Research › Search › Judgment

Allahabad High Court · body

2004 DIGILAW 627 (ALL)

RAM BAHADUR ALIAS LAXMI PRASAD v. COLLECTOR

2004-03-19

ARUN TANDON

body2004
JUDGMENT : Arun Tandon, J. Heard Sri N.B. Nigam on behalf of the Petitioner and Sri S.K. Singh Counsel on behalf of the Respondent Nos. to 17 as well as standing Counsel on behalf of the Respondent Nos. 1 to 4. 2. This writ petition is an example of abuse of process of the Court by a person filing successive writ petitions and obstructing the allotment of surplus land to poor persons for whose interest the U.P. Imposition of Ceiling on Land Holdings Act was enacted. This Court is deeply shocked with the manner in which successive writ petitions have been filed before this Court and interim orders obtained time and again. 3. The relevant facts for decision of the writ petition are that proceedings u/s 10 (2) were initiated against the Petitioner under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, as early as in the year 1975. 4. The Petitioner filed objections. The objections were considered and the prescribed authority by means of the order dated 15th June, 1976, declared 22.5 acres as surplus in terms of irrigated land. Against the said order of the prescribed authority, the Petitioner filed an appeal before the District Judge, Hamirpur, being Appeal No. 523 of 1976. 5. On 11th November, 1976, the appeal was allowed and the appellate authority reduced the area of surplus land to 11.2 acres in terms of irrigated land. Against the said order the Petitioner filed Writ Petition No. 1025 of 1977 (First writ petition), which was allowed by this Court on 4th September, 1978 and the matter was remanded to the District Judge for reconsideration of the appeal filed by the Petitioner. 6. On remand the District Judge by means of the order dated 16th December, 1979, allowed the appeal and reduced the area of the surplus land to 7.82 acres. Despite the aforesaid order having been passed, the Petitioner does not claim to have exercised any choice in respect of the land to be taken as surplus. 7. The prescribed authority, subsequent to order dated 16th December, 1979, passed an order on 11th March, 1980 directing that chak No. 81, which belonged to Petitioner be declared surplus. 8. On an application being filed by the Petitioner, the order dated 11th March, 1980 was recalled by the prescribed authority on the ground that the same was an ex parte order. 8. On an application being filed by the Petitioner, the order dated 11th March, 1980 was recalled by the prescribed authority on the ground that the same was an ex parte order. The prescribed authority, after recalling the order dated 11th March, 1980, passed an order on 26th February, 1981 and required the Lekhpal to submit his comment with regard to choice submitted by the Petitioner. From the said order, which has been enclosed as Annexure-1 to the writ petition, it is apparently clear that the Petitioner had already exercised his choice inasmuch as the order reads as follows: 9. The Petitioner had exercised his choice on 20th March, 1980. It is, thus, clear that the Petitioner had exercised the choice prior to the passing of the order dated 26th February, 1981. 10. The prescribed authority thereafter by means of the order dated 18.4.1981, after obtaining the report from the Tehsildar, rejected the choice exercised by the Petitioner and directed that chak No. 81, total area 7.82 acres irrigated, be declared as surplus. 11. Against the aforesaid order of the prescribed authority, Petitioner (as stated in paragraph 4 of the writ petition) had filed Appeal No. 12 of 1981. It is further alleged in the said paragraph that the said appeal was dismissed by the District Judge on 24.8.1981. However, liberty was given to the Petitioner to exercise fresh choice of plot other than the choice which has been earlier exercised by the Petitioner by means of application dated 20.3.1980. 12. Against the said order of the District Judge, the Petitioner filed Writ Petition No. 14117 of 1981 (second writ petition) and again succeeded in obtaining an ex parte order. This writ petition has been dismissed by this Court on 19th October, 1984. However, the order passed by this Court has not been brought on record. Similarly the order dated 24.8.1981 passed by the District Judge in appeal has also not been brought on record. 13. Against the order dated 19th October, 1984, it is claimed that the Petitioner had filed SLP before the Hon'ble Supreme Court. The number of said SLP is 15250 of 1985. It has not been stated as to when the SLP was filed and dismissed. 