The petitioners, who claim themselves to be the allottees of land declared surplus under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, are aggrieved by the order passed by the Deputy Director of Consolidation in proceedings under the U.P. Consolidation of Land Holdings Act, 1953 dated 11.2.2011. By the impugned order the Deputy Director of Consolidation has refused to recall the final order passed on 23.8.1983.
The dispute has a chequered history and therefore the facts have to be noted before proceeding any further. I have heard Sri P.K. Kashyap, learned counsel for the petitioners and Sri Vimal Prasad for the respondent Nos. 5 to 11 and 13 and the learned Standing Counsel for the respondent Nos. 1 to 4.
The land which is subject matter of dispute was the holding of one Shiv Pujan Singh S/o Ram Chandar. The contesting respondents herein and their predecessors in interest claimed sirdari tenureal rights as against Shiv Pujan, for which they instituted a suit under Section 229-B of the U.P. Z.A. & L.R. Act, 1952. The said declaratory suit filed under Section 229-B of the U.P. Z.A. & L.R. Act by the respondent - Uma Shankar and his ancestors Bali Ram, Jhoora and others was decreed on 14.2.1966. There were other competing claims in respect of the same land including one by Ali Hussain who is respondent no. 14 herein that was being contested with the State as one of the defendants. They filed an appeal against the said judgment and decree dated 14.2.1966 which was allowed and the suit was dismissed. A second appeal filed by the respondents Uma Shankar Singh & others before the Board of Revenue who were plaintiffs was also dismissed. Against the same, writ petition No. 1736 of 1969 was filed and the same was also dismissed on 5.9.1969. An S.L.P. against the said judgment was also filed which is also stated to have been dismissed on 19.5.1971.
With regard to the same dispute, possession was being claimed since 1963 regarding which attachment orders were passed and proceedings under Section 145/146 Cr.P.C. were initiated. Suffice it to note that the said proceedings relating to attachment and possession are still alleged to be pending. A criminal revision has also been filed being Criminal Revision No. 3212 of 2009 Uma Shankar & others Vs. State of U.P. & others where the following order has been passed:
"Heard learned counsel for the revisionists and learned A.G.A. for the State respondent.
The present criminal revision has been filed against the judgment and order dated 15.7.2009 passed by Sub Divisional Magistrate, Chakia, Chandauli, whereby he has rejected the application of the revisionists under Section 145/146, Cr.P.C. refusing to drop the proceedings under Section 146, Cr.P.C. following the judgment of this Court dated 19.12.2008 passed in criminal misc. application no. 34676 of 2008.
It is contended by the learned counsel for the revisionists that the land in dispute belongs to one Shiv Pujan Singh, who was in possession thereof since before the inception of Zamindari Abolition and Land Reforms Act and he remained in possession in the capacity of Sirdar. It is further contended that there was a long standing civil dispute between one Ali Hussain and Shiv Pujan Singh over the title of the land in dispute, which was ultimately concluded by the order passed by Deputy Director of Consolidation dated 23.8.1983. It is also contended that pursuant to the order of Deputy Director of Consolidation the revisionists along with the co-tenure holders remained in possession on the basis of adverse possession. It is further contended that in the year 1982 Ali Hussain initiated proceedings under Section 145, Cr.P.C. with regard to land in question. Thereafter, in the year 1994 the private respondents tried to illegal interference in the possession of the revisionists and other co-tenure holders, hence, a civil suit being original suit no. 182 of 1994 was filed, in which injunction was granted in favour of the revisionists on 8.4.1996, copy of which has been filed as annexure-4 to the affidavit. It is further contended that thereafter opposite parties filed an appeal against the said injunction order, which was rejected and the names of revisionists were recorded in the revenue records. It is next contended that when the opposite parties failed to get the revisionists dislodged from the land in dispute, they moved an application dated 4.3.2008 in the pending proceedings under Section 145, Cr.P.C. that since the land was attached in the year 1982, thus it was prayed that, the Magistrate may pass attachment order in the said application, copy of which has been filed as annexure-6 to the affidavit. It is next contended that the Magistrate, vide order dated 22.11.2008, passed an order for attachment of the land in question pursuant to the pending proceedings under Section 145, Cr.P.C., which was initiated in the year 1982 by the opposite parties. It is also contended that against the said order revisionists filed criminal misc. application no. 34676 of 2008 before this Court and this Court finally disposed of the said application with a direction that if any application is moved by the applicants/revisionists before the court concerned, same shall be heard and disposed of expeditiously as per provisions of law, copy of which has been filed as annexure-1 to the affidavit. It is next contended that thereafter application was moved by the revisionists before the Magistrate concerned, who passed the order impugned. Learned counsel for the revisionists has contended that as per the judgment of Hon'ble Supreme Court in the case of Dharampal and others Vs. Smt. Ramshri and others, reported in JT 1993 (1) SC 61, the Hon'ble Court has held that if determination of rights of the parties has been done by the competent court and even if such determination is not final it may be tentative even at the interim stage and the moment the competent court passes an order, the order of attachment passed by the Magistrate comes to an end. Learned counsel for the revisionists has further relied upon recent judgment of Hon'ble Supreme Court dated 13.2.2008 in the case of Gyatri and others Vs. Ranjit Singh and others, in support of his contention.
