Bhola Nath And Others vs Addl. Commissioner Faizabad And ...
2022 Latest Caselaw 4032 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R 
 
Court No. - 17
 

 
Case :- WRIT - C No. - 3000036 of 1998
 

 
Petitioner :- Bhola Nath And Others
 
Respondent :- Addl. Commissioner Faizabad And Others
 
Counsel for Petitioner :- U.C.Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Shree Prakash Singh,J.

1. Heard Sri Umesh Chandra Pandey, learned counsel for the petitioners, Sri Gopal Krishna Pathak, learned Additional Chief Standing Counsel for the State and perused the records.

2. Instant writ petition has been filed assailing the order dated 6th February, 1998 passed by the Additional Commissioner, Faizabad Division, Faizabad.

3. Matter pertains to year 1998.

4. From perusal of the order sheet, it is evident that no counter affidavit has been filed by the State yet, since the matter pertains to year 1998, under such circumstances, no further time can be granted to the counsel for the State to file counter affidavit. Prima facie, it seems to be legal question involved in the matter, as such the Court is proceeding to hear this matter.

5. Learned counsel for the petitioners submits that ceiling proceeding was initiated in the year 1989 wherein the land of Raja Pratap Bahadur Singh was declared surplus including the present petitioners also. He submits that while initiating and concluding the aforesaid ceiling proceeding, no notice was issued and no opportunity of hearing was ever given to the petitioners. He further submits that on 26th December, 1990, lease under Section 26 of the Imposition of Ceiling on Land Holdings Act, 1960 (for short the 'Act, 1960') was granted in favour of the respondent no.2 by Sub-Divisional Officer, Barabanki and that lease was settled in favour of the respondent no.2.

6. He added that since ceiling proceeding was going on and during that ceiling proceeding CLH Form 23 was made available to the petitioners on 4th October, 1994 then the fact with regard to aforesaid ceiling proceeding came into knowledge of the petitioners. He further added that after the aforesaid information came to the petitioners, they filed an application under Section 27(4) of the Act, 1960 for cancellation of Patta/lease granted in favour of respondent no.2. He submits that, at the very inception stage, the status quo was granted by respondent no.1 and after calling objections from the respondents, the matter was finally heard and decided by the Additional Commissioner vide order dated 2nd February, 1998, which is under challenge in this writ petition.

7. He also argued that the petitioners are co-tenure holders of Raja Pratap Bahadur Singh, whose land considered and declared surplus land by the prescribed authority.

8. He further submits that, in fact, it is a case where the ceiling proceeding was concluded in absence of petitioners but it was done without issuance of any notice. He submits that absence cannot be termed if no notices ever issued to the petitioners. He further added that in such a case remedy available to the petitioners was under Section 27(4) of the Act, 1960 and as such he has rightly preferred an application under the aforesaid provision.

9. He has argued that the learned Additional Commissioner without considering the aforesaid provision has given its finding that the application under Section 27(4) of the Act, 1960 is not maintainable. He added that finding of the Additional Commissioner is perverse as he has recorded the finding that no evidence was adduced by the present petitioners before the Additional Commissioner. In fact, the petitioners had adduced the evidences which have been discussed in the order dated on 21st February, 1998.

10. On the other hand, learned counsel appearing for the State has vehemently opposed the contention aforesaid and submits that from bare reading of Section 27(4) of the Act, 1960 it is evident that the same is with regard to the settlement of surplus land. The head notes of the Section 27 itself connotes that the proceeding under Section 27 starts after the proceedings of declaration of ceiling land are concluded and such surplus land vests in the State.

11. He has added his argument and drawn attention towards sub-clause (i) of Clause 4 of Section 27 of the Act, 1960 and submits that since after the proceeding under Section 27(4), records available to the Commissioner to revert such land in favour of the State Government. He has also drawn attention on Sub-Section 3 of Section 27, wherein he has referred that the word which denotes that "any remaining surplus land settlement by the Collector in accordance with the order of preference and subject to the limits" clearly indicate that the same is with regard to the settlement of surplus land. He submits that word 'any aggrieved person' is qualified by sub-clause (1) and (3) of Section 27 of the Act, 1960.

12. He further added his argument that the recourse which is open to the petitioners is to approach the prescribed authority under Section 11(2) of the Act, 1960. In such view of the matter, no interference is warranted in the order passed by the Commissioner.

13. Learned Additional Chief Standing Counsel has put strength to his argument while placing the judgment reported in 2004(96) RD 555 (Ram Bahadur @ Laxmi Prasad vs Collector, Hamirpur and others). He has referred paragraph 21, which is quoted as follows;

"21. The petitioner, against the order of Prescribed Authority dated 23rd April, 1988 whereby plot No. 362 was earmarked as surplus land to be allotted to the persons entitled to the same, filed an application dated 20th November, 1990 under section 27(4) of the Act before the Commissioner and obtained an ex parte interim order again on 28th November, 1990. The Commissioner has rejected the application on 30th November, 1995, against which the petitioner has filed the writ petition No. 8473 of 1996 (fifth petition) challenging the allotment of the surplus land made in favour of respondent Nos. 5 to 17 who were admittedly the persons entitled to allotment of the surplus land in accordance with the provisions of U.P. Imposition of Ceiling on Land Holdings Act. This writ petition is not legally maintainable in view of the earlier writ petition filed by the petitioner, referred to above, as also in view of the dismissal of his writ petition No. 29882 of 1995. The allotment of land is only consequential action. Any infirmity or illegality in the procedure of allotment, as alleged by the petitioner, cannot be a concern of the petitioner as he is neither an applicant for allotment of the land nor has any right or interest in the allotment of the surplus land."

