Shafir v. District Judge, Gonda — 1985 DIGILAW 258 (ALL)

JUDGMENT K.N. Misra, J. - This Writ Petition is directed against the order dated 1261978 passed by the District Judge, Gonda dismissing the appeal filed by the petitioners under Section 13 of the U.P. Imposition of Ceiling on Land Holdings Act (hereinafter to be referred to as the Act') by which learned District Judge has dismissed the appeals filed by the petitioners being time barred. 2. Learned counsel for the petitioners also urged that the order dated 2451976 passed by the Prescribed Authority which is contained in Annexure No. 1, be also quashed so far as it relates to the determination of the claim of the petitioners by the Prescribed Authority by the aforesaid order. 3. Briefly stated, the facts of the case are as follows : 4. The opposite party No. 4 Salaman Khan Was served with a notice Under Section 10(2) of the Act in respect of the landholding recorded in his name. It was proposed that certain land which was recorded in the name of opposite party No. 4, would be declared to be surplus as he holds land beyond the prescribed ceiling limit. Opposite party No. 4 filed an objection against the said notice on several grounds. Petitioners 1 to 21 also filed objection under Section 10(2) of the Act claiming to be tenure holders having acquired Sirdari rights over certain plots of the disputed holding recorded in the name of opposite party No. 4 on the basis of adverse possession. Some other objectors had also filed objections claiming Sirdari rights in the land of the holding recorded in the name of Salaman The Prescribed Authority, vide order dated 4576, decided, the case. The claim of the petitioners was rejected on the ground that a ceiling authority cannot decide the claim of the petitioners of being tenureholders of certain plots of the disputed holding on the basis of adverse possession. It was observed by the Prescribed Authority while deciding issue No. 8 that the petitioners should file regular title suit with regard to that land and their objection cannot be considered by him in these proceedings under Section 10(2) of the Act wherein they had claimed to have acquired Sirdari rights by adverse possession on certain plots in the disputed holding recorded in the name of opposite party No. 4 Salaman. The Prescribed Authority had thus not determined the claim of the petitioners on merits. The Prescribed Authority had thus not determined the claim of the petitioners on merits. Aggrieved by this order, petitioners had preferred appeal, on 1261978. Prior to it opposite party No. 4 had also filed an appeal against the order dated 4576 passed by the Prescribed Authority. This appeal was, filed by Opposite Party No. 4 on 11121977 and it was allowed by the learned District Judge by the order dated 7277 by which the case was remanded to the Prescribed Authority for being decided on merits according to law and in the light of the observations made therein concerning the claim of opposite party No. 4. Learned District Judge, however, rejected the appeal of the petitioners, vide order dated 12678 holding it to be timebarred. He refused to treat the appeal within time which, according to him, was filed after a long delay. This order has been challenged in this writ petition. 5. Learned counsel for the petitioners, Sri Pradeep Kant, urged that the petitioners had applied for copy on 27576 of the impugned order dated 24576 passed by the Prescribed Authority. This copy was prepared and posted on 5101977 and the appeal was thereafter filed on 111277. Learned counsel urged that the appeal was within limitation and there was no question of rejecting it as timebarred. In reply, learned standing counsel urged that the learned District Judge has expressed his doubt with regard to the filing of the petitioner's application for copy on 27576. Learned counsel thus urged that the appeal filed by the petitioners has been wrongly dismissed as timebarred. 6. I have gone through the impugned order dated 1271978 passed by the learned District Judge very carefully and I find that it cannot be sustained, firstly, because there was nothing on record to indicate that the endorsement on the certified copy issued by the office of the Prescribed Authority to the effect that the application for copy was moved on 27576 was wrong and manipulated endorsement. Learned District Judge has observed in the impugned order that the petitioner in collusion with the concerned official had manipulated the endorsement on the copy regarding filing of the application for copy and its preparation. Learned District Judge has observed in the impugned order that the petitioner in collusion with the concerned official had manipulated the endorsement on the copy regarding filing of the application for copy and its preparation. If that be so, learned District Judge should have directed the Prescribed Authority or the District Magistrate to take action against the official incharge of the Copying Department who had made the endorsement on the certified copy issued to the petitioners, but curiously enough chis was not done by the learned District Judge while dismissing the appeal with the aforesaid observations for which apparently there it no basis to come to that conclusion. The report which was called for from the office of the Prescribed Authority indicated that no register for preparation of the copies issued by the office of the Prescribed Authority was maintained. Thus it cannot be said that the endorsement on the copy issued to the petitioner with regard to the date of filing of the application for copy or its delivery was fictitiously got recorded by the petitioner in collusion with the concerned official. In these circumstances there was no occasion for doubting the endorsement made on the certified copy appended to the memo of appeal according to which a long time was taken in the preparation of the copy from 27th May, 1975 to 10th October, 1977. Although it was unduly long time in preparing the copy but the petitioner cannot be made to suffer on account of the faults committed by the Copying Department of the Prescribed Authority in preparing the copy after such a long delay. In these circumstances time taken in the preparation of the copy was to be excluded and appeal filed by the petitioners could not be treated to be file:3, beyond time. Thus the impugned order dated 1261978 passed by the learned District Judge dismissing the appeal filed by the petitioner is unsustainable and deserves to be quashed and it is accordingly quashed. 