HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 32 Case :- WRIT - C No. - 49588 of 2008 Petitioners :- Smt. Chandra Kali and 0thers Respondents :- State of U.P. and others Counsel for Petitioners :- Sri V.M. Sharma Counsel for Respondents :- C.S.C. Hon'ble Rakesh Tiwari,J.
Hon'ble Shashi Kant,J.
Heard learned counsel for the parties and perused the record.
The petitioners have preferred this writ petition for quashing the impugned exparte order dated 9.9.1981 and the entire proceedings relating to Ceiling Case No. 1992/54/81, State of U.P. Versus Narayan Das, passed by respondent no.2, Prescribed Authority, Urban Land Ceiling, Bareilly and for declaring the same to have abated in accordance with the provisions of the Repealing Act, 1999. It has also been prayed that the respondents may be directed not to dispossess the petitioners from their holding by use of force.
For ready reference, the impugned exparte order dated 9.9.1981 is reproduced below.
"Jh ujk;unkl iq= Jh [kjxlsu fu0 xzke g:uxyk cjsyh us /kkjk 6 ¼1½ ds vUrxZr viuh Hkwfe dh fooj.kh nkf[ky dh Fkh] ftlds vk/kkj ij losZ{k.k djk;k x;k rFkk HkwLokeh dks /kkjk&8 ds vUrxZr M~kQ~V~l uksfVl iathd`r i= }kjk Hkstk x;k ftlesa mldh 19258-41 o0eh0Hkwfe vfrfjDr ?kksf"kr djus dk izLrko ikfjr fd;k x;kA uksfVl dh rkehy uxj Hkwfe lhekjksi.k vf/kfu;e 1976 dh /kkjk 5 dh mi/kkjk 2 ¼c½ ds vUrxZr ekuh tk;sxhA HkwLokeh dks uksfVl ds fo:) vkifRr izLrqr djus gsrq 30 fnu dk iw.kZ volj fn;k x;k fdUrq og vc rd uksfVl ds fo:) vkifRr izLrqr djus esa vleFkZ jgk vkSj u gh og mifLFkr gqvk vr% ,d i{kh; vkns'k ikfjr fd;s tkrs gSaA eSaus lEiw.kZ i=koyh dk v/;;u fd;k rFkk iz'uxr Hkw[kaMksa dk cjsyh egkuxj ;kstuk ds vUrxZr izLrkfor Hkw mi;ksx izkIr fd;k tks lgk;d vfHk;ark dh fjiksVZ fn0&18-8-81 i=koyh ij miyC/k gS ftlesa xzke g:uxtk esa fLFkr Hkw0 la0 144 fo'ofo|ky; ,oa 'kks/k dsUnz rFkk Hkw0la0 580] 579 rFkk 581 dk mi;ksx vifjHkkf"kr {ks= fn[kk;k x;k gSA Hkwmi;ksx fjiksVZ ij fLFkr uk;c rglhynkj dh vk[;k tks bl fu.kZ; dk ,d vax ekuh tk;sxh ds vuqlkj mlds ikl dqy 20758-41 o0eh0 Hkwfe gksrh gSA uxj Hkwfe lhekjksi.k vf/kfu;e 1976 ds vUrxZr fo'ofo|ky; ,oa 'kks/k dsUnz rFkk vifjHkkf"kr {ks= dks fjDr Hkwfe esa ekuk tkrk gSA HkwLokeh dh dqy 20758-41 o0eh0 esa ls lhfyax dh fu/kkZfjr lhek 1500 o0eh0 NksM+us ds i'pkr mlds ikl dqy 19258-41 o0eh0 Hkwfe fjDr cprh gS tks vfrfjDr fjDr ?kksf"kr dh tkrh gS ;g Hkwfe xzke gLuxyk ds xkVk la0 144] 579 rFkk 580 vkSj 581 esa ls layXu ekufp=kuqlkj yh tk;sxhA HkwLokeh dks /kkjk 9 ds vUrxZr leFkZr uksfVl dh izfr tkjh dh tkos rFkk /kkjk 19 ¼1½ ds vUrxZr foKfIr izdk'ku gsrq v/kh{kd jktdh; eqnz.kky; bykgkckn ftykvf/kdkjh] rglhynkj izHkkjh vf/kdkjh uxj ikfydk cjsyh dks Hksth tk;sA ¼tSiky flag½ l{ke izkf/kdkjh ¼mikar½** Brief facts giving rise to the instant writ petition are that Sri Narayan Das father of the petitioners, who was original tenure holder of agricultural plot nos. 144, 580, 579 and 581,measuring 8 bigha, 1 biswa, 10 biswansi (20,424.01 sqr. meters) situated in village Harunagala, District Bareilly, died on 16.9.1978. After his death, the name of his wife Smt. Manuka was recorded in khatauni for the year 1383 to 1388 fasli on 11.12.1978 and she became bhumidhar of the land in question. Thereafter, the mother of Smt. Manuka had executed a registered Will in her favour in respect to plot nos. 579,580 and 581, measuring 7 bighas. Smt. Manuka Devi died on 1.5.2001. On the basis of the aforesaid Will, the petitioners became the owners of the entire land and since then they are in continuous possession and cultivation over the land in question.
