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2014 DIGILAW 977 (ALL)

Ramu and Another v. State of U. P. and Others

2014-03-27

RAM SURAT RAM (MAURYA)

body2014
Ram Surat Ram (Maurya),J. Heard Sri A.P. Tewari, counsel for the petitioners and Sri H.N. Singh, Senior Advocate assisted by Sri Dileep Kumar Srivastav, Sri Omkar Nath Rai and Standing Counsel, for the respondents. 2. The writ petition has been filed for quashing the order of Commissioner Gorakhpur Division, Gorakhpur, dated 20.01.2014, passed in the proceeding under Section 27(4) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act), by which the application of the petitioners filed on 28.07.2001, for recalling the order dated 20.05.1978 canceling lease of the petitioners, was rejected. 3. It has been stated that in the proceeding under the Act against Severahi Sugar Mills, land in dispute was declared surplus. Sub-Divisional Officer Padrauna executed a lease deed dated 30.12.1973 of plot 1136-M (area 3.12 acre) of village Sapha, tahsil Padrauna, district Deoria, in favour of Dinanath under the provisions of Government Grant Act, 1895. Subsequently, on the report of Tahsildar dated 08.02.1976, the Commissioner initiated proceeding (registered as Case No. 132/D of 1976) under Section 27 (4) of the Act, by order dated 29.05.1976 for cancellation of the lease deed. The Commissioner, by order dated 20.05.1978, held that surplus land ought to have been allotted to the landless schedule castes persons of the village first. Dinanath was not resident of the village Sapha as such he was not coming in preferential category. On these findings, lease deed dated 30.12.1973 was canceled and the Collector was directed to take possession over the land allotted to Dinanath. Thereafter, the land in dispute was allotted to Balister and others (respondents-3 to 7) in the year 1983. 4. Dinanath filed an application dated 28.07.2001 for recall of the order dated 29.05.1976, along with delay condonation application. In the recall application, it has been stated that the lease was granted to Dinanath under the provisions of Government Grant Act, 1895, of plot 1136-M (area 3.12 acre) of village Sapha, tahsil Padrauna, district Deoria. On its basis his name was recorded over the land in dispute. In consolidation new plot number 899 has been allotted and recorded in the name of Dinanath, who has become bhumidhar of it. Dinanath was residing in Delhi and no notice of the proceedings under Section 27 (4) of the Act was served upon him. Order dated 20.05.1978 was exparte against him. In consolidation new plot number 899 has been allotted and recorded in the name of Dinanath, who has become bhumidhar of it. Dinanath was residing in Delhi and no notice of the proceedings under Section 27 (4) of the Act was served upon him. Order dated 20.05.1978 was exparte against him. He through out remained in possession over the land in dispute and was paying rent/revenue of it. Additional Commissioner, by order dated 12.06.2002 allowed the recall application and restored the case to its original number. 5. Balister and others (respondents-3 to 7) filed an application dated 16.02.2009 for recall of the order dated 12.06.2002, on the ground that after cancellation of lease of Dinanath by order dated 20.05.1978, the land in dispute was allotted to them in the year 1983 and they have become bhumidhar of it. Initially the recall application was rejected. Balister and others filed Writ-C No. 51117 of 2011, which was allowed by order dated 13.06.2011 and the matter was remanded to the Commissioner to decide the recall application afresh. Thereafter notices were issued to the parties and the matter was heard by the Commissioner, who by the impugned order dated 20.01.2014 found that order dated 12.06.2002 was passed without any notice to State of U.P. and recall application of Dinanath was allowed without assigning any reason. Order dated 20.05.1978 was passed after hearing Dinanath who contested the matter and was not an exparte order. There was no cause for condonation of inordinate delay of about 24 years in filing the recall application. Land in dispute was allotted to Balister and others in the year 1983. The proceedings for cancellation of pattas of Balister and others was started in the year 1994 but on the application of State of U.P. that case was dismissed as withdrawn by order dated 20.12.1994. The fact that Balister and others have sold the land in dispute on 28.11.2008 does not affect their right to file an application to recall the order dated 12.06.2002. The order dated 20.05.1978 was passed after hearing Dinanath, recall application after a period of about 24 years was not maintainable and there is no explanation of inordinate delay. Additional Commissioner illegally allowed the recall application without condoning the inordinate delay of about 24 years. The order dated 20.05.1978 was passed after hearing Dinanath, recall application after a period of about 24 years was not maintainable and there is no explanation of inordinate delay. Additional Commissioner illegally allowed the recall application without condoning the inordinate delay of about 24 years. On these findings, the recall application filed by Balister and others was allowed and recall application filed by the petitioners was dismissed as time barred and order dated 20.05.1978 was maintained. Hence this writ petition was filed. 