WPMS/339/2003 of DESH RAJ Vs STATE and ORS. on 30 December 2008

(1) Writ Petition (M/S) No. 577 of 2003.

Subhash Chandra Chhabra S/O Desh Raj, 49 R.R.Quarter Rudrapur, District Udham Singh Nagar.

… Petitioner.

Vs.

State of Uttarakhand through Collector Uhdam Singh Nagar and others.

… Respondents.

Sri V.D.Bisen, learned counsel for the petitioners. Sri Sudhir Kumar, learned Brief Holder of the State for respondents.

(2) Writ Petition (M/S) No. 578 of 2003.

Rakesh Kumar Chhabra S/o ShriDesh Raj, R/o 52 R.R.Quarter Rudrapur, District Uhdam Singh Nagar.

… Petitioner

Vs.

State of Uttarakhand through Collector Udham Singh Nagar and others.

… Respondents.

Sri V.D.Bisen, learned counsel for the petitioners. Sri Sudhir Kumar, learned Brief Holder of the State for respondents.

(3) Writ Petition (M/S) No. 579 of 2003.

Vinod Kumar S/O Shri Desh Raj, R/o R.R.Quarter Rudrapur, District Udham Singh Nagar.

… Petitioner.

State of Uttarakhand through Collector Udham Singh Nagar and others.

… Respondents.

Sri V.D.Bisen, learned counsel for the petitioners.

Sri Sudhir Kumar, learned Brief Holder of the State for respondents.

Date December 30,2008.

P.C.: Hon’ble B.S.Verma, J.

Heard learned counsel for the parties and perused the record.

The writ petitions are admitted.

Since the controversy involved in all the four writ petitions is similar and the orders impugned in all these writ petitions are the same, therefore, for the sake of convenience, they are being decided by this common order.

In all the writ petitions, the petitioners have challenged the order dated 22-3-2003 passed by Additional Commissioner, Kumaun Division, Nainital in Ceiling Appeal No. 11 of 1998-99/6/11 of 99-2000/4 of 2000-1 and the judgment and order dated 30-7-1999 passed by the Prescribed Authority/Additional Collector, Udham Singh Nagar in Ceiling Case No. 52/26 of 93-94. The petitioners have also sought quashing of notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act 1960 (for short the Act) issued to them.

Briefly stated, the facts giving rise to the writ petitions are that Sri Desh Raj (since deceased), the father of the petitioners, was issued a notice under Section 10(2) of the Act in respect of the land held by him including the land of his sons. Against the notice, Desh Raj (since deceased), filed objections, wherein Desh Raj Specifically stated that at the time of issuance of the notice, all his sons were major and they were in possession of the holding in their own independent rights.

This fact is not disputed by the respondents that no notice was issued to the sons of the tenure holder deceased Desh Raj.

After hearing tenure holder Desh Raj (since deceased), the Prescribed Authority confirmed the notice which was issued under Section 10(2) of the Act and declared 5.612 Hectare land as surplus as mentioned in the impugned order on the ground that the family of the tenure holder Desh Raj and his sons is a joint Hindu family. It has also been admitted that at the time of issuing the notice, the names of the petitioners, who are sons of deceased Desh Raj, were recorded in the revenue record. The Prescribed Authority clubbed the land of the sons of deceased Desh Raj in the holding of tenure holder Desh Raj and only allowed the benefit of two Hectare land to each son and by the order dated 30-7-1999, the Prescribed Authority has declared 5.612 Hectare land surplus in terms of irrigated land.

Arguments

Aggrieved by this said order, the tenure holder Desh Raj (father of the petitioners) preferred Ceiling Appeal before the Additional Commissioner. The Additional Commissioner did not find favour with the appellants-petitioners and dismissed the appeal and confirmed the order of the Prescribed Authority on the same ground by his order dated 22-3-2003, which gave rise to the present writ petitions.

Learned counsel for the petitioners has contended that no notice was ever given to the petitioners as well as other family members under Rule 19(4) of the Rules framed under the Act and no separate notice under Section 10(2) of the Act read with Rule 8 of the Rules framed thereunder was ever given, therefore, on this ground alone the writ petitions deserve to be allowed.

Having heard the learned counsel for the parties and having perused the material on record, the undisputed facts emerging out therefrom are that no notice under Section 10(2) of the Act read with Rule 8 of the Rules framed thereunder was issued to the petitioners, namely Vinod Kumar, Rakesh Kumar and Subhash Chandra Chhabra, sons of late Desh Raj. The notice was only issued to their father Desh Raj (since deceased).

This fact is also not disputed as per finding of the Prescribed Authority that the names of the petitioners were recorded in the revenue records before issuing the notice under Section 10(2) of the Act to Desh Raj. Learned counsel appearing for the State has also not disputed this fact before this Court. This fact is also not disputed that the land, which is recorded in the names of Vinod Kumar, Rakesh Kumar and Subhash Chandra was not the land of tenure holder Desh Raj.

Counter affidavit in each petition has been filed on behalf of respondent no.1-State. In paragraph no. 9, which is in reply to paragraph no. 7 of the memo of writ petition, it has been stated by the State that no notice was required to be issued to Rakesh Kumar, Vinod Kumar and Subhash Chandra.

According to the petitioners, they perfected their rights after coming into force of the U.P.Zamindari Abolition and Land Reforms Act in their independent tenancy rights and have become Sirdar at the time of vesting and lateron became Bhumidhar by operation of law.

The petitioners were recorded in the revenue records in their own rights independently and the concept of Hindu Undivided Family is not applicable to agricultural land.

From a perusal of the impugned order dated 30-7-1999 of the Prescribed Authority, it is obvious that the sons of Desh Raj (since deceased), who were all major, at the time of issuance of notice under Section 10(2) of the Act, were not heard by the Prescribed Authority, despite the fact that in the objection, Desh Raj has undisputedly stated that the tenure holder had no concern with the land of his major sons namely, Subhash Chandra, Vinod Kumar and Rakesh Kumar, and they are living separately. Moreover, compliance of mandatory provision of Rule 8 of the Rules framed under the Act has not been made by the Prescribed Authority, therefore, all the four writ petitions are liable to be allowed on this ground alone.

All the four writ petitions are allowed. The impugned orders are set aside. However, the Prescribed Authority would be at liberty to proceed against the petitioners afresh, after issuing notice under Section 10(2) of the Act read with Rule 8 of Rules framed thereunder in accordance with law and decide the matters on merits, after affording opportunity of hearing to the petitioners.

RCP

(B.S.Verma,J.)