Allahabad High Court
Jamal Ahmad And Another vs State Of U.P. And Others on 6 February, 2012
Author: A.P. Sahi
Bench: A.P. Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.5 CIVIL MISC. WRIT PETITION NO. 70479 OF 2011 Jamal Ahmad And Another Vs. State Of U.P. And Others ***** Hon'ble A.P. Sahi,J.
Heard Sri R.C. Singh learned counsel for the petitioner and perused the affidavits exchanged between the parties including the supplementary affidavit dated 13.12.2011. Sri Sanjay Goswami, learned Additional Chief Standing Counsel has advanced his submissions on behalf the respondent State.
The petitioners claim themselves to be the tenure holders of the land in dispute and have claimed possession over the land from prior to the appointed date under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. They are claiming possession and title over the land independently prior to 24th January, 2011 and for which evidence has been led by them.
Their objections were rejected by the prescribed authority against which the petitioners preferred an appeal. The appeal was dismissed on 20.4.1995 in which there was an interim order existing. The petitioners also filed a review application before the appellate authority. The learned Additional Commissioner (Administration), Gorakhpur on 12.8.1999 reviewed the order dated 20.4.1995 and allowed the appeal of the petitioners. While doing so, the learned Commissioner relied on the judgment and decree dated 30.7.1975 passed by the Sub Divisional Officer, Hata in a suit under Section 229B of the U.P. Z.A. & L.R. Act. Apart from this other evidence was also filed and the appellate authority came to the conclusion that the land in dispute as claimed by the petitioner was not surplus.
The writ petition filed by the petitioners was dismissed as withdrawn on 21.10.2011.
The respondent authorities while proceeding with the case of Bhagwati Singh and others, passed orders in relation to the petitioners' claim which according to the petitioners could not have been done, that too even without putting the petitioners to any notice or opportunity on the mere application of the D.G.C. Revenue. The supplementary affidavit also questions the correctness of the said application filed on behalf of the D.G.C. Revenue and the jurisdiction of the learned Commissioner to entertain the same.
This Court entertained the writ petition and passed the following order on 7.12.2011 staying the operation of the order of the learned Commissioner whereby directions had been issued for taking criminal action against the petitioners.
The order dated 7.12.2011 is extracted herein below:-
"Admit.
The contention raised on behalf of the petitioners is to the effect that the Commissioner has proceeded totally ex-party to them and has entertained an application dated 16.11.2011 through the D.G.C. Revenue, Ram Swarup Pandey, on whose advice, it appears that the entire action has been taken against the petitioners for passing the impugned order.
The allegations in the application are to the effect that the order under review dated 12.8.1999, came to be passed with the connivance of Mr. Shyam Lal, the then Additional Commissioner. This application was moved in the appeal filed by Bhagwati Singh, where an order has been passed at Issue No. 9 recording findings against the petitioners.
Sri Singh submits that the petitioners were never put to notice and as a matter of fact a review application/recall application according to learned Additional Advocate General Sri V.K. Singh has been moved in the appeal of the petitioners that had been finalized on 12.8.1999. According to him the next date fixed in the said appeal is 14th December, 2011.
Sri R.C. Singh learned counsel for the petitioners submits that the order dated 12.8.1999 is still intact and has not been recalled. On the contrary a novel method has been adopted by the D.G.C. Revenue in connivance with the present Commissioner who has obtained the application and passed the impugned order even without putting the petitioners to notice in the appeal filed by Bhagwati Singh. These facts have been categorically stated in the writ petition.
In view of the aforesaid submissions raised, prima facie the learned Commissioner has adopted a procedure which is not only in violation of principles of natural justice but is even otherwise contrary to law. It is further relevant to mention that while passing an order under Section 13 of the 1960 Act, on an application the maintainability whereof is questionable, it is not open to the Commissioner to issue instructions for lodging an F.I.R. against the petitioners.
On repeated queries neither the learned Additional Advocate General or any of the assisting counsel could point out any provision under the Ceiling Act 1960 empowering the Commissioner to take such an action at a prima facie level.
