# Mohd. Naim v. Additional Commissioner, Admin., Gonda & Ors

- **Citation:** (2023) 5 ILRA 1660
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-03
- **Case number:** Writ-C No. 1000408 of 2001
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-naim-v-additional-commissioner-admin-gonda-ors-50238
- **Pages:** 5

## Headnote

C.S.C., D.C. Mukherjee, Deepak Seth, Iqbal
Ahmad, Jitendra Saxena, Kumar Ayush,
Mohd. Aslam Khan, Mohd. Kumail Haider,
5 All. Mohd. Naim Vs. Additional Commissioner, Admin., Gonda & Ors.
1661
Mohd. Mustafizul Haq, Mohiuddin Khan,
R.N. Gupta

Civil Law-The Uttar Pradesh Zamindari
Abolition and Land Reforms Act-1950Sections 122-C (3) & (6)- No proposal of
the Gram Sabha / Land Management
Committee to allot the land to the
petitioner
as
no
such
document
is
available on record. As per the material
available on record no list has been filed
to convince the Court that a preferential
list in terms of section 122C-(3) of
U.P.Z.A. & L.R. Act has been prepared- The
power to pass any order u/s 122-C(6)
vests with the Collector- The impugned
order has been passed by the Additional
District Magistrate / Additional Collector
having power u/s 122-C(6) after hearing
all the parties including petitioner. (E-15)

## Text

1660 INDIAN LAW REPORTS ALLAHABAD SERIES

12. In Maniben Devraj Shah Vs.
Municipal
Corporation
of
Brihan
Mumbai, 2012 (5) SCC 157, in para 18 of
the judgment, the Court said as under:

"What needs to be emphasised is
that even though a liberal and justice
oriented approach is required to be adopted
in the exercise of power under Section 5 of
the Limitation Act and other similar statutes,
the Courts can neither become oblivious of
the fact that the successful litigant has
acquired certain rights on the basis of the
judgment under challenge and a lot of time is
consumed at various stages of litigation apart
from the cost. What colour the expression
'sufficient cause' would get in the factual
matrix of a given case would largely depend
on bona fide nature of the explanation. If the
Court finds that there has been no negligence
on the part of the applicant and the cause
shown for the delay does not lack bona fides,
then it may condone the delay. If, on the other
hand, the explanation given by the applicant
is found to be concocted or he is thoroughly
negligent in prosecuting his cause, then it
would be a legitimate exercise of discretion
not to condone the delay. In cases involving
the State and its agencies/instrumentalities,
the Court can take note of the fact that
sufficient time is taken in the decision making
process but no premium can be given for total
lethargy or utter negligence on the part of the
officers
of
the
State
and
/
or
its
agencies/instrumentalities
and
the
applications filed by them for condonation of
delay cannot be allowed as a matter of
course by accepting the plea that dismissal of
the matter on the ground of bar of limitation
will cause injury to the public interest."

13.
In
our
view,
the
kind
of
explanation rendered herein does not
satisfy the observations of Apex Court that
if delay has occurred for reasons which
does not smack of mala fide, the Court
should be reluctant to refuse condonation.
On the contrary, we find that here is a case
which shows a complete careless and
reckless long delay on the part of applicant
which has remain virtually unexplained at
all. Therefore, we do not find any reason to
exercise our judicial discretion exercising
judiciously so as to justify condonation of
delay in the present case.

14. In view of the above, this
application requires to be rejected hence,
the same is rejected.

Order on Appeal

Since application seeking condonation
of delay in filing this appeal has been
dismissed vide order of date, the appeal
being barred by limitation, is accordingly
dismissed.
----------
(2023) 5 ILRA 1660
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.05.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ-C No. 1000408 of 2001

Mohd. Naim ...Petitioner
Versus
Additional Commissioner, Admin., Gonda
& Ors. ...Respondents

Counsel for the Petitioner:
Shyam Krishna Srivastava, Najeem Zafar,
Rafar Farooqui, T.H. Khan, Z. Jilani

Counsel for the Respondents:
C.S.C., D.C. Mukherjee, Deepak Seth, Iqbal
Ahmad, Jitendra Saxena, Kumar Ayush,
Mohd. Aslam Khan, Mohd. Kumail Haider,
5 All. Mohd. Naim Vs. Additional Commissioner, Admin., Gonda & Ors.
1661
Mohd. Mustafizul Haq, Mohiuddin Khan,
R.N. Gupta

