Ganga Prasad vs State of U.P. and Another

Devendra Kumar Arora, J.—Notice on behalf of opposite parties No. 1 to 4 has been accepted by learned Chief Standing Counsel.

Sri Karunakar Srivastava, Advocate has filed Vakalatnama on behalf of opposite parties No. 5 and 6 in the Court which is taken on record.

Office is directed to print the name of Sri Karunakar Srivastava in the cause-list as counsel for opposite parties No. 5 and 6.

By means of present writ petition, the Petitioner has challenged the order dated 16.7.2011, passed by Addl. Commissioner, Devi Patan Mandal, Gonda rejecting the application for impleadment/substitution as well as the subsequent ex parte order dated 25.7.2011 which has been passed without impleading the Petitioner.

Submission of Learned Counsel for the Petitioner is that lease of plot No. 1300/1.670 Acres (new number 521/1.50) was allotted to Kishore son of Ram Karan (Scheduled Caste) who was a poor landless labour, on 31.8.1970 and his name was also entered into revenue records u/s 27 of the U.P Imposition of Ceiling of Holdings Act, 1960. The said land was part and parcel of the holding of tenure holdder Bhaiya Jagdish Dutt Ram Pandey which was declared surplus in the ceiling proceedings vide order dated 26.10.1964. It is also submitted that Ram Naresh, father of private Respondents No. 5 and 6 was a signatory as a witness in the lease allotted in favour of Late Kishore. Ram Naresh being a Lekhpal, committed fraud and forgery in the revenue records as well as in U.P.C.H. Form No. 45 and got mutated his name in revenue records fictitiously. Kishore, on coming to know about the fraud committed by Ram Naresh, moved an application before the Chief Revenue Officer, Gonda on which inquiry was made by the Tehsildar, Colonelganj, Gonda who submitted his report to the S.D.O., Colonelganj, Gonda mentioning therein that the name of Ram Naresh son of Shambhu Dayal (Dutt) has been entered into revenue records pertaining to plot No. 521/1.50 Acres unauthorizedly without any order of the competent authority. It also came into knowledge that fictitious entry was made in U.P.C.H. Form No. 45 in respect of Khata No. 723 situated in village Kotiya Madara. The matter was agitated before the Addl. Commissioner, Faizabad Division, Faizabad. Ultimately, the Chief Revenue Officer, Gonda took a serious view and referred the matter to the Sub Divisional Officer, Colonelganj, Gonda vide order dated 18.11.1991 with the Note that fraud has been committed in a planned manner and, as such, correction of entry be made and action be also taken against Ram Naresh, Lekhpal for committing fraud. Accordingly, the fictitious entry made in U.P. CH Form No. 45 was deleted with a further direction that entry in revenue records be also corrected accordingly. Being aggrieved with the order of Chief Revenue Officer, Ram Naresh preferred two revisions No. 32 and 130 L.R. 1992-93 before Board of Revenue, U.P., Lucknow which were dismissed vide order dated 04.3.1998. Ram Naresh approached the Commissioner, Faizabad for cancellation of lease in favour of Kishore and the Commissioner vide order dated 30.9.1995 rejected the revision. Thereafter Ram Naresh preferred a writ petition before this Court being W.P. No. 178 (MS) of 1995 which was dismissed vide judgment and order dated 07.12.1995 with the observation that application of the Petitioner u/s 11(2) of the Act, which is said to be pending, will be decided by the Prescribed Authority on merit.

Further submission is that in the application of Ram Naresh moved u/s 11(2) of the Ceiling Act pending before the Chief Revenue Officer, Gonda it was pleaded that he is a tenure holder of plot No. 1300/1.670 acre and the said land was recorded in his name since 1363 F and in the consolidation proceedings he has been declared as Bhumidhar of the land in question. He came to know about the declaration of the said land as surplus on 22.10.1991 and despite the fact that his name in recorded in revenue records, No. notice was issued to him whereas undrer the provisions of Ceiling Act it is necessary to issue notice and, hence, declaration of the said land as surplus was illegal and he prayed that the order of the Prescribed Authority dated 26.10.1964 be amended. The Prescribed Authority by means of order dated 31.10.1996 cancelled the order dated 26.10.1964 by which plot No. 1300/1.670 Acre (new number 521/1.50) was declared surplus. On attaining the knowledge of the order dated 31.10.1996, Kishore moved an application challenging the said order on the ground that he being a recorded tenure holder, was not heard. However, the said application was rejected on 4.8.1997. It is submitted that both the orders dated 31.10.1996 and 4.8.1997 are void ab initio as they are based on fraud and misrepresentation and the same suffer from inherent lack of jurisdiction.

Further submission is that Kishore executed registered will deed bequeathing his entire property in favour of Petitioner on 18.10.2007.

Ram Naresh moved an application u/s 27(4) of U.P. Imposition of Ceiling of Holding Act, 1960 praying therein that the revenue entry be made in his favour. Meanwhile, Ram Naresh and Kishore expired. On the death of Ram Naresh, opposite parties No. 5 and 6 were substituted. On the death of Kishore, word ''dead'' was noted without substituting the legal heirs of Kishore vide order dated 21.6.2011. The Petitioner moved an application for recall of the order dated 21.6.2011 which too was rejected. On the same date, application for substitution and impleadment was also moved which too was rejected on 16.7.2011 which is impugned in this writ petition.

I have considered the submissions of Learned Counsel forparties and gone through the record.

From perusal of the record, it is evident that plot No. 1300/1.70 Acres (New No. 521/ 1.50 Acres) was original land of Bhaiya Jagdish Dutt Ram Pandey which was declared surplus in the ceiling proceedings u/s 27 of the U.P. Imposition of Ceiling of Holdings Act, 1960. The said land was allotted in favour of Kishore who was a landless labour and ''Harijan'' by caste. Ram Naresh, Lekhpal, father of opposite parties No. 5 and 6 was a signatory as a witness in the said lease deed as is evident itself from the lease deed (page 43/44) and the same was recorded in the revenue records in pursuance of order dated 31.11.1970 by Parganadhikari, Gonda (Page 41). After examining the record, this Court fails to understand that when patta was granted in favour of Kishore and his name was recorded in the revenue records, how and on what basis name of Ram Naresh was recorded in U.P.C.H. Form No. 45.

The Court has also perused the report of various authorities at pages 54, 55, 57, 60 and 60-A which indicate that the concerned authorities made observations that the name of Ram Naresh has been entered in the revenue records without there being any order and also observed for taking action against him.

Taking serious view of the matter, the Commissioner, Devi Patan Mandal, Gonda is hereby directed to make an inquiry into the matter and submit his report alongwith his personal affidavit latest by 30th September, 2011.

Sri Nirmal Tewari, Addl. Chief Standing Counsel is hereby directed to communicate this order to the Commissioner, Devi Patan Mandal, Gonda in order to ensure compliance of the same.

The Registrar of this Court is also directed to communicate this order to the Commissioner, Devi Patan Mandal, Gonda for compliance of the same.

The entire record will be placed before this Court on the next date of listing. In the meantime, status quo with respect to land in question will be maintained by the parties.

Sri Karunakar Srivastava, Learned Counsel appearing on behalf of opposite parties No. 5 and 6 prays for and is granted one week''s time for filing counter affidavit. Rejoinder Affidavit, if any, may be filed within three days thereafter.

List this case on 10th October, 2011, as fresh.