Court No. - 2
Case :- WRIT - C No. - 6413 of 1988 Petitioner :- Anant Prasad Respondent :- State Of U.P.And Others Reserved on : 07.08.2018 Delivered on :21.08.2018 Counsel for Petitioner :- N.K. Srivastava,Nagendra Kumar Srivastava,Neeraj Kumar Srivastava,V.C.Srivastava Counsel for Respondent :- S.C.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri R.K. Pandey, learned counsel for the petitioner and Sri S.K. Mehrotra, learned Standing Counsel.
2. By way of this petition the petitioner has filed this petition seeking quashment of the order dated 3.2.1988 passed by Additional Commissioner, Jhansi Division, Jhansi in Appeal No. 129/13/136/1985-86 in the case of State Versus Anant Prasad.
3. While issuing notice, this Court granted stay against the dispossession of petitioner from the land in dispute.
4. Brief facts of the litigation are that the petitioner is a tenure holder of village Mau Aakatmal, Mau, Mustakil, Cheulaha and Bkitora, District Banda.
5. The notice came to be issued by respondent under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 ( hereinafter referred to as “Act, 1960”). The notices revealed that the petitioner was Bhumidhar of 19.01 hectare of irrigated land and respondent no. 1, namely, State of U.P. Was entitled to the rest of the land which has been surplus vacant land. Notice was contested and objections were filed to the same. Petitioner contended that the land which he held was below the ceiling limit. The entire land held by the petitioner was a nonirrigated land and no irrigation facility was available for the land in question the same could not be said to be of excess holding, the holding was of the ancestral holder. He had inheritated the same and the petitioner and his real aunt Smt. Sundariya were co-holders of the land and they had half share each. His aunt executed the will in favour of petitioner;s daughter Smt. Pushpa Devi wife of Daya Ram Resident of Village Sidhaura Tehsil Mau, District Banda on 20.6.1978. Smt. Pushpa Devi was brought up maintained and married by Smt. Sundaria after the death of Smt. Sundaria when the name of Smt. Pushpa was not mutated in the revenue record then she had filed a declartory suit u/s 229B of U.P. Act No. 1 of 1951 on the basis of the aforesaid Will dated 20.6.1978 before the Revenue Authorities which was decreed and her name was recorded in the revenue records.
6. Smt. Pushpa Devi also filed her objection in detail which was as under :
(a) That she is co-bhumidhar in possession of the Holdings in question along with the petitioner and has half share in it.
(b) That Smt. Sundaria had bequathed her entire half share in the aforesaid holdings to her grand daughter Smt. Pushpa Devi through a will dated 20.6.1978 and after the death of Smt. Sundaria, she ( Smt. Pushpa) has been recorded in the revenue papers and is also in possession of the same. She also detailed the pedigree and other facts that how she served her grandmother Smt. Sundaria and also regarding the aforesaid declaratory suit.
7. The petitioner's objections were decided and the same are as under :
(a) That the petitioner's entire land is unirrigated.
(b) Smt. Pushpa Devi is the Bhumidhar of 97.06 , 13-1 Hactare of land and her name has been correctly recorded in the Revenue records being the legal representative of Smt. Sundariya and this land has been incorrectly included in the holding of Agant Prasad petitioner who is not the legal representative of Smt. Sundariya u/s 174 of U.P.Z.A. And L.R. Act.
(c) The petitioner has been shown to be the Bhumidhar of 219 Bigha-02 Biswa – 0 Dhur of land whereas 107 Bigha – 16 Biswa – 10 Dhur of land have been recorded in the name of other persons and only 111 Bigha 5 Biswa 10 Dhur of land has been recorded in his name and which can only be considered in ceiling.
(d) The total land of the land holder ( petitioner) comes to 111 Bigha 5 Biswa and 10 Dhur. Out of which 105 Bigha unirrigated land is equilent to 7.30 Hactare of irrigated land and 6 Bigha 5 Biswa 10 Dhurs of unirrigated is surplus vacant land.
8. The stay order at Annexure E of memo of petition came to be challenged by the State and no separate appeal came to be preferred against order in favour of Smt. Pushpa Devi. Pushpa Devi she was not impleaded in the appeal, the appeal was allowed the order is now challenged and the order has been stayed by this Court and the stay operates since 1988.
9. It is submitted by learned counsel for petitioner that all the tenure holders were supposed to be given notice. Smt. Pushpa was a necessary party and she was not joined as party in the proceedings. He has heavily relied on the Division Bench judgment of this High Court in Shantanu Kumar Vs. State of U.P. and others decided on 22nd August, 1977, Baldeo Singh Vs. State of U.P., decided on 18th January, 1980 and Kailash Chandra Vs. State of U.P. and others decided on 9th January, 2007 and has contended that even under definition, it cannot be held that there was surplus land in the possession of petitioner.
10. Learned counsel for the State submitted that Smt.Pushpa Devi was not necessary party, she holds the property because of petitioner the ceiling proceedings were instituted much before the suit was instituted for declaring that the Will was valid or not.
11. Having considered the Division Bench judgments of this High Court in Shantanu Kumar ( supra), Baldeo Singh ( supra) and Kailash Chandra ( supra) relied by learned counsel for petitioner and the subsequent development and the stand taken by the State in its reply also makes it clear that the petitioner had not mentioned in his objection that Smt. Sundariya held any property. The objection raised by him was sub-silent. It was Smt. Pushpa who filed the objection that land was received on the basis of Will. Once this objection was raised it had to be decided by the authorities concerned. Appellate authority's orders are sub-silent about this fact and so is bad.
12. Rejoinder affidavit categorically shows that Smt. Pushpa Devi had contested the matter and showed that the property was in the name of Devi Dayal father of petitioner and Smt. Sundariya. Neither any seperate appeal was filed by opposite party no. 1 against Smt. Pushpa Devi nor Smt. Pushpa Devi was impleaded in the aforesaid appeal filed against the petitioner.
13. The decisions of this Court goes to show that the statement of the said person and when the said holder had filed objection to that statement just because the name is not in the revenue records would be not the main factor for determining whether the person was holdings the surplus land this could not have been declared by the appellant authorities. The objection had to be entertained as per the judgment of Full Bench in the case of Baldeo Singh ( supra). This Court again in the case of Shantanu Kumar ( supra) as held and, therefore, on the basis of these judgments also and the ground alleged, the authorities have never held that the will was not genuine. The declaration suit filed by Sundaria also justifies claim of petitioner. The detailed objections have not been considered by the appellate authority. The prescribed authority had already allowed the objections raised by the petitioner regarding the fact that land not being irrigated. The imposition of ceiling Act and the appeal preferred therein decided as if there was no objection raised by Smt. Pushpa Devi. The finding against Smt. Pushpa Devi is unjust as she was neither impleaded nor any appeal was represented by the State and so it could not have been held to be maintainable by the Additional Commissioner. The finding on issue no. 3 was also not properly appreciated, hence the order dated 3.2.1988 required to be quashed and set aside and is likewise quashed and set aside.
14. The order of the appellate authority cannot be sustained and is set aside.
15. Petition is allowed.
Order Date :-21.8.2018 Mukesh