Allahabad High Court
Mohd. Adeel Khan vs Addl. Commissioner Admn. Faizabad on 30 May, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Nerutral Citation No. - 2025:AHC-LKO:34269 Court No. - 8 Case :- WRIT - C No. - 3000189 of 1997 Petitioner :- Mohd. Adeel Khan Respondent :- Addl. Commissioner Admn. Faizabad Counsel for Petitioner :- Mohd. Arif Khan,Mohammad Aslam Khan Counsel for Respondent :- C.S.C. Along With Case :- WRIT - C No. - 3000188 of 1997 Petitioner :- Mohd. Aqeel Khan Respondent :- Addl. Commissioner Admn. Faizabad Counsel for Petitioner :- Mohd. Arif Khan,Mohammad Aslam Khan Counsel for Respondent :- C.S.C. Hon'ble Jaspreet Singh,J.
1. The instant two writ petitions have been preferred by the petitioners, assailing the order dated 30.08.1997 passed by the respondent no. 1 whereby the appeal preferred by the petitioners was dismissed and the order passed by the Prescribed Authority dated 27.01.1986 has been affirmed and since they involve similar questions hence are being decided by this common order.
2. Shri Mohd. Arif Khan, learned Senior Counsel, along with Shri Mohd. Aslam Khan, appearing for the petitioners, has submitted that notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the 'Act of 1960' for short) was issued to the father of the petitioners, namely, Mohd. Ismail Khan. The father of the petitioners filed his objections, inter alia, on the ground that plot no.821 of village Ranimau is unirrigated, plot nos. 1180 and 1183 are abadi, plot no. 828 a part of which was also abadi, whereas plot no. 831 was claimed as Rasta. Plot no. 30 of village Ashrafnagar was claimed as abadi, while plot nos. 178, 256, 260, 293 and 365 were already sold out in good faith. Certain other plot nos. 3, 4, 12, 198, 319, 515, 525, 439 and 440 were also sold out for valuable consideration and were in good faith. Plot nos. 453 and 496 of village Neora were graveyards, while plot no. 596 and a portion of plot no. 601 was utilized as market. Hence, they were liable to be excluded while determining the ceiling and surplus area. It is urged by the learned Senior Counsel that the Naib Tehsildar had made a spot inspection on 19.04.1997.
3. After leading the evidence, the Prescribed Authority vide its order dated 27.01.1986 declared 15 bigha, 9 biswa and 11 biswansi as surplus land.
4. The father of the petitioners challenged the same by filing an appeal wherein apart from the issues, which were raised before the Prescribed Authority, an additional issue regarding the furnishing of option in terms of Section 12 of the Act of 1960 was also raised. It was urged that even the Appellate Authority did not consider the matter in the correct perspective by means of its order dated 30.08.1997 and dismissed the appeal and being aggrieved from the same, the petitioners have approached this Court.
WRIT - C No. - 3000189 of 1997
5. Primarily, the learned Senior Counsel appearing for the petitioners has raised on objection that the alleged inspection report was not appropriate. The petitioners who had given a choice in terms of Section 12 of the Act of 1960 which was not considered by the Appellate Authority and, thus, the order passed by the Prescribed Authority as well as the Appellate Authority was bad.
6. It was also submitted that since consolidation operations had commenced in the village, it was incumbent upon the Prescribed Authority/Appellate Authority to have taken note of the changed circumstances and the reduced area which was available with the petitioners after the consolidation operations.
7. It was further indicated that since large tract of the land had been sold in good faith, the sale-deeds ought to have been considered while determining the excess area in terms of Sections 4 and 5 of the Act of 1960. Having failed to consider the same, it has rendered the two decisions bad in the eyes of law. Learned Senior Counsel for the petitioners has relied upon the following decisions:
i) 2001 (Suppl.) R.D. 396 (Damodar Singh and others Vs. State of U.P. and others);
ii) 1979 All LJ 895 (Jagdamba Prasad and another Vs. Additional District Judge and others); and
iii) 1977 All LJ 375 (Bharat alias Bharat Singh Vs. State of U.P. and others)
8. Shri J.P. Maurya, learned Additional Chief Standing Counsel for the State- respondents while controverting the aforesaid submission has submitted that the surplus area which has been determined is in accordance with law and based on material available on record. It is urged that an inspection report was noticed and after considering the area which was unirrigated, the area which was in the shape of abadi, including that of Rasta was properly considered and excluded and it cannot be said that the basis thereof is bad.
