Dismissed

Al Hussain Frozen Foods v. State of U.P. and 4 Others

Allahabad HC9 Oct 2023WRIC/16162/2023

Case brief

AI extract

What is this about?

The Allahabad High Court dismissed an application by landowners challenging a Sub-Divisional Officer's order that set aside an agricultural land declaration without a prior hearing. The Court refused to interfere, ruling that quashing the 'recall' order would restore an earlier declaration made on the petitioners' report, invoking equitable principles to avoid disrupting the status quo while direc

What did the court decide?

Writ petition dismissed; the Sub-Divisional Magistrate is directed to decide the Section 82 proceeding after a proper hearing to the petitioners, State, and Gaon Sabha within three months.

Al Hussain Frozen Foods Vs State of U.P. and 4 Others — Land Acquisition | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:193969

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Court No. - 51

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Case :- WRIT - C No. - 16162 of 2023

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Petitioner :- Al Hussain Frozen Foods Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pradeep Kumar,Mohd Rehan Ansari Counsel for Respondent :- C.S.C.,Arun Kumar Pandey

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Hon'ble Chandra Kumar Rai,J.

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Heard Mr. Chetan Joshi, Advocate holding brief of Mr. Pradeep Kumar, learned counsel for the petitioners, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Arun Kumar Pandey, learned counsel for the respondent -Gaon Sabha.

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Brief facts of the case as alleged in the writ petition are that petitioners were recorded as bhumidhar with transferable right in respect to plot no.316 area 3.877 hectare situated in Village- Begumpur, Tahsil- Sambhal, DistrictSambhal. It is further alleged that the petitioners filed a Case No.14 / 2007 under Section 143 of Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter will be referred as U.P.Z.A. & L.R. Act) before respondent no.3 / Sub-Divisional Magistrate, Sambhal to declare the plot no.180, 181, 182, 192, 193, 199 & 200 area 0.1583 hectare of Khata No.157 and plot nos.194M, 195M, 196M, 184, 185 & 186 area 1.032 hectare of Khata No.158, total area 2.615 hectare as non-agricultural. Tahsildar, Sambhal submitted his report dated 15.2.2007 and respondent no.3 vide order dated 20.2.2007 declared the aforementioned 13 plots total area 2.615 hectare as non-agricultural. In the year 2022 petitioners filed a Case No.15813 of 2022, Computerized Case No.T202213740315813, under Section 82 of U.P. Revenue Code, 2006 before respondent no.3 for declaring the aforementioned 13 plots area 2.615 hectare again as agricultural plots. Tahsildar, Sambhal submitted his report dated 3.1.2023 in the aforementioned proceeding and respondent no.3 vide order dated 5.1.2023 declared the plot nos.180, 181, 182, 192, 193, 199, 200, 195M, 194M, 196M, 184, 185 & 186 total area 2.615 hectare as agricultural land. Against the order dated 5.1.2023 passed by respondent no.3 State / Gaon Sabha filed an application dated 20.2.2023 stating that in order to cause revenue loss to the State the order dated 5.1.2023 has been obtained without notice and opportunity of hearing to State/ Gaon Sabha, as such, ex-parte order dated 5.1.2023 is liable to be set aside. Respondent no.3 vide order dated 20.2.2023 allowed the application dated 20.2.2023 filed by State / Gaon Sabha setting aside the order dated 5.1.2023 and restored the case for fresh disposal, hence this writ petition against the impugned order dated 20.2.2023 passed by respondent no.3.

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This Court passed the following order on 26.5.2023:

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"1. The submission of the learned counsel for the petitioner is that a declaration was made under Section 80 of U.P. Revenue Code, 2006 (wrongly typed as Section 82 in the heading of the court proceedings) on 05.01.2023 on the basis of report submitted by the revenue officers, however the said order has been set aside by the impugned dated 20.02.2023 on a recall application which was filed by the State on the same day. Learned counsel submits that the petitioner was not provided any opportunity of hearing which is apparent from the order impugned itself and even in the operative portion of the order impugned, after setting the impugned order dated 05.01.2023, notices have been issued to the parties and therefore it is a case of putting a cart before the horse.

