# Shyam Kishore & Anr v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 865
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-19
- **Case number:** Writ-C No. 3000109 of 2002
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-kishore-anr-v-state-of-u-p-ors-51388
- **Pages:** 4

## Headnote

A. Civil Law - U.P. Imposition of Ceiling
on Land Holdings Act, 1960 - Section
12-A
Application
by
Subsequent
Purchasers - Petitioners challenged the
orders dated 03.06.1992 and 30.09.2002,
which allowed an application under Section
12-A(d)
by
subsequent
purchasers
(respondents no. 4 to 6) to exclude purchased
plots from surplus land declaration - Held,
Section 12-A explicitly grants the right to
choose which land to retain within the ceiling
limit solely to the recorded tenure holder, not
subsequent
purchasers,
rendering
the
application by respondents no. 4 to 6
impermissible and the orders allowing it
illegal. (Paras 7, 8, 9, 12)

B. Statutory Interpretation of Section 12A - Respondents no. 4 to 6, who purchased
plots from the tenure holder, sought exclusion
of those plots via a Section 12-A(d) application
- Held, the legislative intent in Section 12-A
restricts the right to indicate the choice of land
to be retained to the tenure holder, and no
provision allows subsequent purchasers to
exercise this right, making the Prescribed
Authority's acceptance of their application
contrary to the statute. (Paras 8, 9, 12)

C. Alternative Remedy Under Section
11(2) - Petitioners argued that subsequent
purchasers
could
only
seek
exclusion
of
purchased land by filing objections under
Section 11(2) - Held, the court agreed that
subsequent purchasers, if seeking exclusion of
their purchased land from surplus declaration,
must file objections under Section 11(2), which
the Prescribed Authority is duty-bound to
consider, and respondents no. 4 to 6's failure to
do so invalidated their Section 12-A application.
(Paras 10, 11, 12)

D.
Procedural
Fairness
in
Ceiling
Proceedings - Petitioners contended that the
Prescribed Authority allowed the Section 12-A
application without giving the recorded tenure
holder an opportunity to be heard - Held, while
the matter was remanded earlier by the court
(Writ Petition No. 3473 of 1980) to ensure a
hearing, the fundamental illegality of allowing a
Section 12-A application by non-tenure holders
rendered the orders dated 03.06.1992 and
30.09.2002 arbitrary and unsustainable. (Paras
4, 5, 6, 12)

E. Judicial Review of Ceiling Orders - The
Prescribed Authority and Appellate Authority
upheld the exclusion of plots based on the
subsequent purchasers' application - Held, both
authorities erred in law by allowing an
application
under
Section
12-A(d)
by
respondents no. 4 to 6, who lacked the
statutory right to file such an application,
necessitating the quashing of the impugned
866 INDIAN LAW REPORTS ALLAHABAD SERIES
orders for being contrary to the Act's provisions.
(Paras 6, 9, 12, 13)

Writ Petition Allowed.

## Text

1 All. Shyam Kishore & Anr. Vs. State of U.P. & Ors.
865
authority and no amount of oral evidence
can prove the existence of the same and
accordingly the impugned order is arbitrary
and requires interference. Merely holding
existence of rules without producing the
same nor the same having been brought on
record, the Tribunal has erred in allowing
the claim filed by the workman.

18. On both these counts, this Court is
of the considered opinion that the award
dated 19th June, 2014 requires interference
and is accordingly set aside.

19. The writ petition is allowed.
----------
(2024) 1 ILRA 865
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.01.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 3000109 of 2002

Shyam Kishore & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Anita Misra, Avadhesh Kumar, Lalta Prasad Misra

Counsel for the Respondents:
C.S.C., Avadhesh Mishra

A. Civil Law - U.P. Imposition of Ceiling
on Land Holdings Act, 1960 - Section
12-A
Application
by
Subsequent
Purchasers - Petitioners challenged the
orders dated 03.06.1992 and 30.09.2002,
which allowed an application under Section
12-A(d)
by
subsequent
purchasers
(respondents no. 4 to 6) to exclude purchased
plots from surplus land declaration - Held,
Section 12-A explicitly grants the right to
choose which land to retain within the ceiling
limit solely to the recorded tenure holder, not
subsequent
purchasers,
rendering
the
application by respondents no. 4 to 6
impermissible and the orders allowing it
illegal. (Paras 7, 8, 9, 12)

B. Statutory Interpretation of Section 12A - Respondents no. 4 to 6, who purchased
plots from the tenure holder, sought exclusion
of those plots via a Section 12-A(d) application
- Held, the legislative intent in Section 12-A
restricts the right to indicate the choice of land
to be retained to the tenure holder, and no
provision allows subsequent purchasers to
exercise this right, making the Prescribed
Authority's acceptance of their application
contrary to the statute. (Paras 8, 9, 12)

