The petitioner claims himself to the holder of a lease under the allotment proposal dated 14.02.2011 as approved by the Sub-Divisional Magistrate on 23.02.2011. The challenge is to the orders dated 4th of July, 2011 passed by the Collector, Pilibhit and the dismissal of the revision dated 17.11.2011 holding the revision to be not maintainable against such an order.
The respondent no. 5 had moved an application in terms of the judgement of this Court dated 31.05.2005 to maintain the entries and also requesting the prescribed authority to proceed to decide the pending objections in terms of the appellate order dated 21.11.2009. This application has been disposed of by the Collector on 4th of July, 2011 directing the prescribed authority not to proceed to take any action with regard to the possession of the land declared surplus under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as 'the 1960 Act'). Aggrieved, the petitioner filed a revision before the Commissioner which has been held to be not maintainable.
Sri V Singh, learned counsel for the petitioner submits that the allotment in favour of the petitioner is in respect of a land which was declared surplus in the hand of the father of the petitioner, against whom the proceedings came to be finalized in terms of the order dated 12.05.2009, whereafter the choice was given and which has been accepted on 21st of July, 2009. He, therefore, contends that the allotment does not require any further adjudication and as such the Collector has erroneously proceeded to pass the order dated 4th of July, 2011.
The submission in essence, therefore, is that the order ought not to have been passed by the Collector in relation to that land about which there is no dispute pending and, therefore, the allotments do not require any interference. Sri Singh, therefore, submits that the order proceeds on an erroneous assumption of fact and as such the same deserves to be quashed with a direction to the authority to proceed with the allotment as proposed on 14.02.2011. He also claims that he should also be allowed to retain the possession of the said allotted land.
This matter had been adjourned in order to enable the learned counsel for the respondent no. 5, Sri Anupam Kulshrestha to obtain instructions as the present writ petition is an outcome of the order passed by this Court on 31.05.2011 in Writ Petition No. 33171 of 2011.
I have heard Sri Sanjay Goswami, learned Additional Chief Standing Counsel for the State and Sri Anupam Kulshrestha, learned counsel for the respondent no. 5 and perused the records of Writ Petition No. 33171 of 2011.
The background of the dispute in short is that proceedings were initiated against the respondent no. 5 under the 1960 Act when notices were issued under the said Act proposing certain land surplus in his holding. An order came to be passed on 6th of March, 1978 declaring 9.77 acres of land surplus in the hand of the respondent no. 5. It is undisputed that the said land came to be taken possession of and the same also be came subject matter of allotment. Another notice had been issued against the father of the respondent no. 5 and vide order dated 31st of January, 1975, land to the tune of 46.08 acres was declared surplus in the hand of the father of the respondent no. 5.
Aggrieved, the parties had filed appeals including the mother of the respondent no. 5, his father, as also the transferees who joined in the said proceedings. The appellate authority allowed the appeals partly on 1st of October, 1975. Dissatisfied with the appellate order, four writ petitions were filed before this Court which were ultimately decided on 26.04.1978 whereby this Court held that the land transferred through sale deeds and the holding of the mother of the respondent no. 5 could not have been included.
The order of the High Court had been modified by the Supreme Court vide order dated 29th of October, 1996 holding that the mother of the respondent no. 5 is not entitled for a separate status unless the matrimonial relationship is not broken and with this modification only the matter was remanded back.
In between, the father and the mother of the respondent no. 5 died. Due to their death a fresh notice came to be issued to the respondent no. 5 under Section 29 of the 1960 Act for disposal of the surplus land as the respondent no. 5 had inherited the land of his parents.
The prescribed authority on 20th of May, 2000 declared 96.41 acres of land surplus in the proceedings under Section 29 of the 1960 Act. An appeal was filed by the respondent no. 5 as well as other aggrieved persons which were allowed on 19th of March, 2002 and the matter was remanded back to the prescribed authority. The prescribed authority passed a fresh order on 31st of March, 2003 declaring 96.41 acres of land as surplus. Aggrieved by the order of the prescribed authority, fresh appeals were again preferred which remained pending before the appellate authority.
In between, the respondent no. 5 filed a writ petition before this Court being Writ Petition No. 9080 of 2009 praying that since the appeals relating to the objections under Section 10 of the 1960 Act were already pending, they should be decided first in order to ascertain as to how much land was surplus against the father of the respondent no. 5, and thereafter proceed to decide the appeals under Section 29.
The matter relating to Section 10 of the proceedings initiated against the father of the respondent no. 5 came to be decided on 12th of May, 2009 and the land to the extent of 19.80 acres came to be declared surplus. According to the contention of the parties, the choice was offered by the respondent no. 5 and the possession was taken in relation to the said land on 21st of July, 2009.
The appeals which had been filed in relation to the order under Section 29 of the 1960 Act came to be allowed on 21st of November, 2009 and the matter was directed to be disposed of in terms thereof. The said order is final and has not been assailed by any party including the State.
Sri Singh submits that the said order is not an order of remand and he has invited the attention of the Court to the order of the prescribed authority dated 3rd of September, 2011, a copy whereof is annexure 4 to the writ petition. He submits that the said order of the prescribed authority clearly indicates that there was no order of remand and, therefore, whatever compliance had to be made in terms of the order dated 21.11.2009, has been done and as such there was no impediment in proceeding to take possession of the land allotted to the petitioner. It is on these grounds and in the aforesaid backdrop of the facts that Sri Singh submits that the orders impugned deserve to be quashed.
Sri Anupam Kulshrestha submits that the judgment of this Court dated 31.05.2011 also takes notice of the appellate order dated 21.11.2009 and there being no decision by the prescribed authority as yet there is no land available for taking possession or allowing the authorities to proceed to allot land so long as the said matter is not decided.
Learned Additional Chief Standing Counsel supports the impugned order and he contends that so long as the matter is not disposed of by the prescribed authority, it will not be appropriate for the petitioner to claim any possession over the land alleged to have been allotted to him.
Having heard learned counsel for the parties and in view of the facts as narrated hereinabove, the order of the appellate authority dated 21st of November, 2009 categorically records that the prescribed authority had proceeded on the basis of unprepared and unintelligible records and, therefore, had directed for the reconstruction thereon and then to proceed and invite objections thereon from the respondent no. 5.
In the opinion of the Court, this was a clear order of remand, inasmuch as, it was a fresh opportunity for deciding the objections that were to be entertained after the reconstruction of the records. The order of the prescribed authority dated 31.03.2003 therefore stood effaced.
Learned counsel for the petitioner has been unable to point out any proceedings having been undertaken by the prescribed authority and in the absence of any such compliance of the order of the appellate authority, in my opinion, the impugned orders have been rightly passed in order to get the issues finalized in terms of the order dated 21.11.2009. Any allotment or its enforcement by taking possession cannot be executed so long the matter is not decided as observed hereinabove. Accordingly, I see no reason to interfere with the impugned orders.
The writ petition is dismissed.
The prescribed authority shall be free to proceed in terms of the directions issued by this Court dated 31.05.2011.
Dt. 09.01.2012 Akv