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BHAGWAT SINGH & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Bhagwat Singh & Others v. State Of U.P. & Others - WRIT - C No. - 18025 of 1997 [2007] RD-AH 18626 (5 December 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.18025 of 1997

Bhagwat Singh and other

versus

State of U.P. and others

Hon.Shishir Kumar, J.

By means of the present writ petition the petitioners have approached this Court for quashing the order dated 17.1.1997 (Annexure 5 to the writ petition) passed by respondent No.3 in Case No.1 of 1996 and order dated 25.4.1997 (Annexure 6 to the writ petition) passed by respondent No.2 in Appeal No.6 of 1996-97.

The facts arising out of the writ petition are that one Sri Ram Singh was issued notice under Section 10(2) of the Act by which an area of 14.90 acres of the land was proposed to be declared as surplus. He filed an objection before the Prescribed Authority. In the objection it was alleged that a gift deed was executed on 18.8.1971. Various other pleas were taken by the tenure holder regarding irrigated and un-irrigated land. The Prescribed Authority vide its judgement and order dated 29.1.1975 dismissed the objection filed by Ram Singh. An appeal was filed, which was partly allowed by the District Judge. Aggrieved by the aforesaid order, a writ petition was filed as Writ Petition No.2740 of 1978, which too was dismissed on 3.8.1979 and a Special Appeal filed before the Supreme Court, which was also dismissed.

The petitioners were not aware regarding the aforesaid proceedings. They came to know when the Lekhpal of the village came to the village for the purposes of taking possession of the surplus land declared in the aforesaid proceedings. Then after inspection of the file, it was revealed that the land of the petitioners has been declared surplus. Then they immediately filed an objection under Section 11(2) of the Act. The said objection was dismissed in default on 31.1.1990 and an application was moved on 22.2.1990 on the ground that the petitioner No.1 was ill from 25.1.1990 to 20.2.1990 and after recovery from illness, an enquiry was made then he came to know that the case has been dismissed in default. The restoration application was pending, the said restoration application was dismissed on 10.9.1991. The said application was again dismissed on 4.6.1993. On the same day, an application was moved and the order was recalled. The matter was listed on 28.10.1995 and when the pairokar of the petitioners went to call his counsel, the Prescribed Authority again dismissed the objection filed by the petitioners. Again on the same day an application was moved. The petitioners were informed that on the application the date will be fixed and the petitioners will be informed accordingly. But no action was taken by the Courts below. In the meantime, in the month of October, 1996 the petitioners contacted their counsel and an application was moved for inspection of the record then it came to the knowledge that the application dated 28.10.1995 moved by the petitioners is not on record. Then an application was moved by the petitioners along with a carbon copy of the application dated 28.10.1995. The said application came up before the Prescribed Authority and the application was dismissed on the ground that no action has been taken on the restoration applications dated 22.11.1996 and 28.10.1995. A finding to this effect has been recorded that the petitioners wanted to prolong the proceedings.

Feeling aggrieved by the aforesaid order, an appeal was filed. The appellate Authority proceeded to decide the application on merits though there was no evidence on record on behalf of the petitioners. The Appellate Authority has not considered the fact that the restoration application was not decided and while deciding the said application, the case has been dismissed.

In the objection it was stated by the petitioners that no notice under Rule 8 was served upon the petitioners. They came to know regarding the proceeding against Ram Singh when the Lekhpal of the village came to the village and informed this fact that the land of the petitioners had been declared as surplus. The Lower Court found that there is no compliance of Rule 8 of the Rules. The Lower Court has also found that the land which was transferred by way of gift deeds has also been included in the notice issued to Ram Singh. All the gift deed have been rejected upto the stage of Supreme Court, therefore, there is no need for compliance of Rule 8 and due to non-compliance of Rule 8, the proceeding cannot be said to be invalid. The Lower Appellate Court has further observed that petitioners namely Bhagwant Singh and Tapraj Singh were examined as witnesses, as such, they had knowledge of the proceedings and the application filed by the petitioners is also barred by time.

It has been submitted by Sri Anil Sharma learned counsel for the petitioners that judgement of the Prescribed Authority as well as the Appellate Authority are erroneous in law as the land of the petitioners were clubbed for the purposes of determination of ceiling limit of Ram Singh and according to the finding recorded it has been proved by the petitioners that prior to inclusion of the land of the petitioners, no notice as required under the law has ever been issued to the petitioners. In such situation, he submits that entire proceedings against the petitioners are without jurisdiction and the petitioners land cannot be treating to be surplus of the land against the proceedings of Ram Singh. The reliance has been placed upon a Full Bench Decision of this Court reported in 1979 ALJ, 1174 Shantanu Kumar Vs. State of U.P. Taking support of the aforesaid judgement, the learned counsel for the petitioners submits that service of notice is preliminary to the acquisition of jurisdiction to proceed and decide whether the land ostensibly held in the name of the petitioners could be declared as surplus in the hands of tenure holders. If such a notice has not been served, the entire proceedings are without jurisdiction and void.

