Prabhu and Others vs Additional Commissioner-II and Others

Prakash Krishna, J.—The present writ petition is directed against the order dated 7th July, 2011 passed by the Additional Commissioner in Case No. 1/08/2010-2011 u/s 27(4) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "the Act").

The Petitioners are the allottees of the ceiling land declared surplus. By means of the impugned order, the allotment of pattas have been cancelled and the Prescribed Authority under the said Act has been directed to take possession of 2.73 Acre surplus land in terms of irrigated land from plots No. 721 and 725.

The background facts may be noticed in brief:

Respondent No. 3 Khuman Sing, the original tenure holder was served with notice u/s 10(2) of the Act on 5th July, 1974 by the Prescribed Authority for determination of the ceiling area of his holding. The proceeding was initiated and initially an ex parte order was passed whereby 4.03 Acre irrigated land was declared surplus by the Prescribed Authority. The matter was carried in appeal and the Appellate Court, namely, Additional District Judge allowed the appeal in part and reduced surplus land 2.73 Acre irrigated land was declared surplus on 26th February, 1978.

To this extent, there is No. dispute between the parties. However, the record shows that the proceeding relating to determination of ceiling area and proceeding relating to choice of surplus land had a checkered history. The Prescribed Authority took the possession of 4.03 Acre irrigated land in pursuance of an ex parte order. A dispute after determination of ceiling area with regard to the plots which may be taken as surplus land arose in between the tenure holder/Respondent No. 3 and the State of Uttar Pradesh, which led filing number of petitions before this Court at different stages.

One such writ petition being Writ Petition No. 9714 of 1988 was filed by Respondent No. 3. In the said writ petition although there was an interim order but the authorities below forcibly took the possession of plots No. 721 and 725 and leased them out to the Petitioners, notwithstanding the interim order passed therein. The said writ petition was dismissed on 24th February, 2005. The tenure holder in pursuance of the directions given by this Court in one of the writ petitions gave other plots as choice. The Prescribed Authority by the order dated 19th March, 2009 has accepted the choice of the plots given by the Respondent No. 3. The said order has attained finality.

Thereafter, the Respondent No. 3 filed an application u/s 27(4) of the Act for cancellation of leases of the plots No. 721 and 725 granted by the State Government in favour of the Petitioners on the ground that these plots were never given in choice and he having surrendered land measuring 2.73 Acre in terms of irrigated land, the possession of plots No. 721 and 725, which was taken unauthorizedly be restored back to him.

It is also relevant to state here that in the intervening period, the village had come under the consolidation operation.

The Petitioners filed objection stating that the Respondent No. 3 has No. concern either with the plots No. 721 or 725 as in lieu of those plots, some new plots have been given.

The matter was considered earlier and an order against the Petitioners was passed, which was subject matter of the earlier writ petition being Writ Petition No. 53600 of 2009, Prabhu and Ors. v. Additional Commissioner, Chitrakoot Dham and others. The said writ petition was allowed by quashing the order dated 4th September, 2009 and the matter was remitted back to the Respondent No. 1 for passing fresh order, in the light of the observations made in the judgment and order dated 2nd July, 2010.

In consequence of the aforesaid judgment and order dated 2nd July, 2010, the matter was again heard by the Respondent No. 1, who has passed the impugned order.

Heard Shri Vinod Kumar Sahu, learned Counsel for the Petitioners and Shri Purushottam Maurya, learned Counsel for the contesting Respondent No. 3, who has filed caveat application at the admission stage of the writ petition.

Learned Counsel for the Petitioners submits that Section 27(4) of the Act, on its plain reading, is not applicable. The application filed by the contesting Respondent No. 3 is barred by time. It is further submitted that controversy in the present writ petition is confined to plot No. 721 and in lieu thereof plot No. 695 was given to the contesting Respondent No. 3 during consolidation operation and therefore, Respondent No. 3 could not file an application u/s 27(4) of the Act. He invited the attention of this Court to various documents and the judgment of this Court delivered in Writ Petition No. 9714 of 1988.

In contra, learned Counsel for the contesting Respondent No. 3 submits that admittedly, 2.73 Acre land was declared surplus. He has surrendered that area of the land and his choice has been finally accepted by the Prescribed Authority vide order dated 19th March, 2009. Admittedly, plot No. 721 originally belonged to the Respondent No. 3. The possession thereof was taken forcibly in pursuance of an ex parte order passed by the Prescribed Authority. The leases/pattas were wrongly and illegally granted to the Petitioners during the continuance of the stay order passed in Writ Petition No. 9714 of 1988. Ultimately area 2.73 Acre has been found to be surplus, which has been handed over to the State Government. Respondent No. 3 is entitled to get back plot No. 721, which is very valuable land.

