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2010 DIGILAW 832 (UTT)

AMAR SINGH v. STATE

2010-11-26

TARUN AGARWALA

body2010
JUDGMENT Heard Mr. M.C. Pandey, the learned counsel for the petitioners and Mr. Sudhir Kumar, the learned Brief Holder for the State. 2. Proceedings under Uttar Pradesh Imposition of Ceiling of Land Holdings Act, 1960 (hereinafter referred to as Act, 1960) was initiated against the recorded tenure holders. A notice under Section 10(2) of the Act was issued to respondent no. 4 Shri Prem Nath Mehta to show cause as to why the proposed land measuring 50.77 acres in village Kuwakhera and Sitarampur be not declared surplus. 3. The tenure holder respondent no. 4 filed his objections stating that in village Kuwakhera 85.90 acres of land was purchased by Sri Subhash Mehta, Sri Raj Nath Mehta, Sri Deepak Mehta and respondent no. 4 by separate registered sale deeds dated 17.11.1969 and that the area was put to consolidation in which respondent no. 4 was allotted 18.274 acres. It was further stated that respondent no. 4 thereafter transferred the aforementioned land vide separate sale deeds to other persons in good faith and for adequate sale consideration and that the names of the purchasers were also recorded in the revenue records. It was also alleged that the notice issued under Rule 8 was incorrect as several other lands not belonging to the respondent no. 4 were included. The said respondent contended that the land measuring 18.274 acres in village Kuwakhera after consolidation was below the ceiling limit and consequently, there was no restriction for the transfer of the land. It was further contended that in so far as the land of Sitarampur was concerned, a suitable reply would be filed subsequently after obtaining the certified copies of the revenue records for the year 1974 to 1984 fasli. 4. The petitioners are not recorded tenure holders but contend that they are in possession of the land at village Sitarampur and are in cultivatory possession and consequently, they are entitled for a notice under Section 10(2) of the Act. Since notice was not given and the petitioners came to know that the proceedings under the Act had been initiated, they appeared and filed objections separately under Section 10 of the Act. 5. The petitioner no. 1 in his objection contended that the name of respondent no. 4 had wrongly been shown as a tenure holder and that the ceiling papers had not been prepared on the basis of a spot inspection. The petitioner no. 5. The petitioner no. 1 in his objection contended that the name of respondent no. 4 had wrongly been shown as a tenure holder and that the ceiling papers had not been prepared on the basis of a spot inspection. The petitioner no. 1 contended that he was in possession of the land since 1376 fasli and is in possession since then. The petitioners contended that P.N. Mehta was not in possession since 1376 fasli. The petitioner no. 1 contended that since he was in possession, he moved an application under Section 39 of the Land Revenue Act, on the basis of which, the Assistant Collector directed the Tehsildar to enquire and submit a report, and based on such report, the Assistant Collector, vide an order dated 1.11.1977, recorded the name of the petitioner on the basis of possession of some portion of the land. The petitioners contended that village Sitarampur was not under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the UPZA & LR Act) and was governed by the U.P. Tenancy Act. The UPZA & LR Act came into force w.e.f. 26.10.1970 and that the original tenure holder did not file any suit for eviction within the stipulated period of three years, as a result of which, the original tenure holder extinguished his right after the expiry of three years and the petitioner became a Bhumidhar of the land under Section 210 of the UPZA & LR Act. Similar objections were also filed by other petitioners. 6. In support of the contention of the petitioners, the statement of petitioner no. 3 was recorded denying the possession of respondent no. 4. It also transpires that respondent no. 4 did not file any further objection with regard to his land in village Sitarampur, but appeared and deposed alleging that he had surrendered all his rights in village Sitarampur from 1968 onwards and that his name in the revenue records being shown after 1968 was wholly illegal. It further transpires that Sri Kartar Singh, Lekhpal also appeared as a witness and submitted that the petitioners are in cultivatory possession of the land in village Sitarampur. 