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Allahabad High Court · body

2015 DIGILAW 967 (ALL)

RAM SAJIWAN v. STATE OF U. P.

2015-04-24

MUKHTAR AHMAD, RAKESH TIWARI

body2015
JUDGMENT By the Court.—One Nachkau son of late Raghunandan, resident of village Dabhawan, Block, Chaka, Tehsil Karchana, district Allahabad was the tenure holder of following agricultural holdings. S.No. Village/Mauja Gata No. Area (Sq.Mtrs) 1 Dabhawn House and appurtenant land 204, 360 775.89 3278.75 193/89 2 Dajari Navgawar 305 1967.26 3 Mohabbatganj Uparhar 973SSS 976 1013 6466.29 228.09 6409.26 Total 19319.43 2. He died on 11.8.1978 in his village. The aforesaid land remained in possession of Nachkau during his life time and after his death, his son Ram Sajiwan came in possession of the entire land which is claimed to be in actual physical possession of the petitioner-Ram Sajiwan till date. Some where in March, 2010, Lekhpal of Mauza informed the petitioner that the aforesaid land in dispute had been declared surplus and recorded in the name of the State Government after expunging the name of Ram Sajiwan son of Nachkau from the revenue record as owner of the land in dispute. 3. On inquiry and inspection on record, Ceiling Case No. 32768 of 1976 (State v. Nachkau), an area of 17819.43 Sq. Meters, out of total land in dispute i.e. 19319.43 Sq. Meters has been declared as surplus by the competent authority by order dated 12.1.1983. It was also gathered on inspection of the record, that a notice dated 30.10.1982 alongwith Draft Statement under Section 8 of Urban Ceiling Act, 1976 had been issued by the competent authority and that on the back of notice, the process server had made endorsement as under; ^^lsok esa] ekSds ij njoktk cUn Fkk A rFkk irk pyk fd updm e`rd gSA rks mUgha ds njokts ds vUnj pLik fd;k rFkk ftldk njoktk iwjc gS rFkk dPpk rFkk iDdk edku gSA vkse izdk'k 20&11&82^^ 4. The contention of learned Counsel for the petitioner is that it is apparent from the notice dated 30.10.1982 aforesaid and its draft statement that it was never served on the tenure holder-Nachkau personally during his life time nor upon his family members after his death and the only method of service by way of affixation (chaspa) is on the door of the house. He has relied upon Section 8 Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter called as the Act) and Rules 5 and 8 of Urban Land (Ceiling and Regulation) Rules, 1976 (hereinafter referred to as the Rule) and would submit that ex parte order dated 12.1.1983 passed by the competent authority was against a dead person, namely Nachkau declaring an area of 17819.43 Sq.meters of his land as surplus. It is also stated by Sri Dharam Pal Singh, learned Senior Counsel appearing in the case that it is apparent from the record that there exists a final statement issued by the competent authority under Section 9 of the Act, according to which, copy of the same was served upon Ram Sajiwan son of Nachkau, the petitioner in this case after obtaining his signature on 19.2.1985 and that a copy of final statement under the aforesaid Section 9 of the Act was never served upon Ram Sajiwan, nor there exists his signature regarding receipt of final statement. Ram Sajiwan is said to be an illiterate person who is claimed to have not made any endorsement, signature or thumb impression regarding receipt of final statement and the same appears to have been forged by some Process Server. Therefore, the whole proceedings under the Act and the Rules framed here under are contrary to law. 5. It is further submitted by learned Counsel for the petitioner that the orders dated 14.2.1990 under Section 10 sub-clause (5) of the Act alleged to have been served by the Process Server on 16.6.1990 upon Ram Sajiwan were forged by the Process Server though possession of the surplus land was never handed over to the District Magistrate, Allahabad on 14.11.1990 as claimed by the respondents. He has also relied on Rule 6 of Rule 1976 and states that the competent authority has not issued notification of surplus land nor the surplus land was published in the official gazette and that the respondents have not complied the mandatory provisions of Section 10 of the Act as there is no evidence on record to show that notification under Section 10(1) of the Act was ever published in any newspaper. The alleged taking over of possession of the land in question on 14.11.1990 is a paper transaction and in fact, possession of the land in question was never taken. The alleged taking over of possession of the land in question on 14.11.1990 is a paper transaction and in fact, possession of the land in question was never taken. In support of his arguments, he has then submitted that Ram Sajiwan is illiterate and is incapable of making signature on any documents. Moreover, signatures of the petitioner Ram Sajiwan on the order under Section 10(5) of the Act do not tally with the alleged signatures of petitioner-Ram Sajiwan on the final statement under Section 9 of the Act alleged to have been served on petitioner- on 19..2.1985 He further submits that the signatures of the petitioner Ram Sajiwan have been manipulated/concocted by the lower revenue authorities on the final statement under Section 9 of the Act dated 19.2.1985 and the order under Section 10(5) of the Act (Annexure 5) on 14.11.1990. 