What is surprising is that the D.G.C. Revenue himself has moved an application for recall of the order dated 12.8.1999 which is in favour of the petitioner and is still pending consideration. So long as the said application was still pending, at least there was no occasion in the present proceedings against Bhagwati Singh to have passed an order to lodge an F.I.R. against the petitioners. This prmia facie amounts to tendering a false information to the Police at the behest of the Commissioner and therefore it might be punishable under Section 182 of the Indian Penal Code.
The learned Additional Advocate General will produce the records by Tuesday to enable the Court to proceed to consider the lodging of an F.I.R. against the Commissioner or his subordinate officials for tendering false information. The learned Additional Advocate General shall also make available the communication between the D.G.C. Revenue and the learned Commissioner on this issue so as to preview the complicity of the counsel advising the Commissioner. The learned Additional Advocate General shall also inform the court as to whether the F.I.R. has been lodged or such instructions have been withdrawn by the respondents.
In view of the manner in which the petitioners are sought to be dislodged from their holdings, the proceedings cannot be termed less than something mala-fide and they warrant immediate interference.The operation of the entire order dated 23.11.2011 has been stayed by this court in W.P. No. 70490 of 2011 Bhagwati Singh & Ors Vs. State of U.P. & Ors.
Accordingly, until further orders of the Court the operation of the impugned order dated 23.11.2011, in so far as it relates to the petitioners shall also remain stayed and the respondents are further restrained from interfering with the possession of the petitioners in any manner whatsoever over the land in dispute.
A copy of this order may be given to the learned Standing Counsel free of charges and learned counsel for the petitioners today on the payment of usual charges."
The learned Commissioner during the pendency of the writ petition filed an affidavit on 12th December, 2011 and after entertaining the said affidavit the following order came to be passed on 13.12.2011, quoted hereinunder:-
"This matter had been adjourned to enable the learned Standing Counsel to inform about the steps taken by the Commissioner and also about the query raised by this Court in the order dated 7.12.2011. Today an affidavit of the Commissioner Mr. K.R. Naik has been filed by the Additional Chief Standing Counsel Mr. R.B. Pradhan.
A supplementary affidavit has been filed by Sri R.C. Singh learned counsel for the petitioners bringing on record certain additional facts relating to this dispute. The records in the Office of the learned Commissioner relating to the proceedings have also been placed before the Court. The records relating to Writ Petition No. 70490 of 2011 have also been perused by the Court.
After having perused the affidavit of the Commissioner, it appears that certain over enthusiastic orders came to be passed which did not reflect a judicious discretion while proceeding to deal with a matter under Section 13 of the 1960 Act. The Commissioner has tendered his unconditional apology for the same. The Commissioner's affidavit further discloses that the F.I.R. which had been lodged was investigated upon. In the absence of any offence having been made out against the petitioners, a final report has been submitted. It is expected that all the respondent authorities shall not pursue the said proceedings any further. The affidavits filed today are taken on record.
The records as well as the supplementary affidavit filed by the petitioners today further disclose certain facts which deserve to be taken judicial notice of. An application was moved by the D.G.C. Revenue Mr. Ram Swarup Pandey on this application. The Commissioner has passed orders on 1st December, 2011.
Sri R.C. Singh describes that these applications are antedated and orders are also antedated. Nonetheless one thing is certain from the records which has been placed before the Court that no date was fixed in the proceedings for 1st December, 2011. It is therefore evident that without there being any date fixed in the matter the applications were received and an amendment application was also allowed together with a Stay Application which was allowed without issuing notice to the petitioners.
Prima facie, in the opinion of Court, even assuming for the sake of arguments that these applications had already been moved earlier and prior to the filing of the writ petition, yet such orders being passed ex-parte behind back of the petitioners reflects malice in law and avoidance of the procedure prescribed in law. They appear to have been passed apparently on wrong legal advice.
