# Smt. Pavitra and others v. State of U.P. and others

- **Citation:** (2003) 3 ILRA 875
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-05
- **Case number:** Civil Misc. Writ Petition No. 525 of 1997
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-pavitra-and-others-v-state-of-u-p-and-others-40222
- **Pages:** 6

## Headnote

Holdings Act- Section 11 (2)- objection
u/s 11 (2) Rejected-without notice-heldmere
their
substitution
in
earlier
proceeding under section 10 (2) of the
Act finalized-objection under section 11
(2) of the Act lying his independent claim
held to be permissible even at the
instance of unrecorded tenure holderPetition allowed and matter remitted
back to the prescribed authority for
passing fresh order.

Held-Para 11

Section 10 (2) of the Act is finalized and
person files objection under Section 11
(2) of the Act laying his independent
claim, which has been held to be
permissible even at the instance of
unrecorded tenure holder. Accordingly
this is clear that so far finding given in
any earlier proceedings are concerned on
any particular issue that is always there
but at the same time if a person files
objection under section 11 (2) of the Act
that is to be examined on the merits with
whatever result on the merits i.e. either
by rejecting the claim of the objector or
by accepting it.

## Text

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3 All] Smt. Pavitra and others V. State of U.P. and others
875
15. Admittedly, the petitioner has
not been found fit by the Selection
Committee.
The
petitioner
had
participated in the written test and had
also appeared before the D.P.C., but his
name was not recommended by the
D.P.C. and has therefore, not been
promoted. Merely because he was not
selected, he cannot turn around and
challenge the selection process after
participation in the selection. No malice
could be established against the members
of the Selection Committee.

16. The writ petition, therefore, fails
and is dismissed. However, looking at the
long service of the petitioner, it is directed
that his case in the next P.U.C.
Examination
be
considered
sympathetically. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.8.2003

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 525 of 1997

Smt. Pavitra and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri R.N. Singh
Sri A.K. Rai
Sri A.P. Sahi
Sri P.K. Singh

Counsel for the Respondents:
Sri A.K. Banerjee
Sri R.M. Pandey
S.C.

U.P. Imposition of Ceiling on Land
Holdings Act- Section 11 (2)- objection
u/s 11 (2) Rejected-without notice-heldmere
their
substitution
in
earlier
proceeding under section 10 (2) of the
Act finalized-objection under section 11
(2) of the Act lying his independent claim
held to be permissible even at the
instance of unrecorded tenure holderPetition allowed and matter remitted
back to the prescribed authority for
passing fresh order.

Held-Para 11

Section 10 (2) of the Act is finalized and
person files objection under Section 11
(2) of the Act laying his independent
claim, which has been held to be
permissible even at the instance of
unrecorded tenure holder. Accordingly
this is clear that so far finding given in
any earlier proceedings are concerned on
any particular issue that is always there
but at the same time if a person files
objection under section 11 (2) of the Act
that is to be examined on the merits with
whatever result on the merits i.e. either
by rejecting the claim of the objector or
by accepting it.

(Delivered by Hon'ble S.K. Singh, J.)

1. By means of this writ petition
petitioners have challenged the judgment
of the appellate authority and of the
prescribed authority dated 19.12.96 and
16.9.96 (Annexures 8 and 6 respectively)
by which petitioners application under
section 11 (2) of the U.P. Imposition of
Ceiling on Land Holdings Act, hereinafter
referred to as the Act has been rejected.

2. There appears to be no dispute
about the fact that proceedings under
Section 10 (2) of the Act was started
against one Data Ram. Petitioners who
are although married daughters of Data
Ram, referred above but they claim to be
having; their independent rights on the
basis of registered sale deed in their
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876 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
favour dated 22.9.71 on the basis of
which their names was also mutated on
14.1.72. In the proceedings under section
10 (2) of the Act land covered by the sale
deed in favour of the petitioners was
claimed for being excluded, but Data Ram
could not succeed and the prescribed
authority by its judgement dated 2.1.75
declared certain area as surplus. Having
unsuccessful upto this court Data Ram
took up the matter to the Apex Court.
During pendency of the appeal before the
Apex Court Data Ram died. It is claimed
that although he left behind him Dayawati
his widow as heir but by moving
substitution application petitioners were
also brought on record. Finally the Apex
Court also dismissed the appeal by its
judgment dated 14.11.95 by accepting the
findings of the authorities that the
agreement
was
manufactured.
After
dismissal of the appeal by the Apex Court
it is on the premises that when Ceiling
authorities intended to take possession
from the petitioners then they came to
know about the fact that their land is to be
taken by virtue of declaration of land as
surplus in the proceedings against Data
Ram , they filed objection on 13.12.95
under Section 11 (2) of the Act which
came to be rejected by the respondents 2
and 3 by judgments referred above against
which petitioners have come up to this
court.

