissed in limini vide order dated 01.11.1993. The petitioners having challenged the order dated 31.10.1992 before this court which writ petition was dismissed, there was no justification for the appellate court to have interfered with this order vide its order dated 19.01.1995.

It is therefore, clear that the order dated 19.10.1995 was obtained without informing the appellate court about the dismissal of Writ Petition No. 13188 of 1993 filed by the petitioners.

Even otherwise, dismissal of this writ petition would amount to doing substantial justice between the parties because it would result in the order dated 31.10.1992 being affirmed, as a result thereof, the allotment made in favour of the allottees would stand protected as also the interest of respondent Nos. 11 and 12 who are transferees of plot No. 211.

Accordingly and in view of the above, I refuse to exercise my equity jurisdiction in favour of the petitioner.

The writ petition is therefore, dismissed.