KAILASH CHANDRA Vs. STATE OF U P

JUDGEMENT

(1.) This writ petition arises out of proceedings under U. P. Imposition of Ceiling on Land Holdings Act, 1961. Notice under Section 10 (2) of the Act was served upon the original respondent No. 3 Babu Ram father of petitioner, in the year 1974. In the notice it was proposed to declare an area of 5. 3 acres of agricultural land belonging to original respondent No. 3 to be declared as surplus. Objections were filed which were rejected by Prescribed authority. By order dated 21-6-1976 Prescribed authority declared 7. 62 acres of irrigated land belonging to original respondent No. 3 as surplus land. Appeal filed against the said order was also dismissed by the District Judge through judgment and order dated 12-8-1977. Against the said order writ petition-was filed being writ petition No. 3865 of 1977 by the respondent No. 3. Writ petition was allowed on 28-3-1979 and matter was remanded to the appellate Court for deciding the appeal afresh. Judgment of the earlier writ petition has not been filed however from para 10 of the instant writ petition it appears that the matter was remanded only for considering the question of nature of land being irrigated or unirrigated. Thereafter appellate Court allowed the appeal in part on 11-4-1980 and reduced the area of surplus land from 7. 62 acres to 5. 62 acres in terms of irrigated land. Consequential order was passed by the Prescribed authority on 15-7-1980.

(2.) IN the aforesaid proceedings father of the petitioner i. e. original respondent No. 3 did not raise any point pertaining to joint bhoomidhariship of the petitioner with him. For the first time in 1985/86 when proceedings for taking possession of surplus land were going on against Babu Ram, petitioner filed objections before Prescribed authority. Petitioner contended that he was born in 1949 hence he had birth right in the Sir and Khudkast land of his father-respondent No. 3. It is important to note that petitioner's name was never recorded in the revenue records. Annexure-1 is copy of the application which does not bear any date. It appears that another application was filed on 18-7-1985 by the petitioner-seeking recall of the orders passed against his father. Petitioner himself filed documents before Prescribed authority pertaining to consolidation including copies of C. H. form No. 23, 41 and 45. Even during consolidation proceedings no plea was raised by the petitioner and he did not assert his right therein. Annexure-4 to the writ petition is copy of the list of documents filed by the petitioner before Prescribed authority under the Ceiling Act. C. H. form No. 23, 41 and 45 are mentioned at Sl. No. 10, 11 and 12.

(3.) LEARNED Counsel for the petitioner has cited the following authorities to contend that even an unrecorded son is share holder in the agricultural land of his father if the son was born before date of vesting under U. P. Z. A. and L. R. Act i. e. 1- 7-1952 and the land was held as Sir or Khudkast by the father before he (the son) was born: (1) Laxmi Singh v. A. D. J. , 1979 R. D. summary of cases 19 (2) Ram Chandra v. Commissioner & Director of Consolidation, 1970 R. D. 283 (D. B.) (3) Rajendra Singh v. State, 1978 A. L. J. 1341 (4) U. G. Sugar Mills v. Civil Judge, Bijnor, AIR 1970 Alld 130 (F. B.) (5) Baldeo Singh v. State of U. P. , 1980 Alld. Civil Journal 451 (F. B.) (6) S. Kumar v. State, 1979 (5) ALR 564 (F. B.) (7) State v. Ved Prakash & Ors. , 1997 A. W. C. (Supp) 869 (8) Jabar Singh v. Additional Commissioner, Meerut, 1998 (1) JCLR 12 (All) :1998 (32) A. L. R. 569 (9) R. P. Sahi v. Commissioner, Gorakhpur, 1998 (32) A. L. R. 578 (10) R. Singh v. State, 1983 A. L. J. 873 6. In the first authority it has been held that even if objection of being co-sharer by virtue of being family member has not been raised in consolidation proceedings, it can be raised in ceiling proceedings. In the second authority it has been held that un-recorded persons can also claim in Ceiling proceeding that they are co-sharers with their father having been born before enforcement of Zamindari Abolition Act if the property was Sir or Khudkasht of their father immediately before Zamindari Abolition. Similar view has been taken in the authorities at serial No. 3 and 7 to 10. In the Full Bench authority of U. G. Sugar Mills it has been held that entry in revenue record is not conclusive to decide that who is tenure holder and un-recorded tenure holder can also file objections. In the Full Bench authority of Baldeo Singh-it was held by the majority that objection under Section 11 (2) of the ceiling Act can be entered after the surplus land had been notified under Section 14 (1) of the Act and High Court could grant any relief. In the Full Bench of S. Kumar it was held that it was necessary for the Prescribed authority to issue notice to recorded tenure holders. 7. LEARNED Counsel has also cited an authority of the Supreme Court reported in Kailash Rai v. Jai Jai Ram, AIR 1973 SC 893. In the said authority it was held that Bhumidhari rights in lands can be claimed by a co-sharer under Section 18 (1) (a) of U. P. Zamindari Abolition and Land Reforms Act, 1950, even if he is not in actual cultivatory possession. 8. Supreme Court in a recent authority reported in Narendra Singh v. Jai Bhagwan, AIR 2005 SC 582, has held that the plea of a son that he was co-sharer in the agricultural land held by his father by virtue of being family member is barred by Section 49 of U. P. Consolidation of Holdings Act and if such plea is not raised during consolidation proceedings then it cannot be raised subsequently. In the instant case admittedly consolidation proceedings had taken place hence plea of the petitioner was barred by Section 49 of U. P. Consolidation of Holdings Act. The contrary view taken in the authorities of this Court (supra) is, therefore, no more good law. 9. Therefore, I find that the objections of the petitioner were liable to be rejected on merit. 10. Accordingly, writ petition is dismissed. Petition dismissed. .