Allahabad High Court
Suresh Chandra Tewari And Others vs State Of U.P. And Others on 21 February, 2022
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved A.F.R. Court No. - 8 Case :- WRIT - C No. - 3000001 of 1995 Petitioner :- Suresh Chandra Tewari And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- D.C. Mukherji,Mohammad Aslam Khan Counsel for Respondent :- A.B. Misra,C.S.C. Hon'ble Dinesh Kumar Singh,J.
1. The present writ petition has been filed, seeking quashing of the order dated 18.10.1994 passed by Additional Commissioner (Judicial), Lucknow Division, Lucknow whereby learned Additional Commissioner has allowed the appeal filed by the State against the order dated 23.09.1985 passed by the prescribed authority under the provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as 'the Act, 1960').
2. Notice under Section 10(2) of the Act, 1960 was issued on 16.03.1974 against the father of the petitioners, Hari Shankar Tiwari since dead who was impleaded as respondent No.3 in this writ petition by the Prescribed Authority. Father of the petitioners filed his objection to the said notice on 20.04.1974. In the said objection, Late Hari Shankar, father of the petitioners said that a family settlement was arrived at between the parties in the year 1967 and, according to the said family settlement, shares of all the family members were determined. This settlement was reduced in writing in the year 1969 and in the year 1970, petitioner No.1, one of the sons of Late Hari Shankar, instituted a suit in the Court of Munsif in respect of non agricultural properties which were also included in the said memorandum of family settlement. Said suit was decreed on 02.11.1970 on the basis of family settlement and memorandum dated 09.11.1969. On 29.01.1971, a suit for permanent injunction for restraining Late Hari Shankar Tiwari, father of the petitioners was instituted by petitioner No.1 in respect of agricultural land and on the basis of said family settlement, suit was decreed on 09.08.1971. It was said that land of Village Bojhwar in Gata Nos.125, 127, 157, 166, 270, 278, 159, 168 and land of Village Bahshar of Gata No.492, land of Village Alhar in Gata No.1168 and land of Village Roshanpur in Gata Nos.436, half of 484, 355, 356, 357, 358 and half of 361 was his land. It was further said that land of village Birauri in Gata No.1353 was also his land.
3. In CLH Form 3 annexed with the notice issued to respondent No.3 under Section 10(2) of the Act, 1960 should not have included the land of the petitioner as mentioned above. Prescribed authority on 21.12.1974 adjudicated the notice dated 20.04.1974 and vide order dated 21.12.1974 declared 37 Bigha 5 Biswa 17.8 Biswansi land of respondent No.3, father of the petitioners as surplus under the provisions of Act, 1960.
4. Against the said order dated 21.12.1974, respondent No.3 preferred an appeal before the District Judge Hardoi. IIIrd Additional District Judge, Hardoi vide order dated 24.09.1975 partly allowed the said appeal and as a result of which the surplus area was reduced to 33 Bigha 8 Biswa 14.8 Biswansi in form of irrigated land as surplus.
5. Against the said judgment and order dated 24.09.1975 passed by the appellate authority, father of the petitioners filed Writ Petition No.2336(SS) of 1975, which was dismissed vide order dated 07.08.1978. This court held that parties to the deed of settlement had only declared their respective shares in the properties, which were subject matter of the deed. No partition was effected by metes and bounds and the parties were not put in possession of their respective shares in the properties. It was further held that the suit for partition was filed after the crucial date 24.01.1971. The suit was decided on the basis of a compromise and decree was passed for partition after due date. This Court was of the view that the said decree was liable to be ignored and the family settlement purported to have been made between the father of the petitioners and his sons was of no avail to him. This Court did not find any error of law in the orders passed by the prescribed authority and appellate authority and thus, the writ petition was dismissed.
6. Against the said judgment and order passed by this Court, father of the petitioners i.e. respondent No.3 preferred an S.L.P. before the Supreme Court, which was subsequently withdrawn. Father of the petitioners gave his option on 23.07.1981, which was accepted by the prescribed authority to declare surplus area of 33 Biswa 8 Bigha and 14.8 Biswansi as surplus area out of Plot No.1353 as surplus area.
