Sudhir Singh v. State of Uttar Pradesh — 1983 DIGILAW 630 (ALL)

ORDER M.P. Mehrotra, J. - This petition under Article 226 of the Constitution of India arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act. 2. The facts, in brief, are these. The petitioners are the sons of one Nepal Singh who was treated as the tenure-holder. Ceiling proceedings were finalised in his name. It seems that the said tenure-holder filed an appeal an&the area of the surplus land was reduced by.-the appellate court. A true copy of the appellate court's judgment dated 9-2-1976 is Annexure 2 to the petition. Subsequently, on 4-4-1979 the Prescribed Authority passed an order a true copy of which is Annexure 2-A to the petition. By the said order the particular plots were specified which were to be declared as surplus land of the tenure-holder. It seems that the Consolidation Proceedings had taken place in the meanwhile and accordingly a new Chak was formed and this necessitated proceedings under S. 13A of the Act. Now it was proposed that instead of the old plots, plots nos. 297, 186 and 187 in the new Chak would be declared as surplus. To this proposal of the ceiling authorities, an objection was filed by the tenure-holder Nepal Singh on 12-12-1980, a true copy of which is Annexures 2-B and 3A to the petition. It may be stated that both the said Annexures are identical and by mistake were annexed to the petition twice. The Prescribed Authority passed his order dated 4-9-1981 disposing of the aforesaid objection of the tenure-holder dated 12-12- 1980. It may be stated that by the said objection dated 12-12-1980 the tenure- holder had objected that only plot no. 297 was included in his Chak and plots nos. 186 and 187 belonged to his two sons, Sudhir Singh and Sunil Singh. It was prayed that notices should go to the said two sons of the tenure-holder. The Prescribed Authority by the said order dated 4-9-1981 held that the said two sons as the heirs of their mother had their names mutated over the said plots nos. 186 and 187 after the death of their mother on 15-4-1979. It was prayed that notices should go to the said two sons of the tenure-holder. The Prescribed Authority by the said order dated 4-9-1981 held that the said two sons as the heirs of their mother had their names mutated over the said plots nos. 186 and 187 after the death of their mother on 15-4-1979. The Prescribed Authority further held that as the land of the said mother of Sudhir Singh and Sunil Singh had been included in the holding of the said tenure-holder in accordance with the provisions of the ceiling law, therefore, the said two sons of the tenure-holder had no locus standi at the said stage and it was not necessary that they should be allowed any opportunity to raise any objections. Accordingly, the Prescribed Authority declared the said plots Nos. 297, 186 and 187 as surplus land. Thereafter, the petitioners moved an application dated 15-9-81 purporting to be under S. 13-A of the Act. Their objection was that their two plots were illegally declared as surplus without any notice to them on 4-9-1981 by the aforesaid order of the Prescribed Authority (Annexure 4 to the petition). They contended that they had got the said land from their deceased mother who was a judicially separated wife of the said tenure- holder Nepal Singh. It was accordingly contended that the said land should not be declared as surplus land because it could not be treated to be a part of the said tenure- holder's holding and accordingly the said order dated 4-9-1981 deserves to be recalled. The Prescribed Authority rejected the aforesaid contention and held that the said application could not be entertained under S. 13-A of the Act and accordingly rejected the same by his order dated 10-6-1982, a true copy of which is Annexure 5 to the petition. 3. Feeling aggrieved, the petitioners filed an appeal but the same was dismissed by the appellate court by its judgment dated 19-7-1983 a true copy of which is Annexure 6 to the petition. A certified copy of the said judgment is also on the record. 4. Feeling aggrieved, the petitioners have now come up in the instant petition and in support thereof, I have heard Sri N. Lal, learned counsel for the petitioners. 5. A certified copy of the said judgment is also on the record. 4. Feeling aggrieved, the petitioners have now come up in the instant petition and in support thereof, I have heard Sri N. Lal, learned counsel for the petitioners. 5. The learned counsel raised a contention that no notice under S. 9(3) of the Act was given to the petitioners' mother Smt. Rameshwari Devi, Accordingly, according to the learned counsel, the entire ceiling proceedings taken against the tenure-holder Nepal Singh should be treated to be null and void. The learned counsel in this connection placed reliance on two reported decisions of this Court. Dil Bagh Singh v. State, (1978 All LJ 717) is a Division Bench pronouncement, wherein reliance was placed on the Full Bench decision of this Court in Upper Ganges Sugar Mills Ltd. v. Civil Judge, Bijnor ( AIR 1970 All 130 ). In the said Full Bench decision by the majority opinion, it was laid down that under S. 11(2) of the Act even unrecorded tenure-holders could move the Prescribed Authority for setting aside the order passed under section 11(1) of the Act against the recorded tenure- holders. The Division Bench held that after the deletion of sub-sections (3) to (7) of S. 14 by the U. P. Ordinance No. 31 of 1975, even though the pending objections under the said deleted provisions stood abated still, the objector unrecorded tenure-holder could take recourse to S. 11(2) of the Act treating the order passed against the recorded tenure-holder as exparte so far as the unrecorded tenure-holder was concerned and the State could take possession of the land declared as surplus only after such an unrecorded tenure-holder's objections were considered. In my view, this case cannot be made applicable to the facts of the instant case. S. 11(2) of the Act provides for an application by a tenure-holder. In view of the law laid down by the aforesaid Full Bench, even an unrecorded person claiming to be the real tenure-holder has been considered to be within the ambit of the said expression "tenure-holder". However it should be seen that the petitioners mother could not be treated to be a tenure-holder. The wife of a tenure-holder has been expressly excluded from the definition of a tenure-holder as given in S. 3(17) of the Act. However it should be seen that the petitioners mother could not be treated to be a tenure-holder. The wife of a tenure-holder has been expressly excluded from the definition of a tenure-holder as given in S. 3(17) of the Act. Apart from the said aspect of the matter, it should be seen that no such application under Sec. 11(2) was ever given by Smt. Rameshwari Devi