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2021 DIGILAW 797 (ALL)

Satbir Singh v. Addl. Commissioner

2021-08-04

RAJNISH KUMAR

body2021
JUDGMENT : 1. Heard Shri U.S. Sahai, learned counsel for the petitioners and Shri Rajesh Tiwari, learned Additional Chief Standing Counsel for the State. 2. This petition has been field challenging the order dated 24.07.1991 passed by the Prescribed Authority i.e. the opposite party no.2 and order dated 30.05.1996 passed by the Additional Commissioner-1, Lucknow Division, Lucknow i.e. opposite party no.1. 3. The brief facts of the case, for adjudication of the present writ petition, are that a notice under Section 10 (2) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (here-in-after referred as the Act) was issued to the grand father of the petitioners namely Munsha Singh in 1977 in respect of the land held by him as Bhumidhar. The ceiling area and surplus area were determined. Thereafter a Will was executed by Munsha Singh in favour of his four grand sons including the petitioners. Munsha Singh had died in the year 1980. After his death mutation was made in favour of the petitioners. A notice dated 14.03.1989 under Section 10 (2) of the Act was issued to the Laxman Singh i.e. the father of the petitioners. An ex-parte order was passed by the opposite party no.2 on 23.04.1984. The said order was recalled on an application moved by Laxman Singh. Thereafter an order was passed on 28.05.1985 withdrawing the notice issued under Section 10 (2) of the Act and a direction was issued to the concerned Tehsildar to get the ceiling file of Laxman Singh constructed within fifteen days after making re-enquiry. After enquiry a fresh notice under Section 10 (2) of the Act dated 30.01.1988 was issued to the Laxman Singh and the petitioners. Laxman Singh and the petitioners filed their objections before the opposite party no.2 taking common grounds that the petitioners have got the land on the basis of Will executed by the grand father of the petitioners and their names have been recorded by the order of Tehsildar, Nighasan on 27.11.1981. The opposite party no.2, after affording opportunity of hearing and considering the objection and evidence, passed the order dated 25.07.1991 and declared the ceiling and surplus land. The order was challenged by the petitioners in appeal before the opposite party no.1. The appeal field by the petitioners has been dismissed by means of the order dated 30.05.1996. Hence the present writ petition has been filed. 4. The order was challenged by the petitioners in appeal before the opposite party no.1. The appeal field by the petitioners has been dismissed by means of the order dated 30.05.1996. Hence the present writ petition has been filed. 4. Submission of learned counsel for the petitioners was that the land in question had come to the petitioners by way of Will from his Grand father Shri Munsha Singh, but it has wrongly been added in the land of the father of the petitioners. The proceedings under the Ceiling Act were instituted against the grand father of the petitioners. It was decided declaring some surplus land. Thereafter Munsha Singh had executed a Will in favour of his four grand sons including the two petitioners after disposal of the case. Therefore it cannot be said that the Will was executed with the intention to save the land from Ceiling Act. After proceedings were decided against Shri Munsha Singh, he was free to execute the Will but the Prescribed Authority as well as the Appellate Authority on the basis of presumption held that the unregistered Will was executed with the intention to save the land from ceiling. While at the relevant point of time the unregistered Will could have been executed. Learned counsel for the petitioners also submitted that initially the notice under Section 10(2) of the Ceiling Act was issued to Laxman Singh father of the petitioners, which was dropped by annexure no.2. Therefore the subsequent notice could not have been issued including the land of the petitioners in the land of Laxman Singh. On the basis of Will, the land in question was recorded in the name of the petitioners. Therefore, if the land of the petitioners was to be included in the land of his father the notice under Section 29 of the Ceiling Act should have been issued. 