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2025 DIGILAW 1003 (ALL)

Deen Bandhu v. Addl. Commissioner J Faizabad

2025-07-31

IRSHAD ALI

body2025
JUDGMENT : Irshad Ali, J. 1. Heard learned counsel for the petitioners and learned Standing Counsel for the State-respondent. 2. By means of the present writ petition, the petitioner has prayed for the following reliefs :- "(i) issue a writ, order or direction in the nature of certiorari quashing the order dated 14.7.1998 contained in Annexure-2, order dated 26.3.1993 contained in Annexure-3, the order dated 27.2.1986 contained in Annexure-4, the part of the order dated 7.12.1991 passed by the opposite parties no. 1 and 2 and also the revised notice dated 28.2.1983 and the entire proceedings after summoning the original from the opposite parties. (ii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties not the implement the order dated 14.7.1998, 19.1.1998, 26.3.93, 27.2.86 and 7.12.1991 and also not to dispossess the petitioners from the land in question and also not allot the same to any one. (iii) issue a writ, order or direction in the nature of interim mandamus commanding the opposite parties not the implement the order dated 14.7.1998, 19.1.1998, 26.3.93, 27.2.86 and 7.12.1991 and also not to dispossess the petitioners from the land in question and also not allot the same to any one. (iv)... (v)..." 3. Brief facts of the case are that the prescribed authority declared 21.7.33 acres of land as surplus vide order dated 27.2.1986. Against the said order, an appeal was filed, wherein stay was granted vide order dated 19.5.1986. Thereafter, the appeal was allowed and the prescribed authority was directed to decide the issue afresh vide order dated 7.12.1991. 4. A revised notice was issued on 28.2.1983 under Section 10 (2) of the Act. On 26.3.1993, an order was passed by the Chief Revenue Officer, Bahraich in Case No.751/35/34 under Section 10 (2) of the Act. Vide order dated 19.9.1995, an order was passed by the Additional Commissioner (Judicial), Faizabad Division, Faizabad in Ceiling Appeal No.497/ Bahraich ( Nakchhad Prasad Vs. State of U.P. ). 5. Submission of learned counsel for the petitioners is that the present writ petition has been filed challenging the impugned orders and inaction on the part of respondent Nos.1 and 2 and also the action of the District Revenue Authorities by which they have proceeded to take possession and allot the same. The impugned order passed by the respondent No.1 is nullity as it has been passed against a dead person. The impugned order passed by the respondent No.1 is nullity as it has been passed against a dead person. The said order is also without jurisdiction as no order on merit could be passed unless, the legal heirs of the deceased party are substituted and brought on record, besides the same is also in violation of principles of natural justice. The order passed by the prescribed authority is also contrary to the provision of Section 4 -A of U.P. Imposition of Ceiling on Land Holding Act and thus, the same are also illegal and invalid. The respondent No.1 has proceeded arbitrarily to exercise the jurisdiction and power upon an application moved for recall of ex-parte order by rejecting it but substituting the petitioners, although the said order was passed against a dead person, vide an order dated 14.7.1998. The certified copy of the orders dated 14.7.1998, 19.1.1998 and 26.3.1993 are enclosed as Annexures-1, 2 and 3 to the writ petition. 6. In response to a notice issued under Section 10 (2) of the Act, the petitioners' father filed an objection before the prescribed authority, stating therein that he had no surplus land and also mentioned detailed facts therein upon which the prescribed authority passed an order dated 30.6.1976. A revised notice was again issued on 28.2.1983 under Section 10 (2) of the Act and on receipt of the same, the petitioners' father again filed an objection stating therein that revised notice dated 28.2.1983 is barred by limitation in view of the provisions of Sections 3 1, 3 (2) and (3) of the U.P. Act No.20 of 1976. It had also been pleaded that the entire land belonging to him is also unirrigated but the same has wrongly been shown as irrigated. In objection it has also been shown as unirrigated. In objection it was also pleaded that the land belonging to the adult sons and who are also residing separately ought not to have been clubbed with his holding and no fresh determination could be held as the prescribed authority had already passed an order dated 30.6.1976 upon the original notice issued to him. Besides the above, it was further pleaded that the land which had already been transferred could not be treated of his land, thereby clubbing the same with his holding. 