JUDGMENT Ashok Bhushan, J.
1. Heard Sri V. K. S. Chaudhary, senior advocate assisted by Sri Amrendra Singh, counsel appearing for the petitioners and Sri K. S. Kushwaha, learned standing counsel appearing for the respondents.
2. By this writ petition the petitioners has prayed quashing of the Order dated 13.12.1983 passed by the 1st Additional District Judge in Revenue Appeal No. 10 of 1982 and that of the Prescribed Authority dated 22.3.1982 In Case No. 73 under the U. P. Imposition of Ceiling on Land Holdings Act, 1960.
3. Brief facts giving rise to this writ petition are :
Smt. Brij Raj Kunwari-respondent No. 3 executed a registered gift deed on 17.2.1970 of 14 bighas 1 biswa and 17 dhurs of her bhumidhari holding situate in village Ashar Khas, Pargana Basti Purab, district Basti to the petitioners who are her daughter's sons. The village was under consolidation at that time and It is asserted in paragraph 2 of the writ petition that the gift deed was executed after obtaining necessary permission under Section 5 of the U. P. Consolidation of Holdings Act. It has further been stated that the names of the petitioners were also mutated and chak was allotted in favour of the petitioners. The proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, were initiated against the respondent No. 3. The Prescribed Authority held 3 bighas 15 biswas and 12 dhurs in terms of irrigated land as surplus with Smt. BriJ Raj Kunwari by his Order dated 26.12.1974. A second notice was served on 16.7.1976 upon the respondent No. 3 in which the plots which were allotted to the petitioners under the consolidation proceedings have also been clubbed. Petitioners' case is that the no notice was issued to them although their names were recorded. Respondent No. 3 contested the case, the Prescribed Authority vide its Order dated 6.1.1977 held 10 bighas 14 biswas and 12 dhurs including the earlier 3 bighas 15 bishwas and 12 dhurs as surplus vide Order dated 6.1.1977. An appeal was filed by the respondent No. 3 which was rejected by the learned Civil Judge.
4. Petitioners thereafter filed an application under Section 11 (2) of the Act on 3.4.1980 praying that the Order regarding surplus land treating Smt. Brij Raj Kunwari as the tenure holder be set aside. The Prescribed Authority rejected the said application against which the petitioners filed an appeal being Appeal No, 72 of 1980. The appeal filed by the petitioners was allowed and the matter was remanded vide its Judgment dated 20.2.1981. The Prescribed Authority after remand again rejected the objection vide Its Order dated 22.3.1983 which was unsuccessfully challenged by the petitioners again in appeal. The said appeal was dismissed on 13.10.1983. These two orders have been challenged in the writ petition.
5. Sri V. K. S. Chaudhary, senior advocate appearing for the petitioners has raised following submissions :
(1) Petitioners being recorded over plots in question, they were entitled for notice under Section 10 (2) of the Act and the proceedings under Section 10 (2) held against the respondent No. 3 cannot defeat the rights of the petitioners.
(2) The petitioners have every right to file objection and establish their right, The view of the courts below that the petitioners have no right to file objection is without any basis.
(3) The Order of remand dated 20.2.1981 was binding on the Prescribed Authority and the Prescribed Authority proceeded to decide the matter contrary to the directions issued by the appellate court.
6. Learned standing counsel appearing for the respondents submitted that Smt. Brij Raj Kunwari respondent No. 3 has contested the matter and had not disclosed the gift deed in her objection, she having lost upto the appellate court there is no right left in the petitioners to agitate the matter again. He further referred to paragraph 7 of the counter-affidavit in which assertion has been made that the notices were issued to the petitioners and they were served on them through Smt. Brij Raj Kunwari-respondent No. 3.
7. I have considered the submission of counsel for the parties and perused the record.
8. From the record of the case it is clear that the gift deed dated 17.2.1970 is a registered gift deed. The said fact has been clearly mentioned in the judgment of the appellate court dated 20.2.1981. It has been further noted in the judgment of the appellate court dated 20.2.1981 that in the consolidation proceedings chaks were allotted in the names of the petitioners in pursuance of the gift deed dated 17.2.1970. It has come on the record of the writ petition that the land Included in the petitioners chak were Included in the second notice issued to the respondent No. 3 Smt. Brij Raj Kunwari on 16.7.1976. At that time when the second notice was issued it is clear from the materials on record that the chafe was already allotted in the names of the petitioners and the plots were shown in the chak of the petitioners. Learned counsel for the petitioners has rightly referred to Rule 8 of the U. P. Imposition of Ceiling on Land Holdings Rule, 1961 proviso of which clearly contemplate that where the statement in C.L.H. Form-3 also includes land ostensibly held in the name of any other person, the Prescribed Authority shall cause to be served upon such other person a notice in C.L.H. Form 4. The scheme of Rule 8 as well as the scheme under the Act clearly contemplate that the notice is required to be issued to every tenure holder.
