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2024 DIGILAW 996 (ALL)

Dasoda Singh v. Ayukt Lucknow Division Lucknow

2024-04-08

SUBHASH VIDYARTHI

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JUDGMENT : 1. Heard Sri V.K. Pandey, the learned counsel for the petitioner and Sri S.P. Maurya, the learned Standing Counsel. 2. By means of the instant writ petition filed under Article 226 of the Constitution of India, the petitioners have challenged the validity of an order dated 27.02.2007 passed by the Prescribed Authority Ceiling Act/Additional Collector, Kheri in Case No. 37/2004-05 under Section 10(2) Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, whereby 5.38 hectares land of the petitioners situated in Village Sumerpur, Pargana and Tehsil Palia, District Lakhimpur Kheri was declared surplus and proceedings for taking possession of that land were initiated. The petitioners have also challenged the validity of an order dated 25.07.2008 passed by the Commissioner, Lucknow Division, Lucknow dismissing Appeal No. 102/2006-07 under Section 13(2) of the U.P. Imposition Of Ceiling On Land Holdings Act, 1960 (hereinafter referred as “Ceiling Act”) field against the aforesaid order dated 27.02.2007. 3. Briefly stated, the facts of the case are that 4.50 acre un-irrigated land of the petitioners’ father Gargaj Singh was declared to be surplus by means of an order dated 30.06.1979 passed by the Prescribed Authority in Case No. 73/1959 under Section 10(2) of the Ceiling Act. The petitioners’ father had filed an appeal against the aforesaid order, which was allowed by the learned District Judge by means of an order dated 16.01.1980 and the order was modified by reducing the surplus land area to 4.10 acres. 4. After Gargaj Singh died on 27.02.1990, a notice under Section 10(2) of the Ceiling Act was issued to the petitioners on 05.04.1995. The petitioners filed their objections and the proceedings were closed by means of an order dated 22.02.1996 passed by the Prescribed Authority, holding the same to be hit by the principles of res-judicata. 5. The State filed an appeal against the order dated 22.02.1996, which was allowed and the matter was remanded but even after remand, the Prescribed Authority closed the proceedings by means of an order dated 15.06.2001. 6. On 25.05.2005, another notice under Section 10(2) of the Ceiling Act was issued against the petitioners. 7. The petitioners filed their objections and the Prescribed Authority framed issues, including an issue regarding the effect of previous proceedings under Section 10(2) of the Ceiling Act having attained finality. 6. On 25.05.2005, another notice under Section 10(2) of the Ceiling Act was issued against the petitioners. 7. The petitioners filed their objections and the Prescribed Authority framed issues, including an issue regarding the effect of previous proceedings under Section 10(2) of the Ceiling Act having attained finality. The Prescribed Authority held that the first notice issued to the father of the petitioners mentioned merely 7.46 hectares acres land to be irrigated and the rest land was mentioned to be un-irrigated whereas from the statements of the Lekhpal and Assistant Registrar, Kanungo recorded in the proceedings instituted on the basis of third notice, it appeared that the entire land was irrigated. While deciding the proceedings initiated on the basis of the second notice, the Prescribed Authority had summarily held that the land was un-irrigated and this finding was erroneous. 8. Assailing the aforesaid finding of the Prescribed Authority, the learned counsel for the petitioners has submitted that the statement of Lekhpal and Assistance Registrar, Kanungo merely mention that the land is irrigated in present time but it does not make a mention as to when was the land irrigated for the first time. 9. Section 4-A of U.P. Imposition Of Ceiling On Land Holdings Act, 1960, contains provisions regarding determination of irrigated land and it provides that “the Prescribed Authority shall examine the relevant Khasras for the years 1378 Fasli, 1979 Fasli and 1380 Fasli, the latest village map and such other records as it may consider necessary, and may also make local inspection where it considers necessary and thereupon if the prescribed authority is of opinion that irrigation facility was available for any land in respect of any crop in any one of the aforesaid years while by any canal, any lift irrigation cannal or in any State tube-well or a private irrigation work.” 10. A bare perusal of Section 4-A of the Ceiling Act indicates that for a land to be determined as an irrigated land, it is necessary that it should have been irrigated in the years 1378 Fasli, 1979 Fasli and 1380 Fasli. There is no such material available on record as may establish that the land in question was an irrigated land in the aforesaid years. 11. There is no such material available on record as may establish that the land in question was an irrigated land in the aforesaid years. 