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2010 Supreme(UK) 755
2011 (1) UAD 833
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Tarun Agarwala
Writ Petition No. 2765 of 2001
AMAR SINGH & ORS. – Petitioners
Versus
STATE & ORS. – Respondents
Decided on : 26.11.2010
For the Petitioners:Mr. M.C. Pandey, Advocate
For the Respondents: Mr. Sudhir Kumar, Brief Holder
Headnote:(A) Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, Sec. 10(2) r/w Uttar Pradesh Imposition of Ceiling on Land Holdings Rules, 1961, Rule 8 — Notice u/s 10(2) r/w R. 8 of the Rules is required to be sent not only to a recorded tenure holder but also to an unrecorded tenure holder who is in possession of the land. (Para 9)
(B) Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, Secs. 3(b), 10(2) — A tenure holder, as defined in Section 3(b) of the U.P. Imposition of Ceiling on Land Holdings Act, includes an unrecorded tenure holder also — Further held that a tenure holder whether recorded or unrecorded has a right to file an objection at the stage of Section 10(2) of the said Act — Therefore an unrecorded tenure holder, who is in possession of the land, is entitled to object to the proceedings initiated under the Act, 1960 — And can file an objection u/s 10(2) of the Act. (Para 14)
(C) Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, Secs. 3(9), 3(17), 10(2) and Uttar Pradesh Imposition of Ceiling on Land Holdings Rules, 1961, Rule 8 — Having regard to the circumstnces of the present case, once an objection had been filed by an unrecorded tenure holder, which objection was considered and dealt with on merits — The initial defect, if, any stood cured and it was no longer open to the petitioners to contend that the proceedings initiated u/s 10 of the Act were illegal in the absence of a notice not being issued to the petitioners — That is, after raising objections and getting the matter decided on merits, the objector cannot turn around at this stage and allege that the initial proceedings were void ab initio. (Para 16)
(D) Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, Sec. 5(6) — Provision under — In determining the ceiling area applicable to a tenure-holer — Any transfer of land made after the twenty-fourth day of January, 1971 — Which but for the transfer would have been declared surplus land under this Act — Shall be ignored and not taken into account. (Para 17)
¼v½ mRrj izns'k bEiksft'ku vkWQ lhfyax vku yS.M gksfYMaXl ,DV] 1960] /kkjk 10¼2½ lifBr m-iz- bEiksft'ku vkWQ lhfyax vku yS.M gksfYMaXl fu;ekoyh] 1961] fu;e 8] /kkjk 10¼2½ lifBr fu;e 8 & ds vUrxZr uksfVl dsoy bUækt 'kqnk iV~Vsnkj dks gh ugha Hkstk tkuk gS ijUrq fcuk bUækt 'kqnk iV~Vsnkj dks Hkh fn;k tkuk gS tks Hkwfe dk dCtsnkj gSA ¼izLrj 9½
¼c½ mRrj izns'k bEiksft'ku vkWQ lhfyax vku yS.M gksfYMaXl ,DV] 1960] /kkjk 10¼2½ & tSlk fd /kkjk 3(b) esa ifjHkkf"kr gS iV~Vsnkj dk rkRi;Z ,d fcuk bUækt'kqnk iV~Vsnkj ls Hkh gS & vkxs fu.kZ; esa dgk x;k gS fd ,d iV~Vsnkj pkgs bUækt'kqnk gks vFkok fcuk bUækt'kqnk] dks ;g vf/kdkj gS fd og /kkjk 10¼2½ ds vUrxZr bl Lrj ij vkifRr nk;j djs & blfy, ,d fcuk bUækt'kqnk ¼vu vfHkfyf[kr½ iV~Vsnkj ftlds dCts esa Hkwfe gS] og vf/kfu;e 1960 ds vUrxZr izkjEHk dk;Zokgh esa vkifRr djus dk vf/kdkjh gS vkSj og /kkjk 10¼2½ ds rgr vkifRr nk;j dj ldrk gSA ¼izLrj 14½
¼l½ mRrj izns'k bEiksft'ku vkWQ lhfyax vku yS.M gksfYMaXl ,DV] 1960] /kkjk 3¼9½] 3¼17½] 10¼2½ vkSj mRrj izns'k bEiksft'ku vkWQ lhfyax vku yS.M gksfYMaXl fu;ekoyh] 1961] fu;e 8 & ;g fd vkifRr;ka nk;j djus ds mijkUr vkSj ekeyk fuiV tkus ds ckn] vkifRr nk;j drkZ bl Lrj ij cny ugha ldrk vkSj ;g vkjksi ugha yxk ldrk fd izkjafHkd dk;Zokgh izkjaHk ls gh voS/k Fkh & izLrqr dsl dh ifjfLFkfr;ksa dks /;ku esa j[krs gq, tc ,d ckj vkifRr nk;j dh tk pqdh Fkh tks fd ,d fcuk bUækt 'kqnk ¼vu vfHkfyf[kr½ iV~Vsnkj }kjk nk;j dh xbZ Fkh tks fd xq.knks"k ds vk/kkj ij gS dh tk pqdh Fkh rks ;fn dksbZ izkjafHkd deh Fkh rks og Bhd gks pqdh Fkh rks ;g vc vkxs ;kph }kjk ;g dgrs gq, ugha mBkbZ tkuh pkfg, Fkh fd vf/kfu;e dh /kkjk 10 ds vUrxZr izkjEHk dh xbZ dk;Zokgh ;kph dks uksfVl fuxZr uk fd;s tkus ds vHkko esa vfu;fer FkhA ¼izLrj 16½
