Decided on February 17,1965

DAL CHAND Appellant
District Judge and Ors. Respondents

Referred Judgements :-



S.C. Manchanda, J. - (1.)THIS is an application under Article 227 of the Constitution by Dal Chand, directed against the order of the District Judge Mathura, dismissing his appeal against the refusal by the prescribed authority, under the UP Imposition of Ceiling on Land Holdings Act No. I of 1961 (hereinafter referred to as the Act), to set aside the ex parte order dated the 30th November 1961, Under Section 11(1) of the Act.
(2.)A notice under Section 10 of the Act accompanied by a statement prepared by the Prescribed Authority under Section 10(2) was is used to the Petitioner at his address in village Aring, District Mathura, calling upon him to show cause within the period specified in the notice why the statement signed be not taken as correct. This notice admittedly was served upon Sri Brijendra Singh one of the sons of the landlord on 19 -10 -1961. Another supplementary notice was served on his other son Gyanendra Swarup on 5 -11 -1961. According to the affidavit of the Petitioner, he was not informed of the said notice by his sons from whom he had separated and had been living in Mathura since the last ten years. In any event, it was claimed that he was lying ill in Mathura and had not visited his village Aring between the 30th September, 1961 and the 2nd April 1962. The Petitioner claims that he only came to know that the case had been decided ex parte against him on arriving in the village. Thereupon, he moved an application on the 4th of April, 1962 accompanied by an affidavit asking for the ex parte order to be set aside on the ground of want of service of the notice and lack of knowledge because of his absence from the village due to illness and medical treatment from the 30th September, 1961 to the 2nd April, 1962. The prescribed Authority refused to set aside the ex parte order on the ground that no medical certificate was filed by him and that in any event the objection was time barred. It was held that the notices were served on the sons who were living jointly with him and thus service was complete and proper. Aggrieved, the Petitioner filed an appeal to the District Judge who was of the view that the insurmountable hurdle in the way of the appeal was in the form of the bar of limitation as prescribed in Section 11(2) of the Act. According to him it was obligatory to file an objection within 30 days from the date of the order under Sub -section (1) and these words had to be construed literally regardless of whether the Petitioner in fact had knowledge of the order under Section 11(1) or not. Accordingly the appeal was rejected and the order of the prescribed Authority holding the application to be time barred was upheld. Hence this petition.
2. The points which fall for consideration are:

(1) Whether the provisions of Rule 9 which provides the various modes of service of notice under Rule 8 were complied with?

(2) Whether the period of limitation prescribed in Section 11 for moving an application under Section 11(2) will run only from the date of the order or in an appropriate case from the date of the knowledge of the order under Section 11(1) of the Act?

Section 9 provides for the publication of a general notice by the Prescribed Authority in the Official Gazette calling upon every tenure holder, holding land in excess of the ceiling area applicable to him, to submit, within 30 days of the date of the publication of the notice, a statement in respect of his holding in the prescribed form. If no such statement as required by Section 9 is furnished by the tenure holder then Section 10 makes it obligatory upon the Prescribed Authority after making such enquiry as he may consider necessary to prepare a statement containing such particulars, as may be prescribed. The Prescribed Authority has further been enjoined to serve upon every such tenure holder a notice together with a copy of the statement prepared under Sub -section (1) calling upon him to show, within the period specified in the notice, why the statement be not taken as correct. The service of a notice under Section 10, Sub -clause (2) is a mandatory provision. If, after notice has been served and the statement is not disputed within the specified period, then the Prescribed Authority may proceed to determine the surplus land of the tenure holder under Section 11(1) of the Act. After that stage has been passed then comes the relevant provision, Sub -section (1) of Section 11 which reads:

11(2). The Prescribed Authority shall, on application made within 30 days from the date of the order in Sub -section (1) by a tenure holder aggrieved by such order passed in his absence and on sufficient cause being shown for his absence set aside the order and allow such tenure holder to file objection against the statement prepared under Section 10 and proceed to decide the same in accordance with the provisions of Section 12.

It may be noticed that such application has to be made within 30 days from the date of the order under Sub -section (1). The interpretation of these words is the bone of contention in these proceedings. As already observed, according to the learned District Judge, these words mean literally the date of the order and there is no scope for interpreting these words to mean "from the date of the knowledge of the order." There is no warrant for placing the literal or mechanical meaning upon the words "date of the order". The Act places a ceiling upon holdings and anything over 40 acres of air quality land of an individual vests in the State. This Legislation can therefore well be described as confiscatory in nature and one which deprives the person of valuable rights in property. In such a case it would in certain circumstances be a travesty of justice to hold that the words "from the date of order" mean only the actual date of the passing of the order and not the date when knowledge of such order came into the possession of the aggrieved party. In a case from our High Court which went upto the Supreme Court, in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer, 1961 AWR 500 SC, the Supreme Court reversed the decision of this Court and held that under Sections 12 and 18 of the Land Acquisition Act, the date of the award must mean the date when the award is either communicated to the party or is known by him either actually or constructively. It was laid down that where the rights of persons are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by a reference to the making of the said order, the making of the order must mean either actual or constructive communication of the order to the party concerned. In the present case the narrow literal and mechanical interpretation, which has been placed on the words "from the date of the order" as providing the starting point of limitation for an application under Section 11(2) of the Act is unreasonable and unsustainable. In such a case the question to which the District Judge should have addressed himself was as to whether there was material on the record to show that there was actual or constructive communication of the order under Section 11(1) of the Act?

4. The provisions of Rule 9 may also be noticed. A notice under Rule 8 may be served either - -

(a) by delivering it to the person on whom it is to be served, or,

(b) by affixing it at the usual or the last known place of abode of that person, or

(c) by sending it by the registered post addressed to that person at the usual or last known place of abode. The Petitioner could have been served either by personal service or by affixation or by registered post. In the present case the service was on the sons of the Petitioner. Section 37 of the Act would appear to make the Code of Civil Procedure applicable in so far as it relates to the trial and disposal of suits. Therefore, under Order V, Rule XV of the Code service on any member of the family would be sufficient in the circumstances set out therein. In these circumstances the other question which required the attention of the District Judge was whether the Petitioner was separate from his sons and as such they ceased to be members of his family and therefore the service of notice on them could not be taken to be service within the meaning of Order V, Rule XV of the Code. A finding on this question was also required to be given.

5. For the reasons given above the order of the District Judge is quashed and he is directed to rehear the appeal and dispose it of in accordance with Law.

6. The application is allowed but there will be no orders as to costs.


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