Allahabad High Court
Smt. Prema Devi And Another vs State Of U.P. And Others on 22 August, 2013
Bench: Ram Surat (Maurya)
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR Reserved
Case :- WRIT - C No. - 14404 of 2013
Petitioner :- Smt. Prema Devi And Another
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Shiv Naresh Singh, Govind Krishna
Respondent Counsel :- C.S.C., Praveen Kumar Giri
Hon'ble Ram Surat Ram (Maurya),J.
1. Heard Sri Govind Krishna and Sri Shiv Naresh Singh, for the petitioners and Standing Counsel and Sri Ashok Kumar Maurya holding brief of Sri Praveen Kumar Giri, for the respondents.
2. The writ petition has been filed for quashing the order of Collector, Mirzapur (respondent-2) dated 22.01.2013, rejecting the representation of the petitioners and holding that lease granted to the petitioners of the surplus land came to an end on 10.09.1996 and 22.11.1996, when the surplus land has been restored to the tenure holder under the provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act). It has been further prayed that mandamus be issued directing respondent-2 to protect right, title and possession of the petitioners over the land in dispute.
3. In the proceedings under Section 10 of the Act, initiated against Anand Deo Giri (now represented by respondents-5 and 6), the Prescribed Authority by order dated 31.05.1977 declared certain area of land as surplus with him. Anand Deo Giri filed an appeal from the order of Prescribed Authority. It appears that during pendency of the appeal, Anand Deo Giri gave his choice for surplus land on 22.08.1980, which has been accepted by the Prescribed Authority by order dated 30.08.1980. Thereafter, Deputy Collector, Lalganj, Mirzapur (respondent-4) granted pattas to the petitioners of the surplus land on 13.02.1987 and 11.04.1987. It appears that after decision in the appeal, the tenure holder revised his choice and prayed for taking possession over the land, other than the land mentioned in his choice dated 22.08.1980. Prescribed Authority by order dated 10.09.1996 accepted the revised choice of the tenure holder. The tenure holder then filed an application for restoring possession over the land which was earlier taken as surplus land. The application of the tenure holder was allowed and parwana for restoring possession to the tenure holder over it was issued on 22.11.1996.
4. On behalf of the petitioners, an application for recall of the orders dated 10.09.1996 and 22.11.1996 was filed. Prescribed Authority by order dated 23.07.1997, rejected the application of the petitioners. Thereafter the litigation between the tenure holder and lease holders was gone before the revenue courts for deleting the mutation of the names of the petitioners and recording the name of the tenure holder over the land, which was earlier declared as surplus by order dated 30.08.1980, which was also decided in favour of the tenure holders.
5. After lapse of about 15 years, the petitioners filed representations dated 18.10.2012 before the Collector that Anand Shekhar Giri and Deo Shankar Mishra (respondent-5 and 6) were terrorizing them and trying to take forcible possession over the land allotted to them. When no order has been passed by the Collector, the petitioners filed Writ-C No. 59569 of 2012 before this Court, claiming for various reliefs. However the writ petition has been disposed of by order dated 29.11.2012, directing the Collector to decide the representations of the petitioners within a period of one months. In compliance of the order of this Court, the Collector by order dated 22.01.2013 held that the surplus land declared by order dated 30.08.1980 had been revised by order of Prescribed Authority dated 10.09.1996 and the surplus land declared by order dated 30.08.1980 was reverted to the tenure holder and parwana for restoring his possession was issued by the Prescribed Authority on 22.11.1996. On the surplus land being reverted to the tenure holder, the leases granted to the petitioners came to an end. The Tahsildar in his report has mentioned that after 1998, the tenure holder was in possession over the land in dispute and the pattedars were not in possession. Since, surplus land has been reverted to the tenure holder as such the petitioners are not entitled to get possession over it. On these findings representations of the petitioners have been rejected. Hence this writ petition has been filed.
