Mahmood Rais and Others vs State of U.P. and Others

A.P. Sahi, J.—The petitioners are aggrieved by the order of the Commissioner, Chitrakoot Dham Mandal, Banda dated 16.5.2008 whereby the learned Commissioner has refused to grant any interim relief to the petitioners in the proceedings of appeal pending before him under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. The same is questioned on the ground that it is the statutory right of the petitioners to file an appeal and once the appeal had been admitted, then the Commissioner ought to have granted an interim order in order to protect the interest of the parties during the pendency of the appeal.

For the purpose of consideration of grant of interim relief, the settled principles of prima facie case, balance of convenience and irreparable injury has to be kept in mind before passing an order either refusing or granting an interim order. The purpose of an interim order is to preserve the state of affairs so as to avoid any prejudice to the parties during the pendency of the litigation. The balance of convenience and the likelihood of injury has to be assessed.

Sri Chaudhary N.A. Khan learned Counsel for the petitioners contends that not only this, the entire proceedings which have been under taken by the ceiling authorities pursuant to the order of this Court dated 15.5.2006, are not in correct perspective inasmuch as, once the family settlement on the basis whereof the transfer in the year 1959 had been accepted by the appellate authority on 27.9.77, then there was no occasion for the authorities to have invoked the provisions of Section 38B of the Act, 1961 on the same issues more so when the State did not choose to file any writ petition questioning the order of''the appellate authority dated 27.9.1977.

Learned standing counsel on the other hand contends that it is on account of the directions issued by this Court that the matter was taken up by the prescribed authority and he has proceeded to decide the issue in accordance with law. It is undisputed that against the order of the prescribed authority, the petitioners preferred the appeal in which the learned Commissioner refused to grant an interim order vide impugned order dated 16.5.2008. The appeal is still pending before him. The appellate authority has refused stay upon discussing the merits of the claim only on the ground that the petitioners and the tenure holder are not entitled to exercise any further right of choice in respect of the plots in dispute, as their entitlement has been rightly adjudicated.

Affidavits have been exchanged and the matter is being disposed of under the rules of the Court with the consent of parties.

Having heard learned Counsel for the parties, it appears to be necessary to discuss the prima facie case of the petitioners. There was some dispute about the first notice which was disposed of on 31.1.75 on the ground that the mutation order as a consequence of the family settlement had not been actually carried out and whether there was any adverse order by the Addl. Commissioner in respect of the mutation order or not. The prescribed authority who disposed of the matter on 31.1.75 entertained the recall application which was described as a review application moved by the Naib Tahsildar (Ceiling) and the said review application was allowed on 25.7.1975, on the ground that mutation order which had been carried out pursuant to the family settlement, had been put in abeyance by the Additional Commissioner. Consequently the prescribed authority delivered a judgment dated 24.9.75 and declared certain land surplus.

Aggrieved, the tenure holder Rais Ahmad filed an appeal questioning the said order of the prescribed authority. The said appeal was allowed by the then District Judge on 24.9.1975. A copy of the said judgment is on record as Annexure-3. The learned District Judge rightly held that the review application was not maintainable inasmuch as there was no mistake, fraud or misrepresentation on the part of the tenure holder. On the contrary, a clear finding was recorded that the mistake if any was on the part of the ceiling authorities. Even otherwise the mutation orders do not confer any title and they simply record the ownership or tenancy as the case may be. It was further held that in view of the family settlement having not been disproved, the review application was not maintainable and the order of the prescribed authority recalling his earlier decision dated 31.1.75 was unjustified. Accordingly, the appeal was allowed and the order of the prescribed authority dated 25.7.1975 was set as aside. It is noteworthy that no writ petition or any proceeding was undertaken by the State questioning the correctness of the said appellate order dated 24.9.1975.

A third notice was served on the petitioners. The objection was filed by the tenure holders on 23.7.1976. Again, the prescribed authority on the same ground with regard to the family settlement came to the conclusion that there was surplus land with the tenure holder. The appeal was filed by the tenure holder and the said appeal was allowed on 27.9.1977. It would be appropriate to extract the findings of the appellate authority as in the opinion of this Court the same would operate and militate against the consequent proceedings which are sought to be re-opened by the prescribed authority. The extract of the said order is quoted below:

I have heard the parties at length and have gone through the record.

The total land of the tenure holder was shown to measure 151.84 acres of land. The entire land was shown to be unirrigated equivalent to 60.73 acres of irrigated land. The tenure holder was entitled to retain 32 acres and as such 27.89 acres was declared to be surplus.

