Durga Prasad Pandey vs State Of U.P. And Others
2022 Latest Caselaw 8629 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- WRIT - C No. - 3000087 of 1995
 

 
Petitioner :- Durga Prasad Pandey
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- R.P.Singh,A.N.Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Kumar,J.

1. Supplementary affidavit filed today is taken on record.

2. Present writ petition has been preferred for quashing of the order dated 28.03.1994 passed by the Prescribed Authority and the order dated 01.05.1995 passed by the Appellate Authority.

3. The brief facts as per the petitioner of this case are that the notice under Section 10(2) was issued against the petitioner on 30.08.1991 in which the land belonging to his grand-mother Chhabi Raji has also been shown as surplus land holding of the petitioner though her grand-mother is still alive.

4. The learned counsel for the petitioner has submitted that the notice issued to the petitioner dated 30.08.1991 under Section 10(2) of the Uttar Pradesh Imposition of Ceiling on Land Holding Act, 1960 (hereinafter referred as Act, 1960) was illegal as for the same land the notice was issued to the father of the petitioner on 12.07.1972 under Section 10(2) of the Act, 1960. In the said notice also the land of Chhabi Raji the grand-mother of the petitioner was shown in the holding of the father of the petitioner against which the objections were filed by the father of the petitioner which was accepted and the land of Chhabi Raji was excluded from the holding shown in the name of the father of the petitioner and the notice under Section 10(2) was discharged.

5. It is further submitted that after more than 14 years the notice under Section 10(2) was issued against the petitioner and shown the land belonging to Chhabi Raji in the holding of the petitioner. The objection of the petitioner was rejected by the Prescribed Authority vide its order dated 28.03.1994 and declared 6.29 hectare of land as surplus.

6. Against the order dated 28.03.1994 the petitioner preferred an appeal which was also dismissed vide order/judgment dated 01.05.1995 and feeling aggrieved by these orders, the petitioner has approached this Court by filing the present writ petition.

7. In the present writ petition, the detailed interim order dated 12.01.1995 has been passed by this Court, wherein this Court has given liberty to the petitioner to move an application for correction before the appellate authority indicating therein the land of Chhabi Raji i.e. grand-mother of the petitioner the land in the holding of Chhabi Raji, the grand-mother of the petitioner has wrongly been shown as the holding of the petitioner in the notice. The interim order of this Court dated 12.10.1995 is quoted hereinbelow:-

"List after six weeks. In the meantime, it is provided that the petitioner may make an application before the appellate court for correction of the impugned order inasmuch as according to him in the notice served on the petitioner under section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act the land of his grand-mother Chhabi Raji was also included whereas the courts below have proceeded on the assumption that the said land was not included.

If the application is moved within a period of one week from today the appellate court shall look into it and pass appropriate orders also for protecting the interest of the petitioner if it is prima facie satisfied that the land belonging to Chhabi Raji has also been included in his holding. It is further provided that until the order is passed by the appellate court on petitioner's application his possession over the land in dispute will not be interfered with.

The requisite orders in this respect will be passed by the appellate court within a period of three weeks from the date an application is made by the petitioner. In case application is not made by the petitioner within one week from today, the order shall stand discharged and it will be open to the Prescribed Authority to deal with the land declared surplus by the impugned order.

List this writ petition for further orders after six weeks.

Let a copy of this order be issued to the learned counsel for the petitioner, within three days, on payment of usual charges."

8. In compliance of the interim order dated 12.10.1995, the petitioner moved an application before the Appellate Authority who has decided the same vide its judgment and order dated 05.02.1997. The copy of which has been filed along with the application for further interim relief by which the Appellate Authority had excluded the holding of land of Chhabi Raji from the holding of the petitioner.

9. The grievance of the petitioner has been redressed by the order dated 05.02.1997 passed by the Appellate Authority in compliance of the interim order passed by this Court dated 12.10.1995 as mentioned above. The petitioner has further submitted that despite the order passed by the Appellate Authority, the Prescribed Authority passed an order dated 31.01.1997 and declared 1.439 hectare as surplus holding of the petitioner whereas according to the petitioner this determination is incorrect and as per the petitioner no land holding of the petitioner could be declared surplus as the petitioner had not acquired any extra land (except the land of his father which he has inherited after his demise) which could be declared as surplus.

10. It is further submitted that the notice given to the petitioner dated 30.07.1991 under Section 10(2) Act, 1960 mentions the same land number /gata numbers and same area as it had shown in the notice issued against the father of the petitioner in the year 1972. It is further submitted that the total holding of land shown in the notice dated 30.07.1991 was 7.300 hectare and out of which 3.357 hectare was declared surplus. It is further submitted that after the order of the appellate authority dated 05.02.1997 by which 1.918 hectare of land which is holding of Chhabi Raji has been excluded from the holdings of the petitioner and if the same is subtracted from the total area of 7.300 hectare it comes to 5.397 hectare which is less than 7.300 hectare which is permissible. Though the petitioner has not challenged the order passed by the Prescribed Authority dated 31.12.1997 by which the Prescribed Authority had declared 1.439 hectare land as surplus from the holding of the petitioner which in any stretch of imagination is not possible by simple calculation as per the record or which shown in the notice issued against the petitioner.

11. After the appeal was allowed by the Appellate Authority on 05.02.1997 on remand by this Court by means of an interim order dated 12.10.1995, the order dated 28.03.1994 passed by Prescribed Authority no more remained effective or operative.

12. The Prescribed Authority passed the order dated 31.12.1997 declaring some of land of petitioner as surplus after the Appellate Order dated 05.02.1997, thus order dated 31.12.1997 was passed in vacum without any basis. It is is per se illegal. Prescribed Authority could calculate the surplus land only on the basis of the Appellate Order dated 05.02.1997 and not in any other manner.

13. The present writ petition was kept pending, the matter was remanded to the Appellate Authority by means of an interim order only. All these development took place during pendency of this writ petition hence this Court takes note of the order passed by the Prescribed Authority dated 31.12.1997 without any basis and it is non-est in effect.

14. In the result the writ petition is allowed and the order passed by Prescribed Authority dated 28.03.1994 and the Appellate Order dated 01.05.1995 are set side. The order dated 05.02.1997 passed by Appellate Authority on remand by this Court vide interim order dated 15.10.1995 is affirmed and upheld. The order of the Prescribed Authority dated 31.12.1997 has no legal basis or sanctity. The Prescribed Authority is directed to re-examine and re-determine the question of calculating surplus land in the light of the Appellate Order dated 05.02.1997 and pass a fresh order accordingly.

Order Date :- 1.8.2022

KR