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2016 DIGILAW 3943 (ALL)

Bindeshwari v. State of U. P.

2016-12-07

MANOJ KUMAR GUPTA

body2016
JUDGMENT Manoj Kumar Gupta, J. – By means of this writ petition, the petitioner has challenged the order dated 10 June 2016 passed by the third respondent (Commissioner, Gorakhpur Division, Gorakhpur) allowing the application filed by Gunjeshwari Devi, predecessor-in-interest of respondent Nos. 5 to 7 under section 27(4) of the U.P. Imposition of Ceiling of Land Holdings Act, 19601, as well as the order dated 17 October 2016 rejecting the restoration application filed by the petitioner. 2. The facts, in brief, are that certain land of Gunjeshwari Rai was declared surplus under the provisions of the Act. The authorities executed pattas in respect thereof in favour of the petitioner and several other persons. However, in appeal filed by him, the Appellate Authority modified the order of the Prescribed Authority and held that out of 4.95 acres earlier declared as surplus, only 14 decimal is surplus. The said order has attained finality. Gunjeshwari Rai thereafter filed an application for cancellation of the lease executed in respect of the land, which has not been found to be surplus by the Appellate Authority. The application was rejected by the Commissioner by order dated 12 October 1992. Aggrieved by the said order, Gunjeshwari Rai filed Writ C No. 496 of 1993, which was allowed by this Court by order dated 4 November 2011 and the order passed by the Commissioner rejecting the application filed under section 27(4) of the Act was quashed and the matter was remitted for a fresh consideration. Thereafter, the third respondent, after hearing the private respondents as well as the allottees, allowed the application in part. The pattas executed on 4 December 1982 over 14 decimal of land of Village Kaithawaliya alias Baragadahi were maintained whereas, in respect of remaining land, it was cancelled. The District Magistrate was required to deliver possession of the 1 Act land to the private respondents in respect of which the patta has been cancelled. A further recommendation was made that in case any other land of Gaon Sabha is available, then the case of the allottees whose lease has been cancelled be considered subject to eligibility. It seems that after the passing of the said order, when possession was sought to be delivered to the private respondents, the petitioner, who was one of the allottees affected by the order passed by the Commissioner, applied for setting aside of the said order. It seems that after the passing of the said order, when possession was sought to be delivered to the private respondents, the petitioner, who was one of the allottees affected by the order passed by the Commissioner, applied for setting aside of the said order. The application has been rejected by order dated 17 October 2016. The petitioner is, therefore, before this Court challenging the validity of these orders. 3. It is urged by learned counsel for the petitioner that the Commissioner while passing the order dated 10 June 2013 has made a recommendation to the District Magistrate to allot some other land to the petitioner and other allottees. However, it has not been done so far, while on the other hand, the petitioner is sought to be dispossessed. 4. On the other hand, learned counsel for the contesting respondents submitted that the order passed by this Court dated 4 November 2011 in Writ C No. 496 of 1993 has attained finality. It is urged that once the land in respect of which patta was executed in favour of the petitioner has not been found to be surplus land, it ceased to vest in the State Government and consequently, the patta executed in respect of the said land in favour of the petitioner has been rendered void, thus, there is no illegality in the order passed by the Commissioner cancelling the patta and in directing the District Magistrate to hand over possession of the land to the original tenure holders. 5. I have considered the submissions made by learned counsel for the parties and perused the record. 6. It is not disputed before this Court that the order of the Appellate Authority passed in appeal filed under the Act holding only 14 decimal of land to be surplus, has attained finality. Thus, the pattas executed in respect of the remaining land have ceased to remain valid. Accordingly, there does not appear to be any illegality in the order of the third respondent dated 10 June 2013 in cancelling the patta in respect of the land, which ceased to be surplus land under the Act. Consequently, the direction for handing over possession to the original tenure holders is also perfectly justified. Accordingly, there does not appear to be any illegality in the order of the third respondent dated 10 June 2013 in cancelling the patta in respect of the land, which ceased to be surplus land under the Act. Consequently, the direction for handing over possession to the original tenure holders is also perfectly justified. The recommendation to the District Magistrate to allot some other land to the allottees, whose pattas have been cancelled is not a condition precedent for handing over possession in respect of the land for which patta stood cancelled by the order passed by the Commissioner. The petitioner does not have any vested right to claim allotment of some other land of Gaon Sabha in his favour before handing over possession of the land in respect of which patta has already been cancelled. In the opinion of the Court, no illegality has been committed by the third respondent by passing the impugned orders. However, in case any alternative site is available and the petitioner applies for grant of patta in his favour, his application be considered in accordance with law. 7. The writ petition stands dismissed with the aforesaid observations. Petition Dismissed