# Smt. Prema Devi and Anr v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1246
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-08-22
- **Case number:** Civil Misc. Writ Petition No.14404 of 2013
- **Bench:** Ram Surat Ram(Maurya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-prema-devi-and-anr-v-state-of-u-p-and-ors-42672
- **Pages:** 6

## Headnote

Constitution
of
India,
Art.-226-
Petitioner-being
landless
agricultural
labour-granted patta of surplus land-under
ceiling
proceeding-the
tenure
holderrevised their choice duly accepted by
authorities-consequently parwana issued
for delivery of possession-recall application
by petitioner already rejected as have no
locus to question the validity of ceiling
proceeding-challenge made on ground after
grant of patta-invested huge amount to
make fertile once choice acted upon and
plots in question declared surplus can not
be reverted back-held-vesting of land under
section 14 with state government-right to
choice includes right of revise choice alsopetition

dismissed.
3 All] Smt. Prema Devi and Anr. Vs. State of U.P. and Ors.
1247
Held: Para-14
So far as the arguments of the counsel for
the petitioner that the tenure holder,
voluntarily gave choice of the surplus land
on 22.08.1980, which has been accepted by
the Prescribed Authority by order dated
30.08.1980. The land which was opted for
surplus land on 22.08.1980 was infertile
land.
After
allotment,
the
petitioners
invested huge amount and made the land
fertile, as such, the tenure holder cannot be
permitted to change the surplus land and
the tenure holder is estopped from resiling
from his earlier admission and give another
land as his choice for surplus land, it is
stated that no question of admission arise
at all. Doctrine of estoppel is not applicable
against the statute. The statute provides
right to the tenure holder to give his choice.
Right to give choice includes right to revise
choice till the land is vested in State of U.P.
under Section 14 of the Act as held above.
As such principles of estoppel has no
application in this matter. The pattas of the
petitioners
were
temporary
and
any
investment made by them was on their own
risk. It will not bind the tenure holder.

Case Law discussed:
AIR 1988 SC 612; (1998) 7 SCC 654; 1977
AWC 407; 1979 AWC 70; 1979 ALJ 274; 1980
ALR 68; 1982 ALJ 134; 1985 RD 14; 1988 RD
134(DB); 2002 (93) RD 736; 1988 RD 723;
2003(95) RD 231.

## Text

1246 INDIAN LAW REPORTS ALLAHABAD SERIES
meaningless nor the doctrine of res-judicata
has any application in such cases. The issue
raised before this Court by the learned
Standing Counsel while arguing the appeal
was legal and it has to be decided by us in
the light of the statutory provisions and the
exposition of law applicant in this regard.

The correctness of legal principle
observed by us in the judgment could not be
disputed by the learned counsel for the
applicants. He could not say or argue that
the said Government Order if tried to be
applied to all the teachers, who have been
appointed in contravention of 1975 or 1978
Rules, as the case may be, would be in the
teeth of the relevant rules and, therefore, the
observation of this Court that in such case
the said Government Order will not apply
legally is neither erroneous in law nor
otherwise can be assailed. But he argued
that in view of the subsequent events this
Court should refrain from passing any order
which
may
affect
the
petitionersrespondents otherwise, which submission is
not acceptable since this Court is more
concern with maintaining rule of law and
not to confer whimsical benefit upon certain
individuals in breach of law. No other point
has been argued and despite having given
full opportunity to the learned counsel for
the applicants, he failed to point out any
error
crept
in
our
judgment
dated
17.12.2008. We, therefore, do not find any
reason to recall the same.

The
application is,
accordingly,
rejected."

5. In view of above decision of
Division Bench, after promulgation of
statutory
rules,
mandating
that
no
appointment shall be made if a person
does not possess requisite minimum
educational
qualification
including
training, the question of engagement of an
untrained person after promulgation of
rule and thereafter directing him to sent
for training, does not arise.

6. In view of above discussion the
relief sought cannot be granted.

7. The writ petition lacks merit.
Dismissed. Interim order, if any, stands
vacated.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2013

BEFORE
THE HON'BLE RAM SURAT RAM(MAURYA), J.

