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2007 Supreme(UK) 232
2007 (2) U.D. 113
High Court of Uttarakhand
B.S. Verma, J.
Smt. Cicilia Channi and others - Petitioners
Vs.
The 151 Additional District Judge, Nainital and others - Respondents
Writ Petition No. 2134 of 2001 (M/S)
Decided on : 02-05-2007.
Sri Vijai Bhatt, Advocate for the petitioners and Sri Gopal Narain Srivastava, Brief Holder for the State-respondents Nos. 1-3.
Unrecorded tenure holders have the right to file objection and should be given the opportunity to substantiate their claim of possession.
Headnote:
Writ Petition - Land Dispute - U.P. Imposition of Ceiling on Land Holdings Act, 1960, Sec. 3(b), Sec. 10(2), Rule 8 - The court discussed the legal provisions related to the definition of 'tenure-holder' and the right to file objection, the service of notice under Rule 8, and the treatment of land given up as surplus plots. The court emphasized that a person in possession of the land is entitled to notice and can file objection, and the Prescribed Authority should decide the objection after hearing the parties and affording them the opportunity to adduce evidence.
Fact of the Case:
The petitioner sought to quash orders related to a land dispute, claiming possession of the land before 1375 Fasli. The dispute arose when another individual proposed to declare the land surplus, which the petitioners objected to. The objection was dismissed on the grounds that the petitioners were not recorded tenure holders.
Finding of the Court:
The court found that the petitioners, as unrecorded tenure holders, had the right to file objection and should have been given the opportunity to substantiate their claim of possession. The orders dismissing the objection were set aside, and the matter was remanded for a fresh decision.
Issues: The issues revolved around the right of unrecorded tenure holders to file objection, the service of notice under Rule 8, and the treatment of land given up as surplus plots.
Ratio Decidendi: The court held that a person in possession of the land is entitled to notice and can file objection, and the Prescribed Authority should decide the objection after hearing the parties and affording them the opportunity to adduce evidence.
Final Decision: The writ petition was allowed, the impugned orders were set aside, and the matter was remanded to the Prescribed Authority for a fresh decision.
By means of the present writ petition, the petitioner has prayed for issue a writ, rule, order or direction in the nature of certiorari quashing the impugned order dated 22-11-1984 passed by the I Additional District Judge, Nainital as well as the order dated 26-31-983 passed by the Prescribed Authority (Annexure Nos. 11 & 10 respectively).
2. Brief facts giving rise to the present writ petition are that according to the petitioners they are in possession of the land in dispute much before 1375 Fasli and at that time 8asant Singh, respondent no. 4, was mentioned as absconding from the village, where the suit land is situate.
3. The dispute arose when one Ghamand Singh gave choice of change of plots of land, which was proposed to be declared surplus before the Prescribed Authority Khatima in the matter arising out of Case No. 51/61 of 1974-75, State Vs. Basant Singh vide Annexure No.5 to the writ petition. According to the petitioners, Ghamand Singh had no concern with the land, which included the land of the petitioners, therefore, the petitioners filed objection before the Prescribed Authority inter alia on the ground that the land which was proposed to be declared surplus was not in possession of Basant Singh rather it was in possession of the petitioners for the last more than 20 years. Hence Ghamand Singh could not have given change of choice of plots on behalf of Basant Singh. Basant Singh, the original tenure holder is not residing in the village since long time. The objection of the petitioners was rejected vide order dated 26-3-1983 by the Prescribed Authority with the direction that the petitioners were in illegal possession of the land and as per definition of tenure holder in the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (for short the Act), they had no right to prefer objection, as they are not recorded tenure holders. Against the order of the Prescribed Authority, an appeal was preferred by the petitioners before the District Judge, Nainital, which was, ultimately, heard and dismissed by 1st Additional District Judge, Nainital vide order dated 22-11-1984 on the same ground.
4. It has been contended by the learned counsel for the petitioners that the learned Additional District Judge has observed that the record on file also establishes that Basant Singh is not in physical possession of these plots and is absconding and does not continuously reside in the village but these facts would not help the appellants to the extent that land of plot no. 128 and 143 M. should not be taken in the choice of the tenure-holder. Therefore, the appellants being not recorded as tenure-holders have no locus standi to file the appeal. Therefore, the appeal deserves to be dismissed."
5. The learned counsel for the petitioners has submitted that it is not necessary that the tenure holder must be a recorded tenure holder and that the tenure holder includes unrecorded tenure holder, who can file objection before the Prescribed Authority. Learned counsel has placed reliance upon the verdict of the Allahabad High Court in the case of Bageshwari Devi Vs. Shashi Bind Narain Sewar Pandey and another [1965, A.L.J., Page 756], wherein it has been held that 'Tenure-holder" as defied in Sec. 3(b) of the U.P. Imposition of Ceiling on Land Holdings Act, includes an unrecorded tenure-holder also. It was further held that a tenure holder, whether recorded or unrecorded can, as a matter of right, file an objection at the stage of Section 10(2) of the said Act. If no objection or application was made within the prescribed period, or an application already made cannot be deemed to be an objection under Section 10(2) of the Act, the Prescribed Authority can on sufficient cause being shown, permit the party to file an objection even after the expiry of the prescribed period.
6. Learned counsel for the petitioners further argued that service of notice under Rule 8 of the Rules framed under the said Act is preliminary to the acquisition of ju