In view of the aforesaid fact, the learned counsel for the petitioners submits that finding by both the authorities is liable to be quashed being illegal.

Next submission has been made by the learned counsel for the petitioners is that the finding to this effect that petitioners were having knowledge of the proceedings, therefore, non-filing the objection will not invalidate the proceeding as the proceeding have become final upto the stage of Supreme Court and the petitioners being son of the original tenure holder was fully aware, therefore, in spite of the fact that notice has not been issued, the declaration of surplus land of the petitioners is not incorrect and invalid.

In support of this contention, the learned counsel for the petitioners has placed reliance upon a judgement of this Court reported in 1987 Revenue Decision, 239 Mahfuzul Rahman Vs. State of U.P. and others. This Court has held that rejection of objection under Section 11 (2) being highly belated as the petitioners on behalf of his father doing pairvi . This could not be inferred that as he is son and was having knowledge of the earlier proceedings, could not be imputed to the petitioner and in such circumstances, the Court had directed to restore back petitioners objection and decide the matter as a fresh on merits.

In view of the aforesaid fact, the learned counsel for the petitioners submits that the judgement and order passed by the authorities below are liable to be quashed.

On the other hand, learned Standing Counsel files a counter affidavit and has stated that the petitioners have filed an objection before the Prescribed Authority in respect of Plot No.241 and in the objection it was stated that this plot is a abadi land but has not stated that Plots Nos. 37, 132, 166, 200 and 216 were obtained by the petitioners by way of gift deed, which has been executed by his wife. The restoration application dated 22.2.1990 filed by the petitioners was dismissed in default on 22.8.1991 and it has not been dismissed on 10.9.1991 as stated by the petitioners, as there is no date available on record. Petitioners filed a restoration application against the order dated 22.8.1991 on 10.9.1991 which also dismissed in default on 4.6.1993. Thus, it clearly shows that petitioners knowingly adopted delaying tactics to delay the proceedings by filing several applications and restoration application. The Additional Commissioner, Moradabad Division, Moradabad has dismissed the appeal of the petitioners after calling the record of the Prescribed Authority. It is further stated that all the issues have already been decided and finalized up to the High Court, therefore, the application filed by the petitioners itself was not maintainable.

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

From the record, it is clear that the proceedings against one Ram Singh was initiated by the Ceiling Authority whereby a land measuring about 14.90 acres was declared as surplus. The objection was rejected and appeal as well as writ filed before this Court was also dismissed and alleged gift deed dated 18.8.1971 was taken into consideration by the Courts and has found that it is after the prescribed date i.e. 24th January, 1971, therefore, cannot be excluded from the holding of the original tenure holder. It is also clear from the record that when the petitioners came to know they immediately filed an objection under Section 11(2) of the Act. The case was dismissed in default but the application was filed for restoration. It is also clear from the record that the application dated 28.10.1995 was not on record and with an application dated 26.11.1996, the carbon copy of the application dated 28.10.1995 was filed before the Prescribed Authority for passing appropriate orders. But the Prescribed Authority has rejected the same, therefore, the Appellate Authority was obliged to take into consideration the fact whether the fact stated in the application was sufficient for the purposes of recall of the order.

The Appellate Authority without considering this fact that whether the notice was ever issued to the petitioners to have an opportunity to file an objection regarding their holdings. In Full Bench Decision of this Court, Shantanu Kumar (Supra), it has been held by the Court that failure to give notice of the proceedings on transferee from the tenure holder, if the land which has already been transferred is being taken into account for the purposes of declaration of surplus land, the transferee has a right to be heard on the basis of notice issued under Rule 8 of the Rules. This Court has gone to this extent that service of such 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 petitioners could be declared as surplus land. The court has further held that in the premises, the proceedings were without jurisdiction and void. As regards, the finding recorded by the Appellate Authority to this effect that as the petitioners being son of original tenure holder, had participated in the proceedings, therefore, they were having knowledge of the earlier proceeding and if some land of the petitioners is being declared as surplus that is not illegal. The similar controversy has also been considered by Mahfuzul Rahman's case (supra) to the effect that separate notice is necessary for the purposes of decision while declaring land as surplus. Both the authorities have not considered this aspect of the matter. The Prescribed Authority as well as the Appellate Authority without considering this aspects of the matter only on technical ground has rejected the claim of the petitioners.

In view of the aforesaid fact, I am of the opinion that the orders passed by the Prescribed Authority as well as the Appellate Authority are not sustainable in law and is liable to be quashed. The order dated 17.1.1997 (Annexure 5 to the writ petition) passed by respondent No.3 in Case No.1996 and order dated 25.4.1997 (Annexure 6 to the writ petition) passed by respondent No.2 in Appeal No.6 of 1996-97, are hereby quashed. The writ petition is allowed and the matter is remanded back to the Prescribed Authority, respondent No.3 for decision of the case of the petitioners on merits after affording full opportunity to the petitioners. As the matter is very old, therefore, it is directed that the Prescribed Authority will decide the same within a period of six months from the date of production of the certified copy of this order.

No order as to costs.

5.12.2007

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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