Sulabh Chaudhary vs State Of U.P.
2023 Latest Caselaw 16100 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 09.05.2023
 
Delivered on 22.05.2023
 
Court No. - 52
 

 
Case :- WRIT - C No. - 37439 of 1996
 

 
Petitioner :- Sulabh Chaudhary
 
Respondent :- State of U.P.
 
Counsel for Petitioner :- Tarun Verma,Ishir Sripat,R.Sripat
 
Counsel for Respondent :- C.S.C.,Rafiuddin Ansari
 
with
 
Case :- WRIT - C No. - 37437 of 1996
 

 
Petitioner :- Anil Kumar Chaudhary
 
Respondent :- State of U.P.
 
Counsel for Petitioner :- Tarun Verma,Ishir Sripat,Rahul Sripat
 
Counsel for Respondent :- C.S.C.,Afshan Shafaut,Ganesh Shanker Srivastava,Mohammad Mustafa
 
with
 
Case :- WRIT - C No. - 37874 of 1996
 

 
Petitioner :- Ambrish Kumar Chaudhary
 
Respondent :- State Of U.P.And Others
 
Counsel for Petitioner :- T. Verma,Rahul Sripat
 
Counsel for Respondent :- C.S.C.,Abdul Mateen,Sanjai Kumar Pandey
 
with
 
Case :- WRIT - C No. - 37875 of 1996
 

 
Petitioner :- Surendra Kumar
 
Respondent :- State Of U.P.And Others
 
Counsel for Petitioner :- Tarun Varma,Ishir Sripat,Rahul Sripat
 
Counsel for Respondent :- C.S.C.,Afshan Shafaut
 
with
 
Case :- WRIT - C No. - 37438 of 1996
 

 
Petitioner :- Yash Chaudhary And Others
 
Respondent :- State Of U.P.And Others
 
Counsel for Petitioner :- Tarun Verma,Ishir Sripat,Rahul Sripat
 
Counsel for Respondent :- C.S.C.,Afshan Shafaut,Amit Kumar Singh,Mohammad Mustafa
 

 
Hon'ble Kshitij Shailendra,J.

1. Heard Shri Rahul Sripat, learned Senior Counsel assisted by Shri Ishir Sripat, learned counsel for the petitioners in all the writ petitions, Shri S.N. Srivastava, learned Additional Chief Standing Counsel for the State-respondents and Shri Rafiuddin Ansari, learned counsel for the persons who have been impleaded as private respondents in one of the writ petitions.

2. All the aforesaid writ petitions involve common questions of fact and law and are, therefore, being decided by this common judgment.

3. For the purposes of reference, Writ-C No.37439 of 1996 is being treated as the leading case.

4. These petitions have been filed challenging the impugned judgment and order dated 19.11.1996 passed by the Commissioner, Gorakhpur Division, Gorakhpur whereby various appeals filed by the respective tenure holders as well as State of U.P. were decided.

5. The facts of the case as per the record of the writ petitions and the affidavits exchanged between the parties are to the effect that proceedings under the U.P. Imposition of Ceilings on Land Holdings Act, 1960 were held against Ram Harakh Chand and his four sons, namely, Surendra Kumar, Ambrish Kumar, Anil Kumar and Mahendra Kumar and pursuant to the notices issued to the said persons, the Prescribed Authority decided the matter by judgment dated 19.07.1967. After framing seven issues relating to classification of soil, family settlement entered into in between the aforesaid family members, the title of the holdings described in Schedule-I, the Prescribed Authority found the family settlement to be valid and proceeded to determine the ceiling area of all the five persons separately. The Prescribed Authority excluded 34.33 acres of fair quality land from the total holdings of Ram Harakh Chand and included the land under the bed of river as the same stood recorded in the name of tenure holder in village Semara Devi Prasad, Lalpur Tekar. The Prescribed Authority excluded 19.74 acres of ordinary fair quality land area of which comes to 15.06 acres from the holding of Sri Ram Harakh Chand and 7.38 acres of land fair quality of which comes to 4.85 acres from the holding of other persons being the land of grove, abadi, khalihan and compost pit. In totality, the Prescribed Authority declared 531.09 acres of ordinary land as surplus from the holding of all the five persons. The State never challenged the judgment and it became final.