5. On the basis of above, learned counsel for the petitioners submitted that the impugned orders are liable to be quashed and the writ petition allowed. Learned counsel for the petitioners relied on Rakesh Kumar and Others Vs. State of U.P. and Others; Writ C. No.47592 of 2008 decided on 02.11.2018, Noorullah Vs. Additional Commissioner, Meerut Division, Meerut and Others; 2007 (4) AWC 3789 , Nand Kishore Seth Vs. Additional Commissioner Bareilly Mandal and Others; Civil Misc. Writ Petition No.2063 of 2006 decided on 15.05.2013, Indra Pal Mishra alias Raju Vs. State of U.P. and Others; Writ C. No.47592 of 2008 decided on 02.11.2018, Noorullah Vs. Additional Commissioner, Meerut Division, Meerut and Others; 2007 (4) AWC 3789 , Nand Kishore Seth Vs. Additional Commissioner Bareilly Mandal and Others; Civil Misc. Writ Petition No.2063 of 2006 decided on 15.05.2013, Indra Pal Mishra alias Raju Vs. Special Judge (E.C. Act), Banda and Others; 2005 (3) AWC 2565 and Udai Raj Vs. State of U.P. and Others; 2003 (3) AWC 1876 . 6. Per contra, learned Additional Chief Standing Counsel submitted that the Will was executed by Shri Munsha Singh in favour of his four grand sons leaving his sons without disclosing any reason. It was only with the purpose to save the land from the Ceiling Act. The objections were filed by the petitioners as well as his father which have duly been considered by the Prescribed Authority and the ceiling area and surplus area has rightly been declared. There is no illegality or error in the impugned orders. Therefore, the writ petition is misconceived and lacks merit and it is liable to be dismissed. 7. I have considered submissions of learned counsel for the parties and perused the record. 8. A notice under Section 10 (2) of the Act was issued to the father of the petitioners Laxman Singh but no objection was filed by him therefore an ex-parte order dated 23.04.1984 was passed by the opposite party no.2. On the application moved by the father of the petitioners, the order was set aside. Thereafter an order was passed on 28.05.1985 withdrawing the notice under Section 10 (2) and the Tehsildar, Nighasan was directed to construct ceiling file of Laxman Singh after re-enquiry. Thereafter, after enquiry a notice under Section 10 (2) of the Act was issued to Laxman Singh and the petitioners, therefore it can not be said that the notice was wrongly issued because while withdrawing the earlier notice the Tehsildar concerned was directed to construct the ceiling file after re-enquiry, as such the matter was not closed and the said order was not challenged. The father of the petitioners had also admitted in his objection that on earlier notice the case was not decided on merit and the notice was withdrawn on 28.05.1985. The father of the petitioners had also admitted in his objection that on earlier notice the case was not decided on merit and the notice was withdrawn on 28.05.1985. This Court is of the view that there was no illegality or error in the subsequent notice issued to the father of the petitioners and the petitioners because the matter was not closed and it was in continuation of the said proceedings. 9. In response to the notice issued under Section 10 (2) of the Act the petitioners and their father filed separate objections. A common objection was taken that the land of the petitioners has wrongly been included with the land of Laxman Singh because they were adult and acquired it separately much after 08.06.1973. It was further stated that the grand father of the petitioners namely Munsha Singh was a tenure holder and was subjected to a ceiling case and as a result of which some land was declared surplus. Later on he executed a Will in favour of his grand sons for his ceiling area. After his death the same was mutated in favour of the petitioners including the others by means of the order dated 27.11.1981 passed by the Tehsildar- Nighasan. 10. Admittedly, a proceeding under Section 10 (2) of the Act was taken against the grand father of the petitioners Munsha Singh in the year 1977 and ceiling area and surplus area were determined. Thereafter the grand father of the petitioners had executed a Will in favour of his grand sons surpassing his sons who were legally entitled to inherit the agricultural property. The Will was executed in favour of the grand sons without assigning any reason as to why the natural successors are being ignored and deprived of the property. The alleged unregistered Will appears to have been executed on 27.01.1979. He had stated in the Will that he has become very old and can die any time so he wants to make such arrangement in his lifetime so that his property would remain in his family. The alleged unregistered Will appears to have been executed on 27.01.1979. He had stated in the Will that he has become very old and can die any time so he wants to make such arrangement in his lifetime so that his property would remain in his family. It has not been disputed that the father of the petitioners namely Laxman Singh had already some land, therefore it is apparent that the Will was executed by the grand father of the petitioners with a view to save it from the provisions of the Act, whereas no such Will could have been executed to defeat the provisions of the Act. This view is fortified by a judgment of coordinate bench of this Court in the case of Gulam Mohd. Khan and Others Vs. 5th Additional District Judge and Others; 1979 ALJ 202. The relevant portion of paragraph- 2 is extracted below:- “2.