S.K.Singh - (1.) -By means of this writ petition petitioners have challenged the judgment of the appellate authority and of the prescribed authority dated 19.12.1996 and 16.9.1996 (Annexures-8 and 6 respectively) by which petitioner's application under Section 11 (2) of the U. P. Imposition of Ceiling on Land Holdings Act, (hereinafter referred to as the Act) has been rejected.
(2.) THERE appears to be no dispute about the fact that proceedings under Section 10 (2) of the Act was started against one Data Ram. Petitioners who are although married daughters of Data Ram, referred above but they claim to be having their independent rights on the basis of registered sale deed in their favour dated 22.9.1971 on the basis of which their names were also mutated on 14.1.1972. In the proceedings under Section 10 (2) of the Act land covered by the sale deed in favour of the petitioners was claimed for being excluded, but Data Ram could not succeed and the prescribed authority by its judgment dated 2.1.1975 declared certain area as surplus. Having remained unsuccessful upto this Court Data Ram took up the matter to the Apex Court. During pendency of the appeal before the Apex Court Data Ram died. It is claimed that although he left behind him Dayawati his widow as heir but by moving substitution application petitioners were also brought on record. Finally the Apex Court also dismissed the appeal by its judgment dated 14.11.1995 by accepting the findings of the authorities that the agreement was manufactured. After dismissal of the appeal by the Apex Court it is on the premises that when Ceiling authorities intended to take possession from the petitioners then they came to know about the fact that their land is to be taken by virtue of declaration of land as surplus in the proceedings against Data Ram, they filed objection on 13.12.1995 under Section 11 (2) of the Act which came to be rejected by the respondents 2 and 3 by judgments referred above against which petitioners have come up to this Court. Sri R. N. Singh, learned senior Advocate assisted by Sri A. K. Rai, learned Advocate submits that as on 8.6.1973 petitioners were recorded tenure holder and therefore, if the statement in C.L.H. form 3 includes the land ostensibly held in the name of any other person it was obligatory on the part of the State authority to serve notice on the petitioners as well as C.L.H. form 4 together with the copy of the statement in C.L.H. 3 calling upon him to show cause. It is argued that as this was not done which is mandatory on the part of the State Authority the entire proceedings by which land held by the petitioner has been declared as surplus is nullity and is void. It is submitted that premises on which the authorities have rejected petitioner's application that petitioners had knowledge of the proceedings by virtue of the fact that they were brought on record in the pending appeal before the Apex Court is totally misconceived for the simple reason that bringing on record of the petitioners can be said to be only for the purpose of prosecution of the case and they cannot be expected to have any other say except to plead for the claim/rights of the parties/tenure holder for whom they have been substituted. Otherwise also they were substituted as heirs of the deceased but in the event if the petitioners have their independent rights in the land they can very well lay their claim as and when occasion arises. It is argued that as even the unrecorded tenure holder laying his claim to the land has been permitted by this Court to file an objection under Section 11 (2) of the Act, so far the petitioners are concerned they were recorded much before 8.6.1973 and therefore, they have every right to file their objection for consideration of their claim on the merits whatever it has worth either to be accepted or to be rejected, but the authorities cannot be permitted to refuse to entertain their claim and consider it on the merits. Learned counsel for the petitioner in support of submission that in view of the 1st proviso of Rule 8 of U. P. Imposition of Ceiling on Land Holdings Rules, 1961, hereinafter referred to as the Rules, issuance of the notice to the petitioner was mandatory, has placed reliance on the decision given by Full Bench of this Court in case of Shantanu Kumar v. State of U. P., 1979 ALJ 1174. In support of the submission that there may not be a presumption about knowledge to the person to whom notices were not issued even if he may be the son and even doing pairvi on behalf of the tenure holder reliance has been placed on the decision given by this Court in case of Mahfuzul Rahman v. State of U. P., 1987 RD 239 and Hari Ram v. Special Additional District Judge, Faizabad and others, 1989 RD 295. In view of the aforesaid, it is submitted that judgment of the respondents 2 and 3 be quashed so that petitioners may get opportunity to get their claim adjudicated on the merits.
(3.) IN response to the aforesaid submissions Sri A. K. Banerjee, learned standing counsel submits that as genuineness of the sale deed on the basis of which petitioners are laying their claim has already been adjudicated upto the Apex Court and it has not been found to be genuine transaction, petitioners are not entitled to get opportunity in the matter specially in view of the fact that they were brought on record in the proceedings before the Apex Court and they had full knowledge of the proceedings but they have never pleaded about their claim. It is further submitted that the respondents 2 and 3 has rightly taken the view that the contention of the petitioners that they could come to know about their factum of taking of their land on account of declaration of the land as surplus on 30.11.1995 cannot be accepted as petitioners were brought on record in the proceedings before the Apex Court itself. It is then submitted that in view of Rule 19 (4) of the Rules where tenureholder dies his heirs or other legal representatives are to file their objection within the time so provided which petitioners failed to file and thus petitioners cannot be permitted to get the same controversy re-opened by filing present objection under Section 11 (2) of the Act. It is argued that on the fact, rejection of the petitioner's objection cannot be said to be erroneous in any manner. In view of the aforesaid arguments, the facts as has come on the record has been examined.;