Accordingly, in the background of the case and the circumstances, the operation of all the orders passed on 1.12.2011 shall remain stayed and further it is necessary not to allow the proceedings to go on so long as writ petition is pending disposal before this court. Accordingly, all further proceedings before the Commissioner Gorakhpur Division shall also remain stayed.
Learned Additional Chief Standing Counsel has prayed for time to file counter affidavit. Let the same be filed by the date fixed.
List on 3rd January, 2012 along with the records of Writ Petition No. 70490 of 2011."
The first question is in relation to the maintainability of the applications filed by the D.G.C. Revenue including the recall application against the order dated 12.8.1999.
In the opinion of the Court, if the said application was being entertained, then the minimum which was required was at least a notice to the petitioners. This having not been done, the orders impugned passed on the said applications, are a nullity.
Apart from this, the stand of the State appears to be that the order dated 12th August, 1999 was passed on illegal considerations. If the order dated 12.8.1999 on a review application filed by the petitioners was considered to be an illegal exercise then the remedy of the State was to assail it further. The State does not appear to have filed any writ petition assailing the order dated 12.8.1999.
The stand taken in the counter affidavit appears to be as if the order had gone ex-parte to the State and that the State did not have any knowledge about the same. Sri Goswami has taken the Court through the recall application filed before the learned Commissioner which states that the order dated 12.8.1999 was ex-parte. This cannot be accepted as the order dated 12.8.1999 categorically recites at three places that the counsel for the State had been heard on the review application filed by the petitioner. So long as this finding is not dislodged, and material evidence is not placed on record to indicate that State was absolutely unrepresented, a recall application would not entertainable.
Sri Goswami further contends that the judgment and decree in the suit under Section 229B dated 30.7.1975 deserves to be ignored in view of the provisions of Section 5 and Section 6 of the 1960 Act. It is no doubt true that the legislature has made a provision for ignoring judgements and decrees which might have been obtained on account of any fraud or collusion so as to avoid the ceiling proceedings.
In the instant case the respondents themselves have brought on record the judgment and decree dated 30.7.1975. While deciding issue nos. 1 and 2, the competent authority has recorded that the State of U.P. was duly represented and one Mr. Uma Shanker Lal the Clerk of the Ceiling Department has given his statement. This is sufficient to establish that the ceiling authorities were duly represented in the aforesaid suit which was contested by the State. The Gaon Sabha had put in appearance through the Gram Pradhan who had also admitted the case of the petitioners. In such a situation it cannot be readily presumed that any collusive judgment and decree was being made the basis of the claim. Nonetheless, the order of the Additional Commissioner dated 12.8.1999 had been passed taking notice of the said fact. It appears for this reason that the order dated 20.4.1995 was reviewed as the order dated 20.4.1995 did not record any independent finding on this issue except affirming the order of the prescribed authority. Whether the order dated 12.8.1999 on review was permissible or not could have been questioned by the State by filing an appropriate petition but there is nothing on record to indicate as to why no action was taken in this regard when all of a sudden while deciding the ceiling appeal of Bhagwati Singh the present issue has been raked up without putting the petitioners to notice.
In my opinion, the procedure adopted by the learned Commissioner by entertaining the application and then proceeding to decide it without putting the petitioners to notice is a clear exercise of excess of jurisdiction. The learned Commissioner should not have hastily proceeded to have entertained the application and passed orders simultaneously one after the other on 1.12.2011 on the application moved by the D.G.C. Revenue. The order impugned dated 23.11.2011 Annexure 7 to the writ petition has already been quashed by this Court in Writ Petition No. 70490 of 2011. Consequently, the orders dated 1.12.2011 that were passed on the applications filed against the petitioners are all set aside.
In the event the Commissioner comes to the conclusion that he has jurisdiction to entertain any application on behalf of the State against the petitioners then he shall first decide any such objection on this issue to be taken by the petitioners on the maintainability of the recall application. The writ petition is accordingly allowed. The impugned orders including the orders dated 1.12.2011 as brought on record through the supplementary affidavit are all quashed.
The writ petition is allowed.
Dated: 6.2.2012 Sahu