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2015 DIGILAW 3439 (ALL)

Radhey Shyam Yadav v. State of U. P.

2015-11-02

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. – Heard Sri A.P. Tewari, learned counsel for the petitioners and learned Standing Counsel for the State respondents. 2. This petition has been filed by the petitioner seeking a writ of certiorari for quashing the orders dated 17.02.1997 and 24.09.2015 passed by the Deputy Director of Consolidation. It appears that ceiling proceedings were drawn against one Shailesh Saran and certain land was declared surplus in his hands. An appeal filed against the order of the prescribed authority dated 31.03.1995 was dismissed on 30.01.1997. 3. The case of the petitioner is that 1.55 acres of land which was the bhumidhari land of the petitioner was included in the land declared surplus in the hands of Shailesh Saran, the tenure holder. The petitioner therefore, filed an application under Section 11 (2) of the U.P. Imposition of Ceiling of Land Holdings Act, 1961. The Prescribed Authority by its order dated 14.05.1998 excluded 1.55 acres of the petitioner's land from the ceiling khata. 4. However, in pursuance of the orders dated 31.03.1995 affirmed vide order dated 30.01.1997 in appeal, a reference appears to have been prepared for excluding the land declared surplus since in the meantime consolidation operations had intervened. 5. The reference was prepared by the Consolidation Officer on 15.02.1997 and the same was accepted by the Deputy Director of Consolidation on 17.02.1997. Accordingly, a parwana amaldaramad was also issued. 6. Since, the order in favour of the petitioner on his application under Section 11 (2) was passed subsequently the petitioner filed an application dated 05.12.1998 seeking recall of the order of the Deputy Director of Consolidation accepting the reference on the ground that the reference had been prepared and accepted ex-parte. 7. This application of the petitioner was allowed by the Deputy Director of Consolidation on 29.01.2004 and plot nos. 173 and 268 were ordered to be recorded in the name of the petitioner after excluding them from the ceiling khata. 8. Aggrieved by the order, the allottees filed an appeal no. 63/14/M before the Commissioner. This appeal was allowed vide order dated 22.05.2004. The order dated 29.01.2004 in favour of the petitioner was set aside and the matter was remanded back for a fresh consideration after hearing the State as also the allottees. 8. Aggrieved by the order, the allottees filed an appeal no. 63/14/M before the Commissioner. This appeal was allowed vide order dated 22.05.2004. The order dated 29.01.2004 in favour of the petitioner was set aside and the matter was remanded back for a fresh consideration after hearing the State as also the allottees. A further direction was issued to consider as to whether the Deputy Director of Consolidation was competent to pass an order as regards the land which was the subject matter of ceiling proceedings. 9. Against this order of remand passed by the Commissioner, the petitioner filed writ petition no. 25025 of 2004, which was ultimately dismissed with certain observations. The petitioner filed an application on 01.12.2011 in reference no. 12 wherein the recall application of the petitioner was pending as a result of the order of remand passed by the Commissioner. It is this recall/modification application which has been dismissed by the order impugned. 10. The contention of learned counsel for the petitioner is that the recall application was wrongly rejected on the ground of pendency of certain cases which have no bearing as regards the claim of the petitioner. He submits that the order dated 14.05.1998 passed by the Prescribed Authority holding that 1.55 acres of land belonging to the petitioner be excluded from ceiling khata has attained finality not having been challenged at any stage and, therefore, the Deputy Director of Consolidation had rightly passed an order in favour of the petitioner and the recall application has wrongly been rejected. 11. Upon hearing learned counsel for the parties and upon a perusal of the record, it emerges that by the order dated 29.01.2004, plot no. 173 area 11.61 acres and plot no. 268 area 1.35 acres were ordered to be excluded from the ceiling khata to be recorded as the bhumidhari of the petitioner. The respondent no. 2 while rejecting the recall application of the petitioner has observed that another case was decided by the Prescribed Authority vide order dated 03.12.2005. This case was Savitri v. State. By the order passed in this case certain land was excluded from ceiling proceedings. Against this order an appeal filed by the State was allowed and the order in favour of the Savitri was set aside and plot no. 173 area 11.51 acres and plot no. 268 area 1.45 acres or village Katka Urf Parvatahai was declared surplus. By the order passed in this case certain land was excluded from ceiling proceedings. Against this order an appeal filed by the State was allowed and the order in favour of the Savitri was set aside and plot no. 173 area 11.51 acres and plot no. 268 area 1.45 acres or village Katka Urf Parvatahai was declared surplus. Against this order a restoration application filed by the petitioner was allowed and the appeal is still pending consideration. It is therefore clear that plot no. 173 and plot no. 268 are the subject matter in the pending appeal. It is these very plots which had been ordered to be recorded in the name of the petitioner. 12. In such view of the matter, the contention of learned counsel for the petitioner is that the case of Savitri has no bearing as regards the rights of the petitioner cannot be accepted. 13. Even otherwise this court is of the opinion that the facts of the case of Savitri v. State are not before this court and, therefore, the issue raised cannot be conclusively decided by this Court. 14. Moreover, there appears no justification for this court to enter into this controversy, especially in view of the fact that the order passed at the appellate stage in the case of Savitri has been recalled at the instance of the petitioner himself. The petitioner are therefore participating in the pending proceedings and final adjudication therein will clarify the situation. 15. I, therefore, see no ground to interfere with the impugned order. 16. The writ petition is liable to be dismissed on an additional ground also. The appeal filed by the allottees against the order dated 29.01.2004 passed by the Deputy Director of Consolidation exempting the petitioner's land was allowed on 22.05.2004, also with the observation that the recall application of the petitioner be decided a fresh after examining as to whether the consolidation courts were competent to pass orders as regards the land which was declared surplus in ceiling proceedings. The implication being that the question as to whether certain land of the petitioner was liable to be excluded from the ceiling khata was a decision to be taken by the ceiling authority and not by the consolidation Courts. The implication being that the question as to whether certain land of the petitioner was liable to be excluded from the ceiling khata was a decision to be taken by the ceiling authority and not by the consolidation Courts. The impugned order has been passed also on the ground that the Deputy Director of Consolidation Maharajganj has no jurisdiction to pass orders as regards ceiling proceedings. 17. Accordingly, the reference proceedings have been set aside as a whole. The petitioner had merely sought modification of the order passed in the reference proceedings. Since, the reference has been dismissed as a whole, the order in favour of the petitioner whereby the order in reference was modified, also ceases to exist. 18. Moreover, even in my considered opinion, the consolidation courts have no right to adjudicate as regards the ceiling proceedings and the land to be declared surplus etc. 19. It is further clear from the discussion above that the issue of land declared surplus in the hands of Shailesh Saran does not appear to have attained finality and the proceedings in this regard are still pending. 20. The petitioner must participate in the proceedings so that the situation is clarified and appropriate orders in his favour, if necessary, may be passed as regards his claim by the ceiling Courts. 21. Accordingly and subject to the aforesaid observations, this writ petition is dismissed. Petition dismissed.