1. Heard Sri V.K.S. Chaudhary, Senior Advocate assisted by Sri Kunal Ravi Singh, Advocate and Standing Counsel on behalf of the State. Nobody is present for the respondent no. 4.
2. Petitioner before this Court seeks quashing of the order dated 31.01.1985 passed by the Prescribed Authority under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as Act, 1960) as well as the order of the Appellate Authority dated 13.11.1987 dismissing the appeal. Before adverting to the facts of the petition it is appropriate to record that the present writ petition was dismissed under a judgment dated 08 th May, 2007.
3. The petitioner made a review application, which was granted by the Hon'ble Judge on 06 th February, 2009 and the writ petition was restored to its original number. Hence this petition has again been placed for hearing before this Court.
4. Fact in short giving rise to the present writ petition are as follows:
5. A notice under Section 10(2) of the Act, 1960 was issued by the Prescribed Authority on 17.11.1983, which was duly served upon the petitioner indicating that the tenure holder had 8.1 acres of irrigated land as surplus. Petitioner filed objections to the aforesaid notice, which contained three basic objections i. e. (a) that the notice has been issued to the petitioner only on 17.11.1983 when such proceedings under Section 10(2) should have been initiated within reasonable time, as no period of limitation has been prescribed under the Act, 1960 for the purpose, this reasonable period cannot extend to nearly 8 years to be counted from the date amendments were introduced in the Act, 1960 by U.P. Act No. 20 of 1976. (b) that a sale deed dated 27.11.1971 was executed by the petitioner with the permission of the Settlement Officer Consolidation. The same was a bona fide transaction and therefore the land so transferred was liable to be excluded.
(c) Plot Nos. 169 and 172 had wrongly been shown as irrigated. It was also stated that 12.19 acres of land was exclusively recorded in the name of Brij Kishore, who had not been issued notice under Rule 8. In order to keep the record straight it may be recorded that Sri Brij Kishore filed an independent objection claiming a right over Gata No. 65. Brij Kishore has been impleaded as respondent no. 4 in the present writ petition.
6. The Prescribed Authority, after recording the evidence and after considering the case pleaded by the parties, vide order dated 31.01.1985 held that the objections raised by the petitioner and Brij Kishore were unfounded. He held that the petitioner had 8.18 acres of land as surplus.
7. Not being satisfied with the order so passed, the petitioner filed an appeal under Section 13 of the Act, 1960. Brij Kishore (Respondent no. 4) also filed an independent appeal. Both the appeals were clubbed together and dismissed under one common judgment dated 13 th November, 1987. Hence this petition.
8. It may be recorded that nobody is present on behalf of Brij Kishore (respondent no. 4) nor the Court has been informed about any other writ petition having been filed by Brij Kishore.
9. Before this Court Sri V.K.S. Chaudhary, Senior Advocate has raised two grounds for challenging the orders impugned. Firstly, that although no time limit is fixed under Section 10(2) of Act, 1960 for issuance of a notice but such a power can be exercised only within reasonable time. He submits that U.P. Act No. 20 of 1976 was published in the official gazette on 03 rd May, 1976. It was made effective from 10 th October, 1975 and therefore any proceedings in pursuance to the said Amending Act could have been taken within reasonable period, which if read with reference to other provisions of Act, 1960 would be a period of two years. Since in the facts of the case notice has been issued after 8 years, the entire proceedings are bad, as the reasonable period cannot extend to 8 years.
10. Reliance has been placed upon the judgments of the Hon'ble Supreme Court of India in the cases of Ibrahimpatnam Taluk Vyavasaya Coolie Sangham vs. K. Supresh Reddy and others; (2003) 7 SCC 667 (Paragraph 12 and 13), State of H.P. And others vs. Rajkumar Brijender Singh and others; (2004)10 SCC 585, as well as M/s S.B. Gurbaksh Singh vs. Union of India and others; (1976) 2 SCC 181.
11. He clarifies that there had been three stages for imposition of ceiling on land holding in the State of Uttar Pradesh. The first stage commenced with the introduction of U.P. Act No. 1 of 1961 i. e. the principal Act. The second stage stood initiated with the issuance of U.P. Act No. 13 of 1973, whereby amendments were made in Section 9 and other corresponding provisions. The Amending Act also contains transitory provision, whereunder two years time limit had been fixed for re-determination of the ceiling limits, and the third stage stood commenced with the introduction of U.P. Act No. 20 of 1976 i.e. with effect from 10.10.1975.
12. Counsel for the petitioner submits that under Section 13-A of Act, 1960 a period of two years from the date of notification under Section 14 has been provided for rectification of a mistake. Under Section 9 of the U.P. Act No. 2 of 1975 (Transitory Provision) a period of 2 years has been provided for redetermination of ceiling limits under the amended provisions. Lastly under Section 13(3) of the U.P. Act No. 20 of 1975 (Transitory Provision) in respect of cases already decided before 10.10.1975, a period of two years have been notified for redetermination of the ceiling limits. The State Legislature has found this period of two years to be the fair and reasonable period for reopening of the orders already made and this period, according to the petitioner, should be the maximum period for exercise of powers under Section 10(2).
