At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE RAM SURAT RAM (MAURYA)
For the Appellant: Krishna Kumar Chaurasiya, P.C. Singh, Advocates. For the Respondents: --------.
Ram Surat Ram (Maurya), J.
1. Heard Sri Krishna Kumar Chaurasiya, for the petitioner and Standing Counsel for the respondents. The writ petition has been filed against the order dated 4.12.2013 passed by the Prescribed Authority under U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) rejecting the application of the petitioner for revising choice of the surplus land.
2. In the ceiling proceeding initiated against Vijai Shankar Tripathi, (husband of the petitioner) Prescribed Authority by order dated 29.6.1976 declared an area of 10-13-7 bigha as surplus land. Vijai Shankar Tripathi, (husband of the petitioner) voluntarily gave choice on 24.6.1976 of surplus land in which plot No. 285/1 (area 4 biswa 15 dhur) also was included. The
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Prescribed Authority accepted surplus land by order dated 29.6.1976. This order was not challenged by Vijai Shankar Tripathi or any one else. Subsequently, the land in dispute was allotted to respondent-3 on 1.7.1986. It may be mentioned that the village was under consolidation operation and name of respondent-3 was directed to be recorded over the land in dispute by the order of Consolidation Officer dated 1.4.1989. Thereafter, the proceeding has been taken by the petitioner for cancellation of patta but patta has been upheld by the order of Additional Commissioner, Varanasi Division, Varanasi, dated 26.9.1998.
3. The petitioner then moved an application on 30.10.1998 before the Prescribed Authority for revising choice of the surplus land and has stated that plot No. 285/1 was purchased by her in her own name. She had no notice of the ceiling proceeding against her husband. Her husband has illegally gave choice of surplus land in respect of the land in dispute. In place of the land in dispute, her other plot be taken as surplus land. Prescribed Authority, by order dated 2.11.1998, allowed the application of the petitioner. Sukumari Devi (respondent-3) filed an application for recall of the order dated 2.11.1998, which was rejected by Prescribed Authority by order dated 11.2.2003 on the ground that she had no focus standi to file recall application. Sukumari Devi filed Writ-C No. 11270 of 2003 against the aforesaid order which was allowed by this Court by order dated 24.5.2004 and this Court held that the petitioner was entitled to be heard. The matter was remanded to Prescribed Authority to consider the recall application of the petitioner on merit.
4. After remand, Prescribed Authority by the impugned order dated 4.12.2013, found that Vijai Shankar Tripathi (husband of the petitioner) voluntarily had given choice of surplus land on 24.6.1976 in which plot No. 285/1 (area 4 biswa 15 dhur) was included. The order of Prescribed Authority dated 29.6.1976 was not challenged by any party. Possession over the surplus land was already taken and it was allotted to Sukumari Devi in the year 1986. Although tahsil authorities have reported that file relating to patta was not available but original patta has been filed by Sukumari Devi. Her name was also mutated on its basis by order dated 1.4.1999. He had no jurisdiction to examine the validity of the patta. There is no justification to permit the tenure holder to revise choice after 22 years of finalization of the proceedings. On these findings the application of the petitioner has been rejected. Hence this writ petition has been filed.
5. The Counsel for the petitioner submit tahsil authorities reported that file relating to patta was not available as such granting patta to respondent-3 of the land in dispute was not proved. In the alleged patta dated 1.7.1986, plots 285 and 300/2 were allotted to Sukumari Devi. New number of plot 300/2 was allotted as 189 during consolidation, which is a talab land recorded in the name of Shakti Kumar and others. Thus it is proved that alleged patta produced by respondent-3 is a forged document. Possession over the disputed land was not taken as such the petitioner has right to revise her choice of the surplus land. The land in dispute was purchased by the petitioner and is a roadside valuable land and her husband had no right to give it as choice of surplus land in the proceeding taken against him. No notice of the proceedings under the Act has been given to the petitioner and entire proceeding was ex parte against her. Her application has been illegally rejected.
6. I have considered the arguments of the Counsel for the parties and examined the record. The word "tenure holder" has been defined u/s 3(17) of the Act, as a person who is the holder of a holding but except in Chapter III does not include (a) a woman whose husband is tenure holder; (b) a minor child whose father or mother is tenure holder. Section 5(1) provides that no tenure shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of ceiling area applicable to him. This Court in State of U.P. v. Smt. Vidyawati 1974 RD 64, held that the husband, being head of the family hold the land in his name as well as in the name of his wife and minor sons and daughters and for purposes of section 5(1) of the Act all land recorded in the name of wife and minor children would be aggregated with the land of the husband. Thus for calculating ceiling limit, holdings of the tenure holder, his wife and minor children are aggregated under the Act. The land in dispute was aggregated in the holding of the husband of the petitioner, who contested the proceeding and gave choice on 24.6.1976, including the land in dispute. The proceedings become final in the year 1976 and cannot be allowed to reopen after 22 years.
7. So far as the arguments of the Counsel for the petitioner that possession over surplus land was not taken is concerned, it cannot be accepted. Order of Prescribed Authority dated 29.6.1976 was not challenged by any one and became final. Allotment of the land to respondent-3 shows that possession was taken over the surplus land. The petitioner has contested the case for cancellation of patta. She has contested the case for recording the name of respondent-3 in consolidation on the basis of patta. Thus all these circumstances shows that possession over surplus land was taken in 1976.
8. The arguments of the Counsel for the petitioner that the land in dispute was not allotted to respondent-3 and her alleged patta is a fabricated document. He submits that tahsil authorities have reported that file relating to allotment was not available. The validity of the patta has already been upheld by Additional Commissioner in the proceedings for cancellation of the patta initiated by the petitioner. The petitioner cannot be permitted to raise this point again. Original patta has been filed by respondent-3 before Prescribed Authority, who believed on it. None of the Revenue Authority could dare to say that patta produced by respondent-3 is a fabricated document. The Prescribed Authority has rightly held that he cannot examine the validity of the patta.
9. So far as the arguments that in patta dated 1.7.1986, plots 285 and 300/2 were allotted to Sukumari Devi and new number of plot 300/2 was allotted as 189 during consolidation, which is a talab land recorded in the name of Shakti Kumar and others, is concerned, it is usual that original holding of one tenure holder is allotted to other tenure holder. After allotment of plot 300/2 to Shakti Kumar and others, they might have constructed talab over it. This fact does not create any doubt in respect of the validity of patta of respondent-3. In any case, as held above, a tenure holder has no right to revise his choice after the surplus land is vested in State of U.P. u/s 14 of the Act. As the petitioner has no right to revise her choice of the surplus land Prescribed Authority has no jurisdiction to go into various controversy raised by the petitioner. In view of the aforesaid discussions, the impugned order does not suffer from any illegality. The writ petition is dismissed.