------------------------------------------------------------------------Lastly, he contended that on the basis of the Will mutation had taken place in favour of the legatees and therefore notices should have been issued to them. In my view these contentions are not tenable. The father of the petitioner died in June, 1975 and it seems that it will not be possible to accept that any tenure holder could have executed any Will on that day which would have the effect of defeating the Ceiling Law. It seems to me that if Sri Islam’s contentions were accepted then it would be possible for any tenure holder to execute such a Will and to claim that the legacies bequeathed by such will should be given effect to, then the easiest thing for any tenure holder would be to defeat the Ceiling Law by executing such Will and defeating the law. I do not think that this is really possible. I have so held in many judgments of mine and in this view of the matter any Will which has been executed after 8th June, 1973, in my opinion, cannot be allowed to defeat the previsions of the ceiling law. Further, I have to observe that the genuineness of the Will was not acceptable to the Prescribed Authority and the appellate court below; I do not think that the said finding of fact can in any manner be interfered with in these proceedings. Further, I have to observe that the genuineness of the Will was not acceptable to the Prescribed Authority and the appellate court below; I do not think that the said finding of fact can in any manner be interfered with in these proceedings. In this view of the matter the petition fails and is dismissed but there will be no order as to costs.” 11. Section 5 (1) of the Act provides that on and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate through out Uttar Pradesh, any land in excess of the ceiling area applicable to him. Explanation of Section 5 (1) provides that in determining the ceiling area applicable to a tenure holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account. Therefore, merely because the land has been mutated in the name of the petitioners on the basis of Will, which could not have been executed to defeat the purpose of the Act, it can not be said that the land can not be treated of Laxman Singh. 12. One of the grounds of the learned counsel for the petitioners was that in case the land of the petitioners was included with the land of the father of the petitioners, notice under Section 29 of the Act should have been issued in place of Section 10 (2). For consideration of this argument, the provisions of Section 29 and 30 of the Act are relevant, which are extracted below:- “29. Subsequent declaration of further land as surplus land. For consideration of this argument, the provisions of Section 29 and 30 of the Act are relevant, which are extracted below:- “29. Subsequent declaration of further land as surplus land. Where after the date of enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, - (a) one land has come to be held by a tenure-holder under a decree or order of any Court, or as a result of succession or transfer, or by prescription in consequence of adverse possession, and such land together with the land already held by him exceeds the ceiling area applicable to him; or (b) any unirrigated land becomes irrigated land as a result of irrigation from a State irrigation work or any grove-land loses its character as grove-land or any land exempted under this Act ceases to fall under any of the categories exempted], the ceiling area shall be liable to be redetermined [and accordingly the provisions of this Act, except Section 16, shall mutatis mutandis apply]. 30. Determination of surplus land regarding future acquisition. - (1) Where any land has become liable to be treated as surplus land [* * *] under Section 29, the tenure-holder shall, within such period as may be prescribed submit, a statement to the Prescribed Authority in the form and in the manner laid down under Section 9 indicating in the statement the plot or plots which he would like to retain as a part of his ceiling area. (2) (a) Where the statement submitted under sub-section (1) is accepted by the Prescribed Authority, it shall proceed to determine the surplus land accordingly. (b) Where a tenure-holder fails to submit a statement required to be submitted under sub-section (1) or submits an incomplete or incorrect statement, the Prescribed Authority shall proceed in the manner laid down under Section 10. (c) The provisions of this Act in respect of declaration, acquisition, disposal and settlement of surplus land, shall, mutatis mutandis, apply to surplus land covered by this section.” 