6. The counsel for the petitioners submitted that no notice was served upon the father of the petitioners of the Case No. 132/D of 1976 as he was residing in Delhi in connection with his employment at that time nor he ever appeared before the Commissioner. Entire proceeding of this case was taken behind the back of the father of the petitioners. It appears that some imposter put appearance in that case and a collusive order dated 20.05.1978 was passed. On coming to know about the aforesaid order, the recall application was filed. In the circumstances of the case that notice was not served, delay ought to have been condoned. The Commissioner has illegally rejected the recall application on irrelevant consideration without recording any findings as to whether notice was ever served upon Dinanath. Additional Commissioner rightly allowed the recall application by order dated 12.06.2002. Balister and others had already sold the land in dispute through sale deed dated 28.11.2008 and left with no interest in the land in dispute as such recall application filed by them on 16.12.2009 was liable to be rejected only on the ground that they had no locus standi. The impugned order has been passed on irrelevant consideration and on non consideration of the material facts and is liable to be set aside. 7. Admittedly, by the lease deed dated 30.12.1973, right of 'Government Lessee' under Section 133-A of U.P. Act No. 1 of 1951, was conferred. As such bhumidhari right can not accrue to the petitioners over it. A perusal of the lease deed dated 30.12.1973 shows that the lease was granted on the yearly rent of Rs. 31.80 payable in six monthly installments. As such bhumidhari right can not accrue to the petitioners over it. A perusal of the lease deed dated 30.12.1973 shows that the lease was granted on the yearly rent of Rs. 31.80 payable in six monthly installments. Clause-8 of the lease deed provides that if the rent payable, whether lawfully demanded or not, shall be in arrears of two calender months or if there will be any breach of any covenant the grantor may enter upon the land. The petitioners has stated that they were in possession over the land in dispute through out and were paying its rent. In order to test the bonafide as well as contention of the petitioners, by order dated 25.02.2014, the petitioners were directed to file the rent receipts. Along with Supplementary Affidavit, a revenue receipt dated 24.03.2001 of Rs. 150/- has been filed, which does not co-relate to the land in dispute or its rent. Thus the petitioners could not prove that after 20.05.1978, they were regularly paying rent on every six month according to the terms of the lease deed. 8. A perusal of the order dated 20.05.1978 proves that Dinanath has contested the case. Allegation that Dinanath was residing in Delhi and no notice was served upon him, cannot be accepted as Dinanath never paid rent after 20.05.1978, which shows that Dinanath had knowledge of the order dated 20.05.1978 otherwise he would have continuously paid the rent. The fact that the land in dispute was allotted to Balister and others in the year 1983 and they sold it on 28.11.2009, as such, possession of the petitioners over the land in dispute is not proved, could not be rebutted by the petitioners. For condonation of inordinate delay of about 24 years, entirely concocted story has been built up. Thus there is no sufficient cause for condonation of delay. 9. The Commissioner found that order dated 12.06.2002 was passed without any notice to State of U.P. and recall application of Dinanath was allowed without assigning any reason and without condoning inordinate delay. Order dated 20.05.1978 was passed after hearing Dinanath, who contested the matter and was not an exparte order. Land in dispute was allotted to Balister and others in the year 1983. Balister and others have sold the land in dispute on 28.11.2008. Order dated 20.05.1978 was passed after hearing Dinanath, who contested the matter and was not an exparte order. Land in dispute was allotted to Balister and others in the year 1983. Balister and others have sold the land in dispute on 28.11.2008. Cumulative effect of the aforesaid findings of the Commissioner is that the petitioners were not in possession over he land in dispute after 20.05.1978. Thus delay was not liable to be condoned. The petitioners were 'Government Leasee' and they have not complied with the terms of the lease and their right came to an end in the year 1978. 10. The arguments of the counsel for the petitioners that Balister and others had already sold the land in dispute through sale deed dated 28.11.2008 and left with no interest in the land in dispute, as such, recall application filed by them on 16.12.2009 was maintainable, is not liable to be accepted as cause of action for filing recall application arose on 12.06.2002. Effect of the sale deed is that transferee can also file recall application under Section 146 C.P.C. but it does not affect the right of transferor to file the recall application as cause of action for recall application arose at the time when Balister and others had interest in the property in dispute. 11. In view of the aforesaid discussion, the writ petition has no merit and is dismissed. _______________