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2024 DIGILAW 132 (ALL)

Surendra Pratap Singh v. State Of U. P.

2024-01-11

ALOK MATHUR

body2024
JUDGMENT : 1. Heard Shri R.S. Pandey, learned Senior Advocate assisted by Shri Virendra Bhatt, learned counsel for petitioners, Shri S.K. Khare, learned Standing Counsel for the State and perused the material available on record. 2. The present writ petition has been filed by the petitioners assailing the orders passed under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, wherein the Prescribed Authority by means of order dated 26.06.1985 has rejected the objections preferred by the petitioners and the Additional Commissioner, Faizabad Division, Faizabad has rejected the appeal by means of order dated 10.12.1990 affirming the findings of the said Prescribed Authority. 3. Though facts in brief necessary for the adjudication of the present case are that once Brij Mohan Singh was a recorded tenure holder with regard to land situated at Village Mau-Atwara, Pargana Jagdishpur, Tehsil Musafirkhana, District Sultanpur. A notice under Section 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, was issued to Brij Mohan Singh, the recorded tenure holder on 30.07.1974, who had died prior to the issuance of notice on 24.04.1974. The said notice was duly received by his sons i.e., Rameshwar Singh, Jagat Pal Singh and Ram Singh, who filed their objections against the notice issued under Section 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 on 09.09.1974. The Prescribed Authority duly considered the objections raised by the legal heirs of the recorded tenure holder and by means of order dated 30.12.1974 declared 4.66 hectares of the land of recorded tenure holder as surplus. An appeal was filed against the order of Prescribed Authority dated 30.12.1974, which was allowed and the matter was remitted to the Prescribed Authority for consideration afresh after treating the legal heirs to be the tenure holders. The Prescribed Authority by means of order dated 31.12.1976 again decided the case against the petitioners against which the appeal, which was preferred before the District Judge, Sultanpur was dismissed on the ground of limitation. 4. It is in the aforesaid facts that the petitioners filed a writ petition before this Court, which was allowed by means of judgment and order dated 21.2.1978 and remitted the matter to the appellate authority to be decided on merits after condoning the delay. 4. It is in the aforesaid facts that the petitioners filed a writ petition before this Court, which was allowed by means of judgment and order dated 21.2.1978 and remitted the matter to the appellate authority to be decided on merits after condoning the delay. In the remand proceedings the IInd Additional District Judge allowed the said appeal preferred by the petitioners and remanded the case to the Prescribed Authority to decide the same after issuing notices to the petitioners by means of his judgment and order dated 24.11.1981. The Prescribed Authority in the remand proceedings had issued notices to the petitioners and has duly considered all the objections and again rejected the same by means of impugned order dated 26.06.1985 against which the appeal has already been dismissed on 10.12.1990 and both the orders have been assailed by the petitioners before this Court. 5. The main contention raised by the petitioners is that once the recorded tenure holder Brij Mohan Singh died on 24.4.1974 and the land was inherited by his three sons Rameshwar Singh, Jagat Pal Singh and Ram Singh, who claimed before the Prescribed Authority that now they were the tenure holders and proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, should be proceeded treating them to be recorded tenure holders and their land should be determined as to whether is in excess of the ceiling limits or not. 6. This ground was raised by the petitioners right up to the appellate stage and even before the Prescribed Authority in the remand proceedings. With this argument they were able to persuade the appellate court who passed the order dated 24.11.1981 to issue notices to the petitioners before proceeding further in the matter. It is only on the direction of the appellate court that the Prescribed Authority had issued notices to the petitioners in the remand proceedings and all the objections filed by the petitioners were duly considered while rejecting the same. Before the Prescribed Authority, the petitioners had submitted that during lifetime of Brij Mohan Singh, he has executed a sale deed in favour of Hanuman Saran Singh on 09.07.1973 and the same land ought to be excluded from the holding of the recorded tenure holder. Before the Prescribed Authority, the petitioners had submitted that during lifetime of Brij Mohan Singh, he has executed a sale deed in favour of Hanuman Saran Singh on 09.07.1973 and the same land ought to be excluded from the holding of the recorded tenure holder. The Prescribed Authority did not accept the contention of the petitioners holding that the said sale deed was entered into after the cut off date and accordingly such a transfer could not be accepted by him as per provisions of Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, and consequently, rejected the contention of the petitioners in this regard. 7. This aspect of the matter was also considered by the appellate authority, who was of the considered view that as per provisions of Section 5 (6) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, such a transaction could be shown to have been bona fide and entered into for adequate consideration before benefit of the exclusion of the said land can be granted to the recorded tenure holder. He was of the view that the consideration of Rs.9,000/-for a land measuring 4 bigha 6 biswa and 3 biswansi is inadequate and apart from the fact that the said transfer was made in favour of his close relative i.e. grand son Hanuman Saran Singh, who was the son of Rameshwar Singh, accordingly, came to the conclusion that the said transfer does not fall for exclusion within the ambit of Section 5 (6) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, and consequently, rejected the contention of the petitioners. Before this Court also, there is no material to indicate that the said transaction was bona fide and for adequate consideration while on the other hand on death of respondent no. 3-Shyam Singh, his son Hanuman Saran Singh has been substituted as respondent no. 3/1. Undoubtedly, Hanuman Saran Singh is the grand son of Brij Mohan Singh and he had transferred the land in favour of his grand son Hanuman Saran Singh to escape from the clutches of Ceiling Act, 1960 and no other material has been placed to upset the findings recorded by the appellate court and therefore, this Court is of the considered view that no interference is required with the findings of courts below in this regard. 8. 