Syed Majhar Ali Shah vs Additional Commissioner (Judicial) Gorakhpur Division,Gorakhpur and Others

Sudhir Narain, J.—This writ petition is directed against the order dated 1671987 passed by the Prescribed Authority whereby an order was passed under Section 13A of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (in short referred to as the Act), and the order dated 16111996 passed by respondent No. 1 dismissing the appeal against said order.

The Prescribed Authority by order dated 831977 declared 6.98 acres of land of the petitioner as surplus. A notice was issued in Form 5Ka, but by mistake instead of showing 6.98 acres of land as surplus, only 0.98 acre of land was shown as surplus. Subsequently on realising the mistake amended Form 5A was issued to the petitioner. He filed objection before the Prescribed Authority. The petitioner raised objection that any mistake can be corrected under Section 13A of the Act within a period of two years from the date of the notification under subsection (1) of Section 14 of the Act and as two years having expired the correction cannot be made under said provision. The Prescribed Authority held that notification under Section 14 (1) of the Act was not made as the notification can be made after possession had been taken but as possession of the land had not been taken there cannot be any notification under Section 14(1) of the Act. It was found that the Prescribed Authority had declared 6.98 acres of land as surplus and mere fact that notice in Form 5A was issued for taking 0.98 acres of land was a clerical mistake.

The Prescribed Authority directed to correct Form 5A by order dated 1671987. Petitioner filed appeal against said order before respondent No. 1 which was dismissed on 5121989. The petitioner filed Civil Misc. Writ Petition No. Nil of 1989 in this Court. This Court disposed of the writ petition with the observation that entire area shall be measured and the area given to the petitioner by the Prescribed Authority shall be given to him except the area declared as surplus. Respondent No. 1 got the land measured and thereafter considering the facts of the case by order dated 26111996 dismissed the appeal holding that as the Prescribed Authority declared 6.98 acres of land of the petitioner as surplus, authorities concerned are entitled to take possession of the land to that extent. The petitioner has challenged this order in the present writ petition.

First submission of the learned counsel for the petitioner is that no correction can be made in any order after two years from the date of notification under Section 14(1) of the Act and the respondents have acted illegally in not considering this aspect of the matter.

The Prescribed Authority by order dated 1671987 held that the petitioner failed to prove publication of the notification under Section 14(1) of the Act. No notification could have been issued under Section 14(1) of the Act unless possession of the surplus land was taken. The petitioner has not filed any copy of the notification under Section 14(1) of the Act. Further Section 13A of the Act contemplates that correction of apparent mistake and in the orders which have been passed by the Prescribed Authority or the Appellate Authority, there was no dispute to the effect that the Prescribed Authority had passed the order of declaration of 6.98 acres of land as surplus was wrong. The notice was issued to take possession in Form 5A and that was only sought to be corrected. It was not a correction of an order passed by any authority. The mistake was only in issuing the notice in Form 5A which was a clerical mistake. Further the petitioner had earlier filed aforesaid writ petition. It was open to the petitioner to raise this point as well wherein the order dated 12121989 was passed by this Court disposing of the writ petition with the observations that entire area shall be measured and the area given to the petitioner by the Prescribed Authority shall be given to him except the area declared as surplus. It is not now open to the petitioner to raise this point in the instant writ petition.

Second submission of the learned counsel for the petitioner is that the area of the land has not been correctly measured. An objection was filed before respondent No. 1. against the report submitted to respondent No. 1 in respect Of measurement of the land. Respondent No. 1 illegally observed that there was no merit in the objection without referring to each of the points raised in the objection.

There is no dispute regarding the boundary of the land. The land of the petitioner to the extent of 6.98 acres was declared as surplus and the possession of land only to that extent was to be taken. The petitioner had not shown that in the measurement how area in excess of 6.98 acres has been declared as extra land. The report alongwith measurement has not been annexed in this writ petition. The objection that measurement is incorrect, has not been found incorrect by respondent No. 1. I do not see any reason to set aside that finding.

The third submission of the learned counsel for the petitioner is that the possession of 0.98 acres of land had already been taken. In case the possession of 0.98 acres of land has already been taken, there is no reason that again area to the extent of 0.98 acres of land will be taken. The petitioner has not annexed the report alongwith copy of measurement which were submitted before respondent No. 1. In case the petitioner has already given possession of 0.98 acre of land, he can move an application pointing out this fact and the order whereby this possession has been given. In this petition, the petitioner has not disclosed from which plot the aforesaid land to the extent of 0.98 acres of land has been given.

The fourth submission of the learned counsel for the petitioner is that the document in respect of area regarding measurement of land was submitted to respondent No. 1 on 3111996, the objection had been filed on 8111996 on the date fixed for hearing of the case. Only argument was raised on question of measurement but no argument was raised and heard on merit. The petitioner had filed application on 29111996 indicating that the arguments were heard, respondent No. 1 admittedly disposed of the appeal on 29111996. It is not the case of the petitioner that no arguments were heard in this case. It was open to the counsel for the petitioner to urge every points. There is nothing to show from the ordersheet that on the date fixed the court concerned was to determine only in respect of objection of the petitioner regarding the report about measurement submitted to respondent No. 1.

In view of above, there is no merit in this writ petition and it is accordingly dismissed. Petition dismissed.