Kamla Prasad vs Deputy Director Of ...
2021 Latest Caselaw 8584 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- CONSOLIDATION No. - 13979 of 2021
 

 
Petitioner :- Kamla Prasad
 
Respondent :- Deputy Director Of Consolidation, Kheri & Others
 
Counsel for Petitioner :- Sushil Kumar Rastogi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J.

Supplementary affidavit filed today is taken on record.

Heard learned counsel for petitioner and learned State Counsel appearing on behalf of opposite party No.1. In view of order being passed, notices to opposite parties 2 to 5 stand dispensed with.

Petition has been filed against orders dated 6th October, 2004 and 12th February, 2021 passed by the Deputy Director of Consolidation. By means of order dated 6th October, 2004, consequential corrections have been made in the revenue records entering the name of Mr. Amar Singh, predecessor in interest of opposite parties 2 to 4 in pursuance to the judgment of this Court while by means of the judgment and order dated 12th February, 2021, the Deputy Director of Consolidation has rejected the restoration application filed by the petitioner.

Learned counsel for petitioner has submitted that the disputed property was notified in terms of the U.P. Imposition of Ceiling on Land Holdings Act 1960 whereunder the property vested with the State Government. Subsequent thereto, the State executed a lease deed in favour of petitioner of the plot No.10/1 having an area of 1.60 acres situate in village Patihan, pargana & Tehsil Pallia, District Lakhimpur Kheri. It is submitted that in pursuance of the lease deed, the petitioner entered into possession over the property in question. It is submitted that subsequently one Amar Singh filed objections claiming title over the property in question in consolidation proceedings. The said objections were rejected by the consolidation authorities whereafter the said Amar Singh filed writ petition No. 5659 (Ceiling) of 1988. The said writ petition was allowed by means of the judgment and order dated 4th September, 2003 whereby the rights of the said Amar Singh were declared to be perfected as a bhumidhar over the disputed property by way of adverse possession. The writ petition was allowed and the order dated 7th January, 1988 passed by the prescribed authority (ceiling)/Additional Collector Lakhimpur Kheri and the order dated 30th June, 1988 passed by the Additional Commissioner, Lucknow Division were quashed. It was further directed that the possession of the said Amar Singh as bhumihdar over the property in question would not be disturbed. The said order appears to have been challenged by the State before Hon'ble the Supreme Court in special leave petition which was also dismissed on 10th January, 2008.

Learned counsel for petitioner however submits that in view of the fact that the petitioner entered into possession over the property in question in pursuance to the lease deed executed in 1976, the petitioner had also acquired rights over the property in question and as such the Deputy Director of Consolidation was required to give an opportunity of hearing to the petitioner prior to passing of the impugned order. It is further submitted that the impugned order dated 6th October, 2004 has been passed without any reference being made in terms of section 48(3) of the Consolidation of Holdings Act, which was impermissible and therefore the proceedings were without jurisdiction. It is submitted that while rejecting the restoration application of the petitioner, the aforesaid objection of the petitioner have not been adverted to at all.

Mr. Hemant Kumar Pandey learned State Counsel appearing on behalf of opposite party no.1 has refuted the submissions advanced by learned counsel for petitioner with the submission that the writ petition itself is not maintainable since the petitioner does not have any locus standi to file the same. It is submitted that the petitioner acquired rights over the property in question only as a leasee of the State Government and once the writ petition filed by the original tenure holder i.e. the said Amar Singh was allowed by means of judgment and order dated 4th September, 2003, which was upheld in appeal, there was no occasion for the consolidation authorities to have entertained the restoration application of the petitioner and as such the same was rightly rejected. It has also been submitted that once rights of the said Amar Singh have been declared by means of the judgment and order dated 4th September, 2003 by this court under writ jurisdiction and the same was upheld by Hon'ble the Supreme Court, the rights of said Amar Singh stood perfected with the inevitable result that the lease of petitioner automatically came to an end for which no further reference was required to be made to the Deputy Director of Consolidation under Section 48(3) of the Consolidation of Holdings Act. Learned State Counsel has also cited several judgments on that issue.

Upon consideration of submissions advanced by learned counsel for parties and material on record, it is undisputed that the petitioner was granted a lease by the State of U.P. in the year 1976 pertaining to the property in question. It is also admitted between the parties that the said Amar Singh had filed objections to the notice issued under the Ceiling Act which having been rejected, resulted in the filing of writ petition No. 5659 (Ceiling), 1988. The said writ petition has been allowed by means of judgment and order dated 4th September, 2003 whereby the orders of the prescribed authorities under the ceiling law have been quashed and the rights of the said Amar Singh have been held to be perfected as bhumidhar with further directions that his possession over the land in dispute shall not be disturbed. The said judgment and order dated 4th September, 2003 was thereafter challenged before Hon'ble the Supreme Court in special leave petition which was also dismissed vide order dated 10th January, 2008 as indicated in the impugned order.

