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2010 DIGILAW 666 (UTT)

BALBIR SINGH v. STATE OF U. P.

2010-09-09

TARUN AGARWALA

body2010
JUDGMENT Heard Mr. B.C. Pandey, the learned senior counsel assisted by Mr. K.N. Joshi, the learned counsel for the petitioners, Mr. Sudhir Kumar, the learned brief holder for the State authorities and Mr. Sharad Sharma, the learned senior counsel assisted by Mr. Lok Pal Singh, the learned counsel for the intervenor. 2. This is a second round of litigation under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as ‘the Act’). A notice under Section 10(2) of the Act was issued to Jaswant S/o Nihal accompanied with C.L.H. Form-III indicating therein that Jaswant was holding land in village Dhandhera, village Mohanpur and village Nagla Ahmad. The notice indicated that an area of 18 bighas 1 biswa and 9 biswansi was proposed to be shown as surplus land in the hands of Jaswant. Jaswant filed his objections alleging that he had no surplus land. The prescribed authority, by an order dated 27th February, 1976 declared 18 bighas 1 biswa and 9 biswansi as surplus land. Jaswant filed an appeal, which was partly allowed by an order dated 08th March, 1977 and the surplus land was reduced to 16 bighas 2 biswa and 2/3 biswansi. Jaswant, being aggrieved by the aforesaid orders, filed a writ petition No. 2121/1977 before the Allahabad High Court and, during its pendency, Jaswant died and, his three sons, namely, Balbir Singh, Sukhbir Singh and Samay Singh were substituted as the petitioners. 3. The said writ petition was dismissed by a judgment dated 5th March, 1979 and the surplus land declared by the authorities was affirmed. By the said judgment, the plea of the petitioners that the land in question was an ancestral property and was not the individual property of Jaswant was not accepted by the High Court. The court held that no evidence was filed by the petitioners to support the contention that the property was ancestral. 4. Upon the dismissal of the writ petition, the possession of the surplus land was taken over by the State and the same was allotted to other persons by an order of the Tehsildar dated 21st February, 2000 which confirmed the resolution of the Gram Sabha/land management committee dated 30th October, 1999. Purusant to the allotment orders, the names of the allottees were recorded in the revenue records and possession given to them. 5. Purusant to the allotment orders, the names of the allottees were recorded in the revenue records and possession given to them. 5. After more than 6 years, the three sons of late Jaswant, namely, Balbir Singh, Sukhbir Singh and Samay Singh filed fresh objections under Section 11(2) of the Act to recall the order dated 27th February, 1976 claiming that they had one-fourth share in the property since the said property was ancestral and, consequently, they had a right to be served with a notice under Section 10 of the Act. Further, the land was partitioned pursuant to a decree dated 08.11.1971 and consequently, the three sons of Jaswant were entitled to receive a notice separately in their individual capacity. The objections of three sons of late Jaswant was rejected by the prescribed authority by an order dated 19th April, 1984. The prescribed authority held that the sons of Jaswant had notice of the proceedings initiated under Section 10 of the Act and separate notice was not required to be issued to the three sons of Jaswant. The prescribed authority found that one of the sons of Jaswant had deposed in the earlier round of litigation and, consequently, concluded that the sons of late Jaswant had knowledge of the proceedings and accordingly rejected the objection. 6. The three sons, being aggrieved by the rejection of the objection, filed an appeal which was rejected by an order dated 11.08.1986. The three sons filed the present writ petition before the Allahabad High Court, which was transferred to this High Court upon the creation of the High Court of Uttarakhand. 7. The learned counsel for the petitioners submitted that the land was ancestral and tried to impress upon the court from the voluminous documents filed in the supplementary affidavit to indicate that the land was Khudkast/Seer land and that the petitioners had an inherent right on the ancestral property from the day they were born since the Mitakshara law was applicable. 8. The learned counsel for the petitioners submitted that since the land was H.U.F. property, the petitioners had one-fourth share in the property and, consequently, were entitled for a notice in their individual capacity. 8. The learned counsel for the petitioners submitted that since the land was H.U.F. property, the petitioners had one-fourth share in the property and, consequently, were entitled for a notice in their individual capacity. The learned counsel for the petitioners submitted that the fact that land in question was Khudkast land was known of the State authorities and, deliberately, did not come out with the correct facts in the ceiling proceedings and that a fraud was played by the State authorities which led to the passing of the order by the ceiling authority declaring the land as surplus. 9. The learned counsel for the petitioners submitted that an act of fraud on the court should be viewed seriously and that the act of fraud played by the State authorities depriving the rights of the petitioners in relation to a property, would render the order of ceiling authority void ab-initio. In support of his submission, the learned counsel for the petitioners placed reliance upon a decision of the Supreme Court in Ram Chandra Singh Vs. Savitri Devi & others 2003 (8) SCC 319. In addition to the aforesaid, the learned counsel for the petitioners submitted that a suit for partition was decreed by the civil court by an order dated 08.11.1971 and, therefore, pursuant to the said decree, the petitioners having one-fourth share in the property were entitled to be given a notice, consequently, the objections filed by the petitioners under Section 11(2) of the Act was liable to be allowed. 