Issue notice to the opposite parties no. 2 to 14 returnable within six weeks. Steps be taken within a week.
Learned A.G.A. prays for and is granted six weeks time to file counter affidavit. Opposite parties no. 2 to 14 may also file counter affidavit within the said period. As prayed by the learned counsel for the revisionists two weeks thereafter is granted for filing rejoinder affidavit.
List after expiry of the aforesaid period.
Till the next date of listing operation of the order dated 15.7.2009 passed by Sub Divisional Magistrate, Chakia, Chandauli in criminal case no. 22/23 of 1982 under Section 145, Cr.P.C. shall be kept in abeyance."
Another Misc. Application under Section 482 Cr.P.C. being Application No. 8677 of 2010 has also been filed in which an order of status quo has been passed on 29.3.2010.
During the pendency of the proceedings in the suit under Section 229-B, notices appear to have been issued under the U.P. Imposition of Ceiling On Land Holdings Act, 1960 and the Prescribed Authority declared the land to be surplus in the hands of Shiv Pujan Singh on 29.3.1967. The surplus land was notified in the Gazette as against Shiv Pujan. The contesting respondents claimed that they were entitled to be treated as the owners of the land and not Shiv Pujan Singh and therefore the declaration of surplus land on 29.3.1967 and the consequential notification was invalid. An application was moved before the Prescribed Authority by Ali Hussain & others for setting aside the said order which was rejected. Simultaneously, the petitioners came to be allotted the land on 25.7.1972. Against the rejection of their application by the Prescribed Authority Ali Hussain & others filed an appeal before the appellate authority under the Ceiling Act and the same was allowed on 21st July, 1972 whereby the order of the Prescribed Authority dated 28.1.1972 was set aside and the Prescribed Authority was directed to decide the objections of the contesting respondents in accordance with law.
The said proceedings under the Ceiling Act upon remand have not proceeded any further and the rights of the contesting respondents remained undecided on merits against the declaration of the surplus land.
It however appears that fresh notices were issued after amendments were brought about in the Ceiling Act under the amending U.P. Act No. 18 of 1973. The notices which were issued were challenged enmasse in a large number of petitions by different tenure holders before this court. The contesting respondents also appear to have challenged the said notices on the ground that the amending Act is itself invalid and, therefore, the notices cannot be sustained. A challenge was also raised to the consequential rules framed under the Ceiling Act. The said writ petitions were entertained in the year 1975 itself but were ultimately dismissed by a common judgment on 17.12.1977. It is to be noted that these writ petitions were limited to the validity of the notices only and the dismissal of these writ petitions only laid to rest the challenge to the vires of the provisions. The dismissal of the said writ petitions on 17.12.1977 however did not disallow the claim of the tenure holders or the objectors whose objections were either pending or to whom notices had either been issued afresh or not under the amending Act. The claims had to be decided on merits. There is nothing on record to indicate that after the dismissal of the said writ petitions fresh proceedings were initiated against the contesting respondents or the successors of the original tenure holder to make any fresh declaration of the land as surplus. In essence the objections of the contesting respondents after remand vide order dated 21st July, 1972 have nowhere been indicated to have been decided.
