Lalita Devi and others vs Addl. Commissioner, Jhansi and others

Arun Tandon, J.—Proceedings u/s 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 were initiated against one Saheb Din culminating in an order of the prescribed authority dated 7.1.1975 whereunder the prescribed authority after accepting the family settlement as determined 14-17-0 bighas of land as surplus. Before the prescribed authority three issues were framed:

(a) Where there has been family partition between the recorded tenure holder and other members of the family and as to whether the family partition in fact has been given effect to.

(b) Where the two sons of the tenure holder namely Krishna alias Munna and Ram Krishna alias Lallu were major on the relevant date.

(c) Whether plot No. 343/1 area 19 bighas was unirrigated.

The prescribed authority held that family partition has taken place between the recorded tenure holder, his wife and sons. With regard to issue No. 2, it was held that the two sons namely Krishna alias Munna and Ram Krishna alias Lallu were major and the issues have been decided accordingly.

Lastly, it was held that the holdings recorded in the name of the tenure holder, his wife and his minor son Lallu shall be treated to be the holding of the tenure holder and that the wife and the minor son should not be treated as separate tenure holders. The land holdings which had fallen in the share of two major sons was excluded. The ceiling limits of the tenure holder was determined and it was held that he had 14 bighas and 17 biswas land as surplus.

It is stated in paragraph 7 of the writ petition is that against the order of the prescribed authority dated 17.1.1975, an appeal was filed, which was allowed and the case was remanded for fresh decision after serving a reserved statement as per the amended provisions.

The prescribed authority thereafter is stated to have been issued a fresh notice, to which no separate objections were filed and it was orally contended that the land was ancestral property. Two sons were born before the abolition of zamindari. Another set of objections were filed by one Brijesh Kumar stating therein that the recorded tenure holder executed a sale deed in his favour and the land covered by the sale deeds may be excluded from the holding of the tenure holder. Accordingly, four issues were framed:

(a) Whether there was family partition between the family members of the recorded tenure holder.

(b) Whether Krishna alias Munna and Ram Krishna alias Lallu were major on the relevant date.

(c) Whether plot No. 343/1 was irrigated and lastly.

(d) Whether plot No. 1446 has been transferred by way of sale and if so its effect.

Prescribed authority affirmed the findings recorded in the earlier order dated 7.1.1975 so far as issues No. 1, 2 and 3 are concerned. With regard to issue No. 4, it has been held that the sale has only been affected for the purpose of avoiding the ceiling proceedings and that transfer was not bona fide. The ceiling limits of the tenure holder were redetermined, the exact plots to be taken as surplus were specifically noticed in order itself.

There is nothing on record of this writ petition, which could establish that the order dated 30.9.1976 was subjected to any further challenge or not by the recorded tenure holder. What has been stated is that after nearly seven years of the said order the petitioners became aware that their land is being taken as surplus, therefore, the mother and the two sons namely Krishna alias Munna and Ram Krishan alias Lallu filed three separate applications contending therein that they may be impleaded as party to the proceedings and the matter be decided afresh.

On behalf of the State, it is stated that against the order of the prescribed authority dated 30.9.1976 Appeal No. 731/1976 was filed by the recorded tenure holder which was dismissed by the appellate authority on 28.2.1977. It is further stated that under the order of the prescribed authority, the family partition was accepted and it was further directed that the land which has fallen in the share of tenure holder, his wife and minor son alone be treated to be the land holding of tenure holder for the purpose of determination of ceiling. At no point of time any judicial separation with the wife was pleaded by the husband. In these circumstances, it was not necessary to issue any notice to the wife or the minor son. It is stated that the land which has fallen in the share of the major son after partition, have been excluded in the matter of determination of ceiling of their father and only the land of minor son has been included. It is also stated that the relevant point of time Lallu was minor and under the guardianship of his father and, therefore, his land has rightly been included in the matter of determination of ceiling limit. He was not entitled to a separate notice.

The prescribed authority after considering the facts stated in the three applications as well as objections raised on behalf of the State found that the applications made were clearly an afterthought. At no point of time, any judicial separation between the husband and wife was pleaded in the ceiling proceedings taken against husband which had become final as early in the year 1976. The objections after seven years of such orders of the competent authority was wholly misplaced. It has been held that no application in the facts of the case is to be entertained.

The prescribed authority lastly recorded that the applications were referable in Section 13A and could be filed within two years of the order.

Not being satisfied with the orders of the prescribed authority passed on the application so made by the petitioners, they preferred three appeals u/s 13. The appeals have also been rejected on similar grounds. In the appellate order also reference has been made to Section 13A where under the applications were made.

Counsel for the petitioners contended that in the facts of the case, the objections were referable u/s 10 (2) and not to Section 13A and, therefore, the orders passed by the prescribed authority as well as appellate authority are based on misreading of the statutory provisions.

The contention raised is only a camouflage to question the order passed by the authorities impugned in the writ petition. For reasons best known, the memo of appeal giving rise to the order dated 5.9.1988 has not been brought on record, therefore, it is not possible for this Court to ascertain as to whether any such plea was raised before the appellate authority. From the appellate court it is apparently clear that no such plea was raised at least not pressed.

New grounds cannot be permitted for challenging the order passed by the statutory authorities. There was no obligation upon the authorities to have recorded any finding in that regard as no such pleas was raised.

However, this Court has considered the submission which has been made for the first time before the writ court on merits also.

From the records as noted above, it is apparently clear that the land of the major sons after family partition had been excluded from the tenure holdings of the recorded tenure holder. Therefore, the major sons can have no objection nor can they ask for any notice under Rule 8 being issued to them. So far as the wife and the minor son are concerned both authorities have recorded a categorical finding that the plea of judicial separation between the husband and wife was never pleaded nor established in the matter of determination of ceiling limits of the recorded tenure holder. Such a plea after seven years of the order of the appellate authority is only an attempt to obstruct the possession of the surplus land being taken.

In view of the above, the authorities are justified in rejecting the objection filed by the present petitioners. This petition lacks merit and is accordingly dismissed.