13. (c) The provisions of this Act in respect of declaration, acquisition, disposal and settlement of surplus land, shall, mutatis mutandis, apply to surplus land covered by this section.” 13. In view of above, under Section 29 the ceiling area is liable to be determined where after the date of enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, one land has come to be held by a tenure-holder under a decree or order of any Court, or as a result of succession or transfer, or by prescription in consequence of adverse possession, and such land together with the land already held by him exceeds the ceiling area applicable to him, the ceiling area shall be liable to be redetermined. Therefore, if a land has come to be held by a tenure holder under Section 29, the Prescribed Authority shall proceed to determine the ceiling area in the manner laid down under Section 10, according to Section 30. Therefore, this Court is of the view that the notice under Section 10 (2) of the Act was rightly issued in accordance with law. 14. This Court, in the case of Rakesh Kumar and Others Vs. State of U.P. and others (Supra), has held that no finding was recorded by the Prescribed Authority and he had not looked into the objections with regard to the earlier order passed by the Prescribed Authority acting as resjudicata and preventing reopening of issues already settled as such he had not considered the case of the tenure holder properly and the Appellate Authority had also not considered the question raised before it. Therefore, the writ petition was partly allowed and the matter was remanded. It is not applicable in the present case because in the present case the notice issued against the father of the petitioner was only withdrawn and while withdrawing the notice the Tehsildar concerned was directed to re-enquire the matter and prepare the ceiling file of Laxman Singh as such the matter was not closed. It has also been admitted by the father of the petitioners that the case was not decided on merit. Therefore, it is not applicable on the facts and circumstances of the instant case, as discussed above also. 15. The case of Noorullah Vs. It has also been admitted by the father of the petitioners that the case was not decided on merit. Therefore, it is not applicable on the facts and circumstances of the instant case, as discussed above also. 15. The case of Noorullah Vs. Additional Commissioner, Meerut Division, Meerut and Others (Supra) is also not applicable on the facts and circumstances of the instant case because in this case after conclusion of ceiling proceeding in favour of the petitioners, the petitioners therein had transferred some land and thereafter he had purchased some land. Therefore, it was held that the ceiling proceedings may be initiated but the cut of date would be the date on which he acquired a fresh land. 16. This Court, in the case of Nand Kishore Seth Vs. Additional Commissioner Bareilly Mandal and Others (Supra), has held that subsequent notice issued under Section 10 (2) of the Act after period of almost 20 years after culmination of earlier proceedings itself is bad however the liberty was granted to proceed in accordance with the provisions of the Act by issuing a fresh notice under Section 29 / 30 of the Act, if any of the conditions mentioned therein are fulfilled. In the present case the proceedings had not culminated. The notice was only withdrawn with a direction to re-enquire and make a fresh ceiling file of Laxman Singh S/o Munsha Singh. In pursuance thereof after re-enquiry, the notice was issued on the basis of whole land and Luxman Singh and petitioners had submitted reply claiming that the petitioners had got the land through Will so it would not be included in Laxman Singh’s holding, as such the reply was submitted knowing fully well. Therefore, merely because Section 29 is not mentioned, can not be a ground for challenge. 17. In view of above and considering the over all facts and circumstances of the case, this Court is of the view that the impugned orders have been passed considering the objections raised by the petitioners and evidence in accordance with law. There is no illegality or error in the impugned orders. The writ petition has been filed on misconceived grounds and it lacks merit. 18. The writ petition is dismissed. No order as to costs.