- (1.) V. C. Misra, J. Sri V. K. S. Chaudhary learned Senior Advocate as sisted by Sri Kunal Ravi Singh and Sri R. S. Maurya, Advocates on behalf of the petitioner and the learned Standing Counsel on behalf of the respondents are present.
(2.) BOTH the above said writ petitions being identical in nature with common reliefs and grounds against the same impugned orders dated 30. 4. 1992 and 12. 8. 1992 are being decided together by this Judgment. BOTH the writ petitions have been filed from the orders of Prescribed Authority and Commissioner in proceeding under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (here inafter referred to as the Act) by which all the four brothers have been treated as one tenure holder a'nd their agricultural holdings have been clubbed together and declared surplus being beyond the ceiling limit. The facts of the case in brief are that one Sri Brij Narain Verma son of Jai Narain along with 5 sons (1) Govind Narain (2) Deep Narain (3) Onkar Narain (4) Aditya Narain and (5) Alok Narain were the owners of their respective shares in plots 676 and 678 both abadi and plots 281, 377 and 434 as groves by way of succession and were in physical possession of the same. Sri Brij Narain Verma and his 5 sons entered into family settlement and partition in 1963 which was reduced in writing on 13. 1. 1968. The said plots of land had vested in the aforesaid persons. On 19. 8. 1974 a notice under Section 10 (2) of the Act was issued to Sri Brij Narain Verma treating plot No. 281/1 as un-irrigated and plot No. 280 as grove. Vide notice under Section 10 (2) of the Act objections were filed by Sri Brij Narain Verma that all his five sons were born before the date of vesting i. e. 1. 7. 1952 and had separate and distinct share with physical possession over them and in Khatauni 1380 Fasli their names were entered separately against their respective shares in the revenue records in accordance with law. Vide order dated 10. 1. 1975, the Prescribed Authority declared 87. 52 acres of land as surplus ignoring the family settlement. An Appeal No. 314 of 1975 was filed by Sri Brij Narain Verma and Appeal No. 310 of 1975 was filed by Sri Govind Narain. The appellate author ity vide order dated 26. 5. 1975 allowed the ceiling appeals holding that five sons of Sri Brij Narain Verma were born before the date of vesting and had equal and distinct shares as their family settlement had been acted upon and they were the tenure holders of respective plots allotted to each one of them. It was further held that plots 676 and 678 were abadi and plots 281, 377 and 434 were groves. Being aggrieved, the State of U. P. filed a Writ Petition No. 157 of 1976, State of U. P. v. Brij Narain Verma which was decided on 13. 2. 1978 holding that all five sons of Sri Brij Narain Vorma were born before the date of vesting and had equal shares with their father and that plots 676 and 678 were abadi and exempted from ceiling. It was also observed that the family settlement was immaterial for decision of ceil ing as all the land was ancestral sir and khudkasht land and all sons of Brij Narain were born before date of vesting as such they became co-parcener along with Brij Narain. The findings of the appellate authority were confirmed by the High Court except regarding grove plots 281, 377 and 434 and the matter was remanded back to the appellate authority to decide afresh in respect with the said plots after regard being had to the definition of grove land under the U. P. Tenancy Act, 1939, On 1. 12. 1978 and 9. 3. 1979 Sri Govind Narain Verma and Sri Aditya Narain Verma sons of Sri Brij Narain Verma sold their entire respective shares in the land in question. The other brother Alok Narain Verma died in May 1979 leaving behind a will bequeathing his share half of it each to Sri Govind Narain Verma and Aditya Narain Verma. On the matter being sent back on remand, the appellate authority vide its Judgment dated 21. 2. 1984 held that plots 377 and 434 were grove but not plot No. 281 and remanded the matter back to the Prescribed Authority to deter mine the surplus land treating all the appellants as 1/6th share in the entire hold ing after issuing fresh notices to the appellants in the light of the findings recorded by it and as upheld by the High Court. Accordingly, fresh notices were issued by the Prescribed Authority to Sri Brij Narain Verma and his five sons separately however, all the cases were clubbed together. During the pendency of the proceedings Sri Brij Narain Verma died on 26. 7. 1991. Vide impugned order dated 30. 4. 1992 (Annexure-7 to the writ petition) the Prescribed Authority took up the case of the four remaining sons and treating the entire area of the land as joint and common held total 68. 57 acres a surplus land in the hands of the remaining four sons. Being aggrieved, the petitioner filed an appeal before the Commissioner which was dismissed vide order dated 12. 8. 1992, and being aggrieved Sri Govind Narain Verma-petitioner has filed the present writ petition and other brothers filed their separate writ petition challeng ing the orders dated 30. 4. 1992 and 12. 8. 1992 passed by the Prescribed Author ity and the Commissioner in appeal respectively on various grounds raised in the writ petition.
