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DEO PRASAD SINGH versus STATE OF U.P.AND OTHERS

High Court of Judicature at Allahabad

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Deo Prasad Singh v. State Of U.P.And Others - WRIT - C No. - 4553 of 1984 [2007] RD-AH 17101 (30 October 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.35

Civil Misc. Writ Petition No. 4553 of 1984

Deo Prasad Singh

Vs.

The State of U.P. and others

Hon.Shishir Kumar, J.

The present writ petition has been filed in the nature of certiorari quashing the orders dated 31.8.1982 and 20.1.1984 (Annexures 1 and 3 to the writ petition) passed by the respondent Nos. 3 and 2 respectively. Further a writ in the nature of mandamus commanding the respondents not to proceed to take possession of the petitioner's land and to drop the proceeding initiated against the petitioner.

The present writ petition pertains to the proceeding under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act (here-in-after referred to as the 'Act') with regard to the land of the petitioner situated in village Karahuli Pargana- Baberu District Banda. A notice under Section 10 (2) of the Act was issued to the petitioner and petitioner filed a detailed objection and the prescribed authority vide its order dated 13.10.1976 declared an area of 15.6.12 acres as surplus land. The appeal filed against the aforesaid order was allowed by order dated 9.2.1977 and the matter was remanded back to the prescribed authority. Aggrieved by the aforesaid orders, the petitioner filed a writ petition before this Court challenging the validity of the orders passed by the authorities below being Writ Petition No.2021 of 1977(Deo Prasad Singh Vs. District Judge, Banda and others. Vide its order dated 6.2.1979, the writ petition was allowed and the matter was remanded back to the lower appellate court for decision on merits specifically observing therein that the Court below ought to have considered and extended the benefit of the land of the petitioner, which was held to be of others during the consolidation proceeding, in favour of the petitioner for the purposes of declaring surplus land in terms of the Act. In pursuance of the aforesaid remand order passed by this Court, the lower appellate court vide its order dated 11.2.1982 further remanded the matter to the prescribed authority for being decided in the light of the observation made by this Court. Vide its order dated 31.8.1982, the Prescribed Authority ignoring the orders passed by the High Court dated 6.2.1979 and also ignoring the specific direction given by the lower appellate court dated 11.2.1982, again proceeded to declare an area of 19.14.2 acres as surplus land. The appeal filed by the petitioner was partly allowed vide its order dated 20.1.1984 and the benefit of 4.1.0 acres was extended to the petitioner, whereas, an area of 15.13.2 acres of surplus land was declared as surplus, was confirmed by the Prescribed Authority.

However, the lower appellate court has further remanded the matter back to the Prescribed Authority for making a fresh determination of irrigated and un-irrigated area of the holding of the petitioner. Aggrieved by the aforesaid orders, the petitioner has filed the present writ petition.

The writ petition was entertained and by order dated 24.3.1984, the operation of the order was stayed.

It has been submitted on behalf of the petitioner that the Courts below has rejected the objection of the petitioner with regard to giving benefit of the land being plots No. 86, 87, 124, 208, 305, 318, 354, 390, 547, 612, 674, 800, 1075, 1090 and 1134 having a total area of 16.7.10 acres, where of several persons of the village were declared Seerdar on the basis of their possession during the consolidation proceedings and considering the said fact the consolidation authorities have passed the order declaring such persons as Seerdars of the land of the petitioner, as such, the benefit of reduction of area of the petitioner, the petitioner is entitled to get the said benefit in ceiling proceeding. Further submission has been made that under Section 10 (2) of the Act, the notice against the petitioner also includes several plots, which were separately recorded in the name of wife of the petitioner, namely Smt. Indraniya as a separate tenure holder. The objection to this effect by the petitioner with regard to exclusion of such plots being a separate tenure holder has not been accepted by the Courts below on the ground that the holding of the wife and husband are treated to be one for the purposes of proceeding the same are to be clubbed for working out the total area held by the petitioner for the purpose of Act and there is no requirement to serve a separate notice to the wife. The Courts below has also not taken into consideration regarding providing the benefit of certain plots of the petitioner, which were completely in the nature of abadi and were held to be abadi by the consolidation courts.

The courts below ought to have considered for giving the benefit to the petitioner of the areas which have already in the possession of others and they were declared Sirdars during the consolidation proceeding but the contention of the petitioner has been rejected by the Courts below without any basis only on the ground of reduction of area brought about after 8.6.1973 on account of tittle adjudication by the consolidation authorities cannot be given effect to by ceiling authority. The reduction of the area of tenure holder in consolidation proceeding may come out due to various reasons. One of the reason may be in a adjudication of title by the consolidation authorities between the real claimant, tenure holder looses some land in consolidation proceedings, and thus there is a reduction of his area compared to what he had held before the consolidation proceedings. The ceiling does not grant any benefit to such a tenure holder on account of reduction during consolidation proceedings brought about. The observation to the effect regarding seeking benefit of the consolidation proceedings on the ground of the orders passed by the authorities and not giving the benefit to the petitioner is wholly misconceived. Admittedly, the plots mentioned above, were declared Sirdari of such persons, as such, it was incumbent on the part of the Courts below to have extended the benefit of reduction of area of the petitioner during the consolidation proceedings for the purposes of Act.