Yet another development took place, namely, the village where the land is situate came to be notified under the U.P. Consolidation of Land Holdings Act on 16.6.1968. It is to be noted that the notification under the Consolidation Act had already been made when the dispute between the respondent - Uma Shankar Singh and Ali Hussain and others was already pending before the Board of Revenue and the High Court, which was later on carried to the apex court as noted above. The legal effect of the notification of the consolidation proceedings having been notified on 16.6.1968 was that the proceedings arising out of declaratory suit was liable to be abated as per the consequences entailed under Section 5 of the U.P. Consolidation of Holdings Act. It, however, appears that the aforesaid fact of the notification of the village was not brought to the notice of the High Court when the writ petition was dismissed in 1969.
Objections appear to have been filed by the contesting respondents before the Consolidation Officer for declaration of their rights which they had already been contesting in the declaratory suit. This was necessary as they were seeking declaration of their rights which could be adjudicated only by the Consolidation Authorities as the previous proceedings would be treated to have been abated. The said objection filed by the contesting respondents was contested by the State Government on the ground that the land which was being claimed by the contesting respondents was the holding of Shiv Pujan and the same has been declared to be surplus in his hands, therefore, the contesting respondents herein cannot seek any declaration in respect of the land which has been declared surplus under the Ceiling Act. The Consolidation Officer rejected the objections filed by the contesting respondents against which appeals were filed which were also dismissed. The Deputy Director of Consolidation in revision against the said judgment also affirmed the decision of the Consolidation Officer vide order dated 23.5.1974 on the ground that the Consolidation Courts did not have any jurisdiction to adjudicate the rights of the contesting respondents once the land has been declared to be surplus under the Ceiling Act. A writ petition filed by contesting respondents Bali Ram, Smt. Jhoora and others being writ petition No. 5836 of 1974 challenging the order of the Deputy Director of Consolidation dated 23.5.1974 was allowed and it was held that the Consolidation Authorities could not have refused to decide the rights as sought to be declared by the contesting respondents merely on account of the Gazette Notification under Section 14 of the Ceiling Act. The court noted that not only recorded but also unrecorded tenure holders can raise objections and can approach the Ceiling Authorities for declaration of their rights contending that the land cannot be declared surplus. The Consolidation Authorities were therefore bound to determine such objections. It was further held that the proceedings were pending before the Ceiling Authorities and not finalized. This is evident from the fact that the appeal filed by Ali Hussain and others had been allowed by the appellate authority under the Ceiling Act and a direction was issued to decide their objections which remained undisputed.
Accordingly the order of the Deputy Director of Consolidation dated 23.5.1974 was set aside and the Deputy Director of Consolidation was directed to decide the matter. The judgment dated 16.1.1980 is on record as Annexure 14 to the writ petition.
At this juncture, it is to be noted that the said writ petition was allowed after contest by the State and that further the said judgment has become final between the contesting respondents and the State of U.P.
The Deputy Director of Consolidation thereafter proceeded to decide the matter on 23.8.1983 declaring the rights of Baliram and others and Smt. Jhoora Devi as sirdars in their favour which order is sought to be recalled by the petitioners on the ground that the petitioners cause relating to the allotment of the same land would be seriously prejudiced and that the respondents have no valid title over the land so as to resist the allotment of the petitioners or their possession.
The order dated 23.8.1983 declares Baliram and others and Smt. Jhoora represented through their legal heirs herein as contesting respondents to be the sirdars of the plots in dispute whereupon their names stand recorded as tenure holders expunging that of Shiv Pujan. The contention of Ali Hussain- respondent no. 14 was not accepted as he had not challenged the earlier order of Deputy Director of Consolidation dated 23.5.1974. The order dated 23.8.1983 records that the District Government Counsel (Revenue) on behalf of the State was heard and parties agreed that the ceiling proceedings were not finalised after the remand order dated 21.7.1972. Ali Hussain and others only filed writ petition no. 12132 of 1983 challenging the order dated 23.8.1983 which stood dismissed for want of prosecution on 25.10.2007. Neither the State which had contested the matter before the Deputy Director of Consolidation nor the petitioners inspite of having knowledge did ever challenge the same.
