Allahabad High Court
Gulshan Dharamarth Trust (Regd) & ... vs State Of U.P.& Others on 24 November, 2017
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 25
Case :- WRIT - C No. - 42863 of 2002
Petitioner :- Gulshan Dharamarth Trust (Regd) & Another
Respondent :- State Of U.P.& Others
Counsel for Petitioner :- Pramod Kumar Jain,Nipun Singh,Sumit Daga
Counsel for Respondent :- C.S.C,Mohd.Arif,Satyendra Kumar Singh,Suresh Chandra Varma,Veer Singh
Hon'ble Siddhartha Varma,J.
The petitioner no. 1 which is a registered/charitable trust is governed by a board of trustees with its Chairman as Chandra Kumar Jain. Pradeep Jain, the treasurer of the Trust has been arrayed as petitioner no. 2. The trust owns in village Sher Nagar, Pargana, Tehsil and District Muzaffarnagar, the Bhumidhari plots No. 1049(2-3-0), 1050(1-17-0), 1051(0-4-0) and 1052 (0-17-0) and had an ownership of a total area of five bighas and one biswa of land.
Even though Sri Chandra Kumar Jain was only a Chairman of the Trust a notice was issued to him to explain as to why the land held by him be not declared surplus of the ceiling limits and in the notice even the plots which were owned by the trust were taken into account to calculate the holdings of Chandra Kumar Jain. Upon coming to know that the petitioners' land was also being taken into account while calculating the ceiling limits of the holdings of Chandra Kumar Jain, the petitioners filed an objection which was rejected on 10.9.1987, which required the petitioner to file a writ petition before this Court. It was numbered as Writ Petition No. 17950 of 1987 (Gulshan Dharmarth Trust and others Vs. The State of U.P. & Others). The writ petition was allowed on 5.4.1996 and it was directed that if the land of the petitioner was to be taken into account then a notice was also to be given to it. A true copy of the judgement and order dated 5.4.1996 as was passed by this Court is reproduced here as under:-
"Heard learned counsel for the petitioner and the learned Standing Counsel. Learned counsel for the petitioner is placing reliance on the case Shantanu Kumar Vs. State of U.P. and others reported in A.L.J. 1979 page 1174. The argument of the learned counsel for the petitioner is that Gulshan Dharmarth Trust (Regd.) 45 B, New Mandi Muzaffarnagar is the legal entity which owns the plot nos. 1049 (2-3-0), 1050(1-17-0), 1051 (0-4-0) and 1052(0-17-0) of khata no. 150 and in that capacity the trust must be given notice in any ceiling proceeding initiated over these lands. In reply the learned Standing Counsel has urged that Chandra Kumar Jain was the managing trustee through whom the trust was represented in the revenue record as well as in the law court, as is the petitioner's case hars, so notice given to Chandra Kumar Jain is sufficient compliance of the law.
For appreciating the argument the amended notice was perused. This notice has been given to Chandra Kumar Jain S/o Gulshan Rai Jain, 106 B, New Mandi Muzaffarnagar showing him as tenure-holder. There is no mention that this Chandra Kumar Jain is representing the Gulshan Dharmarth Trust, which is the legal body. So notice under the requirements of law must be given to the legal body owning the property which is sought to be shown as excess land and his objection must be considered. The impugned order rejecting the prayer of the petitioner to object in the proceeding is against the provisions of law. Accordingly, the writ petition succeeds. The impugned order is hereby set aside. The Prescribed Authority will give notice to the petitioner Gulshan Dharmarth Trust and consider his objections and then pass order according to law."
Thereafter a notice was issued to the officials of the petitioner on 13.8.2001 which was replied to by the petitioner on 16.9.2002. The objection/reply of the petitioner was rejected and some land of the Trust was declared surplus. Aggrieved thereof the petitioner has filed the instant writ petition.
The learned counsel for the petitioner submitted that no notice as is contemplated under Section 10(2) of the U.P. imposition of ceiling on Landholdings Act 1960 (hereinafter referred to as 'the Act') was ever served on the petitioner.
He relied upon a decision rendered in 1979 ALR (5) 564 (FB) : (Shantanu Kumar Vs. State of Uttar Pradesh and Others) and stated that the land of a holder could not be declared surplus unless the holder is put to notice under Section 10(2) of the Act. The petitioner also relied on a Full Bench decision of this Court reported in (1911) 33 I.L.R. ALL. 735 : (Jodhi Bai v. Basdeo Prasad and Ors.) and submitted that a notice had to be served on the Trust which is a legal entity and a notice to its chairman or any of its trustees would not suffice.
In reply, the learned Standing Counsel submitted that certain properties which were bought by the Trust had become surplus and, therefore, after being declared surplus had rightly been vested in the State.
I have heard learned counsel for the petitioners and the learned Standing Counsel and I am of the view that the writ petition deserves to be allowed. After the High Court had allowed the earlier writ petition on 5.4.1996 it was imperative that the Prescribed Authority should have issued a notice on the petitioner which is a juristic person. Under Section 10(2) of the Act and Rule 8 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Rules, 1961,(hereinafter referred to as ' the Rules') a notice was a must. This is what has already been held in the Full Bench decision reported 1979 ALR (5) 564 (FB) : (Shantanu Kumar Vs. State of Uttar Pradesh and Others).
Further, I find that the petitioner which is a Trust is a juristic person and a notice compulsorily had to be served on the Trust. The notice which was earlier given to Chandra Kumar Jain who was a Chairman would not suffice as a notice to the petitioner. This is also what has been held in Jodhi Bai v. Basdeo Prasad and Ors (supra) wherein it has been held that a notice to a deity had to be given independently and a notice to its manager or its sarvarkar would not be sufficient.
Learned counsel read out a certain relevant extract from the judgment which is being reproduced here as under:-
"Therefore, when a suit is brought on behalf of or against an idol, there must be on the record a person who represents the idol, such as the manager of the temple in which the idol is installed. The manager of the idol is not personally interested in the suit, any more than is the next friend or guardian or a minor. As a suit by a minor should be brought in the name of the minor and not of his next friend, so should a suit on behalf of the idol be brought in the name of the idol as represented by the manager, and in a suit against the idol the defendant should be similarly described."
Under such circumstances, I hold that when there was no notice to the petitioner under Section 10(2) of the Act and Rule 8 of the Rules, the proceedings which were initiated against the petitioner declaring its land surplus deserve to be quashed. The order dated 16.9.2002 is also, therefore, quashed.
The writ petition is allowed.
Order Date :- 24.11.2017
praveen.
