# M/s Super Cassettes Ind. Ltd v. State of U.P. and another

- **Citation:** (2007) 2 ILRA 530
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-24
- **Case number:** Civil Misc. Writ Petition No. 47151 of 2004
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-super-cassettes-ind-ltd-v-state-of-u-p-and-another-40959
- **Pages:** 5

## Headnote

Sri C.B. Yadav
Sri Pradeep Kumar
S.C.

U.P. Imposition of Ceiling on Land
Holding
Act,
1960-Section-11
(1)-
whether the appeal against the order
pass u/s 11 (1) by Prescribed Authority
maintainable?
Held-'No'-under
this
section either the tenure holder or the
state accept the case of each otherlikewise consent decree.

Held: Para 11

No appeal against orders under Section
11(1) of the Act is maintainable for the
reason that under the said sub-section,
no adjudication takes place. Under the
said sub-section, orders are passed on
admission. Just as under Section 96,
C.P.C., no appeal is maintainable against
decree passed by the Court with the
consent of parties, similarly, against
orders passed under Section 11(1) of the
Ceiling Act, no appeal is maintainable.
Under
the
said
sub-section,
either
tenure-holder accepts the case of the
State or State accepts the case of the
tenure-holder without any contest or
adjudication.

## Text

530 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2007

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 47151 of 2004

M/s
Super
Cassettes
Industries
Limitted

...Petitioner
Versus
State of U.P and others ...Respondents

Counsel for the Petitioner:
Sri Sankatha Rai
Sri Ayub Khan

Counsel for the Respondents:
Sri C.B. Yadav
Sri Pradeep Kumar
S.C.

U.P. Imposition of Ceiling on Land
Holding
Act,
1960-Section-11
(1)-
whether the appeal against the order
pass u/s 11 (1) by Prescribed Authority
maintainable?
Held-'No'-under
this
section either the tenure holder or the
state accept the case of each otherlikewise consent decree.

Held: Para 11

No appeal against orders under Section
11(1) of the Act is maintainable for the
reason that under the said sub-section,
no adjudication takes place. Under the
said sub-section, orders are passed on
admission. Just as under Section 96,
C.P.C., no appeal is maintainable against
decree passed by the Court with the
consent of parties, similarly, against
orders passed under Section 11(1) of the
Ceiling Act, no appeal is maintainable.
Under
the
said
sub-section,
either
tenure-holder accepts the case of the
State or State accepts the case of the
tenure-holder without any contest or
adjudication.

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard Sri Ravi Kiran Jain learned
senior counsel assisted by Sri Ayyub
Khan learned counsel for the petitioner,
learned standing counsel for original
respondents State of U.P and Additional
Commissioner and Sri Pradeep Kumar
learned counsel appearing on behalf of
Greater Noida Gautam Budh Nagar which
has been impleaded through order dated
4.4.2007 passed on its impleadment
application.

2. Prescribed authority under U.P
Imposition of Ceiling on Land Holdings
Act, 1960/ Additional Collector (F & R)
Gautam Budh Nagar in case No. 5 of
2002 under section 9(2) of the Act State
Vs. Super Cassettes Industries Limited
passed an order on 17.12.2003 cancelling
the notice dated 24.1.2002 under section
9(2) of the Act. Against the said order
State filed appeal before Commissioner
being Appeal No. 3 of 2003-04. In the
appeal petitioner who is respondent
therein raised an objection that appeal was
not
maintainable.
Additional
Commissioner (Administration), Meerut
Division Meerut through order dated
29.10.2004 rejected the objection and
held the appeal to be maintainable. This
writ petition is directed against the said
order of the appellate court.

Provision of appeal is provided under
section 13 (1) of the Act, which is quoted
below:

"Any party aggrieved by an order
under sub-section (2) of section 11 or
section 12, may, within thirty days of the
date of the order, prefer an appeal to the
[Commissioner] within whose jurisdiction
the land or any part thereof is situate."
2 All] M/s Super Cassettes Ind. Ltd. V. State of U.P. and another
531
3. The question to be decided in this
writ petition is as to whether the order of
the prescribed authority against which
appeal has been filed falls under subsection (1) or sub-section (2) of the
section 11 of the Act. If the order falls
under sub-section (1) then appeal is not
maintainable.