7. Besides the above, it was further pleaded that the land which had already been transferred could not be treated of his land, thereby clubbing the same with his holding. 7. It is submitted that subsequently, an application for impleadment was also given by Buddho, Deen Mohamman, Jaan Mohammad, Wali Mohammad, sons of Qasim Ali, Duber Ameen son of Mustaqeem on 13.5.1983, which was allowed. 8. After framing the issues, the prescribed authority proceeded to record the evidence. The objector examined himself (Nakchhed Prasad), Jamuna Prasad and Buddho and also filed the Khatauni extracts for the 1383 fasli to 1394 fasli relating to khata Nos.76, 64 and 70 of gram Akhtiyarapur, certificate of Apar Primary Examination Chhatra Lekha Pramau Patra, so issued by the Gandhi Inter College, Bahraich, original sale deed dated 10.3.1981 whereas, the State of U.P. examined Chhotan Lal, Supervisor, Kanoongo Nanpara, the then Lekhpal Akhtiyarapur, Sri Gopalji Lekhpal, Bhilora Basu and also filed khatauni of Gram Jagdishpur for the 1387 fasli to 1392 fasli of khata Nos.88, 122, 123, 125, 127 and 128. 9. The prescribed authority declared 21.733 Acres of land as surplus vide order dated 27.2.1986. Against the said order, an appeal was filed, wherein stay was granted vide order dated 19.5.1986 and thereafter, vide order dated 7.12.1991, the appeal was allowed and the prescribed authority was directed to decide afresh. 10. Thereafter, the prescribed authority again rejected the objection dated 5.2.1993 filed by Buddho vide order dated 22.3.1993 and also rejected the objection filed by the tenure holder vide ex-parte order dated 26.3.1993. Against the said order, an appeal was filed before the Commissioner, wherein interim stay order was passed on 19.9.1995. During the pendency of the appeal, the original tenure holder Sri Nakchhed died, leaving behind the petitioners as his legal heirs and representatives on 17.11.1997. 11. The respondent No.1 proceeded in absence of the petitioner and dismissed the appeal on merit vide order dated 19.1.1998. 12. It is submitted that the petitioners had no knowledge about the date fixed in the appeal as such they could not appear and take necessary steps and the appeal was decided ex-parte on merit. As and when the petitioners came to know about the aforesaid decision on appeal, they immediately moved an application for substitution and recall of the said order in appeal. The application for recall was rejected vide order dated 14.7.1998. 13. As and when the petitioners came to know about the aforesaid decision on appeal, they immediately moved an application for substitution and recall of the said order in appeal. The application for recall was rejected vide order dated 14.7.1998. 13. Submission of learned counsel for the petitioners is that the respondent No.1 proceeded in most arbitrary manner thereby rejecting the application for recall of the order by ignoring the fact that the appellate order dated 19.1.1998 is an ex-parte order and has been passed even without hearing the appellants' counsel. It is further submitted that a notice under Section 10 (2) of the Act was issued and the prescribed authority passed an order dated 30.6.1976 and thereafter, time barred revised notice was issued on 28.2.1983 and the prescribed authority passed an order determining the surplus land on 27.2.1986 and thus, the entire proceedings are void abinitio. 14. It is further submitted that the prescribed authority misread and misinterpreted the provisions of Section 31 (2) of the U.P. Act No.20 of 1975 in rejecting the petitioners' plea that the entire proceedings are barred by time, holding that the same are not barred by time. Next submission is that the determination of surplus land could only be held within two years from 17.1.1975/10.10.1975, on the basis of revised notice, even if earlier proceeding was stayed by the prescribed authority but in the present case it has not been done and thus, entire proceeding vitiated. 