Considered the respective submissions of the learned Counsel for the parties and perused the record.

A bare perusal of the impugned order would show that the Respondent No. 3 was deprived of the possession of land of plot Nos. 721 and 725 in pursuance of an ex parte order passed by the Prescribed Authority. Initially 4.03 Acre irrigated land was declared surplus, which was modified in appeal and was reduced to 2.73 Acre. Admittedly, the Respondent No. 3 was permitted to give the plots of his choice as surplus land which he did and it has been accepted by the Prescribed Authority vide his order dated 19th March, 2009.

Now the question arises as to whether the Respondent No. 3 is entitled to get back the possession of plots No. 721 and 725 of which he was deprived earlier on account of an ex parte order passed by the Prescribed Authority and an application for cancellation of pattas u/s 27(4) of the Act is maintainable or not? The main thrust of the argument of the Petitioners'' counsel is that Section 27(4) of the Act is not attracted and the application is not maintainable. Even if, it was maintainable, it is barred by time. To understand the controversy involved in the present writ petition, it is desirable to reproduced the relevant portion of Section 27(4):

Settlement of surplus land.-

(1)...

(2)...

(3)...

(4) The Commissioner may of his own motion and shall, on the application of any aggrieved person enquire into such settlement and if he is satisfied that the settlement is irregular he may after notice to the person in whose favour such settlement is made to show cause-

(i) cancel the settlement and the lease, if any, and thereupon, notwithstanding anything con-tained in any other law or in any instrument, the rights, title and interest of the person in whose favour such settlement was made or lease ex-ecuted or any person claiming through him in such land shall cease, and such land shall revert to the State Government; and

(ii) direct that every person holding or retaining possession thereof may be evicted, and may for that purpose use or cause to be used such force as may be necessary.

(5) Every order passed by the Commissioner under Sub-section (4) shall be final.

(6) The Commissioner acting of his own motion under Sub-section (4) may issue notice, and an application under that Sub-section may be made,-

[(a) in the case of any settlement made or lease granted before November 10, 1980, before the expiry of a period of [seven years] from the said date; and

(b) in the case of any settlement made or lease granted on or after the said date, before the expiry of a period of [five years from the date of such settlement or lease or up to November 10, 1987, whichever be later].

[(6-A) Where any surplus land has been settled by the Collector under Sub-section (3), and any person other than the person in whose favour such settlement was made is in occupation of such land in contravention of the provisions of this Act, the Collector may, of his own motion and shall on the application of the person in whose favour such settlement was made, put him in possession of such land any may for that purpose use or cause to be used such force as he considers necessary.

(6-B) Where any person, after being evicted under this section, reoccupies the land or any part thereof without lawful Authority, he shall be punishable with imprisonment for a term which may extend to two years but which shall not be less than three months and also with fine which may extend to three thousand rupees:

Provided that the Court convicting the accused may while passing the sentence direct that the whole or such portion of the fine that may be recovered as the Court considers proper, be paid to the person in whose favour such settlement was made as damages for use and occupation.

(6-C) Where in any proceeding under Sub-section (6-B), the Court at any stage after cognizance of the case has been taken is satisfied by affidavit or otherwise-

(a) that the accused is in occupation of the land to which such proceeding relates, in contravention of the provisions of the Act; and (b) that the person in whose favour such settlement was made is entitled to be possession of such land;

the Court may summarily evict the accused from such land pending the final determination of the case and may put the person in whose favour such settlement was made in possession of such land.

(6-D) Where in any such proceeding, the accused is convicted the interim order passed under Sub-section (6-C) shall be confirmed by the Court.

(6-E) Where in any such proceedings the accused is acquitted or discharged and the Court is satisfied that the person so acquitted or discharged is entitled to be put back in possession over such land, the Court shall, on the application of such person direct that delivery of possession be made to him.

(6-F) Notwithstanding anything contained in the Code of Criminal, 1973, every offence punishable under Sub-section (6-B) shall be cognizable and non-bailable and may be tried summarily.

