M. Tiwari vs P. Authority and Others

Sibghat Ullah Khan, J.—Through this review petition, review of my judgment dated 19.02.2007 has been sought through which I dismissed the writ petition. Relevant portion of my judgment is quoted below:

Even during consolidation, no objection was raised and no prayer was made for recording the land in the name of Deity. The Supreme Court in Narender Singh and Others Vs. Jai Bhagwan and Others, has held that if such type of objection is not taken in consolidation proceedings then it can not subsequently be raised and it would be barred by Section 49 of U.P. Consolidation of Holdings Act. In Kailash Chandra v. State 2007 (2) ADJ 113, I have held that in view of the aforesaid Supreme Court authority no such plea can be raised before the ceiling authority if it was not raised during consolidation operations. In the said Judgment, I have further held that earlier contrary view taken by this Court in some authorities is no more good law in view of the aforesaid Supreme Court judgment. Accordingly the aforesaid plea was not available to the Petitioner, as it had not been raised during consolidation operations.

After 24.1.1971 some suits were filed in between Petitioner and other persons who were very close relation of Petitioner and the said suits were decreed on the basis of compromise. Both the courts below rightly ignored the said decrees as they were obtained/ passed after 24.1.1971 in view of Section 5(6) of Ceiling Act.

2.The review petition was filed mainly on the ground that the Deity had filed objections before the Prescribed Authority and even though the Prescribed Authority had rejected the same but against that order two appeals, i.e. Ceiling Appeals No. 29/D and 30/D, both of 1995, Krishna Lal Tripath v. Prescribed Authority were pending before the Commissioner.On 07.01.2009, I directed the learned standing counsel to verify as to why the appeals had not been decided for 13 years. Thereafter on 07.01.2010 I passed the following order:

On 07.01.2009, an order was passed on the order-sheet directing learned standing counsel to verify as to why Ceiling Appeals No. 29/D & 30/D, both of 1995, Krishna Lal Tripathi v. Prescribed Authorityhad not been decided. Learned standing counsel states that he requires some further time to verify this fact.

It is directed that the said appeals shall be decided on top priority basis preferably on the next date fixed in the appeals or at least arguments must be heard on that date. Appeals are pending before Commissioner Gorakhpur Division, Gorakhpur. Absolutely no adjournment shall be granted to the Appellants. Appeals shall positively be decided within two months. Petitioner shall file certified copy of this order before the Commissioner/ appellate court within two weeks.

List after two months.

Until next date of listing, operation of my judgmentand order dated 19.02.2007 shall remain stayed.

Office is directed to supply a copy of this order free of cost to Sri S.P. Mishra, learned standing counsel, by tomorrow.

Ultimately Commissioner decided the appeals on 29.04.2010 and the said judgment was filed along with supplementary affidavit on 24.11.2010 when arguments were heard and order was reserved. The said order is quoted below:

This matter was heard before lunch. Alongwith supplementary affidavit dated 21.10.2010 copy of judgment dated 29.4.2010 passed by Commissioner, Gorakhpur in appeal No. 20/22/29/D-1995 has been annexed. Learned standing counsel was directed to ascertain as to whether any writ petition against the said judgment of the appellate court has been filed or not. Learned standing counsel states that no writ petition against the said judgment has been filed till date.

Accordingly order reserved.

In the judgment, number of the appeal is mentioned as No. 20/22/29/D of 1995 and the Appellant is shown as Thakur Ram Janki Mandir Mauja Piparajham Paragana Shahjahanpur, District Deoria. Petitioner of this writ petition was Respondent No. 3 in the said appeal. The said appeal was allowed by Commissioner, Gorakhpur Division, Gorakhpur. The entire reasoning is given in penultimate paragraph which is only of seven lines according to which among tenure holders (khatedaran) family settlement took place in 1962 and Ramlali mother of tenure holder Markandey made a Waqf of the land on 13.05.1958 in favour of Thakur Ji Ramjanki Temple, which (wakf) was before the cut off date prescribed under the Ceiling Act, i.e. 24.01.1971, hence no surplus land was left with the tenure holders and on the land of the trust, Ceiling Act does not apply and it is entitled to the benefit u/s 6(9).

The less said about such type of approach/ orders the better. Nothing has been said regarding authenticity of family settlement and why it was not given effect to in the revenue records. Partition of agricultural property can take place only through suit for partition u/s 176 of U.P.Z.A. & L.R. Act. Similarly nothing has been said regarding authenticity of the alleged Waqf dated 13.05.1958. It has also not been discussed as to why the name of the Thakur Ji Ramjanki Temple was not mutated in the revenue records if in fact Waqf/ trust had been created in 1958. Either copy of my judgment sought to be reviewed was not filed before the Commissioner or Commissioner did not care to look into that.

The most wonderful thing is that on 24.11.2010 when arguments were heard, learned standing counsel boldly stated that no writ petition had been filed against the judgment of the Commissioner. It appears that the concerned State officers are quite willing to help the Petitioner. The court cannot do anything in such scenario. It is quite clear that the State Government is not at all serious in enforcing the Ceiling Act.

It is preposterous to suggest that on the basis of judgment of the Commissioner, High Court should review its judgment. This was precise argument, which was raised by the learned Counsel for the Petitioner. do not find any substance in it. The position should have been otherwise. However the Commissioner said nothing about my judgment sought to be reviewed, which was at least binding upon it as precedent. In any case there is no discussion regarding the judgment of Supreme Court mentioned in my judgment.

I do not find any occasion to review my judgment. Review petition is therefore dismissed.

Office is directed to supply a copy of this order free of cost to learned Chief Standing Counsel for sending to Principal Secretary concerned and Chief Secretary.