13. Against the order dated 19th October, 1984, it is claimed that the Petitioner had filed SLP before the Hon'ble Supreme Court. The number of said SLP is 15250 of 1985. It has not been stated as to when the SLP was filed and dismissed. In the writ petition it has not been mentioned as to whether the SLP was entertained by the Hon'ble Supreme Court or not and as to whether at any point of time any interim order was granted by the Hon'ble Supreme Court. The date of dismissal of the appeal has also been concealed in the writ petition. 14. From the record it is apparent that the Petitioner in order to install the proceedings before the prescribed authority made another application that possession of land in question be not taken as SLP is pending. This Court is unable to see how this application could be filed specifically when there was no interim order in the special leave petition. Thus, there is deliberate attempt on the part of the Petitioner to avoid dispossession from the surplus land on one pretext or other. 15. On the basis of his application, requiring the prescribed authority not to take possession of the surplus land despite the writ petition and the SLP have been dismissed, the Petitioner started second innings of litigation. He filed appeal before the Commissioner against the order of the prescribed authority dated 12.4.1988, whereby the prescribed authority has rejected his application for not to dispossess the Petitioner as SLP of the Petitioner was said to be pending. There is no provision under the U.P. Imposition of Ceiling on Land Holdings Act under which said appeal could be filed by the Petitioner. The Commissioner also rejected his appeal on 12th September, 1988. 16. The said order of the Commissioner has also not been brought on record for the reasons best known to Petitioner. Against the said order of the Commissioner, the Petitioner filed a Writ Petition No. 12732 of 1989 (third writ petition) and again succeeded in obtaining ex parte stay order, whereby his dispossession was stayed. 17. Surprisingly, after more than 5 years the Petitioner got the aforesaid Writ Petition No. 12732 of 1989 dismissed as not pressed. 18. Against the said order of the Commissioner, the Petitioner filed a Writ Petition No. 12732 of 1989 (third writ petition) and again succeeded in obtaining ex parte stay order, whereby his dispossession was stayed. 17. Surprisingly, after more than 5 years the Petitioner got the aforesaid Writ Petition No. 12732 of 1989 dismissed as not pressed. 18. With the dismissal of the writ petition the entire objections raised by the Petitioner with regard to his dispossession from the land in question stood adjudicated between the parties before this Court. Now it is not open to Petitioner to raise any issue with regard to the surplus land specifically chak No. 81, which was converted into plot No. 363 (for reference paragraph 13 of the writ petition) after consolidation. 19. The Petitioner, in order to further install his dispossession, now initiated third innings and filed the present Writ Petition No. 29882 of 1995 (fourth petition). In this writ petition also the Petitioner obtained an ex parte interim order whereby his dispossession has been stayed. The Petitioner is enjoying the benefit of the said interim order for last more than 9 years. The reliefs prayed for in this writ petition are as follows: (i) issue a suitable writ, order or direction in the nature of a writ of mandamus directing the Respondent not to dispossess the Petitioner from the disputed land otherwise in accordance with law and not to interfere with the possession of the Petitioner in any way, (ii) issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case, and, (iii) award cost of the petition to the Petitioner. 20. It is surprising that no order whatsoever has been challenged in the writ petition. This Court fails to understand how the Petitioner can ask for writ of mandamus restraining the Respondent from dispossessing the Petitioner from surplus land once he had himself withdrawn his earlier Writ Petition No. 12732 of 1989 referred to above. It is needless to point out that dispossession of the Petitioner was only a consequential action on the orders passed by the prescribed authority and the Commissioner declaring the land of the Petitioner as surplus. Once the Petitioner had failed in his action against the original orders, he cannot be permitted to challenge the consequential action taken thereto. It is needless to point out that dispossession of the Petitioner was only