Allahabad High Court
Chetan Singh And Others vs State Of U.P. And Another on 30 October, 2019
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Case :- WRIT - C No. - 26089 of 2000 Petitioner :- Chetan Singh And Others Respondent :- State of U.P. and Another Counsel for Petitioner :- R.C.Singh,A.K.S.Bais,Manish Kumar Nigam,Panchu Ram Maurya,Prashant Sharma,R.C.Singh,Rahul Sahai,S.K.Singh,Srikant Tiwari,Vikas Pandey Counsel for Respondent :- C.S.C.,Onkar Singh Hon'ble Yashwant Varma,J.
Heard Sri Manish Kumar Nigam, learned counsel for the petitioners and learned Standing Counsel.
This petition impugns the order dated 5 May 2000 pursuant to which proceedings under Section 29 of the U.P. Imposition of Ceiling on Land Holdings Act 19601 have come to be decided against the petitioners.
Proceedings in the aforementioned enactment were commenced against the grand father of the petitioner namely one Jageshwar Singh. Jageshwar Singh is stated to have executed a will bequeathing his entire holdings in equal share to Ajay Singh father of the petitioners and Smt. Prakashwati, the grandmother. On the basis of that will deed, the names of Ajay Singh and Smt. Prakashwati came to be recorded in the relevant revenue record. Notices under Section 10(2) of the 1960 Act were issued to the father of the petitioners. The father of the petitioners disclosed before the respondents that in terms of the will deed executed by late Jageshwar Singh, the property had devolved upon him and the grandmother of the petitioners in equal shares. It was further brought to their attention that since that will was executed on 3 February 1972, it had admittedly come to be executed prior to 8 June 1973 and that consequently the provisions of Section 5 could not be applied.
The Prescribed Authority by his order of 6 May 1976 decided the matter against the father of the petitioners. Aggrieved by that order an appeal was preferred by the father of the petitioners which came to be allowed in part by the Civil Judge in terms of his judgment rendered on 1 September 1976. By that order the Civil Judge while partly granting relief held that the land admeasuring 1-3-12-10 bighas alone was liable to be treated as surplus. Undisputedly this order attained finality since the State chose not to assail the same at any stage. Thereafter and upon conclusion of proceedings under the 1960 Act, the father as well as the grandmother of the present petitioners are stated to have made certain dispositions. Details of those dispositions have been set forth in paragraphs 9 and 10 of the writ petition. It appears that consequent to those dispositions being made, proceedings referable to Section 29 of the 1960 Act were initiated. It is in the course of these proceedings that the impugned order dated 5 May 2000 has come to be passed holding that the will executed by the mother was intended to avoid the declaration of land as surplus and held 7.132 hectares of land in excess of the ceiling limit as prescribed.
Assailing that order, Sri Nigam submitted that once proceedings initiated against Ajay Singh and Smt. Prakashwati had attained finality in terms of the judgment rendered on 1 September 1976, the validity of subsequent dispositions could not have been gone into in proceedings referable to Section 29 of the Act. He further submits that subsequent notices issued were themselves invalid since they were directed against Ajay Singh who had died by that time. Viewed in that sense, it was his submission that proceedings were initiated against a dead person and consequently liable to be declared as void. He submits that the validity of the dispositions was an issue which no longer survived for consideration since those and other allied issues pertaining to dispositions and their validity in light of the provisions made in Section 5 could have been considered and ruled upon only in the original adjudication undertaken.
Refuting those submissions, learned Standing Counsel submits that categorical findings have come to be recorded that the dispositions were made by the grandmother only to avoid the relevant provisions of the 1960 Act and consequently the Additional Commissioner has rightly held that the will so executed in favour of the petitioners was liable to be ignored and the land declared as surplus.
Having considered the rival submissions, this Court finds itself unable to sustain the impugned orders for the following reasons. Undisputedly by the order of 1 September 1976, ceiling proceedings initiated against the father of the petitioners came to a closure and that adjudication attained finality consequent to the same being never assailed by the State. It consequently bound the parties and the declaration of surplus land as entered therein could not have been modified except in circumstances which stand enumerated in Section 29. Curiously and notwithstanding the fact that notices were issued against a dead person, the Court notes that the petitioners were never called upon to explain the extent of land held by them consequent to the will that is stated to have been executed by their grandmother. As noted in the recordal of facts, the notice was issued against Ajay Singh alone and who in any case was not alive at the relevant time. This aspect assumes significance since it would have been the extent of land held by the petitioners which alone would have merited consideration in light of the provisions of Section 29. That provisions read thus:-
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]."
As is evident from a bare reading of that provision, it empowers the respondents to reopen proceedings in cases where land held by a tenure holder including that which has come to devolve upon that person by way of succession or transfer results in the ceiling area applicable to him being breached. Section 29 would stand attracted only in the situations envisaged and spelt out above and no other. The key to understanding the scope of the provision lies in the usage of the phrase "Subsequent declaration of further land.." in the title of the section and the word "redetermined" in its substantive part. This clearly establishes that the provision relates to those cases where a person in respect of whom an adjudication has already come to be undertaken comes to possess additional land as a result of succession, transfer or prescription in consequence of adverse possession.
The dispositions which were made by the grandmother did not result in additional land devolving upon her. In fact and to the contrary it was a case of divestment and disposal of land in favour of others. The impugned order does not record any finding that consequent to that land devolving upon the petitioners by way of bequeathment resulted in them coming to hold land in excess of the ceiling area applicable to them. That alone could have been a valid line of enquiry. However neither were the petitioners placed on notice nor was this the issue which ultimately came to be decided.
The respondents, in the considered view of the Court, committed a patent error in proceeding to dwell instead upon the validity of the dispositions which were made and hold that they were designed to avoid the provisions and the limits as placed under the 1960 Act. Regard must also be had to the fact that the statutory prohibition engrafted in Section 5 (8) of the 1960 Act against transfer of land itself operates during the continuance of proceedings for determination of surplus land. Those proceedings for determination of surplus land in respect of the father and the grandmother of the petitioners came to a close in 1976. This is evident from the Explanation appended to Section 5 (8) which specifies the terminal point to be "....the date when an order in relation to such tenure-holder is passed under sub section (1) of Section 11 or under sub section (1) of Section 12 or as the case may be, under Section 13." The respondents do not rely upon any other provision of the 1960 Act which may be read as empowering them to either avoid transactions or enter a declaration of nullity in respect thereof.
Viewed in light of all of the above, it is manifest that the Additional Commissioner has clearly misdirected the enquiry which was liable to be undertaken, if at all. The validity of the issue of whether the dispositions made by the original tenure holders post conclusion of ceiling proceedings clearly did not merit consideration and in any case, the provisions of Section 29 would not apply unless the respondents came to conclude that consequent to those dispositions the original tenure holders came to hold land in excess of the ceiling limit rendering the orders of adjudication made in that respect liable to be reopened. In the present case the respondents were in fact dealing with a converse case of land being divested and coming by way of bequest to others.
Consequently the writ petition is allowed. The impugned order dated 5 May 2000 is quashed and set aside.
Order Date :- 30.10.2019 LA/-