The petitioner, a lady, has been compelled to approach this Court again for the restoration of her rights and possession over new plot no. 408 (Old Plot No. 438) area 4.48 acres situate in village Padya Mustkin, Tappa Doma Khand, Pargana Tilpur, Tehsil Nichlaul, District Maharajganj in proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. The petitioner filed objections under sub-section (2) of Section 11 of the Act. Her objections have been allowed on 1.9.2008 and a further order has been passed by the prescribed authority on 30.12.2008 for restoring her status as tenure holder and restituting her possession. The respondent State and the contesting respondent allottees of the surplus land filed four appeals that have been dismissed. However while dismissing the appeal the learned Commissioner who is the appellate authority has made observation adverse to the petitioner for restoring her possession and restituting the land. It is this part of the order of the appellate authority which is assailed in the present writ petition.
The petitioner in short contends that she had already acquired rights over the land in question long before the appointed date i.e. 24.1.1971 under the 1960 Act, and the same was wrongly included as land surplus in the hands of one Radha Krishna Khaitan and Durga Prasad Khaitan. Radha Krishna Khaitan was subsequently survived by his heir Jagdamba Prasad Khaitan. Proceedings under the Ceiling Act took place against them and Old Plot No. 438 to the extent of the area indicated, came to be declared surplus. The said land was treated as having vested in the State after having declared surplus under the orders dated 12.7.1994, 1.12.1994, 18.2.1995 and 18.3.1996. The land came to be processed for allotment thereafter and was accordingly allotted to the respondents 6 to 15.
In paragraph 8 of the writ petition, the petitioner has categorically stated that inspite of the fact that she was in possession and her name had been recorded over the land in dispute, she was never put to notice by the Ceiling Authorities and the entire proceedings were conducted at Kushinagar Padrauna whereas the land is situate in the district of Maharajganj. There was no intimation to the petitioner at any stage, and when the respondents proceeded to take possession for handing it over to the allottees, she filed her objections under sub Section (2) of Section 11 of 1960 Act. The Prescribed Authority by the order dated 1st September, 2008 allowed the objections of the petitioner holding that the land in dispute had been wrongly included for declaration of as surplus land in the hands of Radha Krishna Khaitan and others, and after having considered the entire evidence on record and the contest put forth by the State further passed an order on 30.12.2008 on an application filed by the petitioner to restore the status of the land in favour of the petitioner.
Four appeals under Section 13 of the 1960 Act were filed, against the two orders dated 1.9.2008 and 30.12.2008. Two by the State of U.P. and two by the respondents no. 6 to 15 who are the allottees. The appeals filed by the State were held to be not maintainable as they were not filed through the competent authority. The appeals filed by the allottees were also dismissed as, once the land had been kept out of ceiling proceedings under the order of the Prescribed Authority, the same was not surplus and accordingly did not vest in the State. The State, therefore, had no right to allot the said land and accordingly their appeals were dismissed on this ground by the impugned order dated 15.12.2010.
After the order passed by the Prescribed Authority on 1.9.2008 and 30.12.2008, the petitioner filed a writ petition praying that her claim has been accepted by the Prescribed Authority and that her name has also been mutated in the revenue records but actual physical possession was not being restored inspite of an order passed on 18.4.2009 by the Prescribed Authority. The writ petition was entertained and an interim mandamus was issued on 14.5.2009, in response whereto the State and the respondents no. 6 to 15 who are allottees appeared and informed the court that four appeals had been filed as referred to herinabove and pending appeal, the petition be not entertained. The said writ petition No. 25249 of 2009 was finally disposed of on 22nd July, 2009 directing the appellate authority to dispose of the appeals including the issue relating to the maintainability thereof. It is thereafter that the impugned order has been passed on 15.12.2010 dismissing the appeals.
The petitioner however is aggrieved only by that part of the impugned order whereby the learned Commissioner has observed that the Prescribed Authority had no jurisdiction to pass the order of restitution/restoration in favour of the petitioner as the petitioner will have to file an appeal, and if the appellate authority passes an order, then only such a restitution can be entertained. For this the learned Commissioner has observed that the Prescribed Authority straight away does not have the power to cancel the leases of the allottees which vests in the Commissioner, the appellate authority, under Section 27 of the Act.
