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Shahadat Husain v. State Of U.P. - WRIT - C No. 6998 of 1989  RD-AH 12742 (24 July 2007)
Court No. 28
Civil Misc. Writ Petition No. 6998 of 1989
Sahadat Hussain Vs. State of U.P. and another
Hon. Dilip Gupta, J.
This petition seeks the quashing of the notice dated 22.7.1987 issued by the Prescribed Authority under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the 'Act') and the order dated 25.2.1989 by which the application filed by the petitioner for withdrawing the notice has been rejected. The petitioner has also claimed a writ of prohibition for restraining the Prescribed Authority from proceeding in Case No. 19/11 of 1989.
A notice dated 31.5.1976 was earlier issued to the petitioner under Section 10(2) of the Act and ceiling Case No. 283 of 1976 was registered by the Prescribed Authority. Certain land, which had been transferred by the petitioner was also included in the holdings of the petitioner in the said notice. The petitioner filed objections that he had executed a sale-deed in favour of Syed. Sirajul Islam and Mohammed Islam on 13.2.1970 of land measuring 37.8 acres equivalent to 14.84 acres in terms of irrigated land; that he had also executed a sale-deed dated 24.6.1959 in favour of Tajdar Mirza on 24.6.1959 in respect of land measuring 18 acres equivalent to 7.2 acres in terms of irrigated land and that he had also executed a sale-deed in favour of Hamiduzzaman Jafri on 24.6.1959 in respect of land measuring 23.6 acres equivalent to 9.44 acres in terms of irrigated land. It was clearly stated that from the date of execution of the aforesaid sale-deeds, the transferees were in actual cultivatory possession of their respective holdings and the names of the transferees had also been mutated. The petitioner, therefore, prayed that he had no surplus land if the aforesaid land covered by these sale-deeds was excluded. The Prescribed Authority by the order dated17.7.1976 accepted the claim of the petitioner and discharged the notice. The operative portion of the order passed by the Prescribed Authority is quoted below:-
" The learned counsel for the tenure holder has rightly contended before me that the sale deeds were executed in 1959 and one was executed in 1970 and their mutations were also effected before the prescribed date and hence these holdings can not be included in the notice of the tenure holder. Hence I hold that Khata No. 10 area 46.07 Bighas (31.05 Bighas unirrigated and 14.02 Bighas Ekal) is equal to 8.76 irrigated transferred in favour of Sri Tajdar Mirza, Khata 60 area 58.19 Bighas (57.14 Bighas unirrigated and 1.05 Bighas Ekal is equal to 23.00 acres unirrigated) or 9.56 irrigated transferred to Hamidulzama and Khata 52 area 85 Bighas 5 Biswas (34.10 acres unirrigated) equal to 13.04 irrigated transferred to Sayed Mahmud Islam and Sayed Sirajul Islam total area 31.96 acres irrigated is to be deducted from the proposed surplus land which is only 31.88 irrigated acres. Hence no surplus land exists. The issue is decided accordingly."
It needs to be pointed out that the said order of the Prescribed Authority became final as the State did not file any Appeal against the said order. It also needs to be pointed out that earlier a notice had also been issued under Section 10(2) of the Act on Tajdar Mirza and the same was registered as Ceiling Case No. 98 of 1975. The land sold by the petitioner to Tajdar Mirza was included in his holding and ultimately the Prescribed Authority declared 7 biswas of land as surplus. The said order of the Prescribed Authority also became final.
