Jagat Narain and Another vs Commissioner, Gorakhpur Division and Others

Amreshwar Pratap Sahi, J.—This petition reflects as to how the administration through a wrong exercise of discretion have deprived the Petitioners of their precious holdings for the past twenty-two years without any sanction of law and without compensation.

Heard Sri A.K. Singh, learned Counsel for the Petitioners, Sri S.V. Goswami and Sri N.P. Pandey, learned Standing Counsel for the Respondent Nos. 1, 3 and 4 and Sri Deepak Verma, learned Counsel for the Respondent Nos. 5 to 24. Sri M.N. Singh has accepted notice for the Respondent No. 2.

The Petitioners are the tenure holders of the land in dispute. They claim that 1.77 acres of land situate in village Deorajpur, Tappa Parvarpar, Pargana Haveli, Tehsil Hata, District Kushinagar has been illegally taken possession of by the State and allotted to the Respondent Nos. 5 to 24 under the proceedings of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as ''the 1960 Act''). It is further contended that the request made by the Petitioners for cancellation of the said leases and for restitution has illegally been turned down by the impugned order.

Learned Counsel for the Petitioners submits that the proceedings initiated against the tenure holders came to be finalized on 15th May, 1978 whereby 2.28 acres of land in the irrigated sense was declared as surplus. The Petitioners'' predecessor in interest was called upon to give choice u/s 12-A of the Act, which was offered vide order dated 05.12.1978, and the choice was accepted, and the land of village Mahadev Chhapra and village Pagara was ordered to be taken possession of under the aforesaid order dated 05.12.1978.

In the year 1989 some report appears to have been submitted that the land of the aforesaid two villages, which was offered by the Petitioners, was subjected to consolidation proceedings and after adjustment of such land during consolidation operations, it was found on the spot that the land which was offered in the choice of the Petitioners was either submerged under water or in the shape of occupation of Abadi. In such circumstances, the State initiated fresh proceedings on the aforesaid ground and resumed 1.77 acres of land in the irrigated sense in village Deorajpur, which was not declared surplus under the orders referred to hereinabove. Not only this, the possession of the said land was hurriedly taken and the land was distributed and allotted to the Respondent Nos. 5 to 24.

The Petitioners challenged the said action of the Prescribed Authority in appeal before the Appellate Authority. The order of the Prescribed Authority dated 21.12.1989 after contest was set aside on 28.1.1994. The said order has become final and it is not the case of either of the parties that the said order was ever put to challenge.

During the pendency of the said appeal, the Petitioners had also moved an application on 26.02.1990 for cancellation of the leases granted in favour of the Respondent Nos. 5 to 24 on the ground that the land of village Deorajpur was never offered in the choice of the Petitioners and which has been illegally taken possession of and, therefore, the leases granted under Sub-section (4) of Section 27 of the 1960 Act should be cancelled. The then learned Commissioner Sri Harish Chandra rejected the said application on the ground that there is no merit as there was no irregularity in the grant of leases.

Aggrieved, the Petitioners approached this Court by filing a writ petition being Writ Petition No. 16028 of 1997 (Jagat Narain and Anr. v. State of U.P. and Ors.) challenging the said order of the Commissioner dated 6th February, 1997 refusing to cancel the leases. The said writ petition was allowed on 21.01.2008 and the observations made by this Court were clearly to the effect that the Petitioners were entitled to be restituted on their land in view of the judgment of this Court in the case of Satendra Mani Tiwari v. Commissioner, Gorakhpur reported in Satendra Mani Tiwari Vs. Commissioner, Gorakhpur Division and Others, The Commissioner was directed to take fresh steps in the light of the observations made therein.

The learned Commissioner has now by the impugned order dated 27.02.2010 rejected the application moved by the Petitioners for cancellation of the leases on the ground that during consolidation operations the land of the two villages, which had been referred to in the order of the Prescribed Authority, had been adjusted and, therefore, the Petitioners were proportionally liable to surrender such land.