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2. Learned Standing Counsel has argued that since the order dated 05.01.2023 was ex-parte, in view of provisions of Section 209(h) of the Code, recall application filed by the State was very much maintainable.

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3. Prima faice, I find that once declaration is made under Section 80, it can be cancelled under Section 82 of the Code and there is no provision for recall of the order passed under Section 80. Even otherwise, before recalling the order dated 05.01.2023 at least some opportunity of haring should have been provided to the petitioner which has not been done in the present case.

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4. The matter requires consideration.

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5. The respondents 1 to 4 are represented by the learned Standing Counsel and the respondent no.5 is represented by Sri Arun Kumar Pandey.

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6. The respondents are granted six weeks' time for filing counter affidavit.

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7. Rejoinder affidavit, if any, may be filed within three weeks thereafter.

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8. In order to facilitate adjudication of case on merits and to avoid wastage of dates, office shall ensure placement of affidavit(s) on record before the date fixed by-

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(a) checking the online status of affidavits on official website of this Court.

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(b) by instructing and coordinating with associated staff of the section(s) concerned.

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9. List this case on 16.08.2023 before appropriate Bench.

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10. The matter shall not be treated as part heard or tied up with this Bench.

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11. Till the next date of listing, the effect and operation of the order dated 20.02.2023 passed by the Sub-Divisional Officer, Sambhal in Case No. RST/15813 of 2022 (Computerized Case No. T202213740315813), shall remain stayed."

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In pursuance of the order dated 26.5.2023 State has filed his counter

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affidavit and petitioners have filed his rejoinder affidavit.

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Learned counsel for the petitioners submitted that the application under Section 82 of U.P. Revenue Code, 2006 filed by the petitioners was allowed vide order dated 5.1.2023 and plots in dispute were ordered to be recorded as agricultural land. He further submitted that order dated 5.1.2023 was passed on the basis of report submitted by the authorities in the proceeding under Section 82 of U.P. Revenue Code, 2006. He next submitted that against the order dated 5.1.2023 State/ Gaon Sabha filed an application dated 20.2.2023, which was allowed without any notice and opportunity of hearing to the petitioners on the same date i.e. 20.2.2023 and case under Section 82 of U.P. Revenue Code, 2006 has been restored to its original number. He also submitted that the Goan Sabha / State has no authority to file an application against the order which was passed on the application filed by the petitioners for declaring their plot as agricultural plot. He next submitted that the order dated 5.1.2023 was passed on merit, as such, restoration application in the garb of review application is not maintainable. He further submitted that the impugned order passed by the Sub-Divisional Officer dated 20.2.2023 is liable to be set aside.

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On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Arun Kumar Pandey, learned counsel for the respondent -Gaon Sabha submitted that the earlier petitioners themselves filed an application under Section 143 of U.P.Z.A. & L.R. Act in the year 2007 and the plots in dispute were ordered to be declared as non-agricultural land on the basis of report submitted by the authorities in the proceeding under Section 143 of U.P.Z.A. & L.R. Act. They further submitted that in the year 2022, the petitioners have filed an application under Section 82 of U.P. Revenue Code, 2006 for declaring the land in dispute as agricultural, which has been allowed in ex-parte and arbitrary manner. They next submitted that the impugned order will cause injury to the interest of the State / Gaon Sabha, as such, the order dated 5.1.2023 has been set aside in accordance with law. They next submitted that the case under Section 82 of U.P. Revenue Code, 2006 has been restored to its original number, as such, petitioners have full opportunity to contest the proceeding in accordance with law. They further submitted that the petitioners have filed an application dated 26.4.2023 before the SubDivisional Officer with the prayer that the order dated 20.2.2023 be set aside and the earlier order dated 5.1.2023 be maintained. They finally submitted that the writ petition against the order passed by the SubDivisional Officer is not maintainable and the same is liable to be dismissed.

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I have considered the argument advanced by learned counsel for the parties and perused the records.

