Disposed

Khalid Mahmood Khan v. State of U.P. and Others

Allahabad HC22 Mar 2024WRIC/3000048/1995

Case brief

AI extract

What is this about?

The High Court set aside orders rejecting a recall application and an appeal due to non-appearance of counsel. The court held the prescribed authority failed to comply with prior directions on res judicata regarding ceiling proceedings on the same land and remanded the case for fresh orders.

What did the court decide?

The writ petition was allowed. The orders dated 04.04.1995 and 18.09.1991 were set aside. The matter was remitted to the prescribed authority to consider the case within three months.

Khalid Mahmood Khan Vs State of U.P. and Others — Land Acquisition | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:25559

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Court No. - 6 Case :- WRIT - C No. - 3000048 of 1995 Petitioner :- Khalid Mahmood Khan Respondent :- State of U.P. and Others Counsel for Petitioner :- Asif Hasan,Brijesh Kumar Shukla,Shyam Mohan Pradhan Counsel for Respondent :- C.S.C.,Mohammad Raza Khan

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Hon'ble Alok Mathur,J.

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(Order on C.M.A. No. 12/2022-Delay, C.M.A. No. 13/2022-Abatement & C.M.A. No. 14/2022- Substitution)

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Heard learned counsel for parties and perused the record.

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During the pendency of the present writ petition, respondent No. 8/Tahira Khannam @ Tayyaba Khannam died, as such an application has been moved on behalf of her legal representatives to be substituted as respondents along with application for condonation of delay and setting aside abatement.

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In view of the facts stated in the accompanying affidavit for setting aside the abatement and condonation of delay in moving the application for substituting legal representative of respondent Nos 8, abatement if any, is set aside.

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Delay in filing substitution application is condoned.

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Further, cause shown in the affidavit filed in support of the accompanying affidavit filed in support of application for substitution is sufficient. Accordingly, the application in question is allowed,

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Sri Mod. Azhar Khan, Advocate who has filed his Vakalatnama on behalf of respondent Nos. 4 to 8.

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(Order on Writ Petiton)

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Heard Sri Shyam Mohan, learned counsel for petitioner as well as learned Standing Counsel for respondent Nos. 1 to 3 and Sri Mod. Azhar Khan, Advocate who has filed his Vakalatnama on behalf of respondent Nos. 4 to 8.

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By means of present writ petition, the petitioner has challenged the order dated 04.04.1995 passed by the Additional Commissioner, Faizabad division, Faizabad thereby rejecting the appeal preferred by the petitioner against the order of the prescribed authority who had refused to allow the recall application preferred by the petitioner where the proceedings had culminated ex-parte on the ground of non-appearance on behalf of petitioner.

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The brief facts of the present case are that proceedings under proceedings under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 were

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initiated against the original tenure holder, namely Mohammad Mahmoodul Haq Khan by issuance of a notice on 18.08.1962. The original tenure holder had filed his objections against the said notice and the proceedings were concluded on 28.04.1964 and his surplus area was accordingly determined.

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Objections under Section 14(3) of the Act of 1960 were filed by respondent Nos. 4 to 8 stating that they were the owners of the land which has been declared surplus and no notice were given to them prior to finalization of the proceedings. Th objections were duly considered by the prescribed authority and allowed by means of order dated 18.08.1970 and the holdings of respondent Nos. 4 to 8 were excluded form the surplus area declared by the prescribed authority previously by means of order dated 18.08.1964. The aforesaid proceedings attained finality and were never assailed before the appellate authority or before this Court either by the recorded tenure holder, the respondent Nos. 4 to 8 or even by the State Government.

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After expiry of nearly six years, the State issued a fresh notice under Section 10(2) of the Act of 1960 to the petitioners who are the son of the original tenure holder, namely Mohammad Mahmoodul Haq Khan sometimes in 1976. The petitioner had filed their objections to the said notice stating that fresh case under the Act of 1960 would not be maintainable in light of the fact that on the previous occasion, the prescribed authority had already determined the ceiling area with regard to the said land at the hands of the original tenure holder and accordingly the said proceedings would operate as a bar of res-judicata to the subsequent proceedings.

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The prescribed authority by means of order dated 01.04.1976 rejected the objections filed by the petitioner and again determined the surplus land. The petitioners being aggrieved by the order dated 01.04.1976 approached this Court by filing a Writ Petition No. 1227/1976. This Court by a detail judgment was of the considered view that in case the notice were issued in relation to the same land which was a subject matter of the previous proceedings at the hands of the original tenure holder, namely, Mohammad Mahmoodul Haq Khan then the subsequent proceedings would be hit by the principles of res-judicata but inasmuch as the prescribed authority had not returned any finding in this regard, this Court was unable to determine as to whether the land which were subsequently sought to be determined under the Act of 1960 was the same land at the hands of the recorded tenure holder. which was declared to be surplus by order dated 28.04.1964 and therefore remanded the matter back to the prescribed authority to determine afresh only on the aspect as to whether the order dated 18.08.1970 was in respect of the same land in respect of which notices have subsequently been issued to the petitioner and secondly whether the findings recorded in the earlier proceedings are hit by provisions of the amended act.

