Court No. - 49
Reserved on 06.05.2019 Delivered on 30.05.2019
Case :- WRIT - C No. - 23904 of 2012 Petitioner :- Santosh Kumar And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Anjani Kumar Mishra,R.K. Mishra,Vishnu Pratap Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the parties and perused the record.
2. The present petition arises out of an order passed in Misc. Case No.21 invoking the power under sub-section 2 of Section 11 of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as 'Ceiling Act'). Under the order impugned in this petition dated 22nd November, 2011 passed in Appeal No.- 48 of 2002 filed at the instance of respondent-State, the appellate authority has set aside the order dated 15th September, 1989, whereby objections of the petitioners were entertained in respect of the land declared as surplus by the prescribed authority vide order vide order dated 18th December, 1974.
3. Briefly stated the facts of the case are that the original tenure holder of the land in question was Bhagwati Pal who had a number of agricultural plots recorded as his bhumidhari. He executed a sale deed in favour of the petitioners on 8th May, 1972 in respect of an area of land measured as 2 bighas 1 biswa and 3 dhurs, thus, only a part of the holding in plot No. 6 was transferred in the name of the petitioners by means of a conveyance i.e. instrument of sale. In the proceedings held under U.P. Land Revenue Act, 1901 Niab Tehsildar, Basti vide order dated 6th September, 1974 in purported exercise of power under Section 34 of the U.P. Land Revenue Act directed for mutation in the name of the petitioners and this is how the petitioners have came to be recorded. However, it transpires from the record that pursuant to the notice issued to the original tenure holder under Section 10 (2) of the Ceiling Act, the original tenure holder did file his objections on 25th July, 1974 but did not mention about the sale deed that he had executed in favour of a part of holding subjected to the ceiling proceedings, in favour of the present petitioners and on the contrary he showed his willingness to part away with the holding of the plot No.6 as a consequence of the land being declared surplus under the Ceiling Act and the orders were thus, passed on 18th December, 1974 by the prescribed authority.
4. It is worth noticing at this stage also that when question arose taking the possession of the surplus land of the original tenure holder, a report was submitted by the Tehsildar that the name of the petitioners was already recorded. However, the prescribed authority in spite of the aforesaid report did not issue notice to the petitioners though ultimately the delivery of the possession was to have from the petitioners only and therefore, at that stage of ceiling proceedings there was virtually no physical possession taken of the land from the petitioners. It is in the year 1998 when Pradhan of the village stated that the plot No.6 was already declared surplus under the ceiling proceeding and was going to be subject matter of allotment that the petitioners immediately verified from the revenue records and moved an application on 29th August, 1988 before the prescribed authority that they having not been served with any notice, their objections deserves to be allowed under Section 11(2) of the Ceiling Act. The said application of the petitioners, however, was rejected on the ground that sale deed was of the year 1972 whereas the ceiling law came into effect only on 24th January, 1971 and, therefore, the sale deed was void and liable to be ignored. The view was taken in the order that there was already a lease executed in respect of the land in favour of Ramjeet and Barsati and the said lease was ultimately cancelled by the Commissioner vide order dated 7th March, 1981, therefore, there was no question for the petitioners not having the knowledge of the proceedings. Although the aforesaid order was passed after hearing the parties on 29th March, 1989 but the petitioners moved a recall application in respect of the said order on the ground that the Court wrongly rejected the application in total ignorance of the judgment of this Court reported 1979 A.L.J. 646, 1981 A.L.J. 609, 1980 A.C.J. 451. The prescribed authority considered the above legal aspect involved in the matter in the light of the judgments referred to hereinabove and recalled the order dated 29th July, 1989 restoring the objection of the petitioner under Section 11 (2) and fixing the date on 29th September, 1989 on the objections vide order dated 15th September, 1989.
5. The State preferred an appeal against the order passed by the prescribed authority on the ground that there was delay of 14 years in filing the application of the order dated 29th August, 1989 and there being no prayer for the condonation of the delay under Section 5 of the Limitation Act, 1963 the order dated 29th July, 1989 should not have been recalled.