C. Alternative Remedy Under Section
11(2) - Petitioners argued that subsequent
purchasers
could
only
seek
exclusion
of
purchased land by filing objections under
Section 11(2) - Held, the court agreed that
subsequent purchasers, if seeking exclusion of
their purchased land from surplus declaration,
must file objections under Section 11(2), which
the Prescribed Authority is duty-bound to
consider, and respondents no. 4 to 6's failure to
do so invalidated their Section 12-A application.
(Paras 10, 11, 12)

D.
Procedural
Fairness
in
Ceiling
Proceedings - Petitioners contended that the
Prescribed Authority allowed the Section 12-A
application without giving the recorded tenure
holder an opportunity to be heard - Held, while
the matter was remanded earlier by the court
(Writ Petition No. 3473 of 1980) to ensure a
hearing, the fundamental illegality of allowing a
Section 12-A application by non-tenure holders
rendered the orders dated 03.06.1992 and
30.09.2002 arbitrary and unsustainable. (Paras
4, 5, 6, 12)

E. Judicial Review of Ceiling Orders - The
Prescribed Authority and Appellate Authority
upheld the exclusion of plots based on the
subsequent purchasers' application - Held, both
authorities erred in law by allowing an
application
under
Section
12-A(d)
by
respondents no. 4 to 6, who lacked the
statutory right to file such an application,
necessitating the quashing of the impugned
866 INDIAN LAW REPORTS ALLAHABAD SERIES
orders for being contrary to the Act's provisions.
(Paras 6, 9, 12, 13)

Writ Petition Allowed.

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

1. Heard Shri Tarun Mishra, Advocate
holding brief of Dr. L.P. Mishra, learned
counsel for petitioners, learned Standing
Counsel for the State, Shri Avadhesh
Mishra, learned counsel for opposite
party no. 4 to 6 and perused the material
available on record.

2. By means of the present writ
petition, the petitioners has challenged
the order dated 03.06.1992 passed by the
Prescribed Authority thereby allowing the
application under Section 12 of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings Act, 1960 preferred by the
respondents and also rejected the appeal
preferred by the petitioners before the
Additional
Commissioner,
Lucknow
Division,Lucknow in its order dated
30.09.2002.

3. The facts in brief are that the
predecessor in interest of the petitioners,
who was recorded tenure holder was
served with the notice under Section 10
(2) of the Uttar Pradesh Imposition of
Ceiling on Land Holdings Act, 1960
calling upon her to explain as to why area
of 31-33 acres irrigated land be not
declared surplus. The predecessor in
interest
of
the
petitioners,
namely,
Gayatri Devi filed her objections and
contested the case before the Prescribed
Authority.
The
Prescribed
Authority
rejected her objections against which an
appeal was filed and the same was also
dismissed. Assailing both the orders the
recorded tenure holder had filed a writ
petition before this Court. This Court had
remanded the matter and certain aspects of
the case were directed to be re-looked by
the Prescribed Authority, and accordingly a
fresh
notice
was
issued
where
the
Prescribed Authority again rejected the
objections. Against the order of Prescribed
Authority dated 31.03.1979, no appeal was
filed by the recorded tenure holder and the
order of the Prescribed Authority attained
finality.

4. It seems that after the proceedings
under Section 10 (2) of the Uttar Pradesh
Imposition of Ceiling on Land Holdings
Act, 1960 were finalized by the Prescribed
Authority, opposite parties no. 4 to 6, who
had purchased the land from the recorded
tenure holder on 16.02.1972, moved an
application under Section 12-A (d) and
Section
13-A
of
the
Uttar
Pradesh
Imposition of Ceiling on Land Holdings
Act, 1960 praying that the order dated
31.05.1979 of the Prescribed Authority may
be reviewed and two plots, which had been
purchased by them, namely plot no. 298
and 324 may be excluded from the land,
which had been declared surplus, at the
hands of the recorded tenure holder. The
Prescribed Authority considering the said
application allowed the same by means of
order dated 30.11.1979. The petitioners had
preferred an appeal against the said order
stating that no notices were issued by the
Prescribed Authority and the recorded
tenure holder was never given any
opportunity of hearing for allowing the
application under Section 12- A (d) of the
Act of 1960 filed by the subsequent
purchaser, but the appeal was also rejected
by means of order dated 09.10.1980.

5. Aggrieved by both the orders
allowing the application of the respondents,
the petitioners had preferred a writ petition
before this Court bearing Writ Petition No.
1 All. Shyam Kishore & Anr. Vs. State of U.P. & Ors.
867
3473 of 1980 alleging that the Prescribed
Authority had allowed the application
under Section 12-A (d) of the Act of 1960
without giving any opportunity of hearing
to the petitioners and this Court by means
of its order dated 13.09.1988 allowed the
writ petition and set aside the order of the
Prescribed Authority dated 30.11.1979
and the appellate order dated 09.10.1980
and remitted the matter back to the
Prescribed Authority for passing a fresh
orders after giving an opportunity of
hearing to the recorded tenure holder.