Civil Misc. Writ Petition No.14404 of 2013

Smt. Prema Devi and Anr.
..Petitioners
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Shiv Naresh Singh
Sri Govind Krishna
Counsel for the Respondents:
C.S.C., Sri Praveen Kumar Giri
Shri Ashok Kumar Maurya

Constitution
of
India,
Art.-226-
Petitioner-being
landless
agricultural
labour-granted patta of surplus land-under
ceiling
proceeding-the
tenure
holderrevised their choice duly accepted by
authorities-consequently parwana issued
for delivery of possession-recall application
by petitioner already rejected as have no
locus to question the validity of ceiling
proceeding-challenge made on ground after
grant of patta-invested huge amount to
make fertile once choice acted upon and
plots in question declared surplus can not
be reverted back-held-vesting of land under
section 14 with state government-right to
choice includes right of revise choice alsopetition

dismissed.
3 All] Smt. Prema Devi and Anr. Vs. State of U.P. and Ors.
1247
Held: Para-14
So far as the arguments of the counsel for
the petitioner that the tenure holder,
voluntarily gave choice of the surplus land
on 22.08.1980, which has been accepted by
the Prescribed Authority by order dated
30.08.1980. The land which was opted for
surplus land on 22.08.1980 was infertile
land.
After
allotment,
the
petitioners
invested huge amount and made the land
fertile, as such, the tenure holder cannot be
permitted to change the surplus land and
the tenure holder is estopped from resiling
from his earlier admission and give another
land as his choice for surplus land, it is
stated that no question of admission arise
at all. Doctrine of estoppel is not applicable
against the statute. The statute provides
right to the tenure holder to give his choice.
Right to give choice includes right to revise
choice till the land is vested in State of U.P.
under Section 14 of the Act as held above.
As such principles of estoppel has no
application in this matter. The pattas of the
petitioners
were
temporary
and
any
investment made by them was on their own
risk. It will not bind the tenure holder.

Case Law discussed:
AIR 1988 SC 612; (1998) 7 SCC 654; 1977
AWC 407; 1979 AWC 70; 1979 ALJ 274; 1980
ALR 68; 1982 ALJ 134; 1985 RD 14; 1988 RD
134(DB); 2002 (93) RD 736; 1988 RD 723;
2003(95) RD 231.

(Delivered by Hon'ble Ram Surat
Ram(Maurya), J.)

1. Heard Sri Govind Krishna and Sri
Shiv Naresh Singh, for the petitioners and
Standing Counsel and Sri Ashok Kumar
Maurya holding brief of Sri Praveen
Kumar Giri, for the respondents.

2. The writ petition has been filed
for quashing the order of Collector,
Mirzapur
(respondent-2)
dated
22.01.2013, rejecting the representation of
the petitioners and holding that lease
granted to the petitioners of the surplus
land came to an end on 10.09.1996 and
22.11.1996, when the surplus land has
been restored to the tenure holder under
the provisions of U.P. Imposition of
Ceiling on Land Holdings Act, 1960
(hereinafter referred to as the Act). It has
been further prayed that mandamus be
issued directing respondent-2 to protect
right,
title
and
possession
of
the
petitioners over the land in dispute.

3. In the proceedings under Section 10
of the Act, initiated against Anand Deo Giri
(now represented by respondents-5 and 6), the
Prescribed
Authority
by
order
dated
31.05.1977 declared certain area of land as
surplus with him. Anand Deo Giri filed an
appeal from the order of Prescribed Authority.
It appears that during pendency of the appeal,
Anand Deo Giri gave his choice for surplus
land on 22.08.1980, which has been accepted
by the Prescribed Authority by order dated
30.08.1980. Thereafter, Deputy Collector,
Lalganj, Mirzapur (respondent-4) granted
pattas to the petitioners of the surplus land on
13.02.1987 and 11.04.1987. It appears that
after decision in the appeal, the tenure holder
revised his choice and prayed for taking
possession over the land, other than the land
mentioned in his choice dated 22.08.1980.
Prescribed
Authority
by
order
dated
10.09.1996 accepted the revised choice of the
tenure holder. The tenure holder then filed an
application for restoring possession over the
land which was earlier taken as surplus land.
The application of the tenure holder was
allowed and parwana for restoring possession
to the tenure holder over it was issued on
22.11.1996.

