Order on Delay Condonation Application No. 129047 of 2004.
Heard learned counsel for the applicant and learned Chief Standing Counsel for respondents.
This application is to condone the delay in filing of the substitution application. No counter affidavit has been filed to the same.
Keeping in view the averments contained therein the delay is condoned.
The application is allowed.
Order Date :- 10.7.2012/S.Prakash Court No. - 38 Case :- WRIT - C No. - 27717 of 1995 Petitioner :- Amir Ahmad Respondent :- Additional Commissioner And Others Petitioner Counsel :- K.G.Srivastava,Amaresh Sinha,Dinesh Pathak,Mohd. Farooq,S.T. Ali,Usha Kiran Respondent Counsel :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J.
Order on Substitution Application No. 129046 of 2004.
Having heard learned counsel for the parties.
The application is allowed.
Let the substitution be carried out accordingly.
Order Date :- 10.7.2012/S.Prakash AFR Court No. - 38 Case :- WRIT - C No. - 27717 of 1995 Petitioner :- Amir Ahmad Respondent :- Additional Commissioner And Others Petitioner Counsel :- K.G.Srivastava,Amaresh Sinha,Dinesh Pathak,Mohd. Farooq,S.T. Ali,Usha Kiran Respondent Counsel :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J.
Heard Shri Preetam Lal holding brief of Shri Dinesh Pathak, learned counsel for the petitioner and the learned Standing Counsel for the contesting respondents.
This writ petition arises out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. The petitioner was put to notice and the ceiling proceedings were concluded by the Prescribed Authority in the year 1977. An appeal was filed which appears to have been allowed on 17th of May, 1988 and the matter was remanded back to the Prescribed Authority. The Prescribed Authority passed a fresh order on 20th of June, 1990 against which the petitioner again filed an appeal before the learned Commissioner.
The appeal was allowed and the matter was again remanded holding that the Prescribed Authority has incorrectly proceeded to ignore the Will of Smt. Fatima and that the land which had devolved on Mr. Nasir Ahmed and the other sons of the petitioner under the said Will ought to have been excluded, keeping in view the earlier appellate order dated 17.5.1988 which fact is evident from the appellate order dated 5.2.1991 (Annexure No. 1 to the writ petition).
The Prescribed Authority, thereafter, has again proceeded to hold that the Will as set up could not be proved and has also doubted the said Will on the ground that the proceedings of mutation on the basis of the said Will were initiated after a lapse of the 11 years in the year 1987. On this ground the Prescribed Authority came to the conclusion that the Will was set up only with a view to avoid the ceiling proceedings.
On other grounds also the Prescribed Authority rejected the objections particularly with regard to the existence of a grove over the entire Plot No. 1362 on the ground that the existing trees were scattered and some new saplings were planted.
The petitioner filed an appeal and the appeal has been dismissed cursorily without appreciating the issue so raised by the petitioner by the impugned order dated 31.8.1995 hence this petition.
This writ petition was entertained and an interim order was passed on 18th October, 1995. A counter affidavit has been filed on behalf of the state and the reasons given in the impugned order are sought to be supported without anything further. It has been asserted in paragraph 9 that the Prescribed Authority has proceeded to decide the objections in the light of the remand order dated 5.2.1991 and that the conclusion drawn that the land under the Will was in possession of the petitioner is correct. On other issues also the Appellate Authority and the Prescribed Authority have not committed any error in declaring the land of the petitioner as surplus.
Learned counsel for the petitioner submits that on both grounds the impugned orders are unsustainable, inasmuch as the Will has been discarded only on the ground that the mutation on the strength of the Will was sought after 11 years of its execution.
It is urged that the Will could not have been ignored once it has been set up and proved. Unless there is a finding that the Will has not been proved in accordance with the Evidence Act there was no occasion for the Prescribed Authority to have drawn a conclusion to the contrary. It is also urged that the name of Fatima Begum has been scored out by Supervisor Kanoongo in 1976 itself and therefore, to conclude that the sons of the petitioner had delayed in setting up their case of succession is incorrect.
It is further submitted that the definition of grove land as contained in Section 3(8) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 clearly indicates that trees as existing prior to 24th January, 1971 would be sufficient to construe that it was a grove. Learned counsel submits that the finding recorded by the Prescribed Authority itself indicates that plot no. 1362 which was being claimed as grove was in the nature of the grove. It is for the said reason that the impugned order is vitiated as a major part of the land was grove. The proceedings in 1977 had also concluded that the said plot was grove and the order of the Prescribed Authority holding Plot No. 1362 as grove was not challenged by the State any further.
He, therefore, contends that the Will having been rightly set up which was in existence and there being no evidence to the contrary, the impugned order proceeds on surmises and conjunctures, and the finding on the issue of grove is also erroneous.
Replying to the aforesaid submissions, learned Standing Counsel contends that in effect the Prescribed Authority has found that it was the petitioner himself who was in occupation of the land and, therefore, the holding will be presumed to be of the petitioner, as such, the Will could not extend any benefit to the beneficiaries named thereunder. He further contends that on facts and on inspection, it was found that part of the land was not grove and hence the said finding of fact cannot be disputed. The Appellate Authority also, therefore, has not committed any error in affirming the same.
Learned Standing Counsel further contends that the direction contained in the remand order has been complied with by examining the same in detail and hence it cannot be said that the Prescribed Authority has committed any error. The appellate order also, therefore, for the same reason does not require any interference.