6. According to him mere endorsement of Lekhpal about taking over possession on 14.11.1990 would not mean of taking actual physical possession from the petitioner and there can be no dispute that possession was never taken from Nachkau who died about 10 years back during alleged date of taking possession by the State Government. Therefore, expunging the name of petitioner- Ram Sajiwan from the revenue record and recording the name of State Government on the alleged surplus ceiling land is arbitrary and illegal, hence the entries made by the authorities pursuant to the order dated 12.1.1983 are nullity having been passed against dead person also because the alleged service of final statement under Section 9 of the Act is clearly contrary to the procedure of service as prescribed under Section 8 sub clause(3) of the Act and Rule 5 of 1976 Rule. Hence, the order dated 12.1.1983 under Section 8 Sub-clause (4) of an area of 17819.43 Sq. Meters as surplus land of the petitioner and all other subsequent proceedings pursuant thereof are nullity having no legal force, having been passed against dead person. Therefore, these proceedings cannot be given legal effect too. 7. In para- 39, 41 and 42 it is averred that alleged factum of taking possession of surplus land on 14.11.1990 is nothing but paper transaction and till date, the present petitioner who is still in possession over the land declared as surplus. Therefore, these proceedings cannot be given legal effect too. 7. In para- 39, 41 and 42 it is averred that alleged factum of taking possession of surplus land on 14.11.1990 is nothing but paper transaction and till date, the present petitioner who is still in possession over the land declared as surplus. The name of respondents in Khatauni and Khasra are unauthorised and only paper transaction which requires to be corrected showing the land in the name of present petitioner -Ram Sajiwan who had never been offered any compensation nor has received the same under Section 11 of the Act. 8. Learned Standing Counsel is unable to dispute on the basis of endorsement made on the back of notice dated 20.11.1982 that Nachkau had already died when the said notice is claimed to have been served upon affixation and that the provisions of Section 8 of the Act as well as other Rules regarding service of final statement and draft statement were never served upon the petitioner-Ram Sajiwan. 9. After hearing learned Counsel for the parties and in view of the facts and circumstances noticed above, we are of the view that notice dated 30.10.1982 was never served either upon Nachkau or upon his legal heirs/representatives and the proceedings declaring his land as surplus were in fact against the dead person without his legal representative having been brought on record. It cannot be denied that on 20.11.1982, the Process Server has clearly stated that the door was closed on the spot and on inquiry, he was informed that Nachkau had died, but he had affixed the notice on the door pursuant to which the case for declaration of land of Nachkau as surplus had proceeded and was declared surplus by an ex parte order dated 12.1.1983 against dead person. From the endorsement of process server dated 20.11.1982 on the notice dated 30.10.1982, it is apparent that it was within his knowledge that Nachkau, the original tenure holder had died and therefore, he could have reported this matter and got fresh notices issued in the name of legal heirs/representatives of the deceased rather than affixing the notice to Nachkau who had since died and allowed the case to proceed ex parte against dead person on the basis of that endorsement. 10. 10. The actual physical possession of the petitioner from the land in dispute appears to be that Ram Sajiwan-petitioner and State Government cannot claim any benefit either by service of notice dated 30.10.1982 upon dead person or taking possession is paper transaction. 11. In the facts and circumstances stated above, writ petition is allowed. The respondents are restrained from the petitioner from the land declared surplus, pursuant to the impugned order dated 12.1.1983 passed by the respondent No. 4 under Section 8 Sub-Clause(4) of the Act in Case No. K 3768 of 1976 (State v. Sri Nachkau). All subsequent proceedings pursuant to the said order are also declared null and void. As possession has also not been taken by the State Government in view of Repeal Act No. 15 of 1999, the land will vest with the petitioner and the revenue record shall be corrected accordingly. No order as to cost. ——————