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DR.JAGARNATH versus ADDL.COMMISSIONER,MORADABAD & OTHERS

High Court of Judicature at Allahabad

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Dr.Jagarnath v. Addl.Commissioner,Moradabad & Others - WRIT - C No. 17545 of 1996 [2007] RD-AH 11446 (9 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.28

Civil Misc. Writ Petition No. 17545 of 1996

Dr. Jagarnath

Vs.

Additional Commissioner Moradabad Division & Ors.

**********

Hon. Dilip Gupta, J.

This petition has been filed for quashing the order dated 30th September, 1995 passed by the Prescribed Authority declaring 48.28 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 29th March, 1996 passed by the Additional Commissioner, Moradabad Division, Moradabad by which the appeal filed by the petitioners under Section 13 of the Act was rejected.

I have heard Sri K.G. Srivastava learned counsel for the petitioners and the learned Standing Counsel for the respondents.

Notice under Section 10(2) of the Act was issued against which the petitioners filed objections on 22nd July, 1987. Two preliminary issues were framed by the Prescribed Authority namely whether the notice dated 31st March, 1987 was in accordance with law and whether the notice was barred by the principles of res-judicata. These two preliminary issues were decided against the petitioners by the Prescribed Authority by the order dated 17th December, 1987. The first preliminary objection that had been raised was that the statement prepared under Section 10(1) of the Act was not supplied to the tenure holder and, therefore, the notice was bad in law. In respect of the second preliminary objection it was submitted that earlier notice under Section 10(2) of the Act was issued on 19th February, 1976 in which surplus land was declared but the appeal filed by the petitioner against the said order under Section 13 of the Act was allowed and the notice was discharged. It was submitted that the land covered by the earlier notice was same as the land covered by the subsequent notice and, therefore, the order passed in appeal operated as res-judicata. The Prescribed Authority ultimately by the order dated 30th March, 1995 declared 48.2 acres of land as surplus. The appeal filed under Section 13 of the Act was also dismissed by the judgment and order dated 29th March, 1996.

Learned counsel for the petitioner submitted that the notice dated 31st March, 1987 that had been issued under Section 10(2) of the Act was illegal as the statement prepared by the Prescribed Authority under Section 10(1) of the Act was not supplied along with the copy of the notice issued under Section 10(2) of the Act. He further submitted that the notice was barred by the principles of res-judicata inasmuch as in the earlier proceedings relating to the same land, the Appellate Authority had discharged the notice holding that there was no surplus land.

Learned Standing Counsel appearing for the respondents submitted that it was not incumbent upon the Prescribed Authority to supply a copy of the statement under Section 10(1) of the Act and the proceedings were also not barred by res-judicata.

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

In order to appreciate the contentions advanced by the learned counsel for the parties it may be necessary to examine certain provisions of the Act and the Rules framed thereunder.

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 of the Act.

Section 10 of the Act is as follows:-

"10(1). In every case where a tenure-holder fails to submit a statement or submits an incomplete or incorrect statement, required to be submitted under Section 9, the Prescribed Authority shall, after making such enquiry as he may consider necessary either by himself or by any person subordinate to him, cause to be prepared a statement containing such particulars as may be prescribed. The statement shall in particular indicate the land, if any, exempted under Section 6 and the plot or plots proposed to be declared as surplus land.

10(2). The Prescribed Authority shall thereupon cause to be served upon every such tenure-holder i n 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."

Rule 8 of the U.P. Imposition of Ceiling on Land Holdings Rules, 1961 (hereinafter referred to as the 'Rules') is as follows:-

"As soon as may be, after the expiry of thirty days from the date of publication of the general notice in C.L.H. Form 1 in the official Gazette, the Prescribed Authority shall cause to be served upon every tenure-holder, who has failed to submit the statement in C.L.H. Form 2 or has submitted an incomplete or incorrect statement, a notice in C.L.H. Form 4 together with a copy of the statement in C.L.H. Form 3, prepared under Rule 6 calling upon him to show cause within a period of fifteen days from the date of service of the notice why the aforesaid statement be not taken as correct."

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.

Provided further that in the case of a tenure-holder who is a member of Armed Forces (Military, Naval or Air Force) of the Union of India, the period within which he will be called upon to show cause why the statement in C.L.H. Form 3 be not taken as correct, shall be ninety days from the date of service of the notice in C.L.H. Form 4."

A perusal of the aforesaid provisions of the Act and the Rules clearly show that where the tenure-holders fails to submit or submits an incomplete or incorrect statement under Section 9 of the Act, the Prescribed Authority shall prepared a statement as provided for in Section 10(1) of the Act in C.L.H. Form No. 3 and this statement shall be served to the tenure-holder along with the notice under Section 10(2) of the Act. The proviso of Rule 8 along with the provisions of Rules 9 and 10 had been held to be mandatory by this Court in Man Singh & Anr. Vs. Additional Commissioner & Ors., reported in 1990 RD 101 and the Full Bench of this Court in Shantanu Kumar Vs. State of U.P. & Ors., 1979 ALJ 1174. The Prescribed Authority while dealing with this issue in its order dated 17th December, 1987 observed that there appeared to be no illegality in the notice. This finding cannot be sustained as specific objections had been raised that the notice was bad as the statement under Section 10(1) of the Act had not been supplied with. The Appellate Authority has not examined this issue at all. It is not in dispute that the statement prepared under Section 10(1) of the Act had not been supplied to the tenure-holder. The notice was clearly dehorse the mandatory provisions of Section 10(2) of the Act. The entire proceedings on the basis of this notice are void.

In view of the aforesaid, the notice issued under Section 10(2) of the Act is liable to be discharged and the orders passed by the Prescribed Authority and  the Appellate Authority are liable to be set aside.

It is, therefore, not necessary to examine the other preliminary objection raised by the tenure-holder before the Prescribed Authority that the notice was also liable to be set aside as it was barred by the principles of res-judicata. It is, however, made clear that in the event a fresh notice is issued under Section 10(2) of the Act by the Prescribed Authority then in that event it will be open to the tenure-holder to raise all such objections including the objection about res-judicata since the findings recorded by the Prescribed Authority and the Appellate Authority in this regard are based merely on conjectures and surmises that unirrigated land was converted into irrigated land.    

The writ petition, therefore, succeeds and is allowed. The order  dated 30th September, 1995 passed by the Prescribed Authority and the judgment and order dated 29th March, 1996 passed by the Appellate Authority are set aside.

There shall be no orders as to costs.

Date: 9.7.2007

GS/NSC


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