The petitioner is further aggrieved by the observation made by the Commissioner that if any competent appeals are filed by the State in future then the law of limitation will not be an impediment for the purpose of filing an appeal under Section 13 of the 1960 Act.
Sri R.C. Singh learned Counsel for the petitioner has advanced his submissions contending that firstly the rights of the petitioner are pre-existing rights prior to the date of vesting i.e. 24.1.1971 and as such the Prescribed Authority was fully justified in allowing the objections of the petitioner. Secondly, the petitioner was entitled to be restored back in possession once the appeals filed by the respondents have been dismissed and there is no further litigation pending in that regard. Thirdly, the observation made by the learned Commissioner while dismissing the appeals is contrary to law and is also contradictory in itself, inasmuch as, there is no occasion for the petitioner to have filed any appeal for restitution.
He further submits that the restoration is automatic, inasmuch as, if the land is not surplus, the allotment falls through and therefore the prescribed authority was right in restoring the entries in favour of the petitioner and directing for maintaining the said status in revenue records. It is submitted that the observation relating to non-applicability of law of limitation in an appeal is also erroneous and bereft of judicial reasoning.
Replying to the said submissions, Sri Sanjay Goswami learned Additional Chief Standing Counsel submits that if the appeal was incompetent then the Commissioner has not committed any mistake in permitting the State to file a competent appeal. He however submits that he is not aware as to whether any appeal afresh has been filed or not and he points out that there was an interim order dated 9.2.2011 staying the operation of the order in the present writ petition.
He has further invited the attention of the court to the contents of the counter affidavit to urge that the petitioner and one Radhey Shyam manipulated their names to be recorded during consolidation operations as such any claim made by them on the basis of such entries was without any basis and treating them to be fake entries, the Deputy Director of Consolidation in a reference under Section 48(3) of the U.P. C.H. Act, 1953 has already passed an order on 16.1.1989.
He further submits that the land was surplus in the hands of the original tenure holders and any subsequent declaration in favour of the petitioner after the appointed date i.e. 24.1.1971 cannot be taken advantage of in view of the provisions of sub-section (6) and sub-section (8) of Section 5 of the 1960 Act read with Section 38-B thereof.
It is further urged that the petitioner's objection has been decided under sub-section (2) of Section 11 and therefore the point raised with regard to non-service of notice under Section 10(2) of the 1960 Act is erroneous. He further submits that the application moved by the petitioner purporting to be under Section 144 Civil Procedure Code was not maintainable before the prescribed authority, inasmuch as, the respondents could be evicted only after the leases were cancelled by the Commissioner under sub-section (4) of Section 27 of the 1960 Act. He therefore submits that the impugned order does not require any interference and the petition deserves to be dismissed.
Sri S.K. Chaubey and Sri K.K. Tiwari have appeared on behalf of the respondents 6 to 15 who are the allottees subsequent to the land having been declared surplus. Sri Chaubey vehemently argued that the order of the prescribed authority is illegal and contrary to law and therefore the petitioner does not acquire any right to retain the land. He submits that the contesting respondents are valid allottees and in the absence of any cancellation they cannot be dispossessed from the land in dispute.
He further submits that as a matter of fact, neither the evidence led by the petitioner nor the proceedings of the Consolidation Authorities in any way confer any title on her. He has invited the attention of the Court to the order dated 16.1.1989, and the order of the Naib Tehsildar dated 18.3.1996 to submit that the entries in favour of petitioner already stood expunged before the Consolidation Authorities and subsequently before the Ceiling Authorities as well. Aggrieved by the same the petitioner had filed writ petition no. 25547 of 1996 which has been dismissed on 9.3.2011, and as such the petitioner cannot claim any relief on the basis of the orders relied on, as the subsequent expunging of entries referred to hereinabove stand, and the petition filed by the petitioner against the same has been dismissed. The restoration of possession or any claim of compensation by the petitioner through a miscellaneous application has been opposed by him contending that since the respondents are valid allottees there is no occasion to award any compensation to the petitioner on the allegation that they are in unlawful possession.