9. It was also submitted that the petitioners did not file any objection to the inspection report dated 19.04.1976 and it is on the basis of the same inspection report that a large parts of the area has been excluded. Hence, it cannot be said that for a limited purpose so far as the report exempts the land in favour of the petitioners should be accepted and where it found that the land was with the petitioners, it should be discarded, this kind of acceptance is not permissible. The petitioners did not raise any challenge to the said inspection report and they have also derived the benefit thereof and once having done that it is no more open for the petitioners to dispute it. Moreover, apart from not filing any objection to the said inspection report no material was brought on record to indicate that the inspection report was incorrect. In such circumstances, the ground raised by the petitioners is not legally sustainable.
10. It was also urged that as far as the area which has been reduced in consolidation operations is concerned, the same was also taken note of and there is nothing on record to indicate that the petitioners had furnished certain evidences which established that the land area had been reduced and yet the same has not been taken note of by the authority. In absence of any material, merely alleging that the impugned orders are bad in the eyes of law cannot be sustained. Accordingly, the writ petition deserves to be dismissed.
11. The Court has considered the rival submission and also perused material on record. The record indicates that notice under Section 10(2) of the Act of 1960 was issued to the father of the petitioners. The father of the petitioners had filed his objections to the said notice.
12. Primarily, the land in question which was under consideration were located in three different villages i.e. Ranimau, Ashrafnagar and Neora. The father of the petitioners while filing his objections had raised objections in respect of the land in all the three villages. Large part of the land of Ashrafnagar village were sold by several sale-deeds. The land of village Ranimau was sought to be excluded on the premise that it was unirrigated, some plots were recorded as abadi and some plots were recorded as Rasta. As far as the land situate in village Neora was concerned, it was alleged that some plots were recorded as graveyard and over some area of the plot a market used to be held which was to be excluded. On the basis thereof, it was alleged that the declaration made by the Prescribed Authority regarding surplus land was not correct.
13. In this regard, if the order passed by the Prescribed Authority is seen, it would indicate that as many as 18 issues were framed. While dealing with issue nos. 1 and 4, the inspection report of the Naib Tehsildar dated 19.04.1976 was taken note of and finding that the plots covered therein were recorded as abadi, hence they were excluded. While dealing with issue no. 5 also, relying upon the same report of the Naib Tehsildar dated 19.04.1976 since houses of other persons were situate, hence the same was also exempted. The Prescribed Authority, while dealing with issue no. 6 also noticed that in respect of plot some part of the area was recorded as Rasta, hence that was too excluded. Some plots which were recorded as grove and abadi were also excluded.
14. From the perusal of the said order, it would also go on to indicate that the Prescribed Authority considered the land situate in villages Ashrafnagar as well as Neora it found that since it had a graveyard consequently it was excluded. The Prescribed Authority while dealing with issue nos. 15, 16 and 17 considered the plea of the sale-deeds which were said to have been executed by the father of the petitioners and it was clearly indicated that the said sale-deeds, which had been executed, were dated 27.06.1974 which were apparently after the cut-off-date of 24.01.1971. Another important finding that has been recorded that the said sale-deeds were executed in favour of other persons and the reason for executing the sale-deeds was for the purposes of doing pairvi in the cases. This did not find favour. However, the Prescribed Authority found that some of the sale-deeds were executed with bonafide intention hence they were excluded and only thereafter the remaining land was considered of the village in question and thereafter the surplus land was declared.