4. On behalf of the petitioners, an
application for recall of the orders dated
10.09.1996 and 22.11.1996 was filed.
Prescribed Authority by order dated
23.07.1997, rejected the application of the
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners.
Thereafter
the
litigation
between the tenure holder and lease
holders was gone before the revenue
courts for deleting the mutation of the
names of the petitioners and recording the
name of the tenure holder over the land,
which was earlier declared as surplus by
order dated 30.08.1980, which was also
decided in favour of the tenure holders.

5. After lapse of about 15 years, the
petitioners filed representations dated
18.10.2012 before the Collector that
Anand Shekhar Giri and Deo Shankar
Mishra
(respondent-5
and
6)
were
terrorizing them and trying to take
forcible possession over the land allotted
to them. When no order has been passed
by the Collector, the petitioners filed
Writ-C No. 59569 of 2012 before this
Court, claiming for various reliefs.
However the writ petition has been
disposed of by order dated 29.11.2012,
directing the Collector to decide the
representations of the petitioners within a
period of one months. In compliance of
the order of this Court, the Collector by
order dated 22.01.2013 held that the
surplus land declared by order dated
30.08.1980 had been revised by order of
Prescribed Authority dated 10.09.1996
and the surplus land declared by order
dated 30.08.1980 was reverted to the
tenure holder and parwana for restoring
his
possession
was
issued
by
the
Prescribed Authority on 22.11.1996. On
the surplus land being reverted to the
tenure holder, the leases granted to the
petitioners came to an end. The Tahsildar
in his report has mentioned that after
1998, the tenure holder was in possession
over the land in dispute and the pattedars
were not in possession. Since, surplus
land has been reverted to the tenure
holder as such the petitioners are not
entitled to get possession over it. On these
findings representations of the petitioners
have been rejected. Hence this writ
petition has been filed.

6. The counsel for the petitioners
submitted that petitioners were granted
pattas of the surplus land according to the
provisions of Section 27 of the Act in the
year 1987. Their names were duly
mutated in the revenue records. No
proceeding for cancellation of the pattas
of the petitioners has ever been initiated
under Section 27 (4) of the Act, nor their
pattas
have
been
cancelled.
The
petitioners have become bhumidhar with
non-transferable right of the land allotted
to them under Section 131 (d) and Section
131-B of U.P. Act No. 1 of 1951. The
petitioners
are
not
liable
to
be
dispossessed from the land in dispute. The
Collector is bound to restore and protect
the possession of the petitioners over the
land in dispute. The tenure holder,
voluntarily gave choice of the surplus
land on 22.08.1980, which has been
accepted by the Prescribed Authority by
order dated 30.08.1980. The land which
was opted for surplus land on 22.08.1980
was infertile land. After allotment, the
petitioners invested huge amount and
made the land fertile, as such, the tenure
holder cannot be permitted to change the
surplus land. The tenure holder is
estopped from resiling from his earlier
admission and give another land as his
choice for surplus land. The petitioners,
who are landless agricultural labourers,
will suffer grave hardship in case they are
dispossessed from the land allotted to
them as they have invested huge amount
in developing the land in dispute after its
allotment to them. He submits that as the
various allegations made in the writ
petition have not been controverted by
3 All] Smt. Prema Devi and Anr. Vs. State of U.P. and Ors.
1249
any of the respondents as such be
accepted as correct.

7. I have considered the arguments
of the parties and examined the record.
The first point arises as to whether the
various allegations made in the writ
petitions are liable to be accepted as
proved as no counter affidavit has been
filed in the writ petition, controverting
those facts. Basic principle of the
Evidence Act as contained in Section 101
is whoever desires any Court to give
judgment as to any legal right dependent
on the existence of facts which he asserts
must prove that those facts exists.
Supreme Court, in Governing Body of
Dayanand Anglo Vedic College Vs.
Padmanabha Padhy, AIR 1988 SC 612
held that burden of proving necessary
facts for grant of relief is on the writ
petitioner and in the absence to necessary
evidence to prove the allegations, the
desired relief cannot be granted. It is also
well established that the various facts
mentioned in the impugned order, will be
taken to be correct unless contrary is
proved.
Theory
of
un-controverted
affidavit has been applied while granting
relief in the restoration/recall application.
So far as title over the immovable
properties is concerned, no decree or
order can be granted in the absence of
unimpeachable evidence establishing the
title and only for the reasons that affidavit
remained
un-controverted
or
the
allegation has been accepted by the other
side.

