JUDGMENT V.C. Misra, J.
1. Sri V.K.S. Chaudhary learned Senior Advocate assisted by Sri Kunal Ravi Singh and Sri R.S. Maurya, Advocates on behalf of the petitioner and the learned standing Counsel on behalf of the respondents are present.
2. Both the above said writ petitions being identical in nature with common reliefs and grounds against the same impugned orders dated 30.4.1992 and 12.8.1992 are being decided together by this Judgment. Both the writ petitions have been filed from the orders of Prescribed Authority and Commissioner in proceeding under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) by which all the four brothers have been treated as one tenure holder and their agricultural holdings have been clubbed together and declared surplus being beyond the ceiling limit.
3. The facts of the case in brief are that one Sri Brij Narain Verma son of Jai Narain along with 5 sons; (1) Govind Narain (2) Deep Narain (3) Onkar Narain (4) Aditya Narain and (5) Alok Narain were the owners of their respective shares in plots 676 and 678 both abadi and plots 281, 377 and 434 as groves by way of succession and were in physical possession of the same. Sri Brij Narain Verma and his 5 sons entered into family settlement and partition in 1963 which was reduced in writing on 13.1.1968. The said plots of land had vested in the aforesaid persons. On 19.8.1974 a notice under Section 10(2) of the Act was issued to Sri Brij Narain Verma treating plot No. 281/1 as un-irrigated and plot No. 280 as grove. Vide notice under Section 10(2) of the Act objections were filed by Sri Brij Narain Verma that all his five sons were born before the date of vesting i.e. 1.7.1952 and had separate and distinct share with physical possession over them and in Khatauni 1380 Fasli their names were entered separately against their respective shares in the revenue records in accordance with law. Vide order dated 10.1.1975, the Prescribed Authority declared 87.52 acres of land as surplus ignoring the family settlement. An Appeal No. 314 of 1975 was filed by Sri Brij Narain Verma and Appeal No. 310 of 1975 was filed by Sri Govind Narain. The appellate authority vide order dated 26.5.1975 allowed the ceiling appeals holding that five sons of Sri Brij Narain Verma were born before the date of vesting and had equal and distinct shares as their family settlement had been acted upon and they were the tenure holders of respective plots allotted to each one of them. It was further held that plots 676 and 678 were abadi and plots 281, 377 and 434 were groves. Being aggrieved, the State of U.P. filed a Writ Petition No. 157 of 1976 State of U.P. v. Brij Narain Verma which was decided on 13.2.1978 holding that all five sons of Sri Brij Narain Verma were born before the date of vesting and had equal shares with their father and that plots 676 and 678 were abadi and exempted from ceiling. It was also observed that the family settlement was immaterial for decision of ceiling as all the land was ancestral sir and khudkasht land and all sons of Brij Narain were born before date of vesting as such they became co-parcener along with Brij Narain. The findings of the appellate authority were confirmed by the High Court except regarding grove plots 281, 377 and 434 and the matter was remanded back to the appellate authority to decide afresh in respect with the said plots after regard being had to the definition of grove land under the U.P. Tenancy Act, 1939. On 1.12.1978 and 9.3.1979 Sri Govind Narain Verma and Sri Aditya Narain Verma sons of Sri Brij Narain Verma sold their entire respective shares in the land in question. The other brother Alok Narain Verma died in May 1979 leaving behind a will bequeathing his share half of it each to Sri Govind Narain Verma and Aditya Narain Verma. On the matter being sent back on remand, the appellate authority vide its Judgment dated 21.2.1984 held that plots 377 and 434 were grove but not plot No. 281 and remanded the matter back to the Prescribed Authority to determine the surplus land treating all the appellants as 1/6th share in the entire holding after issuing fresh notices to the appellants in the light of the findings recorded by it and as upheld by the High Court. Accordingly, fresh notices were issued by the Prescribed Authority to Sri Brij Narain Verma and his five sons separately however, all the cases were clubbed together.
4. During the pendency of the proceedings Sri Brij Narain Verma died on 26.7.1991. Vide impugned order dated 30.4.1992 (Annexure-7 to the writ petition) the Prescribed Authority took up the case of the four remaining sons and treating the entire area of the land as joint and common held total 68.57 acres a surplus land in the hands of the remaining four sons. Being aggrieved, the petitioner filed an appeal before the Commissioner which was dismissed vide order dated 12.8.1992, and being aggrieved Sri Govind Narain Verma-petitioner has filed the present writ petition and other brothers filed their separate writ petition challenging the orders dated 30.4.1992 and 12.8.1992 passed by the Prescribed Authority and the Commissioner in appeal respectively on various grounds raised in the writ petition.