7. In the meantime, the petitioners, who are sons of Late Hari Shankar Tiwari, moved an application on 23.04.1981 purporting to be an application under Section 11 of the Act, 1960 stating therein that they were joint tenure-holders of the land and they were not given any notice by the prescribed authority. It was said that the order passed by the prescribed authority on 21.09.1974 should be cancelled/recalled. However, the objection filed by the petitioners was rejected by the prescribed authority vide order dated 14.09.1981.
8. The petitioners aggrieved by the said order of the prescribed authority filed an appeal in the court of IVth Additional District Judge, Hardoi. IVth Additional District Judge/Appellate authority vide order dated 16.11.1981 accepted the appeal and set aside the order dated 14.09.1981. The matter was remanded back to the prescribed authority to decide the objection afresh after giving opportunity of hearing to the petitioners.
9. On remand, the prescribed authority issued notice under Section 10(2) of the Act, 1960 and thereafter passed the order dated 23.09.1985 holding that prior to cut off date, entire land shown in the notice belonged to Joint Hindu Family which was partitioned through private family arrangement arrived at in the year 1967, which was reduced in writing in the memo in the year 1969. Through the said family settlement the entire Joint Hindu Family, agricultural and non agricultural land and property was divided by metes and bounds and since then each of the members of the erstwhile joint family had got separated from each other and each one had entered into actual exclusive possession over the property allotted to each of them.
10. Against the above mentioned judgment and order of the prescribed authority, the State filed an appeal under Section 13 of the Act, 1960 before the District Judge, Hardoi which on account of the amendment made in the Act was transferred to the Court of Additional Commissioner (Judicial), Lucknow Division, Lucknow for hearing and decision.
11. Learned Additional Commissioner (Judicial) vide his impugned order dated 18.10.1994 had allowed the said appeal and set aside the order passed by the prescribed authority and ordered for declaration of surplus area 33 Bigha 8 Biswa 14.8 Biswansi in terms of irrigated land as was originally declared in adjudication proceedings pursuance to the notice dated 16.03.1974 issued to the late father of the petitioners.
12. Learned Additional Commissioner allowed the appeal on the ground that since respondent No.3 i.e. father of the petitioners had claimed benefit of the said family settlement as being claimed by the petitioners, which was not accepted in the writ petition by this Court and, therefore, issuing fresh notice to the petitioners separately under Section 10(2) of the Act, 1960 by the prescribed authority was illegal and the prescribed authority had no jurisdiction to give different finding what was given by this Court in respect of the family settlement.
13. Mr. Mohd. Arif Khan, learned Senior Advocate, assisted by Mr. Mohd. Aslam Khan, representing the petitioners, has submitted that the learned Additional Commissioner did not consider the merits of the case, as was set up by the petitioners, nor did consider the provisions of Section-11 of the Act, 1960; the learned Additional Commissioner had also not taken into consideration the judgment and order dated 16.11.1981 passed by the IV Additional Judge, Hardoi, which had attained finality between the parties inasmuch as the State Authorities did not challenge the said judgment and order of the learned IV Additional Judge. Hardoi; every tenure-holder is entitled to get a separate notice under Section 10(2) of the Act, 1960 and, the Prescribed Authority is duty-bound to issue such notice to each and every tenure-holder and, afford them proper and reasonable opportunity of producing their evidence before passing any order, declaring any land as surplus in accordance with the provisions of Rule-10 of U.P. Imposition of Ceiling on Land Holdings Rules, 1961 (for short "the Rules, 1961"); the learned Additional Commissioner (Judicial) had ignored the most important fact that on the application, moved by the petitioners under Section 11(2) of the Act, 1960, the Prescribed Authority had passed order dated 14.09.1981, rejected the petitioners' application and, it was only in appeal that the claim of the petitioners was accepted by the IV Additional Judge and, vide order dated 16.11.1981 and the appeal was allowed and, the matter was remanded back with a direction to the Prescribed Authority for issuing separate notice to the petitioners, who were recorded as co-tenure-holders.
