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2024 DIGILAW 2156 (ALL)

Mohd. Raza v. State of Uttar Pradesh

2024-09-30

CHANDRA KUMAR RAI

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JUDGMENT : (Chandra Kumar Rai, J.) 1. Heard Mr. Tripathi B.G. Bhai, learned counsel for the petitioner, Mr. Pankaj Kumar Gupta, learned counsel for the Gaon Sabha, Mr. Brijesh Kumar Srivastava, learned counsel for the respondent nos.5 to 15 and Mr. Dhananjay Singh, learned Standing Counsel for the State. 2. Brief facts of the case are that the khasara no.53 was owned by Beni Madhav son of Jagannath Prasad Dubey, who executed a sale deed on 8.10.1971 in favour of the petitioner- Mohd. Raza in respect to the khasara no.53 area 2-17-15 situated in Village- Hatwa, Tahsil- Dumeriyaganj, District-Basti now Siddharth Nagar. On the basis of aforementioned sale deed petitioner - Mohd. Raza came in possession of the aforementioned khasara no.53 and the name was accordingly, recorded in khatauni of 1378 fasli-1380 fasli. The aforementioned Beni Madhav has expired later on and in his place the name of his three sons, namely, Harish Chandra, Girish Chandra and Krishna Chandra were recorded in the revenue records. The Uttar Pradesh Act No.18 of 1973 had came into force w.e.f. 8.6.1973. Notice on C.L.H. Form No.4 had been issued to all the three legal heirs of Beni Madhav to show cause as to why the statement prepared in C.L.H. 3A, 3B & 3C should not be taken as correct. The legal heirs of deceased Beni Madhav filed their respecting objections before the prescribed authority and prescribed authority in the three cases registered against the three legal heirs of deceased Beni Madhav vide order dated 11.12.1974 declared 5.59 hectare land in irrigated terms as surplus and the plot which were declared surplus included khasara no.53. The proceeding for taking the possession was started by the State, accordingly, petitioner came to know about the order dated 11.12.1974 declaring the khasara no.53 surplus, filed an application dated 3.9.1979 / case before the ceiling authority under Section 11 (2) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "Ceiling Act") for recalling / setting aside the order dated 11.12.1974. In the application it was mentioned by the petitioner that petitioner is recorded in the revenue records over khasara no.53 but without notice and opportunity of hearing, khasara no.53 has been declared as surplus treating the khasara no.53 of the respondent nos.16 to 18 (legal heirs of Beni Madhav). In the application it was mentioned by the petitioner that petitioner is recorded in the revenue records over khasara no.53 but without notice and opportunity of hearing, khasara no.53 has been declared as surplus treating the khasara no.53 of the respondent nos.16 to 18 (legal heirs of Beni Madhav). Prescribed authority vide order dated 6.3.1982 rejected the case under Section 11 (2) of the Ceiling Act filed by the petitioner. Petitioner challenged the order dated 6.3.1982 by way of three appeals before district judge, which were registered as Appeal No.20/1982, 21/1982, 22/1982. The aforementioned appeals were clubbed and decided together by the First Additional District Judge, Basti vide order dated 17.2.1984 whereby the appeals were allowed setting aside the order of prescribed authority dated 6.3.1982 and ordered that khasara no.53 shall be excluded from the holding of respondent nos.16 to 18. Surplus land under the order of prescribed authority dated 11.12.1974 alleged to be allotted to respondent nos.5 to 15. Respondent nos.5 to 15 (allottees) filed a Civil Misc. Writ Petition No.12319 of 1984 before this Court against the appellate order dated 17.2.1984, which was allowed vide order dated 3.12.2002 and matter was remanded back to the Commissioner to decide the matter afresh after notice and opportunity of hearing to the parties including allottees. Due to the amendment in the ceiling act, the jurisdiction to decide the appeal was vested with Commissioner in place of District Judge, accordingly, the appeal in pursuance of the remand order passed by this Court was heard by respondent no.2/ Commissioner, Basti Division, Basti, who vide order dated 19.1.2012 dismissed all the three appeals filed by the petitioner, hence this writ petition for the following reliefs: "i. issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 11.12.1974, 6.3.1982 passed by the respondent no.3 and the order dated 19.1.2012 passed by respondent no.2 (Annexure No.6, 8 and 14). ii. issue a writ, order or direction in the nature of mandamus directing the respondents to exclude the plot no.53 from the ceiling area which has been purchased by the petitioner. iii. issue such other and further writ, order or direction which this Hon'ble Court may deem fit and proper in the nature and circumstances of the present case. iv. Award costs of the petitioner to the petitioner. iii. issue such other and further writ, order or direction which this Hon'ble Court may deem fit and proper in the nature and circumstances of the present case. iv. Award costs of the petitioner to the petitioner. v. issue a writ, order or direction in the nature of mandamus commanding and directing the State Government to award Rs.13,00,000/- to the petitioner as the compensation of the land in dispute w.e.f. the year 1980 to December, 2012 and further 40,000/- per year till the date of delivery of possession to the petitioner." 