Sri P.K. Kashyap, learned counsel for the petitioners contends that the order of the Deputy Director of Consolidation has been obtained on 23.8.1983 by the respondents without disclosing the finality of the proceedings in the suit which had been filed under Section 229-B and had been upheld upto the apex court. Sri Kashyap further contends that the ceiling matter had already been finalized as against Shiv Pujan and therefore the petitioners who are the allottees are entitled to the benefit of such allotment. He further submits that a writ petition was filed by the petitioners in which a direction was issued to decide their applications but the Prescribed Authority has not proceeded to pass any order on a report which also indicates the passing of the order of the Deputy Director of Consolidation dated 23.8.1983. He further submits that there was no legal impediment as the order of the Consolidation Authority was not binding on the Prescribed Authority under the Ceiling laws yet in precaution the recall thereafter was prayed for which has been wrongly rejected.
It is further submitted by him that this had become necessary because of another fact relating to the order dated 23.8.1983. The order dated 23.8.1983 was also challenged by Ali Hussain and others as they were aggrieved by it being Writ Petition No. 12132 of 1983. The operation of the order dated 23.8.1983 had been stayed and the writ petition remained pending till 2007. The present petitioners having come to know of the pendency of the said order moved an impleadment application in the said writ petition which also allowed treating them to be interveners on 25.10.2007. The said writ petition was however dismissed in default on the very same day.
After the dismissal of the said writ petition the petitioners moved a recall application on 9.1.2008 before the Deputy Director of Consolidation to recall the order dated 23.8.1983 that has now been rejected under the impugned order dated 11.2.2011.
The Deputy Director of Consolidation has rejected the same on the ground of limitation and also on the ground of the impact of the intervening orders passed from time to time as noted therein and their binding effect. By the same order another miscellaneous file sent by the District Magistrate to send comments on the Pattas of the petitioners has also been disposed of.
Sri Kashyap submits that the Deputy Director of Consolidation has overstepped his jurisdiction as the Pattas were granted under the Ceiling Act which could be examined only be the Ceiling Authority and not the Consolidation Court. This argument need not detain this Court as the said comments on the Pattas were made by the Deputy Director of Consolidation on account of the requisition of the Collector as narrated in the impugned order. It is again for the Ceiling authorities to examine the same if any appropriate proceedings are undertaken under the Ceiling Act. Accordingly the same does not raise any issue of jurisdiction at this stage.
Sri Kashyap contends that the petitioners were entitled to the benefit of any alleged delay in moving of the recall application on account of the bona fide pursuit of the petitioners in moving an impleadment application in writ petition No. 12132 of 1983. He contends that they did not approach the Deputy Director of Consolidation earlier as they had been allowed to intervene in writ petition No. 12132 of 1983. It is only after its dismissal in default that the petitioners moved the recall application before the Deputy Director of Consolidation and hence there was no delay so as to reject the same and not grant the benefit of condonation. Sri Kashyap therefore contends that the impugned order is vitiated.
On the merits relating to the proceedings before the Ceiling Authorities, Sri Kashyap contends that the order dated 21st July, 1972 passed in an appeal preferred by Ali Hussain and others does not take away the impact of the original declaration of surplus land on 29.3.1967 and hence the allotment of the petitioners remains valid which aspect has not been correctly appreciated by the Deputy Director of Consolidation. He therefore contends that the Deputy Director of Consolidation ought to have passed an order for recording the allotment of the petitioners as their allotment has neither been cancelled nor set aside and they are entitled to possession over the land.
He further contends that the order of the Ceiling Authorities is otherwise also not binding on the Consolidation Authorities and the order being of 1983 will not in any way confer any right on the respondents as it is an order having been passed much after appointed date i.e. 24.1.1971 under the Ceiling Act. He submits that the order of the Consolidation Authorities therefore deserves to be ignored by the Ceiling Authorities. Relying on the decision of Agricultural & Industrial Syndicate Ltd. Vs. State of U.P & others, reported in 1971 RD 29, it is urged that the Consolidation Authority had no jurisdiction to pass orders and the mistake can be corrected by recalling the order as held in Ganesh Vs. Dy. Director of Consolidation & others, reported in 1994 RD 253.