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There is no dispute about the fact that vide order dated 20.2.2007 plot in

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dispute were declared as non-agricultural. There is also no dispute about the fact that after 15 years an application under Section 82 of U.P. Revenue Code, 2006 was filed by the petitioners, which has been allowed vide order dated 5.1.2023. There is also no dispute about the fact that on the application of the Gaon Sabha dated 20.2.2023, the earlier order dated 5.1.2023 has been set aside and case under Section 82 of U.P. Revenue Code, 2006 has been restored to its original number.

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In order to appreciate the controversy involved in the matter, perusal of Section 143 of U.P.Z.A. & L.R. Act as well as Sections 80 & 82 of U.P. Revenue Code, 2006 will be relevant, which are as follows:

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Section 143 of U.P.Z.A. & L.R. Act, 1950

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143. Use of a holding for industrial or residential purposes. [(1) Where a [bhumidhar with transferable rights] uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect.

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(1-A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding the Assistant Collector in charge of the sub-divisions may in the manner prescribed demarcate such part for the purposes of such declaration.]

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(2) Upon the grant of the declaration mentioned in sub-section (1) the provisions of this chapter (other than this section) shall cease to apply to the [bhumidhar with transferable rights] with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.

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[(3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this chapter (other than this section) shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.]"

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Section 80 of U.P. Revenue Code, 2006

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80. (1) Where a bhumidhar with transferable rights uses his holding or part thereof, for industrial, commercial or residential purposes, the Sub-Divisional Officer may, suo motu or on an application moved by such bhumidhar, after making such enquiry as may be prescribed, either make a declaration that the land is being used for the purpose not connected with agriculture or reject the application. The Sub-Divisional officer shall take a decision on the application within forty five working days from the date of receipt of the application. In case the application is rejected, the Sub-Divisional officer shall

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state the reasons in writing for such rejection and inform the applicant of his decision:

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(2) Where a bhumidhar with transferable rights proposes to use in future his holding or part thereof, for industrial, commercial or residential purposes, the Sub-Divisional Officer may on an application moved by such bhumidhar, after making such enquiry as may be prescribed, either make a declaration that the land may be used for the purpose not connected with agriculture or reject the application, within forty five working days from the date of receipt of the application. In case the application is rejected, the Sub-Divisional officer shall state the reasons in writing of such rejection and inform the applicant of his decision:

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Provided that for declaration under this sub-section there musts exist a boundary wall surrounding the holding or part thereof, which is proposed to be used for such purpose:

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Provided further that if the bhumidhar fails to start the proposed non agricultural activity within a period of five years from the date of declaration under this sub-section, then the declaration under sub-section (2) for the holding or part thereof shall lapse:

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Provided also that a declaration under this sub-section (2) shall not amount to change of land use and the land shall continue to be treated as agricultural land only. However, the bhumidhar shall be entitled to obtain loan and other necessary permissions, clearances etc. for the activity or project, proposed on the holding or part thereof, for which declaration under this sub-section has been obtained.

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(3) A bhumidhar possessing declaration under sub-section (2) for his holding or part thereof, may apply to Sub-Divisional officer for converting declaration under sub-section (2) to a declaration under sub-section (1), after completion of construction activity or start of the proposed non- agricultural activity, within a period of five years from declaration under sub-section (2). On receipt of such an application, the Sub- Divisional officer, after making such enquiry as necessary, shall approve or reject the application within a period of 15 days from the receipt of the application. In case of rejection, he shall record in writing the reasons for such rejection:

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Provided that for conversion of declaration under sub-section (2) to a declaration under sub-section (1), the bhumidhar shall be liable to pay only the balance amount of fee payable, calculated at prevailing circle rate, after adjusting the amount already paid by him for declaration under sub-section (2) earlier.

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(4) No application for a declaration under sub-section (1) or (2), moved by any co-bhumidhar having undivided interest in bhumidhari land shall be maintainable, unless application is moved by all the co-bhumidhars of such bhumidhari land. In case only one of the co-bhumidhar wants to get a declaration for his share in the land with joint interest, then such an application shall be entertained only after the respective shares of the cobhumidhars in the land have been divided in accordance with the provisions of law.