8. The Collector has recorded the
findings in the impugned order that the
tenure holder had revised his choice of the
surplus land which has been accepted by
the Prescribed Authority by order dated
10.09.1996 and the surplus land which he
had voluntarily given on 22.08.1980 has
been changed. Thereafter, Prescribed
Authority
issued
parwana
dated
22.11.1996
for
restoration
of
the
possession of the tenure holder over the
land which was earlier declared as surplus
by order dated 30.08.1980. Jageswar,
husband
of
petitioner-1
filed
an
application for recall of the orders which
was rejected by the Prescribed Authority
on 23.07.1997. From the report of
Tahsildar, the
tenure holder is in
possession over the land in dispute since
1998. The petitioners have not denied nor
challenged in the writ petition that these
facts are incorrect. Thus the cause of
action arose to the petitioners in the year
1996 and their application for recall of the
orders dated 10.09.1996 and 22.11.1996
has been rejected on 23.07.1997. These
orders have not been challenged and
allowed to become final. After 15 years of
the aforesaid orders, second round of
litigation has been started without any
basis.

9. The petitioners have filed photostat
copies of the pattas granted to them. It is
blurred at various places. Neither the date of
patta nor period of lease has been mentioned
in it. In the khatauni filed as Annexures-3
and 4 of the writ petition, the names of the
petitioners were recorded for interim period
as such from the khatauni it appears that the
land in dispute was let out to the petitioners
for a limited period and they cannot acquire
right of 'bhumidhar with non-transferable
right' over the land allotted to them under
Section 131 (d) and Section 131-B of U.P.
Act No. 1 of 1951. On the land being
reverted to the tenure holder, the pattas
automatically came to an end.

10. The other point argued by the
counsel for the petitioner that the tenure
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
holder voluntarily gave his choice on
22.08.1980 as such he was estopped from
changing the choice of surplus land. Section
9 of the Act, requires that as soon as may be
after the date of enforcement of the Act, the
Prescribed Authority shall, by general notice,
published in the Official Gazette, call upon
the tenure holder holding land in excess of
the ceiling area applicable to him on the date
of enforcement of this Act, to submit him
within 30 days of the date of publication of
this notice, a statement in respect of all his
holdings in such form and giving such
particulars as may be prescribed. The
statement also indicate the plot or plots for
which he claims exemption and also those,
which he would like to retain as part of
ceiling area applicable to him under the
provisions of this Act. If a tenure holder fails
to submit his statement under Section 9 of
the Act, the Prescribed Authority shall issue
notice to the tenure holder under Section 10
of the Act, which will contain statement of
the plots proposed to be declared as surplus
land. Sections 11 and 12 deal with the
determination of surplus land by the
Prescribed
Authority
and
Section
13
provides for appeal from the order of
Prescribed Authority. Section 14 of the Act
provides for acquisition of surplus land by
the Collector at any time (i) in case where the
order passed under Sub-Section (1) of
Section 11 has become final, or (ii) in case
where no appeal has been filed under Section
13, the date of expiry of the period of
limitation provided therefor or (iii) in case,
where an appeal has been preferred under
Section 13, the date of its decision.

11. Under Section12-A of the Act
the Prescribed Authority is required to
determine the surplus land. Under this
section, it has been provided that 'as far as
possible' the Prescribed Authority shall
accept choice indicated by the tenure
holder. Supreme Court in Rajendra
Singh v. State of U.P., (1998) 7 SCC 654
held as follows:

"Section 9 provides that the prescribed
authority shall by a general notice published in
the Official Gazette, call upon every tenureholder holding land in excess of the ceiling
area applicable to him, to submit a statement
in respect of all his holdings wherein he shall
also indicate the plots which he would like to
retain as part of his ceiling area. It is this
choice which is referred to in Section 12-A
and it is provided that the prescribed authority
shall, as far as possible, accept the choice
indicated by the tenure-holder as to the plots
which he would like to retain as part of his
ceiling area. It is at this stage that the
discretion can be exercised by the prescribed
authority and he may not take over those plots
as part of the surplus area. It is thus
"discretion" and not "compulsion" which
constitutes the core of this statutory provision.
It is obvious that before taking over any area
as surplus area or leaving any area as ceiling
area of the tenure-holder, the prescribed
authority shall first take into consideration the
choice indicated by the tenure-holder and if it
is not possible to act wholly upon the choice,
for which there may be a variety of reasons,
the prescribed authority will proceed in his
own way to leave the area determined by him
as the ceiling area with the tenure-holder and
take over the other area as surplus area."

12. Thus from the aforesaid
proposition, it is clear that stage of
considering the choice come at the time of
taking possession over the surplus land. It
has been consistently held by this Court in
Bharat alias Bharat Singh Vs. State,
1977 AWC 407, Bhagwan Swaroop Vs.
State 1979 AWC 70, Tek Chandra Vs.
State, 1979 ALJ 274, Balesar Vs. State,
1980 ALR 68, Smt. Ram Kali Vs. State
3 All] Satyam Kumar and Anr. Vs. State of U.P. and Ors.
1251
of U.P., 1982 ALJ 134, Raj Kumar Vs.
State, 1985 RD 14, Charan Singh Vs.
State, 1988 RD 134 (DB), Shashi Kant
Rai Vs. State, 2002 (93) RD 736, that
tenure holder can revise his choice till his
right is extinguished under Section 14 of
the Act. The discretion vests in the
Prescribed Authority to accept the choice.
The Prescribed Authority by his order
dated 11.09.1996 has accepted the revised
choice of the tenure holder.

13. It has been further held by this
Court in Moti Lal Vs. State of U.P., 1998
RD 723 and Chidda Vs. Azizur
Rehman, 2003 (95) RD 231 that allottees
have no right to challenged the order of
the Prescribed Authority accepting choice
of the tenure holders.

14. So far as the arguments of the
counsel for the petitioner that the tenure
holder, voluntarily gave choice of the surplus
land on 22.08.1980, which has been accepted
by the Prescribed Authority by order dated
30.08.1980. The land which was opted for
surplus land on 22.08.1980 was infertile land.
After allotment, the petitioners invested huge
amount and made the land fertile, as such, the
tenure holder cannot be permitted to change
the surplus land and the tenure holder is
estopped from resiling from his earlier
admission and give another land as his choice
for surplus land, it is stated that no question of
admission arise at all. Doctrine of estoppel is
not applicable against the statute. The statute
provides right to the tenure holder to give his
choice. Right to give choice includes right to
revise choice till the land is vested in State of
U.P. under Section 14 of the Act as held
above. As such principles of estoppel has no
application in this matter. The pattas of the
petitioners
were
temporary
and
any
investment made by them was on their own
risk. It will not bind the tenure holder.

15. In view of the aforesaid
discussion, the writ petition has no merit
and is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No.31181 of 2013

Satyam Kumar and Anr. ...Petitioners
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Haribans Singh, Sri Chandrika Prasad

Counsel for the Respondents:
C.S.C., Sri Devesh Vikram

Constitution of India, Art.-226- Married
couple-seeking
protection
of
their
matrimonial
life-marriage
certificate
issued
by
an
advocate-as
marriage
officer-while no any advocate has been
given such power-though out the statedue to death of such erring advocate no
question of drastic action-no protection
can be given.

Held: Para-10
No advocate has been delegated or
assigned any powers of the Marriage
Officer, therefore, the aforesaid Kamta
Prasad is not a person authorized to act
as a Marriage Officer and to register any
marriage.
The
aforesaid
marriage
certificate as such is a nullity and a void
document.

(Delivered by Hon'ble Pankaj Mithal , J.)

1. Heard Sri Chandrika Prasad, learned
counsel for the petitioners and Sri Devesh
Vikram, learned counsel for the respondent
No.4. Learned Standing Counsel has appeared
for respondents No. 1,2 and 3. Sri Daya