- (1.) V. K. Shukla, J. Vishwa Nath Prasad has filed present writ petition, mentioning therein that his father, Laxmi Narayan and Satya Narain were real brothers, and after the death of Satya Narayan, his son Shiv Mangal Singh, became legal heir of his father, In the consolidation proceedings, chaks of petitioner and Shiv Mangal Singh were carved out, separately. Against petitioner, no ceiling proceedings had been initiated, however, Shiv Mangal Singh was served with a notice under Section 10 of the U. P. Imposition of Ceiling on4. and Holdings Act, 1960. In the said proceeding, as Shiv Mangal Singh died, petitioner was arrayed as party in the capacity of sole owner, and in the said ceiling proceeding Gate. No. 702 Ka (area 05r19-10) and 472 (area 07-15-0) of Khata No. 181 of village Salaiya Khurd, Pargana Khairagarh, Tehsil Meja, District Allahabad, were declared as surplus land, vide order dated 28. 9. 1979. Plot No. 735 of khata No, 181 was not declared as surplus land. In spite of the fact that at no point of time Plot No. 735 of Khata No. 181 was not declared as surplus land 'in ceiling proceedings, Sub-Divisional Magistrate, Meja wrongly presumed that Plot No. 735 of Khata No. 181 (area 10 bigha 6 Biswa 4 Dhur) was declared as surplus land, and the same was given on patta to Awadhesh Prasad and Satyendra, respondent Nos 6 and 7 vide order dated 26. 6. 1980 and 17. 6. 1981 measuring 0. 579 Hectare to each one of them, total area of lease came to 1. 158 Hectare and the remaining area 1. 139 Hectare was left to the petitioner. Petitioner contends that said patta had been wrongly executed and entry was made by Lekhpal accordingly. Petitioner submits that he was unaware of the said proceeding being undertaken, and respondent Nos. 6 and 7 in the year 1994 came into possession forcibly, for which, petitioner submits that he initiated proceeding under Section 33/39 of the Land Revenue Act. Petitioner has contended that in the said proceeding there was clear admission by Tehsildar Meja that Plot No. 735 of Khata No. 181 was never declared as surplus in ceiling proceeding and the said plot is free from the ceiling proceeding. Petitioner submits that the said proceeding had been rejected, and he has filed application under Section 27 (4) of the U. P. Imposition of Ceiling on Land Holdings Act on 2,7. 1996. Said application of petitioner has been rejected oh 18. 6. 2004. At this juncture present writ petition has been filed.
(2.) IN the present writ petition counter and, rejoinder affidavits have been exchanged and during pendency of the present writ petition, various orders have' been passed the last one being the order dated 17. 5. 2006, which is being quoted. below: "heard learned counsel for the petitioner and also the standing counsel. The facts constituting grievance of the petitioner are that although Plot No. 735 was never declared surplus still the same was erroneously allotted to opp. Parties 6 and 7. IN this connection learned counsel for the petitioner referred to order dated 28. 9:79 from a perusal of which it is indicated that as a matter of fact plot Nos. 702 and 742 etc. were declared surplus. IN these facts and circumstances of the case, interest of justice would be best attained if an interim mandamus is issued commanding the S. D. O. Meja, Allahabad opp. Party No. 3 to pass appropriate orders whether plot No. 735 had been declared surplus if not, he shall take immediate action for restoring possession of plot No. 735 to the petitioner. Petitioner is directed to move application before S. D. O. , Meja Allahabad, Opp. Party No. 3 within three weeks from today. The appropriate orders as stated supra shall be /passed within one month next thereafter. , It is ordered accordingly. Opp. Party No. 3 shall file compliance report through standing counsel immediately after one month. List this matter in the 4th week of July, 200617. 5. 2006 Sd/-S. N. Srivastava" Pursuant to order passed by this Court, authorities on the spot took up the matter and have recorded categorical finding that Plot No. 735 of khata No. 181at no point of time had been subject matter of ceiling proceeding and allotment proceedings had been illegally undertaken and possession has been restored back, qua which report has also been submitted on 04. 08. 2007 after getting possession restored on 15. 7. 