7. The prescribed authority, after considering all aspects of the matter and, upon a perusal of the evidence brought on record, treated the land of village Sitarampur as the holding of respondent no. 4 contending that respondent no. 7. The prescribed authority, after considering all aspects of the matter and, upon a perusal of the evidence brought on record, treated the land of village Sitarampur as the holding of respondent no. 4 contending that respondent no. 4 was recorded as the tenure holder and that no proof was brought on the record to the effect that the petitioners were in cultivatory possession since 1968. The court held that in the absence of any specific proof being given by the petitioners, it cannot be held that the petitioners were in possession since 1968 nor was there any proof that the recorded tenure holder, namely, respondent no. 4 had given physical possession to the petitioners of the land in 1968 or thereafter. The prescribed authority accordingly held that there was no surplus land of respondent no. 4 in village Kuwakhera and that the land of village Sitarampur was declared surplus. 8. The order of the prescribed authority became final in so far as the respondent no. 4 is concerned, since no appeal was preferred. The petitioners, being aggrieved, filed an appeal, which also met the same fate and was dismissed. The petitioners thereafter have preferred the present writ petition. 9. The learned counsel for the petitioners contended that a perusal of Section 10(2) read with Rule 8 of the Rules gives a clear mandate and is incumbent upon the respondent to issue a notice to a tenure holder and absence of issuance of a notice would render the proceedings a nullity. The learned counsel for the petitioners contended that a notice under Section 10(2) read with Rule 8 is required to be given not only to a recorded tenure holder but also to an unrecorded tenure holder. The learned counsel submitted that admittedly the State authorities had issued an order in the year 1977, by which the names of the petitioners were entered in the revenue records pursuant to an order passed under Section 39 of the Land Revenue Act, and that the notices issued under Section 10(2) of the Act was also issued to the recorded tenure holder in the year 1977-78. Consequently, at that stage, the petitioners were also required to be issued a notice. Consequently, at that stage, the petitioners were also required to be issued a notice. The learned counsel for the petitioners submitted that in the absence of the issuance of a notice under Section 10(2) of the Act, the entire proceedings were liable to be struck down and the mere fact that the petitioners had filed objections would not cure the initial defect. In support of his submission, the learned counsel for the petitioners placed reliance upon a decision of a Full Bench of the Allahabad High Court in Shantanu Kumar Vs. State of U.P. & Others 1979 All. L.J. 1174 and a decision of this Court in Smt. Cicilia Channi & Others Vs. The Ist Additional District Judge, Nainital and Others, 2007 (2) U.D. 113, in which it was held that notice under Section 10(2) read with Rule 8 of the Rules is required to be sent not only to a recorded tenure holder but also to an unrecorded tenure holder who is in possession of the land. 10. In order to test the submission of the learned counsel for the petitioners, it is essential to peruse a few provisions of the Act. Section 3(17) of the Act defines a tenure holder, which is quoted hereunder :- “3(17) ‘tenure-holder’ means a person who is the holder of a holding but [except in Chapter III] does not include – (a) a woman whose husband is a tenure-holder; (b) a minor child whose father or mother is a tenure-holder;” 11. Holding has been defined under Section 3(9) of the Act. The said provision is quoted hereunder : “3(9) ‘holding’ means the land or lands held by a person as a bhumidhar, sirdar, asami or Gaon Sabha or an asami mentioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or as a tenant under the U.P. Tenancy Act, 1939, other than a sub-tenant, or as a Government lessee, where the period of the sub-lease is co-extensive with the period of the lease. 12. Section 10(2) of the Act provides the provision for issuance of notice to a tenure holder. 12. Section 10(2) of the Act provides the provision for issuance of notice to a tenure holder. The said provision is quoted hereunder :- “10(2) The Prescribed Authority shall thereupon cause to be served upon every such tenure-holder in such manner as may be prescribed, a notice together with a copy of the statement prepared under sub-section (1) calling upon him to show cause within a period specified in the notice, why the statement be not taken as correct. The period specified shall not be less than ten days from the date of service of the notice.” 