Heard learned counsel for the petitioners and the learned Standing Counsel for the State.
The petitioners are the grand-sons of the tenure holder, late Ganga Prasad Tripathi. The tenure holder was put to notice 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 and the prescribed authority vide order dated 21st July, 1976 declared an area of 10.54 acres of land as surplus. This was pursuant to a second notice in spite of the authority having issued a previous notice. The tenure holder filed an appeal which was allowed on 21st September, 1978 whereby the subsequent notice issued by the prescribed authority was discharged leaving it open to the prescribed authority to proceed in accordance with law as per the earlier notice that was issued to Ganga Prasad Tripathi.
After remand the petitioners state that their grand-father, Ganga Prasad Tripathi, died on 4th of November, 1980. The proceedings thereafter did not continue against the heirs of Ganga Prasad Tripathi and as a matter of fact no substitution was carried out on behalf of the State. It has been stated that the father of the petitioners, Janardan Prasad Tripathi had also died in between on 22nd October, 1987.
The status of the family and its pedigree has been disclosed in paragraph 17 of the writ petition. The petitioners, therefore, took a stand that without substituting all the legal heirs the proceeding could not be continued and the State having failed to discharge its duties, the petitioners were under no obligation to have voluntarily put up their appearance. It is further urged that no notice was served on the heirs of late Ganga Prasad Tripathi at all at any stage of the proceedings.
The prescribed authority on 31st October, 1992 passed an order again reiterating the declaration of surplus land and as per the order dated 21st July, 1976 on the ground that it was correct and further that the petitioners had appeared in the matter before the prescribed authority.
Disputing the aforesaid fact of appearance of the petitioners, an appeal was filed which has also been dismissed upholding the finding recorded by the prescribed authority on the ground that the petitioners, as pointed by the D.G.C. (Revenue), had contested the matter before the prescribed authority.
The petitioners aggrieved by the appellate order have preferred this petition to which a counter affidavit has been filed on behalf of the State and a supplementary affidavit which was served on the learned Standing Counsel on 4th July, 1995 has also been filed by the petitioners. A rejoinder to the counter affidavit has also been filed by the petitioners reiterating their stand in the writ petition.
The contention raised by Sri Tiwari for the petitioner is that the proceedings are invalid as the heirs were not put to any notice nor had the petitioners appeared. He further contends that the recital in the orders of the prescribed authority as well as the appellate authority to the effect that the petitioners had contested and were present during the proceedings is absolutely against the weight of evidence on record. He has invited the attention of the Court to the various paragraphs in the writ petition and its reply in the counter affidavit as well as the facts stated in the supplementary affidavit to urge that only one application was filed by the uncle of the petitioners for carrying out substitution which also remained undisposed without any any orders by the authority.
Learned Standing Counsel on the other contends that the petitioners had full knowledge of the proceedings and even otherwise the finding recorded by the prescribed authority and the appellate authority are based on the evidence on record which do not deserve any interference by this Court under Article 226 of the Constitution of India. He submits that the order of remand was complied with and the prescribed authority rightly proceeded to issue the declaration as the petitioners had appeared on 18th July, 1992 but failed to attend the Court of the prescribed authority thereafter. In the circumstances the plea raised in the writ petition cannot be accepted.
Having heard learned Counsel for the parties, once the matter had been remanded in appeal then according to the provisions of Section 13 of the Act the order in appeal became final. It is trite law that even a remand order attaches with itself the trappings of finality in case any issue has already been decided. The appellate order dated 23.9.1978 clearly records that the notice which was issued under Section 10 (2) subsequently stood discharged. In the circumstances the said notice could again not have been made the basis to proceed against the petitioners in the same proceedings after remand. No separate notice was issued under Section 29 or 30 of the Ceiling Act.
Apart from this the matter had been remanded and the appellate order had made it clear that there was no bar for the prescribed authority to proceed and decide the case according to the earlier notice in accordance with law.
In the aforesaid circumstances the tenure holder ought to have been put to notice about this fact as no proceedings could have been under taken on the basis of the subsequent notice which had been discharged in appeal. The contention of the State is that notices had been issued and that the petitioners had put in appearance and were present before the prescribed authority till 18th July, 1992. From the facts as on record it is clear that Ganga Prasad Tripathi had died before the prescribed authority proceeded to decide the dispute after remand. The date of death may not have been mentioned in the extract of the family register but the state was unable to bring on record evidence denying the death of Ganga Prasad Triapthi before the order came to be passed by the prescribed authority.
In the circumstances it is established that the proceedings went against Ganga Prasad Tripathi who was a dead person. However, at this juncture one aspect deserves to be noticed is that the supplementary affidavit filed by the petitioner brings on record an application moved by one Kunta Kishore Mani Tripathi one of the sons of Ganga Prasad Tripathi and uncle of the petitioner. This application was filed on 2nd May 1989 bringing to the notice of the prescribed authority that Ganga Prasad Tripathi is already dead and substitution should be carried out. It is not an application either by or on behalf of the petitioners whose father had also died in 1987. This document has not been denied by the respondents.