No other point has been pressed before this Court.
Sri Vimal Prasad for the contesting respondents contends that the claim of the petitioners is absolutely misplaced, inasmuch as, the declaration by the Deputy Director of Consolidation is in respect of the rights of the contesting respondents which was being pursued on the basis of sirdari rights and possession prior to 1963 about which criminal proceedings and revenue proceedings had been simultaneously conducted. The criminal proceedings are still pending as noted above arising out of a dispute of possession of attachment whereas the revenue proceedings stood abated whereafter objections were filed before the Consolidation Authorities that has been finally decided on 23.8.1983. He further contends that once writ petition No. 12132 of 1983 has been dismissed in 2007 then any application for intervention moved by the petitioners also loses its efficacy. The petitioners did not carry the matter any further nor have they moved any application for restoration of the said writ petition where they were allowed to intervene. They did not file any writ petition of their own against the order dated 23.8.1983 and therefore they cannot be permitted to reagitate the matter through a restoration application that was ultimately filed after 24 years.
There is no plausible explanation for the aforesaid delay in moving the restoration and a misdirected contest put up by the petitioners either before this Court or before the Ceiling Authorities does not add to their advantage so as to allow the delay condonation application by the Deputy Director of Consolidation. On merits also Sri Vimal Prasad submits that the proceedings before the Revenue Court that began in the year 1966 was between the contesting respondents, Shiv Pujan and the State, and the petitioners were neither parties nor were they in any way concerned with the other claim of rights of the contesting respondents which was in existence prior to the orders passed by the Ceiling Authorities either in 1967 or subsequently allotting land to the petitioners. It is, therefore, submitted that the petitioners have no locus to contest the said rights as against the contesting respondents. The petitioners would only succeed if the land is not ultimately found to be the holding of the contesting respondents by the Ceiling Authorities. It is urged that the Ceiling Authorities did not proceed against the contesting respondents after the order of remand dated 21.7.1972 or the dismissal of the writ petition challenging the vires of the Ceiling Act in the year 1977. It is in aforesaid background he submits that the writ petition deserves to be dismissed.
Learned Standing Counsel for the respondent Nos. 1 to 4 contends that the reports were submitted which have been taken notice of to assess the legal impact of the impugned order dated 23.8.1983 and that the Ceiling Authorities are still free to take a stand on the impact or otherwise of the same in terms of the provisions of Section 5 (6) Explanation (1) of the Ceiling Act. Learned Standing Counsel, therefore submits that in case the writ petition is entertained, then he may contest the aforesaid position in accordance with law.
Having heard learned counsel for the parties, it is evident that the first issue is relating to the jurisdiction of the Deputy Director Consolidation to hear the matter and pass orders on 23.8.1983. This dispute was clearly in relation to the declaration of rights of the contesting respondents before the Revenue Court about which proceedings had been taken up before the Board of Revenue, this court and the apex court resulting in the dismissal of the Special Leave Petition on 19.5.1971. What is to be noted is that the notification under the Consolidation Act had intervened and the village was notified on 16.6.1968. It is, therefore, clear that the village had been notified under the Consolidation of Land Holdings Act and in view of the provisions of Section 5 of the Act, all proceedings relating to right, title or interest pending before any court stood abated. It appears that the said notification was not brought to the notice of the High Court when the writ petition was dismissed on 5.9.1969. Nonetheless, the fact remains that objections had already been filed before the Consolidation Authorities pursuant to the said notification under the Consolidation Act. Resultantly the proceedings before the Consolidation Authorities had to proceed and the title had to be adjudicated keeping in view the impact of the judgment of this Court and the apex court. The Consolidation Authorities instead rejected the objections on the ground that the land about which declaration is sought was already declared surplus under the Ceiling Act and therefore the said dispute could not be adjudicated. This approach of the Consolidation Authorities was erroneous and it is for this reason that the writ petition No. 5836 of 1974 filed against the orders of the Consolidation Authorities refusing to entertain the objections was allowed on 16.1.1980. The said judgment is extracted herein below for ready reference:
BY THE COURT This writ petition is directed against the judgment of the Kshetriya U.P. Sanchalak Chakbandi, Varanasi dated 23.5.1975 whereby the revision petitions filed by the petitioners were dismissed.
