# Bachchoo v. State of U.P

- **Citation:** (2024) 1 ILRA 217
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-06
- **Case number:** Writ C No. 3000059 of 1992
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bachchoo-v-state-of-u-p-50913
- **Pages:** 6

## Headnote

Land Holdings Act, 1960 - Section 12 5(6) &
5(7) -A(d) - The petitioner challenged the
order dated 18.08.1992 by the Commissioner,
Faizabad Division, which allowed the St.'s
appeal and rejected the petitioner's claim to
exclude land from surplus under the U.P.
Imposition of Ceiling on Land Holdings Act,
1960 - Held, the appellate order was upheld as
the petitioner failed to demonstrate eligibility for
exclusion under Sections 5(6) and 5(7) of the
Act, 1960. (Paras 2, 9, 20)

B. Section 12-A(d) - Limited to Tenure
Holder's Choice - The petitioner, claiming
adverse possession, sought exclusion of land
under Section 12-A(d) of the Act, 1960 - Held,
Section 12-A(d) allows only the recorded tenure
holder to choose land to retain within the ceiling
limit, and the petitioner, not being the recorded
tenure holder, could not invoke this provision.
(Paras 10, 14, 15)

C. Sections 5(6) and 5(7) - Conditions for
Exclusion Not Met - The petitioner relied on a
decree dated 22.05.1973 declaring him 'Sirdar'
under Section 229-B of the U.P. Z.A. & L.R. Act
- Held, exclusion under Section 12-A(d) requires
compliance with Sections 5(6) and 5(7), which
218 INDIAN LAW REPORTS ALLAHABAD SERIES
protect bona fide transfers before the cut-off
date, but the petitioner's decree, post-dating the
cut-off, did not satisfy these conditions. (Paras
15, 16, 17)

D. Surplus Land Vested in St. - Decree
Ineffective - The land was declared surplus on
31.10.1974, vested in the St., and possession
was taken - Held, the petitioner's decree of
adverse
possession
did
not
automatically
exclude the land from ceiling operations, as it
was not supported by compliance with statutory
requirements under the Act, 1960. (Paras 9, 18,
19)

E. No Infirmity in Appellate Order - The
Appellate Authority correctly held that the
recorded tenure holders did not object to the
surplus declaration, and the petitioner's claim
lacked legal basis under the Act, 1960 - Held,
the absence of evidence satisfying Sections 5(6)
and
5(7)
justified
the
dismissal
of
the
petitioner's claim, rendering the writ petition
meritless. (Paras 9, 17, 20)

Writ Petition Dismissed - No Costs.

## Text

1 All. Bachchoo Vs. State of U.P.
217
proceedings, with regard to the location of
the disputed property and therefore, in our
considered opinion the principle of res
judicata would not be applicable, in as
much as there is no previous decision of
the
Prescribed Authority
which
has
attained finality which can be binding
between the parties. In absence of any
finality given to any issue between the
parties, the subsequent proceedings are not
hit by the principles of res Judicata. Even
otherwise the principle of the res Judicata
is a principle of public policy that there
should be an end to litigation. The
principle of public policy cannot be
utilised to its detriment and to take
possession of public lands. The petitioner
was unable to produce relevant records
and documents in support of the claim that
the respondent was encroacher upon the
public lands. The second application was
filed along with the survey report and
survey map to demonstrate that the
respondent was encroaching upon public
land, and consequently it was incumbent
upon
the
Prescribed
Authority
to
adjudicate the said case based on merits
and consider the evidence filed by the
petitioner. In absence of any categorical
finding
recorded
previously,
the
Prescribed Authority could not be bound
by the previous finding order, hence it was
open for him to have heard and decide the
case on merits.

25. In light of the above discussion
this Court is of the considered view that
the
order
of
District
Judge
dated
04/04/2012 is arbitrary and requires
interference and is accordingly set aside.
The matter is remitted to the District Judge
to decide the appeal on merits.