8. Considering the other contention raised by the petitioners, it is noticed that the proceedings under Section 10 under the Act of 1960 are initiated pursuant to issuance of notification under Section 9 of the Act, 1960, which is a general notice to the persons holding land in excess of the ceiling area applicable to him on the date of enforcement of the said Act. On the publication under Section 9 of the said Act, 1960, the persons concerned are to submit statement within thirty days of the said publication with regard to his holdings and the said statement should include all the plots which they claim exemption. Subsequent to publication of the notice under Section 9 of the Act, 1960 and after on the expiry of the period prescribed therein, a notice to the tenure holder is issued, who had failed to submit the statement or has submitted incomplete statement. It is on the objections filed in pursuance to notice under Section 10 of the Act, 1960, the proceedings are taken by the Prescribed Authority where he considers the objections filed by the tenure holders and determines as to whether they are holding any area in excess of the ceiling area prescribed under the Act of 1960. 9. In the present case, admittedly the recorded tenure holder Brij Mohan Singh had died on 24.4.1974 after issuance of the notice under Section 9 of the Act, 1960 and prior to issuance of notice under Section 10 (2) of the Act, 1960. The manner in which the Prescribed Authority would proceed in this regard has been provided for under Rule 19 of the U.P. Imposition Of Ceiling On Land Holdings Rules, 1961. Rule 19 (3) of the U.P. Imposition Of Ceiling On Land Holdings Rules, 1961 reads as under:- "Where a tenure-holder dies before he is served with a notice under sub-section (2) of Section 10, the Prescribed Authority may serve such notice on his executor, administrator or other legal representatives, and may proceed to determine the ceiling area applicable to the deceased person as if such executor, administrator or other legal representatives were the tenure-holder for the purposes of service of such notice." 10. It is to be noticed that in case a person dies before service of notice under Section 10, the proceedings do not abate but only the persons who can contest the said case are the legal representative of the recorded tenure holder and it is only after service of notice as prescribed under Rule 19 (3) of the U.P. Imposition Of Ceiling On Land Holdings Rules, 1961 the proceedings may continue thereon and it cannot be lost sight of the fact that the rule further provides that ceiling area of the deceased recorded tenure holder has to be considered by the Prescribed Authority. Therefore, it is clear that the nature of the case for determination of land in excess of ceiling area does not change and it is centric only to the recorded tenure holder and not to his legal representatives. The aspect regarding service of notice on the deceased persons was also considered by this Court and a reference was made to a Division Bench, which has been answered by the Court in the case of Horam Singh and others Vs. District Judge, Moradabad and others reported in 1978 (4) ALR 918. This Court considering the validity of the proceedings, which are continued after the recorded tenure holder had died was of the considered view that the Rule 19 (1) of the U.P. Imposition Of Ceiling On Land Holdings Rules, 1961, which provides for continuance of the proceedings, even in matters where the recorded tenure holder died prior to the publication of notice under Section 9 of the Act, 1960 was held to be ultra-vires as it was clearly in conflict to the provisions of Section 10 of the Act, 1960. But with regard to the tenure holder, who dies subsequent to the general notice issued under Section 9 (2) of the Act, 1960 and that sub-Section 2 of Section 10 of the Act clearly envisage that the State Government has to frame rules prescribing the manner in which the notice in respect of such tenure holder has to be effected and the State Government for the said purpose has framed Rule sub Clause 3 and sub Clause 4 of Rule 19 of the of U.P. Imposition Of Ceiling On Land Holdings Rules, 1961 and consequently the Court was of the view that there is no infirmity in the said Rules and are intra-vires. 11. 11. It is in the aforesaid circumstances and specifically relying upon provisions of Rule 19 (3) of the U.P. Imposition Of Ceiling On Land Holdings Rules, 1961, this Court is of the considered view that even if Brij Mohan Singh, the recorded tenure holder, had died after the publication of notice under Section 9 of Act, 1960, the proceedings could have been continued after effecting notice on his legal heirs. Undoubtedly, notice has been effected on the legal heirs and the proceedings have been continued and the ceiling area pertaining to the recorded tenure holder Brij Mohan Singh has been duly determined by the Prescribed Authority as well as Appellate Authority, this Court does not find any reason to interfere which such an exercise. 12. Shri R.S. Pandey, learned Senior Counsel has vehemently submitted that despite the direction issued by the Additional District Judge, Sultanpur in his judgment and order dated 24.11.1981, the notice as prescribed were never served on the petitioners. 13. This Court has gone through the entire record and is of the considered view that firstly the legal heirs have been appearing before the various authorities on numerous occasions. Even when they had appeared before the Prescribed Authority after service of notice, the Prescribed Authority has narrated their objections in detail in his impugned orders dated 26.6.1985 and nowhere it has been stated that had they challenged the issuance of notice to them. Even before the Appellate Authority this question never raised. It is only in the present petition, the averment has been made that the notice was not served as prescribed. This being a question of fact cannot be a permit to be raised in the present writ petition for the first time and also that apart from the bare averments made in the present petition neither has the notice been annexed and from the order of the Prescribed Authority, it is evident that the notices were in-fact served and thereafter detail objections were filed and accordingly the contentions of the learned Senior Advocate appearing on behalf of the petitioners is clearly contrary to record, bereft of merit and accordingly rejected. 14. 14. Contrary to the said arguments, the order of the Prescribed Authority dated 26.08.1985 duly records that he had complied with the order of the Additional District Judge, Sultanpur dated 24.11.1981 and he had served notices in pursuance to which the petitioners had duly appeared before him and filed his objections. From the said order, it is evident that he had complied with the order of Appellate Authority dated 24.11.1981 and duly served the notice on the petitioners. The argument of petitioners in this regard does not merit any interference and being devoid of merit is accordingly, rejected. Considering the aforesaid facts, this Court does not find any reason to interfere with the order of the Prescribed Authority as well as Appellate Authority. 15. The writ petition is, accordingly, dismissed.