Allahabad High Court
Paras Nath And 4 Ors. vs State Of U.P. Thru Secy. Revenue And 2 ... on 13 May, 2024
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:36536 Court No. - 17 Case :- WRIT - C No. - 3000007 of 2003 Petitioner :- Paras Nath And 4 Ors. Respondent :- State Of U.P. Thru Secy. Revenue And 2 Ors. Counsel for Petitioner :- Vashu Deo Mishra,Vashu Deo Mishra Counsel for Respondent :- C.S.C. Hon'ble Manish Mathur,J.
1. Rejoinder affidavit filed today in Court is taken on record.
2. Heard Mr. Vashu Deo Mishra, learned counsel for petitioners and Mr. G. K. Pathak, learned State Counsel appearing for opposite parties.
3. Petition has been filed challenging order dated 28.06.2002 passed under Section 10(2) of U. P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act of 1960) whereby land has been declared surplus beyond the ceiling. Also under challenge is order dated 29.11.2002 passed under Section 13 of the Act rejecting petitioners' appeal.
4. It has been submitted that the property initially belonged to one Mangal who was the grand father of petitioners. It is submitted that a partition suit was instituted between family members as Regular Suit No.122 of 1955 which was decided vide judgment and order dated 10.05.1955 whereby all the male family members were provided a portion in the property. The said partition was effected in the revenue records on 20.12.1971 whereafter notice under Section 10 was issued on 04.04.1996 only to Bhagwandin son of original tenure holder Mangal and the father of petitioners.
5. It has been submitted that notice in itself was defective since it was required to be issued to all the tenure holders and not only to the said Bhagwandin particularly when the petitioners as grand sons of Mangal were already recorded as tenure holders of the property in question not only in pursuance of judgment rendered in 1955 but also independently on the basis of sale-deed 15.04.1963. It is submitted that the Prescribed Authority has also erred in not providing ample opportunity of hearing to petitioners inasmuch as except for documentary evidence, no oral evidence was permitted. Learned counsel has also adverted to the fact that provisions of Section 4-A of the Act have also not been followed thereby rendering the order vitiated.
6. He has also placed reliance on provisions of Section 5 (3) and 5(7) of the Act of 1960 to submit that additional land was required to be allocated in view of the fact that family members exceeded five.
7. He has placed reliance on the following judgments;
(i) in the cases of Suresh Chandra Tewari & Ors. versus State of U.P. & Ors. reported in 2022(40) LCD 1066, (ii) Ram Chandra versus U.P. State through Collector, Hardoi & Ors. reported in 2020 (38) LCD 2032, and (iii) Rajendra Prasad Tewari versus State of U.P. & Ors. reported in 2022 (40) LCD 1836.
8. Learned State counsel has refuted submissions advanced by learned counsel for petitioners with the submission that as would be evident from the order impugned that since natural succession under Section 171 of U.P. Zamindari Abolition & Land Reforms Act 1950 was not adhered to, notice was rightly not issued to petitioners. It is further submitted that there is concurrent finding of fact of the authorities which does not require any interference in writ proceedings. He has also adverted to the fact that since admittedly only the petitioner no.1(Paras Nath) had attained majority, his holding had already been excluded from the notice issued under Section 10(2) of the Act while holding of the wife of Bhagwandin and those of his minor children was included which was perfectly in consonance with Section 3(17) of the Act of 1960. It has further been submitted that the authorities have rightly included the holding since alleged partition was effected only on 20.12.1971 which is after the cut off date of 24.01.1971.
9. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is undisputed that the property initially belonged to one Mangal whose son was Bhagwandin and the petitioners herein are the grand sons of the said Mangal. Petitioners had taken a specific objection under Section 10(2) of the Act that a partition has been effected between the family members vide judgment and order dated 10.05.1955 in Regular Suit No.122 of 1955 which was implemented on 20.12.1971. The petitioners had also led their claim on the basis of will-deed dated 15.04.1963 said to have been executed by Mangal in their favour.
10. It is also evident that notice under Section 10(2) of the Act was issued only to Bhagwandin on 04.04.1996.
11. Examination of the aforesaid undisputed facts clearly indicates that petitioners were recorded as tenure holders over properties in question as on 20.12.1971 in pursuance of a decree of partition effected by means of PA-11 on 10.05.1955. It is thus evident that as on the date of issuance of notice under Section 10 on 04.04.1996, petitioners were recorded tenure holders over the property in question.
12. The aspect of notice to tenure holders in terms of Act of 1960 and the Rules of 1961 are required therefore to be examined. Section 10 of the Act contemplates issuance of notice to every tenure holder together with a copy of statement prepared calling him to show cause why the statement under Section 10(1) be not be taken as correct. Rule 8 of the Rules also prescribes that once tenure holder has failed to submit statement in CLH form 2 or has submitted incomplete or incorrect statement, a notice in CLH form 4 together with a copy of statement in CLH form 3 shall be issued and served to all the tenure holders including those who hold land ostensibly in the name of any other person.
13. Section 3(17) defines a tenure holder as a person who is a holder of a holding while a 'holding' has been defined under Section 3(9) of the Act to mean land held by a person as a bhumidhar, sirdar or asami or as a tenant or a Government lessee etc.
14. It is thus evident from a conjoint reading of Section 10 of the Act and Rule 8 of Rules that notice under Section 10 of the Act is compulsorily required to be served upon all the tenure holders whose holding is considered to be in surplus of the ceiling area.
15. Upon applicability of aforesaid provisions in the present facts and circumstances of the case, it is quite evident that the petitioners were clearly recorded tenure holders over the property in question as on the date of issuance of notice under Section 10 and were therefore entitled to be issued a separate notice under Section 10 of the Act. Such a course of proceedings having not been followed by opposite parties, renders the proceedings vitiated.
16. In view of aforesaid, order dated 28.06.2002 passed under Section 10(2) of the Act as well as appellate order dated 29.11.2002 are hereby set aside and the matter is remanded to the prescribed authority for issuance of a separate fresh notice to the petitioners under Section 10 of the Act and for re-determination in pursuance thereof after considering the objections filed by them.
17. Consequently, petition succeeds and is allowed. Parties to bear their own costs.
Order Date :- 13.5.2024 Subodh/-