6. Admittedly, U.P. Act No.1 of 1960 was amended by U.P. Act No.2 of 1975 with effect from 08.06.1973. Thereafter, the Prescribed Authority passed an order dated 05.12.1983 in the second round of ceiling proceedings and declared 152.82 acres of irrigated land as surplus.

7. The petitioners filed appeal before the Additional District Judge who decided the same by judgment dated 23.03.1985. Learned Additional District Judge held that there is non compliance of Rule 8; the partition in the family settlement since before the abolition of Zamindari had been found valid in the earlier proceedings decided in 1967 and that it shall operate as res judicata; sale deeds executed prior to 24.01.1971 cannot be questioned and lands under them cannot be included in the holding of petitioners and the Prescribed Authority committed error in interpreting Section 5(6) of the Act; there is non compliance of Rules 4 and 11 as no notices were issued to the vendees; there is no consideration about the land declared to be of other persons under Section 229-B of U.P. Z.A. & L.R. Act; and there is no compliance of Section 4A of the Act for finding out the areas of irrigated and non-irrigated lands.

8. Learned Additional District Judge after allowing the appeal, remanded the matter to the Prescribed Authority. There is no dispute about the fact that the judgment dated 23.03.1985 became final.

9. Pursuant to the order of remand passed by the appellate court, the Prescribed Authority (Chief Revenue Officer, Gorakhpur) passed fresh order on 17.03.1993 holding that family partition is valid; lands under the sale deeds executed prior to 24.01.1971 to be excluded from the holdings of the tenure holder; the land in the cases of Section 229-B not to be excluded where the judgment of the suit was delivered after 08.06.1973 even though the suits were instituted prior to 24.01.1971; the lands where the suits were filed prior to 24.01.1971 and judgments were delivered prior to cut off date were excluded; in village Siktaur 54.22 acres of ordinary land was excluded from the holding of petitioners as the same were under the sale deeds; in village Barhara Rani 5.90 acres of ordinary land excluded from the holding of petitioners having been declared of other tenure holders prior to 24.01.1971; in village Ramgarh Taal 8.56 acres of ordinary land was excluded; and in village Rustampur 2.75 acres of ordinary land was excluded as they were urban lands and had been wrongly contained in the rural ceiling and were under the proceedings of the Urban Ceiling. Similarly, some more lands of other villages which had the declaration under Section 229-B and wherein sale deeds prior to 24.01.1971 had been executed were excluded from the holding of petitioners; and the Prescribed Authority held that 91.61 acres of land of petitioners and other petitioners of connected writ petitions and 31.56 acres of other petitioners of connected writ petitions were excluded from their holdings and the surplus determination was done on the basis of the remaining land.

10. Against the aforesaid order dated 17.03.1993, five appeals were preferred by the petitioners within the period of limitation whereas five appeals were preferred by the State Government beyond the prescribed period of limitation. It is these appeals that have been decided by the orders impugned. Needless to say that appeals filed by the petitioners have been dismissed as not maintainable whereas the appeals filed by the State have been allowed.

11. Sri Rahul Sripat, learned Senior Counsel, has argued that the appeals were preferred against the order dated 17.03.1993, however since there were certain clerical mistakes in the said order, the same were corrected, later on, on 03.05.1993, pursuant to an order passed on an application under Section 151/152 CPC. Sri Sripat submits that with regard to the appeals filed by the petitioners, the appellate court has observed that since the appeals have been preferred against the order dated 17.03.1993 and not against the order dated 03.05.1993, the appeals have rendered infructuous. Sri Sripat further submits that once the said view was taken by the appellate court with regard to the appeals filed by the petitioners, there was no justification for the same court to allow the appeals filed by the State against the same order dated 17.03.1993. He submits that while opposing the appeals filed by the State, the same objection was taken by the petitioners regarding maintainability of the appeals inasmuch as the appellate court, during the course of hearing, had communicated its view regarding non-maintainability of the appeals filed by the petitioners against the order dated 17.03.1993 in the light of modified order dated 03.05.1993. Learned Senior Counsel submits that despite the aforesaid objection, the appeals filed by the State have been allowed.