26. The writ petition is allowed.
----------
(2024) 1 ILRA 217
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.12.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 3000059 of 1992

Bachchoo ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Shafiz Mirza, Shafiz Mirza, Syed Ahmad
Jamal, Vishnu Srivastava

Counsel for the Respondent:
Umesh Kumar Srivastava

A Writ Petition - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Section 12 5(6) &
5(7) -A(d) - The petitioner challenged the
order dated 18.08.1992 by the Commissioner,
Faizabad Division, which allowed the St.'s
appeal and rejected the petitioner's claim to
exclude land from surplus under the U.P.
Imposition of Ceiling on Land Holdings Act,
1960 - Held, the appellate order was upheld as
the petitioner failed to demonstrate eligibility for
exclusion under Sections 5(6) and 5(7) of the
Act, 1960. (Paras 2, 9, 20)

B. Section 12-A(d) - Limited to Tenure
Holder's Choice - The petitioner, claiming
adverse possession, sought exclusion of land
under Section 12-A(d) of the Act, 1960 - Held,
Section 12-A(d) allows only the recorded tenure
holder to choose land to retain within the ceiling
limit, and the petitioner, not being the recorded
tenure holder, could not invoke this provision.
(Paras 10, 14, 15)

C. Sections 5(6) and 5(7) - Conditions for
Exclusion Not Met - The petitioner relied on a
decree dated 22.05.1973 declaring him 'Sirdar'
under Section 229-B of the U.P. Z.A. & L.R. Act
- Held, exclusion under Section 12-A(d) requires
compliance with Sections 5(6) and 5(7), which
218 INDIAN LAW REPORTS ALLAHABAD SERIES
protect bona fide transfers before the cut-off
date, but the petitioner's decree, post-dating the
cut-off, did not satisfy these conditions. (Paras
15, 16, 17)

D. Surplus Land Vested in St. - Decree
Ineffective - The land was declared surplus on
31.10.1974, vested in the St., and possession
was taken - Held, the petitioner's decree of
adverse
possession
did
not
automatically
exclude the land from ceiling operations, as it
was not supported by compliance with statutory
requirements under the Act, 1960. (Paras 9, 18,
19)

E. No Infirmity in Appellate Order - The
Appellate Authority correctly held that the
recorded tenure holders did not object to the
surplus declaration, and the petitioner's claim
lacked legal basis under the Act, 1960 - Held,
the absence of evidence satisfying Sections 5(6)
and
5(7)
justified
the
dismissal
of
the
petitioner's claim, rendering the writ petition
meritless. (Paras 9, 17, 20)

Writ Petition Dismissed - No Costs.

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Syed Ahmad Jamal,
learned counsel for the petitioner as well as
learned
Standing
counsel
for
the
respondent. As per office report dated
04.12.2023,
service
of
notice
upon
respondent no. 4/1 has been deemed to be
sufficient. Despite service of notice no one
has put in appearance on behalf of
respondent no. 4/1.

2. By means of present writ petition
the petitioner has assailed the order dated
18.08.1992, passed by the Commissioner,
Faizabad Division, Faizabad whereby he
allowed the appeal preferred by the State.

3. Facts in brief of the case are that
present dispute pertains to the property of
which respondent nos. 4 and 5 Someshwar
Prasad Singh and Smt. Shanti Devi
respectively were recorded tenure holders
and a portion of their land was purchased
by the petitioner. Proceedings under the
Imposition of Ceiling on Land Holdings
Act, 1960 (hereinafter referred to as "the
Act, 1960") were proceeded against the
recorded tenure holders and notice was
issued on 06.09.1974, whereby certain
lands of the recorded tenure holder were
declared surplus.

4. The petitioner claims that he was in
possession of part of the said property on
the basis of adverse possession and in this
regard he had filed a suit under Section 229
of the U.P. Z.A. & L.R. Act. The said suit
was decreed on 22.11.1973 and 22.05.1973
and the petitioner was declared 'Sirdar' of
the said property. After being declared as
above, petitioner moved an application
under Section 11(2) of the Act, 1960 before
the Prescribed Authority praying that he
may be given benefit of Section 12-A(d) of
the Act, 1960 and his land may be excluded
from the surplus land, declared surplus at
the hands of the original tenure holders.
The Prescribed Authority duly considered
the prayer made by the petitioner and
allowed his application by means of order
dated 26.02.1983 and excluded the land of
which petitioner was declared "sirdar' and
which was declared surplus at the hands of
the original tenure holders.