6. Learned counsel for the petitioners has argued before this Court that in view of the provision as contained under Section 11(2) of the Ceiling Act, the petitioner was entitled to a notice inasmuch as a right of hearing ought to have been accorded to the petitioner in view of the provision as contained under Section 12- A(d) because the vendor himself concealed material fact of the execution of the sale deed in favour of the petitioner and more especially under the circumstances when he had more surplus land even if the land in question is taken out ot the ceiling.
7. Per contra, learned counsel for the State-respondent that there has been no application under Section 5 of the Indian Limitation Act, 1963, a highly time barred restoration application in respect of the order dated 11th December, 1974/ 19th November, 1975 was not maintainable. It is further argued that once the prescribed authority had taken decision on merit on the application/ objection under Section 11(2) filed by the petitioners, there was not occasion for it to recall the said order merely by referring to statements in judgment of this Court certain authorities.
8. Having heard learned counsel for the parties and having perused the record, what is very important to consider is whether there was any prayer for condonation of delay in preferring time barred objection/ recall of the order dated 18th December, 1974 by the petitioners or not and the second is whether rejection of the application of the petitioners under Section 11(2) would deprive them of their valuable rights prescribed for under Section 12-A(d) of the Ceiling Act and in such a situation would there be any miscarriage of justice.
9. So far as the first aspect of the matter is concerned, vide paragraph 9 of the misc. application/ objection filed by the petitioners under Section 11(2), it has been clearly stated that in the event the objection is found to be beyond limitation then the benefit of Section 5 of Limitation Act should be given and then in the prayer clause it has been stated that the application should be granted and the order dated 18th December, 1974 in respect of plot-6, area 2 bighas 1 biswa and 3 dhurs be set aside and the land in question of the petitioners (in respect of the said plot) should be taken out of the ceiling proceedings.
10. While considering the above objection of the petitioners the prescribed authority in its order dated 29th July, 1989 though referred to the objection as being belatedly filed after 14 years and there being request for condonation of delay rejected the application on merits only on the ground that the course open for the petitioner was to prefer an appeal and not objection under Section 11(2) and then again at the same time held that objection being time barred was liable to be rejected. The petitioners filed misc. application for recall of the said order on 2nd August, 1989 stating that the Court was not justified in rejecting the application/ objection under Section 11(2) on the ground of availability of the remedy of appeal in ignorance of the legal position settled by series of the judgments and in the background of the fact that the petitioners' name continued to be recorded in the revenue record. It was further pleaded that since they had no notice of the proceedings under the Ceiling Act, they could not file objection in time and so their objection/ application under Section 11(2) was liable to be allowed condoning the delay and treating the same to be in time. The prescribed authority considered the legal aspect of the matter holding that in view of settled legal position emerging out from the judgments cited the objection under Section 11(2) can be considered and, accordingly, recalled the order dated 29th July, 1989.
11. Thus, the entire order having been recalled and directions having been issued to the parties to advance their arguments on the merit of the objection, itself is indicative of the fact that the prescribed authority allowed the objection to be taken within time and thus, condoned the delay.
12. The legal position in respect of such orders is also very clear. Once the Court has considered the request for condonation of delay and as such request has been made and the Court allows the application to be heard on merits of the objection filed, the delay shall be deemed to have been condoned and this Court does not find any good ground as to why such order should be interfered with, more especially when the question of recall of the order dated 18th December, 1974 is yet to be considered. So, virtually the prescribed authority allowed condonation of delay inviting objection of the State on the application of the petitioners under Section 11(2) of the Ceiling Act on one hand, and his application for recall of the order dated 18th December, 1974 on the other hand. It is still open for the State to contest the matter on merits of the objection under Section 11(2).
