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KRISHNA KUMAR versus STATE OF U.P. AND OTHER

High Court of Judicature at Allahabad

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Krishna Kumar v. State Of U.P. And Other - WRIT - C No. 5206 of 1990 [2007] RD-AH 11253 (5 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.28

Civil Misc. Writ Petition No. 5206 of 1990

Krishna Kumar

Vs.

The State of U.P. & Others

~~~~~~

Hon. Dilip Gupta, J.

This petition has been filed for quashing the order dated 30th March, 1989 passed by the Prescribed Authority declaring 23.82 Acres of land as surplus in the proceedings held under the provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the 'Act') and the judgment and order dated 22nd February, 1990 by which the appeal filed by the petitioner under Section 13 of the Act was rejected by the learned Additional Commissioner, Bareilly Region.

I have heard Sri Yashwant Verma, learned counsel for the petitioner and the learned Standing Counsel for the respondents.

Learned counsel for the petitioner submitted that the petitioner possessed only 12.23 Acres of land which was much below the ceiling limits and the land of other tenure holders had been wrongly included in the holding of the petitioner for determining the ceiling area without even issuing notices to them as was required under the proviso to Rule 8 of the Rules framed under the Act and, therefore, the order declaring 23.82 Acres of surplus land deserves to be set aside.  In support of his contention, learned counsel for the petitioner placed reliance upon the Full Bench decision of this Court in Shantanu Kumar Vs. State of U.P. & Ors., 1979 ALJ 1174 which was subsequently followed by a learned Judge of this Court in Smt. Pavitra & Ors. Vs. State of U.P. & Ors., 2003 (95) RD 394. He further submitted that the proceedings had also been initiated against the petitioner's father under the Act and the Prescribed Authority by the order dated 31st May, 1983 held that there was no surplus land and so the State was estopped from pleading that the petitioner held any surplus land.

Learned Standing Counsel appearing for the respondents, however, submitted that it was not necessary to issue any notice to other tenure holders under the proviso to Rule 8 and that the findings recorded by the Prescribed Authority and the Appellate Authority do not suffer from any infirmity.

I have carefully considered the submissions advanced by the learned counsel for the parties.

Section 10(1) of the Act provides that where a tenure-holder fails to submit a statement under Section 9, the Prescribed Authority shall cause to be prepared a statement containing such particulars as may be prescribed indicating the land, if any, exempted under Section 6 and the plot or plots proposed to be declared as surplus land. Sub-section (2) of Section 10 then provides :

"(2) The Prescribed Authority shall thereupon cause to be served upon every such tenure-holder in such manner as may be prescribed, a notice together with a copy of the statement prepared under sub-section (1) calling upon him to show cause within a period specified in the notice, why the statement be not taken as correct. The period specified shall not be less than ten days from the date of service of the notice."

Section 9 of the Act provides for a general notice to tenure-holders holding land in excess of ceiling area for submission of statement in the prescribed form within thirty days of the publication of the general notice in the official gazette. Thus, every tenure-holder who holds land in excess of ceiling area is required to furnish a statement mentioned in Section 9 and every such tenure-holder who has failed to submit such statement has to be served with a notice under Section 10(2).

Rule 8 provides for service of notice on every tenure-holder to show cause with fifteen days why the aforesaid statement prepared by the Prescribed Authority be not taken as correct. Proviso to this rule is as follows:

" Provided that where the statement of 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 15 days from the date of service of the notice why the aforesaid statement be not taken as correct.

..........   .......................  .....................  ......................"

A Full Bench of this Court in Shantanu Kumar (supra) while analyzing the aforesaid provisions observed :-

"It is thus evident that the notice requiring the tenure-holder to show-cause why the statement prepared by the Prescribed Authority be not taken as correct is to issued to the tenure-holder in respect of whose holding the statement has been prepared. Under the proviso, the Prescribed Authority shall cause to be served a notice to the person in whose name the land included in C.L.H. Form 3 is ostensibly held. The Prescribed Authority prepares the statement on the basis of revenue records. If from the revenue records or other information, the Prescribed Authority comes to know that the land included in the statement in C.L.H. Form 3 includes land ostensibly held in the name of any other person, the Prescribed Authority is bound to serve notice on such person. The phrase used is 'shall cause to be served.'

