Allahabad High Court
Shanker Deo Bharti Son Of Sri Lakshman ... vs State Of U.P. And Ors. on 25 October, 2007
Author: Shishir Kumar
Bench: Shishir Kumar
JUDGMENT Shishir Kumar, J.
1. By means of the present writ petition, petitioner has approached this Court for issuing a writ of certiorari quashing the order of the Prescribed Authority dated 16.9.1980 and the order passed by the I Addl. District Judge dated 6.8.1981 (Annexure Nos. 9 & 10 respectively to the writ petition). Further prayer is for issuing a writ of mandamus commanding the respondents not to dispossess the petitioner from the land declared as surplus during the pendency of the present writ petition. A further prayer is also for issuing a writ of mandamus directing the Respondents No. 2 and 3 to consider and decide the petitioner's objection on merits.
2. The relevant pedigree for the purposes of instant case is being reproduced below:
Bhajan Singh
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| | |
Shiv Raj Singh Niadar Singh Lekhraj Singh
| (died issueless)
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| |
Shanti Swamp |
Laxman Swarup
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| |
Mahendra Bhupendra Kamendra Singh Shanker Dev Bharti
Singh Singh (Deceased) (petitioner)
(Res. 4) (Res. 5) |
Suchit Kumar
(Res. 6)
3. The village Mauzampur Sujan, Mohammadapur Deomal along with other villages were the Zamindari villages of the joint Hinduly and there was Sir Khudkasht and intermediary grove of the said joint Hindu family in villages Mauzampur Sujan and Mohammadapur Deomal along with other villages. Sri Lekhraj Singh had died prior to the abolition of Zamindari. The joint Hindu family consisted of Seth Laksman Swarup and his family members. The joint Hindu family has acquired Bhumidhari rights in the land of villages Mohammadpur Deomal and Mauzampur Sujan. The proceeding under the U.P. Consolidation of Holdings Act started in the aforesaid village. The objections were filed in respect of land of Mohammadpur Deomal and Mauzampur Sujan. Six land references were referred to Arbitrator in respect of land situated in two villages. An objection was also filed by Sri Laxman Swarup and other persons. Sri Raghu Nath Singh has also filed an objection claiming some of the plots of village Mohammadpur Deomal involved in the objection filed by Laxman Swarup. The objections were decided by the Arbitrator vide its award dated 1.1.1964. After considering the entire evidence on record, the learned Arbitrator found that Sri Shanti Swarup and Laxman Swarup have joint claim as Bhumidhar of the land of village Mohammadpur Deomal and Mauzampur Sujan. It has also been found that Sri Shanti Swarup disposed of his half share in the land in dispute of village Mohammadpur Deomal, Mahal Zard in favour of Bhopal Singh and thereafter Bhopal Singh and others are Bhumidhars to the extent of half share in the land in suit of village Mohammadpur Deomal and Seth Laxman Swarup is co-bhumidhar of the plots in suit of village Mauzampur Sujan to the extent of half share and Shanti Swarup is not exclusive bhumidhar of the plot in suit of village Mauzampur Sujan. The objections of Sri Raghu Nath Singh was rejected and the Arbitrator has also held that Sri Shanu Swarup is not the exclusive bhumidhar of plots mentioned in the suit of village Mauzampur Sujan. Against the Judgment and award, an appeal was filed before the District Judge, which was rejected vide order dated 4.5.1970. A Civil Revision was filed before this Court being Civil Revision No. 22 of 1972, which was decided on 22.3.1972 holding the finding recorded by the Lower Appellate Court to the effect that the award did not suffer from any misconduct of the Arbitrator. The award dated 1.1.1964 became final between the parties and the predecessor in interest of the petitioner namely Late laxman Swarup was held to be a co-bhumidhar to the extent of one half of share in the land of village Mohammadpur Deomal and Mauzampur Sujan.