3. Sri R.N. Singh, learned Senior
Advocate assisted by Sri A.K. Rai,
learned Advocates submits that as on
8.6.73 petitioners were recorded tenure
holder and therefore if the statement in
CLH form 3 includes the land ostensibly
held in the name of any other person it
was obligatory on the part of the State
authority to serve notice on the petitioners
as well in CLH form-1 together with the
copy of the statement in CLH-3 calling
upon him to show cause. It is argued that
as this was not done which is mandatory
on the part of the State Authority the
entire proceedings by which land held by
the petitioner has been declared as surplus
is nullity and is void. It is submitted that
premises on which the authorities have
rejected
petitioner's
application
that
petitioners
had
knowledge
of
the
proceedings by virtue of the fact that they
were brought on record in the pending
appeal before the Apex Court is totally
mis conceived for the simple reason that
bringing on record of the petitioners can
be said to be only for the purpose of
prosecution of the case and they cannot be
expected to have any other say except to
plead
for
the
claim/rights
of
the
parties/tenure holder for whom they have
been substituted. Otherwise also they
were substituted as heirs of the deceased
but in the event if the petitioners have
their independent rights in the land they
can very well lay their claim as and when
occasion arises. It is argued that as even
the unrecorded tenure holder laying his
claim to the land has been permitted by
this court to file an objection under
section 11 (2) of the Act, so far the
petitioners are concerned they were
recorded
much
before
8.6.73
and
therefore they have every right to file
their objection for consideration of their
claim on the merits whatever it has worth
either to be accepted or to be rejected, but
the authorities cannot be permitted to
refuse to entertain their claim and
consider it on the merits.

4. Learned counsel for the petitioner
in support of submission that in view of
the 1st proviso of Rule 8 of U.P.
Imposition of ceiling of Land Holdings
Rules, 1961, hereinafter referred to as the
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3 All] Smt. Pavitra and others V. State of U.P. and others
877
Rules, issuance of the notice to the
petitioner was mandatory, has placed
reliance on the decision given by full
Bench of this court in case of Shantanu
Kumar vs. State of U.P. reported in
1979 ALJ, 1174. In support of the
submission that there may not be a
presumption about knowledge to the
person to whom notices were not issued
even if he may be the son and even doing
pairvi on behalf of the tenure holder
reliance has been placed on the decision
given by this Court in case of Mahfuzul
Rahman vs. State of U.P., reported in
1987 R.D, 239 and Hari Ram vs.
Special Addl., District Judge, Faizabad
and others reported in 1989 RD, 295. In
view of the aforesaid, it is submitted that
judgment of the respondents 2 and 3 be
quashed so that petitioners may get
opportunity to get their claim adjudicated
on the merits.

5. In response to the aforesaid
submissions Sri A.K. Banerjee, learned
Standing
Counsel
submits
that
as
genuiness of the sale deed on the basis of
which petitioners are laying their claim
has already been adjudicated upto the
Apex Court and it has not been found to
be genuine transaction, petitioners are not
entitled to get opportunity in the matter
specially in view of the fact that they were
brought on record in the proceedings
before the Apex Court and they had full
knowledge of the proceedings but they
have never pleaded about their claim. It
is further submitted that the respondents 2
and 3 has rightly taken the view that the
contention of the petitioners that they
could come to know about their factum of
taking of their land on account of
declaration of the land as surplus on
30.11.95 cannot be accepted as petitioners
were brought on record in the proceedings
before the Apex Court itself. It is then
submitted that in view of the Rule 19 (4)
of the Rules where tenure holder dies his
heirs or other legal representatives are to
file their objection within the time so
provided which petitioners failed to file
and thus petitioners cannot be permitted
to get the same controversy re opened by
filing present objection under section 11
(2) of the Act. It is argued that on the fact,
rejection of the petitioner's objection
cannot be said to be erroneous in any
manner.

6. In view of the aforesaid
arguments, the facts as has come on the
record has been examined.

7. There is no dispute about the fact
that the proceedings under Section 10 (2)
of the Act was started against Data Ram.
Petitioners happened to be recorded
tenure holder before 8.6.73 on the basis of
registered sale deed in their favour dated
22.9.71 of which mutation was effected
on 14.1.72. Petitioners are the married
daughters of the tenure holder Data Ram
and thus they cannot be treated as
members of the family of the tenure
holder in view of the definition of the
family as has been given in Section 3 (7)
of the Act. Section 3 (7) of the Act
defines family which states thus-

"Family' in relation to a tenure
holder means himself or her self and his
wife or her husband, as the case may be
(other than a judicially separated wife or
husband),
minor
sons
and
minor
daughters
(other
than
married
daughters)'.