14. On behalf of the petitioners, the learned Senior Advocate has further submitted that it was in compliance of the said order passed in appeal that the Prescribed Authority issued separate notice under Section 10(2) of the Act, 1960 to the petitioners; once the Appellate Authority had directed the Prescribed Authority to issue notice and decide the case in accordance with law, the observation of the learned Additional Commissioner (Judicial) that since the proceedings in respect of the notice issued to father of the petitioners had attained finality upto the High Court, it was not open to the Prescribed Authority to give his finding regarding family settlement is wholly unjust and improper; the original memorandum of family settlement dated 09.11.1969, certified copies of plaint of Regular Suit Nos. 70 of 1970 and 33 of 1971 were filed by the petitioners before the Munsif, Hardoi and, the certified copy of the judgment and decrees dated 02.11.1970 and 09.08.1971 respectively in the said suits were brought on record by the petitioners; besides above, Khataunis, showing names of the petitioners, being recorded over the land, which was allotted to them in different lots in the family settlement/arrangement were also brought on record; the copy of the Registered Tabdilate, effecting the mutation in the names of the petitioners, on the basis of the said family settlement, was also filed.
15. On behalf of the petitioners, learned Senior Advocate has also submitted that Khataunis of 1386 to 1391 Fasali filed before the Prescribed Authority would show that the petitioners' names were recorded in the revenue record; names of the petitioners had already been recorded prior to issuance of notice under Section 10(2) of the Act, 1960 to their late father, Hari Shanker Tiwari; besides, bringing on record the aforesaid documentary evidence, the petitioners also produced oral evidence by examining Ram Krishna, Dirgaj Prasad, the then Lekhpal of Village Birauri, Zahir Ali, the scribe of the memorandum of family settlement, Wasit Husain, Sahdeo Prasad, Lekhpal and petitioner no. 1, Suresh Chandra Tiwari; all the witnesses had proved the fact that family settlement took place in the family of the petitioners; recording of the memorandum of family settlement and, delivery of possession to each of the petitioners over the lots allotted to them, affecting partition by metes and bounds; the State Authorities did not produce any documentary evidence, but only Lekhpal, Pratap Narain was examined and, his statement was recorded on the part of the State Authorities; Lekhpal, Pratap Narain, in his cross-examination, had admitted the actual and exclusive possession of each of the petitioners over the respective lots allotted to them.
16. On behalf of the petitioners, learned Senior Advocate has also submitted that the Prescribed Authority, on the basis of the documentary and oral evidence, found the family settlement genuine and, on that basis, each of the petitioners had entered in actual and exclusive possession over the lots of land allotted to each of them in the said family settlement; all these took place before the cut-of-date and, therefore, the Prescribed Authority could not ignore the family settlement. Learned Senior Advocate has further submitted that earlier proceedings, against late father of the petitioners, would not be binding on the petitioners inasmuch as they were not party in the said proceedings and, once the application under Section-11 of the Act, 1960 filed by the petitioners was allowed by the Appellate Authority. The Prescribed Authority was not barred to decide the objections of the petitioners in view of the orders passed in proceedings against, Late Hari Shanker Tiwari, late father of the petitioners, in respect of petitioners' land. The petitioners' objection was required to be decided independently of the previous proceedings. It has been submitted that the impugned order, passed by the respondent no. 1, learned Additional Commissioner, is wholly illegal and is liable to be set-aside.
17. On the other hand, Mr. J.P. Maurya, learned Additional Chief Standing Counsel, representing respondents-State, has submitted that the decree passed in the partition suit by the Munsif Magistrate, on the basis of alleged memorandum was after the due date i.e. 24.04.1971 and, therefore, the Appellate Authority has rightly observed that such family settlement was entered and obtained with the sole purpose of saving the land of the joint family during ceiling proceedings. It has been further submitted that the entire land is a joint Hindu family property. It has been further submitted that the State was not the party in the injunction suit filed by petitioner no.1 on 29.01.1971 against his father and, therefore, the decree dated 09.08.1971 is not binding on the State. It has been further stated that sole purpose of alleged family settlement and the decree was to save the land from ceiling proceedings.
