Banshi Singh And Anr. vs Addl. Commissioner Moradabad And ...
2023 Latest Caselaw 14002 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - C No. - 16727 of 1997
 

 
Petitioner :- Banshi Singh And Anr.
 
Respondent :- Addl. Commissioner Moradabad And Ors.
 
Counsel for Petitioner :- T.S. Dabas,Arpit Agarwal
 
Counsel for Respondent :- S.C.,R.K. Khanna
 

 
Hon'ble Kshitij Shailendra,J.

1. Heard Sri Aprit Agarwal, learned counsel for the petitioners and the learned Standing Counsel representing the State-respondents.

2. At the very outset, Sri Agarwal submits that inadvertently he could not carry out the requisite impleadment of petitioners no. 1/6/1 to 1/6/3 in the array of the parties pursuant to the recent order dated 07.04.2023 passed by this Court. He further submits that inadvertently necessary amendment in the prayer clause of the writ petition could also not be carried out.

3. Learned counsel for the petitioner is permitted to carry out the aforesaid impleadment in the array of the parties during the course of day. He may also carry out necessary amendment in the prayer clause of the writ petition pursuant to the same order.

4. This petition has been filed challenging the orders dated 11.09.1979 passed by the Prescribed Authority, Sambhal and orders dated 23.10.1991 passed by the Additional District Magistrate, Moradabad and 13.10.1995 passed by the Additional Commissioner (Judicial), First, Moradabad Division, Moradabad in the proceedings under Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960.

5. Certain facts and proceedings need to be briefly narrated in this order.

6. The private respondents were tenure holders in respect of various gatas, reference whereof has come in the record of the proceedings, however, in so far as the controversy covered by the present petition is concerned, it is stated that the respondents 4 and 5 were the tenure holders of Gata No.1383 and they transferred the same in favour of the petitioners by executing a registered sale deed dated 29.11.1967.

7. Proceedings under the aforesaid Act of 1960 were initiated against the recorded tenure holders and not against the petitioners and an ex-parte order was passed declaring certain land as surplus on 19.12.1975.

8. It has come on record that pursuant to the sale deed of 1967, names of the petitioners were mutated in the revenue records in the year 1971 and 1973 as recorded in the order dated 11.09.1979.

9. The aforesaid order dated 09.12.1975 declaring the land as surplus was later on recalled/ set aside and the proceedings were revived. Thereafter, by another order dated 26.07.1976, 8.29 acres of irrigated land was declared as surplus. An appeal was preferred by the tenure holders against the aforesaid order, which was dismissed on 12.10.1976.

10. Challenging the aforesaid orders, Writ Petition No.95 of 1977 was filed which was allowed by this Court and the matter was remanded for fresh consideration by the Prescribed Authority.

11. Pursuant to the remand order, the Prescribed Authority, by order dated 11.09.1979, declared 8.29 acres of land as surplus. The order was modified on 12.05.1988 and the plot nos.2 and 33 were excluded whereas plot Nos.235, 1791 and 1295 were included in the surplus land.

12. Later on, another modification was made on 23.10.1991 whereby 1.21 acres of land covered by Gata No.1383 was included in the surplus land.

13. The petitioners, being aggrieved by inclusion of their land which was purchased by them in the year 1967, filed objections before the Prescribed Authority on 10.07.1992 referring to the proceedings of consolidation as well as taking a ground that though the petitioners were recorded, no notice as per Rule 8 of the Rules of 1961 was issued to them. The said objections were rejected by order dated 23.05.1995, against which they filed appeal, which has also been dismissed on 13.10.1995 passed by the Prescribed Authority.

14. The submission of the learned counsel for the petitioners is that the sale deed was executed in their favour in the year 1967 that is prior to the relevant date i.e. 24.01.1971 and once the mutation was effected in the revenue records pursuant to the aforesaid sale deed, it was mandatory on the part of the authorities to ensure compliance of Rule 8 by issuing notice to the recorded tenure holders i.e. the petitioners. Further submission is that in the aforesaid order dated 11.09.1979 factum of sale made in favour of the petitioners was noticed and an issue no.2 was also framed in this regard, however a very strange finding was recorded that since mutation pursuant to the sale deed was made in the year 1971 and 1973, the sale deed appears to have been executed after 24.01.1971. However, learned counsel for the petitioners submits that despite the aforesaid finding, the land purchased by the petitioners was not included in the list of surplus land.