Having heard learned counsel for the parties and having perused the affidavits on record, it would be appropriate to refer to the orders by the Consolidation Authorities as it is the stand of the respondents that the name of the petitioner and the entries in her favour already stood expunged on 16.1.1989 and that she has no right, title or interest either in her own right or on contest against Radhey Shyam.
From the record, it appears that the petitioner had filed the record of rights (Khataunis) of 1369 fasli (1962 AD), 1373 fasli (1964 AD) and the Khataunis prepred after the consolidation operations were over in 1400-05 fasli (1993-1995 AD). According to the said records, the names of the original tenure holders namely Radha Krishan Khaitan and others had been expunged and the name of one Radhey Shyam had been entered as the tenure holder of the land in dispute. As against this Khatauni no evidence to the contrary was led before the Prescribed Authority or has been brought on record before this Court, and the said Khataunis are referred to in the order of the Prescribed Authority dated 1.9.2008. The burden was discharged by the petitioner but the State failed to rebut the same. The Prescribed Authority therefore rightly proceeded to hold in favour of the petitioner.
The petitioner claimed possession over the land and contest her rights existing prior to 24th January, 1971, which is the date of vesting under the Ceiling Act. It is this claim that was a subject matter during the consolidation operations. It was therefore a dispute between Radhey Shyam and the petitioner and the tenure holder Radha Krishna Khaitan and others do not appear to have disputed the said claim or having claimed any rights over the same. The U.P. Consolidation of Holdings Act, 1953 provides for a forum of settlement of all rights of tenures of agricultural holdings. The Act makes provisions for filing of objections and seeking of such declaration. Thus it is a forum where such a declaration can be sought. In the instant case, the petitioner had sought declaration as against Radhey Shyam who was the recorded tenure holder according to the Khataunis of 1369 and 1373 fasli as referred to by the prescribed authority in the order dated 1.9.2008. Thus the claim of the petitioner was in relation to her pre-existing rights which she claims to have acquired prior to 24th January, 1971 against Radhey Shyam and the recorded tenure holders. It is this accrued right which culminated in the passing of the order by the Consolidation Officer during the U.P. Consolidation of Holdings Act, 1953 on 3.5.1981.
The Ceiling Act as urged by the learned Additional Chief Standing Counsel provides that such declaration after the appointed date i.e. 14.1.1971 cannot form the basis of any impediment for the Ceiling Authorities to take an independent decision in relation to the claim of rights over the land affected by the Ceiling Act, 1960. The State, therefore, wants to contend that since the said land was the holding of Radha Krishna Khaitan and others, therefore, it was rightly included in the notice under Section 10(2) of the Ceiling Act against the said tenure holder. The declaration of surplus therefore was in the hands of Radha Krishna Khaitan and others, and as such in the submission of the State any subsequent declaration of rights of the petitioner cannot confer any benefit on her to seek exemption of land from the ceiling limits of Radha Krishna Khaitan.
The aforesaid submission on behalf of the State has to be rejected, inasmuch as, what the petitioner claims is a right which she says had accrued in her favour before 24.1.1971. Accordingly, the petitioner had a right to be put to notice and in my opinion, the decision of this Court in the case of Shantanu Kumar Vs. State of U.P. and others reported in 1979 ALJ Pg. 1174 which still holds the filed is squarely applicable. The notices which had been issued against Radha Krishna Khaitan and others ought to have been scrutinised first to find out as to whether the petitioner or her rival claimant Radhey Shyam who was claiming occupation of the land had any objection to the same or not. The State does not appear to have fully complied the provisions of Rule 8 of the U.P. Imposition of Ceiling on Land Holdings Rules, 1961. It is evident from the narration in paragraph 8 of the writ petition that at least the petitioner was never put to notice by the Ceiling Authorities and they proceeded to declare the land as surplus in the hands of Radha Krishna Khaitan and allotted the same. This was done oblivious of the claim of the petitioner. The petitioner therefore in her own independent capacity had a right to object and as such the failure to give notice to the petitioner and at the same time including it in the notices of Radha Krishna Khaitan and others was a patent error. Nonetheless, the Ceiling Authorities have entertained the objection of the petitioner under Section 11(2) of the Act and the prescribed authority has allowed the same for reasons given therein.