5. Learned Counsel for the petitioner also urged that the fresh notices, if any, could be given to the sons of Sri Brij Narain Verma for determination of surplus land under the Ceiling Act under the proviso to Rule 8 of the U.P. Imposition of Ceiling On Land Holdings Rules framed under the Act as their names had already been recorded before the relevant date in the records in pursuance of the family settlement and since notice was sent to Sri Brij Narain Verma and was the only tenure holder proceeded against the surplus land with him over and above his ceiling limit had to be only determined as on 8.6.1973 on the basis that he had 1/6th share only in the holding. It has been further submitted that under Section 10(2) of the Act notice was issued and in the opinion of Prescribed Authority there was some surplus land beyond the ceiling limit with the tenure holder Sri Brij Narain Verma who had only 1/6th share (vide Section 10(1) of the Act) and in view of the findings recorded earlier nothing was done in the matter after the Judgment of the appellate authority dated 21.2.1984 and thus, there was no surplus land.
6. Sri VKS Chaudhary learned senior Counsel has further submitted that the issuance of the fresh notices to the petitioner on 25.6.1987 was barred by limitation as notice was to be issued within two years under the Amended Ceiling Act but it had been issued after three years from the date of the order passed by the appellate authority dated 21.2.1984. The notice sent to Sri Brij Narain Verma could be treated to be in continuation of the proceedings drawn only against him in 1973 and not against the petitioners being separate tenure holders. Under Section 3(17) of the Act and also as held by the appellate authority and the High Court, all sons being major on 8.6.1973 and having been born before the date of vesting, i.e., 1.7.1952 were separate and independent tenure holders in their own right and the surplus land, if any, with each of them had to be separately determined as on 8.6.1973 though fresh notices were given to the sons (petitioners) treating Sri Brij Narain Verma as the main tenure holder proceeded against mentioned in the supplement of his holdings and the same notice with Sri Brij Narain Verma as the tenure holder was repeated to his sons (petitioners) in terms of Rule 8 of the Rules as if they were not independent and separate tenure holders and were thus not proceeded against, more so no separate cases or proceedings regarding ceiling and surplus land have been initiated or were pending against them as independent tenure holders. After the death of Sri Brij Narain Verma on 26.7.1991 his legal representatives/sons were brought on record for determination of the ceiling area and surplus land only of Sri Brij Narain Verma as tenure holder on the relevant date, i.e., 8.6.1973 had to be determined relating to him only. It has also been urged by Sri Chaudhary learned senior Counsel for the petitioner that the orders passed by the Prescribed Authority dated 30.4.1992 (Annexure-7 to the writ petition) and of the appellate authority dated 12.8.1992 (Annexure-9 to the writ petition) were in gross violation of the order of the appellate authority dated 26.5.1975 (Annexure-3 to the writ petition) and of appellate authority on remand dated 21.2.1984 (Annexure-5 to the writ petition).
7. Learned Counsel for the petitioner has relied upon the decision in the case of Kale and Ors. v. Deputy Director of Consolidation and Ors. in support of his case referred to in respect with the family settlement made in the year 1963 between Sri Brij Narain Verma and his sons that the family settlement memorandum dated 13.1.968 which did not require registration under law was prepared for making relevant entries in the revenue record had been held to be authentic and valid by the appellate authority vide its order dated 26.5.1975. Since the High Court did not upset these findings and merely opined 'that the family settlement was proved or required to be registered was immaterial as on the finding of the Court below the land was ancestral sir and khudkasht in which Sri Brij Narain Verma (father) had only 1/6th share with the sons having remaining 5/6th share' this observation did not authorize the Prescribed Authority to go against findings neither upset or set aside the earlier findings by the appellate authority. The Prescribed Authority had also no jurisdiction to scrutinize or question any transaction that occurred before 24.1.1971, the date mentioned in Sections 5(1), 5(6) and 5(7) of the Act on a resolution passed by U.P. Legislative Assembly to make a law reducing the ceiling, as the family settlement and memorandum was reduced into writing on 13.1.1968 before that date (24.1.1971). In this respect reference is made to 1994 Supp. III SCC 702 (Para-2) Ramadhar v. Prescribed Authority and 2007 (103) RD 102 (Para-8) Indra Pal Singh v. Prescribed Authority. It has further been submitted that family settlement is not a transfer. Only transfers made after 24.1.1971 by tenure holder could be ignored under Section 5(6) of the Act, if conditions therein are satisfied the explanation there to applies only in respect with transfer. A reference is made to 1978 ALR 528 (at page 533) Babu Ram v. First Additional District Judge. The Prescribed Authority while dealing with the sale deeds regarding village Manni Kheda made by the sons i.e. Govind Narain and Aditya Narain of their plots which fell in their share in family settlement and were never made by Brij Narain Verma could not be taken into consideration while determining the surplus land with Brij Narain since transfer by tenure holder proceeded against could be considered under Section 5(6) of the Act. A reference is made to 1981 ALJ 855 (pages 3 to 5) Smt. Rajkumari Gupta v. State of U.P. and 1979 AWC 86 (para 7) Smt. Bhagwan Dei v. State of U.P.
8. It is also argued that the Prescribed Authority proceeded on false supposition that the pending ceiling proceedings are against Govind Narain and Aditya Narain since no notice was sent to them independently treating them as tenure holder to be proceeded against nor any surplus land was proposed to be taken from them, the only proceedings pending were against Brij Narain. Notices to the sons were given under Proviso to Rule 8 of the Rules as their names had already entered in the revenue records independently in pursuance of the family settlement long before the relevant date in the holdings notified as those of Brij Narain Verma and since they were not the tenure holders whose ceiling and surplus land was being determined being third parties consideration of any transfer of land by sale deed by them was irrelevant and was not called for and their independent 1/6th share in the family being within the ceiling limits, the holding or part thereof could be transferred by them and Section 5(8) does not come into play as there were no proceedings pending against them under Section 5 of the Act.