The learned counsel for the petitioner submits that in view of the well settled principle now the area reduced during the consolidation operation, were bound to be excluded of the holding of the petitioner. The surplus land of the tenure holder for the purposes of Act has to be calculated after excluding the plots from the total holdings of the tenure holder which have already gone out of the hands of the tenure holder as a result of consolidation proceedings. Reliance has been placed upon a judgement in Jhandoo Vs. State of U.P. and others reported in 1977 A.W.C 318, and Satya Pal Singh Vs. State of U.P. and others reported in 1979 ACJ 400 (Division Bench). Further submission has been made by the learned counsel for the petitioner is that the holding of the wife of the petitioner has also been clubbed with that of the petitioner for the purposes of this Act while determining the total area of surplus land held by the petitioner. The said illegality committed by the authorities below is against the provisions of the Act as well as the Rule 8 of the Rules framed thereunder. The wife of the petitioner was admittedly recorded a separate tenure holder over several khatas, which have also been included in the holding of the petitioner and notice to that effect was issued. No notice to the wife, being a separate tenure holder, was issued. As from the perusal of Section 10(2) of the Act it is clear that the Prescribed Authority shall thereupon cause to be served upon every such tenure-holder in such manner as may be prescribed. Meaning thereby every recorded tenure holder is entitled to get notice. If no notice has been given, the proceeding itself is bad in law.

The orders passed by the Court below cannot be sustained owing to the fact that on account of non-compliance of Rule 8 of the Rules, the total proceedings under the Act are void in view of the judgements reported in 1983 ALJ, 873 Raghuvansh Singh and others Vs. State of U.P. and others. In support of the contention, the learned counsel for the petitioner submits that the court has gone to this extent that in case notice is served on father, who was the only recorded tenure holder, on an objection filed by the sons for re-determination on the ground that they were the co-sharers along with their father but no notice was given to them as the Prescribed Authority had not considered the case, this Court has held that the Rule 8 of the U.P. Imposition of Ceiling on Land Holdings Rules, 1961, contemplates service of separate notice on every co-sharers. Meaning thereby if the wife of the petitioner was recorded a separate tenure-holder, she was entitled to notice but in spite of the objection taken by the petitioner before the authority below, there is no compliance of Rule-8. As such, in view of the Full Bench decision of this Court reported in 1979 AWC, 585 Shantanu Kumar Vs. State of U.P and others, the total proceedings against the petitioner is vitiated and is liable to be quashed and the present writ petition is liable to be allowed.

On the other hand, the learned Standing Counsel submits that the respondents have already complied with the provision of Section 5(6) of the U.P. Consolidation of Holdings Act. Further it has been stated that the land given in the name of other person in the consolidation proceeding were illegally transferred by compromise. The prescribed authority considered the said aspect of the matter and repelled the submission of the petitioner. A finding to this effect that the transfers made on the basis of compromise orders in the consolidation proceeding were neither bonafide, as such, can be ignored. As the petitioner has failed to prove that the land in question declared as surplus was abadi on the basis of evidence adduced by the petitioner. As the petitioner after the prescribed date i.e. 24.1.1971, there was a compromise in respect of holding as Sirdaris right to others in the consolidation proceeding, was malafide. The ceiling authorities have correctly reduced to give the benefit of those lands under the Act. The reliance has been placed upon two judgements of this Court. One reported in 2002 (3) A.W.C 2333, Balraj Singh Vs. State of U.P. and others. Another is 1998 (2) A.W.C 1356, Chandradhar Prasad Narayan Singh Vs. State of U.P. and others.

I have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.

After perusal of the record, it is clear that initially when the notice was given to the petitioner under Section 10(2) of the Act and certain lands were declared surplus, the petitioner filed a writ petition before this Court which was allowed and matter was remanded back to the lower appellate court. The lower appellate court vide its order dated 11.2.1982 has allowed the appeal and the matter was further remanded to the Prescribed Authority. The Prescribed Authority in spite of various contentions raised by the petitioner to this effect that various lands were in possession of the persons and during the consolidation proceeding it has been decided and the authorities had directed to record their names as Sirdars, a document of khatauni for 1378 fasli to 1380 was produced in which on the basis of the order of 1974 by the consolidation authority, the names of various persons were recorded as Sirdars and the name of the petitioner was expunged but the prescribed authority has not given any benefit to the petitioner only on account that this order has been passed after the prescribed date i.e. 8.6.1973, therefore, the petitioner is not entitled for the said benefit.

