# Smt. Maya Devi v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 340
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-22
- **Case number:** Writ-C No. 15271 of 2009
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-maya-devi-v-state-of-u-p-ors-51180
- **Pages:** 6

## Headnote

C.S.C., Brijesh Kumar, Rahul Pandey

Estoppel-The land i.e. arazi no. 297 been
released from being surplus land-therefore
all subsequent proceedings would be non
est- the St. itself has taken an alternate
land of original tenure holder as surplus
land -the respondent authorities itself by
order dated 27th April 1979 and 5th
November 1981 has accepted that land of
petitioner
cannot
be
a
surplus
landtherefore, the respondent authorities are
estopped from raising question on validity
of sale of land at this stage- the lease
granted in pursuance to the aforesaid
declaration of surplus-no right would accrue
in favour of respondent no. 8.

W.P. allowed. (E-9)

## Text

340 INDIAN LAW REPORTS ALLAHABAD SERIES
25. The ratio laid down by the Full
Bench in Prashant Kumar Katiyar
(supra) as well as Hari Pal Singh (supra)
still hold good as once the vacancy is
notified to the Board, the same cannot be
filled by transfer.

26. In view of the foregoing
discussion, I am of the opinion that subsection (2) of Section 31, which is the
saving clause, protects the action of
Committee
of
Management
sending
requisition to the Board for filling up the
post of Principal complying the provisions
of sub-rule (4) of Rule 11 of Rules of 1998,
thus no transfer can be allowed to fill up
the vacancy.

27. Thus, in view of the above, the
question raised in both the writ petitions
stands answered.

28. In the result, both the writ
petitions succeed and are hereby allowed.
The transfer orders dated 28.06.2024
(Annexure 1 to Writ-A No.12611 of 2024)
and 28.06.2024 (Annexure 1 to Writ A
No.11436 of 2024) are not sustainable in
the eyes of law and the same are hereby set
aside.
----------
(2024) 10 ILRA 340
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2024

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ-C No. 15271 of 2009

Smt. Maya Devi ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
R.P.S. Chauhan

Counsel for the Respondents:
C.S.C., Brijesh Kumar, Rahul Pandey

Estoppel-The land i.e. arazi no. 297 been
released from being surplus land-therefore
all subsequent proceedings would be non
est- the St. itself has taken an alternate
land of original tenure holder as surplus
land -the respondent authorities itself by
order dated 27th April 1979 and 5th
November 1981 has accepted that land of
petitioner
cannot
be
a
surplus
landtherefore, the respondent authorities are
estopped from raising question on validity
of sale of land at this stage- the lease
granted in pursuance to the aforesaid
declaration of surplus-no right would accrue
in favour of respondent no. 8.

W.P. allowed. (E-9)

(Delivered by Hon'ble Vikram D.
Chauhan, J.)

In Re: Civil Misc. Impleadment
Application No. 6 of 2018

1. Impleadment application has been
filed on behalf of one Ms. Roopa claiming
to be the subsequent purchaser of the
property in question from the respondent
nos. 6 and 7.

2. Sri Brijesh Kumar, advocate
appearing for the impleader submits that the
present impleadment application has been
filed as the right of the impleader could be
materially affected by the litigation pending
before this Court.

3. Learned Standing Counsel and
learned counsel for the petitioner has no
objection to the same.

4. Accordingly, the application is
allowed.
10 All. Smt. Maya Devi Vs. State of U.P. & Ors.
341
5. Learned counsel for the
impleader is permitted to implead Ms.
Roopa as respondent no. 8 in the array of
parties during course of the day.

6. It is further submitted by learned
counsel for the impleader that he does not
propose to file counter affidavit as already
an affidavit along with impleadment
application has been filed which may be
construed as his objection to the writ
petition.

7. Learned counsel for the
petitioner and learned Standing Counsel
have no objection.

In Re: Writ Petition

1. Heard
Sri
R.
P.
Singh
Chauhan, learned counsel for
the
petitioner,
Sri
Brijesh
Kumar, learned counsel for the
newly impleaded respondent
no.8 and learned Standing
Counsel for respondent nos.1 to
5.

2. It is submitted by learned
counsel for petitioner that one Maktool
Singh was the original tenure holder and
was subjected to ceiling proceedings.
Learned counsel for petitioner submits that
petitioner has purchased arazi no. 297
situated at Village Nagla Shahpur, Pargana
and Tehsil Jewar, District Gautam Budh
Nagar on 13th May 1974. Thereafter the
land of the original tenure holder-Maktool
Singh was declared surplus on 1st May
1976.

