Satish Chandra, C.J, Yashoda Nandan and A. Banerji, JJ.:— A Division Bench felt that the decision of another Division Bench in Civil Miscellaneous Writ No. 1704 of 1976 (Puram Kaur v. State of Uttar Pradesh through Collector, Lakhimpur Kheri) decided on July 29, 1976 requires reconsideration. It hence referred his writ petition to a Full Bench. That is how the case has come before this Bench.

2. The petitioner Shantanu Kumar claims to be the Bhumidhar of plot No. 105 measuring 16 Bighas 13 Biswas and 15 Biswansis. He acquired it by a registered sale-deed dated January 1, 1972, executed by his own father Bhupendra Singh, respondent No. 4. He states that his name was recorded in the revenue papers since 1972 (1379-F). He alleges that the sale-deed was executed bona fide, for adequate consideration and under an irrevocable instrument. It was not a Benami transaction and was not for the immediate or deferred benefit of the tenure-holder of the executant or other members of his family. He is aggrieved at the declaration of 3.48 acres out of this plot No. 105 as surplus land of his father Bhupendra Singh. It appears that the Prescribed Authority issued notice under Section 10(2) of the U.P Imposition of Ceiling on Land Holdings Act, 1960 to Bhupendra Singh, respondent No. 4. Bhupendra Singh filed an objection, inter alia, that his holding was ancestral under which his son Shantanu Kumar had a half share. This plea was rejected and an area of 3.48 acres of Plot No. 105 was declared surplus land in the hand of Bhupendra Singh, Bhupendra Singh filed an appeal which was dismissed by the Additional District Judge on the finding that Shantanu Kumar was not proved to have been born prior to the enforcement of the U.P Zamindari Abolition and land Reforms Act and so he did not have any share. It was also pleaded in appeal that notice as required by Rule 8 of the Rules to the transferee, namely, his son, was not issued and for this reason also the proceeding was vitiated. This plea was dismissed on the ground that such a plea was not taken in the original objection or in the grounds of appeal. Shantanu Kumar can be presumed to have knowledge of these proceedings and yet he did not come up to contest and so the plea has no substance. The appellate judgment was rendered on January 10, 1977. The present writ petition has been filed by Shantanu Kumar on January 31, 1977.

3. Learned counsel for the petitioner submits that Rule 8 imposes a statutory duty upon the Prescribed Authority to issue a notice to the petitioner. That not having been done the Prescribed Authority had no jurisdiction to proceed and then ultimately to declare the land belonging to the petitioner as surplus land in the hands of his father. The proceedings being without jurisdiction are liable to be quashed.

4. The learned Standing Counsel appearing for the respondents did not dispute that Plot No. 105 was transferred to the petitioner by a registered deed of sale, that the petitioner was recorded in the revenue papers as the Bhumidhar since 1379-F and the fact that the notice under Rule 8 was not issued to the petitioner. He, however, urged that the appellate finding is that petitioner can be presumed to have knowledge of the proceedings and it was his duty to have filed an objection. He also relied upon a decision of this Court in Dilbagh Singh v. The State of Uttar Pradesh,1 in support of the submission that the petitioner has an alternative remedy by way of filing an objection under Section 11(2) of the Act even now and so this Court should not interfere in exercise of the discretionary jurisdiction under Art. 226 of the Constitution.

5. Section 10(1) of the Act provides that where a tenure holder fails to submit a statement under Section 9, the Prescribed Authority shall cause to be prepared, a statement containing such particulars as may be prescribed indicating the land, if any, exempted under Section 6 and the plot or plots proposed to be declared as surplus land. Sub-section (2) of Section 10 then provides:

“(2) The Prescribed Authority shall thereupon cause to be served upon every such tenure-holder in such manner as may be prescribed, a notice together with a copy of the statement prepared under sub-section (1) calling upon him to show cause within a period specified in the notice, why the statement be not taken as correct. The period specified shall not be less than ten days from the date of service of the notice.

6. Section 9 of the Act provides for a general notice to tenure-holders holding land in excess of ceiling area for submission of statement in the prescribed form within thirty days of the publication of the general notice in the official gazette. So every tenure-holder who holds land in excess of ceiling area is required to furnish a statement mentioned in Section 9 and every such tenure-holder who has failed to submit such statement has to be served with a notice under Section 10(2).

7. Rule 8 provides for service of notice on every tenure-holder to show cause within fifteen days why the aforesaid statement prepared by the Prescribed Authority be not taken as correct. Proviso to this rule then provides.

“Provided that where the statement in C.L.H Form 3 also includes land ostensibly held in the name of any other person, the prescribed Authority shall cause to be served upon such other person a notice in C.L.H Form 4 together with a copy of the statement in C.L.H Form 3 calling upon him to show cause within a period of 15 days from the date of service of the notice why the aforesaid statement be not taken as correct……….”

8. It is thus evident that the notice requiring the tenure-holder to show cause why the statement prepared by the Prescribed Authority be not taken as correct is to be issued to the tenure-holder in respect of whose holding the statement has been prepared. Under the proviso, the Prescribed Authority shall cause to be served a notice to the person in whose name the land included in C.L.H Form 3 is ostensibly held. The Prescribed Authority prepares the statement on the basis of revenue records. If from the revenue records or other information, the Prescribed Authority comes to know that the land included in the statement in C.L.H Form 3 includes land ostensibly held in the name of any other person, the Prescribed Authority is bound to serve notice on such person. The phrase used is ‘shall cause to be served’.

9. The petitioner claimed under a sale-deed. It is not disputed that the petitioner's name was recorded in the revenue papers over the land which was transferred to him. It is admitted that the statement in C.L.H Form 3 included the land held by the petitioner. He was hence a person in whose name some part of the land mentioned in the statement was believed by the Prescribed Authority to be ostensibly held. In this situation, it was incumbent upon the Prescribed Authority to serve upon the petitioner the requisite notice together with a copy of the statement and call upon him to show cause why that statement be not taken as correct.

10. 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 Dilbagh Singh v. The State of Uttar Pradesh (supra). 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 breath life into or validate the deed proceedings.

11. It was urged that since the petitioner knew of these proceedings he kept silent 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 proceedings and even in collateral proceedings (see Kiran Singh v. Chaman Paswan.2 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 of Rule 8.

12. It was also urged that the petitioner's father took all possible pleas and the petitioner has no bona fide case. The petitioner has alleged that the sale deed in his favour was bona fide and for adequate consideration. It was not a Benami transaction and was not for the immediate or deferred benefit of the tenure-holder or other members of his family. No such plea was taken by the petitioner's father. If the petitioner is successful in establishing this plea his land may be liable to be exempted. The proviso to sub-section (6) of Sections exempts land covered by—

“a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for the immediate or deferred benefit of the tenure-holders or other members of his family.”

13. It cannot hence be said that the present writ petition is merely a mala fide attempt to reopen the proceedings knowing full well that no good is going to come out of it. We are of the opinion that the petitioner is entitled to the relief. The decision of the Lucknow Bench in Puram Kaur v. State of U.P through Collector, Lakhimpur Kheri (Civil Miscellaneous Writ Petition No. 1704 of 1976) which caused this reference has been examined by us. In that case, Rule 8 was neither involved nor considered. There is nothing in that case which is relevant for purposes of the present writ petition. We hence do not find any necessity to deal with its merits.

14. In the result, the writ petition succeeds and is allowed. The impugned orders passed by the Prescribed Authority as well as the appellate order as quashed. The Prescribed Authority may now proceed in accordance with law. In the circumstances, the parties will bear their own costs.