4. Under section 9 as it stood prior
to 1973, prescribed authority was required
by general notice published in the Official
Gazette to call upon every tenure holder
holding land in excess of the ceiling area
applicable to him to submit within thirty
days statement in respect of his holdings
giving particulars as prescribed. By virtue
of U.P. Act No. 18 of 1973, section 9 as it
stood till then was renumbered as subsection (1) of section 9. Sub-sections (2),
(2-A) and (3) were added in section 9
through the said amendment. Section 9
(2) alongwith its proviso is quoted below:

"S.9 [(2) As soon as may be; after
the enforcement of the Uttar Pradesh
Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972, the Prescribed
Authority shall, by like general notice,
call upon every tenure-holder holding
land in excess of the ceiling area
applicable to him on the enforcement of
the said Act, to submit to him within 30
days of publication of such notice, a
statement referred to in sub-section (1)]

[Provided that at any time after October
10, 1975, the Prescribed Authority may,
by notice, call upon any tenure holder
holding land in excess of the ceiling area
applicable to him on the said date, to
submit to him within thirty days from the
date of service of such notice a statement
referred to in sub-section (1) or any
information pertaining thereto.]
5. It appears that under the powers
granted by the aforesaid proviso general
notice was issued on 24.1.2002, copy of
which is annexure 2 to the writ petition.
The said notice as it top contains the
provision of section 9 (2) of the Act. In
the first para of the said notice given by
Additional Collector (F& R) Gautam
Budh Nagar, it is stated that as per report
of Deputy Collector and Tehsildar,
petitioner had unauthorisedly encroached
upon the land in question. Thereafter it is
mentioned in the notice that every tenure
holder who on 8.6.1973 possessed more
land than permitted to be held under the
ceiling Act should file statement in CLH
Form 2.

CLH Forms 1 and 2 are referred in
Rule 6 of the rules framed under the Act,
which is quoted below:

"6.The general notice to be published
in pursuance of section 9 and the
statement
required
to
be
submitted
thereunder by every tenure holder holding
the land in excess of the ceiling area
applicable to him in the State shall be in
CLH Forms 1 and 2 respectively."

Rules 7 and 8 are also relevant hence they
are quoted below:

"7. (1) Soon after the issue of general
notice in C.L.H Form 1, the Prescribed
Authority shall, after making necessary
enquiries, cause to be prepared a
statement in C.L.H. Form 3.

(2) In
proposing the ceiling area
applicable to a tenure-holder in Part C of
C.L.H Form 3, the Prescribed Authority
shall have regard to the following:

[ (a) ******]
532 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(b) As far as possible, sub-division of
holdings should be avoided by including
in the first instance share of the tenureholder in joint holdings in the proposed
ceiling area applicable to the tenure-
holder.

(c) The ceiling are proposed to be given
to the tenure-holder should be as compact
as possible.

[8. As soon as may be, after the expiry of
thirty days from the date of publication of
the general notice in C.L.H Form 1 in the
Official Gazette, the Prescribed Authority
shall cause to be served upon every
tenure- holder, who has failed to submit
the statement in C.L.H Form 2 or has
submitted an incomplete or incorrect
statement, a notice in C.L.H Form 4
together with a copy of the statement in
C.L.H Form 3 prepared under Rule 6
calling upon him to show cause within a
period of fifteen days from the date of
service of the notice why the aforesaid
statement be not taken as correct:

Provided that where the statement in
C.L.H. Form 3 also includes land
ostensibly held in the name of any other
person, the prescribed authority shall
cause to be served upon such other person
a notice in C.L.H Form 4 together with a
copy of the statement in C.L.H. Form 3
calling upon him to show cause within a
period of fifteen days from the date of
service of the notice why the aforesaid
statement be not taken as correct:

Provided further that in the case of a
tenure-holder who is a member of Armed
Forces (Military, Naval or Air Force) of
the Union of India, the period within
which he will be called upon to show
cause why the statement in C.L.H Form 3
be taken as correct shall be ninety days
from the date of service of the notice in
C.L.H. Form 4.]"

6. In pursuance of notice dated
24.1.2002, petitioner filed objections,
copy of which is annexure 3 to the writ
petition. From perusal of the objections
dated 4.6.2002, it appears that notice
dated
24.1.2002
contained
some
annexures also which have not been
annexed alongwith annexure 2, which is
copy of the notice. In annexure 2 no plot
number is mentioned. However, in the
objections it is mentioned that alongwith
notice CLH Form 5 was annexed
mentioning number of plots belonging to
the petitioners i.e. Khata No. 33, 93 and
102. The main objection was that land had
been purchased through three different
sale deeds of March and April 1987; that
most of the lands purchased were non
agricultural as the vendor had already
obtained a certificate to that effect under
section 143 of U.P.Z.A.L.R Act. In
respect of third Khata i.e Khata number
102 the objection was that it was abadi
land. It was also mentioned that while
preparing CLH Form 5 land was wrongly
shown to be irrigated.

Thereafter
prescribed
authority
decided
the
matter
on
17.12.2003.
Prescribed
authority
in
its
detailed
judgement running into 15 pages held that
provisions of section 9(2) of the Act were
not applicable. Section 11 of the Act is
quoted below:

"S.11. Determination of Surplus land
where no objection is filed.-- (1) Where
the statement submitted by a tenure
holder in pursuance of the notice
published under Section 9, is accepted by
the Prescribed Authority or whether the
2 All] M/s Super Cassettes Ind. Ltd. V. State of U.P. and another
533
statement prepared by the Prescribed
Authority under- Section 10 is not
disputed within the specified period, the
Prescribed Authority shall accordingly,
determine the surplus land of the tenureholder.

