Vijay Deep Singh And 3 Others vs State Of U.P. & Another
2013 Latest Caselaw 5684 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 18
 

 
Case :- WRIT - C No. - 36562 of 2013
 

 
Petitioner :- Vijay Deep Singh And 3 Others
 
Respondent :- State Of U.P. & Another
 
Counsel for Petitioner :- A.P. Tewari, S.S. Tripathi
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Ram Surat Ram (Maurya),J.

1. Heard Sri A.P. Tewari, counsel for the petitioners and Sri Sanjay Goswami, Standing Counsel, for the respondents.

2. The writ petition has been filed for quashing the order of Prescribed Authority dated 20.06.2013, passed in the proceedings under Section 12-A of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act), by which the application of the petitioner, giving choice of the surplus land, has been rejected.

3. It has been stated that the proceedings under the Act was started against Bhupendra Singh (father of the petitioners) through notice dated 12.11.1974. The Prescribed Authority, by order dated 29.01.1996, declared 6.86 acre of land, in terms of irrigated land, as surplus with the father of the petitioners. Bhupendra Singh filed an appeal from the order of Prescribed Authority, which was dismissed on 03.10.1996. Thereafter, Bhupendra Singh filed a writ petition (registered as Writ-C No. 30102 of 1996) before this court, in which, interim order dated 05.11.1996, staying the operation of the impugned orders, was granted. The interim order was extended time to time. The writ petition was ultimately dismissed on 11.05.2011.

4. After dismissal of the writ petition, the petitioners filed an application under Section 12-A of the Act, giving his choice of the surplus land, on 29.06.2011.The Prescribed Authority, by order dated 10.08.2011, rejected the application of the petitioners. The petitioners, then filed a writ petition (registered as Writ-C No. 48210 of 2011) against the order of Prescribed Authority dated 10.08.2011, which was allowed by this Court, by judgment dated 24.08.2011, holding that right to give choice of surplus land is an unfettered statutory right of the tenure holder and the order of the Prescribed Authority was set aside. The Prescribed Authority was directed to decide the application of the petitioners, giving choice of the surplus land, afresh, in accordance with the provisions of Section 12-A of the Act.

5. Thereafter the Prescribed Authority, again by order dated 28.2.2012, rejected the application of the petitioners, giving choice of the surplus land, holding that the surplus land has already been declared against the father of the petitioners, 15 years ago as such they are not entitled to give fresh choice of the surplus land. The petitioners, thereafter, filed another writ petition (registered as Writ-C No. 14368 of 2012) which was again allowed by this Court by order dated 23.03.2012 and the matter was again remanded to the Prescribed Authority to decide the application of the petitioners, giving choice of the surplus land, afresh.

6. Thereafter, the Prescribed Authority called for a report from Sub-Divisional Magistrate, Mahrajganj, who submitted his report dated 12.12.2012. In this report, it has been mentioned that plot No. 1228 (area 2.17 acre) of village Bhagaura, tappa: Gahasad, pargana-Hasanpur Maghar, district Gorakhpur, which was earlier declared as surplus land, was allotted to the landless persons, but the petitioners were still in possession over this plot. Plot No. 948 (area 0.649 hectare) of village Rampur, tappa Bharivasi, which was earlier declared as surplus land, was allotted to landless persons and they were in possession over it. An area of 0.113 hectare of plot No. 248/1 (area 0.713 hectare), which was earlier declared as surplus land, was allotted to the landless persons but the petitioners were in possession of it. Plot No. 5 (area 0.263 Hectare) of village Bhabhair tappa Garhasad, which was earlier declared as surplus land, was recorded in the names of the petitioners, however, an area of 0.096 hectare of this plot, has been taken for construction of drainage and was recorded in the name of Executive Engineer, Drainage Division.

7. Thereafter, the application of the petitioners was heard by the Prescribed Authority, who by order dated 20.06.2013, held that the land, which was earlier declared as the surplus land, has already been allotted to the landless persons. The names of the allottees were recorded in the khatauni, since 1414 F. The allottees have acquired Bhumidhar with transferable right, over the land which was earlier declared surplus land. In such circumstances, the land is not free from encumbrances and the choice given by the petitioners is not liable to be accepted. On these findings the application has been rejected. Hence this writ petition has been filed.