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(5) The application for declaration [under sub-section (1) or sub-section (2)] shall contain such particulars and shall be made in such manner as may be prescribed.

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(6) Where the application under sub-section (1) or sub-section (2) is made in respect of a part of the holding, the sub-divisional officer may, in the manner prescribed, demarcate such part for purposes of such declaration.

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(7) No declaration under this section shall be made by the sub-divisional officer, if he is satisfied that the land or part thereof is being used or is proposed to be used for a purpose which is likely to cause a public nuisance or to affect adversely public order, public health, safety or convenience or which is against the uses proposed in the master plan.

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(8) In case the land or part thereof for which a declaration under this section is being sought falls within the area notified under any Urban or Industrial Development Authority, then prior permission of the concerned Development Authority shall be mandatory.

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(9) The State Government may fix the scale of fees for declaration under this section and different fees may be fixed for different purposes:

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Provided that if the applicant uses the holding or part thereof, for his own residential purpose, no fee shall be charged for the declaration under this section.]"

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Section 82 of U.P. Revenue Code, 2006

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82. Cancellation of declaration —(1) Whenever any holding or part thereof in respect of which a declaration has been made under Section 80 is used for [any purpose connected with agriculture,] the Sub-Divisional Officer may, of his own motion or on an application made in that behalf and after making such inquiry as may be prescribed, cancel such declaration.

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(2) Where a declaration is cancelled under sub-section (1) the following consequences shall in respect of the holding or part to which it relates ensue namely—

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(a) the holding or part shall become subject to all restrictions imposed by or under this chapter in matters of transfer and devolution;

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(b) the holding or part shall become liable to payment of land revenue with effect from the commencement of the agricultural year in which the order for cancellation of the declaration is made:

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Provided that until any land revenue is reassessed on such holding or part in accordance with the provisions of this Code, the land revenue payable or deemed to be payable in respect of such holding or part before the grant of declaration under Section 80 shall be deemed to be the land revenue payable in respect of such holding or part;

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(c) where the land is in possession of any person other than the bhumidhar

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thereof on the basis of a contract or lease, and the terms of such contract or lease are inconsistent with the provisions of this Code, such contract or lease shall to the extent of the inconsistency, become void and the person in possession shall be liable to ejectment on the suit of bhumidhar:

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Provided that a mortgage with possession existing on the date of the cancellation of the declaration shall, to the extent of the amount due and secured on such land, be deemed to be substituted by a simple mortgage carrying such rates of interest as may be prescribed."

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Perusal of order dated 20.2.2023 will be also relevant, which is as under:

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" आददशपतक नययययलययउपजजलयजधकयरर

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मणडलयममरयदयबयद , जनपदयसमभल , तहसरलयसमभल वयदससखययय - RST/15813/2022

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कसपययटररककतवयदससखययय - T 202213740315813

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अलहहससनफफजनफयडसदयरयसयझरदयरअनरसअहमदआददबनयमसरकयर असतररतधयरयय - 82, अजधदनयमय - उतरपददशरयजसवससदहतय -2006