The only point which has been raised is a family settlement between the tenure holder Rais Ahmad and his sons in June, 1959. The said family settlement is alleged to be oral. There is an established principle of law that it is not necessary for the persons claiming title in the family settlement that they have an anterior title. I am supported in my view by Smt. Faqra Begum and Ors. v. State of U.P. and Ors. 1977 AWC 330.

Thus, it remains a question of fact whether there has been a family settlement in June, 1959 as contended by the tenure holder and his sons.

The tenure holder has examined himself as well as his son Javed Rais and Mangal Singh surplus Co-operative Society, Balvit Singh, Ram Singh and Ram Narain Pradhan. All these persons have consistently stated about this family settlement in June, 1959. It has come in their statement that the tenure holder Rais Ahmad used to spend lot of money and for that matter he was wasting the property whereupon his wife wanted to safe guard the interest of his sons and as such the said settlement was arrived at.

The Lekhpal Durgadin who was examined on behalf of the State has also conceded in very clear terms that there has been a family settlement amongst Rais Ahmad and his six sons. He also cultivate their land separately.

It is thus very much apparent by the material on record that the family settlement as pleaded by the tenure holder and his sons is admitted to the Lekhpal himself.

Apart from this oral evidence the other material on record also support the contention of the tenure holder. The sons of the tenure holder applied for mutation of their names which was allowed and their names were mutated on their respective areas on 7.9.59.

It appears from the other documents on record that Syed Ahmad alias Gabros and Rashid Ahmad who are the step brothers of Rais Ahmad also claimed title over this land. Their names were however not mutated over these plots. They filed a suit in the Court of Assistant Collector, Mahoba with regard to the declaration of their rights u/s 229B of the U.P. Z.A. and L.R. Act. It has been alleged in para 13 of plaint of that suit that Rais Ahmad and his sons have entered into a family settlement. The tenure holder Rais Ahmad and his sons have contested that suit. This copies of the written statement of that suit are also on record in which they have pleaded the existence of the family settlement and also denying the title of Syed Ahmad and Rasheed. This Court is not concerned in these proceedings whether Rasheed Ahmad and Syed Ahmad have any title in the property inasmuch as the notice u/s 10(2) of the U.P. Act, 1961 has not been served upon them nor they have themselves come forward and claimed title in it. The land inasmuch as had it conceded their title there was no occasion for any notice u/s 10(2) of the U.P. Act, 1961 to any of persons. The fact remains that the existence of this family settlement has been pleaded ever in the said revenue suit.

It further appears that a notice u/s 10 (2) of the U.P. Act, 1961 was issued to Rais Ahmad in the year 1961 vide Case No. 24 of 1061. The notice was issued with regard to the same plots. Rais Ahmad pleaded family settlement in those proceedings. It was accepted and the notice was discharged on 1.5.63.

The tenure holder has also filed before me certain other papers of another celling case, which was Instituted against him in the year 1975. The record of the court below of that case is also tagged with the trial court record of this case. It appears that a notice u/s 10 (2) of the 1961 Act was issued to the tenure holder Rais Ahmad vide Case No. 130/196 and by the order dated 3.1.75 passed by Sri M.C. Yadav, the notice was discharged inasmuch as the family settlement was accepted. The record further shows that the State then applied for the review of the order dated 3.1.75. It was allowed by Sri M.C. Yadav on 25.7.75 against which Rais Ahmad preferred Ceiling Appeal No. 26 of 1975 which was allowed and It was ordered that the order could not be reviewed. It was also observed in this Judgment that there was no surplus land of the tenure holder Rais Ahmad measuring thus by that the validity of the family settlement was upheld.

After going through the entire material on record I feel satisfied that there has been a family settlement in June, 1959 amongst Rais Ahmad and his sons and the land was separately in possession amongst all of them as has been pleaded in the objections of the tenure holder as well as his sons. This fact is also conceded by the Lekhpal Durgadin. In this view of the matter the tenure holder has no surplus land. Both the appeals thus deserve to be allowed.

No other point was raised before me.