a consequential action on the orders passed by the prescribed authority and the Commissioner declaring the land of the Petitioner as surplus. Once the Petitioner had failed in his action against the original orders, he cannot be permitted to challenge the consequential action taken thereto. As a matter of fact, the writ petition was only an attempt to reopen the chapter, which has been closed with the dismissal of the earlier writ petition filed by the Petitioner by couching the relief in different words. The Petitioner was not justified in filing the present writ petition. This writ petition was barred by the principles of constructive res judicata as explained by the Hon'ble Supreme Court in Gurbux Singh Vs. Bhooralal, AIR 1964 SC 1810 ; D. Cawasji and Co. and Others Vs. State of Mysore and Another, (1975) 1 SCC 636 and Commissioner of Income Tax, Bombay Vs. T.P. Kumaran, (1996) 10 SCC 561 . This writ petition, as a matter of fact, was legally not maintainable and deserves to be dismissed. 21. The Petitioner, against the order of prescribed authority dated 23rd April, 1988, whereby plot No. 362 was earmarked as surplus land to be allotted to the persons entitled to the same, filed an application dated 20th November, 1990, u/s 27 (4) of the Act before the Commissioner and obtained an ex parte interim order again on 28th November, 1990. The Commissioner has rejected the application on 30th November, 1995, against which the Petitioner had filed the Writ Petition No. 8473 of 1996 (fifth petition) challenging the allotment of the surplus land made in favour of Respondent Nos. 5 to 17 who were admittedly the persons entitled to allotment of the surplus land in accordance with the provisions of U. P. Imposition of Ceiling on Land Holdings Act. This writ petition is not legally maintainable in view of the earlier writ petition filed by the Petitioner, referred to above, as also in view of the dismissal of his Writ Petition No. 29882 of 1995. The allotment of land is only consequential action. This writ petition is not legally maintainable in view of the earlier writ petition filed by the Petitioner, referred to above, as also in view of the dismissal of his Writ Petition No. 29882 of 1995. The allotment of land is only consequential action. Any infirmity or illegality in the procedure of allotment, as alleged by the Petitioner, cannot be a concern of the Petitioner as he is neither an applicant for allotment of the land nor has any right or interest in the allotment of the surplus land. It is apparent that the Petitioner has filed this writ petition only to complicate the issue before this Court and some how or other prolong the pendency of the writ petition by getting Writ Petition No. 8473 of 1996 connected with the Writ Petition No. 29882 of 1995. 22. From the facts, which have been stated above, it is apparently clear that the ceiling of the Petitioner was declared finally on 16th December, 1979 and for last more than 25 years the Petitioner, by series of litigations and writ petitions has remained in possession over the surplus land. As already noticed above, the proceedings initiated by the Petitioner subsequent to dismissal of his SLP by the Hon'ble Supreme Court, were totally unfounded and without authority of law. The Petitioner for last 20 years by initiating uncalled for proceedings and by filing successive writ petitions has succeeded in installing the purpose for which U.P. Imposition of Ceiling on Land Holdings Act has been enacted. The conduct of the Petitioner is highly unsatisfactory and disentitles him to any relief under Article 226 of the Constitution of India. 23. However, contention raised on behalf of the Petitioner may be considered. It is stated by the Counsel appearing on behalf of the Petitioner that there is a lacuna in Section 14 of the U.P. Imposition of Ceiling on Land Holdings Act inasmuch as the said section does not take into consideration the order which are passed u/s 12 of the U.P. Imposition of Ceiling on Land Holdings Act after objections are filed by the tenure holder. The said contention raised on behalf of the Petitioner is totally misconceived and it is a clear case of misreading of Section 14. The said contention raised on behalf of the Petitioner is totally misconceived and it is a clear case of misreading of Section 14. Further, admittedly, the Petitioner had filed an appeal u/s 13 of the U.P. Imposition of Ceiling on Land Holdings Act against the order of the prescribed authority. The ceiling limit of the Petitioner was finally determined under the appellate order. Section 14 specifically take care of the order passed u/s 13 and for possession of the surplus land being taken thereafter. In such circumstances, the Petitioner could not have raised the issue which has been submitted on his behest as referred to above. 