10. On the other hand, the learned brief holder appearing for the State respondents contended that the land in question was never an ancestral property and that no fraud had been committed by the State authorities. The contention of the petitioners that the property was ancestral was repelled by the courts in the earlier round of litigation. The learned brief holder for the State further submitted that in consolidation proceedings, Jaswant was recorded as a tenure holder in his individual capacity and, no such plea was raised by Jaswant or by his sons in the consolidation proceedings and, consequently, the order of the consolidation authority had become final and binding upon Jaswant and his sons. The learned brief holder for the State further submitted that in consolidation proceedings, Jaswant was recorded as a tenure holder in his individual capacity and, no such plea was raised by Jaswant or by his sons in the consolidation proceedings and, consequently, the order of the consolidation authority had become final and binding upon Jaswant and his sons. The learned brief holder for the State further submitted that in the earlier round of litigation, the writ petition filed before the Allahabad High Court was dismissed on 5th March, 1979 and the petitioners remained silent for almost six long years. The delay in filing the objections has not been explained and, consequently, the said application was liable to be rejected on that ground itself. 11. An intervention application has also been filed by Rishi Pal Singh alleging that a portion of the surplus land was allotted to him in the year 2000 and, since then, he is in possession and supported the stand taken by the State authorities and prayed for the dismissal of the writ petition. 12. Admittedly, when the ceiling proceedings were initiated the tenure holder Jaswant, the consolidation proceedings stood completed in the village and Jaswant became the absolute owner of the property in his individual capacity. In Jaswant Kumar Vs. State of U.P. & others 1979 A.L.J. 276 (Lucknow Bench), it was held that the findings recorded bys the consolidation courts in consolidation proceedings is final and binding on all the parties and, such findings cannot be readjudicated or challenged in any civil or revenue court. The court further held that Section 49 of the Consolidation Act in a way laid down a rule of res-judicata in so far as the question relating to declaration and adjudication of the rights of a tenure holder in respect of his holdings. The court further held that the ceiling authorities had a right to take the land from the tenure holder as it was declared surplus by the consolidation court. 13. In the light of aforesaid, this court finds that the consolidation court declared Jaswant as the tenure holder of the land in question in his individual right and no objection was filed by Jaswant or by his sons before the consolidation authorities to the effect that the land was ancestral and that it was not the individual holding of Jaswant. In the light of aforesaid, this court finds that the consolidation court declared Jaswant as the tenure holder of the land in question in his individual right and no objection was filed by Jaswant or by his sons before the consolidation authorities to the effect that the land was ancestral and that it was not the individual holding of Jaswant. In the absence of any objection being filed, the order of the consolidation proceedings became binding on the petitioners and also on the ceiling authorities. 14. In Zafar Khan & others Vs. Board of Revenue, U.P. & others 1984 (10) A.L.R. (R) 96, the Supreme Court held that once the village was denotified, the allotment made under the Consolidation Act become final and could not be questioned by filing a suit before the civil or revenue court in view of the power enacted under Section 49 of the said Act. 15. In the light of the aforesaid, it is not disputed that in consolidation proceedings, the rights of late Jaswant was finalised and no objection was filed either by late Jaswant or by the present petitioners to the effect that the land in question was ancestral. Further the documents filed by way of a supplementary affidavit by the petitioners do not indicate that the land is still recorded as ancestral in the revenue records after the consolidation proceedings. Consequently, the stand of the petitioners that the land was ancestral and the petitioners were required to be issued a notice in their individual capacity under Section 10 of the Act is patently erroneous. The objections filed by the petitioners in the year 1986 under Section 11(2) of the Act was patently misconceived and was rightly rejected. 16. The contention of the petitioners that even otherwise the petitioners were entitled to be served a notice in their individual capacity pursuant to a decree passed by the civil court dated 08.11.2000 in a partition suit is patently erroneous. Under sub-clause (6) of Section 5 of the Act, the cut off date is 24th January, 1971 and, consequently, the decree of the civil court after the cut off date cannot be taken into consideration. The contention of the learned counsel for the petitioners on this aspect is misconceived and rejected. 17. Under sub-clause (6) of Section 5 of the Act, the cut off date is 24th January, 1971 and, consequently, the decree of the civil court after the cut off date cannot be taken into consideration. The contention of the learned counsel for the petitioners on this aspect is misconceived and rejected. 17. The court further finds that the petitioners were substituted in the earlier round of litigation upon the death of their father and their contention that the property was ancestral was repelled by the High Court by holding that there was no evidence to indicate that the property was ancestral. Consequently, this court finds that the petitioners could not raise such objections again and contend that the property was ancestral. In my opinion, the petitioners were estopped from raising this plea again and the principles of res-judicata is squarely applicable. The court further finds that having lost in 1979 when the writ petition was dismissed by the High Court, the petitioners kept silent for more than six years and filed their objections in the year 1986. No explanation whatsoever has been given as to why the petitioners could not file their objections at an earlier point of time. This court is of the opinion that the objections filed by the petitioners in the year 1986 should have been dismissed on the ground of laches. 18. In view of the aforesaid, this court does not find any merit in the writ petition and is accordingly dismissed with costs.