3. This Court vide order dated 25.4.2012 entertained the matter, issued notice to respondent nos.16, 17 & 18 as well as directed all the respondents to filed counter affidavit. 4. In pursuance of the order of this Court, parties have exchanged affidavit in the instant writ petition. 5. Learned counsel for the petitioner submitted that the impugned orders have been passed by ceiling authorities in illegal and arbitrary manner. He further submitted that Uttar Pradesh Act No.18 of 1973 had already came into force on 8.6.1973 and petitioner had purchased the land in question vide sale deed dated 8.10.1971 as well as petitioner came in possession since the date of execution of the sale deed his favour and the name was also recorded in the revenue record. He further submitted that prescribed authority has illegally included the khasara no.53 in the statement of respondent nos.16 to 18 and declared the same as surplus treating the same to be the land belonging to Beni Madhav father of respondent nos.16 to 18. He further submitted that on the basis of sale deed dated 8.10.1971 khasara no.53 was vested with the petitioner, as such, the same could not be included in the statement of respondent nos.16 to 18 for the purposes of determination of the land as surplus. He further submitted that the prescribed authority as well as the appellate authority have failed to examine the provisions under the ceiling act regarding sale deed which has been executed before the relevant date. He further submitted that respondent no.2 has erred in holding that the sale deed executed in favour of the petitioner is benami transaction as petitioner and the erstwhile owner belong to different caste and religion so there is no question of benami transaction in the matter. He further submitted that respondent no.2 has erred in holding that the sale deed executed in favour of the petitioner is benami transaction as petitioner and the erstwhile owner belong to different caste and religion so there is no question of benami transaction in the matter. He further submitted that the appellate Court vide order dated 17.2.1984 has allowed the appeal filed by the petitioner setting aside the order of prescribed authority declaring the khasara no.53 as surplus and there was no challenge by the State against the appellate order dated 17.2.1984, as such, no right will accrue to respondent nos.5 to 15 who are lease holders of the plot in question. In support of his argument, he placed reliance upon the following judgment of this Court, which are as follows: "i. 1979 All L.J. 1174, Shantanu Kumar vs. State of Uttar Pradesh and others. ii. 2011 (112) RD 681 , A. Kumar vs. State of U.P. iii. 2010 (111) RD 744, Ram Kripal Singh and another vs. Apar Ayukt and others. iv. 1990 RD 95 , Gurumukh Singh and others vs. State of Uttar Pradesh and Others." 6. On the other hand, Mr. Dhananjay Singh, learned Standing Counsel for the State submitted that khasara no.53 area 2-17-15 was recorded in the name of Beni Madhav and Beni Madhav was recorded in the khatauni of 1378-1380 fasli. He further submitted that the sale deed alleged to be executed in favour of the petitioner by Beni Madhav cannot be relied upon. He further submitted that the notice was issued to the heirs of Beni Madhav under C.L.H. Form No.4 to show cause as to why the statement should not be taken as correct. He further submitted that the notice under Section 10(2) of the Ceiling Act was issued on 14.3.1974. He further submitted that the prescribed authority has rightly declared 5.59 hectare land of respondent nos.16 to 18 as surplus. He next submitted that the petitioner had full knowledge about the ceiling proceeding but in order to delay the proceeding, recall application was filed later on which has been rightly rejected by the prescribed authority and appeal has also been dismissed in accordance with law. He further submitted that the cut-off date under the Ceiling Act is 24.1.1971, as such, petitioner is not entitled to rely upon the sale deed, which is alleged to be executed on 8.10.1971. He further submitted that the cut-off date under the Ceiling Act is 24.1.1971, as such, petitioner is not entitled to rely upon the sale deed, which is alleged to be executed on 8.10.1971. He further submitted that there is no illegality in the impugned order and the writ petition filed by the petitioner is liable to be dismissed. 