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2015 DIGILAW 127 (UTT)

SEWA SINGH v. STATE OF U. P.

2015-03-09

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) 1. Present petition is filed assailing the impugned judgment and order dated 16.12.1982 passed by SDO/Prescribed Authority (Ceiling), Rudrapur, District Nainital as well as judgment and order dated 12.04.1985 passed by the 1st Additional District Judge, Nainital, whereby land of the petitioner measuring 1.94 hectare was declared as surplus land and an appeal arising from the judgment of the Prescribed Authority declaring 1.94 hectare land as surplus land was dismissed. 2. Undisputedly, earlier a notice under Section 10 (2) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 was issued to the petitioner, wherein land of Khasra Nos. 134, 135, 136 and 137 were involved and, vide judgment dated 05.03.1975, 2 bighas and 12 biswas land was declared surplus. Feeling aggrieved, the petitioner preferred Ceiling Appeal No. 235 of 1975 (N) which too came to be dismissed by the Appellate Authority, vide judgment dated 27.5.1976. Thereafter second notice under Section 10 (2) of the Act was issued to the petitioner pertaining to the same land to show cause as to why 1.94 hectare land be not declared as surplus land. The petitioner took objection before the Prescribed Authority that second notice ought not to have been issued and was barred by Section 13-A of the U.P. Imposition of Ceiling on Land Holdings Act as well as was barred by principle of res judicata. However, the Prescribed Authority did not agree with the defence of the petitioner and was pleased to declared 1.94 hectare land as surplus land, vide judgment dated 16.12.1982, and appeal arising therefrom being Civil Appeal No. 11 of 1983 was dismissed by the 1st Additional District Judge, Nainital, vide impugned judgment dated 12.4.1985. Feeling aggrieved, petitioner approached Allahabad High Court by way of filing WPMS No. 9359 of 1985, which was transferred to this Court after the appointed day and was renumbered as WPMS No. 1486 of 2001. 3. Feeling aggrieved, petitioner approached Allahabad High Court by way of filing WPMS No. 9359 of 1985, which was transferred to this Court after the appointed day and was renumbered as WPMS No. 1486 of 2001. 3. Section 13-A and Section 14 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 read as under : “13-A. Redetermination of surplus land in certain cases.- (1) The Prescribed Authority may, at any time, within a period of two years from the date of the notification under [sub-section (4) of Section 14], rectify any mistake apparent on the face of the record: Providing that no such rectification which has the effect of increasing the surplus land shall be made, unless the Prescribed Authority has given notice to the tenure-holder of its intention to do so and has given him a reasonable opportunity of being heard. (2) The provision of Sections 10, 11, 12, 12-A, 13, 14, [15 and 16] shall mutatis mutandis apply in relation to any proceeding under sub-section (1), and for purposes of application of Section 10, the notice under the proviso to sub-section (1), shall be deemed to be a notice under Section9.] [14. Acquisition of surplus land.- (1) The Collector shall at any time after- (a in case, whether the order passed under sub-section (1) of Section 11 has become final, the date of its so becoming final; or (b in case, where no appeal has been preferred under Section 13, the date of expiry of the period of limitation provided therefor; or (c in case, where an appeal has been preferred under Section 13, the date of its decision, take possession of the surplus land determined under Section 13 and also of any ungathered crop or fruits of trees, not being crops or fruits to which sub-section (1) of Section 15 applies, after evicting any person found in occupation of such land, crops or fruits and may for that purpose use or cause to be used such force as may be necessary. (2) Notwithstanding anything contained in sub-section (1) a tenure-holder may, at any time, voluntarily deliver possession to the Collector over the whole or any part of the land held by him which has been or is likely to be declared surplus under or in accordance with the provisions of the Act. (2) Notwithstanding anything contained in sub-section (1) a tenure-holder may, at any time, voluntarily deliver possession to the Collector over the whole or any part of the land held by him which has been or is likely to be declared surplus under or in accordance with the provisions of the Act. (3) Where the Collector has taken possession of any surplus land or ungathered crops or fruits of trees under sub-section (1) or sub-section (2), such land, crops or fruits of trees shall, with effect from the date of his taking possession, stand transferred to and vest in the State Government free from all encumbrances and all rights, title and interests of all persons in such land shall, with effect from such date, stand extinguished: Provided that the encumbrances, if any, shall attach to the amount payable under Section 17 in substitution for the surplus land. (4) the Prescribed Authority shall, as soon as may be after the date mentioned in clause (a), clause (b) or clause (c), as the case may be, of sub-section (1), notify in the Official Gazette every surplus land determined under this Act, or under Section 9 of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1974 or under Section 31 of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1973.]” 4. The combined reading of Section 13-A and Section 14 of the Act would demonstrate that the Prescribed Authority at any time within a period of two years from the date of notification under sub-section (4) of Section 14 may rectify the misstate apparent on the face of record. 5. In the present case, neither first notice issued under Section 10 (2) nor second notice, the basis of the impugned judgments, were placed on record. There seems to be at all no discussion on Section 13-A and Section 14 of the Act in the impugned judgments. Matter is pending disposal before this Court right from 1985. 6. Learned Prescribed Authority and Appellate Authority ought to have recorded their respective findings on the legality of second notice in the light of Section 13-A read with sub-section (4) of Section 14 of the Act. 7. Matter is pending disposal before this Court right from 1985. 6. Learned Prescribed Authority and Appellate Authority ought to have recorded their respective findings on the legality of second notice in the light of Section 13-A read with sub-section (4) of Section 14 of the Act. 7. Prima facie, it seems that once in the first round of litigation appeal was dismissed on 27.5.1976, therefore, notification as required under sub-section (4) of Section 14 would have taken place at the earliest while second notice was issued to the petitioner under Section 10 (2) read with Section 13-A in the year 1981, which on the face of it seems to have been issued after more than two years from the date of dismissal of the appeal in the first round of litigation. Since, subsequent notice is not on the record, it is not possible for this Court to find out as to whether second notice was in fact fresh notice under Section 10 (2) of the Act or was notice for rectification of mistake. 8. Consequently, both the impugned judgments and orders are set aside. Matter is remanded to the Prescribed Authority, Rudrapur, who shall after examining both the notices issued under Section 10(2) shall record its finding on Section 13-A read with sub-section (4) of Section 14 of the Act and shall decide the matter preferably within 120 days from the first date fixed before the Prescribed Authority. Parties shall be at liberty to raise all the factual and legal points before the Prescribed Authority. Both the parties shall appear before the SDO/Prescribed Authority (Ceiling), Rudrapur for further orders on 31.3.2015.