6. The counsel for the petitioners submitted that petitioners were granted pattas of the surplus land according to the provisions of Section 27 of the Act in the year 1987. Their names were duly mutated in the revenue records. No proceeding for cancellation of the pattas of the petitioners has ever been initiated under Section 27 (4) of the Act, nor their pattas have been cancelled. The petitioners have become bhumidhar with non-transferable right of the land allotted to them under Section 131 (d) and Section 131-B of U.P. Act No. 1 of 1951. The petitioners are not liable to be dispossessed from the land in dispute. The Collector is bound to restore and protect the possession of the petitioners over the land in dispute. The tenure holder, voluntarily gave choice of the surplus land on 22.08.1980, which has been accepted by the Prescribed Authority by order dated 30.08.1980. The land which was opted for surplus land on 22.08.1980 was infertile land. After allotment, the petitioners invested huge amount and made the land fertile, as such, the tenure holder cannot be permitted to change the surplus land. The tenure holder is estopped from resiling from his earlier admission and give another land as his choice for surplus land. The petitioners, who are landless agricultural labourers, will suffer grave hardship in case they are dispossessed from the land allotted to them as they have invested huge amount in developing the land in dispute after its allotment to them. He submits that as the various allegations made in the writ petition have not been controverted by any of the respondents as such be accepted as correct.
7. I have considered the arguments of the parties and examined the record. The first point arises as to whether the various allegations made in the writ petitions are liable to be accepted as proved as no counter affidavit has been filed in the writ petition, controverting those facts. Basic principle of the Evidence Act as contained in Section 101 is whoever desires any Court to give judgment as to any legal right dependent on the existence of facts which he asserts must prove that those facts exists. Supreme Court, in Governing Body of Dayanand Anglo Vedic College Vs. Padmanabha Padhy, AIR 1988 SC 612 held that burden of proving necessary facts for grant of relief is on the writ petitioner and in the absence to necessary evidence to prove the allegations, the desired relief cannot be granted. It is also well established that the various facts mentioned in the impugned order, will be taken to be correct unless contrary is proved. Theory of un-controverted affidavit has been applied while granting relief in the restoration/recall application. So far as title over the immovable properties is concerned, no decree or order can be granted in the absence of unimpeachable evidence establishing the title and only for the reasons that affidavit remained un-controverted or the allegation has been accepted by the other side.
8. The Collector has recorded the findings in the impugned order that the tenure holder had revised his choice of the surplus land which has been accepted by the Prescribed Authority by order dated 10.09.1996 and the surplus land which he had voluntarily given on 22.08.1980 has been changed. Thereafter, Prescribed Authority issued parwana dated 22.11.1996 for restoration of the possession of the tenure holder over the land which was earlier declared as surplus by order dated 30.08.1980. Jageswar, husband of petitioner-1 filed an application for recall of the orders which was rejected by the Prescribed Authority on 23.07.1997. From the report of Tahsildar, the tenure holder is in possession over the land in dispute since 1998. The petitioners have not denied nor challenged in the writ petition that these facts are incorrect. Thus the cause of action arose to the petitioners in the year 1996 and their application for recall of the orders dated 10.09.1996 and 22.11.1996 has been rejected on 23.07.1997. These orders have not been challenged and allowed to become final. After 15 years of the aforesaid orders, second round of litigation has been started without any basis.
9. The petitioners have filed photostat copies of the pattas granted to them. It is blurred at various places. Neither the date of patta nor period of lease has been mentioned in it. In the khatauni filed as Annexures-3 and 4 of the writ petition, the names of the petitioners were recorded for interim period as such from the khatauni it appears that the land in dispute was let out to the petitioners for a limited period and they cannot acquire right of 'bhumidhar with non-transferable right' over the land allotted to them under Section 131 (d) and Section 131-B of U.P. Act No. 1 of 1951. On the land being reverted to the tenure holder, the pattas automatically came to an end.