18. Learned Additional Chief Standing Counsel has further submitted that once the family settlement was not believed by this Court, while passing the judgment and order dated 07.08.1978 in Writ Petition No.2236 of 1975, the Prescribed Authority could not have considered the said family settlement as genuine and, binding on the State Authorities. In respect of family settlement, when the proceedings had got completed upto High Court, in subsequent proceedings filed by the sons of respondent no. 3, Late Hari Shanker Tiwari, said family settlement could not have been believed and, the same was barred by constructive res judicata. It has been further submitted that that the IV Additional Judge, Hardoi in judgment and order dated 16.11.1981 had only directed the Prescribed Authority to decide objections of the petitioners in accordance with law, however, no findings on merit were given by the learned IV Additional Judge, Hardoi. It was the duty of the Prescribed Authority to consider the judgment and order dated 07.08.1978 passed by this Court In Writ Petition No. 2236 of 1975, filed by father of the petitioners, in its correct perspective and, it was not open to the Prescribed Authority to hold that the family settlement was genuine and bona fide otherwise the petitioners' names could not have been in the land holdings of their father i.e. respondent no. 3 (now dead). The findings recorded by the Prescribed Authority are wholly erroneous, illegal and against the judgment and order of this Court dated 07.08.1978 passed in Writ Petition No. 2236 of 1975.
19. Learned Additional Chief Standing Counsel has further submitted that the Appellate Authority i.e. the Additional Commissioner (Judicial) has passed the impugned order, taking into consideration the judgment and order passed by this Court on 07.08.1978 and, there is no illegality in the impugned order. It has been further submitted that the petitioners' names were not recorded in the revenue record on 24.01.1971, the due date and, therefore, the notice was issued only to their father, in whose name, the land was recorded and, therefore, the writ petition is liable to be dismissed.
20. The questions, which arise for consideration in this writ petition, are as under:-
I). whether, when the petitioners were not given notice by the Prescribed Authority and, notice was issued to their father only, the judgment and orders passed in proceedings against their father would operate as constructive res judicata against the petitioners?; and
ii). whether the petitioners were entitled to receive separate notice inasmuch as their names were recorded in the revenue record against the land in question in 1378 to 1380 Fasali (1971 to 1973), whereas the notice was issued to their father only on 16.03.1974?
21. The Act, 1960 is a confiscatory legislate and, therefore, its provisions are to be strictly construed and, no liberal interpretation should be given to the provisions of the Act,1960 inasmuch as the person would get divested of his land holding to the extent of surplus land declared under the provisions of the Act, 1960. Under Section 9 of the Act, 1960, the Prescribed Authority was required to issue general notice after enforcement of the Act and call upon every tenure holder, holding land in excess of the ceiling area applicable to him on the date of enforcement of this Act to submit within 30 days from the date of publication of notice a statement in respect of all his holding, giving particulars thereof. Under Section 10 of the Act, 1960 in case where a tenure holder did not submit a statement or submit an incomplete or incorrect statement, required to be submitted under Section 9 of the Act, 1960, the Prescribed Authority would, after making inquiry, prepare a statement containing particulars of the land and, thereupon would issue notice to every such tenure holder together with a copy of the statement prepared that why the statement be not taken as correct. Section-10 of the Act, 1960 is produced hereunder:-
"10. Notice to tenure-holders failing to submit a statement or submitting an incomplete or incorrect statement. - (1) In every case where a tenure-holder fails to submit a statement or submits an incomplete or incorrect statement, required to be submitted under Section 9, the Prescribed Authority shall, after making such enquiry as he may consider necessary either by himself or by any person subordinate to him, cause to be prepared a statement containing such particulars as may be prescribed. The statement shall in particular indicate the, land, if any, exempted [under Section 6] and the plot or plots proposed to be declared as surplus land.
