Hari Ram vs State Of U.P. And Others
2023 Latest Caselaw 19092 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:49140
 
Court No. - 17
 

 
Case :- WRIT - C No. - 3007046 of 1987
 

 
Petitioner :- Hari Ram
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Shyam Mohan,Anoop Srivastava,Madan Gopal Mishra,Puttu Lal Mishra,R.K. Srivastava
 
Counsel for Respondent :- C.S.C.
 
with 
 
Case :- WRIT - C No. - 3000010 of 1997
 

 
Petitioner :- Hari Ram
 
Respondent :- State Of U.P.Through Collector
 
Counsel for Petitioner :- P.L.Misra,Anoop Srivastava,M.G. Misra,Puttu Lal Mishra,V.G. Misra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Anoop Srivastava, learned counsel for the petitioner and the Standing counsel for the respondents.

2. By means of the present writ petitions the petitioner has challenged the orders passed by the Prescribed Authority under U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act of 1960) dated 17.5.1985 as well as order dated 7.8.1987 passed by Additional Commissioner (Administration), rejecting the appeal preferred by the petitioner against the order of the Prescribed Authority.

3.Since common questions of facts and law are involved in both the petitions and are connected as such, they are being decided by this common judgment and order.

4. It has been submitted by learned counsel for the petitioner that the petitioner is original tenure holder and notice under Section 10 (2) of the Act of 1960 was served upon him on 21.11.1974 but no objection was filed and the matter was decided ex-parte by the Prescribed Authority.

5. In the show cause notice issued on 21.11.1974 it was shown that 43.28 acres land held by the petitioner, 18.038 acres were shown irrigated land out of which it was proposed to declare 25.242 acres as surplus land. The petitioner instead of responding to the notice preferred a writ petition before this Court challenging the vires of the Act of 1960. During the pendency of the said petition proceedings initiated against the petitioner pursuant to the notice dated 21.11.1974 were stayed. The writ petition was finally dismissed on 13.3.1978 and consequently the proceedings further commenced. The petitioner did not file any response to the notice issued under Section 10 (2) of the Act of 1960 and hence the Prescribed Authority by means of his ex-parte order dated 30.6.1978 decided the said matter and declared 25.242 acres of irrigated land as surplus land.

6. He filed applications for setting aside ex-parte order, which was allowed on 16.8.1980 and further filed his objections on 2.6.1979 stating that the said land is un-irrigated contrary to the notice. He claimed that he has three major sons and, hence, two acres each was to be excluded. He has further submitted that two acres of the said land falls under abadi area which was also to be excluded. Apart from gata No.s 78A/4.00 acres and 78B/38.83 acres which has been transferred by means of the sale deed prior to the cutoff date and consequently the said land also could not be included into the tenure holdings of the petitioner.

7. The petitioner being aggrieved by ex-parte order preferred an appeal which was allowed on 16.8.1978 and the matter was remanded to the Prescribed Authority for deciding the matter afresh after giving opportunity of hearing to the petitioner. The petitioner appeared before the Prescribed Authority and filed his objections. In the said objections he submitted that he has two sons and some part of the land was in abadi area and lastly that gata No.78A has been alienated pursuant to the sale deed which could not be shown as tenure holding of the petitioner and, hence, claimed that benefit of the aforesaid should be given to the petitioner. Learned Prescribed Authority rejected the objections filed by the petitioner on 13.5.1981. The petitioner preferred an appeal against the order dated 13.5.1981 of the Prescribed Authority where in the argument of the petitioner found favour in the appeal and the area which was sold to Mangal Das by means of a registered sale deed was excluded from the holdings of the petitioner and accordingly the matter was remanded back to the Prescribed Authority for fresh determination. It is in the remand proceedings that the Prescribed Authority again considered the case of the petitioner and excluded 10.053 acres of the land as sold holding to Mangal Das but did not accept the contentions of the petitioner with regard to existence of two major sons. He also did not accept the objections of the petitioner that the said land was irrigated and also that two acres of the holding of the petitioner fell into abadi area. The Prescribed Authority by means of his order dated 7.8.1987 had passed aforesaid order. Against the said order which has been impugned in the present writ petition, the petitioner preferred an appeal.

8. The appellate authority duly considered all the grounds and framed 5 questions and rejected the contentions of the petitioner with regard to the said objection and dismissed the appeal. With regard to the first issue that 18.03 acres was irrigated. He was of the view that khasras for the fasli year 1378, 1379 and 1380 and also Form 41 prepared during the consolidation operations clearly indicated that the said land to be irrigated. As per the inspection report it was also found that there was tube-well available on the said land. Apart from the oral submissions no evidence was produced by the petitioner to prove/demonstrate that the said land was un-irrigated land. Even according to the khasras for the relevant years it was recorded that two crops were grown per year in the said land and were irrigated. After considering the aforesaid evidence the appellate authority rejected the finding in favour of the State as against the petitioner.