It is again not disputed in the counter-affidavit that no writ petition was filed questioning the said appellate order dated 27.9.77. It is evident that the family settlement had been believed on the basis of the evidence adduced and full opportunity to the State to contest the said position. As a matter of fact, the matter was considered thoroughly and no room was left for doubting the family settlement which came to be believed and accepted by the appellate authority. No writ petition was filed questioning the same. In the opinion of the Court there remains nothing to be re-adjudicated again and again on the same issue of family settlement. An oral family settlement is also acknowledged in law. Reference may be had to the decision in the case of Tek Bahadur Bhujil Vs. Debi Singh Bhujil and Others,

Inspite of this, another notice was issued on 14.5.82 and the notice was replied on 26.4.84. The objections were rejected and the appeal filed against the same met the same fate. A writ petition was also filed questioning the said order before this Court and the writ petition was initially dismissed in default and a review application also met the same fate. Both the High Court orders were set aside by the Apex Court and the matter was remanded to this Court to decide afresh on merits. The matter was adjourned by this Court after recording a clear finding to the effect that the matter had been adjudicated thrice and there did not exist any justification for having issued the fourth notice to the petitioners.

However, the Court remanded the matter in order to determine the question of the existence of the mutation order in favour of the tenure holder. While doing so, this Court recorded a clear finding that the charges of fraud and misrepresentation cannot be said to be fully established against the petitioners. Even otherwise an entry or a mutation order is a summary description about the person claiming ownership. It is not a final proof of title. Mutation simply records the entitlement of a person. The entry or the mutation proceedings are subordinate to and subject to the adjudication of substantive rights of the parties. In the instant case the rights of the claimants flow from the family settlement which has been believed after full contest in appeal vide order dated 27.9.1977.

In view of the aforesaid circumstances, it is clear that neither the family settlement was overturned by this Court nor was the theory of any fraud or mis-representation on the part of the petitioners believed by this Court. In such a situation, there was no occasion for the prescribed authority to have re-opened the issue which had already became final after contest and after having led evidence in this regard. The appellate order dated 27.9.1977 has attained finality almost in all respects and no room was left for the prescribed authority to travel beyond it keeping in view of the provisions of Section 38B of the Act which has been explained by the Court in the case of Devendra Nath Singh (Dead) through Lrs. and Others Vs. Civil Judge, Basti and Others, and in the case of Ram Bhau Singh v. Addl. Commissioner 2007 (5) ADJ 593 : 2007 (6) AWC 6060.

The authorities also have to take into account the fact that even though the Ceiling Act has been enforced with a view to secure the ideals of social justice as visualised under the Constitution and to ensure equal distribution of wealth and natural resources as an underlying theme, yet the Act protects the tenure holder to the extent of the ceiling area prescribed and also contemplates exemptions. It is not an altogether device or contrivance to snatch away land but is an instrument of peaceful distribution of the assets of the State. Land is dear equally to the havens as well as to the poor. The Constitution protects both and the law does not intend to deprive the claimant of all his land. The protection so guaranteed under the law stands supported by a constitutional guarantee contained in Article 300A of the Constitution of India which declares that no person shall be deprived of his property save by authority of law.

It is now well known that the requirement of land, free from fetters, is required for a lot of projects as a result whereof the Urban Land Ceiling Act came to be repealed. The housing sector came to be saturated and further land acquisition proceedings are being undertaken to satisfy public needs, but upon payment of full compensation, and not by confiscation. There cannot be a judicial debate on any contradictions in relation to the policy of the Government for Urban Ceiling, which was a Central Act and for Ceiling on Agricultural Holdings which is for land reforms and is protected under Schedule 9 of the Constitution. Yet there are examples that are thought provoking and may be paradoxical in the sense that the theory of land distribution as a measure of social justice has been propagated on different plains at different places. This may not call for any judicial pronouncement in this case, yet there are no dearth of such examples, and a Times of India news to the following effect published through Tinesh Bhasin and Dinesh Narayanan Correspondents T.N.N., casts a reflection on the latest policies of the Government that is projecting the development of Special Economic Zones and other private commercial projects, involving huge areas of ownership of land by the private sector:

New-age landlords want more:

Mumbai: In the past, nations fought wars for control over land. In times to come, we will witness a different kind of war individual''s endeavour to accumulate scarce land which will be the largest source of power. The scramble for land in the recent past has seen the emergence of half a dozen men, who hold between them an enormous 1,30,625 acres (537 sq. km.) enough to build a city bigger than Mumbai.

First on the list is Mukesh Ambani, with two special economics zones (S.E.Zs.) Mukesh controls 60,000 acres of land in two States. This includes 35,000 acres in Maharashtra under the Maha Mumbai project and 25,000 acres in Haryana.

Mumbai S.E.Z. will be developed with an estimated investment of Rs. 25,000 crore in Haryana S.E.Z. would be around Rs. 40,000 crore. The land owned by Reliance is more than half the size of Mumbal city. Of total land only 15,000 acres will be used for industrial units. Current S.E.Z. norms allow Ambani to develop whatever he wishes on the remaining 45,000 acres.