(2) The Prescribed Authority shall thereupon cause to be served upon every such tenure-holder in such manner as may be prescribed, a notice together with a copy of the statement prepared under sub-section (1) calling upon him to show cause within a period specified in the notice, why the statement be not taken as correct. The period specified shall not be less than ten days from the date of service of the notice."
22. Thus, under Section 10 of the Act, 1960 notice is to be given to every tenure holder, who does not file the statement or files incorrect statement regarding his land holding, as prescribed under Section 9 of the Act, 1960. Section 11 of the Act, 1960 provides that where the statement submitted by a tenure holder, in pursuance of the notice issued under Section 9, is accepted by the Prescribed Authority or where the statement prepared by the Prescribed Authority under Section 10 of the Act, 1960 is not disputed within the specified period, the Prescribed Authority would, accordingly, determine the surplus land of the tenure holder. However, sub-section (2) of Section 11 of the Act, 1960 provides that on application made within 30 days from the date of the order passed, declaring surplus land of a tenure holder under sub-section (1), the tenure holder aggrieved by such order passed in his absence and on sufficient cause being shown for his absence would set-aside the order and allow such tenure holder to file objection against the statement prepared under Section 10 and the Prescribed Authority would proceed to decide the same in accordance with the provisions of Section 12 of the Act, 1960.
23. Section 12 of the Act, 1960 provides determination of the surplus land by the Prescribed Authority where an objection is filed under sub-section (2) of Section 10 or under sub-section (2) of Section 11 of the Act, 1960. The Prescribed Authority would, after affording the parties reasonable opportunity for producing evidence, decide the objections after recording the reasons of determining the surplus land. Thus, Sections 11 and 12 of the Act, 1960 read as under:-
11. Determination of surplus land where no objection is filed. - (1) Where the statement submitted by a tenure-holder in pursuance of the notice published under Section 9, is accepted by the Prescribed Authority or where the statement prepared by the Prescribed Authority under Section 10 is not disputed within the specified period, the Prescribed Authority shall accordingly, determine the surplus land of the tenure-holder.
(2) The Prescribed Authority shall, on application made within thirty days from the date of the order under sub-section (1) by a tenure-holder aggrieved by such order passed in his absence and on sufficient cause being shown for his absence set aside the order and allow such tenure-holder to file objection against the statement prepared under Section 10 and proceed to decide the same in accordance with the provisions of Section 12.
(3) Subject to the provisions of sub-section (2) and Section 13, the order of the Prescribed Authority shall be final and conclusive and be not questioned in any Court of law.
12. Determination of the surplus land by the Prescribed Authority where an objection is filed. - (1) Where an objection has been filed under sub-section (2) of Section 10 or under sub-section (2) of Section 11, or because of any appellate order under Section 13, the Prescribed Authority shall, after affording the parties reasonable opportunity of being heard and of producing evidence, decide the objections after recording his reasons, and determine the surplus land.
(2) Subject to any appellate order under Section 13, the order of the Prescribed Authority under sub-section (1) shall be final and conclusive and be not questioned in any Court of law.
[12A. 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.]
24. Thus from the reading of Sections 9 to 12 of the Act, 1960, it is evident that every tenure holder is required to be issued notice for determining surplus land. In case the order is passed in his absence, declaring tenure holder's land as surplus, he has an opportunity to file objection under Section 11(2) of the Act, 1960. The Prescribed Authority is required to adjudicate the objections, giving full opportunity of hearing and opportunity of leading evidence by the tenure holder. There cannot be any dispute that the petitioners' names were recorded in the revenue record when notice was issued to their father, therefore, the petitioners were required to be issued notice under Section 10(2) of the Act, 1960 separately than their father. The petitioners were not party in the earlier proceedings instituted against their father and, therefore, the judgment and order passed against their father would not be binding upon them and would not operate res judicata in subsequent proceedings initiated by the petitioners by filing objections under Section 11(2) of the Act, 1960.