In view of the aforesaid if the ceiling
authorities were of the view that Data
Ram continued to be tenure holder of the
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878 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
entire land and his name included the land
ostensibly held in the name of the
petitioners it was for them to have served
notice in CLH form 4 together with copy
of the statement in CLH form 3, calling
upon the petitioners to show cause that
why the statement in CLH form 3 be not
taken as correct.

8. The 1st proviso of Rule 8 will be
useful to be quoted here-

"Provided that where the statement
in CLH Form 3 also includes land
ostensibly held in name of any other
person, the prescribed authority shall
cause to be served upon such other
person a notice in CLH Form 4 together
with a copy of the statement in CLH Form
3 calling upon him to show cause within a
period of fifteen days from the date of
service of the notice why the aforesaid
statement be not taken as correct. "

9. In view of the aforesaid, it is clear
that the notice was required to be issued
to the petitioners which has been
admittedly not issued. The aforesaid
provision has been the subject matter of
interpretation by this court in the full
bench case of Shantanu Kumar (supra) in
which it has been held that the entire
proceedings will be deemed to be vitiated.
At this stage observations as made in para
11 and 12 of the aforesaid judgement of
Sdhantanu Kumar (supra) will be useful
to be quoted here -

Para 11-It is obvious that service of
such a notice is preliminary to the
acquisition of jurisdiction to proceed in
the matter and decide whether the land
ostensibly held in the name of the
petitioner could be declared as surplus
land in the hands of Bhupendra Singh. In
the premises, the proceedings were
without jurisdiction and void. Learned
Standing Counsel submitted that the
petitioner had knowledge and he should
have filed an objection under section 11
(2) of the Act as has been held by a
Division Bench of this Court in Dilbag
Singh Vs. State of U.P. (1978 All. LJ
717). The existence of another remedy
under the Act cannot validate the
proceedings which are void for lack of
jurisdiction and which have resulted in the
declaration as surplus land of an area
which a person other than the tenure
holder who has been heard, claims. The
fact that the petitioner could have filed an
objection under section 11 (2) will not
breathe life into or validate these dead
proceedings.

Para 12- It was urged that since the
petitioner knew of this proceedings he
kept silence all this while, this court need
not
interfere
in
exercise
of
its
discretionary jurisdiction under Article
226 of the Constitution. It is well settled
that an objection to lack of jurisdiction
can be taken at any stage of the
proceeding
and
even
in
collateral
proceedings (see Kiran Singh vs. Chaman
Panswan (AIR 1954 SC, 340). Consent or
waiver cannot be a ground for refusing to
entertain such an objection. We hence
cannot deny relief to the petitioner on the
ground of alternative remedy. It is equally
settled that existence of jurisdiction
cannot be conferred by consent or waiver.
This plea is only relevant to the exercise
of jurisdiction. Here there was lack of
jurisdiction by reason of non compliance
of the first proviso to Rule 8."

10. It has also been held by this
court in case of Mahfuzul Rahman and
Hari Ram (supra) that if there is no notice
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3 All] Smt. Pavitra and others V. State of U.P. and others
879
to the claimant even if he has been doing
pairvi in respect to the proceeding of the
tenure holder who may be even his father
the presumption about knowledge that his
land is being declared as surplus cannot
be drawn. Otherwise also substitution of
name of any person on the death of a
party before any court is to be treated for
the purpose of prosecution and disposal of
the case and as and when any occasion
arise in respect to the dispute about the
rights and title of that substituted person
or any other party that is to be adjudicated
in the competent court in the light of rival
claim. Otherwise also take a case that if
after the decision from 2-3 courts if the
matter is pending in appeal/revision
before higher court if on the death of a
party a person is substituted as his heir
and if he places his independent claim
then that will certainly require fresh trail
and then there may not be any option but
to remand the matter to the trial court as
higher court may not be in a position to
take evidence and to give any finding
either way in respect to the claim of the
substituted
person.
Similarly
if
the
petitioners were brought on record before
the Apex Court in the event they were
required to plead their claim, which
requires leading of evidence it might not
have been permitted but this is not for this
court to give any finding on the score that
what could have transpired before the
Apex Court in the event petitioners would
have pleaded their claim at that stage.