24. It is further contended on behalf of the Petitioner that there is no order of the prescribed authority declaring chak No. 81 (now plot No. 362) as surplus. It is contended that the order, whereby chak No. 81 was declared as surplus dated 11.3.1980 had been recalled by the prescribed authority by means of the order dated 25.2.1981 and thereafter the Petitioner was permitted to exercise his fresh choice under order of the District Judge passed in Appeal No. 12 of 1981. The said contention raised by the Petitioner appears to be attractive on the face of it. However, in legal scrutiny same is found hollow. It has not been disputed by the Petitioner that both the District Judge as well as prescribed authority by means of his order dated 20.3.1980 had given an option to Petitioner to exercise a fresh choice other than one which had been exercised by him by means of his application dated 20.3.1980. The writ petition is completely silent as to what was done by the Petitioner in that regard. The Petitioner has not informed this Court as to whether the fresh choice as exercised by him or not subsequent to the order of the District Judge dated 24.8.1988 and subsequent to the dismissal of his writ petition as well as the SLP against the same. If the Petitioner himself has not decided to exercise a fresh choice despite liberty being granted by the authorities as well as this Court, the Petitioner cannot be permitted to turn around and seek this remedy in writ petition. There is no illegality in taking possession over the chak No. 81 which was subsequently converted into plot No. 362. If the Petitioner himself has not decided to exercise a fresh choice despite liberty being granted by the authorities as well as this Court, the Petitioner cannot be permitted to turn around and seek this remedy in writ petition. There is no illegality in taking possession over the chak No. 81 which was subsequently converted into plot No. 362. The Petitioner cannot be permitted to approach this Court for the relief to permit him to exercise a fresh choice in respect of surplus land as Petitioner has not exercised his choice despite opportunity earlier. 25. Reference is made to the provisions of Section 14 of the U.P. Imposition of Ceiling on Land Holdings Act, which only provides for an opportunity to be afforded to the tenure holder to give his choice before any land is taken as surplus. The said section does contemplate that if the choice is not exercised by the tenure holder, the authorities, under the U.P. Imposition of Ceiling on Land Holdings Act, shall remain silent and would not declare certain plots of the tenure holders as surplus. In the facts of the case it is apparently clear that the Petitioner was afforded opportunity to exercise his choice, which he deliberately did not do so and as such the prescribed authority was justified in declaring the chak No. 81 (now plot No. 362) as surplus. 26. From the fact, which have been stated above, this Court has no doubt that the Petitioner has misused the process of this Court and he has retained possession, by filing successive applications and writ petitions, of the land which was declared surplus as early in the year 1979. 27. In such circumstances, the Petitioner must necessarily be required to pay cost for the aforesaid attempt made by him. This Court feels that Rs. 40,000 is fair and sufficient to be fixed as exemplary cost. The amount of cost should be deposited by the Petitioner with the District Magistrate, Hamirpur, within one month from today. Failing which the District Magistrate shall recover the said amount from the Petitioner as arrears of land revenue and shall report compliance to this Court. The money so realised would be transmitted to Legal Aid Services Authority High Court, Allahabad, for being used as an assistance to poor litigants. 28. With these directions, the writ petition is dismissed. Interim order, if any, stands vacated. 29. The money so realised would be transmitted to Legal Aid Services Authority High Court, Allahabad, for being used as an assistance to poor litigants. 28. With these directions, the writ petition is dismissed. Interim order, if any, stands vacated. 29. The copy of this order be issued to Sri Piyush Shukla, standing Counsel, for being communicated to the District Magistrate, Hamirpur.