12. Apart from the aforesaid, learned Senior Counsel has vehemently assailed the orders impugned on merits by contending that it is the specific case of the predecessor-in-interest of the petitioner in the court below that the sons of the predecessors-in-interest of the petitioner, namely, Mahender Kumar Chaudhary, Anil Kumar Chaudhary, Surendra Kumar Chaudhary and Ambrish Kumar Chaudhary were born prior to the imposition of U.P. Zamindari Abolition and Land Reforms Act and are equivalent co-sharers in the ancestral property of the predecessor-in-interest of the petitioner and further family settlement has taken place between the members which has been acted upon and accepted by the court and would operate as resjudicata, estoppel and acquiescence in the subsequent proceedings initiated after the amendment in the Act in 1974.

13. It is further argued that it is specific case of the predecessor-in-interest of the petitioners that most of the plots have been transferred by registered sale deeds prior to 24.01.1971 and the transfer has been acted upon and the name of the vendees have been duly entered in the revenue records and Amal Daramad has also been done but no compliance of Rule 8 has been made by the authorities and, as such, the appellate court has committed gross illegality in reversing the judgment of the Prescribed Authority dated 17.03.1993. It is further argued that there is no justification under law to treat the transactions as Benami and include the same in ceiling limits of the petitioners. The contrary view taken by the appellate court is against the settled principle of law and is liable to be set aside. It is further argued that the sale deeds executed prior to 24.01.1971 have been done in good faith for adequate consideration and under irrevocable instrument not being Benami Transaction nor it has been done for immediate or deferred benefit of the tenure holder or other members of his family. It is further argued that the court below has committed manifest error in law in taking into account the land which has been settled in favour of other persons in proceedings under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act in which the State as well as the Gaon Sabha were parties.

14. It is further argued that the schedule attached along with the notice under Section 10(2) of the Land mentioning irrigated and unirrigated has not been made in compliance to the provisions of Section 4-A of the Act and the authorities have failed to examine the relevant Khasra of 1378 F and 1380 F and the latest village map and the appellate court has not recorded any finding with regard to sub-clause (b) of Section 4-A of the Act. Further argument is that it was incumbent upon the appellate court, while reversing the judgment of the Prescribed Authority to record a finding with regard to compliance of Section 4-A and, further whether two crops were grown in such land in any one of the fasli years. It has further been argued that plot situated in Mauja Ramgarh, Rustampur have come within the urban area and urban agglomeration and cannot be included in the present proceedings but the appellate court has completely shut its eyes to the aforesaid fact and illegally reversed the judgment. It is further argued that there is no compliance of Rule 10(2) and 10(3) of the Act. It is further argued that the property shown in list (Gha) alongwith the objection of the tenure holders consists of building of various persons and application was moved for local inspection in the court below which was not done. This further shows that the authorities have not complied with the provisions of Section 4-A of the Act.

15. In support of his submission, learned Senior Counsel has placed reliance upon the following authorities:-

(i) Prakash Singh Vs. The Prescribed Authority, Bilaspur and another: 1985 AWC 796;

(ii) Ramadhar Singh Vs. Prescribed Authority and others: 1994 Supp (3) SCC 702;

(iii) Chandan Singh Vs. Ist Additional Judge, Shahjahanpur and others: 2012 (4) AWC 4349;

(iv) Prabhat Kumar Singh Vs. State of U.P. and others: 2012 (6) AWC 5909; and

(v) Krishna Pratap Singh Vs. Prescribed Authority: 2012 (4) AWC 4346.

16. Per contra, learned Standing Counsel has argued that once the petitioners chose not to file appeals against the modified order dated 03.05.1993, no illegality has been committed by the appellate court in dismissing the appeals. However, learned Standing Counsel could not justify the discrimination made by the appellate court in this regard inasmuch as, admittedly, the appeals filed by the State against the same order dated 17.03.1993 were allowed by the orders impugned.

17. Regarding merits of the case, learned Standing Counsel argues that whatever record was available with the appellate court, the same has been considered while holding that the petitioners would not get any advantage out of the sale made with reference to the relevant date i.e. 24.01.1971. He also submits that since the names of the purchasers were not mutated in the revenue records pursuant to the sale deed, the appellate court has taken a right view inasmuch as under Section 5(6) of the Act, 1960, entries made in the annual register have material bearing on the case. He also submits that even the decree drawn under Section 229-B of U.P. Z.A. & L.R. Act would not confer any right upon the decree holders as the decrees were drawn after 24.01.1971. Learned Standing Counsel has placed reliance upon the decision of the Apex Court in the case of Arvind Kumar Vs. State of U.P. and others: (2016) 9 SCC 221.