The petitioner claimed under a sale deed. It is not disputed that the petitioner's name was recorded in the revenue papers over the land which was transferred to him. It is admitted that the statement in C.L.H. Form 3 included the land held by the petitioner. He was hence a person in whose name some part of the land mentioned in the statement was believed by the Prescribed Authority to be ostensibly held. In this situation, it was incumbent upon the Prescribed Authority to serve upon the petitioner the requisite notice together with a copy of the statement and call upon him to show cause why that statement be not taken as correct.

It is obvious that service of such a notice is preliminary to the acquisition of jurisdiction to proceed in the matter and decide whether the land ostensibly held in the name of the petitioner could be declared as surplus land in the hands of Bhupendra Singh. In the premises, the proceedings were without jurisdiction and void. Learned Standing Counsel submitted that the petitioner had knowledge and he should have filed an objection under Section 11(2) of the Act as has been held by a Division Bench of this Court in Dilbagh Singh v. State of U.P. (1978 All LJ 717). The existence of another remedy under the Act cannot validate the proceedings which are void for lack of jurisdiction and which have resulted in the declaration as surplus land of an area which a person other than the tenure-holder who has been heard, claims. The fact that the petitioner could have filed an objection under Section 11(2) will not breath life into or validate these dead proceedings." (emphasis supplied)

In the present case also it is not in dispute that the names of other tenure-holders whose land had been included in the holding of the petitioner had been recorded in the revenue records. In this view of the matter it was incumbent upon the Prescribed Authority to issue notice to those tenure-holders under the proviso to Rule 8 of the Rules. That was mandatory and in the absence of any notice, the entire proceedings are without jurisdiction and void.

The second submission advanced by the learned counsel for the petitioner also has substance.

Previously proceeding had been initiated under the provisions of the Act against Sri Chanan Shah father of petitioner was finally decided by the Prescribed Authority on 31.5.1983. This proceeding had been dropped after adjudication. In this proceeding, objector was shown to hold and possess only 12.50 acres of land which was below the limit provided under the Act. This 12.5 acres of land was exchanged with tenure holders in accordance with the Rules framed under the U.P. Zamindari Abolition and Land Reforms Act. In exchange he got 8.7 acres of land. Thereafter, the petitioner purchased 3.56 acres of land through registered sale deed. Thus, the total holding of the petitioner was less than 12.5 acres. The Prescribed Authority has rejected this contention holding that as the father had died, the principles of res-judicata will not apply. The Appellate Authority has not considered this contention at all. Learned Standing Counsel has relied upon the decision of the Supreme Court in Begum Suraiya Rashid & Ors., Vs. State of M.P. & Ors., (2006) 3 SCC 305. This decision does not help the respondents as it was held that the land involved in the dispute was distinctly different from the land involved in the earlier suit. In this view of the matter, the orders passed by the Prescribed Authority and the Appellate Authority cannot be sustained.  

There is nothing on the record to indicate that the petitioner had acquired any holding after the decision of the Prescribed Authority in respect of the land held by the petitioner's father which would make the total holding beyond the prescribed limit. The petitioner inherited this land and, therefore, if the Prescribed Authority, in respect of his father, had held that there there was no surplus land, the said finding would operate as res-judicata. The notice issued to the petitioner could also not have been issued under Section 10(2) of the Act and, therefore, it deserves to be quashed.

The writ petition, therefore, succeeds and is allowed. The order  dated 30th March, 1989 passed by the Prescribed Authority and the judgment and order dated 22nd February, 1990 passed by the Appellate Authority are set aside.

There shall be no orders as to costs.

Date: 5.7.2007

GS


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