¼n½ mRrj izns'k bEiksft'ku vkWQ lhfyax vku yS.M gksfYMaXl ,Dr] 1960] /kkjk 5¼6½ & ds izkfo/kku & iV~Vsnkj ds lhfyax ,fj;k dk fu/kkZj.k & 24 tuojh] 1971 ds i'pkr Hkwfe dk dksbZ Hkh vUrj.k tks fd vUrj.k ds okLrs Qkyrw ?kksf"kr fd;k tk pqdk Fkk dks NksM+ fn;k tk,xk vkSj ml ij dksbZ dk;Zokgh ugha dh tk,xhA ¼izLrj 17½
Heard Mr. M.C. Pandey, the learned counsel for the petitioners and Mr. Sudhir Kumar, the learned Brief Holder for the State.
2. Proceedings under Uttar Pradesh Imposition of Ceiling of Land Holdings Act, 1960 (hereinafter referred to as Act, 1960) was initiated against the recorded tenure holders. A notice under Section 10(2) of the Act was issued to respondent no. 4 Shri Prem Nath Mehta to show cause as to why the proposed land measuring 50.77 acres in village Kuwakhera and Sitarampur be not declared surplus.
3. The tenure holder respondent no. 4 filed his objections stating that in village Kuwakhera 85.90 acres of land was purchased by Sri Subhash Mehta, Sri Raj Nath Mehta, Sri Deepak Mehta and respondent no. 4 by separate registered sale deeds dated 17.11.1969 and that the area was put to consolidation in which respondent no. 4 was allotted 18.274 acres. It was further stated that respondent no. 4 thereafter transferred the aforementioned land vide separate sale deeds to other persons in good faith and for adequate sale consideration and that the names of the purchasers were also recorded in the revenue records. It was also alleged that the notice issued under Rule 8 was incorrect as several other lands not belonging to the respondent no. 4 were included. The said respondent contended that the land measuring 18.274 acres in village Kuwakhera after consolidation was below the ceiling limit and consequently, there was no restriction for the transfer of the land. It was further contended that in so far as the land of Sitarampur was concerned, a suitable reply would be filed subsequently after obtaining the certified copies of the revenue records for the year 1974 to 1984 fasli.
4. The petitioners are not recorded tenure holders but contend that they are in possession of the land at village Sitarampur and are in cultivatory possession and consequently, they are entitled for a notice under Section 10(2) of the Act. Since notice was not given and the petitioners came to know that the proceedings under the Act had been initiated, they appeared and filed objections separately under Section 10 of the Act.
5. The petitioner no. 1 in his objection contended that the name of respondent no. 4 had wrongly been shown as a tenure holder and that the ceiling papers had not been prepared on the basis of a spot inspection. The petitioner no. 1 contended that he was in possession of the land since 1376 fasli and is in possession since then. The petitioners contended that P.N. Mehta was not in possession since 1376 fasli. The petitioner no. 1 contended that since he was in possession, he moved an application under Section 39 of the Land Revenue Act, on the basis of which, the Assistant Collector directed the Tehsildar to enquire and submit a report, and based on such report, the Assistant Collector, vide an order dated 1.11.1977, recorded the name of the petitioner on the basis of possession of some portion of the land. The petitioners contended that village Sitarampur was not under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the UPZA & LR Act) and was governed by the U.P. Tenancy Act. The UPZA & LR Act came into force w.e.f. 26.10.1970 and that the original tenure holder did not file any suit for eviction within the stipulated period of three years, as a result of which, the original tenure holder extinguished his right after the expiry of three years and the petitioner became a Bhumidhar of the land under Section 210 of the UPZA & LR Act. Similar objections were also filed by other petitioners.
6. In support of the contention of the petitioners, the statement of petitioner no. 3 was recorded denying the possession of respondent no. 4. It also transpires that respondent no. 4 did not file any further objection with regard to his land in village Sitarampur, but appeared and deposed alleging that he had surrendered all his rights in village Sitarampur from 1968 onwards and that his name