Coming to the issue of the orders passed by the Consolidation Courts, it appears from the order dated 16.1.1989 that it was an order of reference under sub-section (3) of Section 48 under the 1953 Act annulling the orders dated 25.8.1975 in the case of Radha Krishna Khaitan Vs. Radhey Shyam and the order dated 3.5.1981 passed by the Consolidation Officer in the case of the petitioner Smt. Kalawati Vs. Radhey Shyam. The rights of the petitioner had been accepted by the Consolidation Officer by these orders. The Settlement Officer Consolidation prepared a reference on 17.12.1988 on the basis of a report of the Consolidation Officer dated 26.10.1988 and the orders passed by the Consolidation Officer were annulled with a direction to the Settlement Officer Consolidation to verify the correctness or otherwise of the status of the orders passed by the Consolidation Officer and then pass an appropriate order. It is on the strength of this order dated 16.1.1989 that the State contends that the claim of rights under the Consolidation Act has been annulled and the order in favour of the petitioner dated 3.5.1981 is non-existent.
The counter affidavit in paragraph 6 further states that once the said order dated 16.1.1989 had been passed, the claim of the petitioner against Radhey Shyam or the claim of Radhey Shyam itself becomes non-existent, hence, the subsequent order passed by the Deputy Director of Consolidation dated 29.7.1991 is of no consequence. Coupled with this, the counter affidavit reiterates the stand as urged by the learned Additional Chief Standing Counsel that the order being after 24th January, 1971 even otherwise does not confer any title in view of the provisions of sub-section (6) and sub-section (8) of Section 5 of the Act.
The petitioner in response to this stand has filed a copy of the order dated 29th July, 1991 passed by the Deputy Director of Consolidation which has also been referred to in the counter affidavit of the State. This categorically records that the order dated 16.1.1989 discussed hereinabove was ex-parte and has been set aside whereafter fresh notices were issued after due publication in a newspaper "Swatantra Varta". The Deputy Director of Consolidation referred to the order dated 3rd May, 1981 passed by the Consolidation Officer in the dispute between the petitioner and Radhey Shyam and after verifying the records passed a fresh order that the name of the petitioner shall stand recorded in terms of the order dated 3rd May, 1981.
In my opinion, the contention of the State that this order does not confer any title on the petitioner is misconceived, inasmuch as, the order dated 29th July, 1991 categorically refers to the setting aside of the ex-parte order dated 16.1.1989 and maintaining of the order dated 3rd May, 1981. It is not the case of the State that this order dated 29th July, 1991 has not been passed. To the contrary, the contention is that this order becomes non-est as the earlier reference has been accepted by the Deputy Director of Consolidation. The argument is misconceived and contrary to record, inasmuch as, the order dated 29th July, 1991 categorically restores the status of the petitioner under the order of the Consolidation Officer dated 3rd May, 1981 after recording that the order dated 16.1.1989 being ex-parte has been set aside. The order dated 29.7.1991 has not been challenged by the State or any other person and still subsists.
Conversely, the argument of the State that the order of the Consolidation Authority has to be ignored if accepted as suggested, then according to the very stand of the State, the order dated 16.1.1989 passed by the Deputy Director of Consolidation becomes non-est. The State therefore cannot rely on the same for this additional reason.
The subsequent order of the Naib Tehsildar which has been brought on record as Annexure CA-2 to the counter affidavit of the respondents 6 to 14 therefore also being an order of mutation on the basis of the order dated 16.1.1989 looses its significance. The said order has been passed overlooking the order passed by the Deputy Director of Consolidation on 29th July, 1991.
The contention of Sri S.K. Chaubey for the allottees that writ petition no. 25547 of 1996 was filed against the mutation order has been dismissed and therefore the said entries prevail is misconceived, inasmuch as, the said writ petition has been dismissed in default on 9.3.2011 without taking notice of the order of the Deputy Director of Consolidation dated 29th July, 1991 and it has been informed by the learned counsel for the petitioner that a restoration has also been filed which is pending consideration. Nonetheless, the said writ petition relates to only mutation of consequential entries in the register malikan and was not a writ petition in relation to the proceedings that have now arisen under the Ceiling Act. That was a writ petition of the year 1996 and was concerned only with regard to the status of the litigation as was then existing whereafter the petitioner filed her regular objection under sub-section (2) of Section 11. A perusal of the order of the said writ petition indicates that the challenge was in relation to Annexure 7 of the writ petition which was correction of entries in the register maintained for the said purpose and was thus only a summary proceeding. The dismissal of the said writ petition ex-parte therefore, will have no impact or bearing on the present proceedings which have now culminated in the passed of the appellate order on 15.12.2010. The appeals have been decided under a statutory substantive provision under Section 13 of the 1960 Act as such orders of mutation passed in summary proceedings would stand superseded.