The petitioner was again served with a notice under Section 10(2) of the Act in December, 1987. The petitioner was asked as to explain why 104.35 acres of irrigated land be not declared as surplus. In the said notice, land which had earlier been sold by the petitioner or his father was also included. The petitioner filed an objection giving details of the land which did not belong to him and also stated that earlier also proceedings in respect of the land covered by the notice had been initiated against him or his father under Section 10(2) of the Act and the orders passed by the Prescribed Authority had attained finality. The details of the objection filed by the petitioner relating to the land of other tenure holders which had wrongly been included in his holdings are as follows:-
(a) Hamid Hussain 24.84 acres
(b) Syed Sirajul Islam & Mohd. Islam 37.8 acres
(c) Parveen Jafri 24.8 acres
(d) Tajdar Mirza 18 acres
(e) Badshah Mirza 24.86 acres
(f) Mohd. Qasim & Nazim 26 acres
(g) Hamiduzzaman Jafri 23.6 acres
(h) Haider Ali & Wasi Haider 33.6 acres
In the said objection, the petitioner also pointed out that Hamid Hussain, Parveen Jafri, Badshah Mirza, Mohd. Qasim & Nazim, Haider Ali and Wasi Haider had acquired the holdings under registered instruments from the petitioner's father Abrar Hussain in 1959. The petitioner also pointed out that a notice under Section 10(2) of the Act was issued to his father in which land, which he had transferred to the aforesaid persons, was also included. The said case was registered as Case No. 232 of 1976. Objections were filed by his father and the transferees and the Prescribed Authority by its order dated 17.7.1976 discharged the notice holding that there was no surplus land. The relevant portion of the order passed by the Prescribed Authority is as follows:-
"The tenure holder has filed the original sale deed dated 12.6.1959 executed in favour of Sri Badshah Mirza, original sale deed in favour of Smt. Parvin Zafri dated 12.6.1959, original sale deed in favour of Mohammad Qasim and Mohammad Nazim executed on 12.6.1969 and registered sale deed in favour of Hamid Husain executed on 12.6.1969. The tenure holder has filed copies of mutation applications, report of Naib Tehsildar, mutation order and current Khatauni in respect of all the aforesaid four transferees. Besides the tenure holder has examined himself as D.W. 1, Nazim D.W.2, Prem Singh D.W. 3, Mangal Singh D.W. 4 and Shaukat D.W.5.
I have heard the learned counsel for the tenure holder and perused the record.
The learned counsel has rightly contended that all the four sale deeds were executed in 1959 and mutations were effected in 1960. The oral evidence as well as the statements of the lekhpal in the mutation case clearly go to show that possession was transferred to the transferees. Hence the area covered by these four sale deeds is to be excluded from the notice of the tenure holder. Khata No. 80 area 60.10 Biswas equal to 25.00 acres unirrigated equal to 16 acres irrigated in the name of Hamid Husain, Khata 57 area 56 Bighas 14 Biswas equal to 22.68 acres unirrigated equal to 9.07 acres irrigated in the name of Qasim and Nazim, Khata 43area 62 Bighas 18 Biswas equal to 25.16 acres unirrigated equal to 10.07 acres irrigated and khata 38 area 60.19 Biswa equal to 24.38 acres unirrigated equal to 9.78 acres irrigated in the name of Smt. Parvin Zafri, total area 38.88 acres irrigated is to be deducted from the total of proposed surplus land which is only 36.60 acres irrigated. Hence no surplus land remain with the tenure holder, and the issue is decided accordingly."
It also needs to be mentioned that a notice under Section 10(2) of the Act was also issued by the Prescribed Authority to Badshah Mirza which was registered as Ceiling Case No. 70 of 1975. The land which had been sold by the petitioner's father was shown to be his holding. The Prescribed Authority by the order dated 25.10.1975 held that there was no surplus land.
It is in this context that the petitioner filed an application before the Prescribed Authority that the notice should be discharged as the matter had attained finality during the earlier proceedings taken out against the petitioner and his father under Section 10(2) of the Act. A prayer was, therefore, made that this issue be decided first before examining the matter any further. This application of the petitioner was rejected by the order dated 25.2.1989 which has been impugned in the present petition.
I have heard Sri V.K.S. Chaudhary, learned Senior counsel for the petitioner and the learned Standing Counsel appearing for the respondents.
Sri V.K.S. Chaudhary, learned Senior counsel for the petitioner vehemently urged that the order passed by the Prescribed Authority is liable to be set aside as the proceedings were barred by res judicata as in the earlier proceedings under Section 10(2) of the Act, taken out against him and his father it had been clearly held that there was no surplus land. He further submitted that the conditions precedent for issuance of a notice under Section 29 of the Act were not satisfied and, therefore, the notice could not have been sent under Section 29 of the Act.
Learned Standing Counsel, on the other hand, submitted that the final order has not been passed by the Prescribed Authority and all that the Prescribed Authority has observed is that the application shall be finally decided after the evidence is led.
A perusal of the order dated 25.2.1989 indicates that the Prescribed Authority has not applied its mind to the controversy that had been raised by the petitioner in the application that had been filed for discharging the notice under Section 10(2) of the Act. The Prescribed Authority got swayed by the submissions made by the learned counsel for the State that the notice could be defended under Section 29 of the Act and for the said purpose gave opportunity to the State to lead evidence.
