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2006 DIGILAW 359 (UTT)

Deo Bahadur Singh and otherss v. State of U. P.

2006-07-11

RAJESH TANDON

body2006
JUDGMENT Heard Sri P.M.N. Singh, Sr. Advocate assisted by Sri Sudhir Singh for the petitioner and Standing Counsel for the respondents. 2. By the present writ petition the petitioners have prayed for a writ of certiorari quashing the order dated 17-12-1981 passed by respondent no. 2. 3. Briefly stated according to the petitioners a notice under section 10(2) of the U .P. Imposition of Ceiling on Land Holdings Act, to Sri Radha Govind Singh, the original tenure holder, requiring him to show cause as to why 145 Bigha and 12 Biswas of land (97 Bigra and 9 Biswas of land in term of irrigated land) be not declared as surplus land, out of his total holding of 366 Bi has and 2 Biswas. After service of the notice on 28-11-1974, Sri Radha Govind Singh filed objections on 28-12-1974, to the effect that 43 Bighas of his land was covered by a grove, 7 Bigha by passage, and 20 Bigha by abadi. Benefit for transfers made to Sri Ajya Kumar and Sri Yogendra Bahadur on 25-01-1972, as gift were also claimed. The prescribed authority eventually did not accept any of the contentions of the appellant and declared surplus land in terms of the notice-dated 31-10-1974, vide his order dated 7-5-1976. 4. Feeling aggrieved by the order passed by the prescribed authority Sri Radha Govind Singh has preferred an appeal before the Civil Judge, Nainital vide Ceiling Appeal No. 374 of 1979. The appeal was partly allowed by the Civil Judge vide order dated 29-6-1977 and the order dated 7-5-1975 passed by the prescribed authority was modified and the prescribed authority was directed to review the part of his findings which deals with the existence of the grove., 5. Thereafter a writ petition No. 2977 of 1977 was filed in the Allahabad High Court and the court vide order dated 24-4-1979 quashed the orders passed by the prescribed authority as well as by the appellant authority so far as it related to the rasta. The prescribed authority was directed to determine the question of rasta also. 6. Sri Radha Govind Singh thereafter died on 26-8-1980 before his surplus land could be determined and vested in the State of Uttar Pradesh. The prescribed authority was directed to determine the question of rasta also. 6. Sri Radha Govind Singh thereafter died on 26-8-1980 before his surplus land could be determined and vested in the State of Uttar Pradesh. After his death, petitioners who are his sons, filed an application praying that after the death of their father, they became tenure-holders in their own rights and they may be permitted to file objections. No objection was raised to this application, which was allowed. All the three petitioners thereafter filed three separate objections claiming separately that the ceiling be determined treating each one of them as separate tenure-holder. 7. The prescribed authority on 23-1-1981 allowed the objections and discharged the notices. It has been held by the prescribed authority that three petitioners had inherited one third share in the holding and were tenure holders in their own rights and since Sri Radha Govind Singh died before his holding was declared surplus, the proceedings against Sri Radha Govind Singh had abated and there was no surplus land with the petitioners. 8. Against the judgment and order dated 23-1-1981, the State of Uttar Pradesh filed an appeal, which was registered as Ceiling Appeal No. 45 of 1981 before the Civil Judge. The Civil Judge vide judgment and order dated 17-12-1981, set aside the order of the prescribed authority and remanded the case back for determination of ceiling area on the basis of holding by deceased Radha Govind Singh. Feeling aggrieved by the order dated 17-12-1981, the present writ petition has been filed. 9. The counsel for the petitioners has submitted that under the Act the surplus land vests in the State only when the surplus land of a particular tenure-holder has been finally determined and the Collector has taken possession thereof under section 14(3) of the Act. Such land continues to vest in the tenure-holder till the surplus land is finally determined and the Collector takes possession thereof. In the present case that stage has never reached as the case was remanded by the appellate authority and thereafter by the High Court for determination of surplus land. Late Sri Radha Govind Singh and his heirs thereafter shall continue to be the tenure-holders and all his holdings continued to vest in him till his death. On his death the petitioners inherited late Radha Govind Singh. Late Sri Radha Govind Singh and his heirs thereafter shall continue to be the tenure-holders and all his holdings continued to vest in him till his death. On his death the petitioners inherited late Radha Govind Singh. The petitioners were thus tenure holders of the holding in their own rights. No determination of surplus land could take place under the Act in respect of a deceased tenure-holder. 10. On account of the death of their father, the petitioners have inherited the land in question and have become independent tenure-holders in their own rights and, therefore, the question of determination of the ceiling area has to take place by treating them to be the tenure holders and not by treating the deceased Radha Govind Singh as tenure-holder. 11. The lower appellate court has placed reliance in case Horam Singh vs. District Judge, Moradabad (1979A.L.J. 85) in which it was held that sub rule (2) of Rule 19 which makes provision for the determination of the ceiling area in the case of a tenure holder who was alive on 8-6-1973 but dies before the publication of the general notice under section 9 of the Act, is ultravires. It was further held therein that sub rule (3) of Rule 19 which makes provision for determination of ceiling area in the case of a tenure-holder who dies after publication of the general notice under section 9 but before the service of notice under section 10(2) of the Act. 12. Sub Rule (3) of Rule 19 provides for objections by the executor, administrator or other legal representatives of the deceased tenure-holder, which reads as under: "(3) Where a tenure-holder dies before he is served with a notice under sub section (2) of Section 10, the Prescribed Authority may serve such notice on his executor, administrator or other legal representatives, and may proceed to determine the ceiling area applicable to the deceased person as if such executor, administrator or other legal representatives were the tenure-holder for the purposes of service of such notice. " 13. I have gone through the judgment and order dated 7-2-1981 passed by the prescribed authority. The order is well reasoned and the prescribed authority has rightly calculated the area of unirrigated land under the holdings of the petitioners. " 13. I have gone through the judgment and order dated 7-2-1981 passed by the prescribed authority. The order is well reasoned and the prescribed authority has rightly calculated the area of unirrigated land under the holdings of the petitioners. The prescribed authority has held that Dev Bahadur Singh and Ravindra Nath Singh each had 32 Acres of land and Yogendra Bahadur Singh had 26 Acre land. The total land is unirrigated. Therefore, this land does not come under the preview of U.P. Imposition of Ceiling on Land Holdings Act, 1960. The prescribed authority in reply to issues no. 4 to 8 has concluded his findings as under: 14. In view of the findings above, the land is not covered within the meaning of Section 5(3) (a) of U.P. Imposition of Ceiling on Land Holdings Act, which reads as under: "(3) Subject to the provisions of sub section (4)(5)(6) and (7) the ceiling area for purposes of sub-section (1) shall be(a) in the case of a tenure-holder having a family of not more than five members, 7.30 hectares of irrigated land (including land held by other members of his family) plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregates to two hectares, for each of his adult sons, who are either not themselves tenure holders or who hold less than two hectares of irrigated land, subject to a maximum of six hectares of such additional land. " 15. I find no illegality or irregularity in the judgment of the prescribed authority. Thus the order passed by the lower appellate court cannot be upheld. 16. In view of the above, the impugned order dated 17-12-1981 passed by the Civil Judge, Nainital is set aside. The order dated 23-1-1981 passed by the prescribed authority is hereby confirmed. 17. Consequently, writ petition is allowed. No order as to costs.