3. Petitioner, initially had filed an
application for amendment in the order
declaring the land surplus, however, the
same was rejected without giving any
reasons on 3rd December 1977 against
which the petitioner had filed an appeal
before the IIIrd Additional District Judge,
Bulandshahar, which was allowed by order
dated 1st June 1978 and the matter was
remanded back to prescribed authority for
rehearing the application of petitioner. The
authority concerned, in compliance of the
order of appellate authority, thereafter has
passed an order dated 27th April, 1979
whereby surplus land being arazi no.297
was withdrawn and new numbers being
arazi nos.187 and 246 were exchanged as
the aforesaid arazi nos.187 and 246
belonged to original tenure holder.

4. Thereafter, an amended parwana
was issued on 31st May 1979, (which has
been recorded in the order dated 5th
November 1981 which is at page 51 of the
paper
book).
Additional
District
Magistrate, Bulandshahar on 5th November
1981 had directed that the name of State
from arazi no.297 be removed and the
name of petitioner be included as per the
amended parwana issued. The respondentauthorities did not comply with the
amended parwana and name of petitioner
was not recorded in revenue records.
Thereafter,
petitioner
again
filed
an
application before the Additional District
Magistrate/Prescribed
Authority
for
recording of name of petitioner in revenue
records in respect of Arazi No.297. The
aforesaid application of petitioner was
decided by order dated 12th February 1996,
whereby it has been specifically recorded
that since the land in question was already
leased to private respondents, therefore, the
matter was referred under Section 27(2) of
U.P. Imposition of Ceiling on Land
Holdings Act, 1960 (for short "Act, 1960"),
to the Commissioner. The commissioner, in
turn, by order dated 27th August, 1996 has
rejected the application of petitioner on
342 INDIAN LAW REPORTS ALLAHABAD SERIES
ground of non-prosecution. The recall
application was filed by petitioner to recall
order dated 27th August 1996 and the same
was also rejected by order dated 4th April
2003.

5. Learned counsel for petitioner
submits that recall application which was
rejected by order dated 4th April 2003 on
ground that reference of application of
petitioner under section 27 of Act, 1960
was time barred. It is submitted by counsel
for
petitioner
that
reference
to
Commissioner was itself illegal as under
section 27 of Act, 1960, only a land, which
has been declared as surplus, can be settled
and the validity of settlement of the land
can be considered and examined.

6. Learned counsel for the
petitioner submits that once the land itself
has been removed as being surplus land
then the foundation itself has gone and it
was therefore not permissible for the
Additional District Magistrate to have
referred the matter to higher authorities. It
is further submitted that even otherwise,
order passed by Commissioner under
section 27 of the Act, 1960 is a nonest
order as he has no jurisdiction in the matter.
It is further submitted by learned counsel
for petitioner that once amended parwana
has been issued to authority for including
the name of petitioner in Arazi no.297 then
it was not open for authorities to have
refused the name of petitioner being
recorded after deleting name of the lease
holders, as the lease was granted on the
foundation of Arazi no.297 being a surplus
land.

7. The question with regard to
lease of land in question, being surplus
land, is finally decided by order dated 27th
April 1979 and 5th November 1981. Once
the respondent-authorities have taken stand
that the land in question being. Arazi
no.297 was not a surplus land and in lieu
thereof land of original tenure holder was
declared as surplus land then foundation
stands removed. The land not being surplus
land petitioner is entitled to to get her name
mutated in revenue records. Learned
counsel for petitioner further submits that
even otherwise mutation of name of private
respondents in revenue records would not
confer title and the same is only for
purpose of revenue.

8. Learning standing counsel has
opposed the writ petition and submitted
that the land in question was sold by
original tenure holder in the year 1974 that
is after coming into force, the provisions of
section 5(6) of the Act, 1960. He further
submits that reference to Commissioner
under section 27 of the Act, would be
maintainable as the validity of settlement
can only be examined under section 27 of
the Act, 1960.

9. Learned counsel for newly
added
respondent
no.8
submits
that
petitioner
had
purchased
the
property/Arazi, in question, from private
respondent nos. 6 and 7. He does not
dispute the fact that the respondent nos.6
and
7
were
the
lease
holders
of
property/Arazi during currency of the
surplus land. He further submits that the
right of newly impleaded respondent no.8
shall be affected if the petitioner's name is
permitted to be included in revenue record
as the owner of property.