Shorn of unnecessary details the disputed plots appear to have been recorded in the name of Sheo Pujan and in the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act the aforesaid plots have been treated as the property of Sheo Pujan and have been declared as surplus.
It appears that the petitioners had filed an objection before the prescribed Authority claiming sirdari rights in the disputed plots on the basis of their long and continuous possession, and that proceeding was probably pending before the prescribed Authority when the dispute raised on behalf of the petitioners was decided by the Deputy Director of Consolidation.
It appears that the Deputy Director of Consolidation is under notion that in the proceedings before the ceiling authorities only it can be declared whether the disputed land is surplus or not of the tenure-holder Sheo Pujan. The claim of the petitioners has not been decided by the consolidation authorities on the ground that the disputed land has been declared as surplus land of the recorded tenure-holder Sheo Pujan.
Previously the view of this Court was that the claim of the trespassers could not be investigated under the provisions of Section 14 of the U.P. Imposition of Ceiling on Land Holdings Act, but now it has been indicated that even the trespassers claiming right in the disputed land can approach the ceiling authorities and their right can be determined by the ceiling authorities.
Because of the pendency of the proceedings before the ceiling authorities it is not necessary that the consolidation authorities may stay their hands or may not determine the claims of the persons aggrieved. Though enough time has passed since the impugned judgment, but it is not clear as to whether the petitioners have succeeded before the ceiling authorities or not. Even the revisional court has observed in its impugned judgment that if the claim of the petitioners was recognised by the ceiling authorities, the consolidation authorities would get jurisdiction to deal with the dispute.
To my mind the approach of the Deputy Director of Consolidation in this regard is not correct. Since the claim of the petitioners has not been examined by the consolidation authorities nor it is clear that any final order negativing the claim of the petitioners has been passed by the ceiling authorities, is proper that the impugned judgment should be quashed and the revisional court should be asked to decide the claim of the petitioners afresh strictly in accordance with law. If the petitioners have failed before the ceiling authorities, they will have no right to press their claims before the consolidation authorities, and if, claim is pending before the ceiling authorities, the revisional court can decide the claim of the petitioners on the materials in the case giving rise to the revision petition before it. In not deciding the claim of the petitioners on merits, when the revisional court itself has observed that the proceedings before the ceiling authorities are pending with regard to the disputed plots at the instance of the petitioners, I think that the revisional Court has patently erred in not exercising the jurisdiction vested in it by law.
In the result, the writ petition succeeds and the impugned judgment of the Kshetriya U.P. Sanchalak Chakbandi, Varanasi dated 23.5.1974 is hereby quashed and the revisional court is directed to decide the claim of the petitioners afresh strictly in accordance with law and the observations made by me above. Since no one appears on behalf of the contesting opposite parties, the parties shall bear their own costs."
The aforesaid judgment became final between Ali Hussain and other persons claiming rights as well as other claims in interest of the contesting respondents. The State of U.P. was respondent no. 8 in the said writ petition and therefore the said judgment is also final against the State Authorities who had not chosen to contest the matter as noted in the judgement itself. This therefore puts an end to the aforesaid dispute sought to be raised by the petitioners that the Consolidation Authorities had no jurisdiction to entertain the claim of title of the contesting respondents. The Ceiling Authorities had not finalized the claim against the contesting respondents. In such a situation, the Deputy Director of Consolidation was obliged to consider the claim of the contesting respondents. The aforesaid contention therefore on behalf of the petitioners that the Consolidation Authorities could not have proceeded to decide the matter in view of the past history of the litigation before the revenue authorities has therefore to be rejected. Needless to say that the judgment dated 16.1.1980 has neither been challenged before any court either by the State or by the petitioners or any other party. Accordingly, the order dated 23.8.1983 passed by the Deputy Director of Consolidation cannot be said to be without jurisdiction.
The decision relied upon by the learned counsel for the petitioners in the case of Ganesh Vs. Dy. Director of Consolidation & others (supra) to contend that the authority has the power to recall, if it has committed a mistake would not be attracted, inasmuch as, as held above there was no error of jurisdiction with the Deputy Director of Consolidation to have proceeded to decide the matter as it was done upon a direction of this Court dated 16.1.1980. It was thus not a case of any mistake and hence the said decision does not come to the aid of the petitioners.