In view of this, the State had full knowledge of the death of the tenure holder and in the opinion of the Court it is the State that has defaulted in carrying out the substitution of the tenure holder. Apart from this Kunta Kishore Mani Tripathi is one of the sons of Late Ganga Prasad Tripathi itself according to the extract of the family register. The two other sons are Bashisth Narayan and Janardan. Janardan is the father of the petitioners who was reportedly dead and according to the petitioner had died on 22nd October, 1987. In these circumstances neither the sons nor the grand-sons of the deceased son were brought on record or put to notice by the State and the prescribed authority before proceeding to pass the order. Apart from this there is also a report of the peon/process server reporting that Ganga Prasad Tripathi was dead.
In the aforesaid circumstances the prescribed authority could not have proceeded to decide the objections and claim of the State without substituting the heirs which as noted hereinabove had already been brought to its notice.
Coming to the fact that the recital in the order is that the tenure holder was present. The same appears to be perverse and apparently incorrect inasmuch as no evidence has been brought forth to indicate that the petitioners were put to notice or were represented in anyway. Not only this from the family register it is clear that sons of Jagdish Prasad are named therein and there were other heirs also. In the circumstances it is not correct to record that the petitioners or the tenure holders were present before the prescribed authority after substituting. The substitution application which was filed Kunta Kishore Mani Tripathi was also not disposed of which fact has been clearly stated in the supplementary affidavit. There is no denial to the same. All the aforesaid circumstances cumulatively, therefore, clearly indicate that the tenure holders were not represented and the heirs were not brought on record and put to notice before the prescribed authority proceed to pass the impugned order. Even if Kunta Kishore one of the sons had knowledge of the pendency of the proceedings,the same is no way is substituted service on the heirs entitled to contest the matter. There is no proof of any service and therefore the presumption of knowledge or notice is erroneous. The other heirs became tenure holders in their own individual capacity according to their shares which they have a right to defend independently even if they are recorded or unrecorded co-tenants either by succession or otherwise.
There is one stand in addition to this taken in paragraph 14 of the counter affidavit that since Kunta Kishore Mani Tripathi had knowledge of the proceedings, therefore, his nephew and his brothers will also be presumed to be having knowledge of the same. The aforesaid argument is without any basis, inasmuch as it is a notice which has to be issued and served and the presumption of knowledge cannot be pressed into service inasmuch as there is no indication that the entire family was living together nor any such evidence was led to indicate that this presumption stood proved. In the absence of any such evidence the aforesaid presumption as indicated in paragraph 14 cannot be accepted and is accordingly rejected.
Admittedly the tenure holder was dead. The appearance of the lawyer and his avoidance on the date fixed to argue the case as assumed by the authority is also misplaced for the reason that the vakalatnama, which is the authority to appear by itself does not survives and stands terminated due to the death of the litigant. A fresh power of authorization is to be on record on behalf of the heirs. It is not the case of the state that there was a vakalatanama of the counsel drawn up by the heirs in his favour on the date of appearance as alleged. There is no such evidence or even averment substantiating the finding recorded. The proceedings, therefore, culminated against a dead person as a result whereof the impugned orders are a nullity.
At this juncture it will be relevant to refer to Order III Rule 4 of the Civil Procedure Code readwith Section 37 of the 1960 Ceiling Act. The said procedure under Rule 4 clearly requires that a person appointed as an advocate/pleader shall continue to act on behalf of his client and one of the contingencies of the termination of vakalatnama is death. Here in the instant case the tenure holder had already died in 1980.
There is no presumption in law nor could it be shown by the learned standing counsel for the state that notice of the proceedings will be presumed to be in the knowledge of the grand-sons, if the grand-father had earlier contested the matter. There is no proof either. Undisputedly the grand father had died and the matter of remand remained pending for almost twelve years after his death.
For the reasons given hereinabove the only conclusion that can be arrived at is that the prescribed authority has hastily and erroneously proceeded to treat the matter to have been deliberately unrepresented after 18th July, 1992. The appellate court also inspite of grounds having been taken in appeal has simply rejected the stand taken of the petitioners. For the same reasons, therefore, the appellate order cannot be sustained.
Accordingly, the order of the prescribed authority dated 31st October, 1992 as affirmed in appeal vide order dated 23rd May, 1995 are both set aside. The matter can now be proceed with by the prescribed authority in accordance with law after putting all the heirs of the tenure holder to notice.
With the aforesaid observations the writ petition is allowed.
Order Date :- 19.7.2012 Manish