Heard Sri S.P. Mishra, learned standing counsel for petitioner State and Sri Sujeet Kumar, learned counsel for the sole respondent, Kunwar Singh.
This writ petition arises out of proceedings under U.P. Imposition of Ceiling on Land Holdings Act, 1960. Proceedings for determination of surplus land under the Act were initiated against the recorded tenure holder Smt. Khoshin (Ghosin) by issuing notice under Section 10(2) of the Act dated 08.02.1974 which was served upon her on 30.03.1974. The tenure holder mainly contended that she had gifted part of her holding to Harmukh, Dilip Singh and Girdhari, her alleged grand sons. She also contended that some of her plots were wrongly shown as irrigated while in fact those plots were unirrigated. The Prescribed Authority under the Act through order dated 30.12.1974 substantially rejected the contentions of the tenure holder Smt. Khosin and declared 17.51 acres irrigated land (out of total area of 49 acres) held by her as surplus land after leaving 18.84 acres irrigated land with her. After amendment of the Act fresh notice in the year 1976 was issued and the Prescribed Authority through order dated 30.06.1976 declared that Smt. Khosin possessed 23.89 acres irrigated land as surplus. Smt. Khosin did not pursue the matter further and gave her choice under Section 12-A of the Act for the land which should be taken as surplus land through application dated 22.09.1976. The application was allowed on 15.11.1976 by the Prescribed Authority. Thereafter, possession of the surplus land as per choice of the tenure holder Smt. Khosin was taken by the State Government as per possession memo prepared by the Prescribed Authority dated 29.12.1976 which consisted of plots Nos.77, 93 and 126 of village Pothari and Plot No.39 of village Khitabita.
Harmukh and others (alleged grand sons and donees of tenure-holder Smt. Khosin) filed objections under Section 11(2) which were rejected by the Prescribed Authority on 31.10.1978. Harmukh and others filed appeal against the said order, which was rejected on 03.04.1979. Thereafter, they filed Writ Petition No.3692 of 1979, which was dismissed on 25.11.1980. Thereafter, S.L.P. was filed in the Supreme Court, which was also dismissed on 06.04.1984. Third round of litigation/ objection was initiated by one Inderjeet by filing application under Section 11(2) of the Act. The said application was also rejected on 03.08.1979. Against the said order, Appeal No.20 of 1979 was filed which was dismissed by District Judge, Mathura on 10.01.1980, copy of which is Annexure-11 to the writ petition.
The fourth round of litigation/ objection was initiated by respondent. In the year 1992 (on 31.03.1992) he filed application for recall of orders dated 30.06.1976 and 15.11.1976 (declaring surplus land and accepting the choice of Smt. Khosin). Copy of the application is Annexure 12 to the writ petition. The Prescribed Authority rejected the objections of respondent on 25.01.1994, however the said order was set aside by the Additional Commissioner in appeal through order dated 28.08.1995 and matter was remanded to the Prescribed Authority. After remand Prescribed Authority again rejected the application of respondent through order dated 11.02.1997, copy of which is Annexure-15 to the writ petition. Against the said order appeal was filed which was dismissed on 26.08.1997. After three years respondent filed recall application before the Appellate Court on 23.08.2000. Appellate Court set aside its earlier order dated 26.08.1997 through order dated 18.06.2005. Thereafter, Appellate Court allowed the appeal through judgment and order dated 20.02.2007 reducing the surplus area from 23 acres to 14.83 acres of plot Nos.77 and 126 of village Pothari. True copy of the judgment dated 20.02.2007 is Annexure-1 to the writ petition which has been challenged through this writ petition.
Appeal has been allowed only on the ground that in the earlier order of 30.06.1976 certain plots were wrongly treated to be irrigated while they were in fact un-irrigated hence, ratio of 1:1.5 should have been maintained which was not done at the earlier instance by the Prescribed Authority.
In the application, respondent stated that he was the only legal representative of Smt. Khosin, however he did not disclose that how he was related to Smt. Khosin. The most wonderful thing is that the Commissioner in the impugned judgment did not say a single word as to how the respondent was legal representative of Smt. Khosin. Neither relationship was disclosed by respondent or discussed by the lower appellate court nor respondent anywhere mentioned that after death of Smt. Khosin whose name was entered in the revenue record over the agricultural land left behind by her and whether name of the respondent was ever recorded in the revenue record over the land left behind by Smt. Khosin or not. In the application filed by respondent in 1992 he stated that he was 20 years of age and Smt. Khosin died on 16.06.1976. Accordingly, he must be four years of age in June, 1976. He further stated that due to his minority he knew nothing about the affairs of Smt. Khosin or her agricultural land. It was not stated that after the death of Smt. Khosin who was looking after her agricultural land.
In any case, the question that particular plot was irrigated or unirrigated earlier decided by the Prescribed Authority could not be reopened on the basis of the same evidence. It is only when due to subsequent change unirrigated land becomes irrigated that fresh proceedings under Section 29 of the Act may be initiated.
Prescribed Authority has got no power to review in such matters. Even otherwise on the basis of relevant evidence finding of certain plots being irrigated was recorded by the Prescribed Authority in the year 1976. In the impugned order it has not been stated that how the said finding was erroneous. Only in half sentence finding has been recorded by Sri Sriram, Additional Commissioner, Agra Division, Agra in the impugned judgment dated 20.02.2007 in Appeal No.1 of 1977 to the effect that on the basis of evidence he was of the opinion that land was un-irrigated. In the earlier part of the impugned judgment, only the argument of appellant has been noticed that khasras of 1378F, 1379F and 1380F supported his contentions, however, it has not been mentioned by the lower appellate court/ Additional Commissioner that what is the actual entry in the said khasras regarding nature of land; irrigated or unirrigated. The allegation of the respondent in the application that Smt. Khosin had died on 16.06.1976 was utterly untenable and not supported by any evidence. In fact Smt. Khosin had filed an application indicating her choice of the plots which she wanted to surrender on 22.09.1976, copy of which is Annexure-6 to the writ petition. Lower appellate court did not decide as to whether Smt. Khosin was dead on 30.06.1976 or 15.11.1976 as alleged by the respondent? The judgment passed by the Additional Commissioner is utterly absurd and is passed only for the benefit of the respondent.
Prima facie I am of the opinion that the said judgment has been passed on extraneous considerations as the same is hundred percent erroneous in law and utterly without jurisdiction.
Accordingly, writ petition is allowed. Impugned order is set aside. State Government is directed to immediately initiate disciplinary proceedings against Sri Sri Ram, who was Additional Commissioner, Agra Division, Agra on 20.02.2007 for deciding the Appeal No.1 of 1997, Kunwar Singh Vs. State of U.P. in an utterly illegal manner and prima facie for extraneous consideration.
Office is directed to supply a copy of this order free of cost to Sri S.P. Misra, learned standing counsel.
Order Date :- 20.11.2012 NLY