The conclusion aforesaid therefore leads to a valid assumption that the previous litigation before the revenue authorities that began with the 229-B suit in 1966 stood eclipsed and stands superseded by the order of the Deputy Director of Consolidation.
The allotment of land to the petitioners is an altogether different proceeding under the Ceiling Act and the same could be valid if the land is treated to be surplus. The said land may have been treated to be surplus in the hands of Shiv Pujan but the contesting respondents deny the title of Shiv Pujan and their case is clearly to the effect that the land belongs to them and they have a declaration in their favour from the Deputy Director of Consolidation. The Ceiling Authorities did not proceed against the contesting respondents any further in the background indicated above. As noted above the judgment dated 21st July, 1972 passed by the appellate authority directing the Prescribed Authority to decide the objections does not appear to have been complied with till date. The contesting respondents therefore cannot be dislodged so long as the proceedings under the Ceiling Act if undertaken in accordance with law are not finalized. The allotment of the petitioners has therefore to abide by a declaration of surplus land after deciding the objections of the contesting respondents only and not prior to that.
The rights of the contesting respondents, even if they were not recorded as tenure-holders, to file objections and their entitlement to be heard by the Ceiling Authorities is protected under the Act in view of the law laid down in the case of M/s Upper Ganges Sugar Mills Ltd. Vs. Civil Judge, Bijnor and others reported in AIR 1970 Allahabad 130. They have not set up a new claim, but they have been contesting their rights since 1963 or even before, as against the original tenure holder Shiv Pujan through Civil and Criminal proceedings before the appropriate forums as noted herein above. Their pursuit was bona-fide and was in existence even prior to the declaration of surplus land in 1967 and before allotment to the petitioners. This contest of the respondents therefore began long back without any motive to defeat the outcome of ceiling proceedings. The contest was in the knowledge of the State as it was a party in the proceedings before the Revenue authorities as also in the criminal proceedings. The Ceiling Authorities therefore could not have avoided adjudication that was ultimately acknowledged by the order dated 21.7.1972 in appeal that is final and has not been challenged either by the State or by the petitioners. The petitioners have very conveniently tried to avoid the said order without either referring to the same in this petition or pointing out any reason for not having questioned the same. The said order dated 21.7.1972 has been referred to in the impugned order but the petitioners have filed the petition skipping over the said fact with no valid explanation for the same.
The contention raised by the petitioners that the land has been declared to be surplus finally is therefore not borne out from records as against the contesting respondents. It is also not the case of the petitioners that any fresh orders have been passed under the Ceiling Act against the contesting respondents.
With the commencement of the consolidation operations in 1968, the ceiling proceedings also appear to have remained suspended after the remand order dated 21.7.1972 presumably because of the law then declared by the apex court in the case of The Agricultural & Industrial Syndicate Ltd. Vs. State of U.P & others, reported in 1974 (2) SCC 27. To overcome the rigor of the said decision the legislature was fast enough to amend the provisions of Section 5 of the U.P. Consolidation of Holdings Act by adding an Explanation thereto excluding the proceedings under the Ceiling Act by U.P. Act No. 34 of 1974 giving it a retrospective effect through U.P. Act No. 35 of 1976.
It is no doubt true that if the Ceiling Authorities proceed to take any action against the contesting respondents then the impact of the judgment dated 23.8.1983 can be looked into by them in view of the law laid down by the Division Bench in the case of Satya Pal Singh Vs. Stateof U.P. and others, reported in 1979 ALJ 1259. The relevant extract thereof is quoted herein below:
"Para 4...............A finding or decision given before Section 38-B came into force on October 10, 1975 (the date of enforcement of U.P. Ordinance No. XXXI of 1975) are, for purposes of Ceiling Act, not final. They can be reopened and the question involved in it, retried. But in a case where no retrial takes place, the finding or decision is binding. Further, Section 38-B implies that findings or decisions given in any proceeding in any court, tribunal or authority will be binding upon the authorities under the Ceiling Act, if they are given after October 10, 1975. This clearly leads to the conclusion that the decisions of the authorities under the U.P. Consolidation of Holdings Act are valid and are to be recognized in proceedings under the Ceiling Act, subject of course, to the effect of Section 38B as explained above. In this view, it is evident that the prescribed Authority under the Ceiling Act while determining the ceiling area of a tenure-holder cannot shut its eye or ignore the decisions given in proceedings under the Consolidation of Holdings Act.