Civil Law-The Uttar Pradesh Zamindari
Abolition and Land Reforms Act-1950Sections 122-C (3) & (6)- No proposal of
the Gram Sabha / Land Management
Committee to allot the land to the
petitioner
as
no
such
document
is
available on record. As per the material
available on record no list has been filed
to convince the Court that a preferential
list in terms of section 122C-(3) of
U.P.Z.A. & L.R. Act has been prepared- The
power to pass any order u/s 122-C(6)
vests with the Collector- The impugned
order has been passed by the Additional
District Magistrate / Additional Collector
having power u/s 122-C(6) after hearing
all the parties including petitioner. (E-15)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri M.M. Haq, learned
counsel for the petitioner, Sri A.S. Tiwari,
learned
Addl.
C.S.C.
for
the
State
respondents and Sri Mohd. Kumail Haider
and Iqbal Ahmad, learned counsel for the
respondent no. 5.

2. By means of this petition the
petitioner has assailed the order dated
29.12.2000 passed by the Additional
District Magistrate / Additional District
Collector,
Balrampur
in
Case
No.
7/11/19/49/31 filed u/s 122C(6) of the
U.P.Z.A. & L.R. Act, 1950 thereby in a suit
filed by the private opposite party the
authority has cancelled the patta being
granted in favour of the petitioner u/s
122C. The petitioner has also assailed the
order dated 23.1.2001 passed by the
Additional Commissioner, Administration,
Devi Patan Mandal, Gonda in a revision
whereby the revisional authority has
rejected the revision holding that any order
being passed u/s 122C(6) of U.P.Z.A. &
L.R. Act is a final order, therefore, no
revision would be maintainable.

3. Learned counsel for the petitioner
has stated that initially one suit u/s 122
C(6) of U.P. Z.A. & L.R. Act bearing Suit
No. 195 : State vs. Naim, has been filed
before the Chief Revenue Officer, Gonda
and Chief Revenue Officer, Gonda vide
order dated 5.2.1996 cancelled the lease
given to the petitioner for the reason that
the lease given to the petitioner on Gata no.
396 is a land recorded in the revenue record
as a 'Sadak Khas'. He has further stated in
his order that the lease granted by the SubDivisional Officer concerned is per se
illegal as no lease can be granted on the
public utility land and the preferential list
has not been prepared.

4. The aforesaid order has been
assailed by the petitioner by filing revision
before the Commissioner and that revision
of the petitioner was allowed vide order
dated
13.1.1998
by
the
Additional
Commissioner, Administration, Faizabad
Mandal, Faizabad setting aside the order
dated 5.2.1996 passed by the Chief
Revenue Officer. In the aforesaid order the
revisional
authority
has
categorically
indicated that any order u/s 122C(6) can be
passed by the Collector after following the
due procedure of law, therefore, the order
passed by the Chief Revenue Officer is
without jurisdiction order.

5. Thereafter the private opposite
party being aggrieved for the fact that on
account of lease given to the petitioner on
Gata no. 396 which is a public utility land
his right to utilize such land being a tenure
holder of the adjacent gata number has filed
a case before the Additional District
Magistrate
/
Additional
Collector,
1662 INDIAN LAW REPORTS ALLAHABAD SERIES
Balrampur. In the aforesaid case the notices
were issued to the petitioner and petitioner
participated in the proceedings. The Addl.
District Magistrate / Assistant Collector,
Balrampur has allowed the case of the
private opposite party vide order dated
29.12.2000 cancelling the order dated
8.2.1991 passed by the Sub-Divisional
Officer, Uttraula granting lease to the
petitioner and directed that the documents
be corrected accordingly. The petitioner
assailed
the
aforesaid
order
dated
29.12.2000 filing the revision before the
Additional Commissioner and the said
revision was dismissed vide order date
23.1.2001 being not maintainable but the
learned counsel for the petitioner has stated
that when the issue in question has already
been adjudicated, the same issue should
have not been adjudicated under some
provision of law. He has further submitted
that when a lease was given to the
petitioner by the S.D.O. concerned, the said
lease may not be cancelled by the
Additional District Magistrate / Assistant
Collector invoking powers of section
122C(6) of the U.P.Z.A.& L.A. Act.