6. It is in the remand proceedings
that the impugned order dated 03.06.1992
has been passed by the Prescribed
Authority again allowing the application
under Section 12-A (d) of the Act of 1960
and excluding plot no. 298 and324 from
the surplus lands at the hands of the
recorded
tenure
holder
and
further
directed that the surplus land will be
taken from plot no. 132 N and 294 N
from the lands of the recorded tenure
holder. The appeal preferred by the
petitioners also met the same fate by
means of the order dated 30.09.2002
passed by the Additional Commissioner,
Lucknow
Division,
Lucknow
who
confirmed the order of the Prescribed
Authority.

7.

Learned
counsel
for
the
petitioners while assailing both the
orders, namely, order dated 03.06.1992
passed by the Prescribed Authority as
well as order dated 30.09.2002 passed by
the appellate authority, has submitted that
the application under Section 12-A (d) of
the Act of 1960 can be moved only by the
recorded tenure holder. He submits that
the discretion, if any, for the choice of the
land to be declared surplus lies with the
recorded tenure holder and no such right is
vested any subsequent purchaser to dictate
to which of the land of the recorded
tenure holders can be declared surplus.

8. In support of his submissions, he
stated that mere provisions of Section 12A of the Act of 1960 are demonstrative of
the aforesaid fact where it is stated that in
determining the surplus land under
Section 11 and 12 of the Act of 1960, the
Prescribed Authority shall as far as
possible accept the choice indicated by
the tenure holder to the plots of plot
which he and other members of his
family, if any, would like to retain as part
of ceiling area applicable to him...

9. It is stated that Legislature in its
wisdom had clearly stated that such an
application under Section 12-A of the Act
of 1960 for the choice of the land to be
declared surplus lies only with the tenure
holder. In case it was the intention of the
legislature that such a choice can be
given even by the subsequently purchased
and the same would have been clearly
mentioned in Section 12-A of the Act of
1960 but a clear prescription having been
made in the statutory provisions with
regard to such an application being made
only by the tenure holder, it cannot be
said that any person other than the tenure
holder would be entitled to make an
application under Section 12-A of the Act
of 1960. He submits that the petitioners
have always opposed the application of the
respondent nos. 4 to 6 moved under Section
12-A of the Act of 1960 and accordingly
once the recorded tenure holder has made
objection neither the Prescribed Authority
nor the Appellate Authority could have
passed any order with regard to such an
application moved at the behest of the
subsequent purchasers, namely, respondent
nos. 4 to 6.
868 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Learned counsel for petitioners
has further submitted that in case the
subsequent purchasers of the land require
the land to be excluded from being declared
surplus then the only option available to
them is by filing objections under Section
11 (2) of the Act of 1960. Once any
objection under Section 11 (2) of the Act of
1960 are filed then the Prescribed Authority
are duty bound to consider the same and
pass appropriate orders with regard to
exclusion of such land.

11. In the present case, undisputedly
no objection under Section 11 (2) of the Act
of 1960 was filed by the respondent nos. 4
to 6 for exclusion of the lands and they
have been resorted to an application under
Section 12-A of the Act of 1960 for the
purpose of exclusion of the said land.

12. This Court is of the considered
view that it does not lay with the
subsequent
purchasers
to
move
an
application under Section 12-A of the Act
of 1960 for excluding the land from being
taken surplus and such an application, if
any, could have been filed only by the
recorded tenure holders and once this Court
is of the considered view that such an
application could not have been moved by
the respondent nos. 4 to 6, who are the
subsequent purchasers, then the same could
not have been allowed by the Prescribed
Authority. Accordingly, to that extent only,
the
impugned
orders
allowing
the
application under Section 12-A (d) of the
Act of 1960 at the behest of the respondent
nos. 4 to 6 is clearly illegal and arbitrary
and contrary to the provisions contained in
Section 12-A of the Act of 1960.

13. In light of the above, both the
impugned order dated 03.06.1992 passed
by the Prescribed Authority as well as order
dated 30.09.2002 passed by the appellate
authority are set aside. The writ petition is
accordingly, allowed.
----------
(2024) 1 ILRA 868
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.01.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 206 of 2024

Nitin Tiwari & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Nadeem Martaza, Aditi Tripathi, Brij Mohan
Sahai, Sudhanshu S, Tripathi

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973
-
Sections
173(2),
173(8), 227, 228, 397 & 482 - Indian
Penal Code, 1860 - Sections 147, 148,
149, 302, 307, 504, 506, 34 & 120-B -
Applicants challenged orders rejecting second
discharge application and framing charges,
alleging failure to consider contradictory police
reports. Court held: (1) Application u/s 482 is
maintainable against rejection of discharge
application and framing of charges despite
revision remedy, but only in exceptional cases to
prevent abuse of process or secure justice
(Madhu Limaye Vs St. of Mah., (1977) 4 SCC
551). (2) Framing of charges on 02.08.2023 was
proper, as rejection of first discharge application
on 16.05.2023 was unchallenged, and Sessions
Judge was statutorily bound under Section 228
to frame charges, especially with High Court's
permission to proceed (Vinay Tyagi Vs Irshad
Ali, (2013) 5 SCC 762). (3) Second discharge
application was not maintainable after charges
were framed, as courts lack jurisdiction to
reconsider
discharge
post-charge
framing