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In the remand proceedings the prescribed authority by means of order dated 02.08.1982 confirmed the fact that the land is the same which were subjected to the operation of the Act of 1960 on the previous occasion and also for which fresh notice under Section 10(2) of the Act of 1960 have been issued subsequently. He did not decide the aspect of res-judicata while passing the

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order dated 02.08.1982. The prescribed authority by means of his order dated 22.11.1982 reiterated his previous order and also recorded the fact that no appearance has been put in by the petitioner despite notices. The petitioner filed an application for recall which was allowed on 14.11.1983 and again in order dated 29.10.1987 his previous order was reiterated and even on this occasion no one appeared on behalf of petitioner to canvas their submission.

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It is on the second occasion that when the application for recall was filed which was also rejected by means of order dated 19.09.1991. Against the order of rejection, the petitioner had filed an appeal which was also rejected on 04.04.1995 and the aforesaid orders have been impugned in the present writ petiton.

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A perusal of the impugned order would indicate that only the aspect of delay has been considered by the appellate authority and it was of the view that the petitioner could not disclosed sufficient reasons for their absence on 18.07.1991 and 09.08.1991, it decline to interfere in the orders of the prescribed authority and rejected the appeal of the petitioner.

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Learned counsel for petitioner submits that the application for recall of the order dated 29.10.1987 was allowed and when the matter was listed for hearing again learned counsel for petitioner could not appear and the objections of the petitioner were dismissed for want of prosecution on 18.07.1991. Again the application for recall was preferred by the petitioner on 09.08.1991 which was rejected on 19.09.1991 after recording that the petitioner is not interested in prosecuting his case inasmuch as whenever the case is listed his counsel does not appear and consequently for want of prosecution his objections were rejected.

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Learned counsel for petitioner submits that substantial rights of the petitioner are involved in the present case and merely on account of non-appearance of learned counsel for petitioner on the date of hearing the impugned order has been passed by the prescribed authority. He submits that the appellate court should have taken an appropriate view on the issue and should have remanded the matter back to be decided on merits as per the directions of this Court passed in Writ Petition No. 1227 of 1976 decided on 17.09.1980.

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Learned Standing Counsel on the other hand has opposed the writ petition. He has submitted that considering the orders passed by the prescribed authority not on one occasion but on several occasions it is noticed that learned counsel for petitioner did not appear before the prescribed authority due to which his objections were dismissed.

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He submits that undoubtedly the matter was remanded by this Court after a detail judgment where the prescribed authority was directed to take into account and pass orders with regard to two issues as stated in this order hereinabove.

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Learned Standing Counsel could not satisfactorily answer the question as to why the prescribed authority failed to take in to account the judgment of this

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Court dated 17.09.1980 where he was mandated to decide the question on merits and the proceedings were initiated at the instance of the State and the petitioners were only respondents in the said proceedings, and their non-appearance could not hinder the prescribed authority from considering the issue as directed by the High Court.

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Considering the aforesaid facts, this Court is of the considered view that the petitioner had raised a very important question with regard to the res-judicata and maintainability of the the proceedings subsequent to the conclusion of the proceedings on 18.08.1970 at the first occasion. This Court had also considered various judgments passed by this Court, namely , Krishna Kumar Vs. State of U.P. (Writ Petiton NO. 3030 of 1977), Kekarnath Vs. Additional District Judge, 1980 A.L.J. 36, Ram Lal Vs. State of U.P. & Ors, 1978 ALJ 1197, Bija Vs. State of U.P. & Ors, 1979 ALJ 43 & Kailash Kumari Vs. State, 1980 ALJ 208

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This Court had approved the legal position in this regard and had held that in the subsequently ceiling proceedings, the ceiling authority would be bound by all the findings recorded in the earlier ceiling proceedings save where in view of the amendments effected by the amending. At the ceiling authority became entitled go reopen and retry an earlier finding in consequence of the subsequent amendments introduced by the amending Act.

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The prescribed authority was bound to comply with the order of this Court dated 17.09.1980 while on the other hand he has merely reiterated his previous orders in a most cryptic manner without answering or considering the aspect as directed by this Court and accordingly the orders of the prescribes authority are illegal and arbitrary and deserves to be set aside. The order of the appellate authority also not duly considering the directions of this Court and merely affirming the order of prescribed authority holding that the petitioner is not interested in prosecuting his case is also clearly arbitrary.

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In light of the above, the writ petiton is allowed . The orders dated 04.04.1995 and 18.09.1991 are set aside. The matter is remitted back to the prescribed authority for passing fresh orders and complying with the previous direction of this Court passed in Writ Petition No. 12279 of 1976 dated 17.09.1980. Considering that much time has lapsed the prescribed authority is directed to consider and conclude the proceedings within a period of three months from the date a certified copy of this order is produced before him.

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Learned counsel for petitioner as well as learned counsel for respondent Nos. 4 to 8 undertake to cooperate in the proceedings before the prescribed authority and shall not seek any adjournment. It is further made clear that in case any adjournment is sought by the petitioner or by the respondent Nos. 4 to 8 the benefit of this order shall not be available to them. It is in the aforesaid facts, learned counsel for parties have requested to this Court to fix a date on which date they undertake to appear before the prescribed authority.

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Accordingly, with the consent of the parties, it is directed that they should

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appear before the prescribed authority on 18.04.2024 at 11.00 a.m. and in case the prescribed authority is not available on the said date they shall appear again before him on 23.04.2024. In case the matter is adjourned the reason would have to be recorded for the same. The prescribed authority is directed to hear the matter and decide it within the time period as prescribed by this Court as provided hereinabove.

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(Alok Mathur, J.)

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Order Date :- 22.3.2024/Ravi/

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Digitally signed by :- RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench

Khalid Mahmood Khan v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Khalid Mahmood Khan v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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