13. Rule 8 of the Rules prescribes the procedure for issuance of notice which is quoted hereunder :- “Rule 8. As soon as may be, after the expiry of thirty days from the date of publication of the general notice in C.L.H. Form I in the official gazette, the Prescribed Authority shall cause to be served upon every tenure holder, who has failed to submit the statement in C.L.H. Form 2 or has submitted an incomplete or incorrect statement, a notice in C.L.H. Form 4 together with a copy of the statement in C.L.H. Form 3, prepared under Rule 6 calling upon him to show cause within a period of fifteen days from the date of service of the notice why the aforesaid statement be not taken as correct : Provided that where the statement in C.L.H. Form 3 also includes land ostensibly held in the name of any other person, the prescribed authority shall cause to be served upon such other person a notice in C.L.H. Form 4 together with a copy of the statement in C.L.H. Form 3 calling upon him to show cause within a period of fifteen days from the date of service of the notice why the aforesaid statement be not taken as correct : Provided further that in the case of a tenure-holder who is a member of the Armed Forces (Military, Naval or Air Force) of the Union of India, the period within which he will be called upon to show cause why the statement in C.L.H. Form 3 be not taken as correct, shall be ninety days from the date of service 9 [of the notice in C.L.H. Form 4]. 14. 14. A perusal of the aforesaid provisions indicate that the prescribed authority is required to cause to serve upon every tenure holder, who has failed to submit the statement in CLH Form-II, etc. in Bageshwari Devi Vs. Shashi Bind Narain Sewar Pandey & another 1965 A.L.J. 756, it was held that a tenure holder, as defined in Section 3(b) of the U.P. Imposition of Ceiling on Land Holdings Act, includes an unrecorded tenure holder also. It was further held that a tenure holder whether recorded or unrecorded has a right to file an objection at the stage of Section 10(2) of the said Act. Similar view was held by this Court in Smt. Cicilia Channi’s case (supra). In the light of the aforesaid, it is clear that an unrecorded tenure holder, who is in possession of the land, is entitled to object to the proceedings initiated under the Act, 1960, and can file an objection under Section 10(2) of the Act. To this extent, there is no quarrel in the aforsaid proposition. Admittedly, in the present case no notice was served on the petitioners. The learned counsel for the petitioners states that in the absence of any notice being sent, the entire proceedings were void ab initio. In support of his submission, the learned counsel placed reliance upon the Full Bench decision in Shantanu Kumar’s case (supra) wherein the Full Bench held as under :- “11. It is obvious that service of such a 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 petitioner could be declared as surplus land in the hands of Bhupendra Singh. In the premises, the proceedings were without jurisdiction and void. Learned Standing Counsel submitted that the petitioner had knowledge and he should have filed an objection under Section 11(2) of the Act as has been held by a Division Bench of this Court in Dilbagh Singh v. State of U.P. (1978 All LJ 717). The existence of another remedy under the Act cannot validate the proceedings which are void for lack of jurisdiction and which have resulted in the declaration as surplus land of an area which a person other than the tenure-holder who has been heard, claims. The existence of another remedy under the Act cannot validate the proceedings which are void for lack of jurisdiction and which have resulted in the declaration as surplus land of an area which a person other than the tenure-holder who has been heard, claims. The fact that the petitioner could have filed an objection under Section 11(2) will not breathe life into or validate these dead proceedings.” 15. In the light of the aforesaid decision, the learned counsel submitted that the fact that the petitioners filed their objections under Section 10(2) would not cure the initial defect nor would it validate the proceedings which were void for lack of jurisdiction and which had resulted in the declaration of surplus land. 16. The submission of the learned counsel for the petitioners appears to be attractive in the first flush, but on a closer scrutiny, the court is of the opinion that it is devoid of merit. The reason is not far to see. It would have been a different matter if a notice had not been served to a recorded or unrecorded tenure holder and proceedings continued exparte, in which case, the proceedings could be struck down as being void for lack of jurisdiction but, where objections are filed, even though the notices are not issued to the objector, the defect, if any, stands cured and the irregularity which was committed in the first instance, stood rectified. Consequently, after raising objections and getting the matter decided on merits, the objector cannot turn around at this stage and allege that the initial proceedings were void ab initio. The court is of the opinion that having regard to the circumstances of the present case, once an objection has been filed by an unrecorded tenure holder which objection was considered and dealt with on merits, the initial defect, if, any stood cured and it was no longer open to the petitioners to contend that the proceedings initiated under Section 10 of the Act were illegal in the absence of a notice not being issued to the petitioners. In the light of the aforesaid, the decision of the Full Bench is clearly distinguishable and is not applicable to the facts and circumstances of the present case. The contention of the petitioner does not hold any merit. 