Ghulam Waris vs Additional Commissioner

@DELETEUPPERDATA

Ram Surat Ram (Maurya), J.—Heard Sri U.S. Sahai for the petitioner and Standing Counsel for the respondent. The writ petition has been filed against the order of Prescribed Authority dated 28.1.1988 and the Appellate Authority dated 11.11.1991 passed in the proceeding under U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the ''Act'').

The dispute related to 23 plots of land situated in village Achechha, pargana Ram Nagar, distt. Barabanki. These plots were included in the holdings of Rani Drigraj Kumari in the proceedings under U.P. Imposition of Ceiling on Land Holdings Act, 1960 initiated against her and she had given the plot as surplus land which was accepted by the prescribed authority by order dated 25.9.1970.

On coming to know about the order dated 25.9.1970 the petitioner filed an objection under section 14 (before its amendment by U.P. Ordinance No. 11 of 1976) (followed by U.P. Act No. 20 of 1976). The objection of the petitioner was rejected by the prescribed authority and the petitioner filed an appeal against the aforesaid order which was allowed by order dated 19.11.1971. The order dated 19.11.1971 was challenged by Administrator General in Civil Misc. Writ Petition No. 5111 of 1971. When the case was heard before this Court, this Court by order dated 26.11.1976 found that due to repeal of section 14 the proceeding arising under the Act was abated under section 20 of the Repeal Act No. 20 of 1976 and the proceeding has become infructuous. Therefore the petitioner filed an objection under section 11(2) of the Act before the prescribed authority on 27.9.1984. The prescribed authority by the impugned order dated 28.1.1988 held that the petitioner has not disclosed as to when the Writ Petition No. 5111 of 1971 was decided. In absence of date decision of the writ petition, the delay in filing the objection of the petitioner cannot be condoned accordingly the objection of the petitioner was rejected by order 28.1.1988. The petitioner filed an appeal against the aforesaid order which has been dismissed by Additional Commissioner, Faizabad by order dated 11.11.1991. Hence this writ petition has been filed.

The Counsel for the petitioner submits that although the writ petition was abated by the order dated 26.11.1977 but the petitioner came to know about the order only on 3.12.1984 and thereafter he filed an objection under section 11 of the Act on 2.9.1984. He submits that prior to abatement the objection of the petitioner was allowed and the matter was remanded for deciding the objection of the petitioner on merit accordingly the subsequent objection filed by the petitioner after repeal of section 14 was liable to be decided on merit. He submits that under section 11(2) of the Act 30 days time is prescribed for filing the objection from the date of the order but as the objection has already been filed by the petitioner as such in the case of the petitioner this limitation shall not be applied and the fresh objection filed by the petitioner on 27.9.1984 was liable to be entertained but it has been illegally rejected. In such circumstances, the petitioner was neither given notice of the original proceeding nor his case was decided on merit and his land, which was recorded in his name, has been wrongly included in the holdings of Rani Drigraj Kumari.

I have considered the arguments of the Counsel for the parties and examined the record.

The Counsel for the petitioner relied upon the Full Bench judgment of this Court in Baldeo Singh v. State of U.P. and others, 1980 LLJ 31 (F.B.) in which it has been held that an objection under section 11(2) of U.P. Imposition of Ceiling on Land Holdings Act can be entertained after the surplus land has been notified under Section 14(1) of the Act and has vested in State of U.P. by virtue of said notification right of tenure holder is not affected the Full Bench judgment has been followed by this Court in the subsequent decisions in Abdul Hafiz Khan and another v. District Judge and others 1986 (12) ALR 144 and Smt. Sheela Devi and Another Vs. State of U.P. and Others . This Court in Baldeo Singh''s case (supra) held as follows:

"A person whose right has been affected by an order of the Tribunal without giving him an opportunity of being heard can in my view, seek redress before that authority and resist his dispossession. He can contend that neither the Prescribed Authority nor the Collector can lawfully take possession of the land from him without adjudication upon his rights therein and the statement prepared by the Prescribed Authority was wrong. In the case in hand the Prescribed Authority had passed an order dated 18th October, 1974 determining the surplus land in relation to the opposite party No. 5. The present petitioners preferred an objection on 18th September, 1975 before the Prescribed Authority asserting that the land declared as surplus land of the opposite party No. 5 is in fact their land and not the land of the opposite party No. 5 and could not, therefore, be declared as surplus land. This objection could be entertained under section 11(2) even after the surplus land had been notified under Section 14(1) of the Act. The deletion of sub-section (3) of section 14 of the Act will not effect the tenability of that objection."

In view of Full Bench decision the order of Prescribed Authority is illegal and is liable to be set aside. In the results, the writ petition succeeds and is allowed. The orders of Prescribed Authority dated 28.1.1988 and the Appellate Authority dated 11.11.1991 are set aside. The matter is remanded to Prescribed Authority to decide the objection of the petitioner on merit after giving opportunity of hearing and evidence to the parties. Since the matter is lingering for a long time, the Prescribed Authority shall pass fresh order within a period of four months. Till disposal of the objection or for a period of four months, whichever is earlier, the petitioner shall not be dispossessed from the land, in his possession.