9. The word 'tenure holder' is defined in Section 3 (17) of the Act which is extracted below :
"Section 3 (17),-- "Tenure holder" means the person who is the holder of a holding."
10. The chak is carved out in the names of the petitioners the tenure holders within the meaning of Section 3 (17) of the Act. The notice was required under Section 9 to the petitioners also and any determination of surplus land without notice to the petitioners between the respondent No. 3 and the State cannot bind the petitioners. The learned standing counsel has referred to paragraph 7 of the counter-affidavit in which it is mentioned that the notice was issued to the petitioners,' However, the aforesaid assertion shows that the notice was issued to the petitioners through the respondent No. 3 Smt. Brij Raj Kunwari. The petitioners were tenure-holder in their own right since the chaks were allotted in their names. Further, the said land was shown to be included in the holdings of the respondent No. 3, the service of notice through the respondent No. 3 on the petitioners cannot be accepted. Further, the judgment of the courts below have not referred to this aspect of the matter and they have proceeded on the premise that the notice was not served on the petitioners. In view of the aforesaid submission of the learned standing counsel that notice was served on the petitioners, cannot be accepted.
11. During the course of the arguments the learned standing counsel has raised another objection to the effect that since the land of the petitioners have not been declared surplus, they have no right to maintain the writ petition. To the aforesaid objection the learned counsel for the petitioners has submitted that the respondent No. 3 has indicated in her choice subsequently given on 21.1.1984 the petitioners' land also. He further submitted that apart from plots included in her choice the petitioners' right has been prejudiced since the determination has been made treating the said petitioners' land as the land of the respondent No. 3. Reference has also been made to paragraph 12 (b) of the writ petition, which has been replied by the respondent in paragraph 13 of the counter-affidavit. From the pleadings of the parties it is clear that giving of choice by application dated 21.1.1984 is not denied even in the counter-affidavit. There was Interim Order in the writ petition dated 16.3.1984 to the effect that the petitioners will not be dispossessed from the disputed plots if they were holding possession. ( However, in view of inclusion of petitioners' plots in choice there is clouds on the right of the petitioners to hold the plots and it cannot be said that they have no right to, maintain the writ petition or to challenge those orders. The objection of the learned standing counsel that since these plots were not declared surplus the writ petition cannot be maintained, cannot be accepted. When the determination was made declaring certain land surplus In treating the petitioners' land as the land of the respondent No. 3, the declaration of surplus land is founded on the premise including the petitioners land in the holding. The two facts cannot be separated from each other and merely because in the land declared as surplus the land of the petitioners is not included. The right to challenge cannot be said to be lost.
12. As observed above, the petitioners being tenure-holders in their own rights were entitled to notice. Reliance has been placed by the counsel for the petitioners on a Full Bench judgment of this Court in Shantanu Kumar v. State of Uttar Pradesh and Ors., 1979 AWC 585, which do support the contention of the counsel for the petitioners. It has been held by the Full Bench that the service of 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 hands of person noticed under Section 10 (2) of the Act. Following was laid down by the Full Bench in paragraphs 8, 9 and 10 :
"8. Rule 8 provides for service of notice on every tenure-holder to show cause within fifteen days why the aforesaid statement prepared by the Prescribed Authority be not taken as correct. Proviso to this Rule then provides :
"Provided that where the statement in C. L. H. Form 3 also includes land ostensibly held in the name of any other person, the Prescribed Authority shall cause to be served upon such other person a notice in C. L. H. Form 4 together with a copy of the statement in C. L. H. Form 3 calling upon him to show cause within a period of 15 days from the date of service of the notice why the aforesaid statement be not taken as correct....,..........."
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 the 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."
13. From what has been laid down by the Full Bench as quoted above, it is clear that by virtue of proviso to Rule 8, the petitioner was clearly entitled for notice and any determination as against the respondent No. 3 regarding plots recorded in the name of petitioner can have no effect on the rights of the petitioner.
14. Both the Prescribed Authority and appellate authority have held that since the petitioners' land is not included in the land declared as surplus hence none of the rights of petitioners are affected and the petitioners have no right to file objection. As observed above, the said premise is wholly unfounded. Petitioners' rights were affected by treating the land recorded in their names as holding of respondent No. 3 hence petitioners were both entitled for notice under Section 10 (2) and to file objection.
15. In view of what has been stated above, both the aforesaid orders cannot be sustained and are set aside and the matter is remanded to the Prescribed Authority to decide the objection of the petitioners afresh in accordance with law taking into consideration the earlier remand Order dated 20.2.1981. The petitioners will file a certified copy of this Order before the Prescribed Authority within a period of one month. The matter being old, the Prescribed Authority may proceed to decide the matter expeditiously,
16. With the aforesaid directions, the writ petition is allowed. Parties shall bear their own cost.