4. Learned Counsel for the petitioner submitted that after initiation of the proceedings after the amendment of the Ceiling Act by the Act No. 2 of 1975 and 20 of 1976, no notice whatsoever was issued to the father of the petitioner or the petitioner. When the father of the petitioner came to know that the Respondents No. 4 to 6 surrendered the land of village Mauzampur Sujan as surplus, in which the petitioner's father was holding having half of the share, filed a writ petition No. 4318 of 1978 before this Court. The aforesaid writ petition was decided on 24.10.1979 and this Court relying upon a Full Bench decision of this Court in the case of Upper Ganges Sugar Mills Limited v. State of U.P. holding that, the petitioner cannot be allowed to maintain the said writ petition and observed that the petitioner can file an objection before the Prescribed Authority. The relevant portion of the aforesaid Judgment is quoted below:
In view of the law laid down by the Bull Bench in Upper Ganges Sugar Mills Ltd. v. Civil Judge and Ors. 1969 A.L.J. p-566 which was subsequently followed in Dilbagh Soingh v. State 1978 ALJ p-717 the petitioner cannot be allowed to maintain this petition in this Court. Even though he was an unrecorded tenure holder till in the light of the law laid down in aforesaid pronouncement he could file the objection before the Prescribed Authority.
A notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the 'Act') was issued to Sri Shanti Swarup and separate notice was issued to the father of the petitioner Sri Laxman Swarup. Sri Santi Swarup moved an application for consolidation of the aforesaid cases. The case initiated against Sri Shanti Swarup was decided on 28.7.1975. In the mean time the U.P. Imposition of Ceiling on Land Holdings Act was amended by U.P. Act No. 2 of 1975 and 20 of 1976. Therefore, fresh notices were issued to the legal heirs of Shanti Swarup. In the said notices the legal heirs of Shanti Swarup surrendered the land of village Mauzampur Sujan, belonging to the father of the petitioner, as surplus. A copy of the order passed by the Prescribed Authority in the case of Shanti Swarup dated 31.8.1976 has been annexed as Annexure-4 to the writ petition. From bare perusal of the aforesaid order, it is clear that the land of village Mauzampur Sujan was declared as surplus. Aggrieved by the aforesaid judgment, the sons of Sri Shanti Swarup filed an appeal before the Lower Appellate Court, which was decided by the Judgment and order dated 16.12.1977.
5. The father of the petitioner died during the pendency of the writ petition before this Court and an application for substitution was filed and the same was allowed. The petitioner was informed m regarding the order of this Court dated 3.12.1979 and the same was received by the petitioner on 8.12.1979. In view of the observation made by this Court in writ petition filed by the petitioner, petitioner immediately filed an objection under Section 11(2) of the Act before the Prescribed Authority within a short period of 5 days from the date of receipt of the information along with an application under Section 5 of the Limitation Act. The Prescribed Authority without considering the fact that no notice was ever served upon the petitioner or to the father of the petitioner, after amendment of the Act, the proceeding was decided during the consolidation in favour of the petitioner's father. The land of the petitioner has been given option by the respondents as surplus land. The Prescribed Authority has rejected the application for condonation of delay on 16.9.1980 on the ground that the objections have not been filed within time. Aggrieved by the aforesaid order, petitioner has filed an appeal under Section 13 of the Act before the District Judge. The District Judge has also rejected the appeal holding therein that the application for condonation of delay basing on the date of knowledge from the order of this Court cannot be accepted. Aggrieved by the aforesaid orders passed by the respondent, the petitioner has approached this Court by way of filing the present writ petition.
6. while entertaining the present writ petition, this Court passed an order dated 22.9.1981 that the petitioner will not be dispossessed from the land in dispute, in pursuance of choice indicated by the respondent Nos. 4 and 5. Petitioner submits that in pursuance of the order passed by this Court, the petitioner is still in possession of the land in dispute.