18. I have heard learned counsel for the parties and perused the record.

19. I find that once the appellate court allowed the appeals filed by the State against the order dated 17.03.1993, it was not justified in dismissing the appeals filed by the petitioners against the same order as infructuous merely on the ground that the said order was subsequently corrected on 03.05.1993. Here the approach of the appellate court is clearly discriminatory and cannot be approved. In so far as the merits of the case are concerned, admittedly, no notices were issued to the purchasers and therefore it is a case for violation of Section 4-A of the Act. Further, the findings which are based upon mere revenue entries are contrary to Explanation-II attached to sub-section (6) of Section 5 of the Act 1960, which reads as follows:-

"5 (6) In determining the ceiling area applicable to a tenure-holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account;

Provided that nothing in this sub-section shall apply to -

(a) a transfer in favour of any person (including Government) referred to in sub-section (2);

(b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family.

[Explanation I. - For the purposes of this sub-section, the expression transfer of land made after the twenty-fourth day of January, 1971, includes -]

[(a) a declaration of a person as a co-tenure-holder made after the twenty-fourth day of January, 1971 in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty-fourth day of January, 1971];

(b) any admission, acknowledgment, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner.

Explanation II. - The burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit."

20. A perusal of the aforesaid provision shows that apart from entries in the annual register, various things have to be examined by the court while deciding the matter, that is to say that it has to be ascertained with due satisfaction that the transaction of sale was in good faith and for adequate consideration and under an irrevocable instrument not being benami transaction or for immediate or deferred benefit of tenure holder or other members of his family. Further requirements are contained under Explanation-I to sub-section (6) of Section 5 of the Act.

21. In so far as the findings to the effect that sale deeds were Benami, I do not find any detailed discussion of any evidence led by the parties in this regard. The finding to this effect is therefore perverse and cryptic. Moreover in absence of the notices to the purchasers, no such finding could be recorded.

22. In so far as the applicability of urban ceiling law is concerned, I find that the appellate court has grossly erred in making observations regarding proceedings under the U.P. Urban Land Ceiling and Regulation Act, 1976 as it was not sitting in appeal over the decision in the said proceedings.

23. In so far as the authorities cited by the learned Senior Counsel, it is not necessary to deal with the same inasmuch as the appeals filed by the petitioners have to be decided again on merits as the same were dismissed as not maintainable and infructuous. Therefore, it is left open for the petitioners to address the appellate court regarding the ratio laid down in the aforesaid authorities.

24. In so far as the judgment cited by the State i.e. Arvind Kumar (supra) is concerned, reliance has been placed on paragraph 12 of the judgment, which reads as follows:-

"12. The argument of learned counsel for the State, therefore, leads us to analyze the four Acts in question a little closely. One thing becomes clear at the outset: that the original statutory scheme of 1960 which spoke of surplus "fair quality land" was substituted in its entirety by a completely new and different scheme by the Amendment Act of 1972 read with the Amendment Act of 1974. Both of these Acts, as has been noticed above, with certain minor exceptions, came into force on the same date, namely, 8.6.1973. The new statutory scheme would necessarily involve "fair quality land" being substituted by "irrigated land", the ceiling area in the two cases also being entirely different. This being the case, it is important to now construe Section 9 of the 1974 Amendment Act in this backdrop. Be it noted that Section 9 itself comes into force only on 19.1.1975. For Section 9 to apply, an order has to be made determining surplus land in relation to a tenure-holder before the commencement of the Amendment Act. By Section 1(2), "this Section" and Section 9 both come into force at once i.e. on 17.1.1975. The expression "this Section" refers to Section 1(1) which in turn refers to the Act as the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1974. This being the case, it is clear that the Act has commenced only on 17.1.1975, even though a number of Sections shall be deemed to have come into force retrospectively i.e. on 8.6.1973. The order passed by the prescribed authority being on 13.1.1975, the first condition of Section 9 is met, namely, that this order has been passed before 17.1.1975. It is the second part of the Section on which a lot of the debate featured. According to learned counsel for the State a discretion is vested in the prescribed authority by use of the expression "may". We may hasten to add that the very expression "may at any time within a period of two years..." also occurs in Section 31(3) of the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1976. This sub- section makes it clear that the expression "may" goes along with the words "at any time within a period of two years..." as it is clear that on a correct reading of the sub-Section, the prescribed authority has, in every case, to re-determine surplus land if an order determining surplus land has been made before the 10th day of October, 1975. The idea is that a period of two years is given to re-determine surplus land in accordance with the principal Act as amended by the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1974. This being the case, it is clear that no discretion is vested in the prescribed authority to re-determine surplus land. Surplus land has, in all cases, to be re-determined, as a completely different and new scheme applicable to all lands has replaced the existing scheme. The only exception is where, prior to 8.6.1973, a determination of surplus land has been made finally, that is, an appeal has been disposed of under Section 13."