14. Placing the aforesaid judgment, he submits that the court has very specifically held that the plot which was earmarked as surplus land to be allotted to the persons who are entitled under the provision of law. He submits that in Sub-clauses (1) and (3) of Section 27, the authority has been nominated to allot such land. He submits that the petitioners are neither applicants of allotment of the land nor have any right or interest in the allotment of the surplus land.

15. He has further placed reliance on a judgment and order dated 19th August, 1993 passed in C.M.W.P. No. 40601 of 1993 (Girdhari Lal vs Additional Commissioner Judicial (Ist) Bareilly Division and others) and has placed reliance on paragraph 6, which is quoted hereinunder;

"6. The expression 'aggrieved' is not statutorily defined or judicially interpreted and in that event the help of Dictionary meaning can be obtained. See State of Orissa v. The Titaghur Paper Mills Co. Ltd. In the Reader's Digest Grant Encyclopaedic Dictionary, the word 'aggrieved' connotes distressed, oppressed, injured, having a grievance. According to the Shorter Oxford English Dictionary, the word 'aggrieved' means hurt in spirit, injuriously affected, having a grievance. According to the New Lexicon Webster's Dictionary of the English Language, the word 'aggrieved' means having a grievance. According to Webster's Third New International Dictionary, the word 'aggrieved' means troubled, distressed in spirit, showing grief, injury, having a grievance."

16. Placing the aforesaid judgment, he submits that the Court has held that the expression 'aggrieved' has not been statutorily defined but 'aggrieved' means having any grievance. He submits that the petitioner is not a person aggrieved so far as the intent of Section 27(4) of the Act, 1960 is concerned.

17. Having heard the learned counsel for the parties and perusal of records.

18. Before coming to purport of Section 27, it is necessary to look into the intent of legislature for envisaging the provision of Section 27 in the Act, 1960. 'Heading' of Section 27 of the Act, 1960 reads as under;

"Settlement of surplus land"

19. The interpretation of 'Headings' as per 13th Edition of the book of Justice G.P. Singh namely 'Principles of Statutory Interpretation', there is one of the view that the 'Headings' might be treated "as preambles to the provisions following them". Further, if the words mention in the section are plain, 'Headings' are meaningless.

20. If we go through the words and meaning of the 'Headings' that is very clear that the same connotes the settlement of surplus land under the Act, 1960. The question is that what could be 'settled'. Answer would be 'surplus land'. In such view, the provision of Section 27 of the Act, 1960 has been envisaged for such land which after a due procedure has been declared as surplus land and thereafter that has to be settled in favour of such persons, by such authorities, which are mentioned in Section 27 of the Act, 1960.

21. Now coming to Sub-clause 1 of Section 27 of the Act, 1960, the Section starts with the word that 'the State Government shall settle out of the surplus land' whereas no land is available for the community purpose and if it so settled with the Gaon Sabha that is used for planting trees, growing fodder or for such other community purpose.

22. In Sub-Section 3 of Section 27 of the Act, 1960, it has been provided that any remaining surplus land shall be settled by the Collector in accordance with order of preference and subject to the limits, specified respectively in Sub-section (1) and (3) of Section 198 of U.P. Zamindar Abolition of Land Reforms Act, 1950 and then Sub-section 4 of Section 27 comes in picture wherein the Commissioner is empowered to either on his own motion or on the application of the aggrieved person, inquired into such settlement and if he found that the same is irregular, he may issue show cause. The word 'such settlement' envisaged in Section 4, derives its intention from two settlement. One which is been done by the State Government under Sub-Section (1) and in Sub-section (3) by the Collector. Mode has been prescribed under Section 27(4) that the Commissioner on his own motion or any application by any aggrieved person has been mentioned. So far as own motion is concerned, that does not attract in the instant matter but second word which an application of 'any aggrieved person' is been qualified by the word 'such settlement'.

23. It is admitted fact that the petitioner is not a person who comes under clause 1 or clause 3 of Section 27 of the Act, 1960 for settlement of surplus land, and therefore, the present petitioners would not be covered under the purview of the words 'any aggrieved person'.

24. It is case of the petitioners that they were the co-tenure holders of Raja Pratap Bahadur Singh and without issuance of notice under Section 10(2) of the Act, 1960, their land was declared as surplus land, and as such, the petitioners if aggrieved, in any way, are not by any order of settlement passed under Sub-Section (1) and (3) of Section 27 of the Act, 1960 but they may be person aggrieved by the order passed by the prescribed authority whereby the land of the petitioners has been declared as surplus land. The order passed by the prescribed authority can said to be an order passed in absence of the petitioners.

25. The appellate authority while passing the order in appeal which is under challenge in the writ petition has very clearly given its finding that the application under Section 27(4) does not attract in the matter of the petitioners and as such the order passed by the appellate authority does not assail any illegality or infirmity.

26. In view of the aforesaid submissions and discussions, the writ petition is devoid of merit.

27. Accordingly, the writ petition is hereby dismissed.

28. However, it is open to the petitioners to adopt the legal recourse which is available to them in accordance with law.

29. No order as to cost.

Order Date :- 25.5.2022

A.Kr*