15. Learned counsel for the petitioners submitted that the respondents have failed to consider that the land belonging to major sons could not be clubbed with the holding of the original tenure holder as is being done in the present case. The partition between the original tenure holder and the major sons who were coparceners was already held long ago and were residing separately but the courts below failed to consider the same while passing the impugned order. The courts below have wrongly rejected the plea that a substantial piece of land had already been transferred under unrevocable transaction vide executing registered sale deed for an adequate consideration, in good faith not being benami and sham transaction, in favour of a stranger and thus the impugned orders are illegal and invalid. 16. The courts below have wrongly rejected the plea that a substantial piece of land had already been transferred under unrevocable transaction vide executing registered sale deed for an adequate consideration, in good faith not being benami and sham transaction, in favour of a stranger and thus the impugned orders are illegal and invalid. 16. Submission is that the appellate court was not justified in remanding the matter only on the question of irrigation/ unirregation, however, all the above points are purely legal and could be raised subsequently, but the respondent No.1 erred in law in not deciding the same. It is also submitted that the State failed to lead evidence and discharge the burden of proof that the entire land is irrigated capable of yielding two crops in a fasli year and two crops have been yielded in 1378, 1379 and 1380 fasli in view of the provisions of Section 4 -A of the Act, but the courts below have wrongly held the entire land as irrigated land. 17. It is submitted that the original tenure holder had the oral and documentary evidence, thereby proved that the entire land is unirrigated and is not capable of yielding two crops but the courts below have wrongly held otherwise and thus, the impugned orders are illegal and invalid. 18. Further submission is that on perusal of the impugned orders, it shows that land of plot Nos.418 area 10 and plot No.421 area 0.80 were only recorded as irrigated in khasra 1378 fasli, 1379 fasli but even then it has wrongly been held that the entire land is irrigated and thus, the impugned orders are illegal and invalid. 19. It is submitted that a mere entry in khasra of 1381 fasli and 1372 fasli about the installation of the government tubewell by Sri Haridei and Munna Lal do not mean that the land belonging to the original tenure holder is irrigated as deposed by Triveni Prasad, Lekhpal, unless it is proved that the same comes within the effective command area and it had also been irrigated in any of the fasli year of 1378, 1379 and 1380 fasli but the same has not been proved and thus, the impugned order are illegal and invalid. It is further submitted that the aforesaid land is neither irrigated nor is capable of yielding two crops and two crops were not yielded in any of the 1378 fasli, 1379 fasli and 1380 fasli and it does not comes in effect command area and it has also not have been irrigated but the courts below have wrongly held otherwise. 20. Submission of learned counsel for the petitioners is that the order dated 19.1.1998 has been passed against a dead person and thus, the same are nullity. 21. On the other hand, learned Standing Counsel submits that the impugned orders are just and valid and does not suffer from any infirmity or illegality. 22. After having heard the submission advanced by learned counsel for the parties, I perused the material on record. 23. On perusal of the contents of the writ petition as also the submission so advanced by learned counsel for the petitioners, it is evident that the present writ petition has been filed challenging the impugned orders and inaction on the part of respondent Nos.1 and 2 and also the action of the District Revenue Authorities by which they have proceeded to take possession and allot the same. The impugned order passed by the respondent No.1 is nullity as it has been passed against a dead person. The said order is also without jurisdiction as no order on merit could be passed unless, the legal heirs of the deceased party are substituted and brought on record, besides the same is also in violation of principles of natural justice, therefore, the order being passed against a dead person and without issuing notice and opportunity of hearing, the same is liable to be quashed on this ground alone. 