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PETITIONER: MANSOOR ALl KHAN AND ORS.

       Vs.

RESPONDENT: STATE OF U.P. AND ORS.

DATE OF JUDGMENT01/11/1991

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) KASLIWAL, N.M. (J)

CITATION:  1992 AIR  245            1991 SCR  Supl. (2) 159  1992 SCC  (1) 737        JT 1991 (4)   229  1991 SCALE  (2)928

ACT:     U.P.  Imposition  of  Ceiling  on  Land  Holdings  ,Act, 1960/U.P.  Imposition  of Ceiling on Land  (Amendment)  Act, 1976 (Act 20 of 1976).’     Ss.   9(2).   12/31   (3)--Determination   of    surplus land--Tenure holder died before notice for initial  determi- nation--Redeterrnination  - -Notice--Whether to be  sent  to all the heirs--Jurisdiction of Prescribed Authority--Whether depends on issuance of notice under section 9(2).

HEADNOTE:     The tenure-holder of the land in dispute  father of  the appellants---died on 20.8.1974, leaving behind, besides  the four  appellants,  three other sons, three daughters  and  a widow  as  his legal heirs and  representatives.  After  his death  a notice under s. 10 of the Uttar Pradesh  Imposition of Ceiling on Land Holdings Act, 1960, proposing to  declare certain  lands as surplus, addressed to him, was  served  on his son-appellant no. 1 who filed objections. The Prescribed Authority  partly upheld the objections and by its  judgment dated 29.4.1975 determined some land as surplus. The  appel- lants filed an appeal before the Civil Judge.     Meanwhile  the  Ceiling  Act was amended  by  the  Uttar Pradesh  Act  20  of 1976, s. 31 (3)  whereof  provided  for redetermination  of  surplus  lands within  two  years  from 10.10.1975 in cases where orders declaring lands as  surplus had been made prior to that date, notwithstanding any appeal against the original order of determination of surplus land. A fresh notice under s. 10 (2) of the Act issued to appellant no. 1 proposing to declare certain lands as surplus. After considering the appellant’s objection  the Prescribed  Authority by its order dated  22.12.1976  deter- mined some land as surplus, holding that the said lands were surplus which were owned by the deceased as tenure holder on the  appointed  day. The appeal against the said  order  was dismissed by the District Judge.     In  the writ petition preferred by the  appellants,  the High Court held that previous determination of surplus lands by the Prescribed Authority did not operate as res judicata, and that the appellate 160

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authority  was  justified in ignoring the  sale  deed  dated 27.10.1971.  It, however, held that the determination  about some plots of lands had not been properly made, and remanded the case to the appellate authority with the direction to it to  issue  notice to the other brothers of  the  appellants. Aggrieved, the appellants filed the appeal by special  leave to this Court.     It  was contended on behalf of the appellants  that  the proceeding  for re-determination of ceiling land  could  not have been initiated by the Prescribed Authority until notice under s. 9 (2) of the Act was issued to all the heirs of the deceased  tenure  holder;  that  since  the  redetermination proceedings  were  initiated after Act 20 of  1976  was  en- forced,  the  redetermination could only be made  under  the provisions  of the Act as amended by Act 20 of 1976  and  in view of the changes in the Ceiling Act there was no  surplus land liable to be vested in the State; that as two years had elapsed from the enforcement of Act 20 of 1976, no  redeter- mination was permissible thereafter.     Disposing  of the appeal and remanding the case  to  the Prescribed Authority, this Court,     HELD:  1. Section 31(3) of the Uttar Pradesh  Imposition of  Ceiling on Land (Amendment) Act, 1976 (Act 20  of  1976) authorised  the  Prescribed  Authority  to  redetermine  the surplus  land in relation to the tenure holder if  initiated within two years from October 10, 1975. [p. 164 D-E]     In  the  instant  case, the  previous  determination  of ceiling  was made before 10.10.1975. Accordingly,  under  s. 31(3)  of U.P. Act 20 of 1976, the Prescribed Authority  had jurisdiction  to  initiate  the said  proceedings  and  such jurisdiction did not depend on issuance of notice under s. 9 (2)   of   the  Act  to  the  tenure   holder   and/or   his successors-in-interest. [p. 164 EF]     Shantnu  Kumar  v. State of Uttar Pradesh  &  Ors,  1977 Allahabad Law Reports p. 564, referred to.     2.   Although the Prescribed Authority had  jurisdiction to  initiate the proceeding for re-determination of  surplus land and he had in fact initiated such proceeding within two years as referred to in     31(3)  of U.P. Act 20 of 1976, yet,  such  determination could not have been made without affording to the heirs  and legal representatives of the tenure holder an opportunity of being heard and showing cause before the Prescribed Authori- ty. [p. 164 FG]     The tenure holder had died in 1974 and the said fact was made  known  to the Prescribed Authority  when  the  initial determination of surplus lands was made. It was  unfortunate that  in  spite of the said fact, the  Prescribed  Authority failed and neglected to ascertain the names of all the legal heirs and representatives of the deceased tenure holder  and did not issue notice to them for redetermination of  surplus land. [pp. 164 GH; 165 A]     3.   While  the High Court directed to issue  notice  to other  brothers and remanded the case to the  appellate  au- thority,  it did not direct to issue notices to other  heirs and  legal  representatives. Morever, without  giving  other heirs  and  legal representatives an  opportunity  of  being heard,  adjudication of the case on merits by the  concerned authorities or by the High Court was not warranted. [p.  165 AB]     4.  The Prescribed Authority will decide the question of plus land-in accordance with the existing provisions of  the Ceiling  Act applicable on the relevant date, after  issuing notices to the heirs and legal representatives of the tenure holder  and  giving them a reasonable opportunity  of  being