As regards, this fact, that during consolidation proceeding the area of the petitioner has been reduced but the Prescribed Authority without recorded any finding to this effect has rejected the claim of the petitioner. The High Court as well as the Appellate Authority had directed the Prescribed Authority to consider the case in view of the provision of Rule 8 of the Rules considering this aspect of the matter that in case, if the wife of the petitioner was recorded as a separate tenure holder, whether land of wife of the petitioner can also be clubbed with the holding of the petitioner, whether there was any violation of Rule 8 of the Rules. The Full Bench decision of this Court reported in Shantanu Kumar (Supra) has held that service of notice is preliminary to the acquisition of jurisdiction to proceed in the matter to declare the land as surplus. In case, no notice is served under Rule 8 of the U.P. Imposition of Ceiling on Land Holding Rules, proceeding is without jurisdiction and is liable to be quashed and the Full Bench has further observed that existence of another remedy under the Act cannot validate the proceeding which were 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. An objection to lack of jurisdiction can be taken at any stage of the proceedings and even in collateral proceedings. The consent or waiver cannot be a ground for refusing to entertain such an objection. Rule 8 provides for service of notice on every tenure holder to show cause. 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 be 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 notice to the person in whose name the land included in CLH Form No.3 is ostensibly held. The Prescribed Authority prepares a statement on the basis of the revenue record. If from the revenue records or other information, the Prescribed Authority comes to know that the land included in the statement of CLH Form No.3 includes the land ostensibly held in the name of any other person, the Prescribed Authority is bound to serve notice to such person. The phrase used is "shall cause to be served."

In Jhandoo Vs. State of U.P. (Supra) while considering the claim regarding abadi land, this Hon'ble Court has determined that while determining the ceiling area, abadi land cannot be included in the holding of petitioner and the petitioner cannot be considered to be a tenure holder of such land. Sub-Section (2) of Section 3 of the Act defines ceiling area as under:-

'Ceiling area' means the area of land, not being land exempted under this Act, determined as such in accordance with the provisions of Section 5.

A bare perusal of the definition clearly indicates that for the purposes of determining ceiling area what has to be considered is the 'land'. It is the land not exempted under the Act which cannot be held by a tenure holder in excess of ceiling area and a tenure holder means a person who is a holder of holding. Holding has been defined in Section 3 (9) of the Act.

As required to be determined by the Prescribed Authority was that petitioner did not hold any land in excess of ceiling area after 8.6.1973. In case, as a result of proceeding under the consolidation of holding Act, the area of the petitioner was reduced to such an extent that no surplus land remain with the petitioner it was to be considered by the prescribed authority as well as by the appellate authority. The authorities below were also obliged to take into consideration that if the certain lands are not in possession of the petitioner and that was determined during the consolidation operation, whether that can be clubbed as holding of petitioner.

From the perusal of the record and the judgements of the authorities below, it is clear that these aspects of the matter has not been considered by the courts below and if it has been considered the same has not been considered in accordance with law. Taking into consideration the various pronouncement of this Court, authorities below have completely ignored this aspect of the matter that it was proved by the petitioner by record that plot Nos. 469, 483 and 619 the parts of the some land were completely in the nature of abadi but the authorities below have not taken into consideration this fact, that during consolidation proceeding it was held to be abadi.

The Apex Court in Civil Appeal No.464 of 1987 Sahendra Singh Vs. State of U.P. and others has held that there were trees planted on the land before 24.1.1971 and there is no proof that they have been cut before the date. There is no proof that the nature of the land has been changed. In such circumstances, the Apex Court has held that High Court was in error in the circumstances of the case that land is not a grove land and as such, a tenure- holder is not entitled for the benefit. In case of 1996(2) SCALE, 70, Thakhur Deen Vs. District Judge, Banda & others has held that the authorities below have to take into consideration the reduction of area of the land made in consolidation proceeding and if some proceeding has been terminated from the consolidation in favour of the tenure holder, that cannot be ignored by the ceiling authority.

As regards, the notice to the wife of the petitioner who is admittedly, a separate tenure holder and no notice to the wife of the petitioner was ever issued. The prescribed authority as well as the appellate authority has not taken into consideration the aforesaid fact.

In view of the aforesaid fact, the judgement and order passed by the prescribed authority as well as by the appellate authority dated 31.8.1982 and order dated 20.1.1984 (Annexures 1 and 3 to the writ petition), in my opinion, cannot be sustained and is hereby quashed and the writ petition is allowed. The matter is remanded back to the prescribed authority for decision as a fresh in the light of the observation made above. As the matter is very old, pending since long, therefore, it will be appropriate that the prescribed authority decides the case, if possible, within a period of six months from the date of production of the certified copy of this order.

No order is passed as to cost.

30.10.2007

SKD


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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