in her lifetime. She never moved any application before the Prescribed Authority that she had not received any notice of the ceiling proceedings and, therefore, the order passed against the tenure-holder should be treated as ex parte so far as she was concerned. It should further be seen that in the application dated 15-9-61 which the petitioners filed purporting to be under S. 13-A of the Act, it was never stated that no notice had been issued to their mother. Their only complaint was that no notice had been issued to them. In this view of the matter S. 11(2) of the Act cannot be said to be attracted to the facts of the instant case. I have already stated that the petitioners themselves treated their application dated 15-9-1981 to be one-under S. 13-A of the Act and not under S. 11(2) of the Act. 6. Learned counsel, thereafter, placed reliance upon the Full Bench decision in Shantanu Kumar v. State of U. P. (1979 All WC 585) : (1979 All LJ 1174). In the aforesaid case the Full Bench laid down the effect of non-compliance with Rule 8 of the Rules framed under the Act. It was held that the said rule has a mandatory force and non- compliance with the same would vitiate the orders passed in the ceiling proceedings. The learned counsel for the petitioners argued that by the same analogy it can be held that an order passed in the ceiling proceedings in the absence of a notice under S. 9(3) of the Act would be bad in law. I do not propose to deal with the said argument in the present case because it is not necessary to do so. I do not propose to deal with the said argument in the present case because it is not necessary to do so. In some other appropriate case, it may be necessary to consider whether by analogy the same considerations would apply to a situation where a notice under S. 9(3) has not been given (sic) were held to be applicable to persons who have been treated as ostensible owners in the ceiling proceedings and to whom no notice as required by R. 8 has been issued to enable them to contend that they are not merely ostensibly recorded but are the real tenure-holders. As I have stated above, it is for the first time in the writ petition that this allegation has been made that no notice under S. 9(3) of the Act was issued to the mother of the petitioners. I have already emphasised above that the petitioners in their application dated 15-9- 1981 never came out with a case that their mother had not received any notice under S. 9(3) of the Act. It is important that during her lifetime the said lady never complained that she had not received arty notice under S. 9(3) of the Act and that she was not aware of the ceiling proceedings. Her husband had been fighting out the case before the Prescribed Authority who passed his order on 24-3-1975. The tenure-holder namely the husband of Smt. Rameshwari Debi took out an appeal against the said order and the same was substantially allowed by the appellate court by its aforesaid judgment dated 19-2-1976, Annexure 2 to the petition. In the petition, it has been stated that Smt. Rameshwari Debi died on 15-4-1979. Obviously, the petitioners did not have any personal knowledge as to whether their mother had or had not received any notice under S. 9(3) of the Act and they rightly did not say in their application dated 15-9-1981 that such a notice had not been received by their mother. However, for the first time in the writ petition, this averment has been made and I have no manner of doubt that it has been done for the purposes of this case. Accordingly, in my view, the application dated 15-9-1981 was correctly rejected by the Prescribed Authority and the order was correctly upheld by the appellate court. 7. However, there is an aspect of the matter which has to be emphasised. Accordingly, in my view, the application dated 15-9-1981 was correctly rejected by the Prescribed Authority and the order was correctly upheld by the appellate court. 7. However, there is an aspect of the matter which has to be emphasised. This Court has consistently taken the view that the legislature intended in S. 12-A of the Act that as far as possible the choice of the tenure-holder should be accepted. That being the legislative intention, it has also been laid down in the case law in Bharat v. State, (1977 All WC 407) : (1977 All LJ 375) and in Meharban Singh v. Sub-Divisional Magistrate (1978 All LR (SOC) 92) that in case the tenure-holder's rights have not been extinguished by proceedings under S. 14 of the Act, then he may be allowed to change his choice. Sri N. Lal also drew my attention to clause (b) of the proviso to S. 12-A of the Act which lays down as under : "Where the tenure-holder's wife holds any land which is aggregated with the land held by the tenure-holder for purposes of determination of the Ceiling Area, and his wife has not consented to the choice indicated by the tenure-holder as to the plot or plots to be retained as part of the ceiling area applicable to them, then the Prescribed Authority shall, as far as possible, declare the surplus land in such manner that the area taken out of the land held by the tenure-holder's wife bears to the total surplus area the same proportion as the area originally held by her bore to the total land held by the family." It is not clear to me whether in declaring the surplus land the Prescribed Authority took into consideration the said provisions contained in cl. (b). As no point had been made in the petitioner's application dated 15-9-1981, it is difficult for me to say anything on this-aspect of the matter. But apart from the said aspect of the matter, it has seemed to me that the petitioners and their father should be given an opportunity to express their agreed choice regarding the land which should be declared as surplus land. Sri N. Lal, the learned counsel for the petitioners, stated before me that such agreed choice shall be given within two months from the date of this judgment. Sri N. Lal, the learned counsel for the petitioners, stated before me that such agreed choice shall be given within two months from the date of this judgment. As and when the same is given,'the Prescribed Authority shall decide the same in accordance with the provisions of S. 12-A of the Act including the various clauses of the proviso. However, this direction is being given on the footing that no proceedings under S. 14 of the Act have taken place resulting in the extinction of the right of the tenure-holder in the land in question. In case, such proceedings had taken place, then this direction will have no effect. Needless to say, in case there have been no proceedings under S. 14 of the Act then the Prescribed Authority will not make any allotment of the land in question till the choice proceedings are finally decided by him. The petition is accordingly dismissed in limine with the aforesaid observations.