25. I find that there is no dispute regarding amendments brought in the Act, however the judgment of the appellate court does not deal with the effect of amendment made in the Act in the light of evidence filed by the parties on record.

26. From a perusal of the impugned order, I also find that while allowing the appeals filed by the State, it has been observed as follows:-

"अपील पत्रावली संख्या- 76/33/28/37/जी० पर परदेशी, कमलदेव प्रसाद, ओम प्रकाश जैसवाल, दीना, मंगल केदार प्रसाद, गुलाब चन्द, तिलकधारी, चतुर्भुज उर्फ पन्ने लाल, अजय सिंह, प्रशान्त कुमार आदि द्वारा इस आशय का प्रार्थना- पत्र दिया गया है कि उन्हें कोई नोटिस आदि नहीं दी गयी है और अपील की कार्यवाही बिना उन्हें फरीक बनाए की जा रही है जो विधि संगत नहीं है और अपीलें निरस्त होने योग्य हैं। किन्तु इनमें से पुकार के समय कोई उपस्थित नहीं आए और न ही उनके विद्वान अधिवक्ता उपस्थित हुए। लिहाजा सभी प्रार्थना-पत्र निरस्त होने योग्य हैं।"

27. From the aforesaid, it appears that certain persons had agitated their grievance out of non issuance of notices to them, however, while deciding the appeals, their applications were rejected only on the ground that they were not present at the time when the case was called out. I find that in the matters arising out of proceedings under the Act, 1960, notice and opportunity to all the concerned persons is mandate of law and therefore it was not a justice oriented approach of the appellate court to reject the applications while finally deciding the case inasmuch as had such applications were rejected prior to taking final decision in the matter, the persons aggrieved by such rejection in their absence would have got an opportunity to seek recall of the order or to assail the same before the appropriate forum. This opportunity has been completely closed by the appellate court in the aforesaid manner.

28. In view of the above, I find that the judgment impugned cannot sustain and I also find that since the appeals of the petitioners have not been considered on merits but have been erroneously rendered infructuous, the appeals are required to be heard and decided on merits.

29. The writ petitions therefore succeed and are allowed. The impugned judgments and orders dated 19.11.1996 passed by the Commissioner, Gorakhpur Division, Gorakhpur in all the writ petitions are quashed.

30. All the appeals which were decided under judgments and orders impugned are revived to their original numbers and status.

31. The appellate court shall summon the record of the concerned subordinate court/ authority and shall proceed to decide the appeals on merits.

32. The appellate court shall afford opportunity of hearing to the parties to the litigation as well as the persons whose impleadment has been allowed by this Court in the aforesaid writ petition and shall also issue notice to the purchasers of various sale deeds in case it proceeds to examine the validity of the transactions of sale in accordance with law and shall ensure proper service of notice upon the said purchasers and filing of their objections and documentary evidence.

33. The appeals shall be decided within a period of nine months from the date a certified copy of this order is produced before the appellate court concerned.

34. Till disposal of the appeals so revived, parties shall maintain status quo in respect of nature and possession over the property in dispute and no third party rights shall be created by any of the parties as well as the purchasers upon whom requirement of service of notice has been observed by this Court in this judgment,

35. All the writ petitions are allowed in the above terms.

Order Date :- 22.5.2023

AKShukla/-