Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 78

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Dinesh Kumar Singh, J.
Suresh Chandra Tewari And Others - Petitioner
Vs.
State of U.P. and Others - Respondent
WRIT - C No. - 3000001 of 1995
Decided On : 21-02-2022

Advocates:
Advocate Appeared:
For the Appellant : D.C. Mukherji, Mohammad Aslam Khan
For the Respondent: A.B. Misra, C.S.C.

Point of Law : S. 11(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 permits tenure-holders to file objections. Such tenure holders may be those who have been served with a notice and the statement under S. 10(2).

Headnote:
Constitution of India, 1950 – U.P. Imposition of Ceiling on Land Holdings Act, 1960 - Section 9, 10(2), 11, 13 - U.P. Imposition of Ceiling on Land Holdings Rules, 1961 – Rule 8, 10 - Notice to tenure-holders failing to submit a statement or submitting an incomplete or incorrect statement - Seeking quashing of order passed by Additional Commissioner (Judicial), whereby learned Additional Commissioner has allowed appeal filed by State against order passed by prescribed authority under provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960.
Finding of the court: Petitioners’ names were recorded on date when notice was issued - Rule 8 of Rules, 1961 mandates issuance of notice to every such tenure holder and no notice was issued to petitioners by Prescribed Authority and notice was issued only to their father, proceedings, culminated in respect of notice issued to father of petitioners, would not bind petitioners - Prescribed Authority, on remand from Appellate Authority, had adjudicated objections filed by petitioners after taking into consideration evidence, oral and documentary, and found that on basis of memorandum of family settlement of 1969, petitioners’ names got mutated in revenue record and, they were put in possession of respective shares - Such a finding of Prescribed Authority cannot be said to be incorrect or illegal.
Result: Writ petition allowed.

JUDGMENT :

Dinesh Kumar Singh, J.

1. The present writ petition has been filed, seeking quashing of the order dated 18.10.1994 passed by Additional Commissioner (Judicial), Lucknow Division, Lucknow whereby learned Additional Commissioner has allowed the appeal filed by the State against the order dated 23.09.1985 passed by the prescribed authority under the provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as 'the Act, 1960').

2. Notice under Section 10(2) of the Act, 1960 was issued on 16.03.1974 against the father of the petitioners, Hari Shankar Tiwari since dead who was impleaded as respondent No.3 in this writ petition by the Prescribed Authority. Father of the petitioners filed his objection to the said notice on 20.04.1974. In the said objection, Late Hari Shankar, father of the petitioners said that a family settlement was arrived at between the parties in the year 1967 and, according to the said family settlement, shares of all the family members were determined. This settlement was reduced in writing in the year 1969 and in the year 1970, petitioner No.1, one of the sons of Late Hari Shankar, instituted a suit in the Court of Munsif in respect of non agricultural properties which were also included in the said memorandum of family settlement. Said suit was decreed on 02.11.1970 on the basis of family settlement and memorandum dated 09.11.1969. On 29.01.1971, a suit for permanent injunction for restraining Late Hari Shankar Tiwari, father of the petitioners was instituted by petitioner No.1 in respect of agricultural land and on the basis of said family settlement, suit was decreed on 09.08.1971. It was said that land of Village Bojhwar in Gata Nos.125, 127, 157, 166, 270, 278, 159, 168 and land of Village Bahshar of Gata No.492, land of Village Alhar in Gata No.1168 and land of Village Roshanpur in Gata Nos.436, half of 484, 355, 356, 357, 358 and half of 361 was his land. It was further said that land of village Birauri in Gata No.1353 was also his land.

3. In CLH Form 3 annexed with the notice issued to respondent No.3 under Section 10(2) of the Act, 1960 should not have included the land of the petitioner as mentioned above. Prescribed authority on 21.12.1974 adjudicated the notice dated 20.04.1974 and vide order dated 21.12.1974 declared 37 Bigha 5 Biswa 17.8 Biswansi land of respondent No.3, father of the petitioners as surplus under the provisions of Act, 1960.

4. Against the said order dated 21.12.1974, respondent No.3 preferred an appeal before the District Judge Hardoi. IIIrd Additional District Judge, Hardoi vide order dated 24.09.1975 partly allowed the said appeal and as a result of which the surplus area was reduced to 33 Bigha 8 Biswa 14.8 Biswansi in form of irrigated land as surplus.

5. Against the said judgment and order dated 24.09.1975 passed by the appellate authority, father of the petitioners filed Writ Petition No.2336(SS) of 1975, which was dismissed vide order dated 07.08.1978. This court held that parties to the deed of settlement had only declared their respective shares in the properties, which were subject matter of the deed. No partition was effected by metes and bounds and the parties were not put in possession of their respective shares in the properties. It was further held that the suit for partition was filed after the crucial date 24.01.1971. The suit was decided on the basis of a compromise and decree was passed for partition after due date. This Court was of the view that the said decree was liable to be ignored and the family settlement purported to have been made between the father of the petitioners and his sons was of no avail to him. This Court did not find any error of law in the orders passed by the prescribed authority and appellate authority and thus, the writ petition was dismissed.

6. Against the said judgment and order passed by this Court, father of the petitioners i.e. respondent No.3 preferred an S.L.P. before the Supreme Court,