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2011 DIGILAW 1569 (ALL)

RAM NARAIN GOSAIN v. STATE OF U. P.

2011-07-04

S.U.KHAN

body2011
JUDGMENT Hon’ble S.U. Khan, J.—Heard learned counsel for the petitioner, learned standing counsel for the respondent Nos. 1, 2 and 3 and leaned counsel for legal representatives of original respondent No. 4, Baij Nath Gosain. 2. This writ petition arises out of proceedings under U.P. Imposition of Ceiling on Land Holdings Act, 1960 initiated against the petitioner. Through this writ petition, the following orders have been challenged: (i) order dated 29.11.1982 passed by Prescribed Authority in Case No. 41/163, Ram Narain Gosain and others v. State and others. (ii) Order dated 7.12.1984 passed by Appellate Authority/ First A.D.J. Ghazipur in Ceiling Appeal No. 1 of 1983, Ram Narain Gosain v. State of U.P. and Baij Nath Gosain. Through the second order appeal filed against the first order was dismissed. 3. Initially Prescribed Authority declared 41 bighas and odd land as surplus with the petitioner. Against the said order appeal was filed which was allowed in part and matter was remanded for fresh decision after excluding the land of Smt. Parvati Devi measuring 10 bighas and odd. It is mentioned in the order dated 7.12.1984 that the order of the appellate Court/ III A.D.J. Ghazipur passed on 28.2.1977 was affirmed by the High Court as well as Supreme Court. Thereafter Prescribed Authority decided the case and held that 7.74 hectares land was surplus with the petitioner. Against the said order also appeal was filed being Ceiling Appeal No. 9 of 1974. 4. The impugned orders are confined only to the option. It is mentioned in the order dated 7.12.1984 that admittedly 21 bighas 14 biswas 9 biswansis land was ultimately declared as surplus with the petitioner. Accordingly, he filed an application on 27.11.1982 before the Prescribed Authority giving his option, which was accepted by the first order with the rider that an area of 5 bighas 2 biswansis which was included in the choice was not accepted as it belonged to Baij Nath Gosain, original respondent No. 4 in the writ petition. In the choice petitioner had offered entire land of village Raipur of Chak No. 61 measuring 26 bighas and odd. 5. In the choice petitioner had offered entire land of village Raipur of Chak No. 61 measuring 26 bighas and odd. 5. Before the appellate Court it was contended by the respondent No. 4, Baij Nath Gosain that in the choice application petitioner had mentioned area of 21 bighas 12 biswas 14 biswansis of Chak No. 61, however after the decision of the Prescribed Authority the figure 21 was changed to 26, which was a forgery. The argument in this regard before the appellate Court was that manipulation was evident as there was cutting in the original application. However, appellate Court held that it was not proved that change was made after delivery of order by the Prescribed Authority. It is mentioned in the appellate Court’s judgment that 5 bighas 2 biswansis land of Chak No. 61 of Village Raipur was given to Baij Nath Gosain by the petitioner vide compromise dated 12.9.1972 in between the petitioner and Sri Baij Nath Gosain hence under Section 12-A (d) of Ceiling Act, this land could not either be taken by the Prescribed Authority as surplus or be given in choice by the petitioner as surplus. 6. The forceful argument of learned counsel for the petitioner is that as the compromise was ignored and in spite of the compromise the land of 5 bighas 2 biswansis was held to belong to the petitioner hence petitioner could very well give the said land in choice. The argument of learned counsel for legal representatives of original respondent No. 4 is that as the compromise was quite genuine, hence land which was subject matter of the compromise could not be given in choice by the petitioner. 7. In my opinion, land transferred through sale-deed in between 24.1.1971 and 8.6.1973 will have to be treated in slightly different manner than the land which goes to another person through compromise in between the said dates for the purpose of giving choice even though both are treated to be at par by Explanation-I to Section 5(1) and Section 5(6) and its Explanation-I. It is piquant situation. Parties to a case are always permitted to compromise the matter. However, compromise entered into after 24.1.1971 in respect of agricultural land is to be ignored under the Ceiling Act. Parties to a case are always permitted to compromise the matter. However, compromise entered into after 24.1.1971 in respect of agricultural land is to be ignored under the Ceiling Act. In the earlier ceiling proceedings compromise must not have been found to be genuine and bona fide (copies of earlier orders have not been filed). In such contingency petitioner was also equally liable. 8. In such situation equities will have to be balanced. Both the parties will have to be made liable. Accordingly, it is held that as the compromise was ignored and the land which was subject matter of the compromise was treated to belong to the petitioner, hence petitioner was entitled to give the said land in choice to be taken as surplus land. However, he will have to compensate legal representatives of original respondent No. 4. The writ petition is therefore allowed. Both the impugned orders are set aside to the extent of 5 bighas 2 biswansis land and it is directed that the choice in respect of the said land indicated by the petitioner shall be accepted. However, petitioner is directed to re-reimburse legal representatives of original respondent No. 4 by paying an amount of Rs. 5000/- which shall be recovered from him like arrears of land revenue and paid in equal share to the respondent Nos. 4/1 to 4/3. —————