9. In any case, the matter was not remanded for the said purpose. The High Court remanded the case only for determination as to whether plots 281, 377 and 434 were grove or not. The appellate authority held plots 377 and 434 were groves and not plot No. 281, the Prescribed Authority had no jurisdiction to determine any other point which had been sent to him only for the purpose of calculation of surplus land, if any, with Brij Narain as on 8.6.1973 and it could not deal with the question as to whether the 23 plots mentioned in his order were grove contrary to the findings earlier recorded, holding that 23 plots were not grove and also holding that plot No. 280 was not grove and also that the plot No. 281 of village Manoharpur was irrigated land and failed to consider the statement of Lekhpal (Shiv Shanker) PW. 2 himself (Annexure-RA-2) that the said plot 281 is flooded by river Gagan in every rainy season and is therefore not capable to bear two crops. The impugned order of the Prescribed Authority is in the teeth of the findings earlier recorded and is without jurisdiction.
10. Even the appellate authority decided the said questions in a cursory manner without considering the matter in its right prospective and the totality of the case.
11. Learned standing Counsel in respect with the period of limitation has submitted that the petitioners have not filed any objection before the Court below or the authorities nor any ground was taken at any stage up to the High Court. The ground is being raised for the first time at the stage of arguments, more so, there is no time limit for issuing notice in the present facts and circumstances of the case since fresh notice and all other proceedings were initiated on the basis of notice in 1973 and thus any fresh notice that too on the directions issued by the Court are not barred by period of limitation and have been validly issued in accordance with law and the land of the petitioners has been rightly treated as joint property which after clubbing is found to be in excess of the ceiling limit under the Act.
12. After hearing the learned Counsel for the parties at length and perusal of the record, I find that in the present case the basic question for deciding the matter in issue is, firstly, who is the tenure holder proceeded against and secondly, the date on which the ceiling i.e. surplus land is to be calculated. While dealing with the first question I am of the view that it is Sri Brij Narain against whom the proceedings were started vide notice dated 19.8.1974 under Section 10(2) of the Act, and he is the only tenure holder proceeded against but in the statement of his holdings his ancestral sir and khudkasht land in which his five sons having equal share with him by birth under law were included. In case the proceedings are drawn under Section 10 of the Act then the date of the application of the Act would be 8.6.1973 since as per the memorandum of family settlement prepared on 13.1.1968 the names of the sons had already been mutated in revenue record in 1380 Fasli. Section 29 of the Act comes into play when certain land comes to the tenure holder by transfer, succession or otherwise then the date of application of Ceiling Act is the date on which such transfer took place. If the proceedings are initiated under Section 29 of the Act then the date 8.6.1973 will not be the relevant date. Once the matter has been finally settled by the law Courts till the stage of High Court where it has been held that apart from the family settlement allegedly held in 1963 all the sons of Brij Narain had equal 1/6th separate and distinct share in the ancestral property being sir and khudkasht land the Prescribed Authority could not club the same treating it as undivided land between the co-parceners and accordingly declared surplus land under the Ceiling Act. More so, the notices issued to Brij Narain under Section 10(2) of the Act were only for determining the excess ceiling land with Brij Narain and cannot be taken into account as notices issued to the other co-parceners sons of Brij Narain were under the proviso of Rule 8 of the Rules. Even on the fresh notice dated 25.6.1987 issued to sons of Brij Narain can be taken into account in respect with each distinct person independently but cannot be relegated back to 1974. The calculation cannot be made by clubbing all the separate holdings of the sons of Brij Narain after the date of mutation of their names in revenue record. On the question of fresh notices being barred by limitation, I find that the notices have not been sent beyond three years. Since it is admitted by the petitioners that the notices could be issued within two years which can be counted from the date order and Judgment of the appellate authority dated 21.2.1984 the notices were issued on 25.6.1987 after communication of the said order and time taken in the Departmental proceedings would be well within time and since there had been no specific objections or grounds raised by the petitioners before the Court below, the respondents-authority had no opportunity of explaining the same and thus the question is decided against the petitioners. I also find that the appellate authority following track of the Prescribed Authority wrongly passed the order dated 12.8.1992 while dismissing the appeal of the petitioners.
13. Under the above said facts and circumstances of the case, I find that the Prescribed Authority has wrongly and illegally proceeded to declare the excess land beyond the ceiling limits prescribed under the Ceiling Act by clubbing the land holdings of all the sons of Brij Narian with the land of Brij Narain and treating it to be as one holding. The impugned orders of the appellate authority dated 12.8.1992 (Annexure-9 to the writ petition) and that of the Prescribed Authority dated 30.4.1992 (Annexure-7 to the writ petition) are hereby quashed. The writ petition is allowed. No order as to costs.