13. Since in the facts of the case notice has been issued after nearly 8 years under Section 10(2), he submits that the same cannot be considered to be a reasonable period for exercise of power by the authorities. The proceedings should, therefore, fall on this ground alone in view of the law referred to above.
14. The second ground raised before this Court is that both the authorities have taken into consideration the Khasra entries of the 1388, 1389 and 1390 Fasli for arriving at a conclusion that Plot No. 169 and 172 were irrigated. He submits that the Khasra entries of 1378, 1379 and 1380 Fasli alone could have been taken into consideration. Reliance has been placed upon the judgment of this Court in the case of Badi Bahu vs. State of U.P. and others; 1997(88) RD 385.Standing Counsel in reply contends that Section 9(1) and 9(2) of Act 1960 provides for issuance of a general notice in response whereof every tenure holder is required under law to submit his statement qua the surplus land possessed by him. It is only because of the default committed by such recorded tenure holder by not responding to the general notice under Section 9(1) and 9(2) of Act, 1960 that the Prescribed Authority has to exercise his power under Section 10. It is therefore contended that in the facts of the case the plea that the Court may determine two years as the reasonable period for exercise of power under Section 10(2), after issuance of general notice under Section 9(1) or 9(2), is wholly misplaced. He further clarifies that during all this intervening period i. e. from the date of issuance of general notice under Section 9(1) or 9(2) till the the date of issuance of notice under Section 10(2) to the petitioner, he continued to enjoy the land which was surplus with him, and therefore it cannot be said that any rights of the petitioner are adversely affected because of some delay in issuance of notice under Section 10(2).
15. With regard to second contention of the petitioner it is contended that under Section 5(2) explanation, of Consolidation of Holdings Act, 1953 (hereinafter referred to as 'Act, 1953') it has been clarified that proceedings under Act of 1960 shall not be deemed to be proceedings in respect of declaration of right or interest in any land. Meaning thereby that the proceedings under the Ceiling Act will not stand abated because of issuance of notification under Section 4 of the U.P. Consolidation of Land Holdings Act. Section 30(b) of the Act No. 8 of 1953 clarifies that the rights of the tenure holder entering into possession over the Chak would be the same as he had in his original holding together with such other benefits of irrigation from a private source, till such source exists, as the former tenure holder of the plots comprising the Chak had in regard to them. He, therefore, submits that irrespective of the consolidation proceedings the ceiling limits of the petitioner have rightly been determined. In the facts of the case authorities have recorded a categorical finding that Plot No. 169 and 172 were irrigated with reference to the fact that the plots lay within the command area of Betwa River Canal covered by clause thirdly of Section 4-A of the Act, 1960.
16. I have heard learned counsel for the parties and have gone through the records of the writ petition.
So far as the first contention raised on behalf of the petitioner is concerned, itmay be recorded that it is not the case of the petitioner that a general notice under Section 9(1) or 9(2) of the Act, 1960 was not issued or that the petitioner filed his statement as required thereunder. Therefore, in the facts of the case provisions of Section 10 were fully attracted and a notice was issued to the petitioner under Section 10(2) in accordance with law. Section 9, as amended from time to time, takes care of both the situations i. e. (a) after publication of general notice under Section 9(1) under the principal Act, and (b) after issuance of general notice under Section 9(2) as added by Act No. 18 of 1973. Section 9(2) proviso contemplates issuance of individual notice to the tenure holder by the Prescribed Authority irrespective of the fact as to whether any general notice had been issued under Section 9(2) for the area or not.
Section 9(2-A) of the Act, 1960 contemplates a contingency where the recorded tenure holder, having surplus land on 24.01.1971 or thereafter, has not submitted his statement as required under general notice under Section 9(2) and against him no proceedings under Act, 1960 were pending as on 10 th October, 1975. Such a tenure holder has to submit his statement referred to in Section 9(2) within 30 days from the said date.
17. From a joint reading of the aforesaid provisions it shall be clear that Section 9(1) contemplates a general notice at the first instance. Thereafter, with the amendment in parent Act vide Act No. 18 of 1973 publication of a fresh general notice under Section 9(2) was provided. Proviso to Section 9(2) permitted the Prescribed Authority to issue individual notice to tenure holders for filing their statement irrespective of the general notice published.
Section 9(2-A) requires filing of statement by the persons like the petitioner who had not submitted their statement and in respect of whom no proceedings under the Act, 1960 were pending on 10 th October, 1975 i. e. the date on which U.P. Act No. 20 of 1976 came into force. The section makes filing of the return necessary within 30 days from 10 th October, 1975 qua the surplus land held by the tenure holder and his family members on 24.01.1971 or thereafter including the acquired or disposed of land between 24.01.1971 to October 10, 1975 and for its inclusion.
