Hriday Nand Singh vs The Addl. Commissioner (First) and Others

Hon''ble Amreshwar Pratap Sahi, J.—Heard Sri Ramendra Asthana learned counsel for the petitioner and Sri N.P.Pandey for the State.

The petitioner admittedly along with his brother the respondent no. 5 purchased 2 Bighas, 19 Biswas of land of plot No. 842-A from Tribhuwan Nath on 27.6.1980 the recorded tenure holder.

Proceedings under the U.P.Imposition of Ceiling of Land Holdings Act, 1960 had been initiated against Tribhwan Nath and the Prescribed Authority passed an order on 31.3.1975 declaring certain land as surplus. The tenure holder contested the matter in appeal and the matter was remanded where after the Prescribed Authority again passed an order on 17.1.1985. The order passed by the Prescribed Authority was taken in appeal and the appeal was dismissed. By virtue of the said order plot no. 842-A area 6 Bighas, 2 Biswas and 1 Biswani and plot no. 842-B area 2 Bighas 10 Biswas and 2 Biswansis and plot no. 230-M area 1 Bigha, 3 Biswas and 2 Biswansi was declared as surplus.

The petitioner is the purchaser of part of the area of plot no. 842-A which sale deed was executed in 1980 five years prior to the passing of the order of the Prescribed Authority dated 17.1.1985. The petitioner thereafter claims to have occupied the said land and also raised constructions thereon.

Certain other proceedings were initiated in relation to the said declaration of surplus land at the instance of one Smt. Shashi Devi claiming share in the land of the tenure holder on the ground that she had half share therein. This claim was ultimately put to rest by the High Court against Smt. Shashi Devi rejecting her claim vide judgment dated 12.9.2007. A review application has been filed in the said writ petition which is still pending consideration.

The tenure holder Tribhuwan Nath had also filed his writ petition against the orders of the Prescribed Authority and the appellate authority in the matter relating to Smt. Shashi Devi being Writ Petition No. 46931 of 2007. The said writ petition was entertained and after the dismissal of the writ petition of Smt. Shashi Devi, the following order was passed on 11.10.2007.:

learned counsel for the petitioner submits that this writ petition is directed against the judgment and order of the Additional Commissioner dated 23rd July,2007 as well as the order dated 24th May, 2007 passed by the Prescribed Authority against which order the writ petition No. 42973 of 2007 was filed by Smt. Shashi Devi, the respondent no. 4, which writ petition has been dismissed by this Court vide judgment and order dated 12.9.2007. He submits that a review application has been filed to review the judgment dated 12.9.2007 on 4.10.2007. He prays that this writ petition as well as the review in the writ petition No. 42973 of 2007 be heard together.

As prayed list this writ petition along with the review application filed on 4.10.2007 in writ petition no. 42973 of 2007 on 25th October, 2007.

Thus the aforesaid writ petition is still engaging the attention of this Court pending orders.In para 38 of the said writ petition the following averment has been made by the tenure holder Tribhuwan Nath:-

That neither the Prescribed Authority nor the Appellate Authority has afforded the opportunity to the petitioner regarding the choice as provided u/s 12-A of the Act. On the other hand the Prescribed Authority has declared the plot no.230 as surplus land, when this plot no.230 was not included in the order dated 31.3.1975, but this fact has not been considered by the Additional Commissioner while dismissing the appeal of the petitioner.

Learned standing counsel has so far not filed any counter affidavit therein as no orders had been issued in the said writ petition.

In between the petitioner proceeded to contest his claim independently before the Prescribed Authority and the Appellate Authority who have rejected the objection on the ground that the sale deed of the petitioner being of 27.6.80 deserved to be ignored as it is clearly hit by the provisions of sub section 8 of Section 5 of the 1960 Act.

Sri Asthana learned counsel for the petitioner submits that the Prescribed Authority has not under taken any steps to consider the choice of the tenure holder and so far as the land purchased by the petitioner is concerned, it should be considered within the limits admissible to the extent of the area of the original tenure holder. He further contends that the area should be carved out as against the holding in occupation of the original tenure holder the respondent no. 4 herein as the petitioner is a bonafide purchaser. This would necessarily be dependent upon the choice to be exercised by the tenure holder which as per the facts narrated herein above has not been done so far, nor do any of the orders passed by the Prescribed Authority indicate any right of choice having been given to the tenure holder as provided u/s 12-A of the 1960 Act.

Sri Asthana relies on the judgment in the case of Smt. Prema Devi Vs. Additional District Judge and Khuman Singh, to advance his submissions. He further places reliance on the decision in the case of Vidyawati Devi and Others Vs. State of U.P. and Others, . The submission is that so long as the choice of the tenure holder is not finally exercised it cannot be said that a particular plot declared surplus by the Prescribed Authority is final. The contention is that the area may be final but the plot numbers can always be subjected to alteration in view of the choice to be exercised by the tenure holder u/s 12-A. It is further submitted by Sri Asthana that the order dated 17.1.1985 passed by the Prescribed Authority has not been complied within letter and spirit till date.

Learned standing counsel Sri N.P. Pandey will therefore file a counter affidavit in Writ Petition No. 46931 of 2007 on behalf of the State bringing on record the right of choice if any exercised by the original tenure holder and facts relating to the particulars as averred in para 38 of the said writ petition.

The issue therefore is as to whether an area of 2 Bighas, 19 Biswas as purchased by the petitioner from plot no. 842-A should fall within the limits of the original tenure holder or not which can only be finally disposed of in view of the claim made by the tenure holder in Writ Petition No. 46931 of 2007. This has to be considered in thelight of the decisions referred to herein above.

Accordingly till further orders of this Court the petitioner shall not be dispossessed from plot no. 842-A area 2 Bighas, 19 Biswas till the disposal of this writ petition.

In view of the order passed in Writ Petition No. 46931 on 11.10.2007 as quoted herein above let this writ petition be also connected with the said writ petition and the learned standing counsel may file a counter affidavit in the present writ petition on behalf of the respondent nos.1,2 and 3 within 3. weeks. Issue notice to the respondent no. 4 in the present writ petition returnable at an early date. Steps be taken within 10 days. It is not necessary to issue notice to the respondent no. 5 as he is a proforma respondent being the real brother of the petitioner. List thereafter.

A copy of this order may be provided to the learned standing counsel free of cost within 24 hours.