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2020 DIGILAW 1435 (ALL)

Ram Singh v. State of U. P.

2020-12-03

JASPREET SINGH

body2020
ORDER : Jaspreet Singh, J. 1. Heard Shri I.D. Shukla, learned counsel for the petitioner and the learned standing counsel for the State-respondents. 2. By means of the instant petition, the petitioners assail the order dated 13.02.1989 passed by the Prescribed Authority and the order dated 31.03.1994 passed by the Appellate Authority whereby the objections of the petitioners have been rejected arising out of proceedings initiated under Section 13-A of the U.P. Imposition of Holding Act, 1960. 3. In order to appreciate the controversy involved in the above writ petition certain brief facts leading up to the petition are being noticed first. 4. That initially Ram Singh, the sole petitioner was the recorded tenure holder of the land, which was brought under the ceiling proceedings. The petitioner was issued a notice dated 03.11.1978 under Section 10(2) of the U.P. Imposition of Holding Act, 1960, (hereinafter referred to as the "Act of 1960"). The petitioner filed his objection dated 28.12.1978 against the said notice. At the relevant time, another set of objection was filed by Raas Behari Singh, the son of Ram Singh, (the original sole petitioner). During pendency of the instant petition, Shri Ram Singh expired and his son Raas Behari Singh and Santosh Kumar Singh have been brought on record as his heirs. 5. In pursuance of the aforesaid initiation of proceedings, the surplus land relating to the land holding of the petitioner was determined by the Prescribed Authority by means of the order dated 31.03.1979. Against the said order, the petitioner preferred an appeal which was allowed and the order of the Prescribed Authority was set aside and the matter was remanded to the Prescribed Authority to determine the issue relating to the age of the Raas Behari Singh, son of the petitioner (who now is the petitioner No. 1/1 at the present stage). 6. Thereafter, a fresh determination was made including determining the age of Raas Behari Singh and the petitioners were granted the benefit of Section 5(3)(b) of the Act of 1960 on the premise that Raas Behari Singh on the relevant date was a major. This aspect of the matter was contested right up to the High Court in the earlier round of litigation by means of Writ Petition No. 2938 (M/S) of 1982. The aforesaid writ petition, however, came to be dismissed on 23.08.1984. 7. This aspect of the matter was contested right up to the High Court in the earlier round of litigation by means of Writ Petition No. 2938 (M/S) of 1982. The aforesaid writ petition, however, came to be dismissed on 23.08.1984. 7. In the meantime, the Prescribed Authority initiated proceedings under Section 13-A of the Act of 1960 and issued notice to the petitioners to re-determine the surplus land as from the record it revealed that Raas Behari Singh at the relevant time was a minor and as such the benefit of providing two hectares of additional land was apparently inconsistent with the facts on the record, hence, the ceiling limit of the petitioner and his family, which was earlier determined as 22.978 acres was proposed to be reduced to 18.05 acres and the surplus land which was earlier determined as 11.472 acres was to be enhanced to 14.412 acres. 8. This notice was the bone of contention of the second round of litigation which has given rise to the present writ petition. 9. The petitioners had filed his objections against the instant notice in the month of July, 1984. The Prescribed Authority by means of the order dated 13.02.1986 after hearing the parties found that the age of Raas Behari Singh was 01.05.1959 and at the relevant time i.e. 08.06.1973 the age of Raas Behari Singh was 13 years, 9 month and 7 days. Thus, he was a minor and, therefore, the benefit of extra two hectares of land given to the petitioner was found to be an error while calculating the ceiling limits as well as surplus land. 10. The petitioners being aggrieved against the order of determination under Section 13-A of the Act of 1960 dated 13.02.1986 preferred an appeal, which was rejected by the Appellate Authority by means of the impugned order dated 31.03.1994. 11. Being aggrieved by the aforesaid, the instant writ petition was preferred wherein a Coordinate Bench of this Court by means of the order dated 05.05.1994 had stayed the operation of the aforesaid two orders. 12. Shri I.D. Shukla, learned counsel for the petitioners while assailing the two orders have primarily urged that the determination of age of Raas Behari Singh had already been done in the earlier round of litigation and consequently it was not open for the authority to initiate proceedings under Section 13-A of the Act of 1960. 