Unitech M.D. Sanjay Chandra holds about 24,460 acres of land. The largest chunk is under a 20,000 acre S.E.Z. in Haryana. The Government has given in principle approval to the project. Chandra has also bought around 400 acres each in Bangalore and Kolkata.

Mukesh Ambani

Landholdings : 60,000 acres

Where : 35,000 acres in Maharashtra and 25,000 acres in Haryana under special economic zones.

Sanjay Chandra

Landholdings : 24,460 acres

Where : 20,000 acres in Haryana for a special economic zone. Smaller tracts of land in Bangalore, Kolkata Chennai and Hyderabad.

Subrata Roy

Landholdings : 20,000 acres

Where : 10,000 acres in Maharashtra under Aamby Valley project and over 100 acres of land in 100 cities across India.

Anand Mahindra

Landholdings : 10,000 acres

Where : 9,000 acres spread across Maharashtra, Rajasthan and Tamil Nadu for S.E.Z., 1,100 acres in Faridabad

Ajit Gulabchand

Landholdings : 10,000 acres

Where : 10,000 acres of land under an S.E.Z. in Pune and about 1,000 acres in and around Thane and Panvel

Kushal Pal Singh

Landholdings : 1,362 acres

Where : Centred in and around Gurgaon. He is stated to add 2,893 acres to his kitty.

The aforesaid data is only a newspaper report and is not being accepted as any evidence by this Court but the same is only to illustrate the reflections made hereinabove. The sad illustration has nothing to do with the merits of the case at hand.

The authorities therefore, have to keep in mind that they are no magicians to draw out some evidence from a magical hat nor they have unlimited powers to re-agitate issues already settled upon evidence having been taken. The proceedings have not to be placed at par with a Pandoras Box as they are very near to judicial adjudication. They do not have to repeat the same performance for a better result. This would be against law and against public policy. It is only where some new acquisitions have been made or some new fact which may come into existence later on, that the provisions of Section 38B rescue the State against res Judicata. This is only to ensure any escape from assessment by the authorities that was otherwise capable of being considered.

There is yet another aspect which has to be dealt with in such matters. The provisions of the Act do not altogether throw away over board the doctrine relating to finality. The question of issue estoppel and its distinction from res Judicata and constructive res Judicata has been dealt with in paras 39 and 40 of the judgment in the case of Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas and Another, It is true that these general doctrines may not override a statutory provision yet the principles enshrined therein cannot be construed to have been whittled down in law. The provisions contained under the Ceiling Act cannot be construed to the extent of diluting the impact of the said principles when the matter has been decided between the same parties on the same set of evidence without there being anything new. It is akin to the principles employed while dealing with the doctrine of precedents which also finds mentioned in Ambika Prasad v. State of U.P. : AIR 1980 SC 1762 and in the Full Bench decision of our Court in the decision of Oriental Insurance Co. Ltd. and Others Vs. Verda Ram and Others, The doctrine of finality has also been discussed as being a doctrine which is to promote public interest. Reference may be had to the case of Kirit Kumar Chaman Lal Kundaliya Vs. Union of India (UOI) and Others, and in the matter of taxation in the case of Devilal Modi, Proprietor, M/s. Daluram Pannalal Modi Vs. Sales Tax Officer, Ratlam and Others, In the instant case after the order of the appellate authority was pronounced on 27.9.1977 regarding a finding on the issue of family settlement, and the State did not choose to file any writ petition questioning the said order, then in the opinion of this Court the doctrine of finality would be attracted in such a situation.

The aforesaid aspects which make out a strong prima facie case of the petitioners have not been discussed by the learned Commissioner at all. The proceedings are to bring about the confiscation of the property of the petitioners and as such a judicious discretion on a careful consideration should be exercised by the authority in such matters. What is "judicial discretion" has been extracted and explained by the Apex Court in the case of Reliance Airport Developers Pvt. Ltd. Vs. Airports Authority of India and Others,

Having considered the aforesaid aspects in the opinion of the Court there was no Justification for the Commissioner to have refused stay keeping in view the background of the case. The petitioners had more than sufficient grounds for grant of interim relief and had a strong prima facie case as discussed above.

Accordingly, the impugned order is unsustainable. The order dated 16.5.2008 is quashed. The respondent authorities are restrained from altering the status quo in respect of the disputed land and its possession during the pendency of the proceedings. The writ petition is accordingly allowed.