25. The Supreme Court had an occasion to consider the nature, object, effect and value of the family arrangement, if there was no fraud in arriving at the family settlement/arrangement. In (1976) 3 SCC 119 (Kale and others Vs. Deputy Director of Consolidation and others), it has been held that by virtue of a family settlement/arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes settle and resolve their conflicting claims or disputed title once for all in order to buy peace of mind and, bring about complete harmony and goodwill in the family. Family settlement/arrangements are enforceable, if honestly made. The object of the family arrangement is to protect the family from long-drawn litigation and, to avoid hatred and bad blood between the various members of the family. Courts lean in favour of family arrangements and, technical or trivial grounds are to be overlooked. It has also been held that memorandum prepared after the family arrangement for the purpose of record of for information of the Court for making necessary mutation is not compulsorily required to be registered. Paragraphs 10 and 20 of the said judgment, which are relevant, read as under:-
"10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
20. A Full Bench of the Allahabad High Court in Ramgopal v. Tulshi Ram [AIR 1928 All 641, 649 : 26 ALJ 952] has also taken the view that a family arrangement could be oral and if it is followed by a petition in court containing a reference to the arrangement and if the purpose was merely to inform the court regarding the arrangement, no registration was necessary. In this connection the Full Bench adumbrated the following propositions in answering the reference:
"We would, therefore, return the reference with a statement of the following general propositions:
With reference to the first question:
(1) A family arrangement can be made orally.
(2) If made orally, there being no document, no question of registration arises.
With reference to the second question:
(3) If though it could have been made orally, it was in fact reduced to the form of a "document", registration (when the value is Rs 100 and upwards) is necessary.
(4) Whether the terms have been ''reduced to the form of a document' is a question of fact in each case to be determined upon a consideration of the nature and phraseology of the writing and the circumstances in which and the purpose with which it was written.
(5) If the terms were not ''reduced to the form of a document', registration was not necessary (even though the value is Rs 100 or upwards); and while the writing cannot be used as a piece of evidence for what it may be worth, e.g. as corroborative of other evidence or as an admission of the transaction or as showing or explaining conduct.
(6) If the terms were ''reduced to the form of a document' and, though the value was Rs 100 or upwards, it was not registered, the absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement embodied in the document."
26. Section 11(2) of the Act, 1960 permits tenure holders to file objections. Such tenure holders may be those who have been served with a notice and the statement under Section 10(2) of the Act, 1960 and include those who have not been given or served with any such notice or statement. Section 11(2) of the Act, 1960 embraces persons who claim to be tenure holders and who having come to know of the declaration of their land as surplus land of some other person, wish to challenge that declaration or notification thereof in the gezette under Section 14 of the Act, 1960. Thus, tenure holders are entitled to file an objection under Section 11(2) of the Act, 1960 and get an adjudication thereon, as required by Section 12 of the Act, 1969.
27. This Court, in 1978 All. L.J. 717 (Dilbagh Singh Vs. The State of U.P. and another), while dealing with the scheme of the Act, 1960, as provided under Section 9, 10, 11, 12, 13 and 14 of the Act, 1960, in paragraphs 23, 24 and 25, has held as under:-
" 23. Sections 11(2) and 11(3) of the Act provide--
"(2) The Prescribed Authority shall, on application made within thirty days from the date of the order under sub-sec. (1) by a tenure-holder aggrieved by such order passed in his absence and on sufficient cause being shown for his absence set aside the order and allow such tenure-holder to file objection against the statement prepared under S. 10 and proceed to decide the same in accordance with the provisions of S. 12.
(3) Subject to the provisions of sub-sec. (2) and S. 13, the order of the Prescribed Authority shall be final and conclusive and be not questioned in any court of law."