12. Shri I.D. Shukla, learned counsel for the petitioners while assailing the two orders have primarily urged that the determination of age of Raas Behari Singh had already been done in the earlier round of litigation and consequently it was not open for the authority to initiate proceedings under Section 13-A of the Act of 1960. He has also urged that the aforesaid section contains a period of limitation and since that limitation had expired, consequently, the initiation of proceedings under Section 13-A of the Act of 1960 itself was bad, hence, on this count alone, the writ petition deserves to be succeed. 13. The other grounds urged by Shri I.D. Shukla is that even assuming if the benefit of Section 5(3)(b) of the Act of 1960 was being withdrawn even then it was incumbent upon the authorities to have taken note of the offer which had been given by the petitioners in terms of Section 12-A of the Act of 1960. It has also been submitted that the provisions of Section 12-A of the Act of 1960 ipso facto apply to the proceedings under Section 13-A of the Act of 1960 as provided in Section 13-A(2) of the Act. This aspect of the matter has not been considered and thus, the order impugned deserves to be set aside. 14. Learned standing counsel while defending the aforesaid orders submits that in the first round of litigation initially at the time of determination of the surplus land insofar as the petitioner is concerned, there was an objection by Raas Behari Singh contending that he was a major. Initially the Prescribed Authority had passed an order which did not consider the age of Raas Behari Singh and thus the appeal filed by him was allowed and the matter was remanded to the Prescribed Authority for determination afresh including to determine the age of Raas Behari at the relevant time. Thereafter upon the fresh determination, it was found that so far as the petitioner Raas Behari Singh is concerned, he was a minor and this aspect of the matter was taken up by Raas Bihari Singh by filing a writ petition before this Court which came to be dismissed on 23.08.1984. Thus, the aforesaid issue holding that Raas Behari Singh was a minor was no more open to be urged and accordingly the first ground raised by the petitioners failed. 15. Thus, the aforesaid issue holding that Raas Behari Singh was a minor was no more open to be urged and accordingly the first ground raised by the petitioners failed. 15. It has also been urged by the learned standing counsel that admittedly no gazette notification in terms of Section 14 of the Act was made, hence, the limitation as referred to by the petitioners also did not come in the way of the Prescribed Authority to initiate the proceedings under Section 13-A of the Act of 1960. Since the benefit given to the petitioner on incorrect facts and to which he was not entitled, this being an error apparent on the face of the record, hence it was rightly re-determined by the Prescribed Authority. 16. Learned standing counsel further submits that the option exercised by the petitioner in terms of Section 12-A of the Act of 1960 was also taken note since the Prescribed Authority has taken the land from Karmohana village as has been opted by the petitioner. In the aforesaid circumstances, the writ petition on both the counts deserve dismissal. 17. The Court has considered the rival submissions and also perused the material on record. 18. Insofar as the first ground raised by the learned counsel for the petitioner is concerned that does not appear to have any merit inasmuch as learned counsel could not dispute the fact that at the relevant time Raas Behari Singh was found to be minor. The aforesaid fact was got verified from the educational records of the petitioner and Raas Behari Singh could not bring anything on record of this writ petition to indicate as to how the aforesaid finding is incorrect. More so when the aforesaid issue had attained finality in the earlier round of litigation. 19. Learned counsel for the petitioner also could not dispute the fact that notice under Section 13-A of the Act of 1960 was issued to the petitioner, while the gazette notification under Section 14 of the Act of 1960 had yet not been published. That being the admitted position, the question of limitation as mentioned in Section 13-A of the Act of 1960 also does not arise and for the said reason, the first submission of the learned counsel for the petitioner fails. 20. That being the admitted position, the question of limitation as mentioned in Section 13-A of the Act of 1960 also does not arise and for the said reason, the first submission of the learned counsel for the petitioner fails. 20. Now, the other submissions of the learned counsel for the petitioners insofar as the non-consideration of the option as given by the petitioner is concerned, it has specifically been pleaded in the writ petition that the petitioner had given his option in terms of Section 12-A of the Act of 1960 by making an application dated 31.08.1985, a copy of which has been annexed as Annexure No. 1. The State-respondents while filing their counter affidavit in Paragraph-6 have submitted that though the application was given by the petitioner, however, he did not press the same before the Prescribed Authority. It has further been pleaded in the counter affidavit that even otherwise the Prescribed Authority has taken the land from the village Karmohana as opted by the petitioner. 