Research › Browse › Judgment

Allahabad High Court · body

1984 DIGILAW 859 (ALL)

Keshav Prasad v. 1st Additional District Judge, Gorakhpur

1984-10-16

K.C.AGRAWAL

body1984
JUDGMENT K.C. Agrawal, J. - This petition under Article 226 of the Constitution has been preferred by the petitioner against rejection of his appeal filed under Section 13 of the U.P. Imposition of Ceiling on Land Holdings Act, by the judgment dated November 25, 1981. The appeal before the District Judge has been filed by the petitioner against the order of the Prescribed Authority rejecting his application for condonation of delay on the ground that the same was not maintainable. 2. Brief facts of the present case are these. A notice under Section 10 (2) of the Act dated 19-4-1976 was served on the petitioner on 6-5-1976 proposing to declare 2.47 acres as surplus. This notice was personally served on the petitioner. He did not prefer any objection. On 22-5-1976, the Prescribed Authority declared 7.45 acres of land as surplus with the petitioner. In arriving at this finding, the Prescribed Authority found that the Lekhpal had wrongly mentioned the correct area of land which the petitioner possessed and with a view to benefit him; he incorrectly proposed 2.47 acres as surplus. The petitioner had 2.23 acres, on that basis land liable to be declared was 7.45 acres. 3. According to the papers, the Lekhpal should have shown 7.45 acres as surplus land. This was found by the Prescribed Authority to have been intentionally done by the Lekhpal. Against this order of the Prescribed Authority, an appeal was filed by the petitioner to the Civil Judge, who dismissed the same on 16-2-1978. He while dismissing the appeal held : "The learned counsel for the appellant could not show any thing to prove that the judgment of the Prescribed Authority is incorrect on merits. He simply argued that what prescribed Authority has done in this case was not open for him to do without issuing a fresh notice to the tenure holder." 4. The learned Judge further observed that if the appellant felt aggrieved, he should have filed an objection under Section 11 (2). 5. Instead of filing the objection under Section 11 (2), the petitioner preferred an application under Section 13-A of the Act which empowers an authority to correct a mistake apparent on the face of the record. The application was rejected by the Prescribed Authority on the ground of being misconceived. 5. Instead of filing the objection under Section 11 (2), the petitioner preferred an application under Section 13-A of the Act which empowers an authority to correct a mistake apparent on the face of the record. The application was rejected by the Prescribed Authority on the ground of being misconceived. The appellate authority also dismissed the appeal which had been preferred against this order of the Prescribed Authority on 28-2-1980. After rejection of the application under Section 13-A the petitioner filed application for condonation of delay simpliciter without preferring the objection on 6-6-1980. The objection was filed by him much after 7-2-1981. 6. The Prescribed Authority found that the petitioner was not prevented by sufficient cause from filing the objection under Section 11 (2) and rejected the application under Section 13-A. The petitioner went up in appeal to the District Judge. The District Judge in his elaborate judgment discussed all the pros and cons of the matter and thereafter, repelled the argument of the petitioner that he acted bona fide in good faith in tiling the application under Section 13-A. The learned District Judge noted that the appeal against the order rejecting the application under Section 13-A was decided on 28-2-1980 whereas the application under Section 5 of the Limitation Act was filed on 6-6-1980. I have already noted above that the objection itself under Section 11 (2) did not accompany the application for condonation of delay and was filed much after on 7-2-1981, In the opinion of the learned District Judge, this delay of 3 1/4 months in filing the application under Section 5 of the Limitation Act from the date of the rejection of the appeal on 28-2-1980 went unexplained. In fact, no application under Section 5 of the Limitation Act could be filed without preferring an objection itself which was filed on 7-2-1981. In fact, no application under Section 5 of the Limitation Act could be filed without preferring an objection itself which was filed on 7-2-1981. Therefore, the objection of the petitioner was filed after about one year of the dismissal of the appeal on 28-2-80 Dealing with the evidence and the wrong advice alleged to have been tendered to the petitioner, the learned District Judge observed : "It is also noticeable that none of his aforesaid lawyers had filed any affidavit to support his contention that he had earlier been wrongly advised "not to prefer any objection under Section 11 (2) and it was only at a very late stage that he was advised to file an objection under Section 11(2). Therefore, his assertion in his affidavit that he had been tendered wrong advice by his counsel is wholly untenable and un-meritorious." 7. For what I have said above, it would appear that the petitioner was not found to have acted bona fide and in good faith in preferring objection under Section 13-A after such a long delay. The Civil Judge, Gorakhpur had found the appeal filed by the petitioner determining 7.45 acres of land on 22-5-1976 to be incompetent and not maintainable. He had observed that if the petitioner wanted to file objection under Section 11 (2), he could do so. However, the petitioner did not do it. He uselessly wasted time in prosecuting the application under Section 13-A which, in the circumstances, was not maintainable. 8. For what I have said above, I do not find any merit in the three points raised before me by the learned counsel. The first point was that at the time of enhancement of the area from 2.47 to 7.45 acres, the Prescribed Authority should have given a notice to the petitioner. The petitioner had been served with the notice under Section 10 (2). He could appear at the time of disposal of the same. He did not do so. His grievance of giving fresh notice is unjustified in the circumstances of the present case. 9. The second argument of the petitioners counsel was that since the filing of the application under Section 13-A was on the basis of the advice of the counsel, the time spent in proceeding the same should have been condoned. Section 13-A could apply to case where there is a mistake apparent on the face of the record. 9. The second argument of the petitioners counsel was that since the filing of the application under Section 13-A was on the basis of the advice of the counsel, the time spent in proceeding the same should have been condoned. Section 13-A could apply to case where there is a mistake apparent on the face of the record. There was no question of any mistake. The Prescribed Authority has given reasons for enhancing the ceiling limit and had found that it was due to the connivance of the Lekhpal with the petitioner that the area of surplus land was wrongly shown as 2.47 acres instead of 7.45 acres. 10. The third submission of the petitioner was that he acted in good faith and bona fide and, as such, the delay should have been condoned. I have quoted the finding of the District judge with which I agree. There is no evidence on record to lead to the court to that conclusion. The District Judge rightly held that the petitioner was not prevented by sufficient cause in filing the objection under Section 11 (2). Over and above to that what I have said the fact as found by the Prescribed Authority by the first order was that the entire attempt of the Lekhpal was to help the petitioner unjustifiably by reducing the area from 7.45 to 2 47 acres. That being so, I do not consider the present as a fit case for interference under Article 226 of the Constitution. 11. In the result, the writ petition fails and is dismissed. No order as to costs.