10. The other point argued by the counsel for the petitioner that the tenure holder voluntarily gave his choice on 22.08.1980 as such he was estopped from changing the choice of surplus land. Section 9 of the Act, requires that as soon as may be after the date of enforcement of the Act, the Prescribed Authority shall, by general notice, published in the Official Gazette, call upon the tenure holder holding land in excess of the ceiling area applicable to him on the date of enforcement of this Act, to submit him within 30 days of the date of publication of this notice, a statement in respect of all his holdings in such form and giving such particulars as may be prescribed. The statement also indicate the plot or plots for which he claims exemption and also those, which he would like to retain as part of ceiling area applicable to him under the provisions of this Act. If a tenure holder fails to submit his statement under Section 9 of the Act, the Prescribed Authority shall issue notice to the tenure holder under Section 10 of the Act, which will contain statement of the plots proposed to be declared as surplus land. Sections 11 and 12 deal with the determination of surplus land by the Prescribed Authority and Section 13 provides for appeal from the order of Prescribed Authority. Section 14 of the Act provides for acquisition of surplus land by the Collector at any time (i) in case where the order passed under Sub-Section (1) of Section 11 has become final, or (ii) in case where no appeal has been filed under Section 13, the date of expiry of the period of limitation provided therefor or (iii) in case, where an appeal has been preferred under Section 13, the date of its decision.
11. Under Section12-A of the Act the Prescribed Authority is required to determine the surplus land. Under this section, it has been provided that 'as far as possible' the Prescribed Authority shall accept choice indicated by the tenure holder. Supreme Court in Rajendra Singh v. State of U.P., (1998) 7 SCC 654 held as follows:
"Section 9 provides that the prescribed authority shall by a general notice published in the Official Gazette, call upon every tenure-holder holding land in excess of the ceiling area applicable to him, to submit a statement in respect of all his holdings wherein he shall also indicate the plots which he would like to retain as part of his ceiling area. It is this choice which is referred to in Section 12-A and it is provided that the prescribed authority shall, as far as possible, accept the choice indicated by the tenure-holder as to the plots which he would like to retain as part of his ceiling area. It is at this stage that the discretion can be exercised by the prescribed authority and he may not take over those plots as part of the surplus area. It is thus "discretion" and not "compulsion" which constitutes the core of this statutory provision. It is obvious that before taking over any area as surplus area or leaving any area as ceiling area of the tenure-holder, the prescribed authority shall first take into consideration the choice indicated by the tenure-holder and if it is not possible to act wholly upon the choice, for which there may be a variety of reasons, the prescribed authority will proceed in his own way to leave the area determined by him as the ceiling area with the tenure-holder and take over the other area as surplus area."
12. Thus from the aforesaid proposition, it is clear that stage of considering the choice come at the time of taking possession over the surplus land. It has been consistently held by this Court in Bharat alias Bharat Singh Vs. State, 1977 AWC 407, Bhagwan Swaroop Vs. State 1979 AWC 70, Tek Chandra Vs. State, 1979 ALJ 274, Balesar Vs. State, 1980 ALR 68, Smt. Ram Kali Vs. State of U.P., 1982 ALJ 134, Raj Kumar Vs. State, 1985 RD 14, Charan Singh Vs. State, 1988 RD 134 (DB), Shashi Kant Rai Vs. State, 2002 (93) RD 736, that tenure holder can revise his choice till his right is extinguished under Section 14 of the Act. The discretion vests in the Prescribed Authority to accept the choice. The Prescribed Authority by his order dated 11.09.1996 has accepted the revised choice of the tenure holder.
13. It has been further held by this Court in Moti Lal Vs. State of U.P., 1998 RD 723 and Chidda Vs. Azizur Rehman, 2003 (95) RD 231 that allottees have no right to challenged the order of the Prescribed Authority accepting choice of the tenure holders.
14. So far as the arguments of the counsel for the petitioner that the tenure holder, voluntarily gave choice of the surplus land on 22.08.1980, which has been accepted by the Prescribed Authority by order dated 30.08.1980. The land which was opted for surplus land on 22.08.1980 was infertile land. After allotment, the petitioners invested huge amount and made the land fertile, as such, the tenure holder cannot be permitted to change the surplus land and the tenure holder is estopped from resiling from his earlier admission and give another land as his choice for surplus land, it is stated that no question of admission arise at all. Doctrine of estoppel is not applicable against the statute. The statute provides right to the tenure holder to give his choice. Right to give choice includes right to revise choice till the land is vested in State of U.P. under Section 14 of the Act as held above. As such principles of estoppel has no application in this matter. The pattas of the petitioners were temporary and any investment made by them was on their own risk. It will not bind the tenure holder.
15. In view of the aforesaid discussion, the writ petition has no merit and is dismissed.
Order Date :- 22.08.2013
mt