7. Learned counsel for the petitioner had urged that instead of remanding the appeal of the petitioner to the learned District Judge for being decided on merits, the impugned order passed by the Prescribed Authority so far as the claim of the petitioners is concerned also deserves to be quashed as it is per se wrong and illegal and deserves to be quashed. His further contention was that if the case will be remanded to the District Judge for deciding it on merits, it will certainly consume some more time at the appellate stage unnecessarily because the order passed by the Prescribed Authority by which the case of the petitioners was rejected merely on technical ground also deserves to be quashed and, as such, the petitioners prayer for its quashing be also considered on merits and if the impugned order passed by the Prescribed Authority is found to be erroneous and illegal, the same be set aside so far as the claim of the petitioners is concerned and the Prescribed Authority be directed to determine the claim of the petitioners on merits according to law, I find much substance in this argument as well firstly, because the learned District Judge while allowing the appeal filed by opposite party No. 4 had set aside the order dated 24576 passed by the Prescribed Authority and had remanded the case to him for deciding it afresh on merits. It thus appears appropriate that if the order passed by the Prescribed Authority is found to be per se wrong and illegal, the same can be quashed instead of remanding the case to the appellate court for determining the validity of the impugned order passed by the Prescribed Authority far as the claim of petitioners is concerned. 8. Learned counsel for the petitioners has urged that the Prescribed Authority has rejected the objection filed by the petitioner under Section 10(2) of the Act merely on the ground that in the ceiling proceedings the Prescribed Authority cannot determine the claim of the petitioners who have claimed sirdari rights over certain plots of the disputed holding on the ground of adverse possession for more than the prescribed period of limitation. It was urged that the Prescribed Authority has wrongly refused to consider the claim of the petitioners on merits which should havebeen considered and decided on merits according to law in view of the decision of the Full Bench of this court in the Case Upper Ganges Sugar Mills Ltd., reported in 1967 ALJ 565 and also in Dilbagh Singh's case reported in 1978 ALJ 717) I find much substance in the contention of the learned counsel for the petitioners. 9. 9. In Dilbagh Singh's case Dilbagh Singh v. State of U.P. and others, 1978 ALJ 717) it was held by the Division Bench that Section 11(2) permits a tenureholder to file objections. Such tenureholders may be those who have been served with a notice and a statement under Section 10 (2). It also includes tenureholders who have not been given or served with any such notice or statement. The construction put by the Full Bench also embraces persons who claim to be tenureholders and who having come to know of the declaration of their land as surplus land of some other person wish to challenge that declaration or notification thereof in the gazette under Section 14, They are all entitled to file an objection under Section 11 (2) and get an adjudication thereon as required by Section 12. 10. In this view of the matter I find that the objection which the petitioners had filed required to be decided on merits under Section 12. The petitioners have claimed that they are tenureholders of certain plots of the disputed holding recorded in the name of opposite party No. 4. They thus claimed that opposite party No. 4 is not tenureholder of those plots and the petitioners have acquired rights by adverse possession having remained in adverse possession for more than the prescribed period. Thus those plots could not be shown in the notice issued to the opposite party No. 4 under Section 10(2) of the Act nor the same could be treated to be holding of the opposite party No. 4 and declared surplus land in his hands because in the event petitioners succeed in establishing their Sirdari rights and title by adverse possession over the land in dispute it could not be treated to be part of the holding of opposite party No. 4. The Prescribed Authority, therefore, was required to determine this question, on merits as to whether the plots which were claimed by the petitioners as their Sirdari land could be factually and legally sustained or not. The Prescribed Authority should, therefore, consider the claim of the petitioners after giving them full opportunity to lead evidence in support of their claim. The Opp. party No. 4 will also be given opportunity to contest the claim of the petitioners. The Prescribed Authority should, therefore, consider the claim of the petitioners after giving them full opportunity to lead evidence in support of their claim. The Opp. party No. 4 will also be given opportunity to contest the claim of the petitioners. Even in the case which has been remanded by the learned District Judge for considering the claim of opposite party No. 4 for being decided by now on merits, the Prescribed Authority will consider the objections filed by the Petitioners on merits in respect of the plots in which they have claimed rights by adverse possession. The objection would be treated to be maintainable as one under Section 11 (2) of the Act as held by this court in the aforesaid decisions and will be decided on merits even if the land in which petitioners have claimed title by adverse possession has been notified under Section 14(1) of the Act because the deletion of Section 14(2) will not bar maintainability of such objection, as held in Ram Kumar Singh v. State of U. P. and others, Writ Petition No. 981 of 1976 decided on 10101984. 11. In view of the above, the Writ Petition is allowed and the impugned order dated 1261978 passed by the District Judge, Gonda and order dated 2451976 passed by the Prescribed Authority (Ceiling) Utraula, are hereby quashed and the Prescribed Authority is directed to restore the objections filed by the petitioners and decide the same on merits treating the objection to be one under Section 11 (2) of the Act in respect of the plots in dispute which were recorded in the holding of the opposite party No. 4. The Prescribed Authority will give notice to opposite partyNo. 4Salaman Khan and after giving the parties full opportunity of leading evidence in support of their case decide the case on merits. If the objection filed by Salaman Khan which was remanded by the learned District Judge for being decided on merits has not yet been disposed of on merits, the same will now be decided along with the objections filed by the petitioners.