8. The counsel for the petitioners submits that the application of the petitioners giving choice of the surplus land has been rejected on the ground that the land, which was earlier declared as surplus land was allotted to the landless persons, who have acquired Bhumidhar with transferable right, over it, as such the land is not free from encumbrances. He submits that it has been consistently held by this Court that the land holder has right to revise his choice of the surplus land, till the surplus land is vested in State of U.P. under Section 14 of the Act. By the order of Prescribed Authority, dated 29.01.1996, 6.86 acre of land, in terms of irrigated land, was declared, as surplus land with the father of the petitioners. Before expiry of 30 days from the order of Prescribed Authority, an appeal was filed from the order of Prescribed Authority, which was dismissed on 03.10.1996. Thereafter, Bhupendra Singh filed a writ petition (registered as Writ-C No. 30102 of 1996) before this court, in which, interim order dated 05.11.1996, staying the operation of the impugned orders, was granted. The interim order was extended time to time and continued till dismissal of the writ petition on 11.05.2011. Section 14 of the Act provides the procedure for taking possession over the surplus land. According to the provisions of Section 14 of the Act, the possession over the surplus land could have been taken only after 11.05.2011. As possession over surplus land has never been taken, the petitioners, through the application dated 29.06.2011, gave their choice of the surplus land. Although the surplus land was declared by order dated 29.01.1996 but as possession over it was never taken according to the provisions of Section 14 of the Act, till 29.06.2011, the petitioners have right to revise their choice of the surplus land. The application of the petitioners has been illegally rejected on the premises that the land was not free from encumbrances. While deciding the application, giving choice of the surplus land, the Prescribed Authority is required to examine the suitability of land given in choice according to the provision of Section 12-A of the Act. However the Prescribed Authority misguided himself in holdings that the land which was earlier declared as surplus land, has been allotted to the landless persons, who have acquired Bhumidhar with transferable right, over it as such the land was not free from encumbrances. He submits that allotments of land without taking possession over the surplus land are void and will confer no right to the allottees. It has come in the report of Sub-Divisional Magistrate that various plots, which were earlier declared as surplus land and had been allotted to the landless persons but are still in possession of the petitioners, which clearly proves that possession over the land, which was earlier declared as surplus, has never been taken. Even if some of the allottees have taken forcible possession over the land of village Rampur, they are liable to be ejected as their rights have been created by the State of U.P. and not by the petitioners. The alleged encumbrances have been created by State of U.P. and not by the petitioners. The order has been passed on irrelevant consideration and is liable to be set aside.

9. In reply to the aforesaid arguments the learned Standing Counsel submits that Section 9 (1) of the Act, castes a duty upon the tenure holders to file the statement of their holdings. In case statement of holdings is not filed within time, notice under Section 10 (2) of the Act is issued, giving the details of the plots including the plots proposed to be declared as surplus land. If the tenure holder is failed to revise his choice of the surplus land, then the land which was indicated as surplus land in the notice, is declared as surplus land by the Prescribed Authority in the order passed in the proceedings under Section 12 of the Act. Section 12-A of the Act, provides that the Prescribed Authority shall, as far as possible, will accept the choice of the surplus land indicated by the tenure holder. Thus Section 12-A gives a discretion to the Prescribed Authority to examine the suitability of the land offered as the choice of the surplus land, by the tenure holder. By the order of Prescribed Authority dated 29.01.1996, some plots were declared as surplus land. The land which was declared as surplus land by the order dated 29.01.1996 has been allotted to the landless persons, whose names are recorded in the khatauni and they have acquired Bhumidhar with transferable right over it, as found by the Prescribed Authority, after examination of the record, In these circumstances, the application of the petitioners revising the choice of the surplus land was not found to be suitable. Use of the wrong words 'free from encumbrances' in the impugned order, relates to the suitability of the choice of the surplus land and was used in that sense. The application of the petitioners has been rightly rejected.