Para 5: Learned counsel invited our attention to a Full Bench decision of this Court in Ram Charan Vs. State of U.P. (1978) 4 All LR 819. At the end of judgment, an illustration with reference to Section 29 of the Ceiling Act was dealt with. But that has no bearing upon the position as obtaining in the present case. The Full Bench was concerned with the reverse case, namely, where consolidation proceedings commenced after the completion of the proceedings under the Ceiling Act. Here, we are concerned with the problem of Ceiling Act proceedings commencing while consolidation proceedings are going on and before completion of proceedings under the Ceiling Act, final orders had been passed under the Consolidation of Holdings Act. This position is not dealt with in the aforesaid decision."
The judgment passed by the Consolidation Authorities, therefore, has evidentiary value subject however to the provisions of Explanation (1) of Section 5 (6) of the U.P. Imposition of Ceiling On Land Holdings Act. For this however the fact remains that the impact can only be looked into when the proceedings under the Ceiling Act are initiated in accordance with law. In the instant case also the consolidation was notified on 16.6.1968. The order of remand by the appellate authority was passed on 21.7.1972 long after the commencement of the consolidation proceedings.
The decision relied upon by Sri Kashyap in the case of Agricultural & Industrial Syndicate Ltd. Vs. State of U.P & others, reported in 1971 RD 29 holds that the issue of surplus land can be decided by the Ceiling Authorities and not by the Consolidation courts. The said ratio does not in any way apply on the facts of the present case, inasmuch as, the Deputy Director of Consolidation proceeded to decide the matter under the judgment of this Court dated 16.1.1980 extracted hereinabove.
The Deputy Director of Consolidation has not proceeded to decide the issue of land being surplus in the hands of the tenure-holder. The order dated 23.8.1983 simply acknowledges the rights of the contesting respondents in relation to the dispute that had been set up by them claiming possession and title over the land as against Shiv Pujan Singh. The decision, therefore, relied upon by the learned counsel for the petitioners was not an impediment in the passage of the Deputy Director of Consolidation to proceed to decide the same. It is the ratio of the said decision which came to be reversed by the Supreme Court in the case of the Agricultural & Industrial Syndicate Ltd. Vs. State of U.P & others, reported in 1974 (2) SCC 27 and therefore any reliance placed by Sri Kashyap is misplaced. It is however something different that after the amendment in the Act as noted above, the ceiling proceedings cannot be stayed and they can go on simultaneously even if the consolidation operations have commenced.
So far as the petitioners are concerned, they appear to have full knowledge of the order dated 23.8.1983 much before they moved the intervention application in the year 1994 in writ petition No. 12132 of 1983. This fact that they moved the application in 1994 is admitted by them in the writ petition. It is, therefore, clear that they had knowledge of the order dated 23.8.1983 but they did not choose to move any recall application immediately. It is after almost 25 years that they filed the application for restoration/recall on 9.1.2008. The application in the opinion of the Court was highly belated with no valid explanation as to why they did not choose to do so when they had moved the impleadment application before this Court in 1994 itself. The order of the Deputy Director of Consolidation on this score also cannot be faulted with. The reliance placed by the learned counsel for the respondents on the Supreme Court decision in the case of Pundlik Jalam Patil Vs. Executive Engineer, Jalgaon Medium Project & another, reported in 2009 (106) RD 650, is well founded.
The dismissal of writ petition No. 12132 of 1983 has also a direct bearing on the issue. Once the order dated 23.8.1983 remains intact in the said petition, where the petitioners have been impleaded as interveners, the Deputy Director of Consolidation cannot afford to recall the same at the instance of the petitioners as it stands affirmed by this court.
In view of the conclusions drawn hereinabove, there is no error in the order of the Deputy Director of Consolidation dated 11.2.2011 and the writ petition is hereby dismissed.
Dt. 8.3.2011 Sahu