7. Mr. Brijesh Kumar Srivastava, learned counsel for the respondent nos.5 to 15 submitted that khasara no.53 area 0-15-18 was rightly declared surplus vide order dated 11.12.1974 and the same has been allotted to respondent nos.5 to 15. He next submitted that during consolidation operation, the name of respondent nos.5 to 15 has been recorded and C.H. Form 45 was also prepared in the name of respondent nos.5 to 15. He further submitted that respondent nos.5 to 15 has been accordingly recorded in the khatauni of 1412-1417 fasli as well as 1418-1423 fasli. He further submitted that respondent nos.5 to 15 have also filed an objection under Section 9 A (2) of Uttar Pradesh Consolidation of Holdings Act, 1953 and Consolidation Officer vide order dated 2.1.1985 directed to expunge the name of the petitioner from the revenue records. He further submitted that the petitioner has challenged the order of the Consolidation Officer dated 2.1.1985 and the same has attained finality between the petitioner and respondent no.5. He next submitted that no cancellation proceeding has been initiated under Section 27 (4) of the Ceiling Act by anybody, as such, the lease executed in favour of respondent nos.5 to 15 in respect to the surplus land cannot be ignored or cancelled by any authority. In support of his argument, he placed reliance upon the judgments of Hon'ble Apex Court, which are as follows: "i. AIR 1990 Supreme Court 2186, Ram Chandra Singh (dead) through legal heirs vs. State of Uttar Pradesh and Others. ii. 1981 LawSuit (SC) 178, Sonia Bhatia vs. State of Uttar Pradesh." 8. I have considered the argument advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that prescribed authority has declared 5.59 hectare land in irrigated terms as surplus including Khasara no.53 vide order dated 11.12.1974. ii. 1981 LawSuit (SC) 178, Sonia Bhatia vs. State of Uttar Pradesh." 8. I have considered the argument advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that prescribed authority has declared 5.59 hectare land in irrigated terms as surplus including Khasara no.53 vide order dated 11.12.1974. There is also no dispute about the fact that prescribed authority vide order dated 6.3.1982 dismissed the case filed by petitioner under Section 11 (2) of the Ceiling Act but the appeal filed by the petitioner against the order dated 11.12.1974 was allowed by the appellate authority vide order dated 17.2.1984 but in writ petition filed by respondent nos.5 to 15, the appellate order dated 17.2.1984 was set aside and matter was remanded back before the appellate Court to decide the appeal afresh. There is also not dispute about the fact that after remand order passed by this Court, the appellate authority has dismissed the appeal filed by the petitioner vide order dated 19.1.2012. 10. In order to appreciate the controversy involved in the matter, perusal of Section 5 (6) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 will be relevant for perusal, which is as under: "(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; (a) a transfer in favour of any person (including Government) referred to in sub-section (2); (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for the immediate or deferred benefit of the tenure-holder or other members of his family. [Explanation I — For the purposes of this sub-section, the expression transfer of land made after the twenty-fourth day of January, 1971, includes — [(a) a declaration of a person as a co -tenure-holder made after the twenty-fourth day of January, 1971, in a suit, or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty-fourth day of January, 1971] ; [(b) any admission, acknowledgment, relinquishment or declaration in favour of a person to the life effect, made in any other deed or instrument or in any other manner. Explanation II — The burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit." 11. Perusal of the record demonstrates that the petitioner is claiming right on the basis of sale deed executed in his favour on 8.10.1971 in respect to the khasara no.53 area 2-17-15 from its recorded tenure holder Beni Madhav and the name of the petitioner was ordered to be recorded in case no.329 passed by the Sub-Divisional Office, Dumeriyaganj. Entry has been made in the remark column of the khatauni of 1378-1380 fasli. Petitioner is claiming that after enforcement of Act No.18 of 1973 w.e.f. 8.6.1973, the sale deed executed on 8.10.1971 in favour of the petitioner is well protected. The record also demonstrates that the objection under Section 11(2) of the Ceiling Act filed by the petitioner has been dismissed by the prescribed authority and the appeal has also been dismissed holding that transaction of the petitioner is benami and no reliance can be placed upon the same as the same has been executed after 24.1.1971. The reasoning given under the impugned order cannot be sustained as the sale deed has been executed before 8.6.1973, as such, the same is well protected. 12. In the instant matter petitioner is claiming right on the basis of sale deed executed on 8.10.1971 by recorded owner, which is well before the relevant dated 8.6.1973 and notice was issued to respondent nos.16 to 18 on 14.3.1974 for show cause in C.L.H. Form- 3A, 3B & 3C, as such, the sale deed executed on 8.10.1971 cannot be ignored by ceiling authorities coupled with the fact that name of the petitioner came in remark coloumn of Khatauni of 1378 fasli to 1380 fasli (1970-71 to 1972-73). 13. 