21. The State-respondents while filing their counter affidavit in Paragraph-6 have submitted that though the application was given by the petitioner, however, he did not press the same before the Prescribed Authority. It has further been pleaded in the counter affidavit that even otherwise the Prescribed Authority has taken the land from the village Karmohana as opted by the petitioner. 21. In order to resolve the aforesaid, it will be appropriate to notice the mandate of Section 12-A of the Act of 1960, which reads as under:- "12-A. In determining the surplus land under Section 11 or Section 12, the Prescribed Authority shall, as far as possible, accept the choice indicated by the tenure-holder to the plot or plots which he and other members of his family, if any, would like to retain as part of the ceiling area applicable to him or them under the provisions of this Act, whether indicated by him in his statement under Section 9 or in any subsequent proceedings: Provided that- (a) the Prescribed Authority shall have regard to the compactness of the land to be included in the ceiling area applicable to the tenure-holder; (b) where the tenure-holder's wife holds any land which is aggregated with the land held by the tenure-holder for purposes of determination of the ceiling area, and his wife has not consented to the choice indicated by the tenure-holder as to the plot or plots to be retained as part of the ceiling area applicable to them, then the Prescribed Authority shall, as far as possible, declare the surplus laird in such manner that the area taken out of the land held by the tenure-holder's wife bears to the total surplus area the same proportion as the area originally held by her bore to the total land held by the family; (c) where any person holds land in excess of the ceiling area including any land mortgaged to the State Government or to a [bank as defined in clause (c) of Section 2 of the Uttar Pradesh Agricultural Credit Act, 1973] or to a co-operative land development bank or other co-operative society or to the Corporation or to a Government Company, the surplus land to be determined shall, as far as possible, be land other than that so mortgaged; (d) where any person holds land in excess of the ceiling area including land which is the subject of any transfer or partition referred to in sub-section (6) or sub-section (7) of Section 5, the surplus land determined shall, as far as possible, be land other than land which is the subject of such transfer or partition, and if the surplus land includes any land which is the subject of such transfer a partition, the transfer or partition shall, insofar as it relates to the land included in the surplus land, be deemed to be and always to have been void, and- (i) it shall be open to the transferee to claim refund of the proportionate amount of consideration, if any, advance by him to the transferor, and such amount shall be charge on the [amount] payable to the transferor under Section 17 and also on any land retained by the transferor within the ceiling area, which shall be liable to be sold in satisfaction of the charge, notwithstanding anything contained in, Section 153 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950; (ii) any party to the partition (other than the tenure-holder in respect of whom the surplus land has been determined) whose land is included in surplus land of the said tenure-holder shall be entitled to have the partition re-opened.]" 22. Section 13-A(2) provides that the provisions 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 Section 9. Thus, it is clear that where the proceedings were re-initiated in terms of Section 13-A of the Act of 1960 and where the area sought to be re-determined had the affect of increasing the surplus land, the notice to the tenure holder and an opportunity of hearing is mandatory. So also, the provisions of Section 12-A of the Act of 1960 has been made applicable to such re-determination. 23. Admittedly, the petitioner had furnished his application, a copy of which has been annexed as Annexure No. 1 on 31.08.1985 which was subsequent to the notice received under Section 13-A of the Act of 1960. In the aforesaid circumstances, it was incumbent upon the Prescribed Authority to have considered the option as given by the petitioner in terms of his application. Though from the record and from the perusal of the said application, it reveals that the petitioner had offered his land from village Karmohana, however, the plots that he had mentioned therein in the said application has not been taken note of. 24. From the perusal of the impugned orders, both by the Prescribed Authority as well as the Appellate Authority, there is no consideration on the application given by the petitioner nor any finding thereto. Merely by taking a plea in the counter affidavit, the error already committed by the two authorities cannot be rectified. 