11. On examination of the matter
this Court is satisfied that the notice as
required vide proviso of Rule 8 of the
Rules was not issued to the petitioners
and
by
mere
their
substitution
in
proceedings they can be expected to know
about the proceedings against Data Ram
but at the same time they having their
independent claim for trial on the basis of
registered sale deed they are entitled to be
heard on filing their objection under
Section 11 (2) of the Act. Submission of
the learned Standing Counsel that in view
of Rule 19 (4) of the Rules on the death of
the tenure holder the objection should
have been filed by the petitioners deserves
straightway
rejection
as
aforesaid
provision speaks of filing of objection by
the legal representative after service of the
notice in CLH form 4 disputing the
correctness of the statement in CLH form
3. So far the case in hand is concerned no
notice was ever served to the petitioners
in CLH form 4 and they had no occasion
to dispute the correctness of the statement
in CLH Form 3. This Court also dis
approve the submission as advanced by
the
learned
Standing
Counsel
that
examination of the petitioners claim on
the merit will amount to going into same
question again which has been earlier
finalized for the simple reason that it will
be the situation in each and every case
where proceedings under Section 10 (2)
of the Act is finalized and person files
objection under Section 11 (2) of the Act
laying his independent claim, which has
been held to be permissible even at the
instance of unrecorded tenure holder.
Accordingly this is clear that so far
finding given in any earlier proceedings
are concerned on any particular issue that
is always there but at the same time if a
person files objection under section 11 (2)
of the Act that is to be examined on the
merits with whatever result on the merits
i.e. either by rejecting the claim of the
objector or by accepting it.

12. In view of the aforesaid this
court is of the view that petitioners are
entitled to get their claim attended on
merits by Prescribed Authority instead of
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880 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
refusal to entertain the same. So far the
prayer as made by the petitioners in their
application dated 13.12.95 for setting
aside order passed by the prescribed
authority dated 2.1.75 by which land was
declared as surplus is concerned, that
cannot be allowed/accepted as it is for the
prescribed authority to examine the claim
of the petitioners in respect to the
bonafides in the transaction which has
already travelled up to the Apex Court.

13. For the reasons recorded above,
this writ petition succeeds and is allowed.
The order passed by respondents 2 and 3
dated 19.12.96 and 16.9.96 are hereby
quashed. The matter is sent back to the
Prescribed Authority for passing fresh
orders on the objection of the petitioners
which has been filed under section 11 (2)
of the Act in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2003

BEFORE
THE HON'BLE S.N. SRIVASTVA, J.

Civil Misc. Writ Petition No. 2093 of 2002

Praveen Kumar

...Petitioner
Versus
The State of U.P. through the Secretary,
and others

 ...Respondents

Counsel for the Petitioner:
Sri R.C. Shukla
Sri Y.K. Sinha
Sri Neeraj Tripathi

Counsel for the Respondents:
Sri Pankaj Mithal
S.C.

(A) Constitution of India, Article 226-
Practice and Procedure-Reasoning or
anology-classified in 3 categories-unius
ad-alterum (2) Duarum and terium (3)
Plurium ad-plura- explained by the court.

Held- Para 17

I would also not refrain from stating that
analogy is an imperfect form of inductive
logic which proceeds on the basis of a
number of points of resemblance of
attributes or relations between cases.
Not
only
does
it
emphasize
the
quantitative nature of resemblance but
also the relevance and importance of
such attributes or relations which are
ultimately matters of practical judgment.
Reasoning or analogy has been classified
into
three
categories.
1.
Unius
ad
alterum (a simple comparison which
indicates a relationship of similarity in a
certain respect, (2) Duarum and terium
(based on the proportional relationship
in common of two things to a third thing
and (3) Plurium ad plura (a relationship
of proportionality i.e. A is to B as C is to
D. In the instant case, the formula of
simple
comparison
indicating
a
relationship of similarity in a certain
respect should be followed from the
Constitution Bench decision in Randhir
Singh's case which has been followed
with approval in D.S.Nakara v. Union of
India, Dharwad District P.W.D. Literate
Daily wage Employees Association v.
State of Karnataka and Putti Lal's case
and in my view, that would be the
correct position.

(B) Constitution of India Article 226-
Regularisation and payment of salaryDaily wagers working for more than 12
years-whether
pending
regularization
the direction for payment of minimum
wages is proper? Held- 'yes' considering
the direction contained in Putti Lal case
decided by Three Judges of Hon'ble
Supreme Court the view of Division
Bench judgment in State of Haryana Vs.
Jasmer Singh-will not come in the way of
minimum wages.