10. In the present case, it is to be
seen that original tenure holder being one
Maktool Singh had sold Arazi no.297 to
petitioner on 13th May 1974, thereafter
land of original tenure holder was declared
10 All. Smt. Maya Devi Vs. State of U.P. & Ors.
343
surplus on 1st May 1976. Application was
filed by petitioner before the authorities
that original tenure holder had given the
option of land in the year 1977 that the land
being Arazi no.297 be taken as surplus
land. Although original tenure holder was
not the owner of the aforesaid property on
the date his land was declared as surplus
land. The application of petitioner for
correction of record was rejected at the first
instance by order dated 3rd December
1977, however, that order was neither a
speaking
order
nor
there
was
any
application of mind. Against the aforesaid
order an appeal was preferred by petitioner
before
Additional
District
Judge,
Bulandshahar which was allowed by order
dated 1st June 1978 and matter was
remanded back to the prescribed authority
for
decision
afresh.
After
remand,
prescribed authority by order dated 27th
April 1979 has accepted the other two
arazies being Arazi no. 187 and 246 of the
original tenure holder Maktool Singh in
lieu of surplus land being Arazi no.297,
which was left out and amended parwana
was issued on 31st May 1979 for recording
the name of petitioner in Arazi no.297. The
aforesaid details are provided in the order
dated 5th November 1981 of the Additional
District Magistrate, Bulandshahr, which is
at page-51 of the paper-book.

11. By order dated 5th November
1981 the ceiling declaration in respect of
Arazi no.297 was withdrawn by Additional
District Magistrate and thereafter new
Arazi nos. 187 and 246 were declared as
surplus land. A direction was also issued
for mutation of name of petitioner and for
deletion of name of State in earlier surplus
land being Arazi no.297 of petitioner.

12. The aforesaid mutation were
not carried out, thereafter, an order was
passed on 5th November 1981 by Sub
Divisional Officer, Bulandshahr directing
removal of name of lease holders from
Arazi no. 297. When the aforesaid mutation
proceeding were not carried on, the
petitioner again approached the Additional
District Magistrate/Prescribed Authority,
Bulandshahr, who by order the dead 12th
February 1996 referred the matter to
Commissioner under section 27(2) of the
Act, 1960, as the Additional District
Magistrate was of the view that in respect
of
the
settlement
of
land
it
is
Commissioner, who empowered under law
to examine the validity. The Commissioner,
at the first instance, had rejected the
reference on the ground of non-prosecution
by order dated 27th August 1996, however,
when the recall application was filed by the
petitioner, the same was also rejected by
order dated 4th February 2003.

13. According to order dated 4th
February 2003, the reference was time
barred as the same was hit by provisions of
Section 27(6)A and 27(4) of the Imposition
of Ceiling Act. It is to be seen that Section
27 of the Act empowers the authorities to
settle the surplus land. Section 27 can only
be invoked when the land in question is a
surplus land. The examination of the
settlement of land can be made by
Commissioner under Section 27(4) of Act.
It is to be seen that in the present case, arazi
no. 297 was earlier declared as surplus land
and was recorded in the name of the State,
however, subsequently, by order dated 27th
April 1979 and 5th November 1981 the
land was withdrawn from being surplus
land and alternate land of original tenure
holder was taken as surplus land and in this
respect amended parwana was issued on
31st May 1979. Once the land in question
being arazi no. 297 itself was not having
status of a surplus land then under Section
344 INDIAN LAW REPORTS ALLAHABAD SERIES
27 of the Act, proceedings would not be
maintainable as proceedings under Section
27 of the Act, 1960 arises only in a case
where the land is a surplus land and
settlement of the land is subject matter of
challenge or examination.

14. In the present case, the land i.e.
arazi no. 297 itself has been released from
being surplus land as such the foundation
of land in question being surplus has been
removed,
therefore,
all
subsequent
proceedings would be nonest in the eyes of
law. The submission of learned Standing
Counsel that transfer in favour of the
petitioner is hit by the provisions of Section
5(6) of the Imposition of Ceiling Act also
does not hold the field as the State itself has
taken alternate land in lieu of land being
Arazi no.297 and this fact has not been
disputed by learned counsel for the
respondents. Once the State itself has taken
an alternate land of original tenure holder
as surplus land then it would be highly
unfair on the part of the State to argue that
the transfer in question was against law.
The State has already received alternate
land which has been duly accepted. As per
learned counsels for the parties, the
alternate land has already been leased out
to the third party, so the aforesaid argument
at this stage cannot be permitted to be
raised. The respondent-authorities itself by
order dated 27th April 1979 and 5th
November 1981 has accepted the stand of
petitioner that land of petitioner cannot be a
surplus land and alternate land has already
been accepted, therefore, the respondent
authorities are estopped under law in
raising argument with regard to validity of
sale of land at this stage. This issued should
have be raised prior to passing of order
dated 27th April 1979 & 5th November
1981 and prior to issuing of amended
parwana. The State has not challenged the
aforesaid orders of authorities before this
Court and as such these orders have
attained finality and therefore, law of
acquiesce would apply and State cannot be
permitted to agitate the aforesaid issues any
further.

