Om Pal Singh and Another vs State of U.P.and Others

B. Dikshit, J.—By this petition the petitioner has challenged the order dated 3091986 passed by Prescribed Authority under U. P. Imposition of Ceiling on Land Holdings Act (for short ''Prescribed Authority'') and appellate authority order dated 2371987 dismissing the appeal of petitioner. As counteraffidavit has been filed but no rejoinderaffidavit has been filed, the writ petition can be finally disposed of at the stage of admission and it is being disposed of in accordance with Rules of the Court.

By a notice issued u/S. 10 (2) of U.P. Imposition of Ceiling on L H Act (in short Act'') the Prescribed Authority proposed 3 acres of land belonging to Ram Charan Singh, father of the petitioned, as surplus. The notice was contested by Ram Charan Singh. Prescribed Authority by order dt. 13175 discharged the notice against which an appeal was preferred by State of U.P. A fresh notice was issued u/ S. 10 (2) of the Act on 2161976 in the name of Ram Charan Singh after enforcement of U.P. Imposition of Ceiling on L.H. (Amend.) Act, 1976, proposing 2.57 acres of irrigated land as surplus. An objection was filed by Ram Charan Singh on 23676. The Prescribed Authority by order dt. 25676 rejected the objection and confirmed notice and proposed plot No. 4 of village Mubarakpur Talan having an area of 4 Bigha 2 Biswa 7 Biswansi for being declared as surplus. Ram Charan Singh preferred an appeal u/S. 13 of the Act which was dismissed on 261077. A writ petition was also filed by him which was dismissed by order dl. 221178. Subsequently, when it came to taking over of possession, an application under Section 13A of the Act was moved on behalf of State of U.P. wherein it was claimed that in CLH Form No. 6 direction was issued for taking over of possession of plot No. 4 area 4 Bigha 2 Biswa 7 Biswansi but the said form was returned by TehsildarBijonore, with the report that plot no, 4 did not belong to tenureholder Ram Charan Singh. This application was moved by State after receipt of the report of NaibTehsildar (Ceiling) submitted after an enquiry at which he concluded that plot No. 4 was not of tenureholder Ram Charan Singh. The application u/S. 13A was moved, according to contesting opposite parties, for correction of mistake to the effect that as plot No. 4 did not belong to petitioner, therefore, some other land of petitioner be declared as surplus. As the tenureholder was dead at the time of moving of application, an objection was taken by petitioners to the effect that if said plot is not accepted to be belonging to Ram Charan Singh and if the land is treated as not belonging to tenureholder then that land is to be deducted from holding of petitioner for determining if petitioner held land beyond the prescribed ceiling limit and if any land was to be declared as surplus with Ram Charan Singh. The petitioners also objected to the maintainability of such an application for change of land to be declared surplus on an application u/S. 13A of the Act. The prescribed Authority by order dated 13.9.1986 rejected the objection of petitioners and accepting the case of State directed that surplus land be taken from plot No. 575 instead of plot No. 4. The petitioners feeling aggrieved preferred an appeal. The appeal was dismissed on 23787 and thereafter petitioners have filed this writ petition.

Learned counsel for petitioners argued that if the stand taken by State that plot No. 4 with an area of 4 Bigha 2 Biswa 7 Biswansi did not belong to petitioners'' father Ram Charan Singh then Ram Charan Singh did not hold land beyond ceiling limit applicable to him. This was argued in view of the fact that the plot No. 4 was held to be of Ram Charan Singh due to which land exceeded his ceiling limit. That plot was the basis for determining that petitioners were possessed of land beyond their ceiling limit, which alone was to be taken as surplus. He also argued that in case the stand taken by State of Uttar Pradesh is accepted that plot did not belong to petitioners then the error of ceiling authorities can also be rectified under Section 13A as it is to be treated an error apparent on the face of record. The learned Standing Counsel for the respondents opposed the argument. He contended that as petitioners were possessed of surplus land which was determined finally by Prescribed Authority and the appeal as well as writ petition filed against it also failed, the contesting opposite party cannot be allowed to claim that Ram Charan Singh was not possessed of any surplus land and the determination of ceiling area of petitioners fathers, Ram Charan Singh, stands finally determined.