The order of a Consolidation Authority therefore in relation to a pre-existing right i.e. a right prior to the date of vesting 24.1.1971 is valid evidence and can be looked into by the Ceiling Authorities. The question of exemption or otherwise would therefore be dependent on the establishment of such a fact which relates prior to 24th January, 1971.
The checks contained under the Ceiling Act in the provisions referred to by the learned Additional Chief Standing Counsel are only to ensure that no proceedings are undertaken by the tenure holder to avoid the declaration of surplus land on the basis of any collusive decree or any declaration of court and as such the provisions have been included so as not to create any impediment in the proceedings under the Ceiling Act, 1960. This is not to say that any valid decree or any acquisition of title which relate backs prior to the date of vesting cannot be looked into. It is a matter of not very uncommon knowledge that litigation in relation to rights under the Consolidation Act, 1953 continue for decades together. To illustrate if a right which has accrued prior to 24th January, 1971 and was being bona-fidely contested by any person, and if the litigation in the various hierarchy of courts upto the apex court travel beyond the 24th January 1971, then it cannot be said that such judgements have to be put aside and kept exclusively out of consideration. The intention of the legislature is to keep out such judgements and decrees if it is found that the litigation was generated with the sole objective of avoiding the ceiling proceedings.
In the instant case it is not the stand of the State Government either in the counter affidavit. The petitioner is neither stated to be an interloper nor her status in any way identifiable as ostensibly claiming the land for the tenure holders against whom notices had been issued. There is no material led by the State either before the prescribed authority or even in the counter affidavit before this Court to establish the same. It is therefore not the case of the State alleging any collusion nor is there any such evidence adduced before the prescribed authority or this Court. The petitioner on the other hand was claiming possession against Radhey Shyam who was claiming his rights on the basis of the entry referred to hereinabove. The petitioner was therefore found to have secured her rights under the order of the Consolidation Officer dated 3rd May, 1981. She was therefore in possession not as an ostensible owner of the original tenure holder but in her independent right. The State has taken a stand that since the Consolidation Authorities themselves have not found the declaration to be valid, therefore, no right accrues to the petitioner and even otherwise the order being passed after 24th January, 1971 is unacceptable.
Both these grounds as discussed hereinabove are untenable on record and even as a measure of law, for the conclusions drawn hereinabove, the submission on behalf of the State which has been reiterated by the allottees is unsustainable and therefore the order of the prescribed authority on merits also does not suffer from any infirmity.
Coming to another vital aspect of the matter, apart from the merits of the claim of the petitioner it is undisputed that the appeals filed by the State and by the allottees have been dismissed. The allottees have not carried the litigation any further. There is nothing in the counter affidavit to indicate that any attempt has been made by the State to file a fresh appeal after permission from the competent authority. In the absence of any such averment on record or even at the time of submissions the proceedings are final in terms of Section 13 of the 1960 Act. The said provision attaches finality to proceedings and the appeals having been dismissed even otherwise does not allow, at least the allottees, to raise any contention as they have no rights left to be agitated.
Coming to the provisions of the Act for the purpose of allotment, the land which is declared as surplus becomes subject matter of allotment. This is subject to any objections being entertained and allowed under Section 10 and Section 11 of the Act. The orders passed by the prescribed authority under Section 10 and 11 are appealable and possession can be taken only thereafter that is the decision in the appeal.
