Siddhartha Varma, J. - (1.) After a notice was issued in the year 1976 under Sections 10(2) of the U.P. Imposition of Ceiling on Holdings Act, 1960 the respondent no.4 replied to it. However, inadvertently he included those plots of land also which were sold to the petitioner earlier on 27.9.1967 treating them as his own. The prescribed authority on 21.4.1977 ultimately declared 7 bighas 5 biswas of land as surplus of the respondent no.4 and when the respondent no.4 was required to give his choice about surrendering of the surplus land then he gave a choice which included the land of the petitioner as well which was measuring 5 bighas and 4 biswas. Of course the remaining 2 bighas and 1 biswa surplus land was taken out from the holding of the respondent no.4. When possession was being taken, the petitioner filed a recall application on 7.12.1987 which was dismissed in default on 2.1.1989. Therefore, to get the order dated 2.1.1989 recalled another restoration application was again filed on 26.2.2011. The prescribed authority dismissed the recall application on 27.6.2012 and the Commissioner on 30.8.2012 dismissed the appeal. Being aggrieved thereof the petitioner filed the the instant writ petition.
(2.) Learned counsel for the petitioner has submitted that the petitioner who was a tenure holder on the date when land was declared surplus was residing at Panipat and therefore on account of absolute lack of knowledge, could not file the recall applications in proper time. The further submission of the learned counsel for the petitioner is that had the respondent no.4 not included the land which was sold to the petitioner on 27.9.1969, as his own land then the land of the respondent no.4 would have been declared suplus after taking his land alone into account. He submits that the action of respondent no.4 cannot be justified and can be termed as a fraudulent act. Learned counsel for the petitioner relied upon (Jeet Narain and another vs. Govind Prasad and others, 2010 3 ADJ 470) and submitted that it is settled law that fraud vitiates even the most solemn proceedings. He also relied upon (State of Andhra Pradesh and another vs. T. Suryachandra Rao, 2005 AIR(SC) 3110) and submitted that the tenure holder therein had surrendered as surplus a land which was already an acquired land and the Supreme Court had held that since this was a fraudulant act at the behest of the tenure holders the Authorities could look into the matter at a later stage. Similarly the learned counsel submitted that in the instant case also the authorities had found that fraudulently the tenure holder had surrendered a land which was not his then the orders should have been recalled.
(3.) Learned counsel for the respondent in his reply submitted that there was no fraud on his part because it appeared that the petitioner had treated the land of the petitioner as his own land owing to some inadvertent mistake. He should not have included the land which he had sold out. He submits that the respondent no.4 was unaware of the reply which was given on in his behalf by his lawyer and, therefore, wrongly the land which was already sold out was included. He also submits that since the land which was sold out to the petitioner was treated as his own land he was also put to harm as needlessly his land was declared surplus. He further submits that had his lawyer known that the land was not his he would have definitely included this fact in his reply and no land of his own would have been declared surplus.;