13. The argument advanced by the State is that once the order was passed on merits, it could not have been recalled, does not appeal to reason in the special facts and circumstances of the present case. As a matter of fact, the initial order passed by the prescribed authority dated 29th July, 1989 suffered from serious defects. The basic defect was that the prescribed authority while considering the matter on merits and directing for alternative remedy of appeal, should not have dismissed the application also at the same time on the ground of being barred by time. There can be only two course open for the Court to proceed in matters of time barred applications where law of limitation is applicable: one either to dismiss the application as barred by time, by refusing to condone the delay, resulting in automatic rejection of the objection/ application or secondly, to condone the delay and pass orders on merits, may be on the ground of availability of alternative remedy it may refuse to interfere.
14. Thus, the impropriety committed by the prescribed authority in its earlier order if came to be cured by recalling the said order, this amounts to an effort to advance the cause of justice and more especially when such objection/ application is still subject to final consideration on merits by inviting objections and conducting hearing thereupon.
15. On the point of notice and its necessity a full Bench judgment of this Court in the case of Santanu Kumar v. State of U.P. and others, 1979 All. L.J. 1174, vide paragraphs 9, 10 and 11 has held thus:-
“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. 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 hand 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 is 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.”
16. In view of the above, therefore, the argument advanced by the respondent is unsustainable and is hereby rejected.
17. Coming to the second question that in case if the objection/ application is dismissed at the very threshold only either on the ground of alternative remedy or being barred by time whether would result in miscarriage of justice on the legal point of view involved in the matter. From the point of rights created under Section 11 (2) and 12-A(d) of the Act, first, it is necessary to appreciate the relevant provisions. Section 11 and 12-A(d) of Ceiling Act that are reproduced hereunder:-
“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-A.(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.]”
18. From a bare reading of the aforesaid provisions as contained under Section 11(1), (2) and (3), it is explicit that a notice is to be served upon the tenure holder because only then such tenure holder will have such opportunity to submit statement and it is on that basis that the prescribed authority shall determine the surplus land and then sub-section (2) provides that if tenure holder is aggrieved against the order passed in his absence, such an order can be set aside and such tenure holder in such even would be allowed an opportunity to file objection against the statement prepared under Section 10 and then the prescribed authority shall proceed to decide in accordance with the provisions of Section 12 of the Ceiling Act.
19. While under the Ceiling Act a sale deed in respect of the land by a tenure holder after the notification of the Act is to be taken as void, Section 12-A(d) as it clearly transpires from the aforesaid quoted provision, fully comes to the rescue of such vendees as it provides that if a person holds land in excess of ceiling area including the land which is subject of any transfer or partition the surplus land as far as possible will be the land other than such land and in case if such land is to be included in the surplus land, the transferee shall be entitled to the refund of proportionate amount of consideration and such amount shall be a charge on the amount payable to transferer under Section 17 of the Act.
20. This above right is substantive right created under the Act and a tenure holder who is recorded by virtue of transfer should be heard at least to demonstrate that the land transferred to him can be excluded from the surplus area in the light of the provisions contained under Section 12-A(d) but to deny even this right of objection and in the face of the fact that the original tenure holder concealed sale deed while giving such option of such land to be declared as surplus, would in the considered opinion of the Court, result in serious miscarriage of justice. The object of the Act is to declare land as a surplus land within the scope and ambit of the provisions laid down and incorporated under the Ceiling Act. The rights of the tenure holders who are recorded, are fully protected even in respect of those who are title holder under the sale deed executed even after notification of the Ceiling Act, in view of the aforesaid quoted provisions. In Hukum Singh v. State of U.P. and others; 1979 All. LJ 646, relying upon another judgment in the case of Nakechhed Singh v. State of U.P., the Court vide paragraphs 5 and 6 has held thus:-
“5. It is clear that sometimes the choice made by the tenure- holder may result in great hardship to the transferee inasmuch as the land purchased by him may come to be included in the surplus area by reason of ignorance on the part of Prescribed Authority about availability of other land of the tenure-holder for the purpose. The provisions of Section 12-A which confer the right of making a choice only upon the tenure-holder must receive a construction which permits a transferee to seek the exclusion of the plots purchased by him from the surplus land of the tenure-holder from whom he purchased them by pointing out to the authorities under the Act that plots other than those purchased by him are available for inclusion in the surplus area of the tenure-holder. Such a construction will further the object of Clause (d) of the proviso to Section 12-A of the Act. In these circumstances, it is to be held that the view taken by the 1st Additional Civil Judge suffers from manifest error.