15. Insofar as, objection of
respondent no. 8 is concerned, who has
purchased Arazi no.297 from respondent
nos. 6 and 7 on 16th March 2009, the
aforesaid
date
of
purchase
is
very
significant as prior to aforesaid date on
27th April 1979 and 5th November 1981,
status of Arazi no.297 was removed from
surplus land and amended parwana was
already issued on 31st May 1979, therefore,
once the land itself was not surplus, the
lease granted in pursuance to the aforesaid
declaration of surplus, which has been
subsequently modified would also fall and
consequently no right would accrue in
favour of respondent no. 8. The remedy lies
for respondent no. 8 to claim the relief
before the appropriate court against private
respondent nos. 6 and 7 as their title to the
property
itself
stood
demolished
by
previous orders i.e. on 27th April 1979 and
5th November 1981 which the respondent
nos. 6 and 7 till date has not been shown to
have challenged.

16. In view of aforesaid facts and
circumstances of case, the writ petition
stands allowed. The impugned order dated
27th August 1996 passed by Additional
Commissioner (Judicial) Meerut Region,
Meerut, as well as, order dated 4th April
2003 passed by Commissioner, Meerut
Region, Meerut in Case No. 02 of 1996-96)
are hereby set aside. The respondent nos. 1
to 5 are hereby directed to forthwith mutate
the name of the petitioner in Arazi no.297,
Village Nagla Shahpur, Pargana and Tehsil
Jewar, District Gautam Budh Nagar and
10 All. Santram Vs. State of U.P. & Ors.
345
petitioner would be deemed to be the owner
of the property in question. The aforesaid
mutation proceedings would be carried out
within 30 days from the date of production
of certified copy of this order.
----------
(2024) 10 ILRA 345
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.10.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 4747 of 2024

Santram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rohit Kumar Singh, Akhilendra Kumar Goswami,
Harshit Singh, Shweta Mishra

Counsel for the Respondents:
C.S.C., Pankaj Gupta, Pradeep Kumar Shukla

Civil Law - Code of Civil Procedure,1908 -
Order VII, Rule 11 C.P.C. - Rejection of
plaint - A plaint can be rejected under
Order VII, Rule 11 (a) C.P.C. where it does
not disclose any cause of action. Under
Order VII, Rule 11 (d) C.P.C., a plaint can
be rejected where the suit appears "from
the statement in the plaint" to be barred
by any law. For rejecting a plaint under
the
aforesaid
provisions,
only
the
statements made in the plaint have to be
examined. Statement in defence cannot
be considered for deciding an application
under Order VII, Rule 11 C.P.C. Plea
regarding
concealment
of
fact,
discrepancy
in
the
description
of
boundaries of the property, or necessary
or proper party is not to be decided while
deciding an application under Order VII,
Rule 11 C.P.C. If any fact has been
concealed, it can be brought to the court's
notice by the defendants by filing a
written
statement
and
presenting
evidence in support thereof, and the same
can be adjudicated at the appropriate
stage. It will not give rise to rejection of
the plaint under Order VII, Rule 11 C.P.C.
A mere discrepancy in the description of
boundaries of the property in dispute, as
given in the plaint and in the site plan,
does not attract any of the clauses of
Order VII, Rule 11 C.P.C. for rejection of
the plaint. Plea that the Gaon Sabha is a
necessary or proper party can be raised
before the learned Trial court at the
appropriate
stage
and
need
not
be
examined while deciding an application
under Order VII, Rule 11 C.P.C. In the
instant case, plaintiffs stated that they
have purchased the suit property through
a registered sale deed and that the
defendant is creating hindrance in the
enjoyment of the property. Court held that
the plaint discloses a cause of action and
cannot be rejected under Order VII, Rule
11 C.P.C. (Para 13, 14, 15)
Dismissed. (E-5)
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Ahilendra Kumar
Goswami, the learned counsel for the
petitioner, Sri Atul Kumar Mishra, the
learned counsel for the State, Sri Pankaj
Gupta, the learned counsel for the opposite
party no.2/Gaon Sabha, Sri Indrajeet
Shukla, the learned counsel for the opposite
parties no.3 to 7 and perused the records.

2. By means of the instant petition
under Article 227 of the Constitution of
India the petitioner has challenged the
validity of an order dated 09.12.2022,
passed in Regular Suit No.1481 of 2003 by
the
learned
Civil
Judge,
Junior
Division/FTC-II,
Gonda,
whereby
the
petitioner's application under Order VII,
Rule 11 C.P.C. for rejection of plaint has
been rejected. The petitioner has also
challenged the validity of a judgment and