6. Therefore, the impugned order
dated 29.12.2000 is liable to be set aside
and the revisional order is liable to be set
aside inasmuch as if any order u/s 122C(6)
has been passed without jurisdiction, the
same may be decided under the revisional
authority.

7. Learned Addl. C.S.C. as well as
learned counsel for the private opposite
party
have
opposed
the
aforesaid
submission of learned counsel for the
petitioner. They have submitted that while
setting aside the order dated 5.2.1996
passed by the Chief Revnue Officer the
revisional court vide order dated 13.1.1998
has itself observed that the power u/s
122C(6) can be invoked only by the
Collector and in the present case the
impugned order dated 29.10.2000 has been
passed by the Addl. District Magistrate /
Additional Collector, Balrampur, therefore,
the order dated 29.12.2000 has been passed
strictly in accordance with law. Further
attention has been drawn towards section
122C(7) which provides that every order
passed by the Assistant Collector under
sub-section 4 shall subject to the provisions
of section 122-C(6) and every order passed
by the Collector under sub-section 6 shall
be final and provision of section 333A shall
not apply in relation thereto. Therefore, the
order passed by the revisional authority
dated 23.1.2000 is patently legal and
justifiable.

8. Learned counsel for the opposite
party have also stated that in the present
case the petitioner was given lease on
8.2.1991 without having any proposal of
the Land Management Committee and no
preferential list was prepared in terms of
section 122-C(3) of U.P.Z.A. & L.R. Act.
They have also stated that the relevant fact
has not been considered that the petitioner
was himself having his own house in the
village in question, therefore, he should
have not been given lease for housing
purposes. Further, when the impugned
order dated 29.12.2000 was passed, there
was no house or constructed area on the
gata in question, however, the petitioner
has constructed one house on the area after
29.12.2000 which is also illegal and
unwarranted .

9. Having heard learned counsel for
the parties and having perused the material
available on record, I would like to refer
the order dated 24.4.2023 passed by this
Court
wherein
the
learned
Standing
Counsel was directed to seek instructions
5 All. Mohd. Naim Vs. Additional Commissioner, Admin., Gonda & Ors.
1663
about the current status of the area in
question. In compliance of the aforesaid
order Sri A.S. Tiwari, learned Addl. C.S.C.
has produced the copy of instruction letter
dated 2.5.2023, same is taken on record.

10. As per aforesaid letter dated
24.4.2023
the
Tehsildar,
Uttraula
conducted the fresh spot inspection in
respect of the Gata no. 396/0.053 Hect. The
aforesaid gata number is still recorded as
'Sadak Khas' in the revenue records.
Presently, the petitioner has constructed
one pakka room encroaching 0.008 Hect.
land of the aforesaid gata number,
however, that pakka room is vacant as none
is residing in such pakka room for the
reason that the petitioner is having his own
pakka house in the village in question
where he lives with his entire family.
Further, remaining part of Gata no. 396
there is a vacant pathway as the same is
being utilized by the villagers. Naxa najri
to this effect has been enclosed with the
instructions which also indicates the same
fact. So as to show the nature of the land
the copy of khatauni and khasra has been
filed with the instructions.