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दनररय

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उकवयदकककययरवयहरगयमसभयबदरमपमरककओरसदसहययकजजलयशयसककयअजधवकय ( रयजसव ) दयरयपसतमत पमनसरयरपनयपयररनयपतददनयसक 22.02.2023 परआरमभहहई , जजसममअवरतकरयययरययहसदकउपरफकवयदममरयजय सरकयर / गयमसभयकफकफईसममन / सयचनयपयपनहहहहई , जजसकदकयरररयजयसरकयर / गयमसभयकददयरयअपनयपक नययययलयकदसमकनहहरखयजयसकयरय।उपरफकएकपकरयआददशददनयसक 05.01.2023 वयदरदयरयरयजयसरकयर कफरयजसवकककदतपहहसचयनदकदउददशयसदनययययलयकफधफखयददकरकरयययरययहस , जजससदरयजयसरकयर / गयमसभयकफ अपयररयकदतहस।उपरफकएकपकरयआददशककजयनकयररपयपहफतदहरपयररतमरनतदबनयददररकदपमनसरयरपनयपयररनयपत पसतमतकररहयहस।उकपकररममकरयपवसचनकयतथयभरसदनदहतहसइसजलएउपरफकतथययकदआधयरपरएकपकरय आददशददनयसक 05.01.2023 कफदनरसतकरनदककमयसरककरईहस। मदरददयरयपतयवलरपरउपलबधअदभलदखरयसयकयकफरहरयईसदअनमशरलनदकययरययतरयगयमसभयककओरसद सहययकजजलयशयसककयअजधवकयकफसमनयरयय।पयररनयपतपमनसरयरपनयममअसदकततथययकफददषरतरखतदहहए पमनसरयरपनयपयररनयपतददनयसक 20.02.2023 सवरकरकरतदहहएएकपकरयआददशददनयसदकत 05.01.2023 कफदनरसत दकययजयनयनयययफदचतपतरतहफतयहस।

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आददश

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अतयगयमसभयबदरमपमरककओरसदसहययकजजलयशयसककयअजधवकय ( रयजसव ) दयरयपसतमतपमनसरयरपनयपयररनयपत ददनयसक 20.02.2023 सवरकयरदकययजयतयहस।आरयजररयटयसस० 316 रकवय 3.877 हद०कदचकबसदर 1418 फ०कदपयवर रयटय 180 व 181 व 182 व 192 व 193 व 199 व 200 व 195 दम०व 196 दम०व 184 व 185 व 186 कमलरकवय 2.615 हद०ससरतगयमबदरमपमरकदसमबसधममददनयसक 05.01.2023 कफपयररतएकपकरयआददशदनरसतदकययजयतयहस। पकयकफनफदटसजयररहफ।पतयवलरवयसतदअदगमकययरवयहरहदतमददनयसक 02.03.2023 कफपदशहफ।

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ददनयसक - 20/02/23 ह०अपठनरय ( समनरलकममयरदतव द र ) उपजजलयजधकयरर

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समभल "

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Since, under the impugned order dated 20.2.2023, the order dated 5.1.2023 has been set aside and case under Section 82 of U.P. Revenue Code, 2006 has been restored to its original number, as such, petitioners have full opportunity to contest the proceeding under Section 82 of U.P.

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Revenue Code, 2006, which will be decided after opportunity of hearing to petitioners, State and Gaon Sabha also in accordance with law.

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This Court in the case reported in 1985 R.D. 71 Paras Nath singh Vs. The Deputy Director of Consolidation and others has held that an order which is even illegal cannot be quashed or set aside in writ jurisdiction if quashing of it results in bringing on record another illegal order. Paragraph no.21 of the judgment will be relevant for perusal, which is as under:

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21. It is, no doubt, correct to say that any order passed without jurisdiction is a nullity and deserves to be quashed. But if as a result of quashing that order another wrong and illegal order would be restored, this Court would refuse to interfere with the impugned order which appears to be quite proper equitable and just order. As mentioned above, the power under Article 226 of the Constitution is devised to advance justice and not to thwart it. To me it appears to be well settled that an order which is illegal cannot be quashed or set aside in writ jurisdiction if quashing of it results in bringing on record another illegal order."

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Considering the entire facts and circumstances, no interference is required against the impugned order dated 20.2.2023 passed by respondent no.3.

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The writ petition is dismissed . However, respondent no.3 i.e. SubDivisional Magistrate, Sambhal shall decide the proceeding under Section 82 of U.P. Revenue Code, 2006 after giving proper opportunity of hearing to the petitioners, State and Gaon Sabha in accordance with law, expeditiously preferably within a period of three months from the date of production of certified copy of this order before him.

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Order Date :- 9.10.2023 Rameez

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Digitally signed by :- RAMEEZ AHMED High Court of Judicature at Allahabad

Al Hussain Frozen Foods v. State of U.P. and 4 Others

Case brief

What is this about?

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Al Hussain Frozen Foods v. State of U.P. and 4 Others

Case brief

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