(6-G) For the purpose of speedy trial of offences under this section, the State Government may, in consultation with the High Court, by notification, constitute, special courts consisting of an officer not below the rank of Sub-Divisional Magistrate, which shall, subject to the provisions of the Code of Criminal Procedure, 1973, exercise in relation to such offences the powers of a Judicial Magistrate of the first class.]

The contention is that the Respondent No. 3 could not file such an application as he is not a ''person aggrieved'', as he did not apply for settlement in his favour. The said contention of the face of it cannot be accepted for the reasons more than one. Firstly, Sub-section (4) of Section 27 is very widely worded. It empowers any person aggrieved to file application with regard to the settlement. Here, the case of Respondent No. 3 is that the plot No. 721 and 725 belong to him and these plots were taken into consideration for determination of his ceiling area. He has not given those plots in choice therefore, on the principle of restitution is entitled to get them back.

The ambit and scope of inquiry under Sub-section (4) of Section 27 is very wide. "Any person aggrieved" does not mean that such a person should necessarily be a party to the settlement proceeding. Admittedly, the settlement/leases have been granted to the Petitioners in respect of the aforestated plot No. 721 in particularly, which according to the contesting Respondent No. 3 belonged to him, certainly he is a person aggrieved due to settlement of such plots by the Collector. A fair reading of Sub-section (4) also shows that it gives suo moto power to the Commissioner. In other words, as soon as it comes in the knowledge of the Commissioner that some illegality has been committed by the Collector in the settlement of surplus land, the Commissioner is empowered to enquire into such settlement. The other word used is "irregular". The word irregular is wider than the illegality. Therefore, the contention of the Petitioners that an application under Sub-clause (4) of Section 27 was not maintainable, is liable to be rejected.

Then it was contended that in view of Sub-section (6) of Section 27 of the Act, the application filed by the contesting Respondent was barred by time. Elaborating the submission, it was argued that in view of Sub-section (6)(b) of Section 27, an application for cancellation of settlement made or lease granted can be done before the expiry of a period of five years from the date of such settlement or lease or up to November 10, 1987, whichever be later. The said point does not find mention in the impugned order. From perusal of the impugned order, it does not appear that any such argument or plea was set out by the Petitioners before the authorities below. Prima facie, the contention of the Petitioners may be attractive but on deeper scrutiny on the particular facts of the present case, the said argument is liable to be rejected.

A close reading of Sub-section (6) of Section 27 of the Act would show that power under Sub-section (4) can be exercised either (i) suo moto or (ii) on the application of a aggrieved person. No. period of limitation for exercise of suo moto power is prescribed. The reason is obvious. The Commissioner may come to know about illegality or irregularity of settlement or lease later on. The proceedings under the Act may take, as in the present case also, a long time beyond five years. In such circumstances, if ultimately it is held that the tenure holder has either No. surplus land or the order declaring surplus land is invalid or the order is modified in appeal or writ petition and in the meantime, the surplus land which was declared either by the Prescribed Authority or by the Appellate Authority has been allotted to a third person, the effect to the final order may be given in the light of the ultimate order.

Coming to the facts of the present case, indisputably, by an ex parte order dated 5th July, 1974, 4.03 Acre irrigated land was declared surplus by the Prescribed Authority. The said order was modified in appeal. Noticeably immediately after the ex parte order, tenure holder Respondent No. 3 herein was deprived of his plots No. 721 and 725 by dispossessing him and land was leased out to the Petitioners. No. opportunity was given to the Petitioners to give choice. In view of ultimate order, contesting Respondent No. 3 has got only 2.73 Acre surplus land and he was permitted to give the choice and he has given choice of other plots, which has been finally accepted by the Prescribed Authority by the order dated 19th March, 2009. Respondent No. 3 is entitled to get back the aforesaid two plots and the revenue authorities are under legal obligation to restore back these two plots to the tenure holder notwithstanding that they were leased out to the Petitioners. A person can be deprived out his property by authority of law and not otherwise. Article 300-A of the Constitution provides that No. person shall be deprived of his property save by authority of law.

The deprivation of property may take place in various ways, such as destruction or confiscation, or revocation of a proprietary right granted by a private proprietor, seizure of goods or immovable property from the possession of an individual etc. ect.

The Imposition of Ceiling on Land Holdings Act has been enacted to provide for the imposition of ceiling on land holdings in Uttar Pradesh and certain other matter connected therewith. The Act has made the provisions which are really measures of agrarian reforMs. It has been held that the contesting Respondent possesses 2.73 Acre beyond ceiling limit and that area having been given under law, the State Government is duty bound to restore back the disputed plots No. 721 and 725 to the Respondent No. 3.