The question that was required to be determined by the Prescribed Authority was whether the issue stood concluded by the earlier orders rendered by the Prescribed Authority in Misc. Case Nos. 232 of 1976, 283 of 1976, 98 of 1975 and 70 of 1975 because if the land that was included in the notice issued under Section 10(2) of the Act was the same land which was covered by the earlier notices issued under Section 10(2) of the Act then the subsequent notice that had been issued to the petitioner in the year 1987 was required to be discharged. In such circumstances, no fruitful purpose would be served by giving opportunity to the State to lead evidence and then decide the issue, as for deciding the issue the petitioner had placed sufficient material before the Prescribed Authority.
This Court in Asghar Abbas Vs. State of U.P. and another, 2002 (93) RD, 702 has clearly, while considering the issuance of a third notice under Section 10(2) of the Act, observed as follows:-
"From the facts stated above it is apparent that the sale deeds in question were executed before 24 January, 1971 and were given effect to in the revenue papers, therefore, the validity and genuineness of the said sale deeds could not be questioned by the Prescribed Authority, particularly, when the same was upheld by it. It has also been conceded that prior to impugned notice and the order the notices were issued, which were, ultimately, after contest were discharged twice. The said orders have become final. It is no doubt true that a third notice can be issued but only under the facts and circumstances enumerated under Section 29 of the Act.
In the impugned notice it has not been stated that the petitioner has acquired any land under a decree or order of any court, or as a result of succession or transfer, or by prescription in consequence of adverse possession or unirrigated land became irrigated or any grove land lost its character as grove-land or any land exempted under this Act ceases to fall under any other categories exempted. Therefore, there was no occasion for redetermination of the ceiling limit of the petitioner and to issue fresh notice. On the other hand, as stated above, after enforcement of Section 38-B of the Act orders were passed by the Prescribed Authority discharging the notices. The said orders have become final. Therefore, the notice issued by the Prescribed Authority and the order passed by it rejecting the objection of the petitioner are wholly illegal and without jurisdiction. The Prescribed Authority on the basis of the said notice has got no jurisdiction to proceed against the petitioner in accordance with the provisions of the Act.
In the facts and circumstances of the present case, the Prescribed Authority is permitted to proceed further in the case initiated against the petitioner, it will be nothing but abuse of process of law. It is, therefore, necessary to prohibit him from proceeding further."
It is, therefore, clear that this Court in Asghar Abbas (supra) clearly negatived the contention of the State that since the matter could be contested by the petitioner before the Prescribed Authority, the petition should be dismissed as the Court was of the opinion that the proceedings initiated against the petitioner were an abuse of process of law. The Court further held that the conditions stipulated in Section 29 of the Act were not satisfied inasmuch as the notice did not state that any land had been acquired by the petitioner by an order of Court or as a result of succession or transfer or that unirrigated land had become irrigated so that the ceiling area could be redetermined.
In the present case also the notice was not issued under Section 29 of the Act and nor does it mention about any of the ingredients required for issuing a notice under Section 29 of the Act. There was, therefore, no necessity of giving any opportunity to the State to lead any evidence. All that the Prescribed Authority was required to examine was whether the land covered by the notice issued under Section 10(2) of the Act in December, 1987 was the same land which was covered by the earlier notices issued under Section 10(2) of the Act in which the Prescribed Authority had passed orders which had attained finality. The Prescribed Authority has not adverted to this issue. The matter, therefore, requires to be sent back to the Prescribed Authority as it has to be determined whether the same land was involved in the present notice issued under Section 10(2) of the Act.
Thus, for the reasons stated above, the order dated 25.2.1989 passed by the Prescribed Authority cannot be sustained. It is set aside. The Prescribed Authority shall pass a fresh order in accordance with law and in accordance with the observations made above and while deciding the said application, the Prescribed Authority shall also take into consideration the other submission raised by the learned counsel for the petitioner that the notice, even otherwise, could not have been issued after a period of 2 years from the date of enforcement of the U.P. Imposition of Ceiling on Land Holdings Act, 1976.
The writ petition is allowed to the extent indicated above. Interim order, if any, stands vacated.
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