Having heard learned counsel for the parties the subject matter of land under the Will had been directed to be excluded under the appellate order dated 17th of May, 1988 and the same has been reiterated in the appellate order dated 5.2.1991. In view of the provisions of Section 13 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 it is clear that the decision in an appeal shall be final and conclusive and shall not be questioned in any Court of law. The appellate order dated 17.5.1988 as reiterated in the order dated 5.2.1991 was, therefore, final. There was no evidence to the contrary to dispute the execution of the Will. It is only on the ground of an alleged delayed mutation proceeding that the Will has been discarded by the Prescribed Authority. In the opinion of the Court merely because proceedings for recording the name took 11 years will not defeat the devolution of interest under the Will so long as the Will is not stated to be either fake or forged. In the absence of any such finding neither the Prescribed Authority nor the Appellate Authority could have discarded the said Will more so when the appellate order dated 17.5.1988 and 19.2.1991 specifically issued a direction to exclude the land under the Will. It is for this reason that this Court granted an interim order recording the same on 18.10.1995. The stand taken in the counter affidavit that the earlier remand order has been complied with is absolutely illusory and the authorities have mechanically proceeded to pass the impugned order ignoring the impact of the said appellate orders.
Coming to the question of the existence of grove as claimed by the petitioner once the same plot no. 1362 has been accepted as a grove by the Prescribed Authority in the earlier proceedings culminating in the order dated 9.8.1977 and the State did not contest the said position by filing an appeal, then the State on a later stage of remand could not have taken a u-turn. The fact aforesaid has been stated in Para-11 of the writ petition to which the reply of the State in para-7 of the counter affidavit is that it is not disputed. Apart from this the finding is that 22 old trees were in existence but they were scattered and some new saplings that are 4 to 5 years old have been planted.
The Prescribed Authority on the said basis of inspection and the fact that some cattle fodder was also sown and irrigated, came to the conclusion that it did not fall within the definition of grove. In my opinion, even accepting the said factual situation as narrated in the inspection report, the Prescribed Authority completely lost sight of the contingency of old trees being replaced by new saplings. If the trees planted earlier, which were twenty two in number and were found in existence, then the planting of new trees which were 4 to 5 years old in place of earlier ones for filling in the gaps will not amount to creating a new grove and will simply be trying to restore the status of the grove that did exist as per the evidence of the State itself. The existence of 22 very old trees therefore, even in a scattered state did clearly exhibit the existence of the grove. The temporary utilization of the gaps between the newly planted trees by growing cattle fodder and irrigating it would not transform the original nature of the land which had full grown 22 trees that were quite old according to the State itself.
As to what should be the criteria to judge the status of a holding as grove, reference can be had to the definition of a grove as contained in Section 3(6) of the U.P. Tenancy Act, 1939. The definition is similar, in so far as this feature is concerned, to Section 3(8) of the 1960 Ceiling Act. The same was considered by a learned Single Judge of this Court in the case of Shiv Sahai & others Vs. Har Nandan & others reported in 1963 RD Pg. 119 where it was held that the existence of fourteen trees in an acre of land was sufficient to construe a grove. In the present case there are 22 trees which were found to be existing prior to the appointed date aged about 25 to 30 years and some newly planted trees aged about four to five years spread over an area of approximately one hectare. Thus even if some of the trees are sparsely located, the same would not change the nature of the holdings.
A grove also requires periodical cultivation of the land to keep the trees spruced and healthy and therefore even if something is sown, like in the present case cattle fodder, the same will not dilute the status of the grove. The cultivator of the holding, namely the tenure holder, has every right to restore his grove by increasing the number of trees. This therefore is not a case where the Plot No. 1362 was never a grove nor it can be said that the tenure holder intended to subsequently convert the holding into a grove to avoid the provisions of the Ceiling Act.
This Court in the case of Mahendra Singh vs. State of U.P. and others reported in 1978 AWC 205, Hamid Hussain vs. State of U.P., 1978 AWC Page 574, and relying on Shiv Sahai vs. Har Nandan 1963 RD 199 has held that if some area of a grove is cultivable then the character of land does not cease to be that of a grove. The test is to decipher as to whether the grove was planted prior to 24th January, 1971 or not. The said decisions have again been followed in the case of Indrapal Singh vs. Prescribed Authority reported in 2007 volume 6 AWC Page 5810 and in the case of Narendra Pal Singh Gahlot vs. The Upper Commissioner Judicial reported in 2009 volume 1 AWC Page 46. This aspect was also considered by another learned Single Judge in the case of Smt. Indu Rani vs. State of U.P. and others in Writ Petition No. 4982 of 1988 decided on 17th September, 2001 where it was held that the authorities have miscalculated the number of trees existing in the plot and then holding that the land is not grove. The action of the authorities was held to be unjustified.
The presumption therefore, drawn adverse to the petitioner on the facts of this case is perverse. It also cannot be said that if the new saplings were planted 4 to 5 years before the inspection, the same had been done with some ulterior motive. To the contrary the motive is to restore and revive the grove over the area that required a re-plantation.
The Ceiling Act does not prohibit or create any disqualification if new saplings are planted to restore the status of a grove as this is a natural process. Old trees once stop bearing fruits or die out or even new trees or middle aged trees falling down are contingencies which are genuine and a tenure holder is not prohibited from planting new trees in an old grove. If the interpretation and presumption adverse to this is accepted then the status of grove land will gradually become coterminous with even a minor decrease in the number of trees, which is not the intention of the legislature.
In this circumstances none of the grounds taken either by the Prescribed Authority or the Appellate Authority for non-suiting the petitioner can be sustained. The impugned order dated 25.2.1992 as affirmed in appeal vide order dated 31.8.1995 are both quashed.
The writ petition is allowed.
Order Date :- 10.7.2012 S.Prakash