6. In the case of Nakechhed Singh v. State of U.P. (1978 All LJ 776) (supra) this court upheld the right of the tenure-holder to indicate the choice retaining certain land in his ceiling area including one which may be subject-matter of a transfer treated to be void under the Act. When any application in that regard is made by a tenure-holder, the appellate authority has to take that into consideration and there is an element of discretion in the matter with the appellate authority as well under clause (d) of Section 12-A.
In the last paragraph of the judgment, the learned Judge observed that the appellate authority would determine the surplus area after consideration of the application filed by the petitioner in the case in regard to his choice of the land which should be declared as surplus and that it should also take into consideration any application put in by the transferee in which it may be stated that the transferee had no objection to any land transferred to him being declared as surplus. Obviously, this court did recognise existence of a right in the transferee to be heard by the Prescribed Authority or the appellate authority under the Act in the matter of exclusion or otherwise of the plots transferred to him from the surplus area of the tenure- holder. This decision in my opinion does assist the petitioner”
21. In the case of Smt. Prema Devi v. ADJ Hamirpur and others, 2005 (2) AWC 1411 vide paragraphs 12, 13, 14 and 15 of the judgment, the Court has held thus:-
“12. The rights conferred upon the tenure holder of making a choice by enacting part of Section 12-A has to be balanced with the right of a transferee to seek exclusion of the plots purchased by him for a valuable consideration from the surplus land in case plots other than those purchased by him are available for being declared surplus. Only such a construction of Section 12- A of the Act will further the object of Clause (d) of proviso to the said Section and any other construction will make it redundant.
13. Thus, the normal rule is that land forming subject matter of transfer shall not be included in the surplus land unless the tenure holder is left with no other land or the area available with him falls short of area declared surplus.
14. Reference at this stage may be made to a decision of the Apex Court in the case of Smt. Kamlesh Kumari v. State of U.P, and Ors., 1981 ALJ 1139, wherein it was observed as follows :
"The short point taken by Mr. Ashok Sen in support of the petition is that even assuming that the finding of the prescribed authority that the transfer was not bona fide is correct, the prescribed authority was in error in not excluding the land said to have been transferred from the surplus area. The land which was the subject matter of transfer was covered by plot No. 460. The contention is well founded and must prevail. In these circumstances, we set aside the judgment of the High Court and that of the prescribed authority and remit the case to the prescribed authority to decide the surplus land in accordance with Section 12-A(d) of the Act by excluding the area which was the subject of transfer as far as possible. "
15. In the present case since the tenure holder Khuman Singh had sufficient land available with him which could have been taken over as surplus as such there was no necessity to include the plots transferred by him in favour of Smt. Prema Devi in the surplus land. The choice of plots indicated him, which was subject matter of transfer deed executed by him for valuable consideration to be included in the surplus land was nothing but a mala fide intention on his part. ”
22. Thus, in view of the above legal preposition, I find force in the writ petition and merits in the arguments of the learned counsel for the petitioner and, accordingly, the writ petition succeeds and is allowed and the order dated 22nd November, 2011 is hereby set aside.
23. The prescribed authority is directed to proceed and hear the matter pending before it under its earlier order dated 15th September, 1989 and decide the same on merits after affording reasonable opportunity of hearing to both the parties. The final decision shall be taken in the matter preferably within a period of three months from the date of production of certified copy of this order.
Order Date :- 30.5.2019 Atmesh