Kaluwa and Others Vs. State of U.P. and Others

Kaluwa and Others vs State of U.P. and Others

Type Court Judgment Court Allahabad Decided Mar 31, 2011

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Citation: sooperkanoon.com/917528
Court: Allahabad High Court
Judge: Sibghat Ullah Khan, J.
Decided On: Mar 31, 2011
Case Number: WRIT - C No. - 2428 of 1995
Subject: Property

Case Summary

AI-generated summary - not the official court judgment text.

[R.V. Raveendran; A. K. Patnaik] Indian Penal Code Section 452 - House-trespass after preparation for hurt, assault or wrongful restraint -- After investigation, the police filed two challans on 02.02.2006 before the Judicial Magistrate, First Class, Ludhiana. After further investigation, the Superintendent of Pol...

Key legal issue: Property
Acts & sections: U.P. Imposition of Ceiling on Land Holdings Act, 1960 ; Contract Act - Section-65

Parties & Advocates

Appellant / Petitioner

Kaluwa and Others

Advocate D.S.Srivastava, Adv

Respondent

State of U.P. and Others

Advocate S.C. Adv

Legal References

Acts: U.P. Imposition of Ceiling on Land Holdings Act, 1960 ; Contract Act - Section-65
Cases Referred: Rajendra Singh v. State of U.P.

Excerpt

.....section 173 of the cr.p.c. under which the police submits reports after investigation and after further investigation, section 190 of the cr. p.c. under which the magistrate takes cognizance of an offence upon a police report and section 482 of the cr.p.c. under which the high court exercises its powers to quash the criminal proceedings. report of police officer on completion of investigation. cognizance of offences by magistrate. sub-section (8) of section 173 further provides that where upon further investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall also forward to the magistrate a further report regarding such evidence and the provisions of sub-section (2) of section 173, cr.p.c., shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). thus, the report under sub-section (2) of section 173 after the initial investigation as well as the further report under sub-section (8) of section 173 after further investigation constitute "police report" and have to be forwarded to the magistrate empowered to take cognizance of the offence. r.p. kapur moved the punjab high court under section 561-a of the code of criminal procedure for quashing the proceedings initiated by the first information report. .....state, by itself selected the land to be taken as surplus. in any case in view of section 5(8) of the ceiling act as interpreted by the aforesaid authority of the supreme court, the deeds are void hence not only state is at liberty to take possession of the sold land but even tenure holder can give the said land in choice.11. however, under section-65 of contract act "when an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it, to the person from whom he received it."12. accordingly, order declaring and taking surplus land and the order dated 12.12.1994 through which land in dispute was allotted to the allotteesrespondent nos. 5 to 9 cannot be set aside. however, petitioners are entitled to reimbursement of the sale consideration alongwith 15% per year interest/compensation from the date of the sale till 1994 when the land was allotted to respondent nos. 5 to 9. it appears that in view of stay order granted in this writ petition petitioners are in possession. (for this reason this writ petition was once dismissed on 14.12.2007 however, that order was set asideon 24.11.2010 and writ petition was restored). accordingly, the petitioners shall forthwith withdraw their possession and shall not interfere in the possession of the allottees. after the petitioners withdraw their possession or are evicted, petitioners may apply to the collector for realisation of the aforesaid amount from respondents nos. 10 and 11. if such an application is filed after vacation of the land by the petitioners then the said amount (sale consideration and compensation) at the rate of 15% per year) shall be realised by the collector from respondent nos. 10 and 11 and be paid to the petitioners.13. writ petition is disposed of accordingly.

Full Judgment

1. Heard learned counsel for the petitioners and learned standing counsel for respondents nos. 1 to 4. No one appeared on behalf of respondents No.5 to 11 even though the case was taken up in the revised list. Petitioners who are 8 in numbers purchased different portions of plot no 3825-M situate in Mauja Bhaisaundha Pargana and tehsil Karvi District Banda from Laxmi Prasad father of respondent nos. 10 and 11 through different sale deeds. Total purchased area was 11.25 acres. Details of the sale deeds are given in paragraphs 3 to 7 of the writ petition. The sale deeds were executed in 1976, 1979 and 1983.

2. Proceedings for declaration of surplus land under U.P. Imposition of Ceiling on Land Holdings Act, 1960 had been initiated against Shri Laxmi Prasad proposing to declare 4.83 acres irrigated land as surplus. Prescribed authority through order dated 3.10.1986 held that no land was surplus with Laxmi Prasad. The judgment was reversed in appeal which was allowed on 5.4.1988 (appeal no.717 of 1986-87) and an area of 11.56 acres irrigated land equivalent to 28.9 acres general land was declared as surplus. Respondent nos. 10 and 11 challenged the said decision through writ petition no.11263 of 1988 which has been dismissed in default on 12.09.2007. In the said writ petition on 20.5.1988 stay order was passed. State asserts that possession had been taken on 11.5.1988.

