Judgment reserved on 24.01.2019 Judgment delivered on 26.02.2019
Case :- WRIT - C No. - 14733 of 2007
Petitioner :- Sukhbir Singh
Respondent :- State Of U.P. Thru The Collector Muzaffarnagar And Another
Counsel for Petitioner :- Santosh Srivastava,Alok Kumar,Karuna Srivastava,Yogesh Kumar Singh,Shachi Singh Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri C.B. Yadav, learned Senior Counsel assisted by Shri Alok Kumar Singh, learned counsel for the petitioner and Shri S.P.S. Rathore, learned Standing Counsel.
The petitioner has approached this Court for following reliefs:-
“(i) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 28.2.2007 passed by the respondent no.2 (Annexure-13 to the writ petition).
(ii) to issue a writ, order or direction in the nature of mandamus commanding the respondent no.1 not to dispossess the petitioner over plot nos.296/2 and 4/2 area 8-7-0 situated in village Sahjuddi, Pargana Shikarpur, Tehsil Budhana, District Muzaffarnagar.
(iii) to issue such other appropriate writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the present case.
By order dated 10.11.2008 following prayer was also added in the relief clause:-
“(i) (a) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.03.1986 passed by the Prescribed Authority, Ceiling, Budhana, Muzaffarnagar/ newly added respondent no.3 (Annexure-10 to the writ petition).”
On the matter being taken up on 20.03.2007 following interim order has been passed by this Court:-
“Learned Standing Counsel prays for and is allowed one month's time to file counter affidavit.
Petitioner will have two weeks thereafter for filing rejoinder affidavit.
Till further orders of this Court the petitioner will not be dispossessed from the land declared as surplus.”
The record in question reflects that initially a notice under Section 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act (in short “the Act”) has been issued to the petitioner (Sukhbir Singh) by the first respondent i.e. Collector Muzaffarnagar proposing 13-4-13 land to be declared as surplus situated in Village Sahjuddi, Pargana Shikarpur, Tehsil Budhana, Distt. Muzaffarnagar out of 58-11-16 which was in possession of the petitioner. Against the same the petitioner filed objection on 13.6.1974 before the first respondent firstly stating therein that plot nos.830 and 832 are grove land and secondly the petitioner has one adult and four minor sons and a daughter namely Ombiri. The petitioner has executed registered sale deed regarding plot nos.4/2, 163/2, 173 and 235/2 situated in the aforesaid village. Consequently, the Prescribed Authority, Ceiling, Budhana, Muzaffarnagar discharged the notice issued by first respondent vide order dated 08.11.1974.
On 20.01.1975 the Naib Tehsildar, Ceiling, Muzaffarnagar had submitted his report stating that family members of the petitioner has wrongly been determined as Smt. Lali was not wife of Sri Sukhbir Singh (the petitioner) but infact she was the wife of his brother namely Raghubir Singh. Against the same the petitioner filed objection on 27.1.1975 before the Prescribed Authority but the Prescribed Authority passed an order on 29.3.1975 declaring 13-4-13 land as surplus land holding that Smt. Lali was not wife of the petitioner. Against the order dated 29.3.1975 the petitioner preferred Ceiling Appeal No.379 of 1975 (Sukhbir Singh v. State of U.P.) under Section 13 of the Act stating firstly that Smt. Om Biri (daughter of the petitioner) was minor unmarried daughter of the tenure holder at the relevant date and should be treated as member of his family for the purposes of determining the ceiling area and secondly that plot nos.830 and 832 should have been classified as grove. The Addl. District Judge, Muzaffarnagar vide order dated 10.10.1975 allowed the said appeal in part accepting the contention of tenure holder that Om Biri was minor unmarried daughter at the relevant date and she should be treated as member of family of tenure holder for the purposes of determining the ceiling area applicable to him. For the other question regarding grove land the matter was remitted to the Prescribed Authority for fresh finding. It is contended that after remand of the case the Prescribed Authority without deciding the case on merit as directed by the appellate court passed an order dated 23.2.1976 abating the case and directing that fresh proceeding be started against the petitioner. Against the order dated 23.2.1976 the petitioner preferred Writ Petition No.1221 of 1976 (Sukhbir Singh v. Prescribed Authority, Ceiling, Muzaffarnagar. The Division Bench vide order dated 25.10.1978 allowed the petition in part and quashed the order of the Prescribed Authority abating the earlier proceeding. However, the other part of the order for proceeding afresh for re- determination of the surplus area was directed to stand. After remand from the High Court, the Prescribed Authority in Case No.47 of 1974 under Section 10 (2) of the said Act passed an order on 30.07.1979 declaring 3-9-9 area as surplus land under Section 12-C of the Act. The same was challenged by the petitioner in appeal under Section 13 of the Act. It is contended that the appellate court after going through