On 29.10.2015 the Court passed the following order:-
"From the order dated 02.11.2011, it appears that entire proceedings of taking possession of petitioner's land are nullity. The actual tenure holder had died on 16.09.1978, and therefore, actual possession could not be taken from him.
The record produced today shows that it does not contain signature of actual tenure holder from whom possession is said to have been taken. The address of the only witness, who has signed possession memo, copy of which has been appended along with the counter affidavit, is also not on record.
Sri Sunehri Lal, Junior Engineer, Department of Urban Land Ceiling, Bareilly, who has come along with record, confirms that record does not show either parentage or address of the witness or signature of the actual land holder, from whom possession is said to have been taken.
Let District Magistrate, Bareilly, provide address of the then Kanungo and Tehsildar as also address of the sole witness Khem Karan, who have signed possession memo, positively by tomorrow.
The aforesaid information be sought by learned Standing Counsel from District Magistrate, Bareilly through Fax.
Put up tomorrow i.e. 30.10.2015."
Sri Som Narain Mishra, learned Standing counsel has brought the original record relating to this case for perusal of the Court as well as to the learned counsel for the petitioners.
From perusal of the original record it appears that Ceiling Case No. 1992/54/81, State versus Narayan Das was instituted against a dead person by the Prescribed Authority Urban Land Ceiling, Bareilly in 1981 and an exparte order was passed on 9.9.1981. Even, no fresh notice was served upon Smt. Manuka, the erstwhile owner of the plots in question and heir of deceased Narayan Das, whose name was recorded in the revenue record in place of her husband. It also appears that the possession of the land in question was taken by mere on paper transaction. Even no signatures, address and particulars of the witnesses were taken.
Learned Standing Counsel has fairly admitted that from the record it is apparent that the proceedings have been initiated against a dead person and even no notice was issued to his heirs and this fact was came into light when Smt. Manuka Devi filed an application on 18.8.1982. It appears that the aforesaid application dated 18.8.1982 was filed by Smt. Manuka Devi after the order was passed by the Prescribed Authority on 9.9.1981.
Thus, it is clear from what has been stated above that the case could not be instituted against a dead person and all the present proceedings and the subsequent proceedings pursuant to exparte order dated 9.9.1981 were illegal and void ab-initio. No actual physical possession of the land in question has been taken over by the department concerned, hence the impugned exparte order dated 9.9.1981 is liable to be quashed.
For the reasons stated above, the writ petition is allowed and the impugned expart order dated 9.9.1981 is quashed. No order as to costs.
Dated 3.11.2015 CPP/-