Learned Counsel for the Petitioners submits that the impugned order is absolutely erroneous and it amounts to reviewing the earlier judgment dated 28.01.1994 which was impermissible in proceedings under Sub-section (4) of Section 27 of the 1960 Act and even otherwise, it is in teeth of the observations made by this Court in the judgment dated 21.01.2008. It is, therefore, contended that the impugned order deserves to be set aside and the Petitioners deserve to be restituted.

This Court had passed an order on 25th April, 2011 calling upon the Respondent Nos. 3 and 4, the Collector, Kushinagar and the Deputy District Magistrate, Hata, District Kushinagar respectively to respond to the aforesaid stand taken by the Petitioners and today an information in writing has been tendered before the Court that all the allottees have been duly informed in relation to the pendency of this writ petition. Apart from this, no affidavit has been filed on behalf of the said authorities.

Sri Deepak Verma has put in appearance on behalf of the Respondent Nos. 5 to 24 and he submits that the said Respondents are in occupation of the land for the past 22 years and some of them have also raised their hutments over the said land which was allotted to them.

Sri Deepak Verma contends that the impugned orders do not deserve any interference, inasmuch as, there is no irregularity in the grant of leases and even otherwise, the Petitioners cannot claim their rights over and above the land apart from the land which has been already offered by them in the choice as indicated in the orders passed by the authorities.

Sri S.V. Goswami and Sri Pandey on behalf of the State urged that the land, if, has been proportionally reduced during consolidation operations the same would not enure to the benefit of the Petitioners and proportional reduction has to be made from the tenure holders.

Having heard learned Counsel for the parties, it is evident that the issue with regard to the reduction of land during consolidation operations has already been considered and the matter has been decided in appeal, vide order dated 28.01.1994. This was in regular proceedings u/s 13 of the 1960 Act which has become final and the same has neither been upset nor set aside nor modified till date. In view of this, the Commissioner while proceeding to decide the application in proceedings of allotment under Sub-section (4) of Section 27 of the 1960 Act cannot enter into a question of either reduction or otherwise as contended on behalf of the State. The Commissioner was bound by the order dated 28.01.1994 and he had only to see as to whether the leases could survive after the order dated 28.01.1994 or not.

The Commissioner, in the opinion of the Court, travelled beyond his jurisdiction and the impugned order is in teeth of the judgment of this Court dated 21.01.2008. The learned Commissioner could not have gone beyond the same. In such a situation, the only option left for the State is to restitute the land to the Petitioners.

Accordingly, an ad interim mandamus is issued to the Respondent Nos. 3 and 4 to forthwith restore back the possession of the land to the Petitioners of village Deorajpur, which has been taken away from the Petitioners without authority in law as the same had not been declared surplus within a period of one month from today.

If the State is unable to restitute the land to the Petitioners then either the Respondent Nos. 3 and 4 shall take coercive steps for the same or in the alternative the Petitioners shall be duly compensated according to the current market value of the land as existing on today. To that effect a minimum of Rs. 5 lac shall be deposited in Court through a bank draft drawn in favour of the Petitioners jointly and the same shall be produced before this Court by the next date fixed i.e. 4th July, 2011. Alternatively it shall also be open to the Collector to offer the same quality of land to the Petitioners by way of restitution if available in the Gaon Sabha concerned upon exercise of powers vested under the U.P.Z.A. & L.R. Act, 1950.

In the event, the action is not taken as per the direction given hereinabove, this Court may be compelled to take appropriate action.

The matter with regard to the adequate compensation to the Petitioners have to be decided keeping in view the provisions of Article 300-A of the Constitution of India.

Accordingly, the contesting Respondents 5 to 24 shall also file their affidavits in this regard showing cause as to why the amount, which is to be compensated to the Petitioner, be not realized from them.

List on 4th July, 2011.

A certified copy of this order may be provided to the learned Chief Standing Counsel free of charges within three days for being transmitted to the concern authorities.