the entire record, documentary as well as oral evidence had found that plot nos.830 and 832 are the grove land and the number of old trees were standing thereon. Hence the order dated 30.07.1979 passed by the Prescribed Authority was set aside and the matter was remanded to the Prescribed Authority to determine the surplus land after deciding the question whether plot no.830 is a grove land. The said appeal was allowed in part vide order dated 18.7.1980. After remand of the case, the Prescribed Authority held that plot no.830 was not a grove land vide order dated 26.12.1980. Being aggrieved by the order dated 26.12.1980 the petitioner filed Ceiling Appeal No.2 of 1981 (Sukhbir Singh v. State of U.P.) under Section 13 of the Act, which was allowed by the District Judge, Muzaffarnagar on 2.1.1984 by setting aside the notice issued by the Collector, Muzaffarnagar under Section 10 (1) of the Act and also holding that the petitioner has no surplus land. The District Judge opined that Plot No.830 was rightly not accepted as grove. The petitioner also sought amendment in the objections and pleaded that holding was ancestral in his hand and his son Sehzor Singh was born prior to abolition of zamindari and as such he acquired half interest in land as member of Hindu joint family. It was also pleaded that half of the holding was of Sehzor Singh, who became independent tenure holder and his part could not be treated as part of holding of tenure holder and as such there was no surplus land. This is admitted situation that the said amendment was allowed and the parties were also agreed that the matter be decided on the basis of evidence on record. The District Judge was of the opinion that Sehzor Singh had acquired the interest at the time of abolition of zamindari in the holding as it was ancestral joint Hindu family holding. The said finding was recorded on the basis of revenue entry in the khatauni of 1325 F. The land in question was recorded in the name of ancestral of the tenure holder and the papers were also checked with the help of Naib Tehsildar (Ceiling) and the D.G.C. (Civil). The documents proved that it was sir and khudkast (ancestral land) in the hands of Sukhbir Singh (the petitioner). The interest in the holding which is ancestral passes half to Sehzor Singh and if half interest of Sehzor Singh is taken, then the tenure holder has no surplus because only 3-9-9 has been declared surplus and the interest of Sehzor Singh would be more than that. Finally the order of Prescribed Authority was set aside. Notice issued to the tenure holder was discharged and it was declared that the petitioner had no surplus land. It is contended that the said judgment and order dated 2.1.1984 has not been assailed before higher forum and as such the same has attained finality and is binding upon the parties concerned.
Again a notice under Sections 29 and 30 of the said Act was served upon the petitioner on 15.5.1985 proposing 8-7-0 land to be declared as surplus land. Thereafter, the petitioner had filed an objection on 3.7.1985 stating therein that the petitioner has seven members in the family. The land in dispute is sir and khudkast (ancestral land) belonging to the petitioner. The Prescribed Authority vide order dated 31.3.1986 declared 8-7-0 as surplus land of the petitioner on the ground that Ombiri had already married and hence now she could not be included as family member of the petitioner. Being aggrieved by the order dated 31.3.1986 passed by the Prescribed Authority the petitioner filed Ceiling Appeal No.71 of 1985-86 under Section 13 of the Act. The same was allowed on 14.7.1986 and the order of the Prescribed Authority dated 31.3.1986 was set aside. The second notice dated 15.5.1985 was also set aside. The appellate authority gave specific finding that after marriage of Ombiri she is still member of the family of the petitioner and also held that the plot nos.4/2 and 296/2 are grove land.
Against the order dated 14.7.1986 the first respondent filed Writ Petition No.18394 of 1986 (State of U.P. v. Addl. Commissioner, Meerut Division, Meerut & Ors.). The same was allowed by judgment and order dated 1.10.2003 with following observations:-
“ 21. My conclusion are as follows:-
a) Single Judge decision reported in Chet Ram v. State 1979 A.W.C. 171 is not correctly decided in view of the Division Bench decision reported in Satish Chandra Mathur v. State of U.P. 1995 (2) U.P. Civil and Revenue Cases Reporter 1287.
b) The date on which events contemplated under Section 29 occurred is the relevant date in proceeding under Section 29 of the Act.
c) In proceeding under Section 29/30 of the Act the family members as on the date relevant for these proceeding should be considered.
In view of my conclusion the writ petition is allowed and the cases is sent back to the appellate court for redecision in accordance with law.”
It is alleged that the aforesaid writ petition has been decided without any notice and opportunity of hearing to the petitioner and without calling for counter affidavit. After remand, the appellate court had passed the order impugned holding that Ombiri is not family member of the petitioner after marriage on 5.2.1981.