(2) The Prescribed Authority shall, on
application made within thirty days
from the date of the order under subsection (1) by a tenure holder
aggrieved by such order passed in
his absence and on sufficient cause
being shown for his absence, set
aside the order and allow such
tenure-holder
to
file
objection
against the statement prepared under
Section 10 and proceed to decide the
same
in
accordance
with
the
provisions of Section 12.

(3) Subject to the provisions of Section
13, the order of the Prescribed
Authority
shall
be
final
and
conclusive and be not questioned in
any court of law.

7. On 22.05.2007 and 23.05.2007,
matter was heard again in respect of
discrepancy between the notice and
objection.
Learned
counsel
for
the
petitioner supplied certain documents,
which were taken on record. Learned
counsel for the petitioner stated that in
reply to the notice dated 24.01.2002,
initially reply/objection was filed by the
petitioner on 21.02.2002. Copy of the said
objection has been supplied. Under
Section 9(2) statement/reply is to be filed
within
30
days.
The
reply
dated
21.02.2002 was within 30 days from the
notice dated 24.01.2002.

8. In the order passed by the
Prescribed Authority in favour of the
petitioner
(Annexure-8
to
the
writ
petition), it is mentioned on internal Page8 (Page 45 of the Paper Book) that in
pursuance of order dated 23.05.2002,
petitioner had submitted statement of his
land. On 22.05.2007 and 23.05.2007,
learned counsel for the petitioner was
required to file copy of order dated
23.05.2002. However, the said copy was
not supplied. Instead, the statement filed
by the petitioner was supplied on
23.05.2007, which at its top mentions in
bold letters that it is statement of tenureholder in compliance of order dated
23.05.2002.

Rule 12 is quoted below:-

"Objections filed under Section 10
and 11 shall be entered in Misal Band
Register in C.L.H. Form 5"

9. The fact that in the reply dated
04.06.2002, reference was made to C.L.H.
Form 5 makes it quite clear that the reply
was under Section 10(2) of the Ceiling
Act.

10. Moreover, notice under proviso
to Section 9(2) is more akin to a notice
under Section 10 of the Act.

11. However, the most important
thing is that quoting of wrong provision
either in notice or reply or order is never
fatal. It is the essence, which is to be seen.
No appeal against orders under Section
11(1) of the Act is maintainable for the
reason that under the said sub-section, no
adjudication takes place. Under the said
sub-section,
orders
are
passed
on
admission. Just as under Section 96,
C.P.C., no appeal is maintainable against
decree passed by the Court with the
consent of parties, similarly, against
534 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
orders passed under Section 11(1) of the
Ceiling Act, no appeal is maintainable.
Under the said sub-section, either tenureholder accepts the case of the State or
State accepts the case of the tenure-holder
without any contest or adjudication.
However, if matter is disputed by either
party and thereafter Prescribed Authority
adjudicates the dispute either in favour of
the State or tenure-holder, the order falls
under Section 11(2) of the Ceiling Act.
Such order is clearly appealable under
Section 13. In the instant case, the order
of
the
Prescribed
Authority
dated
17.12.2003 is clearly an order after
considering and resolving the dispute. It
runs into 15 pages. Each and every point
of the tenure-holder has been decided
after discussion of the material on record.
Several points had been raised by the
tenure-holder and on every point, there
was a serious dispute in between tenureholder and the State. Accordingly, the
order of the Prescribed Authority cannot
be said to be based on consent.

12. Moreover, copy of order dated
23.05.2002 has not been filed. It appears
that through the said order, petitioner was
directed to file objections on merit and
confusion of provision, which was quoted
in the notice dated 24.01.2002 was
cleared. In any case as mentioned earlier,
quoting a wrong provision is never fatal.

13. Accordingly, I hold the appeal to
be
maintainable.
Writ
petition
is,
therefore, dismissed.

14. As far as prayer of Greater
NOIDA is concerned, no order is required
to be passed thereupon. Learned counsel
for Greater NOIDA had only argued that
due to continuance of stay order passed in
this writ petition, some difficulties were
being felt in proposed acquisition of the
land in dispute along with other adjoining
lands. As the writ petition itself has been
dismissed, hence interim order passed in
the writ petition automatically comes to
an end.

Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2007

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 11080 Of
2002

Umesh Chandra Shukla
...Petitioner
Versus
Additional District Judge, Room No. 1,
Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Pandey
Sri M.S. Uddin
Sri S.L. Mishra

Counsel for the Respondents:
Sri M.A. Mishra
S.C.

U.P.
Urban
Building
(Regulation
of
Letting
Rent
&
Eviction
1972-S-21
(1)(a)-Release Application on ground of
bonafide need-resisted by prospective
allottee-held prospective allottee has no
right to contest the release application.

Held: Para 14

In my opinion the contention of the
learned counsel for the petitioner has
force and the need of the petitioner is
bona fide. Even comparative hardship of
the petitioner is greater than that of the
respondent
who
otherwise
being
a
prospective allottee has neither any right
of say in the matter nor has any right to
challenge
the
bona
fide
need
and