9. With regard to the second issue wherein the petitioner had claimed two acres of the land to be falling under abadi, the appellate court duly considered evidence submitted by the Lekhpal and also the statement recorded before the Prescribed Authority wherein it was clearly stated that none of the holdings of the petition fell under the abadi area and even otherwise the petitioner had failed to adduce any evidence to contradict the statement of the Lekhpal and, hence there was no material to hold that the findings recorded by the Prescribed Authority were infirm and no evidence was placed by the petitioner which is contrary to the findings recorded by the remand authority and accordingly rejected the contentions raised by the petitioner. Issue No.3 was with regard to number of major sons of the petitioner. It was claimed by the petitioner that two acres of land per major son was required to be excluded from the holdings of the petitioner. Before the Prescribed Authority one of his sons, namely Ajay Kumar appeared and his statement was recorded. In his statement he has stated that his date of birth is 2.10.1955 and further stated that he is younger brother and namely Anil Kumar was elder brother to him 2 to 3 years. He has further stated that in 1971-72 he was 18 years old and produced certificate issued by Indian School of Secondary Education. With regard to examination conducted in 1970 where his date of birth was indicated as 2.10.1955. The Prescribed Authority did not accept the contentions of Anil Kumar. It was stated that in the objection filed by the petitioner before the Prescribed Authority he had claimed to have three sons while in another statement he has stated that he has only two major sons. The authority has held that statement of the petitioner was wavering and, hence, unbelievable and it is not possible to believe when a person does not know as to how many sons he has. He has further recorded infirmity in the date of birth as per the statement of Anil Kumar who claimed his date of birth to be somewhere 1954 while according to the certificate of ICSE his date of birth was shown to be 2.10.1955. In light of the aforesaid contradictions he did not accept the claim of the petitioner with regard to acceptance of finding for which the land ought to have been excluded by the Prescribed Authority.

10. In appeal, the appellate authority again reconsidered and affirmed the findings recorded by the Prescribed Authority and found that the Prescribed Authority duly recorded all the facts place before him and also the evidence adduced by Anil Kumar who clearly stated that he was the son of original tenure holder which did not find favour with the findings recorded by the Prescribed Authority and, hence, rejected the appeal of the petitioner in this regard.

11. Lastly, with regard to exclusion of the land which had been sold by means of sale deed to Mangal Das, the said issue was considered at the behest of the appellant who has stated that the said sale deed was executed prior to 8.6.1973 which is the cutoff date and, hence, according to Section 5 (6) of the Act of 1960 the same should have been excluded and this issue was decided in favour of the petitioner.

12. The State had also preferred an appeal bearing Appeal No.78/63/88011(85-86) before the Additional Commissioner, Lucknow against the order of the Prescribed Authority dated 16.5.1985. The said appeal filed by the State seems were not connected to Appeal No.37 of 1985-86 preferred by the petitioner. The appeal of the State was decided on 30.4.1996. Surprisingly, the State had preferred an appeal only with regard to exclusion of the sale deed in favor of Mangal Das against the order of Prescribed authority excluding from the holding of the petitioner which has been sold to Mangal Das prior to cutoff date permitted under Section 5 (6) of the Act of 1960.

13. The appeal filed by the petitioner was allowed on 16.5.1985 in favour of the petitioner after hearing the State, whose arguments and objections have also been duly considered yet despite the objection raised by the petitioner that the said appeal was barred by the principles of res judicata, the Commissioner proceeded to consider and allow the appeal preferred by the State. The appellate order 30.4.1986 passed in appeal No.78/85-86 has also been assailed by the petitioner in writ petition No.10 of 1997 which is part of the present bunch.

14. It is noticed that while deciding the appeal No.78 (85/86) the appellate authority duly noticed the fact that appeal No.37 (85-86) preferred by the petitioner has also been decided by means of judgment and order dated 7.8.1987 against the petitioner and this issue i.e. issue No.4 of the appeal No.37 (85-86) was decided in favour of the tenure holder still he proceeded to consider the same issue again. This time returned a finding against the tenure holder and in favour of the State.

15. Learned counsel for the petitioner has urged that once the said issue has been decided in favour of the petitioner in appeal No.37 of 1985-86 then the same issue could not have been subsequently decided contrary to aforesaid findings in as much as the same would be hit by the principles of res judicata. In this regard, we have considered the arguments of the petitioner as well s learned Standing counsel.

16. Undisputedly, it is noticed that with regard to exclusion of the holdings of the petitioner in relation to the land sold to Mangaldas was raised before the appellate authority and the said issue was decided in favour of the petitioner and 10.03 acres which was transferred to Mangaldas was excluded from the holding of the petitioner and once the finding in this regard has already been returned by the appellate authority the same issue could not have been re agitated or reconsidered and decided by the appellate authority at the insistence of the State in appeal No.78/63/88011(85-86) and consequently the said findings are clearly hit by the principles of res judicata and the order of the appellate authority dated 30.4.1996 is illegal and arbitrary and is against the norms of principles of res judicata and accordingly the said order is set aside.

17. In light of the above, this Court is of the considered opinion that the only issue which requires interference as discussed above, is the fact that the petitioner has been able to establish that he has one son who was major at the time of issuance of notice, namely Ajay Kumar. The said Ajay Kumar had put in appearance before the Prescribed and his statement was also recorded in which he has stated that he is major son of original tenure holder and though there has been slight variation in the veracity which was stated by him during his statement even from the certificate of date of birth produced by him but other variations can always be ignored as no contrary evidence was produced by the State which could indicate that the original tenure-holder did not have any son. This Court is also not convinced and does not rely on the evidence of Ajay Kumar about existence of an elder brother of Anil Kumar. Apart from his oral testimony no documentary evidence of his educational qualification or any other material could be produced before the Prescribed Authority with regard to Anil Kumar.

18. In light of the above, the only issue which requires interference is with regard to existence of one major son of the petitioner, namely, Ajay Kumar and in view of the provisions contained under Section 5 (2) (b) two acres of land deserves to be excluded. Only for exclusion of two acres of land considering the fact that the petitioner has been able to prove existence of one major son, the matter is remanded to the Prescribed Authority only for fresh determination of establishment of exclusion of two acres of land with respect to one major son.

19. In light of the above, Writ C No.3007046 of 1987 is partly allowed and writ C No.3000010 of 1997 is dismissed.

Order Date :- 26.7.2023 (Alok Mathur, J.)

RKM.