15. In so far as the grievance of the petitioners against the impugned orders is concerned, the objections have been rejected and the appeal has been dismissed on the ground that there is long delay in filing objections. Further ground is that the petitioners were not parties to the original proceedings nor they did file any application seeking their impleadment.

16. Learned counsel for the petitioner argues that no limitation is prescribed for filing objection except the requirement of Rule 8 of the aforesaid Rules, 1961 which provides a period of 15 days for filing objections from the date of service of notice.

17. The submission is that since no notice has been issued to the petitioners, the time did not begin to run. Further submission is that it is not necessary for any purchaser to seek impleadment in the proceedings and, therefore, the orders impugned are bad.

18. Learned Standing Counsel, on the other hand, has argued that the petitioners were not recorded on the "relevant date" and, therefore, they were not entitled for issuance of any notice under Rule 8. Learned Standing Counsel has however admitted that sale was made in favour of the petitioners prior to the "relevant date" as mentioned in paragraph 10 of the counter affidavit. The submission is that no evidence was led to the satisfaction of the Prescribed Authority in this regard and, therefore, the orders do not call for any interference.

19. Having heard the learned counsel for the parties and having perused the record, I find that in the order 11.09.1979, mutation entries made in favour of the petitioners were noted, although the order was not against the petitioners. Therefore, the factum of sale was very much in the knowledge of the authorities and there was record to this effect as reflected from the relevant record of rights. I also find that 24.01.1971 is the relevant date in relation to the proceedings under the Act and if the sale deeds are executed in between 24.01.1971 and 08.06.1973, it is for the authorities to record satisfaction regarding validity of same and in case sale deeds are executed after 08.06.1973, the same shall be treated as void.

20. In the present case, there is no dispute about the fact that sale deeds were executed in favour of the petitioners in the year 1967, therefore, notice to them was mandatory as their names were mutated in the revenue records. The finding to the effect that the petitioners filed objections after long delay cannot sustain as limitation for filing objections will begin to run from the date of service of notice which was not issued to the petitioners in the present case.

21. Learned counsel for the petitioner has placed reliance upon the judgment of this Court in in the case of Vyas Prasad Vs. Additional Commissioner, Gorakhpur: 2017 (8) ADJ 217, with special reference to paragraph no.16, wherein this Court after placing reliance upon the judgment of the Apex Court in the case of Ramadhar Singh Vs. Prescribed Authority 199 4Supplementary SCC 702, held that when the sale deed was executed prior 24.01.1971, the Prescribed Authority had no jurisdiction to put the validity of sale deed to test since its jurisdiction would arise only when the deed of transfer had been effected on or after the appointed day.

22. In view of the above discussion, I am satisfied that in facts of the case, the Prescribed Authority should not have rejected the objections filed by the petitioners on the ground of delay and in so far as the submission of the learned Standing Counsel that no satisfaction was recorded by the Prescribed Authority regarding validity of the sale deed, the contention of the petitioner is covered by the decision of this Court in the case of Vyas Prasad (supra) as well as decision of the Apex Court in the case of Ramadhar Singh (supra).

23. In view of the above discussion, inclusion of the petitioners' land covered by Gata No.1383 Mi is found to be unsustainable.

24. The writ petition succeeds and is allowed. The impugned orders dated 11.09.1979 passed by the Prescribed Authority, Sambhal 23.10.1991 passed by the Additional District Magistrate, Moradabad and 13.10.1995 passed by the Additional Commissioner (Judicial), First, Moradabad Division, Moradabad are hereby quashed.

25. The respondents/ concerned authorities shall correct the record after excluding the land purchased by the petitioners by the registered sale deed dated 29.11.1967 from the zone of consideration.

Order Date :- 3.5.2023

AKShukla/-