11. Therefore, from the aforesaid
instructions it is clear that the petitioner has
constructed one pakka room over the gata
in question after 29.12.2000 when the
impugned order has been passed wherein it
has been categorically indicated that there
was no construction over the gata in
question and that fact has not been disputed
by the petitioner before the revenue
authorities. Notably, there was no proposal
of the Gram Sabha / Land Management
Committee to allot the land to the petitioner
as no such document is available on record.
As per the material available on record no
list has been filed to convince the Court
that a preferential list in terms of section
122C(3) of U.P.Z.A. & L.R. Act has been
prepared. The impugned order dated
29.12.2000 provides that the petitioner is
having his own residential house in the
village and that fact has again been
indicated
by
the
S.D.O.,
Uttraula,
Balrampur in its comments to show that the
petitioner is living in his own house along
with his family and no one is living in
pakka room constructed over Gata no. 396
on 0.008 Hect. The earlier order dated
5.2.1996 was passed by Chief Revenue
Officer and that order may not be treated as
order being passed u/s 122-C(6) inasmuch
as the power to pass any order u/s 122-C(6)
vests with the Collector, therefore, earlier
revisional authority has rightly indicated
this fact while setting aside the order dated
5.2.1996 passed by the Chief Revenue
Officer. However, the impugned order
dated 29.12.2000 has been passed by the
Additional District Magistrate / Additional
Collector having power u/s 122-C(6) of the
U.P.Z.A. & L.R. Act. The impugned order
dated 29.12.2000 is not an ex-parte order
rather it has been passed after hearing all
the parties including the petitioner and
perused the material available on record.
The revisional authority has rightly rejected
the revision of the petitioner vide order
dated 23.1.2001 inasmuch as in view of
122-C(7) of the U.P.Z.A. & L.R. Act the
order have been passed by the Collector u/s
122-C(6) shall be final.

12. Therefore, in view of the above, I
do not find any infirmity or illegality in the
impugned orders dated 29.12.2000 passed
by the Additional District Magistrate /
Additional District Collector, Balrampur in
Case No. 7/11/19/49/31 filed u/s 122C(6)
of the U.P.Z.A. & L.R. Act, 1950 and order
dated 23.1.2001 passed by the Additional
Commissioner, Administration, Devi Patan
Mandal, Gonda
1664 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Accordingly, the writ petition is
dismissed.

14. Consequences to follow.
----------
(2023) 5 ILRA 1664
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Writ-C No.20901 of 2022

Kunwar Pal @ Kumar Pal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kripa Shankar Shukla

Counsel for the Respondents:
Sri Rajeev Singh (S.C.), Ms. Archi Agarwal

Civil Law- The Land Acquisition Act, 1894Section 28A(1)- The proviso to Section
28A(1) aforesaid mandates exclusion from
the period of three months limitation, for
the purpose of making an application to
the Collector, the day on which the
Reference Court makes the award and the
time spent in obtaining a certified copy
thereof- The petitioner is entitled to the
exclusion of 36 days spent in obtaining a
certified copy of the award on the basis of
which he had moved the Special Land
Acquisition Officer under Section 28A of
the Act-The order of the Special Land
Acquisition
Officer,
holding
the
proceedings under Section 28A of the Act
to be barred by time, is manifestly illegal.
(Para 5)

Writ petition allowed. (E-15)

(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

 1. This writ petition is directed
against an order of the Special Land
Acquisition Officer (Sanyukt Sangathan),
Aligarh dated 30.04.2022 rejecting the
petitioner?s application under Section 28A
of the Land Acquisition Act, 1894 (for
short, ?the Act?) as time barred.

2. Heard Mr. K.S. Shukla, learned
counsel for the petitioner, Mr. Rajeev
Singh, learned Standing Counsel appearing
on behalf of Respondent Nos. 1 and 2 and
Ms. Archi Agarwal, learned counsel
appearing on behalf of Respondent No. 3.

3. The petitioner, Kunwar Pal made an
application to the Collector-cum-Land
Acquisition
Officer,
Aligarh
dated
29.01.2001 saying that his land comprising
Khasra No. 7/0-2-0, Khasra No. 10/0-4-0,
Khasra No. 27(m)/0-10-0 and Khasra No.
414 (m)/1-14-0 admeasuring a total of 2
Bigha 2 Biswa situate at village Talaspur
Kalan, Post Quarsi, Pagrana & Tehsil Koil,
District Aligarh was acquired by the State
for the purpose of Planned Industrial
Development by the Uttar Pradesh State
Industrial
Department
Corporation,
Kanpur. It was the petitioner?s case that in
LAR No. 70 of 1993, Mahendra Singh and
others vs. State of U.P. and others, the XIth
Additional District Judge, Aligarh while
deciding the reference under Section 18 of
the Act relating to the same notification
4(1) through which the petitioner?s lands
were acquired vide his judgment and award
dated
25.10.2000
enhanced
the
compensation to Rs. 50 per square yard
together with a proportionate increase in
the other statutory entitlements. The
petitioner claims that he was entitled to
redetermination
of
the
compensation
payable to him as originally awarded, in