Section 10 confers a power upon the Prescribed Authority to prepare the statement qua the persons who do not furnish their statement under Section 9, indicating the individual plots to be taken as surplus and thereafter to serve anotice in that regard under Section 10(2). For exercise of power under Section 10(2) no period of limitation has been provided.
18. It is no doubt true that under Section 13-A two years period from the date of issuance of notification under Section 14(4) has been provided for rectification of any mistake apparent on the face of record. Similarly, under Section 9 of U.P. Act No. 2 of 1975 (Transitory provision) a period of two years had been provided for redetermination of the ceiling limits under the Amended Act, and lastly under Section 31(3) of the U.P. Act No. 20 of 1976 (Transitory Provision) a period of two years is provided for redetermination of the surplus land in accordance with the provisions of the Act qua cases already decided before 10.10.1975.
19. It will be seen that all these three provisions pertain to redetermination/recalculation of the ceiling limits or for correction of the mistakes in orders determining the ceiling limits of a tenure holder. It is in respect of these contingencies only a period of two years has been provided as limitation. The legislature was aware of the aforesaid provisions, yet in its own wisdom it decided not to provide any limitation for exercise of power under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960. The High Court cannot legislate and lay down that power under Section 10(2) has to be exercised within two years of the date from which the tenure holder was required to file his statement under Section 9(1) or 9(2) of the Act, 1960. The plea, that such limitation of 2 years should be read in the section for exercise of power under Section 10(2) as reasonable period, also does not appeal to the Court.
20. The judgments relied upon by the counsel for the petitioner deal with either exercise of suo moto or revisional power for correcting the orders passed earlier. The judgments are, therefore, clearly distinguishable. Orders, which are passed earlier settled the rights of the parties and it is in this background that the Hon'ble Supreme Court of India has held that the suo moto exercise of power/exercise of revisional power for re-opening of earlier order, settling the rights of the parties, cannot be exercised after an unreasonable period.
21. However, in same judgments the Apex Court has explained that what would be the reasonable period has to be determined in the facts of each case. In the facts of the case in hand there has been no determination of the surplus land at the first instance and the petitioner throughout continued to enjoy the land,which he should himself have surrendered by filing a statement under Section 9 as surplus land. Therefore, the delay in issuance of notice under Section 10(2) to the petitioner has been to his benefit and there has been no adjudication of his rights at any point of time earlier.
22. This Court, therefore, records that the plea that the notice under Section 10(2) being not issued within reasonable time i. e. 2 would render the proceedings bad years does not appeal to the Court in the facts of the case. The petitioner himself failed to carry out the requirements of Section 9(1) or 9(2) by not filing his statement within the time provided under the said section.
23. So far as the issue of Plot No. 169 and 172 being un-irrigated is concerned, suffice is to record that the Prescribed Authority under the impugned order had categorically recorded that the plots were situate within the command area of Betwa Canal, which as per the notification dated 08.09.1971, published in the official gazette dated 20 th September, 1991, is Schedule-I category canal. Therefore, in view of Section 4-A thirdly it has rightly been held that the land, being within the command area of lift irrigation canal, had to be treated as irrigated.
24. It may be recorded that the relevant Khasras of 1378, 1379 and 1380 Fasli were not brought on record by the petitioner or by the state. It was not the case of the petitioner that such Khasra entries were available and/or be examined. Section 4-A of Act, 1960 require consideration of the aforesaid Khasras entries and such other records, as may be considered necessary, as well as for spot inspection being made for determination as to whether a particular plot of land is irrigated or not. Merely because the Khasras entries of 1378, 1379 and 1380 Fasli were not on record/not available, it will not mean that the Prescribed Authority could not have determined the issue qua the plots being irrigated or not with reference to the other material on record. It has been found as a matter of fact that the Plot Nos. 169 and 172 were situate within the command area of Betwa Canal, which was Schedule-I canal. Reference to Khasra entries of 1388, 1389 and 1390 Fasli is not of much relevance in the said factual background.
24. In the totality of the circumstances brought on record, it is held that the Prescribed Authority was right in recording that Plot Nos. 169 and 172 were irrigated in view of the fact they were situate in effective command area of Betwa Canal, a Schedule-I Canal. This Court may further clarify that any change in the plots because of the consolidation operation shall not in any way adversely affect the findings recorded qua the original land holding of the petitioner being irrigated, inasmuch as Section 30 of the Consolidation of Holdings Act, 1953 clarifies that from the date a tenure holder enters into possession of Chak allotted to him shall be deemed to have entered into possession with same rights, title, interest and liability, as he had in the original holdings together with such other benefits of irrigation from a private source, till such source exists. In view of the aforesaid Section 30(b) of the Consolidation of Holdings Act, 1953 the petitioner cannot take benefit of mere change in the plot numbers due to consolidation operation. It is not the case of the petitioner that area of his land holdings has been reduced because of such consolidation operation and he should be given benefit of such reduction in area.
25. In the totality of the circumstances on record, this Court finds no good ground to interfere. The writ petition is dismissed. Interim order, if any, stands discharged.