Allahabad High Court
Dewata Din And Another Revenue vs State Of U.P.And Others on 12 April, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 19
Case :- WRIT - C No. - 1001785 of 1992
Petitioner :- Dewata Din And Another Revenue
Respondent :- State Of U.P.And Others
Counsel for Petitioner :- Shafiq Mirza,Humayun Mirza,Syed Ahmad Jamal
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and the learned Standing Counsel.
The present petition has been filed challenging the order dated 12.03.1992 whereby the appeal was decided not accepting the contention of the petitioner.
The facts in brief giving rise to the present petition are as follows:
The case of the petitioner was that the petitioner and the respondents no.4 to 6 are the co-tenure holders of the land which was subject matter of a notice issued by the ceiling authority proposing to declare the land in excess of the ceiling limit. The petitioner and the respondents no. 4 to 6 claimed that there was a partition in between the petitioner and the respondents no. 4 to 6 in respect of a part of the total land holding which was subject matter of notice under section 10(2). The contention and the theory of the partition was not accepted and matter was decided against the petitioner. The petitioner preferred an appeal challenging the said order, which too was dismissed and thereafter the matter attained finality. Subsequently, in an appeal preferred by the respondents no.4 to 6, the petitioner filed an impleadment application. On the said impleadment application, the appellate authority recorded that the same shall be decided at the time of hearing and ultimately proceeded to decide the appeal without considering the impleadment application by means of an order dated 13.04.1981. The petitioner by means of a writ petition challenged the said order passed in appeal mainly on the ground that as the petitioner had filed an impleadment application, without disposing of the same, the appeal could not have been decided. He also claimed that the question of choice as mandated by section 12-A(d) of the U.P. Imposition of Ceiling on Land Holdings Act 1960 ('Act' for short) should also have been considered by the District Judge while deciding the appeal. This court vide judgment dated 22.03.1984 passed in Writ Petition No.4605 of 1981 remanded the matter for deciding the claim of the petitioner on both the grounds as was agitated by him. On remand, the appeal preferred by the tenure holders was allowed and the matter was remanded to the prescribed authority. As regards the claim of the petitioner, while deciding the appeal, the claim was rejected mainly on the ground that the question/theory of partition had already been rejected and the said issue has attained finality. Being aggrieved against the said finding, the present writ petition was preferred.
The counsel for the petitioner argues that the issue flowing from the mandate of section 12-A(d) of the Act should have been considered by the appellate authority, which has not been done, as such, the order deserves to be set aside to that extent. The arguments merits rejection inasmuch as the mandate of section 12-A(d) is to consider the question of choice only in respect of a land which is subject of a transfer or partition. Section 12-A(d) of the 'Act' is quoted hereinbelow :
Section 12A. In determining the surplus land under Section 11 or Section 12, the Prescribed Authority shall, as far as possible, accept the choice indicated by the tenure-holder to the plot or plots which he and other members of his family, if any, would like to retain as part of the ceiling area applicable to him or them under the provisions of this Act, whether indicated by him in his statement under Section 9 or in any subsequent proceedings :
Provided that -
(a) ...
(b) ....
(c) ...
(d) where any person holds land in excess of the ceiling area including land which is the subject of any transfer or partition referred to in sub-section (6) or sub-section (7) of Section 5, the surplus land determined shall, as far as possible, be land other than land which is the subject of such transfer or partition, and if the surplus land includes any land which is the subject of such transfer a partition, the transfer or partition shall, insofar as it relates to the land included in the surplus land, be deemed to be and always to have been void, and -
(i) it shall be open to the transferee to claim refund of the proportionate amount of consideration, if any, advance by him to the transferor, and such amount shall be charge on the [amount] payable to the transferor under Section 17 and also on any land retained by the transferor within the ceiling area, which shall be liable to be sold in satisfaction of the charge, notwithstanding anything contained in, Section 153 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950;
(ii) any party to the partition (other than the tenure-holder in respect of whom the surplus land has been determined) whose land is included in surplus land of the said tenure-holder shall be entitled to have the partition re-opened.]
There is nothing on record by the petitioner to demonstrate that the rights of the petitioner which he claims by virtue of a partition deed were ever accepted by any authority and the said issue having attained finality was being tried to be raised again by the petitioner. Once the rights of the petitioner had already been decided, the petitioner has no right to claim any benefit flowing out of the mandate of section 12-A(d) of the 'Act'.
The writ petition lacks merit and is dismissed.
Order Date :- 12.4.2022
VNP/-