It is thus evident that by means of the allowing of the writ petition, the rights of the State Government over the property in question ended with retrospective effect from the date of filing of objections of the said Amar Singh. As such it is clear that once the rights and title over the disputed property for the State of U.P. itself came to an end, the rights of petitioner claiming under the State of U.P. as a leasee also automatically came to an end. As such the learned State Counsel is quite correct in his submissions that the petitioner did not have any locus standi to file objections or restoration against the orders whereby the directions of this court were merely incorporated in the revenue records. Learned counsel for the State also appears to be correct in his submissions that orders passed by this Court are required to be implemented under Rule 109(1) of the Rules framed under the Consolidation Act without any reference being made under Section 48(3) of the Act.

The said proposition of law has already been dealt upon and expounded in the judgment rendered by this Court in the case of Ram Bhajan versus Chief Revenue Officer/ Prescribed Authority, Mirzapur and others reported in 2001 (44) ALR 541 in which the following has been held:

" 13. It is well settled that the matter of declaration of the land as surplus is between the State and the tenure holder and nobody comes in between and thus once the State has chosen not to take up the matter to the higher forum, challenging the judgment of the Prescribed Authority by which notice for declaration of the land as surplus itself was withdrawn, no argument can be advanced by the petitioner raising any finger on this aspect that the tenure holder might have surplus land if the matter is examined in further details in the light of the facts as are being pleaded by him.

14. It is also settled that the allottee cannot acquire any better right than the right as exists with the State and thus the State itself having no right to the land as the same did not remain as surplus the claim of the allottee will fall short as the giver himself is not possessed to part anything to the petitioner.

15. The decisions as has been cited by the learned counsel for the petitioner although lays down that the allottee has to be given opportunity of hearing before cancellation of the allotment, but in my opinion those decisions have no application to the facts of the present case. Those decisions can only apply when there is proceedings for cancellation of the allotment and some impropriety and illegality in the allotment proceedings are alleged, which can be subject matter of enquiry and scrutiny in that cancellation proceedings for which certainly the allottee will have to be given opportunity of hearing so that he can demonstrate the completion of all the formalities and validity of the allotment. But so far the present case is concerned neither the tenure holder has taken any ground nor have challenged the validity of the allotment on any ground which may be available for cancellation of the allotment. Here by virtue of the fact that by the judgment of the Prescribed Authority no land remained as surplus and thus as a consequence thereof the Prescribed Authority has directed to restore the correct position of the revenue records and therefore, the decision as has been cited by the learned counsel for the petitioner will not fit in in the facts of the present case."

The aforesaid judgment has been followed by this Court with approval in the case of Ram Asrey and others versus Additional Commissioner (Administration) Jhansi Division and others reported in 2008(8) ADJ 691 and in the case of Nanak versus State of U.P. and others (Writ-C No. 67251 of 2006) in which the following has been held:-

" Again in Param Hans the Court observed as under:-

"8. Having considered the aforesaid submissions and the decisions that have been placed on behalf of the petitioner the approach of the learned Commissioner is absolutely erroneous inasmuch as once the land is not surplus it cannot be presumed to have been vested in the State for the purpose of allotment. The allotment, therefore, automatically vanishes and the Commissioner has failed to exercise the powers vested in him in accordance with law."

In the decision rendered by this Court in Moti Lal, it was held: -

"6. There is another reason due to which petitioners are entitled for relief prayed for. The order of Prescribed Authority stands reversed, therefore, it means there is no surplus land, which could be taken over by Collector. The land being settled with allottees by Collector, the allottees did not get any better title than which Collector is possessed of after decision in appeal. They stepped into the shoes of Collector during pendency of appeal. As no land of Jagdish Narain stands determined as surplus, it is obligatory for Prescribed Authority as well as for Collector to restore the land to Jagdish Narain bringing back same position, which was before its determination of surplus. The reason for ordering restitution is that the allottees, who entered into possession, did not remain with better rights than the Collector with the decision in appeal that the disputed land does not remain surplus and, therefore, even allottees cannot be allowed to resist restitution of possession or restoration of original entry in revenue papers which was in favour of petitioners. As the action of Collector in dispossessing Jagdish Narain and settling the land with opposite parties Nos. 3 to 7 and recording the names of allottees in revenue records is bad in law, the writ petition succeeds."

As is evident from the principles enunciated in those decisions, it has been found that the allottees have not right to come in between the proceedings of declaration of land as surplus since that issue is principally between the land holder and the State. Undisputedly once the declaration of the land being surplus stands set aside, the land would no longer be liable to be viewed as being available to be settled in accordance with the provisions made in the 1960 Act. The rights of the leaseholders to occupy would no longer survive once the settlement of the surplus land with the State is annulled."

Upon applicability of the aforesaid decisions in the present dispute, it is clear that once the rights and title of the State Government over the disputed property itself has come to an end by means of the judgment of this Court, the petitioner being merely a leasee of the State Government does not have any superior title to his predecessor in interest and would derive only the rights which are available to the principal tenure holder i.e. the State Government in the present question. As such once the rights of the State Government itself stood extinguished in the property in dispute, the rights of the petitioner being concomitant therewith, automatically came to an end due to which the restoration application filed by the petitioner was not maintainable.

In view of aforesaid, the writ petition being devoid of merits is dismissed at the admission stage itself.

Order Date :- 26.7.2021

prabhat