24. Dealing with sub-sec. (2) the Full Bench in para. 27 held that there appears to be no valid reason why the benefit of S. 11(2) may not be available to every tenure-holder and why S. 11(2) should be regarded as limited to those tenure-holders only who have been served with a notice under S. 10(2). It went on to hold (at p. 566 of All LJ):--
"In my opinion, the words ''a tenure-holder aggrieved by such order' embrace even those tenure-holders who have not been served with a notice under S. 10(2) and their scope is in no manner curtailed by the words ''passed in his absence and on sufficient cause being shown for his absence'. A tenure-holder who has not been served with a notice and has also not been made a party would be treated as having been absent and the fact that he was not a party would itself sufficiently account for his absence. Section 11(2) should not, to my mind, be interpreted as withholding its benefit from a person who has committed no default at all while extending it to a person who has committed a default but furnishes sufficient cause for it"
25. It is thus evident that S. 11(2) permits tenure-holders to file objections. Such tenure-holders may be those who have been served with a notice and the statement under S. 10(2). It also includes tenure-holders who have not been given or served with any such notice or statement. The construction put by the Full Bench on S. 11(2) embraces persons who claim to be tenure-holders and who having come to know of the declaration of their land as surplus land of some other person, wish to challenge that declaration or notification thereof in the gazette under S. 14. They are all entitled to file an objection under S. 11(2) and get an adjudication thereon as required by S. 12.
28. The Full Bench of this Court, in 1979 All. L.J. 1174 (Shantanu Kumar Vs. State of U.P. and others) has held that where a notice of the proceedings for declaration of surplus land of a tenure holder was not served on transferee from the tenure holder and the land transferred was included in C.L.H. Form 3 and transferee's name was recorded in the revenue papers over the land transferred, the proceedings were without jurisdiction. In such a case, the transferee could have filed objection under Section 11(2) of the Act, 1960. It was held that mere a fact that the transferee could not file objection under Section 11 of the Act, 1960 would not validate dead proceedings against him.
29. Rule-8 of the Rules, 1961 provides that notice shall be served upon every tenure holder to show-cause within a period of 15 days from the date of service of notice why the statement prepared by the Prescribed Authority under sub-Section (1) of Section 10 of the Act, 1960 be not taken as correct . Proviso to said rule reads as under:-
"Provided that where the statement in CLH Form 3 also includes land ostensibly held in the name of any other person, the Prescribed Authority shall caused to be served upon such other person a notice in C.L.H. Form 4 together with a copy of the statement in CLH Form 3 calling upon him to show cause within a period of fifteen days from the date of service of the notice why the statement be not taken as correct...........".
30. It was held that service of such 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 tenure holder could be declared as surplus land in the hands of the other person. If no notice is served, the proceedings against such tenure holder would result in nullity against the such tenure holder. Paragraphs 8 to 12 of Shantanu Kumar Vs. State of U.P. and others (supra) read as under:-
8. 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.'
9. The petitioner claimed under a sale deed. It is not disputed that the petitioner's I name was recorded in the revenue papers lover 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.
10. 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. State of U.P. (1978 All LJ 717). 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.
11. 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.
12. It was also urged that the petitioner's father took all possible pleas and the petitioner has no bona fide case. The petitioner has alleged that the sale deed in his favour was bona fide and for adequate consideration. It was not a Benami transaction and was not for the immediate or deferred benefit of the tenure-holder or other members of his family. No such plea was taken by the petitioner's father. If the petitioner is successful in establishing this plea his land may be liable to be exempted. The proviso to sub-section (6) of Section 5 exempts land covered by--
"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-holders or other members of his family."
31. Admittedly, the petitioners' names were recorded on the date when the notice was issued. Rule 8 of the Rules, 1961 mandates issuance of notice to every such tenure holder and no notice was issued to the petitioners by the Prescribed Authority and notice was issued only to their father on 16.03.1974, therefore, the proceedings, culminated in respect of notice issued to the father of the petitioners, would not bind the petitioners. The Prescribed Authority, on remand from the Appellate Authority, had adjudicated the objections filed by the petitioners after taking into consideration the evidence, oral and documentary, and found that on the basis of the memorandum of family settlement of 1969, the petitioners' names got mutated in the revenue record and, they were put in possession of respective shares. Such a finding of the Prescribed Authority cannot be said to be incorrect or illegal.
32. In view thereof, the writ petition is allowed. The impugned order dated 18.10.1994 passed by the Additional Commissioner, Lucknow Division (Judicial), copy of which is contained in Annexure-1 to the petition, is quashed.
Order Date:- 21st Feb., 2022 MVS/-