7. The learned Counsel for the petitioner has submitted that from bare perusal of the fact, it is clear that against the order dated 16.12.1977 passed by the Appellate Authority, the father of the petitioner filed a writ petition before this Court on 16.3.1978 within the period of limitation. The writ petition was dismissed on 24.10.1979 and information was sent by the counsel for the petitioner vide letter dated 3.12.1979, the same was received by the petitioner on 8.12.1979 and the objections were filed on 12.12.1979, immediately after 4 days from the date of knowledge, therefore, the same cannot be rejected on the ground of limitation. The petitioner had taken expeditious steps and was pursuing the matter diligently. The father of the petitioner filed the writ petition before this Court within the period of limitation and after dismissal of the writ petition, directing the petitioner to file an objection before the Prescribed Authority under Section 11(2) of the Act, petitioner filed objection within 4 days from the date of knowledge, as such it cannot be presumed that there was any delay in filing the objection. The view taken by the Prescribed Authority is erroneous and is liable to be set aside. As the petitioner's father was pursuing the remedy before the High Court, therefore, the petitioner is entitled to get the benefits under Section 14 of the Limitation Act. The finding to this effect has been recorded by the Lower Appellate Court that the objections should have been filed before filing the writ petition, is not correct, petitioner submits that in case the petitioner has approached a wrong forum, under some wrong legal advice, then the time spent in that is liable to be condoned. The objections under Section 11(2) of the Act cannot be rejected on the ground of limitation. Therefore, the time spent before this Court is liable to be condoned under Section 14 of the Limitation Act and the view taken by the courts blow is erroneous in law.
8. Further submission has been made by the learned Counsel for the petitioner is that it has clearly been averred by the petitioner that no notice whatsoever was given to the father of the petitioner or to the petitioner when the proceeding, after the amendment of the Act has again taken against Sri Shanti Swarup. There is no denial in counter affidavit to this effect that any notice was ever given to petitioner. The petitioner being a tenure holder was entitled to notice. It has also not been denied by the respondents that the petitioner is not a recorded tenure holder. The respondents No. 4 to 6 has also not denied the fact regarding notice to the petitioner, therefore, if no notice has been given, the land of the petitioner cannot be declared surplus under the ceiling. The finding recorded by the Prescribed Authority to the effect that the father of the petitioner was having knowledge regarding the proceedings against Sri Shanti Swarup is not correct, factually the Prescribed Authority was considering the earlier Ceiling Proceedings and not the subsequent Ceiling Proceeding against Sri Shanti Swarup, which has taken place in the year 1976. The finding to this effect that the petitioner was having the knowledge of the proceedings is not correct. The Lower Appellate Court has also committed the same mistake in rejecting the objection filed by the petitioner under Section 11(2) of the Act. As no notice was ever given to the petitioner, therefore, the entire proceedings against the petitioner is without jurisdiction. The petitioner has a right to file an objection under Section 11(2) of the Act in view of the Full Bench decision of this Court Upper Ganges Sugar Mills v. Civil Judge, Bijnor. Further reliance has been placed upon a Full Bench decision of this Court reported in 1979 (5) ALR 564 Shantanu Kumar v. State of U.P. and Ors. It has been held by the Full Bench decision of this Court that under the proviso, the Prescribed Authority shall cause to be served a notice to the person in whose name the land is included in C.L.H. Form-3 is ostensibly held. It has been held that the Prescribed Authority is bound to serve a notice of such person. Inspite of the aforesaid fact, the learned Counsel for the petitioner submits that as no notice was ever given to the petitioner and the land of the petitioner is being taken under a proceeding without any notice and opportunity to petitioner. Therefore, the authorities below was bound to entertain the objection filed by the petitioner under Section 11(2) of the Act and an explanation to this effect was given that under what circumstances objection was not filed within time as the petitioner was pursuing a remedy before the High Court, therefore, the petitioner was entitled to get the benefit of Section 14 of the Limitation Act.
9. In the counter affidavit filed on behalf of the respondents, the fact regarding the villages Mauzampur Sujan and Mohammadapur Deomal has been admitted by the respondents. It has been stated that the notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act was issued to the concerned tenure holder. In paragraph 13 of the counter affidavit, it has been stated that no notice was required to be issued to the petitioner or his father Sri Laxman Swarup, as they were not recorded tenure holder regarding the Khatas in dispute and a notice was issued to Sri Shanti Swarup as his name was recorded. As the writ petition filed by the petitioner was dismissed and the objections were not filed within time, therefore, both the authorities have rightly rejected the claim of the petitioner.