11. Although, Section 29(b) of the Ceiling Act mentions that after the date of enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 any un-irrigated land becomes irrigated as a result of “irrigation from the State irrigation work”, the Ceiling area shall be liable to be re-determined, it is not the State’s case that the petitioners’ un-irrigated land has become irrigated land as a result of irrigation from a State irrigation work. 12. Therefore, there was no occasion for issuance of a fresh notice without there being any material to establish either that the petitioners’ land was irrigated in the years 1378 Fasli, 1979 Fasli and 1380 Fasli or that it has become irrigated from a State irrigation work after enforcement of Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972. Therefore, fresh proceedings could not be initiated even as per the provisions of Section 29 (b) of the Ceiling Act. 13. In view of the aforesaid discussion, the issuance of a third notice to the petitioners is not permissible in law. 14. Moreover, a holding of Amarjeet Kaur wife of Iqbal Singh (petitioner no.3) has also been included while assessing the total holding of the petitioners. 15. In this regard, it would be relevant to have a look at the definitions of family, holding, person, surplus land and tenure holder, as given in sub-sections (c), (d), (f), (k) and (l) of Section 3 of the Ceiling Act, which are as follows: - “(c) “Family” means as consisting of the holder of a holding and any or all of his following relations, not being tenure-holders in their own separate right: (i) wife or husband, as the case may be; (ii) dependent father and dependent mother; (iii) son and son's son, as long as they are unseparated from the holder; (iv) wife or widow of the persons mentioned in sum clause (iii); (v) daughter and unseparated son's daughter, as long as they are unmarried. Provided that where a relation falls under the above clause in more than one family, he shall nevertheless be a member of only one family in accordance with his choice, or if he is under any disability, in accordance with the choice of the person legally authorised to do so on his behalf. (d) “Holding” means the land or lands held by a person as a bhumidhar, sirdar, asami of Gaon Samaj or an asami mentioned in section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951), or as a tenant under the U.P. Tenancy Act, 1939 (U.P. Act XVII of 1939), other then a sub-tenant, or as lessee where the period of the sub-lessee of a Government with the period of the lease; (f) “Person” shall include a family, a limited liability company, and a society registered under any law; (k) “Surplus Land” means land held by a tenure-holder in excess of the ceiling area applicable to him and shall include buildings, wells and trees existing thereon; (l) “Tenure-holder” means an individual or a person who is the holder of a holding; 16. Amarjeet Kaur wife of Iqbal Singh is not a member of the family of original tenure holder Gargaj Singh. Gargaj Singh or even Iqbal singh is not the tenure holder of the land held by Amarjeet Kaur and the holding of Amarjeet Kaur wife of Iqbal Singh cannot be added while taking into consideration the total holding of Gargaj Singh or Iqbal Singh for the purpose of 10(2) of the Ceiling Act. 17. 0.587 hectares land bearing Gata No. 58 hectares in the name of Balwant Singh has also been treated as holding of the petitioners on the ground that Balwant Singh is not a resident of the village in question and as the land was found in possession of the petitioners, it has been presumed that the petitioners were holding land as its benami holders. 18. 18. For declaring a land to by surplus land of a person, that person must be a bhumidhar, sirdar, asami of Gaon Samaj or an asami mentioned in section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or as a tenant under the U.P. Tenancy Act, 1939, other then a sub-tenant, or as lessee where the period of the sub-lessee of a Government with the period of the lease and unless the person falls in any of the aforesaid categories mentioned in Section 3(d) of the Ceiling Act, he will not be the tenure holder of the land and the land cannot be said to be a held by a tenure-holder in excess of the ceiling area applicable to him so as to warrant it being declared surplus land. 19. 0.587 hectares land bearing Gata No. 58 hectares in the name of Balwant Singh could have been considered to be benami property of the petitioners or of their predecessor in interest in case the land was recorded in their names prior to the same being entered in the name of Balwant Singh. As the land in question had never been held by the petitioners or their father and it has not been transferred by them to Balwant Singh, the same cannot be held to be surplus land of the petitioners holding the same to be their benami property merely because it was found in possession of the petitioners. 20. In view of the aforesaid discussion, the reasons given by the Prescribed Authority in the impugned order dated 27.02.2007 are unsustainable in law, which vitiate the order declaring 5.386 irrigated land of the petitioners as surplus land. 21. The Commissioner, Lucknow Division, Lucknow has dismissed the Appeal No. 102/2006-07 filed by the petitioners under Section 13(2) of the Ceiling Act against the aforesaid order dated 27.02.2007 passed by the Prescribed Authority, without taking into consideration the aforesaid aspects of the matter, which vitiates the Appellate order also. 22. Accordingly, the writ petition is allowed and the orders dated 27.02.2007 passed by the Prescribed Authority Ceiling Act/Additional Collector, Kheri in Case No. 37/2004-05 and 25.07.2008 passed by the Commissioner, Lucknow Division, Lucknow dismissing the Appeal No. 102/2006-07 are hereby quashed and the necessary consequences shall follow.