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heard. [P- 165 DE]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 728 of 1980.     From  the  Judgment and Order dated  29.11.1978  of  the Allahabad High Court in Civil Misc. Writ No. 2955 of 1977.     Satish Chandra, Ms. Abha jain, Gaurav Jain and  Ghayyute Alam for the Appellants Ashok Kumar Srivastava for the Respot, dent. The Judgment of the Court was delivered by     G.N RAY, J. In this appeal by grant of special leave the appellants,  four in number. being sons of late Shri  Wadood Ali Khan, have challenged the legality, validity and propri- ety  of  redetermination  of ceiling on lands  of  the  said Wadood All Khan under the Uttar Pradesh Imposition of  Ceil- ing  on Land Holdings Act, 1960 (hereinafter referred to  as the  Ceiling  Act). The relevant facts of the  case  of  the appellants in appeal are as follows :--                 (a)  The appellants are four sons and  legal               representatives  of late Shri Wadood All  Khan               who had died on 20.8.1974. It is contended               162               mat  in  addition to the appellants  the  said               Wadood  Ali Khan had left the other heirs  and               legal    representatives,    namely,     three               sons---Maskhur Ashud Khan, Mohdud Ali Khan and               Mashkoor  Ali Khan, widow Smt.  Firdaus  Begum               and daughters Shabana Begum, Farzana Begum and               Qaiser Jahan Begum.                (b) That after the death of Wadood Ali  Khan,               the Prescribed Authority under the Ceiling Act               served a notice under Section 10 of the  Ceil-               ing  Act  proposing to declare  lands  to  the               extent  of 178-15-19 bighas of irrigated  land               as  surplus. Such notice under Section 10  was               served on appellant No. 1 although the  notice               was addressed to the deceased Wadood Ali Khan.                (c)  Appellant No. 1 filed objections  before               the Prescribed Authority and also participated               in  the  proceedings   for  determination   of               ceiling.  Such proceeding was decided  by  the               Prescribed  Authority  by its  Judgment  dated               29th April, 1975, inter alia partly  upholding               objections  of  the  appellant  and  declaring               87-1-19-19  bighas of irrigated lands as  sur-               plus and treating the late Wadood Ali Khan  as               the tenure holder.                (d) The appellants filed an appeal before the               learned  Civil  Judge  against  the  aforesaid               decision of the Prescribed Authority and it is               stated in the appeal petition that such appeal               was pending.                (e) The Ceiling Act was amended from time  to               time  and in 1976 the Ceiling Act was  further               amended  by the U.P. Act No. 20 of 1976.  Such               Amending Act received the assent of the Presi-               dent on 30th April, 1976 and was published  in               the U.P. Gazette extraordinary dated 3rd  May,               1976. Various changes in different Sections of               the  Ceiling Act were introduced by  the  said               U.P. Act 1976. Section 31 (3) of the said U.P.               Act 20 of 1976 provides as follows:               31.(3) Where an order determining surplus land