2007. Facts in brief, for which there has been no dispute either by State-respondents or by allottees Awadhesh Prasad and Satyendra, are that at no point of time, Plot No, 735 of Khata No. 181 had been part and parcel of ceiling proceeding, The two plots which were declared surplus were plot Nos. 702 and 742, and Plot No. 735 of Khata No. 181 had never been declared surplus and this fact has been admitted that no ceiling proceeding had been launched in respect Of Plot No. 735 of Khata No. 181. ' 5, Chapter IV of the Ceiling Act deals with the disposal and settlement of surplus land. Section 26 provides that all settlement of surplus land vested in the State shall be made on behalf of State Government by Collector in-accordance with the provisions of Section 26a and 27. Said provisions would come into play only when land in question has been declared as surplus, and only then the authorities are empowered to take allotment proceedings. In the present case, undisputedly, plot No. 735 of Khata No. 18,1 had never been declared surplus and no ceiling proceeding had been launched against the said plot as such accepting it to be surplus, no allotment proceeding could have been undertaken in respect of plot. No. 735 of Khata No. 181. The condition precedent for allotment of any land treating it to be surplus is that the said land must have been declared so in ceiling proceeding. Once plot No. '735 of Khata No. 181 was not part and parcel of ceiling proceeding, then it could not have been accepted as surplus land and qua the same no allotment proceeding sought to have been undertaken, as such entire allotment proceedings were void. 6. In the present case, once parties to the dispute are not disputing this factual position that plot No. 735 of Khata No. 181 was not part and parcel of ceiling proceeding and had never been declared surplus, then the allotment of said plot in favour of respondent Nos. 6 and 7 was void, and qua which petitioner claims that he had no knowledge, then technicalities could not have come in the way of restoration of its possession to petitioner. In the present case, under order dated 17. 5. 2006 possession of plot No. 735 has been restored to petitioner. 7: From the side of respondents, it has been sought to be contended that proceedings were barred by limitation, and manipulations were there. Under' Section 27 (4), Commissioner is entitled to enquire into settlement, and if such settlement is irregular, the same may be cancelled, after issuing notice to person in whose favour settlement has been made, and then property is to be reverted back in State and under Section 27 (6) limitation has been provided for initiation of such proceeding. Said provision will come into play when allotment/settlement of surplus land made is irregular, and property has to revert back to State, but where allotment/settlement itself is void, then in that contingency, property would have to be reverted back to the owner of the property, and said provisions would clearly be inapplicable, and in that event, it would be bounden duty of the authorities concerned to undo the wrong which has been done. Here, in the present case, admitted position is that plot Jo. 735 of Khata No. 181 was never declared surplus: Petitioner has specifically contended that he was in cultivators possession of plot No. 735 of Khata No. 181, for which he has relevant receipts in his favour, and in this background application was moved by him, and the same could not have been rejected being time barred: The patta in question is no patta in the eyes, of law, specially when the land in question had never been part and parcel of ceiling proceedings and was never declared surplus. In fact, it was a void document. The position could have been different, had the land off question been declared Surplus. Once the land in question had not been declared Surplus, by no stretch of imagination, it could have. been treated as surplus and put to allotment. Declaration of land as surplus for being allotted is condition precedent. and the same is sine- qua-non for making allotment, which in the present case is completely lacking and missing. Therefore, the order passed against the petitioner is unsustainable and the same cannot be subscribed. 8, Consequently, writ petition succeeds and is allowed. The order dated 18. 6. 2004, passed by respondent No. 2 is quashed. In case, respondent Nos. 6 and 7 claim that they have been allotted land other than plot No 735 of Khata No. 181, then they can always approach the authority concerned and get their land demarcated in accordance with law. .;