15. The Appellate Authority while considering the appeal found that the findings recorded by the Prescribed Authority did not require any interference inasmuch as the evidence which was led before the Prescribed Authority established that certain sale-deeds which were executed did not meet the test as required as no evidence in this regard was led by father of the petitioners. In case, if the sale-deeds were executed, it was the duty of the petitioners to have established the fact that the sale-deeds were executed for the bonafide reasons. Since no such evidence was led before the Prescribed Authority or the First Appellate Authority, the same cannot be considered at this stage in the writ petition. Even while filing the instant writ petition no evidence or document has been brought on record to submit that it formed part of the record before the Prescribed Authority and the Appellate Authority yet it was not considered. Raising a plea before this Court that certain evidences were not considered can only be appreciated if the material would have been placed before this Court. In absence thereof, merely raising a plea amounts to a bald contention which the petitioners being the persons who are required to establish their case have failed to demonstrate that the findings recorded by the Prescribe Authority or the First Appellate Authority was bad or was contrary to the material on record.
16. For the aforesaid reasons, this Court finds that the findings recorded by the Prescribed Authority or the First Appellate Authority is in accordance with the settled principles and as far as the plea that land which ought to have been deducted as upon the consolidation operations the land in the hands of the petitioners had been reduced was also a factual plea and the petitioners ought to have led evidence, which should have been placed on the record by the petitioners. Merely taking a plea that upon commencement of consolidation operations and thereafter the land had been reduced, unless this plea was substantiated by the petitioners, cannot be accepted by this Court. No material has been brought on record of this writ petition to buttress the submissions advanced by the learned Senior counsel, hence they are turned down.
17. The other issue that comes for consideration is regarding the fact of choice in terms of Section 12 of the Act of 1960. In this regard, if the memo of appeal as filed by the father of the petitioners is seen, a copy of which has been brought on record as Annexure-2, it would reveal that primarily two grounds were raised. First that the option given by the father of the petitioners was not considered and the second ground was that upon consolidation operations the land in the hands of the petitioners had been reduced substantially and till time the consolidation operations were in progress, the proceedings before the First Appellate Authority be deferred.
18. This indicates that as far as the issue of choice is concerned, apparently the same has not been taken note of. The other issues, which have been raised by the learned Senior Counsel pales into significance for the reasons that the same was not raised before the First Appellate Authority as seen from the memo of the appeal but nevertheless they have been dealt with by the Court, as already noticed above.
19. For the aforesaid reasons, this Court does not find that there is any error in the impugned orders passed by the Prescribed Authority and the First Appellate Authority to persuade this Court to interfere in the matter except to the extent that the petitioners are entitled to submit their choice in terms of Section 12 of the Act of 1960 which is to be considered by the Prescribed Authority.
20. For the said reasons, the writ petition is partly allowed. The orders passed by the Prescribed Authority and the Appellate Authority shall stand affirmed without interference, however, the petitioners shall appear before the Prescribed Authority and furnish their choice within a period of four weeks from today and once such choice is furnished, the Prescribed Authority shall take note of it and as for as possible accept the same and pass appropriate orders. Rest of the findings have been affirmed by this Court and it shall not be open to be re-agitated before the Prescribed Authority.
WRIT - C No. - 3000188 of 1997
21. In so far as the WRIT - C No. - 3000188 of 1997 is concerned, in the instant case as well the notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the 'Act of 1960' for short) was issued to the petitioner who had filed his objections raising similar grounds that large part of the land was covered as Rasta, abadi and grove. It was also stated that some part of the land has been soled out which has not been appropriately dealt with and, therefore, the order passed by the Prescribed Authority dated 30.08.1986 is bad. It was further urged that as far as the Appellate Authority is concerned, it has also dismissed the appeal by not considering the relevant facts as well the law applicable.
22. The learned Senior Counsel appearing for the petitioner has submitted that in the instant writ petition apart from the grounds as mentioned above, another issue that requires consideration, was in respect of a gift which was made by the petitioner which has not been considered solely on the ground that it was post 24.01.1971. It is urged that since the gift was oral in nature which is permissible as per the personal law of the petitioner hence the finding of the Prescribed Authority which has been upheld by the Appellate Authority stating that the will was not registered and could not be taken into consideration is legally unsustainable.