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             in  relation to a tenure holder has been  made               under  the principal Act before the tenth  day               of October, 1975, the Prescribed Authority (as               defined in the principal Act) may, at any time               within  a  period of two years from  the  said               date, re-determine the surplus land in accord-               ance with the principal act as amended by this               Act,  whether  or  not any  appeal  was  filed               against  such  order and  notwithstanding  any               appeal  (whether pending or  decided)  against               the original order of determination of surplus               land.                (f) The Prescribed Authority issued a  notice               to/he appellant No. 1 on 8th July, 1976  under               Section  10(2) of the Act inter  alia  holding               that  199-1-1 bighas of irrigated  lands  were               proposed to be               163               declared surplus. The appellants filed  objec-               tions  to the proposed action of  redetermina-               tion of ceiling by raising various objections.               The  Prescribed Authority thereafter  disposed               of the proceeding of redetermination of  ceil-               ing by order dated 22nd December, 1976 to  the               effect  that  125-3-8-16 bighas  of  irrigated               lands  belonging to the said Wadood  Ali  Khan               were  surplus which were owned by  Wadood  Ali               Khan as tenure holder on the appointed day.                (g) The appellants preferred an appeal in the               Court  of District Judge, Saharanpur,  against               such order dated 22nd December, 1976, but such               appeal was dismissed by the learned Additional               District  Judge  by Judgment and  Order  dated               16th  May,  1977.  The  appellants  thereafter               moved  a Writ Petition in the  Allahabad  High               Court being Civil Misc. Writ No. 2955/77 which               was disposed of by Order dated 29th  November,               1976.                (h) The Writ Petition moved by the appellants               were  disposed of by the Allahabad High  Court               inter alia to the effect that previous  deter-               mination  of  surplus land by  the  Prescribed               Authority did not operate as res judicata  and               the  appellate  authority  was  justified   in               ignoring the Sale Deed dated October  27,1971.               The  High  Court of Allahabad,  however,  held               inter  alia that the determination about  some               plots  of  lands had not been  properly  made.               Accordingly,  the  case was  remanded  to  the               appellate authority with the direction to  the               appellate  authority  to issue notice  to  the               other brothers of  the appellants- Mr. Satish Chandra, learned senior counsel appearing for the appelants,  has  strongly contended at the hearing  of  this appeal  that such redetermination could only be  made  under the  provisions of the Act as amended by U.P. Act No. 20  of 1976 in view of the fact that the initiation of the proceed- ings  for redetermination was made after the said Act 20  of 1976  was  enforced. He has also contended that  the  notice under  Section 10(2) was deliberately issued to  the  appel- lants  by ignoring the other heirs of late Wadood  Ali  Khan although  the concerned Prescribed Authority was aware  that the  said  Wadood  All Khan had died in 1974.  He  had  also contended that the notice under Section 10(2) was  purported to have been issued under the Amending Act of 1975  although

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the  Amending  Act of 1976 had come into force.  Mr.  Satish Chandra has also contended that if the Prescribed  Authority had prima facie come to the finding that the lands indicated in the notice under Section 10(2) were surplus lands, it was his bounden duty to serve notices on all the heirs of Wadood All  Khan  and  initiation of any  proceeding  without  such notices  to all the heirs was void. In support of this  con- tention, he has relied upon a Full Bench 164 decision  of  the Allahabad High Court made in the  case  of Shantnu  Kumar v. State of Uttar Pradesh and  Others,   1977 Allahabad  Law  Report p. 564. Mr. Satish Chandra  has  also contended  that service of proper notice under Section  9(2) of the Ceiling Act on all the heirs of late Wadood Ali  Khan was  essential for assuming jurisdiction to redetermine  the ceiling  lands.  Admittedly, when such notice had  not  been issued to all the co-sharers, no proceeding for redetermina- tion  could  have been lawfully  initiated.  Therefore,  the adjudication made by the Prescribed Authority and consequen- tial adjudication by the appellate authority and the Allaha- bad High Court must be held to be illegal, void and  without jurisdiction.  He  has contended that since  two  years  has elapsed from the enforcement of the said Act 20 of 1976,  no fresh  redetermination is permissible in law at present.  He has  also  contended that the purported  initiation  of  the proceedings  for  redetermination of ceiling  on  lands  and order passed by the Prescribed Authority and the  consequen- tial  orders  passed by the appellate authority and  by  the High  Court  of Allahabad on the  Writ  Petitions  mentioned hereinbefore must be quashed.     We  are, however, not inclined to accept the  contention of  Mr. Satish Chandra that the proceeding for  redetermina- tion  of ceiling land could not have been initiated  by  the Prescribed  Authority  until Notice under Section  9(2)  was issued  by  him to all the heirs and he  could  only  assume jurisdiction for initiation of a proceeding for redetermina- tion  of ceiling land after serving such notices to all  the heirs of late Wadood Ali Khan. Section 31 (3) of U.P. Act 20 of 1976, in our view, authorises the Prescribed Authority to redetermine  the  surplus  land in relation  to  the  tenure holder if initiated with in two years from October 10, 1975. Admittedly,  the previous determination of ceiling was  made before  tenth  of  October, 1975.  Accordingly,  under  sub- Section  (3) of Section 31 of the said U.P. Act 20 of  1976, the  Prescribed Authority had jurisdiction to  initiate  the said  proceeding  and such jurisdiction did  not  depend  on issuance of notice under Section 9(2) of the Ceiling Act  to the  tenure holder and/or the successors-in-interest of  the tenure holder. It, however, appears to us that although  the Prescribed  Authority had jurisdiction to initiate the  pro- ceeding  for redetermination of surplus land and he  had  in fact initiated such proceeding within two years as  referred to in sub-section (3) of Section 31 of U.P. Act 20 of  1976, such determination could not have been made without  afford- ing  to  the heirs and legal representatives of  Wadood  Ali Khan an opportunity of being heard and showing cause  before the  Prescribed Authority. Admittedly, Wadood Ali  Khan  had died  in  1974 and he said fact was made known to  the  Pre- scribed Authority when the initial determination of  surplus lands  was  made. It is unfortunate that in  spite  of  said fact,  the  Prescribed  Authority failed  and  neglected  to ascertain the 165 names  of all the legal heirs and representatives of  Wadood Ali Khan, and did not issue notices to such heirs for  rede-

