- (1.) HEARD Sri Tarun Varma, learned counsel for the petitioner, Sri Sanjay Goswami, learned Additional Chief Standing Counsel for the respondents.
(2.) COUNTER and rejoinder affidavits have been exchanged between the parities and with the consent of learned counsel for the parties this writ petition is being decided finally today itself. This writ petition arises out of proceedings under the U.P. Imposition of Land Holdings Act, 1960. This writ petition is directed against the order dated 30.03.1996 passed by the Prescribed Authority, Additional District Magistrate, Maharajganj as also the order dated 10.03.1999 passed by the Additional Commissioner (Judicial) Gorakhpur, whereby the Appeal No.64/37/M of 1996 filed by the petitioner has been dismissed. Learned counsel for the petitioner has submitted that Kedarnath and his wife Sarswati Devi were owners of the land in question, however, in a proceedings under Section 176 of the U.P.Z.A. & L.R Act the share of Bhagwati Devi daughter of Kedarnath and Sarswati Devi was separated. He states that the petitioner is son of Bhagwati Devi, however, even after remand under the impugned order the share of Bhagwati Devi has been clubbed with that of Kedarnath and Sarswati Devi and land has been declared surplus insofar as it relates to village Lejar Mahadev and village Jangal Dughyee. According to learned counsel when there was a decree of the year 1959 under Section 176 of the U.P.Z.A. &? L.R. Act before enforcement of U.P. Imposition of Ceiling on Land Holdings Act, 1960 the said decree ought to have been taken into account and although the matter was once remanded by the Appellate Court the same has been ignored on frivolous grounds and hence the impugned order is liable to be set aside relating to the share of his mother Bhagwati Devi in village Lejar Mahadev and village Jangal Dughyee. Sri Sanjay Goswami, learned Additional Chief Standing Counsel appearing on behalf of the respondents has submitted that insofar as the decree under Section 176 of the U.P.Z.A. & L.R. Act is concerned, the same was ex-parte against the Gaon Sabha and the State was not made a party in those proceedings and hence under the impugned orders it has rightly been held that decree of 1959 is not binding on the State of U.P. He further justified the impugned order by saying that the land in question was entered in the name of Kedarnath and his wife Sarswati Devi and, therefore, also there is no error in clubbing the same and declaring it as surplus in the hands of Kedarnath. Having considered the submissions of learned counsel for the parties and perused the record, insofar as the proceedings under Section 176 of the U.P.Z.A. &? L.R. Act are concerned, admittedly the decree was ex-parte against the Gaon Sabha which was a party in the Suit, however, it appears that the Gaon Sabha did not take the matter further and, therefore, the ex-parte decree of 1959 is still good. Insofar as the submission that the State was not a party in the proceedings under Section 176 of the U.P.Z.A. & L.R. Act is concerned, the State was not a necessary party in proceedings for division between co-tenure holders. In such proceedings which is held amongst the co-tenure holders, the submission that the decree under Section 176 of the U.P.Z.A. and L.R. Act will not be binding on the State because it was not a party, would have no relevance insofar as the present case is concerned because the U.P. Imposition of Ceiling on Land Holdings Act was enforced w.e.f. 08.06.1973 and the cut of date was 24.01.1971. The definition of family in Section 3(7) of the Act indicates that the minor sons and minor daughters (other than married daughter) are included in the definition of the family whereas a tenure holder means a person who is holder of the holdings but it does not include a woman whose husband is a tenure holder or a minor child whose father or mother is a tenure holder. In the present case admittedly Bhagwati Devi, the daughter of Kedarnath and Sarswati Devi on the cut of date was married and, therefore, could not be included with her father since she was not a member of the family as defined under the Act. Under such circumstances, the order clubbing the land held by Bhagwati Devi (in pursuance of the decree under Section 176 of the U.P.Z.A. & L.R. Act which decree was passed prior to enforcement of the Act wherein the Gaon Sabha was a party) with that of her father Kedarnath was illegal. The petitioner is son of Bhagwati Devi. Since the State was not a necessary party in proceedings? under Section 176 of the U.P.Z.A. & L.R. Act, the State cannot now obstruct or ignore the decree passed under Section 176 of the Act prior to enforcement of the Act.
(3.) IN view of the aforesaid circumstances, the impugned order dated 10.03.1999 passed by the Additional Commissioner (Judicial) Gorakhpur in Appeal No.64/37/M of 1996 as also the order dated 30.03.1996 passed by the Prescribed Authority, Additional District Magistrate, Maharajganj, in Case No.38/106/132 is set aside insofar as the petitioner is concerned relating to the land situate in village Lejar Mahadev and village Jangal Dughyee.;