5. The State being aggrieved by the
order dated 26.02.1983, preferred an appeal
before the Appellate Authority under the
Act,
1960.
The
Appellate
Authority
considered the entire factual matrix and
was of the view that the recorded tenure
holders had not been heard while deciding
the application of the petitioner under Act,
1960 and was of the view that in case
application of the petitioner has to be
allowed giving him benefit of Section 12-
1 All. Bachchoo Vs. State of U.P.
219
A(d) of the Act, 1960, same could be done
only after giving opportunity of hearing to
the recorded tenure holders and accordingly
by means of order dated 04.07.1988, set
aside the order of Prescribed Authority and
remanded the matter to the Prescribed
Authority for deciding the application
afresh after giving appropriate opportunity
of hearing to the recorded tenure holders.

6. The petitioner being aggrieved by
the remand order dated 07.07.1988 where
appeal of State was allowed, preferred a
writ petition before this Court being Writ
Petition No. 58808 of 1988. This Court was
persuaded to interfere with the order of
Appellate Authority dated 07.07.1988,
observing that recorded tenure holders
could have been given opportunity of
hearing by the Appellate Authority itself
and concluded that this reason was not
sufficient for remanding the matter back to
Prescribed Authority and consequently,
directed the Appellate Authority to re-hear
the appeal after giving opportunity of
hearing to the recorded tenure holders.
While allowing the writ petition the order
of Appellate Authority was set aside and he
was directed to decide the same in the light
of directions issued by this Court.

7. The Appellate Authority in remand
proceedings has again allowed the appeal
of the State by means of order dated
18.08.1992, which has been assailed in the
present writ petition.

8. Before the Appellate Authority the
petitioner
has
contended
that
ceiling
proceedings were concluded by order dated
31.10.1974 and land of which the petitioner
was declared as 'sirdar' was part of the plot
which
was
declared
surplus
by
the
Prescribed Authority. Only ground taken by
the petitioner was that in exercise of power
conferred under Section 12-A(d) of the Act,
1960, his land deserves to be excluded from
the lands which have been declared surplus.

9. The Appellate Authority by means
of impugned order dated 18.08.1992, held
that the proceedings under the Act, 1960
were concluded with regard to recorded
tenure holder on 31.10.1974 and the State
had also taken possession of the said land
and actual physical possession of the said
property was taken by the State and Form
No. 6 was issued in this regard. It was
further observed that the recorded tenure
holder had never raised any objection before
the Prescribed Authority nor do they
exercise their objection under Section 12-A
of the Act, 1960, for excluding the said land
from being declared surplus. In the light of
said finding the appellate Court allowed the
appeal preferred by the State and rejected
the objections preferred by the petitioner.
Against the order dated 18.08.1992, present
writ petition has been filed.

10. Learned counsel for the petitioner
has submitted that once the Court of
competent jurisdiction in exercise of power
under Section 229-B of the U.P. Z.A. &
L.R. Act had declared a land to be surplus
the natural consequence of the same would
be in exercise of power under Section 12A(d) under which the Prescribed Authority
should have excluded the said land from
being declared surplus at the hand of the
recorded tenure holder. It is submitted that
under Section 12-A(d) clear mandate has
been given to the Prescribed Authority to
exclude such land which have been subject
matter of transfer and which are not
included in the land referred under Section
5(6) or 5(7) of the Act, 1960.

11. Per contra, learned Standing
Counsel has opposed the writ petition. He
220 INDIAN LAW REPORTS ALLAHABAD SERIES
submits that objections which are preferred
by the petitioner under Section 11(2) and he
did not seek exclusion of the said land as
contained under Section 5(6) of the Act,
1960 and once the said land is acquired by
the State, there is no provision under which
such land can be excluded. It is submitted
that in this regard there is no error in the
finding recorded by the appellate Authority
and consequently prays for dismissal of the
writ petition.