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termination of surplus land. The High Court of Allahabad has directed  to  issue notice to other brothers of  Wadood  Ali Khan.  The  High  Court has also remanded the  case  to  the appellate  authority so that other brothers get  opportunity to appear and make submissions. The High Court has, however, not  directed  to  issue notices to other  heirs  and  legal representatives. Moreover, in our view, without giving other heirs  and  legal representatives an  opportunity  of  being heard,  adjudication of the case on merits by the  concerned authorities  or by the High Court was not warranted. In  the aforesaid facts, we dispose of this appeal by setting  aside the order passed by the Prescribed Authority on 22nd  Decem- ber,  1976 and the impugned appellate orders passed  by  the learned Additional District Judge on 26th May, 1976 and also the impugned decision of Allahabad High Court in Writ  Peti- tion  No. 2955/77. Mr. Satish Chandra has contended that  in view of subsequent changes of the Ceiling Act by the  Amend- ing  Act 20 of 1976, there is no surplus land liable  to  be vested in the State of Uttar Pradesh. It is not necessary to express any opinion on such contention of Mr. Satish Chandra in view of the fact that the Prescribed Authority will  have to  redetermine  the case of surplus land on  the  basis  of existing  provisions  of the Ceiling Act applicable  on  the relevant  date and the parties will get opportunity to  make appropriate  submissions  on fact and  law.  The  Prescribed Authority is directed to issue notices to all the heirs  and legal representatives of late Wadood Ali Khan including  the appellants herein and the other heirs and legal  representa- tives referred to in this judgment. The Prescribed Authority will decide the question of surplus land in accordance  with the provisions of the Ceiling Act after issuing such notices to  the heirs and legal representatives of late  Wadood  Ali Khan  and  giving  such heirs and  legal  representatives  a reasonable opportunity of being heard. In order to avoid any difficulty and any attempt to delay the disposal of redeter- mination  of  surplus land by the appellants  or  the  other heirs  of Wadood Ali Khan, it is directed that if there  has been any change in the survivorship of legal representatives of  late Wadood Ali Khan or devolution of interest  of  such heirs  by  lapse of time, the appellants should  inform  the Prescribed Authority within a month from today the names and other particulars including the addresses of all such  heirs and  legal representatives of late Wadood Ali Khan  so  that appropriate notices may be issued by the Prescribed Authori- ty.  If the names and particulars of the  legal  representa- tives  are  not furnished within a month from today  by  the appellants  to  the Prescribed Authority in  terms  of  this direction,  liberty is given to the Prescribed Authority  to serve  the notices to the appellants and to the other  heirs mentioned in this judgment by sending such notices under the care  of  the  appellant No. 1, Mansoor  Ali  Khan,  village Kailashpur, Pargana Haraura, 166 Tehsil and P.O. Saharanpur, UP., and it will be deemed  that he  is  representing the interest of other heirs  and  legal representatives.  The  Prescribed Authority is  directed  to dispose  of  the proceeding for redetermination  of  surplus land  as  early  as possible in view of the  fact  that  the matter  is pending determination for long. In the  facts  of the case, there will be no order as to costs. R.P.                                         Appeal disposed of. 167

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