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2018 DIGILAW 652 (ALL)

Jagdish Prasad v. Commissioner Saharanpur Divi

2018-03-16

SIDDHARTHA VARMA

body2018
JUDGMENT : 1. After a notice was issued in the year 1976 under Sections 10(2) of the U.P. Imposition of Ceiling on Holdings Act, 1960 the respondent no.4 replied to it. However, inadvertently he included those plots of land also which were sold to the petitioner earlier on 27.9.1967 treating them as his own. The prescribed authority on 21.4.1977 ultimately declared 7 bighas 5 biswas of land as surplus of the respondent no.4 and when the respondent no.4 was required to give his choice about surrendering of the surplus land then he gave a choice which included the land of the petitioner as well which was measuring 5 bighas and 4 biswas. Of course the remaining 2 bighas and 1 biswa surplus land was taken out from the holding of the respondent no.4. When possession was being taken, the petitioner filed a recall application on 7.12.1987 which was dismissed in default on 2.1.1989. Therefore, to get the order dated 2.1.1989 recalled another restoration application was again filed on 26.2.2011. The prescribed authority dismissed the recall application on 27.6.2012 and the Commissioner on 30.8.2012 dismissed the appeal. Being aggrieved thereof the petitioner filed the instant writ petition. 2. Learned counsel for the petitioner has submitted that the petitioner who was a tenure holder on the date when land was declared surplus was residing at Panipat and therefore on account of absolute lack of knowledge, could not file the recall applications in proper time. The further submission of the learned counsel for the petitioner is that had the respondent no.4 not included the land which was sold to the petitioner on 27.9.1969, as his own land then the land of the respondent no.4 would have been declared surplus after taking his land alone into account. He submits that the action of respondent no.4 cannot be justified and can be termed as a fraudulent act. Learned counsel for the petitioner relied upon 2010 (3) ADJ 470 (Jeet Narain and another vs. Govind Prasad and others) and submitted that it is settled law that fraud vitiates even the most solemn proceedings. He submits that the action of respondent no.4 cannot be justified and can be termed as a fraudulent act. Learned counsel for the petitioner relied upon 2010 (3) ADJ 470 (Jeet Narain and another vs. Govind Prasad and others) and submitted that it is settled law that fraud vitiates even the most solemn proceedings. He also relied upon AIR 2005 SC 3110 (State of Andhra Pradesh and another vs. T. Suryachandra Rao) and submitted that the tenure holder therein had surrendered as surplus a land which was already an acquired land and the Supreme Court had held that since this was a fraudulent act at the behest of the tenure holders the Authorities could look into the matter at a later stage. Similarly the learned counsel submitted that in the instant case also the authorities had found that fraudulently the tenure holder had surrendered a land which was not his then the orders should have been recalled. 3. Learned counsel for the respondent in his reply submitted that there was no fraud on his part because it appeared that the petitioner had treated the land of the petitioner as his own land owing to some inadvertent mistake. He should not have included the land which he had sold out. He submits that the respondent no.4 was unaware of the reply which was given on in his behalf by his lawyer and, therefore, wrongly the land which was already sold out was included. He also submits that since the land which was sold out to the petitioner was treated as his own land he was also put to harm as needlessly his land was declared surplus. He further submits that had his lawyer known that the land was not his he would have definitely included this fact in his reply and no land of his own would have been declared surplus. 4. The learned Standing Counsel when was specifically asked that why he had included the land of the petitioner in the land of the respondent no.4 then he had submitted that the prescribed authority had no option but to include the land of the petitioner in the land of the respondent no.4 as there was a report of the Lekhpal dated 7.5.1977. 5. 5. Having heard the learned counsel for the parties, I am of the view that the petitioner cannot be punished for something which had been inadvertently done by the respondent no.4 and the State. It appears that due to some mistake the land of the petitioner was included in the holding of the respondent no.4 and, therefore, the orders had been passed. No man in his senses would include the land which had been sold out to someone as his own and get his own land declared surplus. Since the land of the petitioner was wrongly clubbed to the holding of the respondent no.4 and this act was detrimental to both the petitioner and the respondent no.4 it cannot be said that there was any element of fraud in the acts of the respondent no.4. Further, since the petitioner's land was treated as surplus for no fault of his, I hold that the delay which had occurred in filing the restoration applications should have been condoned and the recall applications should have been heard on merits. 6. Under such circumstances, the order dated 30.8.2012 and the order dated 27.6.2012 passed by the Commissioner and the Prescribed Authority and the order dated 2.1.1989 are recalled. The application which was filed on 7.12.1987 by the petitioner is now restored to its original number. The petitioner and the respondent no.4 would appear before the prescribed authority and the prescribed authority shall pass orders within a period of one month from the date of presentation of a certified copy of this order on the initial recall application and if it is found that the land actually was sold to the petitioner on 27.9.1967 then the prescribed authority shall review its orders dated 15.6.1976 and 21.4.1977. 7. The writ petition is allowed.