23. The Additional Chief Standing Counsel in the instant case as well has opposed the submissions advanced by the learned Senior Counsel and has submitted that the inspection report dated 19.04.1976 was properly considered. The petitioner did not raise any objection to the said inspection report, rather on the basis of the very inspection report large part of the area was excluded as suggested by the petitioner himself. Hence, it is not permissible for the petitioner to accept the report in so far as that part which suits him and seeks to discard the same report where it does not suit him. It is urged that this aspect has been considered both by the Prescribed Authority as well as the Appellate Authority. Accordingly, no interference is called on.
24. It is further submitted that it is alleged by the petitioner that he had executed a gift on 16.01.1971 and that was prior to the cut-off-date of 24.01.1971 it could not be ignored. It is urged that first it was on the part of the petitioner to have established that the gift was properly made in accordance with law. Having failed to lead any evidence in this regard, the petitioner cannot raise the aforesaid issue and as such this writ petition also deserves to be dismissed.
25. The Court has heard leaned counsel for the parties and also perused the material on record. This Court has already considered the impact of the inspection report dated 19.04.1976. This report relates to the land in three different villages and as already noticed while dealing with WRIT - C No. - 3000189 of 1997 that the petitioners did not raise any objection to the said report. The area which was found covered as graveyard, abadi, rasta and market, the same has been excluded. In so far as the plea regarding reduction in area on account of consolidation is concerned, in this regard too the petitioner has not brought any evidence on record to indicate that how-much area had been reduced. In absence of any evidence contrary to the findings recorded by the Prescribed Authority and the Appellate Authority being pure findings of fact cannot be interfered and the reasons recorded by this Court while dealing with WRIT - C No. - 3000189 of 1997 be treated as reasons for this petition as well.
26. The issue raised by the learned Senior Counsel for the petitioner relating to the gift, if noticed, would indicate that in terms of the personal law of the petitioner an oral gift is permissible, however, the fact remains that in order to establish the oral gift the appropriate evidence regarding making of the gift, acceptance thereof by the donee and transfer of possession in favour of the donee is to be established. No evidence in this regard has been led nor brought to the notice of this Court. In absence of the basic ingredient regarding an oral gift having not been established by appropriate evidence, hence it cannot be considered.
27. It would have been a different situation that the said gift would have been registered and in writing then its impact would have been seen as to whether it was prior or after the cut-off-date of 24.01.1971. However, in case, if the petitioner had made the gift then he ought to have divested himself of the said property and the same could have been acted upon where the name of the donee could have been entered into the revenue record. In absence of any such evidence regarding making of the gift, the acceptance by the donee and possession having been transferred it cannot be said that the gift was proved. (See order dated 16.04.2020 passed by this Court in Second Appeal No. 77 of 2016 "Nafees Ahmad Vs. Ghulam Mohd."). Thus, the aforesaid plea that the land was gifted bonafide and has not been excluded also does not stand proved from the record.
28. In this stage too the plea of choice in terms of Section 12 of the Act of 1960 has been raised and this Court finds that it would be appropriate to allow the petitioner to approach the Prescribed Authority where he will give his choice within four weeks from today and the Prescribed Authority shall consider the same and thereafter pass appropriate orders. For the said reasons, the writ petition is partly allowed.
29. The orders passed by the Prescribed Authority and the Appellate Authority in both the writ petitions shall stand affirmed without interference, however, the petitioners of both the petitions shall appear before the Prescribed Authority and furnish their choice within a period of four weeks from today and once such choice is furnished, the Prescribed Authority shall take note of it and as for as possible accept the same and pass appropriate orders.
30. Both writ petitions are partly allowed only to the aforesaid extent.
31. Costs are made easy.
[Jaspreet Singh,J.] Order Date :-30.05.2025 MVS/-