Allahabad High Court
Gulmarg Awas Grah Nirman Gramin Sahkari ... vs State Of U.P. And Ors. on 22 February, 2006
Author: S.K. Singh
Bench: S.K. Singh
JUDGMENT S.K. Singh, J.
1. By means of this writ petition challenge is to the judgments of the appellate authority dated 31.3.1990 and that of the prescribed authority dated 18.12.1989 (Annexures 12 and 8 to the writ petition respectively).
2. For the disposal of the case facts in brief will be useful to be summarised.
3. Proceedings are under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, hereinafter referred to as the Act. In the proceedings under Section 10(2) of the Act which was started against the respondent No. 4 prescribed authority by its judgment dated. 28.10.74 declared an area of 22-17-0 as surplus. Respondent No. 4 give a choice including plot No. 426 and 430 etc. Appeal was filed by the respondent No. 4 against the judgment of the prescribed authority which was partly allowed and surplus land was reduced to a tune of 13-3-7. Plot offered in the choice did not cover 13-3-7 which is clear from the order of the prescribed authority dated 1.1.5.76. Writ petition was filed by respondent No. 4 in which stay was granted and thereafter that was dismissed on 10.2.78. In the year 1987 a registered agreement was executed by respondent No. 4 in favour of petitioner in respect to 46 plots (41-16) for a consideration of Rs. 15,67,500/ =. At the time of agreement to sale all the plots were shown in the name of respondent No. 4 which is clear from Khatauni extract 1390 Fasli, 93-94 Fasli. Petitioners claims that they made enquiry from the ceiling office but it was never informed that land is surplus. On 22.2.88 and 12.12.88 by means of two registered sale deed fill the plots covered by the registered agreement including plots mentioned in para 2 of the writ petition were transferred in favour of the petitioner . It is thereafter on 7.2.89 respondent No. 4 moved an application for change of his choice and instead of plot No. 266, 267 etc. he offered plot No. 418 and 419 etc. to be taken in surplus. It appears that on 28.1.89 also application for the same purpose was given but that was rejected. Petitioner on coming to know about the move of the petitioner dated 7.2.87 made application for impleadment. Petitioner annexed copy of the application of respondent No. 4 which was earlier given for change of choice which was rejected on 18.12.89. Prescribed Authority rejected application of respondent No. 4 which was moved for accepting the change in choice. Respondent No. 4 filed appeal against that order in which he did not implead the petitioner as party. On 7.2.90 petitioner filed implement application before the appellate court. Written argument was also filed along with the application dated 5.3.90. Cross objection was also filed by the petitioner along with affidavit and an application under Section 5 of the Limitation Act. Appellate court, without considering petitioner's application/objection allowed appeal of respondent No. 4 by judgment dated 31.3.90 and thus petitioners have to challenge the judgment of the appellate court dated 31.3.90 and that of the prescribed authority by which petitioner's application was rejected.
4. Submission of the learned Counsel for the petitioner is that the courts below have not properly considered the provisions as contained in Section 12-A(d) of the Act and appellate court in permitting the change of choice, accepting the land sold to the petitioner to be taken as surplus has committed an error in law. Submission is that respondent No. 4 has got more than sufficient land apart from the land sold by him to the petitioner's society which can be easily taken towards surplus land. It is pointed out that petitioners were never aware about, pendency of the proceedings and respondent No. 4 having 'pocketed more than Rupees Fifteen lakhs has changed his mind and has moved application for change in surplus land and therefore courts below were required to take into account the petitioner's contention, objection as were filed in respect to their rights but as that has not been done, judgment of the courts below are liable to be quashed.
5. In support of the submission that land which is covered by transfer is not be taken in choice reliance has been placed on the decision given in case of Rajendra Singh (Minor) v. The additional Commissioner and Ors. reported in 1989 RD, page 449. Submission is that even if for the sake of arguments it is accepted that at. any point of time choice can be given that do not mean that land covered by the sale deed, which is in favour of a person who is a bonafide purchaser is to be accepted in choice although there is sufficient land.
6. In response to the aforesaid, learned Standing Counsel submits that as the respondent No. 4 has option to give choice at any point of time before possession was taken and therefore if the appellate authority has accepted the change in the choice given by the respondent No. 4 then no exception can be taken to it. Submission is that claim of the petitioners have been considered and that has not been accepted although there is no mention in respect to their claim in the judgment of the appellate authority. So far respondent No. 4 is concerned as has been noticed on the date of argument i.e. 2.2.2006 nobody appeared inspite of several opportunity given in that respect.
7. In view of the aforesaid, this Court has examined the matter.
8. On examination of the facts and circumstances and submissions as made matter appears to be very simple and at this stage this Court need not to go in much detail about claim of the petitioners. Here is the case where petitioners claim to have acquired the rights in respect to the land claimed by them by means of a registered agreement to sale of the year 1987 and at that time land was recorded in the name of respondent No. 4. Petitioners claimed that they made enquiry from the calling officer but the land was never informed to be under any celling proceedings and as surplus land. In Khatauni extract name of respondent No. 4 was duly recorded. By means of registered sale deed petitioners have purchased the land as is mentioned in the sale deed by paying amount which is to the tune of more than Rupees Fifteen lakhs. Earlier land purchased by the petitioner appears to be not subject matter of choice and it is thereafter respondent No. 4 changed his mind and offered land being claimed by the petitioner towards choice. Be as it may, before the prescribed authority petitioners moved application for impleadment but that was rejected. Thereafter, when respondent No. 4 filed appeal, petitioners again moved application for impleadment before the appellate court. Written argument was also filed by the petitioner besides the cross objection supported by affidavit and application under Section 5 of the Limitation Act was also filed. Perusal of the judgment of the appellate authority do not indicate that petitioners application for impleadment, written arguments and the cross objections have been dealt with and they. have been rejected by assigning any reason. Petitioners claim to be bonafide purchaser after paying huge consideration and they claimed protection of Section 12-A(d) of the Act in the light of the decision of this Court as has been given in case of Rajendra Singh (supra). Claim/contention of the petitioner can be accepted/rejected but certainly that needs to be dealt with. As judgment of the appellate authority is completely silent and petitioners claim has not been dealt, submission of the learned Counsel for the petitioners appears to be very fair that the matter be sent back to the appellate court to take appropriate decision in respect to the claim/rights of the petitioner as law permits. On this short ground this petition is to succeed.
9. For the reasons recorded above, this writ petition is allowed and the impugned judgment of the appellate authority dated 31.3.90 (Annexure-12 to the writ petition) is hereby quashed and the matter is sent back to the appellate court to entertain the matter afresh and to deal petitioners claim/contention which was moved by them by means of application/cross objection and to decide surplus, land of the respondent No. 4 after giving adequate opportunity of hearing to the petitioners and also to the respondent No. 4.
10. It is made clear that the surplus land so declared in respect 10 the respondent No. 4 has already became final and therefore that is not to be disturbed and now only question of taking particular land as surplus is to be finally decided by the appellate court after giving adequate opportunity of hearing to both side. As the matter is quite old, appellate court is directed to decide the matter afresh preferably within a period of six months from the. date of receipt of certified copy of this order without allowing any unwarranted adjournment to either of the sides unless it is required for very compelling reasons. Petitioners are directed to file certified copy of this order before the appellate authority within a period of three weeks along with an application with a prayer to start proceedings as directed in this order.