In Karnataka Rare Earth and Another Vs. The Senior Geologist, Department of Mines and Geology and Another, the Apex Court in para-10 has held as follows:

In South Eastern Coalfields Ltd., (2003) 8 SCC 648 this Court dealt with the effect on the rights of the parties who have acted bona fide, protected by interim orders of the court and incurred rights and obligations while the interim orders stood vacated or reversed at the end. The Court referred to the doctrine of actus curiae neminem gravabit and held that held that the doctrine was not confined in its application only to such acts of the court which were erroneous; the doctrine is applicable to all such acts as to which it can be held that the court would have not so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, it entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand: (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost.

The proceeding was initiated on the application filed by the contesting Respondent but the fact remains that the possession of disputed plots were taken in pursuance of an ex parte order passed by the Prescribed Authority. The said ex parte order was set aside and therefore principle of restitution will come into play. The doctrine of restitution as contained in Section 144 of the CPC which is based on the principle of administration of justice and it will come into play. The maxim ''actus curiae neminem gravabit'' i.e. an act of court shall prejudice No. man will come to the aid of tenure holder. The maxim "is founded upon justice and good sense, and affords a save and certain guide for the administration of the law", said Cresswell,J. in Freeman v. Tranah (12 C.B. 406). This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of justice.

In view of the above, the contesting Respondent No. 3 is entitled to get aforesaid two plots irrespective of the fact whether there is any provision for restitution or that the application is within the scope of Section 27 of the Act or not? This being so, the argument of the learned Counsel for the Petitioners that the application u/s 27 was not maintainable, even if, it is accepted for the sake of the argument, is of No. consequence as the Respondent No. 3 under the principle of restitution as also under the principle that No. one should suffer for an act of the Court or the authority is entitled to get back the aforesaid plot, as also in view of the Article 300-A of the Constitution of India.

Learned Counsel for the Petitioners has invited the attention of this Court towards the judgment dated 2nd February, 2010 passed in earlier Writ Petition No. 53600 of 2009 wherein the matter was remitted back to the authority below for passing afresh order in accordance with the law after affording opportunity of hearing to the parties and after taking into consideration the entire material on record including the written statement/objection of the Petitioners. It was submitted that the direction as contained therein has not been carried on. The grievance of the Petitioners therein was that there is No. material to show that Respondent No. 3 was khatedar of plot No. 721. To address the said grievance, the remand order was passed earlier. Submission is that there has been consolidation operation in the village and the contesting Respondent has not been given plot No. 721 as a result thereof. It will not be out of place to mention here that plots No. 721 and 725 were the subject matter of the proceeding under the Ceiling Act. It was included and treated in the hands of the contesting Respondent No. 3 while determining his ceiling area. It was not in dispute that as soon as an ex parte order was passed by the Prescribed Authority on 27th January, 1977, the Respondent No. 3 was forcibly deprived of the possession of the said plot.

A dispute was raised by the learned Counsel for the Petitioners that plot No. 721 has been taken away during consolidation operation, which has been disputed by the learned Counsel for the contesting Respondent No. 3. The revenue extract shows that the Respondent No. 3 was given 14.87 Acre during consolidation operation, which includes plot No. 721 also vide annexure-3 to the writ petition.

The Petitioners have been granted leases in respect of plots No. 721 and 725, Respondent No. 3 has given choice of other plots, which has been accepted and he is entitled for restitution or getting back of plots No. 721 and 725. The authority below has rightly cancelled the leases in respect of the aforesaid plots and ordered redelivery of those plots to the Respondent No. 3 leaving 2.73 Acre irrigated land as surplus.

Before parting with the case, it may be noted that the Additional Commissioner has found that the Respondent No. 3 was deprived of those two plots unauthorizedly in spite of there being stay order of the High Court. It has been further noticed that although an area 2.73 was declared as surplus but the State authorities have granted pattas/leases for an area 21.70 Acre which on the face of it, is illegal. The Additional Commissioner has recorded a finding that although an area 2.73 Acre irrigated land was declared surplus but the Ceiling Department had taken possession of about double of that area and granted the leases without following the established principle of law. No. selection process was adopted and the lands were allotted on pick and choose basis.

Viewed as above, I find No. merit in the present writ petition. The writ petition is devoid of any merit and is dismissed accordingly. No. order as to costs.