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LALLU & OTHERS versus CIVIL JUDGE & OTHERS

High Court of Judicature at Allahabad

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Lallu & Others v. Civil Judge & Others - WRIT - C No. 20080 of 1996 [2007] RD-AH 10033 (24 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

    RESERVED

CIVIL MISC. WRIT PETITION NO. 20080 OF 1996

Lallu and others  Vs.  Civil Judge, Banda and others

                       ------------------------  

Hon'ble Tarun Agarwala, J.

The petitioners are the allottees and  in possession of the land in question pursuant to an allotment order dated 24.10.1979 and are aggrieved by the orders dated 22.7.1984, 1.10.1985, 15.9.1994 and 21.9.1996.

Briefly stated the facts leading to the filing of the writ petition is that a notice under section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1972, was issued to the respondent no.4. The Prescribed Authority passed an exparte order dated 31.3.1976 declaring 6 bighas and 17 biswas of land as surplus. Pursuant to this order, the Collector took possession of the surplus land under section 14 of the Act and subsequently, lease deeds were executed in favour of the petitioners on 24.10.1979. It is alleged that pursuant to the lease deeds, the petitioners were given possession and their names were mutated in the revenue records.

It transpires that the original tenure holder namely, respondent no.4 filed an application dated 8.9.1980 for the recall of the order of the Prescribed Authority dated 31.3.1976 which was rejected. A second application was filed which was dismissed in default. A third application was filed which also dismissed in default. A restoration application against all these applications was filed which was eventually, dismissed by an order dated 31.3.1983, against which, the respondent no.4 preferred an appeal which was allowed and all the orders were set aside including the order dated 31.3.1976. The appellate court, while setting aside the order of the Prescribed Authority, remanded the matter back  to the  Prescribed Authority for fresh determination of the surplus land. This is the first order which the petitioners are aggrieved.

It transpires that the Prescribed Authority, after considering the matter, passed an order dated 1.10.1985, holding that there was no surplus land in the hand of respondent no.4 and therefore, discharged the notice issued against him. This is the second order which the petitioners are aggrieved.

It transpires that the original tenure holder moved an application under section 27(4) of the Act before the Commissioner for the cancellation of the lease executed in favour of the petitioners and for possession on the ground that since no surplus land had been declared surplus, consequently, the State authorities could not have issued any allotment order in favour of the petitioners. The Commissioner, by its order dated 19.5.1994, held that once the Prescribed Authority had found that there was no surplus land in the hand of respondent no.4, in such circumstances, the respondent no.4 should file an appropriate application under Section 144 C.P.C. for the restitution of the property and for expunging the name of the petitioners from the revenue records. This order was passed after hearing the petitioners. This is the third order  which the petitioners are aggrieved.

Pursuant to the aforesaid order of the Commissioner, the respondent no.4 filed an application under Section 144 read with Section 151 C.P.C. praying for the possession of the land in question which had wrongly been allotted to the petitioners. The notices were issued to the petitioners and after considering the objections, the Prescribed Authority, passed an order dated 29.1.1996, expunging the names of the petitioners from the revenue record and directed the Tehsildar to give possession of the land to the respondent no.4. This is the fourth order which the petitioners are aggrieved and which has been challenged in the present writ petition.

Heard Sri Gulrej Khan, the learned counsel holding the brief of Sri W.H.Khan for the petitioners, Sri Prem Chandra, the learned counsel appearing for respondent no.4 and Sri R.K.Sahi, the brief holder on behalf of the State.

The learned counsel for the petitioners submitted that the order of the appellate authority dated 22.7.1984 was wholly erroneous and could not have been passed inasmuch as the appeal filed by the respondent no.4 was not maintainable. The learned counsel further submitted that the appeal was not maintainable under Order 43 Rule 1(c) against an order dismissing the application in default for the restoration of an application. In support of his  submission, the learned counsel for the petitioners placed reliance on a decision of this Court in Gaja Vs. Farukh and others, AIR 1961 Alld. 561.The learned counsel for the petitioners further submitted that assuming that the appeal was maintainable, the appellate authority could have only remanded the matter back to the Prescribed Authority for re-consideration of the recall application but was not justified in recalling the order dated 31.3.1976. The learned  counsel further submitted that the orders dated 22.7.1984 and 1.10.1985 passed by the Prescribed Authority were exparte against the petitioners and that such an order could not have been passed without giving an opportunity of hearing to the petitioner. In support of his submission, the learned counsel for the petitioners placed reliance upon a decision of the Supreme Court in Ram Swarup and others Vs. S.N. Maira and others, (1999)1 SCC 738 in which it was held that any order passed without impleading the allottee, would be void  which would have the effect of taking away their rights. The learned counsel submitted that pursuant to the order of allotment, a lease deed was executed by the State authorities in their favour and that the petitioners had taken possession  of the land and therefore, a substantial right had been conferred upon the allottees which could not be taken away merely by the fact that the order of the Prescribed Authority had now been set aside. In my opinion, the submission of the learned counsel for the petitioners is bereft of merit.

In Durga Prasad Singh Vs. Additional Civil Judge, Azamgarh and others, 1978 AWC 32  this Court held that an appeal under section 13 of the U.P. Imposition of Ceiling on Land Holdings Act, is maintainable against an order rejecting the restoration application filed before the Prescribed Authority. I am in complete agreement with the aforesaid judgment. Further, in my opinion, the petitioners are not entitled to question the validity and legality of the order dated 22.7.1984 as well as the order dated 1.10.1985. In those proceedings, the matter was confined between respondent no.4 and the State authorities and, the petitioners, being  allottees, had no right to poke their nose.

In Moti Lal and others Vs. State of U.P. and others, 1998 (89) RD 723,this Court has held that an allottee has no right to interfere in the matter which is between the tenure holder and the State under the Ceiling Act.

In Satya Pal and others Vs. State of U.P. and others, 1986 ALJ 1232, this Court held that the lessee should be given an opportunity of hearing before the cancellation of the lease in his favour.

In Kailas and another Vs. Ist Additional District Judge, Banda and others, 1981 AWC 143 this Court held that the Prescribed Authority has inherent power to grant restitution of possession to a tenure holder.

In the present case, the authorities while exercising the powers under Section 144 C.P.C. had given ample opportunity to the petitioners before passing the impugned order. Admittedly, the Prescribed Authority found that no surplus land was held by the respondent no.4 and consequently, discharged the notice. The State Authorities did not file any appeal and therefore, the order of the Prescribed Authority dated 1.10.1985 became final. In the opinion of the Court, it was not open to the petitioners to question the validity of this order. Pursuant to the said order of the Prescribed Authority, the notices were issued to the petitioners in proceedings under Section 27(4) of the Act as well as in proceedings initiated under Section 144 C.P.C. Consequently, the direction of the Supreme Court in Ram Swarup's  and the decision in Satya Pal's case (supra) of this Court, was followed by the authorities. The petitioners were issued notices and their objections were heard. Since, the authorities came to the conclusion that no surplus land existed in the hands of respondent no.4, consequently, they were duty bound to restore the land in favour of respondent no.4.The direction given by the Prescribed Authority that the names of the petitioners should be expunged from the revenue record and the possession be restored to respondent no.4 does not suffer from any error of law. The writ petition fails and is dismissed.

Dt. May  24 ,2007

Ak/


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