3. Respondents nos. 5 to 9 are the allottees of the land to the extent of 2 acreseach. Counter affidavit on behalf of State has been filed by Tehsildar concerned. In the counter affidavit it has been stated that possession had been taken on 11.5.1988. However, it is not clear either from the writ petition or the counter affidavit as to whether choice of surplus land was given by the tenure holders or State, by itself took possession of the area equivalent to the declared surplus area.

4. The Supreme Court in "Rajendra Singh v. State of U.P." AIR 1999 S.C.124 has held that sale deeds executed by the tenure holder after 08.06.1973 but during the pendency of the proceedings for determination of the surplus area would be void in view of Section 5(8) of the U.P. Imposition of Ceiling on Land Holdings Act 1960. The said section is quote below:

S.5(8) Notwithstanding anything contained in sub-sections (6) and (7), no tenure-holder shall transfer any land held by him during the continuance of proceedings for determination of surplus land in relation to such tenure-holder and every transfer made in contravention of this sub-section shall be void.

Explanation - For the purposes of this sub-section, proceedings for determination of surplus land shall be deemed to have commenced on the date of publication of notice under sub-section (2) of Section 9 and shall be deemed to have concluded on the date when an order in relation to such tenure-holder is passed under sub-section (1) of Section 11 or under sub-section (1) of Section 12, or as the case may be, under Section 13."

5. The proceedings against Laxmi Prasad were pending since before 10.4.1975 as the first order was passed by the Prescribed authority on 10.4.1975 against which Laxmi Prasad had filed appeal no.115 of 1975 which was dismissed by District Judge, Banda through judgment and order dated 16.9.1975. Thereafter Laxmi Prasad filed writ petition no.12198 of 1975 which was partly allowed on 25.9.1978.

6. Learned counsel for the petitioner has cited two authorities of this Court reported in Mohd. Hayat Khan v. State of U.P, 1990 RD 39 and Mohd.

7. M. Hasan and others v. Additional Commissioner, 1995 RD 186.However both these authorities relate to Section 5(6) and Section 12-A(d) of the Ceiling Act which apply only to those sale deeds which were executed in between 24.01.1971 and 08.06.1973.

8. Accordingly, it is held that the deeds are void.

9. Learned counsel for the petitioner has invitated the attention of the court to one of the sale deeds dated 7.6.1976, copy of which is Annexure-6 to this writ petition. In the said sale deed Laxmi Prasad had specifically mentioned that he would not give the said land in ceiling. That was in respect of 2 acres land and was sold in favour of Ram Dass petitioner no.6.

10. s stated earlier it is not clear as to whether choice was given by the tenure holder or State, by itself selected the land to be taken as surplus. In any case in view of Section 5(8) of the Ceiling Act as interpreted by the aforesaid authority of the Supreme Court, the deeds are void hence not only State is at liberty to take possession of the sold land but even tenure holder can give the said land in choice.

11. However, under Section-65 of Contract Act "when an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it, to the person from whom he received it."

12. Accordingly, order declaring and taking surplus land and the order dated 12.12.1994 through which land in dispute was allotted to the allotteesrespondent nos. 5 to 9 cannot be set aside. However, petitioners are entitled to reimbursement of the sale consideration alongwith 15% per year interest/compensation from the date of the sale till 1994 when the land was allotted to respondent nos. 5 to 9. It appears that in view of stay order granted in this writ petition petitioners are in possession. (For this reason this writ petition was once dismissed on 14.12.2007 however, that order was set asideon 24.11.2010 and writ petition was restored). Accordingly, the petitioners shall forthwith withdraw their possession and shall not interfere in the possession of the allottees. After the petitioners withdraw their possession or are evicted, petitioners may apply to the Collector for realisation of the aforesaid amount from respondents nos. 10 and 11. If such an application is filed after vacation of the land by the petitioners then the said amount (sale consideration and compensation) at the rate of 15% per year) shall be realised by the Collector from respondent nos. 10 and 11 and be paid to the petitioners.

13. Writ petition is disposed of accordingly.

Same Court & Year Allahabad · 2011 Same Parties Kaluwa and Others vs State of U.P. and Others Same Subject Property Same Judge Sibghat Ullah Khan, J. Acts & Sections U.P. Imposition of Ceiling on Land Holdings Act, 1960 ; Contr...

Property