(3.) LEARNED counsel for the petitioner also urged that the fresh notices, if any, could be given to the sons of Sri Brij Narain Verma for determination of surplus land under the Ceiling Act under the proviso to Rule 8 of the U. P. Imposition of Ceiling on Land Holdings Rules framed under the Act as their names had already been recorded before the relevant date in the records in pursuance of the family settlement and since notice was sent to Sri Brij Narain Verma and was the only tenure holder proceeded against the surplus land with him over and above his ceiling limit had to be only determined as on 8. 6. 1973 on the basis that h,e had 16th share only in the holding. It has been further submitted that under Section 10 (2) of the Act notice was issued and in the opinion of Prescribed Authority there was some surplus land beyond the ceiling limit with the tenure holder Sri Brij Narain Verma who had only 1/6* share (vide Section 10 (1) of the Act) and in view of the findings recorded earlier nothing was done in the matter after the Judgment of the appellate authority dated 21. 2. 1984 and thus, there was no surplus land. Sri V. K. S. Chaudhary learned senior counsel has further submitted that the issuance of the fresh notices to the petitioner on 25. 6. 1987 was barred by limitation as notice was to be issued within two years under the Amended Ceiling Act but it had been issued after three years from the date of the order passed by the appellate authority dated 21. 2. 1984. The notice sent to Sri Brij Narain Verma could be treated to be in continuation of the proceedings drawn only against him in 1973 and not against the petitioners being separate tenure holders. Under Section 3 (17) of the Act and also as held by the appellate authority and the High Court, all sons being major on 8. 6. 1973 and having been born before the date of vesting, i. e. , 1. 7. 1952 were separate and independent tenure holders in their own right and the surplus land, if any, with each of them had to be separately deter mined as on 8. 6. 1973 though fresh notices were given to the sons (petitioners) treating Sri Brij Narain Verma as the main tenure holder proceeded against men tioned in the supplement of his holdings and the same notice with Sri Brij Narain Verma as the tenure holder was repeated to his sons (petitioners) in terms of Rule 8 of the Rules as if they were not independent and separate tenure holders and were thus not proceeded against, more so no separate cases or proceedings regarding ceiling and surplus land have been initiated or were pending against them as independent tenure holders. After the death of Sri Brij Narain Verma on 26. 7. 1991 his legal representatives/sons were brought on record for determina tion of the ceiling area and surplus land only of Sri Brij Narain Verma as tenure holder on the relevant date, i. e. , 8. 6. 1973 had to be determined relating to him only. It has also been urged by Sri Chaudhary learned senior counsel for the petitioner that the orders passed by the Prescribed Authority dated 30. 4. 1992 (Annexure-7 to the writ petition) and of the appellate authority dated 12. 8. 1992 (Annexure-9 to the writ petition) were in gross violation of the order of the appel-1 late authority dated 26. 5. 1975 (Annexure-3 to the writ petition) and of appellate authority on remand dated 21. 2. 1984 (Annexure-5 to the writ petition ).;