10. I have heard Sri Anil Sharma, learned counsel for the petitioner, learned Standing Counsel for the respondents and have perused the record. From the record it is clear that when the Consolidation Proceedings were initiated, the matter was decided and after considering the objections filed on behalf of the relevant parties an award was given on 1.1.1964. Arbitrator found that Sri Shanti Swarup and Sri Laxman Swarup were joint tenure holder as Bhumidhar of the land of village Mauzampur Sujan and Mohammadapur Deomal. It was also held that Sri Shanti Swarup had disposed off his half share of land in dispute of village Mohammadapur Deomal, Mahal Zard in favour of one Bhopal Singh and Sri Laxmi Swarup who are co-bhumidhar of the plot in suit of village Mauzampur Sujan to the extent of half of the share and Sri Shanti Swarup is not exclusive bhumidhar of plots in village Mauzampur Sujan. The aforesaid award has become final up to the High Court. Therefore, it is clear that the parties and the predecessor in interest of the petitioner namely Sri Laxman Swarup was held to be co-bhumidhar to the extent of half share in the land of village Mauzampur Sujan and Mohammadapur Deomal. It is also clear from the record that the separate notices were issued to the petitioner's father and respondents. After the amendment, no notices were issued to the petitioner or petitioner's father, only fresh notices were issued to the legal heirs of Sri Shanti Swarup and Sri Laxmi Swarup have surrendered the land in village Mauzampur Sujan belonging to the father of the petitioner as surplus. As no notice was given to the petitioner or the father of the petitioner. Petitioner was not aware regarding surrendering the surplus land of the petitioner's father by the heirs of Sri Shanti Swarup. When they came to know on the basis of legal advice, they filed a writ petition before this Court and the writ petition was dismissed, in view of the law laid down by the Full Bench decision of this Court in the case of Upper Ganges Sugar Mills (supra). An option was given to the petitioner to file an objection before the Prescribed Authority. As soon as petitioner came to know regarding the dismissal of the writ petition indicated by the counsel within a period of 4 days from the date of knowledge, the petitioner filed an objection under Section 11(2) of the Act supported by an application under Section 5 of the Limitation Act, stating the fact that under what circumstances the objection could not be filed within time as provided under Section 11(2) of the Act.
11. In my opinion, the Prescribed Authority as well as Appellate Authority were not justified in rejecting the claim of the petitioner only on the ground that as the objection has not been filed within 30 days as provided under the Act, therefore, the same cannot be considered. The Authorities below ought to have considered the circumstances of the case to the effect that admittedly no notice under Section 10(2) of the Act was ever issued to the petitioner or father of the petitioner. After amendment notices were issued to the heirs of Sri Shanti Swarup only. The heirs of Sri Shanti Swarup has given an option of the land of the petitioner's father, which was already decided in Consolidation Proceedings and has been finalised up to this Court. The Authorities below ought to have seen the circumstances to this effect that the petitioner was pursuing a remedy before this Court by way of filing the writ petition and as soon as the writ petition was decided by this Court. On intimation given to petitioner within 4 days from date of knowledge, objection was filed supported by an application and affidavit under Section 5 of the Limitation Act. The Hon'ble Apex Court as well as this Court have pronounced in various judgements, interpreting the provisions of Section 5 as well as Section 14 of the Limitation Act and has held that the Courts should take a very lenient view in condoning the delay. Unless and until it is proved that a person has not approached the Court or has not availed remedy in time with malafide intention, deliberately having full knowledge, but it is not a case where the petitioner has deliberately avoided to file an objection under Section 11(2) of the Act only to delay the proceedings. As soon as petitioner came to know, he immediately filed the writ petition and the writ petition was dismissed on 24.10.1979 and within four days from the date of communication of the order, an objection was filed. Therefore, in my opinion, the authorities below was not justified in rejecting the objection of the petitioner as barred by time.
12. In view of the aforesaid facts and circumstances of the present case, the writ petition is allowed and the order passed by the Prescribed Authority dated 16.9.1980 (Annexure-9 to the writ petition) and order dated 6.8.1981 passed by the 1st Additional District Judge, Bijnor (Annexure-10 to the writ petition) are hereby quashed and the matter is remanded back to the Prescribed Authority, respondent No. 2 to decide the objection of the petitioner under Section 11(2) of the U.P. Imposition of Ceiling on Land Holdings Act on merits treating the objection filed within time. As the matter is very old, therefore, it will be appropriate that the respondent No. 2 may be decided, if possible within a period of 6 months from the date of production of a certified copy of this order. There shall be no order as to costs.