12. Heard learned counsel for the
parties and perused the record.

13. As narrated above, and undisputed
facts are that the said land was subjected to
ceiling operations of which respondent nos.
3 and 4 were recorded tenure holders. The
recorded tenure holders had not filed any
objection before the Prescribed Authority
and
accordingly
proceedings
were
concluded on 31.10.1974 declaring certain
land to be surplus. The petitioner filed a
suit under Section 229-B of the U.P. Z.A. &
L.R. Act, wherein decree was passed in
favour of the petitioner on 22.05.1973. The
objections raised by the petitioner before
the Prescribed Authority under Section
11(2) of the Act, 1960 were filed on
27.03.1989 with regard to exclusion of said
land under Section 12-A(d) of the Act,
1960. For ready reference Section 12-A(d)
of the Act, 1960 is quoted herein below :-

"12-A. In determining the surplus
land under Section 11 or Section 12, the
Prescribed Authority shall, as far as
possible, accept the choice indicated by the
tenure-holder to the plot or plots which he
and other members of his family, if any,
would like to retain as part of the ceiling
area applicable to him or them under the
provisions of this Act, whether indicated by
him in his statement under Section 9 or in
any subsequent proceedings :

Provided that -

(a) ---

(b) ---

(c) ---

(d) where any person holds land
in excess of the ceiling area including land
which is the subject of any transfer or
partition referred to in sub-section (6) or
sub-section (7) of Section 5, the surplus
land determined shall, as far as possible,
be land other than land which is the subject
of such transfer or partition, and if the
surplus land includes any land which is the
subject of such transfer or partition, the
transfer or partition shall, insofar as it
relates to the land included in the surplus
land, be deemed to be and always to have
been void, and -

(i) it shall be open to the
transferee
to
claim
refund
of
the
proportionate amount of consideration, if
any, advanced by him to the transferor, and
such amount shall be charged on the
[amount] payable to the transferor under
Section 17 and also on any land retained by
the transferor within the ceiling area,
which shall be liable to be sold in
satisfaction of the charge, notwithstanding
any thing contained in Section 153 of the
Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950;

(ii) any party to the partition
(other than the tenure-holder in respect of
whom
the
surplus
land
has
been
determined) whose land is included in
surplus land of the said tenure-holder shall
be entitled to have the partition re-opened."

14. From the perusal of aforesaid
provision it is clear that as per Section 12A(d) of the Act, 1960, in case the land is
more than ceiling limit then the Prescribed
Authority is bound to give option to the
1 All. Bachchoo Vs. State of U.P.
221
recorded tenure holder to choose as to
which land has to be declared surplus. The
case of the petitioner is that land has been
devolved on him by decree of adverse
possession
on
22.03.1973
and
accordingly it is stated that his land
deserves to be excluded which has been
declared
surplus
by
the
Prescribed
Authority. The first question which arises
for consideration is as to whether person
other than the recorded tenure holder can
exercise power under Section 12A of the
Act or not?

15. Bare perusal of Section 12A of
the Act, 1960 would indicate that it is
provided that the Prescribed Authority
shall accept the choice given by the
tenure holder to the plot which he would
like to retain as part of the ceiling area in
determining the surplus land. A perusal of
aforesaid provision would make it clear
that choice, if any, can only be given by
the recorded tenure holder, as provided
under Section 12A of the Act, 1960. With
regard to Section 12-A(d) of the Act,
1960 it is noticed that if any land which
is in excess of the ceiling limit of the
tenure holder, would have to be excluded
in the light of Section 5(6) and 5(7) of the
Act, 1960. In case any transfer is made after
the cut-off date, is found to be bonafide and
for adequate consideration, then as per
provisions of Section 5(6) the same has to
be excluded from the holdings of the
tenure holder and similar would be the
case where any decree has been passed in
the matter on the cut-off date. Sub clause
(d) of Section 12-A is explanatory in
nature and is confined only to the land
which are referred to under Section 5(6)
and 5(7) of the Act, 1960, the Prescribed
Authority is mandated to exclude such
land which have been demonstrated to be
excluded from the holdings of recorded
tenure holder under Section 5(6) & 5(7) of
the Act, 1960.

16. In Section 5, it is further clarified
by the provisions contained in sub section
(8) of Section 5 of Act, 1960 that any
transfer of land executed by the tenure
holder during continuance of proceedings
for determination of surplus land, ought to
have been declared void. It is noticed that
in the present case it was not the case of the
petitioner that transfer by declaratory
decree
by
the
Court
of
competent
jurisdiction was sought to be excluded in
terms of Section 5(6) and 5(7) of the Act,
1960. The petitioner merely claims that the
land deserves to be excluded merely
because he had got decree of adverse
possession in his favour.