13. The Full Bench of this Court in the case of Shantanu Kumar (supra) has held that failure to serve notice of the ceiling proceeding on transferee from tenure-holder is illgal. Paragraph Nos.7 to 12 of the full Bench in Shantanu Kumar (supra) will be relevant for perusal, which are as under: "7. Section 9 of the Act provides for a general notice to tenure-holders holding land in excess of ceiling area for submission of statement in the prescribed form within thirty days of the publication of the general notice in the official gazette. So every tenure-holder who holds land in excess of ceiling area is required to furnish a statement mentioned in Section 9 and every such tenure-holder who has failed to submit such statement has to be served with a notice under Section 10(2). 8. Rule 8 provides for service of notice on every tenure-holder to show cause within fifteen days why the aforesaid statement prepared by the prescribed Authority be not taken as correct. Proviso to this rule then provides: 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 15 days from the date of service of the notice why the aforesaid statement be not taken as correct.... 9. It is thus evident that the notice requiring the tenure-holder to show cause why the statement prepared by the Prescribed Authority be not taken as correct is to be issued to the tenure-holder in respect of whose holding the statement has been prepared. Under the proviso, the Prescribed Authority shall cause to be served a notice to the person in whose name the land included in C.L.H. Form 3 is ostensibly held. The Prescribed Authority prepares the statement on the basis of revenue records. If from the revenue records or other information, the Prescribed Authority comes to know that the land included in the statement in C.L.H. Form 3 includes land ostensibly held in the name of any other person, the Prescribed Authority is bound to serve notice on such person. The phrase used is 'shall cause to be served'. 10. If from the revenue records or other information, the Prescribed Authority comes to know that the land included in the statement in C.L.H. Form 3 includes land ostensibly held in the name of any other person, the Prescribed Authority is bound to serve notice on such person. The phrase used is 'shall cause to be served'. 10. The Petitioner claimed under a sale deed. It is not disputed that the Petitioner's name was recorded in the revenue papers over the land which was transferred to him. It is admitted that the statement in C.L.H. Form 3 included the land held by the Petitioner. He was hence a person in whose name some part of the land mentioned in the statement was believed by the Prescribed Authority to be ostensibly held. In this situation, it was incumbent upon the Prescribed Authority to serve upon the Petitioner the requisite notice together with a copy of the statement and call upon him to show cause why that statement be not taken as correct. 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. The State of Uttar Pradesh 1978 AWC 393 . 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. 12. It was urged that since the Petitioner knew of these proceedings he kept silent all this while, this Court need not interfere in exercise of its discretionary jurisdiction under Article 226 of the Constitution. The fact that the Petitioner could have filed an objection under Section 11(2) will not breathe life into or validate these dead proceedings. 12. It was urged that since the Petitioner knew of these proceedings he kept silent all this while, this Court need not interfere in exercise of its discretionary jurisdiction under Article 226 of the Constitution. It is well settled that an objection to lack of jurisdiction can be taken at any stage of the proceedings and even in collateral proceedings (See Kiran Singh v. Chaman Paswan : AIR 1954 SC 340 ). Consent or waiver cannot be a ground for refusing to entertain such an objection. We hence cannot deny relief to the Petitioner on the ground of alternative remedy. It is equally settled that existence of jurisdiction cannot be conferred by consent or waiver. This plea is only relevant to the exercise of jurisdiction. Here there was lack of jurisdiction by reason of non-compliance of the first proviso to Rule 8." 14. This Court in the case of A. Kumar (supra) has held that ceiling limits are to be determined with reference to the relevant date i.e. 8.6.1973. Paragraph no.5 of the judgment of this Court in A.Kumar (supra) will be relevant for perusal, which is as under: "5. I am in agreement with the findings so recorded. If user of the land has been changed by the tenure holder subsequent to 8th June, 1973 then such land cannot be excluded from the tenure holding for the purpose of determination of ceiling limits. The Petitioners are not entitled to reduction in area because of such change in the user of land after 8th June, 1973. The ceiling limits are to be determined with reference to the relevant date i.e. 8th June, 1973 and the land held on the said date for the agricultural purposes. In absence of any evidence having been brought on record by the Petitioners to establish that the land was being so used prior to 08th June, 1973, the authorities are legally justified in rejecting the contention so raised." 