A copy of notice together with draft statement, which was served on Ram Charan Singh, has been filed by the petitioner as Annexure 2 to the writ petition. In the draft statement accompanying notice, plot No. 4 has been shown as proposed surplus with an area of 4 Bigha 2 Biswa 7 Biswansi, Once the ceiling was determined considering plot No. 4 to be that of petitioners father then it did not remain open for State order, as it has been taken up in counteraffidavit, that the land did not belong to petitioners. The State cannot be allowed to takeup such a stand under an appropriately law and deprive a tenureholder of his land with nominal compensation, which has no relation with market value of the property. Even if petitioners failed before Prescribed Authority in establishing that plot No. 4. did not belong to them and State succeeded in this respect still in a welfare society when State came to know the true position then it ought to have got the matter reopened and got the land held by petitioners recalculated after deduction of area of plot No. 4 from his holding in all fairness. The State did not do so and NaibTehsildar asked for some other land to be taken from the holding of petitioners in place of plot No. 4 surplus, which request has been accepted by Prescribed Authority as well as appellate authority. The State cannot be allowed to take advantage with such an inconsistent stand. If such a stand is permitted then it will be permitting fraud upon the statute as although State has come to know and the stand of State at the stage of taking possession of surplus land is that particular plot did not belong to petitioners yet order passed has to be given effect in view of its success at initial stage wherein it was determined that the plot belonged to petitioners. Such a situation, if allowed to stand, will be most unfair. This takes us to the question as to how the things are to be set right in such situation.

U.P. Imposition of Ceiling on Land Holding Act is a social welfare legislation enacted with the object of equitable distribution of land. To achieve said object a ceiling limit has been fixed by the Act so that none holds land beyond that limit. To ascertain if tenureholder is having land beyond Ceiling limit and if he has then how much is to be taken as surplus may give rise to a dispute between a tenureholder and State, which did arise in this case. All such adjudications by ceiling authorities are only for the purpose of ascertaining that no tenureholder holds land beyond his ceiling limits. In such situation if at any time, in giving effect to an order determining surplus land with a tenureholder, the Prescribed Authority finds that the land of which possession was being taken did not belong to tenureholder but to some other person then in such a situation the power to rectify apparent error under Section 13A of the Act can be taken recourse to. Such power gives rise to an apparent error for invoking power to rectify. Even if Section 13A had not been there then an implied power could be inferred with ceiling authorities, who, are supposed to take over land possessed by petitioners if they hold any land beyond their ceiling limit. Such an interpretation is necessary in all fairness for doing justice to parties so that the tenure holder is not deprived of any land held by him which is within the ceiling limit applicable to him. It goes without saying that just like courts, the ceiling authorities cannot be allowed to sacrifice doing justice to a tenureholder merely on technicality. If they cannot get possession of a land declared by them surplus for the reason that it does not belong to tenure holder but is included in the holding of tenureholder then the ends of justice requires that they should be made to reopen the matter and after excluding such land from the holding of petitioner redetermine land of his holding and if it is found that the tenureholder has some surplus land then possession of only that much land be taken. Keeping these aspects in view I am of the opinion that in this case the end of justice will be met if the Prescribed Authority is directed to reopen the determination of ceiling area of petitioners and to see that after leaving out the area of plot No. 4 if petitioners are possessed of any land beyond ceiling limit applicable to them. This can be done in exercise of power under Section 13A of the Act as an error apparent on the face of record. As plot No. 4 was considered to be that of petitioners while determining ceiling limit and surplus land with petitioners and subsequently the case setup by State is that said plot did not belong to petitioners, the error could be rectified as an error apparent on the face of record. Thus, for said reason the orders dated 3091986 passed by Prescribed Authority (Annexure4 to the writ petition) and that of appellate authority dated 2371987 (Annexure5 to the writ petition) are to be quashed and the case is to be sent back to the Prescribed Authority to redetermine if petitioners are possessed of any land beyond their ceiling limit after leaving out plot No. 4 from petitioners holding. In case Prescribed Authority cames to the conclusion that petitioners are possessed of land beyond ceiling limit after exclusion of plot No. 4 then it will be open for Prescribed Authority to take possession of that much of land which is surplus after considering the choice of petitioners, if any.

For the aforesaid reasons, the writ petition succeeds and is allowed. The orders dated 3091986 passed by Prescribed Authority (Annexure4 to the writ petition) and order dated 2371987 passed by appellate court (Annexure5 to the writ petition) are quashed. The Prescribed Authority is directed to dispose of the objection of petitioners filed against the application of NaibTehsiklar under Section 13A of the Act afresh in the light of aforesaid observations.

There shall be no order as to costs.