In the instant case the land had been incorrectly declared as surplus in the hands of Radha Krishna Khaitan and others whereas the title vested as claimed either in Radhey Shyam or under the orders of the consolidation authorities in favour of the petitioner. The State, therefore, had no authority to declare the land as surplus, which is now confirmed by the order of the prescribed authority dated 1st September, 2008 upheld in appeal. If the land itself is not surplus, and is liable to be exempted, then any allotment made in respect of such land automatically falls through and the allottees cannot claim any right better than that which is possessed by the State. This has also been expressed in the appellate order dated 15.12.2010. The allottees, therefore, have no subsisting right and as such the learned Commissioner committed a manifest error in observing otherwise. It is not understood as to by what logical reasoning the learned Commissioner came to the conclusion that the petitioner ought to have filed an appeal and the appellate authority could have restored the land. This logic is patently perverse, inasmuch as, the order of the prescribed authority dated 1.9.2008 was in favour of the petitioner and there was no occasion for her to file an appeal. Even otherwise the proceedings for cancellation of lease under Section 27 (4) of the 1960 Act are meant for irregular allotments and here, the allottees have filed regular appeals which stand dismissed.
In the instant case the allotment is absolutely incompetent as the land itself was not surplus. It was not an issue relating to the regularity of the process of the allotment for the Commissioner to assume jurisdiction on the filing of an appeal by the petitioner. In my opinion, the learned Commissioner has completely misunderstood the aforesaid provisions and therefore fell in error in annulling the impact of the subsequent order of the prescribed authority dated 30.12.2008.
There is one more clarification which may be made at this stage, namely, that it appears that the ceiling proceedings were initiated against Radha Krishna Khaitan and others initially in district Deoria and continued thereafter, since their land fell in the subsequently bifurcated district of Kushninagar, at Padrauna. The proceedings culminated at Padrauna before the prescribed authority. This land which is under dispute in the present writ petition is now under the subsequently bifurcated district of Maharajganj, portion whereof has been taken out from the district of Gorakhpur and district of Deoria. Under Rule 5(2) of the U.P. Imposition of Ceiling on Land Holdings Rules, 1961, if the agricultural holdings are spread out in several districts, the proceedings can go on in one of the districts only where the holdings of the tenure holder is situate. The holdings of Radha Krishna Khaitan and others were spread over in the district of Kushinagar as well. It is in this background that the proceedings went on before the ceiling authority at Padrauna, Kushninagar without any notice to the petitioner who was in possession over the disputed land in the district of Maharaj Ganj. It is for this reason that the petitioner filed her objections under sub-section (2) of Section 11 before the prescribed authority at Padrauna, Kushinagar as the main order had been passed there. Accordingly proceedings were well within the jurisdiction of the prescribed authority at Padrauna, Kushinagar in terms of Rule 5(2) of the U.P. Imposition of Ceiling on Land Holdings Rules, 1961.
For the reasons given hereinabove the writ petition is partly allowed and the observation made by the learned Commissioner for annulling the order dated 30.12.2008 is set aside. It is further held that the Commissioner committed an error in observing that limitation will not apply in case any appeal is filed by the State in future. The law of limitation as prescribed under the Act is a statutory imposition and it cannot be annulled by the Commissioner by making such an observation. It is something different that if a party files a time barred appeal it can always seek exemption by way of a delay condonation application. Nonetheless, in the instant case no such appeal having been preferred, the orders of the prescribed authority dated 1.9.2008 are final as there is no challenge to the order of the appellate authority by the State and the allottees.
In my opinion, the petition deserves to be allowed to the aforesaid extent. The writ petition is therefore partly allowed with a further direction to the respondent no. 3 and 4 to give effect to the orders passed by the respondent no. 5 on 1.9.2008 and 30.12.2008 forthwith and restore the possession of the petitioner without any further delay. The respondents 6 to 15 will hand over peaceful possession to the petitioner over the plot in dispute and in case they resist, it shall be open to the respondent nos. 3 and 4 to use adequate force for enforcement of the said order of the prescribed authority as upheld in appeal. The respondents 6 to 15 are in unlawful occupation as per orders of the prescribed authority dated 1st September, 2008. In the event they fail to handover possession to the petitioner they shall be evicted forthwith and it shall be open to the petitioner to claim adequate compensation from the respondents 6 to 15. This stage would arrive only if the respondents fail to handover possession to the petitioner. The writ petition and the application dated 31st March, 2011 moved for claiming compensation stand disposed of accordingly.
The petition is partly allowed.
Dt. 17th January, 2012 Sahu