SETH BANARSI DASS Vs. STATE OF U P

JUDGEMENT

(1.) BY means of this petition filed under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the orders dated 11th May, 1978 and 9th December, 1976, passed by the appellate authority and the prescribed authority respectively under the U. P. Imposition of Ceiling on Land Holdings Act, (for short 'the Act') as well as the notices dated 26th June, 1974, 7th December, 1974 and 3rd June, 1976, contained in Annexures -3 to 14 to the writ petition.

(2.) THE relevant facts of the case giving rise to the present petition, as stated in the writ petition, in brief, are that the land in dispute was stated to have been acquired by Hindu Undivided Family of the petitioners of which Seth Banarsi Das was the karta before the enforcement of the U. P. Zamindari Abolition and Land Reforms Act. The land in dispute was also shown as owned by H.U.F. in Income Tax department. After the enforcement of the U. P. Zamindari Abolition and Land Reforms Act, the petitioners acquired bhumidhari rights in the same after following the procedure prescribed under the law. The petitioners before 1st May, 1959, planted fruit bearing trees of Malta, Mausmi, Aloocha, Lichi, Naspati, Chakrata, etc. in the land in dispute measuring 3,683 bighas. The land was, thus covered by the definition of "grove land" within the meaning of Section 3 (8) of the Act. The remaining land was covered by residential buildings, servant quarters, farm roads, temple, etc. It was in the year 1961 that the Act was enforced. After enforcement of the Act, notices under Section 10 (2) of the Act, were issued to the petitioners calling upon them to show cause as to why the land described in the said notices be not declared as surplus. On receipt of the said notices, the petitioners filed their objections contending that no land out of their holdings was liable to be declared as surplus as they were holding the land within their ceiling limit and that grove land was exempted from the operation of the Act. On the basis of the said notices, four cases, i.e., Nos. 12 of 1962, 13 of 1962, 14 of 1962 and 18 of 1962 were registered. Parties produced evidence, oral and documentary, in support of their cases. The prescribed authority after going through the evidence on the record discharged the notices by its Judgment and order dated 12.3.1962 holding that there was no land to be declared as surplus in the holdings of the petitioners. Long thereafter, in the year 1969, four notices were again issued against the petitioners under Section 10 (2) read with Section 29/30 of the Act to the petitioners allegedly on the basis of a report by the Tehsildar. The petitioners on receipt of the said notices, again filed objections contending that the grove in question continued to exist on the land in dispute and the remaining land was covered by abadi, temple etc. as before. While the aforesaid proceedings were pending before the Prescribed Authority, U. P. Act No. 18 of 1973 was enforced, by which the Act was amended. The ceiling limit was reduced from 40 acres to 18 acres of a tenure holder besides several other amendments were made. Section 19 of the said Act provided that the proceedings after commencement of the said Act, if any, pending before the authorities below shall abate and the prescribed authority was permitted to start fresh proceedings for re -determination of ceiling area by issuing notices under Section 9 (2) of the Principal Act as inserted by Act No. 18 of 1973. In view of the provisions of Act No. 18 of 1973, the proceedings initiated on the basis of notices dated 13.1.1969, were abated and fresh notices were issued against the petitioners under Section 9 (2) on 26.6.1974 calling upon them to show cause as to why the land shown in the said notices be not declared as surplus. In the meanwhile, it has been stated that on 7.5.1969, a co -operative society known as Meeduwala Sahkari Krishi Samiti Limited was formed and got registered under the Co -operative Societies Act, which consisted of 99 members, who have pooled their lands including the petitioners. Again on 17.12.1974, four fresh notices were issued against the petitioners. The said notices were presumed to have been issued under the amended provisions of the Act. On receipt of the said notices, objections were again filed by the petitioners pleading that originally the land in dispute was acquired by Hindu Undivided Family of which Seth Banarasi Das was the karta and each member of the family was the owner of the land, that the grove, which was standing in the land in dispute still existed, the land covered by temple, buildings, roads, etc. was also liable to be exempted. It was also pleaded that a co -operative society was formed and got registered on 7.5.1969, the proceedings could be taken under Section 5 (4) of the Act only. In the meanwhile, the Act was again amended by U. P. Act No. 20 of 1976. Sub -section (3) of Section 31 of the said Act provided that if there was order of determination of surplus land in relation to a tenure -holder made under the Principal Act before 10.10.1975, the prescribed authority could at any time within two years from the said date, re -determine the surplus land. In the present case, according to the petitioners, the proceedings started for determination of ceiling land on the basis of notices dated 26.5.1974 (Annexures -3 to 7) and notices dated 17.12.1974 (Annexures -7 to 10) were pending. Consequently, no fresh proceedings could be initiated under the provisions of U. P. Act No. 20 of 1976. However, the prescribed authority issued fresh notices to the petitioners on 3.6.1976, the copies of which are contained in Annexures -11 to 14 to the writ petition. In the said notices, the ceiling limit of the petitioners was reduced. On receipt of the said notices, the petitioners again filed objections contending that no land out of their holdings was liable to be declared as surplus. The prescribed authority, after permitting the parties to produce evidence in support of their cases, treating the Case No. 230 of 1968, State v. Mohan Lad, as the leading case, decided the four cases by its Judgment and order dated 23.7.1976, as copy of which is contained in Annexure -20 to the writ petition and declared an area measuring 3,398 bighas 3 biswas equivalent to 2123,84 acres as surplus land with 1/4th share of each of tenure -holders after determining the ceiling area under the Principal unamended Act. The prescribed authority accepted the objections of the petitioners with respect to the transfers made before 24.1.1971 while deciding the case under the U. P. Act No. 18 of 1973. He also gave benefit to Mohan Lal and Jitendra Lal with respect to their adult sons and gave them two hectares each additional land. The petitioners challenging the validity of the said order, preferred eight appeals before the appellate authority but no appeal was filed by the State against the order passed by the prescribed authority. The appellate authority dismissed all the eight appeals and also refused to give benefit regarding sale deeds and additional land to the sons which was granted by the prescribed authority by its judgment and order dated 11.5.1978, hence the present petition for the above mentioned reliefs.

(3.) UNDER the orders of this Court, the petitioners have also filed supplementary affidavit after inspecting the record of the case which, was summoned. It has been stated that there was no report of Tehsildar, Najibabad of the year 1968 on the record on the basis of which notices dated 31.1.1969 under Section 29/30 read with Section 10 (2) of the Act were issued. Further, the Tehsildar was not examined on oath to prove the alleged reports. On the other hand, one Shri V. D. Tyagi, Naib Tehsildar was examined who had absolutely no knowledge of the facts of the case, as P.W. 1. The report, if any, submitted by the Tehsildar in any other proceedings remained inadmissible in evidence. It has also been stated that the procedure prescribed for determination of the nature of land irrigated or un -irrigated as provided under Section 4A of the Act was not followed. No local inspection was made by the authority concerned or the relevant khasras were perused in spite of applications/ requests made by the petitioners. According to the petitioners, the grove as provided under Section 3 (8) of the Act still exists in the land in dispute and is also recorded in the relevant khasras. There also exist servant quarters, temple and water tank, threshing floor, etc. in the land in dispute which are exempted from the operation of the Act. The land covered by them was wrongly clubbed in the holding of the petitioners. It has also been stated that the petitioners have executed sale deeds in respect of certain land in favour of third persons, which were bona fide before 24.1.1971. According to the petitioners, notices Issued under Section 29 of the Act dated 31.1.1969 were wholly illegal and without jurisdiction. According to them, the entire proceedings initiated on the basis of the said notices were misconceived.