17. This Court is of the considered
view that merely obtaining a decree from a
Court of competent jurisdiction in itself
would be of no consequence unless
provisions of Section 5(6) of the Act, 1960
are fulfilled and if the tenure holder is able
to demonstrate that his holdings are below
the ceiling limit and all the conditions as
prescribed under the Act are met.

18. In the present case decree was
passed after the cut-off date and on
31.10.1974 the said land was declared to be
surplus and consequently the said land has
vested in the State Government and even
possession of the same has been taken, the
decree of the Court would not in itself
exclude the land from the clutches of Act,
1960.

19. It was incumbent upon the
petitioner to move appropriate application
before the Prescribed Authority and satisfy
him as to the conditions laid down in
Section 5(6) and 5(7) of the Act, 1960 are
222 INDIAN LAW REPORTS ALLAHABAD SERIES
fulfilled, and only then the said land could
have been excluded from the ceiling
operations. Apart from the above, this
Court is of the considered view that there is
no
power
vested
in
the
Prescribed
Authority to exclude the land merely on
demonstration or production of decree
passed
by
the
Court
of
competent
jurisdiction.

20. In the light of above discussion,
this Court does not find any infirmity in the
impugned
appellate
order
dated
18.08.1992, accordingly, the writ petition
being devoid of merit is dismissed.
----------
(2024) 1 ILRA 222
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.01.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1985 of 2021

Aditya Kumar ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Suresh Kumar Upadhyay, Kamal Kishor
Tiwari, Manoj Kumar Mishra

Counsel for the Respondents:
G.A.,
Maneesh
Kumar
Singh,
Navita
Sharma

Criminal Law - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 14A(1) -
Indian Penal Code, 1860 - Section 376 -
Code of Criminal Procedure, 1973
-
Sections 156(3) & 173(2) - Appellant sought
quashing of Sessions Trial No. 369 of 2021,
summoning
order
dated
29.10.2021,
and
charge-sheet No. A-096 of 2021 for offences
under Section 376 I.P.C. and Section 3(2)(v) of
SC/ST Act, alleging false implication influenced
by victim's husband. Court held: (1) Appeal
under Section 14A(1) of SC/ST Act was
maintainable,
as
summoning
orders
and
proceedings
were
challengeable
despite
alternative remedies, to prevent abuse of
process (Pepsi Foods Ltd. Vs Special Judicial
Magistrate, (1998) 5 SCC 749). (2) FIR disclosed
cognizable offence, with prima facie material
(victim's St.ments under Sections 161 and 164
Cr.P.C., medical examination) warranting trial;
contradictions (e.g., mobile location, delayed
reporting) were factual issues for trial (M/s.
India Carat Pvt. Ltd. Vs St. of Karn., (1989) 2
SCC 132). (3) Appellant's departmental inquiry
exoneration and interim bail did not justify
quashing, as they did not disprove prima facie
case; victim's trauma explained inconsistencies
(Ramveer Upadhyay Vs St. of U.P., 2022 SCC
OnLine SC 484). (4) No material concealment or
abuse of process; allegations of false FIR
required evidentiary adjudication during trial
(Central Bureau of Investigation Vs Aryan Singh,
2023 SCC OnLine SC 379). (5) Summoning
order upheld, as it reflected application of mind
to FIR and charge-sheet; appellant directed to
appear within three weeks, file discharge
application, and trial court to decide within three
months without undue adjournments. Appeal
disposed of; no coercive action till discharge
application disposal. (Paras 24-36)

Appeal Disposed of.

List of Cases cited:

1.
Pepsi
Foods
Ltd.
Vs
Special
Judicial
Magistrate, (1998) 5 SCC 749 (Para 28)

2. M/s. India Carat Pvt. Ltd. Vs St. of Karn.,
(1989) 2 SCC 132 (Para 29)

3. Ramveer Upadhyay Vs St. of U.P., 2022 SCC
OnLine SC 484 (Para 30)

4. Central Bureau of Investigation Vs Aryan
Singh, 2023 SCC OnLine SC 379 (Para 21)

5. Simranjit Singh Mann Vs U.O.I., AIR 1993 SC
280 (Para 22)

6. R.P. Kapoor Vs St. of Punjab, AIR 1960 SC
866 (Para 32)