Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 2247 (ALL)

State of U. P. v. Harish Chandra

2010-07-29

POONAM SRIVASTAV

body2010
JUDGEMENT Hon. Mrs. Poonam Srivastav, J. - Heard learned Standing Counsel for the petitioners and Sri Rajeev Mishra Advocate appearing on behalf of contesting respondents. 2. Two writ petitions have been filed against a common judgment dated 18.12.1990 which is impugned in the instant writ petitions. 3. Petitioners were issued notice under Section 10 of Uttar Pradesh Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act). By virtue of the aforesaid notice, it was proposed that Chittar Singh had surplus land of 4.32 acres. This land was said to be in excess of ceiling limit. Chittar Singh filed an objection and contested the matter. The Prescribed Authority taking into consideration the entire facts and circumstances of the case rejected objection of Harish Chandra son of Chittar Singh and Kanwar Pal, Vijay Pal and Har Pal sons of Niranjan Singh who are alleged to be minor under the guardianship of Anar Devi. An appeal was preferred by Chittar Singh against order of the Prescribed Authority dated 31.5.1976 declaring 4.32 acres of land as surplus. The appeal was allowed and order of the Prescribed Authority was quashed and matter was remanded to the Prescribed Authority to reassess the excess land beyond ceiling limit taking into consideration the number of family members, adult sons and giving requisite benefit as provided under the Act. The Prescribed Authority held that Chittar Singh had only two sons Babu Lal and Niranjan. He did not accept existence of third son and was of the view that benefit of two adult sons has already been given and once again vide order dated 31.3.1978 declared 4.32 acres land as surplus. This order was again challenged in appeal before the IInd Additional District Judge, Agra which was dismissed on 20.5.1981. The order dated 20.5.1981 was not challenged by Chittar Singh. However, an application before the Prescribed Authority was preferred with a request that area declared to be surplus may be taken from plot No. 38 and 43 situated in village Hajipur Khera. However, the Prescribed Authority passed an order on 8.12.1982 directing that excess land may be taken from plot no. 38 situated in village Penth Khera and plot no. 521 situated in village Ram Nagar Khadouli. However, the Prescribed Authority passed an order on 8.12.1982 directing that excess land may be taken from plot no. 38 situated in village Penth Khera and plot no. 521 situated in village Ram Nagar Khadouli. Chittar Singh preferred an appeal against the order dated 8.12.1982 passed by the Prescribed Authority which was allowed on 14.9.1983 granting request of Chittar Singh that the surplus land should be taken from the land in respect of which preference was given by Chittar Singh i.e. plot no. 43 situated in village Hajipur Khera. 4. Harish Chandra claiming himself to be son of Chittar Singh preferred Writ Petition No. 10926 of 1981 challenging the orders dated 20.5.1981 and 31.3.1978 passed by respondent nos. 1 and 2 respectively. The claim of the petitioners is that it was Chittar Singh who got the writ petition filed with a fictitious name. However, the writ petition was dismissed. An application was also moved by Harish Chandra mentioned aforesaid before the Prescribed Authority on 2.4.1988 stating therein that he was given no opportunity. He is adult son of Chittar Singh and his share was wrongly included in the land of his father. Reliance was placed by Harish Chandra on the voter list of 1988 which was disbelieved by the Prescribed Authority vide his order dated 31.3.1990 and rejected the aforesaid application. Harish Chandra preferred Appeal No. 14 of 1989-90 before respondent no. 1 and the said appeal was allowed vide judgment and order dated 18.12.1990 which is impugned in the instant writ petitions. 5. In fact two appeals were preferred before the Prescribed Authority who allowed both the appeals by a common judgment. The Appellate Authority believed the Kutumb Register as it was unrebutted evidence and recorded a finding of fact that Harish Chandra is major son of Chittar Singh and he was entitled for his share of 2 hectares (4.934 acres). Though claim of the State was that writ petition of Harish Chandra was dismissed and, therefore, his claim can not be considered by this Court at this stage. I am not in agreement with the submission of the State. The order of the High Court is annexed as Annexure-1 to the writ petition. Though claim of the State was that writ petition of Harish Chandra was dismissed and, therefore, his claim can not be considered by this Court at this stage. I am not in agreement with the submission of the State. The order of the High Court is annexed as Annexure-1 to the writ petition. In fact the writ petition was dismissed on account of the reason that two weeks and no more time was allowed to the petitioner to file a supplementary affidavit which he did not file within the stipulated period and, therefore, writ petition was dismissed summarily. No question in issue in the present case was ever decided. In the circumstances, the order dismissing writ petition is not an adjudication on the question as to whether Harish Chandra was major son of Chittar Singh and he had a claim and share in the property and whether his claim if taken into consideration then its effect, specially viz-a-viz the land declared surplus. The Appellate Authority has recorded a clear finding of fact that Harish Chandra is major son of Chittar Singh and was entitled for his share 4.934 acres of land and excess land which was only 4.32 acres, is liable to be adjusted in the share of Harish Chandra and, therefore, nothing remains to be declared surplus. 6. In the circumstances, the Appellate Authority was of the view that notice issued to the respondents was illegal and is liable to be discharged after taking into consideration and allocation of shares of all the major sons. Harish Chandra was major on the date when notice under the Ceiling Act was issued. Besides, Plot nos. 381-A and 381-B was co-tenancy of Niranjan and Chittar Singh. Niranjan major son of Chittar Singh was alive and was in possession on the date of vesting and land being sirkhudkast hence Niranjan. After his death, his sons were entitled for separate shares in the land which is subject matter of dispute and their shares could not be clubbed with the holding of Chittar Singh. It is also relevant to point out that plot nos. 365 and 380 measuring 13 bigha, 6 biswa and 10 biswanswi exclusively belong to Babu Lal, Harish Chandra alias Pitamber and Niranjan Singh. Subsequently Niranjan Singh died. After his death, names of his heirs Kunwar Pal, Savitri, Vijay Pal, Anita, Harpal have also been recorded. It is also relevant to point out that plot nos. 365 and 380 measuring 13 bigha, 6 biswa and 10 biswanswi exclusively belong to Babu Lal, Harish Chandra alias Pitamber and Niranjan Singh. Subsequently Niranjan Singh died. After his death, names of his heirs Kunwar Pal, Savitri, Vijay Pal, Anita, Harpal have also been recorded. In view of these circumstances, the impugned judgment does not call for any interference whatsoever. It is also noteworthy that no notice was ever issued to Niranjan Singh and Harish Chandra and they were not given any opportunity of hearing and, therefore, the order passed against Chittar Singh is not binding on Niranjan Singh and his sons as well as Harish Chandra. 7. In view of all these circumstances, I am of the considered view that the State has not been able to substantiate its case. The writ petitions lack merit and are accordingly dismissed. Petition Dismissed