24. The order passed by the prescribed authority is also contrary to the provision of Section 4 -A of U.P. Imposition of Ceiling on Land Holding Act and thus, the same are also illegal and invalid. The respondent No.1 has proceeded arbitrarily to exercise the jurisdiction and power upon an application moved for recall of ex- parte order by rejecting the same. The said order was passed against a dead person, vide an order dated 14.7.1998. The orders dated 14.7.1998, 19.1.1998 and 26.3.1993 are Annexures-1, 2 and 3 to the writ petition. 25. The respondent No.1 has proceeded arbitrarily to exercise the jurisdiction and power upon an application moved for recall of ex- parte order by rejecting the same. The said order was passed against a dead person, vide an order dated 14.7.1998. The orders dated 14.7.1998, 19.1.1998 and 26.3.1993 are Annexures-1, 2 and 3 to the writ petition. 25. In response to a notice issued under Section 10 (2) of the Act, the petitioners' father filed an objection before the prescribed authority, stating therein that he had no surplus land and also mentioned detailed facts therein upon which the prescribed authority passed an order dated 30.6.1976. A revised notice was again issued on 28.2.1983 under Section 10 (2) of the Act and on receipt of the same, the petitioners' father again filed an objection stating therein that revised notice dated 28.2.1983 is barred by limitation in view of the provisions of Sections 3 1, 3 (2) and (3) of the U.P. Act No.20 of 1976. The entire land belonging to him is also unirrigated but the same has wrongly been shown as irrigated. In objection it has also been shown as unirrigated. In objection it was also pleaded that the land belonging to the adult sons and who are also residing separately ought not to have been clubbed with his holding and no fresh determination could be held as the prescribed authority had already passed an order dated 30.6.1976 upon the original notice issued to him. 26. An application for impleadment was also given by Buddho, Deen Mohamman, Jaan Mohammad, Wali Mohammad, sons of Qasim Ali, Duber Ameen son of Mustaqeem on 13.5.1983, which was allowed. After framing the issues, the prescribed authority proceeded to record the evidence. The objector examined himself (Nakchhed Prasad), Jamuna Prasad and Buddho and also filed the Khatauni extracts for the 1383 fasli to 1394 fasli relating to khata Nos.76, 64 and 70 of gram Akhtiyarapur, certificate of Apar Primary Examination Chhatra Lekha Pramau Patra, so issued by the Gandhi Inter College, Bahraich, original sale deed dated 10.3.1981 whereas, the State of U.P. examined Chhotan Lal, Supervisor, Kanoongo Nanpara, the then Lekhpal Akhtiyarapur, Sri Gopalji Lekhpal, Bhilora Basu and also filed khatauni of Gram Jagdishpur for the 1387 fasli to 1392 fasli of khata Nos.88, 122, 123, 125, 127 and 128. 27. The prescribed authority declared 21.733 Acres of land as surplus vide order dated 27.2.1986. 27. The prescribed authority declared 21.733 Acres of land as surplus vide order dated 27.2.1986. Against the said order, an appeal was filed, wherein stay was granted vide order dated 19.5.1986 and thereafter, vide order dated 7.12.1991, the appeal was allowed and the prescribed authority was directed to decide afresh. This clearly demonstrates that the impugned orders have been passed, ignoring all these materials, therefore, they are not sustainable in the eyes of law and are liable to be set aside. 28. The prescribed authority again rejected the objection dated 5.2.1993 filed by Buddho vide order dated 22.3.1993 and also rejected the objection filed by the tenure holder vide ex-parte order dated 26.3.1993. Against the said order, an appeal was filed before the Commissioner, wherein interim stay order was passed on 19.9.1995. During the pendency of the appeal, the original tenure holder Sri Nakchhed died, leaving behind the petitioners as his legal heirs and representatives on 17.11.1997. 29. The respondent No.1 proceeded in absence of the petitioner and dismissed the appeal on merit vide order dated 19.1.1998. The petitioners had no knowledge about the date fixed in the appeal and they could not appear, thus, the appeal was decided ex-parte on merit. The application for recall was also rejected vide order dated 14.7.1998, therefore, the ex-parte order passed without substituting the legal heirs, is wholly illegal and arbitrary and is liable to be set aside. 