17. In the light of the aforesaid, the decision of the Full Bench is clearly distinguishable and is not applicable to the facts and circumstances of the present case. The contention of the petitioner does not hold any merit. 17. The learned counsel for the petitioners contended that the petitioners were in cultivatory possession since 1968 and consequently the prescribed authority committed an error in not considering their possession and declaring their land as surplus at the hands of respondent no. 4. The learned counsel placed reliance upon the decision of the Assistant Collector to buttress his submission to the effect that their names were recorded under Section 39 of the Land Revenue Act in the year 1977. In my opinion, the submission of the learned counsel for the petitioners is bereft of merit. The recording of the petitioners’ name in the year 1977, as being in possession of the land in question, has no bearing and such recording of their names will not give them any kind of benefit in view of sub-section (6) of Section 5 of the Act, which provides that any name being recorded after the cut off date 24.01.1971, would be ignored. For facility, the said provision is quoted hereunder :- “5(6) In determining the ceiling area applicable to a tenure-holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account. 18. In the present case, the prescribed authority has given a specific finding that the petitioners have failed to prove their possession of the land in question from 1968 onwards and that the petitioners have only able to prove that they were in possession in the year 1977, which is not sufficient for the purpose of giving them any benefit under the Act. The learned counsel for the petitioners stressed that the original recorded tenure holder, i.e. respondent no. 4, had categorically stated that he had relinquished his right in the year 1968 and that he had no concern with the said land. The learned counsel consequently submitted that the statement of respondent no. 4 gives a clear indication that the petitioners were ostensibly in possession of the land since 1968 onwards. 4, had categorically stated that he had relinquished his right in the year 1968 and that he had no concern with the said land. The learned counsel consequently submitted that the statement of respondent no. 4 gives a clear indication that the petitioners were ostensibly in possession of the land since 1968 onwards. The submission of the learned counsel for the petitioners is patently erroneous in as much as the evidence that was brought on record by the statement of respondent no. 4, by the statement of the petitioners and by the statement of Lekhpal only, indicates that the petitioners could prove their possession over the land from 1977 and could not prove their possession from 1968 onwards. Consequently, the order of the Assistant Collector recording the names of the petitioners in the revenue records from 1977 onwards does not help the petitioners nor can such benefit of being in possession could be given under the Act of 1960. 19. The learned counsel for the petitioners in the end submitted that the petitioners are entitled to be given the benefit of Explanation II of Section 5 of the Act. For ready reference, the said provision is quoted hereinunder :- “Explanation II. – [If on or before January 24, 1971, any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person.” 20. In my opinion, the said provision is again not applicable in as much as there is nothing to indicate that the petitioners were in possession of the land from 1968 onwards. 21. The learned counsel for the petitioners submitted that the land in village Sitarampur was governed by the U.P. Tenancy Act and that the UPZA & LR Act was enforced in the said village w.e.f. 26.01.1970. 21. The learned counsel for the petitioners submitted that the land in village Sitarampur was governed by the U.P. Tenancy Act and that the UPZA & LR Act was enforced in the said village w.e.f. 26.01.1970. The learned counsel for the petitioners submitted that no notice was issued nor proceedings for eviction was initiated by the original tenure holder and consequently, after the expiry of three years, the original tenure holder relinquished his right on the land in question and that the petitioners became the Bhumidhars under Section 210 of the UPZA & LR Act and consequently, on this basis, could not be evicted nor could their land be declared surplus. The submission of the learned counsel for the petitioners is again patently erroneous in as much, as held earlier, the possession of the petitioners on the land in question since 1968 has not been proved. Consequently, the question of issuance of notice and relinquishment of the right of the respondent no. 4 and the declaration of the petitioners as Bhumidhar of the land does not arise. 22. In the light of the aforesaid, this court does not find any error in the impugned order. The writ petition fails and is dismissed.