Shri C.B. Yadav, learned Senior Counsel appearing for the petitioner submitted that against the order dated 26.12.1980 passed by the Prescribed Authority the petitioner filed Ceiling Appeal No.2 of 1981 mentioning, therein, that his elder son namely Sahjor Singh was born before the abolition of Zamindari and hence Sahjor Singh had 1/2 share over the entire ancestral property since birth. The property in dispute is ancestral, sir and khudkast land and as such the petitioner and his elder son namely Sahjor Singh had half share, hence declaration of 3-9-9 land as surplus land was unsustainable. The said claim/view has been accepted by the District Judge, Muzaffarnagar in its order dated 2.1.1984. The said finding of the fact as has been recorded by the District Judge qua Sahjor Singh has never been assailed by the respondent, as such attained finality and now it is binding upon the respondents. Therefore, subsequent proceeding by issuing second notice dated 15.5.1985 declaring 8-7-0 land as surplus could not sustain in the eyes of law. The said notice was issued after demise of Smt. Lali widow of Raghubir Singh, who was having 10-0-0 land over Khata No.296/2, the same was settled in favour of the petitioner. He further made submissions that from perusal of notice dated 15.5.1985 it is clear that 35-11-7 (18 acres) land was shown as ceiling limit. Therefore, total area belonging to the petitioner and his elder son was 43-18-7 and the ceiling limit was 35-11-7. The petitioner and his son Sahjor Singh had equal share in land, therefore, no surplus land as 8-7-0 was in existence. While passing the order dated 31.3.1986 the Prescribed Authority illegally held that after the marriage of Om Biri, the daughter of the petitioner, the petitioner has no right to claim her share. Learned counsel for the petitioner has vehemently contended that the order impugned is unsustainable in view of the fact that notice under Section 29/30 of the Act was infact with regard to succession of the petitioner of Lali's land while controversy has been decided qua land of Om Biri (daughter of the petitioner) as she was married and the petitioner could not claim her share. But at no point of time any notice whatsoever has ever been issued to the petitioner regarding excess limit as Om Biri was married. Even the said aspect has not been considered by this Court while passing the order dated 1.10.2003 in Writ Petition No.18394 of 1986. In this regard he has also placed the notice dated 15.5.1985 as well as the objection thereto dated 3.7.1987, which have been brought on record through RA-1 and RA-2. It is contended that once the District Judge while passing the order dated 2.1.1984 had clearly proceeded to observe that Sahjor Singh was born prior to abolition of zamindari, he acquired half interest in the land under Hindu law as the same was the ancestral land. In such eventuality even after succession of Lali's land it could not come exclusively under the petitioner's share and such finding of fact recorded by the Prescribed Authority while passing the order impugned is perverse and unsustainable.
It is also contended that the High Court while passing the order dated 01.10.2003 had decided the matter merely on the ground that after the marriage the daughter of the petitioner was not member of the family and as such the land acquired by the petitioner could be treated as surplus land under Section 29/30 of the Act and hence the matter was remanded. After remand the Commissioner without deciding the appeal on merit and without recording any reason whatsoever, in most casual manner proceeded on the basis that after marriage Om Biri was not member of the family, the land in question was rightly declared as surplus, such finding recorded by the appellate authority is perverse and unsustainable.
Per contra learned Standing Counsel has vehemently opposed the writ petition and submitted that the impugned orders have been passed strictly in accordance with law and there is no infirmity in them.
The Court has proceeded to examine the record in question and find that notice under Section 29/30 of the Act was issued to the petitioner on the basis of succession of the land of Lali. Fresh exercise, was taken by way of notice dated 15.5.1985 under Section 10 (2) read with Section 29/30 of the Act, which was served on the petitioner on 30.07.1985 on the ground that the petitioner had succeeded the land of Lali (wife of Raghubir Singh) after her death, therefore, 8-7-0 bigha land was declared as surplus. The said succession and the aforesaid notice was considered upto the first appellate court. The controversy was only qua the holding, which was possessed by Lali. Most surprisingly while passing the order dated 1.10.2003 the High Court had considered the claim of Lali but the order impugned is based upon the land possessed by Om Biri (as married daughter). It has also been urged that the Prescribed Authority had not considered the relevant aspect and the finding of fact so recorded by the District Judge in its judgment and order dated 2.1.1984, wherein, it was held that the disputed land was ancestral Hindu joint family land and Sahjor Singh had also half of the interest in the holding and as such there was no surplus land. Moreover, this is also admitted situation that the petitioner had not been accorded any notice whatsoever under Section 29/30 qua the holding of Om Biri. This has also been accepted by the parties that the notice was given by the Prescribed Authority to the petitioner qua the succession of Lali's land. Therefore, in the absence of any notice under Section 29/30 of the Act qua the land of Om Biri the order impugned cannot sustain as the same is hit by principle of natural justice.
From the above discussion, this Court is of the considered opinion that the orders impugned cannot sustain and as such the same are accordingly set aside. The writ petition is allowed. However, this order would not come in the way of the authorities to proceed strictly in accordance with law.
Order Date :- 26.02.2019 SP/