10. I have considered the respective arguments of the counsel for the parties and examined the record. Neither in impugned order nor in the Counter Affidavit, the date of taking possession over the surplus land, has been given. Under the scheme of the Act, there are two stages i.e. (i) determination/declaration of the surplus land under Sections 11, 12 and 13 of the Act and (ii) acquisition of the surplus land under Section 14 of the Act. Section 14 (1) (b) and (c) which are relevant for the purposes of this case, provide that possession can be taken after expiry of the period of limitation for appeal, after order of the Prescribed Authority and in case appeal has been filed then after its disposal. The petitioners have stated in the writ petition that the appeal was filed within limitation, which was dismissed on 03.10.1996. Thereafter stay order has been granted on 05.11.1996 by this Court and possession over the surplus land has never been taken, according to the provisions Section 14 of the Act. The surplus land vests in State of U.P. under Section 14 (3) of the Act, on taking possession over it. Section 14 (4) of the Act, further castes a duty to publish the surplus land in Official Gazette. Nothing has been produced before the Court that possession over the surplus land has been taken by the Collector, according to the provisions of Section 14 of the Act and the surplus land has been published in Official Gazette Section 14 (4) of the Act. These are the checks provided under the Act, in order to avoid arbitrary action and harassment of the tenure holder.

11. This Court in Bharat alias Bharat Singh Vs. State of U.P., 1977 AWC 407, Bhagwan Swaroop Vs. State of U.P., 1979 AWC 70, Tek Chandra Vs. State of U.P., 1979 ALJ 274, Raj Kumar Vs. State of U.P., 1985 RD 14, Charan Singh Vs. State of U.P., 1988 RD 134 (DB) and Shashi Kant Rai Vs. State of U.P., 2002 (93) RD 736 has consistently held that the tenure holder has every right to revise his choice till the land is vested in State of U.P. under Section 14 (3) of the Act. In the order dated 24.08.2011, passed in this case also, it has been held that the tenure holder has unfettered statutory right to give his choice. It is most unfortunate that the Prescribed Authority is not following the direction of this Court and again and again committing same mistake, resulting in wastage of the time the Court and money of the State of U.P. The Prescribed Authority is required to follow the provisions of law and not to act as an agent of the allottees.

12. The provisions relating to the disposal and settlement of the surplus land are given under Chapter IV of the Act. This stage comes only after vesting of the surplus land in State of U.P. under Section 14 (3) of the Act. Section 27 (3) authorises the Collector to allot the surplus land in order of preference and subject to the limits as given under Section 198 (1) and (3) of U.P. Act No. 1 of 1951 to the landless persons. Although it has been stated that the land has been allotted to the landless persons but before the allotment, taking possession over the surplus land and its vesting in State of U.P. under Section 14 (3) of the Act was necessary. So long as the land is not vested in State of U.P., the Collector has no right to allot it and such allotment is without jurisdiction and cannot create any title to the allottees. If the collector has not taken possession over the surplus land, then land was not available to him for allotment. However it is open to the Prescribed Authority to decide the question again after examining the records as to whether the allotment was made after taking possession over the surplus land and it creates any right to the allottees.

13. So far as, the arguments of the Standing Counsel that Section 12-A of the Act gives a discretion to the Prescribed Authority to examine the suitability of the land given in choice by the tenure holder is concerned, the frage "as fas as possible" occurring under Section 12-A of the Act has been interpreted by Supreme Court in Rajendra Singh v. State of U.P., (1998) 7 SCC 654, in which it has been held that these words are not prohibitory in nature. They rather connote a discretion vested in the Prescribed Authority which can exercise that discretion at the time of carving the surplus area from out of the total holding of a person. The details of guidelines for deciding the suitability have been given under Section 12-A of the Act. The Prescribed Authority is required to examine as to whether the choice of the surplus land as given by the tenure holder is suitable for taking possession under Section 12-A of the Act. The observation of the Prescribed Authority that the land is not free from encumbrances is vague and uncalled for as the suitability of the land given in choice by the land holder has not been examined. In such circumstances, the order of the Prescribed Authority is not based on relevant considerations.

14. In the result the writ petition succeeds and is allowed. The order of Prescribed Authority dated 20.06.2001 is set aside. The matter is remanded to the Prescribed Authority, who shall decide the application of the petitioners, giving choice of the surplus land afresh, in accordance with the law. Since the matter is lingering for a long time, the application be decided expeditiously, preferably within a period of two months from the production of a certified copy of this order before him.

Order Date :- 11.9.2013

Rahul Dwivedi