30. The respondent No.1 proceeded in most arbitrary manner thereby rejecting the application for recall of the order by ignoring the fact that the appellate order dated 19.1.1998 is an ex-parte order and has been passed even without hearing the appellants' counsel. A notice under Section 10 (2) of the Act was issued and the prescribed authority passed an order dated 30.6.1976 and thereafter, time barred revised notice was issued on 28.2.1983 and the prescribed authority passed an order determining the surplus land on 27.2.1986 and thus, the entire proceedings are void abinitio. 31. The prescribed authority misread and misinterpreted the provisions of Section 31 (2) of the U.P. Act No.20 of 1975 in rejecting the petitioners' plea that the entire proceedings are barred by time, holding that the same are not barred by time. 31. The prescribed authority misread and misinterpreted the provisions of Section 31 (2) of the U.P. Act No.20 of 1975 in rejecting the petitioners' plea that the entire proceedings are barred by time, holding that the same are not barred by time. The determination of surplus land could only be held within two years from 17.1.1975/10.10.1975, on the basis of revised notice, even if earlier proceeding was stayed by the prescribed authority but in the present case it has not been done and thus, entire proceeding vitiated in law. 32. The respondents have failed to consider that the land belonging to major sons could not be clubbed with the holding of the original tenure holder as is being done in the present case. The partition between the original tenure holder and the major sons who were coparceners was already held long ago and were residing separately but the courts below failed to consider the same while rejecting the appeal. The courts below have wrongly rejected the plea that a substantial piece of land had already been transferred under unrevocable transaction vide executing registered sale deed for an adequate consideration, in good faith not being benami and sham transaction, in favour of a stranger and thus the impugned orders are illegal and invalid. 33. The appellate court was not justified in remanding the matter only on the question of irrigation/ unirregation, however, all the above points are purely legal and could be raised subsequently, but the respondent No.1 erred in law in not deciding the same. The State failed to lead evidence and discharge the burden of proof that the entire land is irrigated capable of yielding two crops in a fasli year and two crops have been yielded in 1378, 1379 and 1380 fasli in view of the provisions of Section 4 -A of the Act, but the courts below have wrongly held the entire land as irrigated land. 34. The original tenure holder had the oral and documentary evidence, thereby proving that the entire land is unirrigated and is not capable of yielding two crops but the courts below have wrongly held otherwise and thus, the impugned orders are illegal and invalid and are liable to be quashed on this ground also. 35. 34. The original tenure holder had the oral and documentary evidence, thereby proving that the entire land is unirrigated and is not capable of yielding two crops but the courts below have wrongly held otherwise and thus, the impugned orders are illegal and invalid and are liable to be quashed on this ground also. 35. In the impugned orders, it shows that land of plot Nos.418 area 10 and plot No.421 area 0.80 were only recorded as irrigated in khasra 1378 fasli, 1379 fasli but even then it has wrongly been held that the entire land is irrigated and thus, the impugned orders are not sustainable in the eyes of law. A mere entry in khasra of 1381 fasli and 1372 fasli about the installation of the government tubewell by Sri Haridei and Munna Lal do not mean that the land belonging to the original tenure holder is irrigated as deposed by Triveni Prasad, Lekhpal, unless it is proved that the same comes within the effective command area and it had also been irrigated in any of the fasli year of 1378, 1379 and 1380 fasli but the same has not been proved and thus, the impugned order are liable to be set aside. The land is neither irrigated nor is capable of yielding two crops and two crops were not yielded in any of the 1378 fasli, 1379 fasli and 1380 fasli. All these evidence have been ignored by the respondent Nos.1 and 2. 36. On overall consideration of facts and circumstances of the entire record, it is evident that the impugned orders suffer from apparent illegality and are liable to be set aside, therefore, they are hereby set aside. The writ petition succeeds and is allowed 37. No order as to costs.