15. This Court in the case of Ram Kripal Singh (supra) has held that any patta executed in respect to the land ceased to be surplus is illegal. Paragraph no.8 of the judgement rendered in Ram Kripal Singh (supra) will be relevant for perusal, which is as under: "8. This Court in the case of Ram Kripal Singh (supra) has held that any patta executed in respect to the land ceased to be surplus is illegal. Paragraph no.8 of the judgement rendered in Ram Kripal Singh (supra) will be relevant for perusal, which is as under: "8. It is to be noted that any patta executed by the District Collector would be a nullity and void on account of the fact that the land in question has been restored back to the petitioners vide order dated 31.8.1984 and thereafter right to retain the land was vested with the petitioners. There was no right vested with the opposite parties to execute patta in respect of the land which was not surplus at any point of time. If any patta has been executed, then the same would be deemed to be a nullity. The proposition of law laid down by this Court in the case of Brijendra Pratap Bahadur Singh (supra) goes to indicate that the identical controversy was involved in the said case and this Court observed that in view of the provisions of section 14 of the Act, the land was not surplus as the order stood modified. Relevant para-8 of the aforesaid judgment is reproduced hereunder:— “8. Section 14 of the Act provides that the land will be surplus only after the decision in appeal under section 13. The action of the Prescribed Authority in taking the possession of the surplus land was wholly illegal and against the provisions of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act. The Prescribed Authority even after the decision of the appeal failed to restore the possession of the land to the petitioners and rejected the application of the petitioners dated 28.1.1983 for restoration of possession in a most illegal manner by its order dated 1.3.1984 and again committed error while rejecting the review petition by order dated 6.3.1987. The petitioners have been deprived by the State in a most arbitrary manner. The arguments of the learned Counsel appearing on behalf of the State that the land has been allotted to the different persons and they are not party in the instant petition can not be accepted. The petitioners have been deprived by the State in a most arbitrary manner. The arguments of the learned Counsel appearing on behalf of the State that the land has been allotted to the different persons and they are not party in the instant petition can not be accepted. It is the State who has taken over the possession of the land during the pendency of the appeal although the land was not declared as surplus in view of Section 14 of the Act. If any lease has been granted/issued by the Collector on behalf of State Government of the land in dispute that is null and void and lease holders have no title or interest over the land. The Board of Revenue has also issued Government Order dated 6.3.1981, a copy of which has been annexed along with the writ petition also provides that the Prescribed Authority is competent to dispossess the lease holders and restore the possession to the original tenure holders whenever the order of the Prescribed Immaturity has been modified by any competent Court. In the instant case, the application was moved by the petitioners before the Prescribed Authority for restoration of the possession but the Prescribed Authority has failed to discharge his duty.” 16. So far as the execution of the lease in favour of respondent nos.5 to 15 is concerned, the same is always subject to the right & title of the State. Since, the Court is holding that the khasara no.53, which was purchased by the petitioner by way of sale deed executed on 8.10.1971 cannot be declared surplus without notice and opportunity of hearing to the petitioner, as such, respondent nos.5 to 15 cannot claim any right on the basis of lease deed. No useful purpose will be served by remanding the matter again before the prescribed authority or the appellate authority as earlier also the matter has been remanded by this Court to decide the appeal afresh. The litigation cannot be kept pending in Court for unlimited period rather to finalize the same on the basis of evidence on record as well as considering the ratio of law laid down by this Court as quoted above. 17. The litigation cannot be kept pending in Court for unlimited period rather to finalize the same on the basis of evidence on record as well as considering the ratio of law laid down by this Court as quoted above. 17. Considering the entire facts and circumstances of the case, the impugned order dated 6.3.1982 passed by respondent no.3 as well as order dated 19.1.2012 passed by respondent no.2 are liable to be set aside and the same are hereby set aside. The impugned order dated 11.12.1974 so far as it relates to Khasara No.53 is also set aside and Khasara No.53 is excluded from ceiling proceeding. 18. The writ petition stands allowed. 19. No order as to costs.