25. Section 12-A of the Act of 1960 has a specific intention and the same has been considered by this Court in the case of Ram Sagar v. Civil Judge, Bahraich, reported in 1987 RD 146 wherein it has been held as under:- "9. So far as the question of the violation of provisions of Section 12-A of the 'Act' is concerned, I find that the Prescribed Authority as well as the lower appellate Court have misconstrued the said provisions. So far as the question of the violation of provisions of Section 12-A of the 'Act' is concerned, I find that the Prescribed Authority as well as the lower appellate Court have misconstrued the said provisions. According to Section 12-A, while determining surplus land under Section 11 or 12, the Prescribed Authority shall, as far as possible accept the choice given by the tenure-holder to the plot or plots which he and other members of his family if any would like to retain as part of the ceiling area applicable to him or them under the provisions of this 'Act', whether indicated by him in his statement under Section 9 or in any subsequent proceedings. 10. Learned counsel for the petitioner contended that the choice indicated by the petitioner was wrongly ignored by the Prescribed Authority as well as by the lower appellate Court. I find much substance in the argument. The Prescribed Authority should have considered the choice given by the petitioner in accordance with the provisions contained in Section 12-A of the 'Act'. The impugned orders passed by the opposite parties 1 and 2 are not sustainable on this ground as well." 26. This aspect of the matter was also considered in a subsequent decision of this Court in the case of Mohd. Muste Hassan and others v. The Additional Commissioner, Meerut and others, reported in 1995 RD 186 wherein it has been held that the phrase used in Section 12-A "so far as possible" means that unless it is impossible to accept the aforesaid option, the Prescribed Authority must apply its mind and taking into consideration the option given by the tenure-holder must make the determination of the surplus land. The Hon'ble Apex Court in the case of Rajendra Singh & Ors. v. State of U.P. & Ors., reported in (1998) 7 SCC 654 in Para-8 has held as under:- "8. Section 9 provides that the prescribed authority shall by a general notice published in the Official Gazette, call upon every tenure-holder holding land in excess of the ceiling area applicable to him, to submit a statement in respect of all his holdings wherein he shall also indicate the plots which he would like to retain as part of his ceiling area. It is this choice which is referred to in Section 12-A and it is provided that the prescribed authority shall, as far as possible, accept the choice indicated by the tenure-holder as to the plots which he would like to retain as part of his ceiling area. It is at this stage that the discretion can be exercised by the prescribed authority and he may not take over those plots as part of the surplus area. It is thus "discretion" and not "compulsion" which constitutes the core of this statutory provision. It is obvious that before taking over any area as surplus area or leaving any area as ceiling area of the tenure-holder, the prescribed authority shall first take into consideration the choice indicated by the tenure-holder and if it is not possible to act wholly upon the choice, for which there may be a variety of reasons, the prescribed authority will proceed in his own way to leave the area determined by him as the ceiling area with the tenure-holder and take over the other area as surplus area." 27. In view of the aforesaid dictum of this Court which could not be disputed by the learned standing counsel, this Court is of the opinion that the option of the petitioner has not been considered, thus, for this limited purpose, the matter deserves to be remitted to the Prescribed Authority to consider the option given by the petitioner in terms of Section 12-A of the Act of 1960 and in light of the judgment of the Apex Court in the case of Rajendra Singh (supra) and in pursuance of his application, Annexure No. 1, and thereafter pass fresh orders most expeditiously considering that the matter has been pending since decades. 28. Insofar as the finding on the re-determination of surplus land of the petitioner and the ceiling limit made by the Prescribed Authority, the same is upheld by this Court and is accordingly affirmed. 29. In light of the aforesaid, the writ petition is partly allowed. The impugned orders are set aside to the extent as mentioned above and the Prescribed Authority is directed to pass a fresh order considering the option given by the petitioner most expeditiously say within a period of three months from the date a copy of this order is placed before the authority concerned after affording an opportunity of hearing to the parties. In the circumstances, there shall be no order as to costs.