1. Both these matters relates to common questions of law and facts and therefore, as requested and agreed by learned counsel for the parties, are being heard and decided by this common judgement.
2. Heard Sri Manu Khare, learned counsel for the petitioner and learned Standing Counsel for the respondents.
3. This writ petition has arisen out of the orders passed by ceiling authorities in the proceedings arising out of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "Act 1960"). The Prescribed Authority by order dated 28.9.1993 (Annexure 1 to the writ petition) declared 5.11 acres at Village Malakapur, Pargana Koda, District Fatehpur being Gata No.450 and 480 irrigated land surplus and the Appellate Authority has confirmed the said order by rejecting petitioner's appeal vide order dated 30.5.1994.
4. Sri Manu Khare, learned counsel appearing for the petitioner contended that earlier ceiling proceedings were initiated against petitioner's father and had attained finality. However, on 27.11.1983 the petitioner's father died and on 17.4.1987 his mother died. The holding of the petitioner's parent naturally succeeded by the petitioner as a result whereof his holding exceeded the prescribed limit giving an occasion to the ceiling authorities to initiate ceiling proceedings by issuing a notice dated 1.7.1989 under Section 10(2) of the Act 1960. After considering the objections filed by the petitioner, 11 issues were framed by Prescribed Authority. Learned counsel for the petitioner contended that much before the death of the petitioner's parents, a sizeable area of holding belong to petitioner was already transferred by way of several sale deeds executed to various persons for bona fide and valid consideration. The same therefore could not have been included to determine surplus land against the petitioner. The authorities below have rejected petitioner's contention only on the ground that all the aforesaid sale deed were registered after 24.1.1971 ignoring the fact that upto 1983 the land in its entirety did not belong to the petitioner and whatever holding the petitioner had up to 1983 i.e. till the death of his father was within ceiling limit. Therefore in a bona fide manner he claims to have executed certain sale deeds, and, unless the same are found to be vitiated on account of lack of bona fide and valid consideration, the same could not have been excluded only on the ground that they were executed after 24.1.1971.
5. The details of the sale deed have been given in para 23 and it shows that out of six deeds, there was only one sale deed dated 13.6.1986 which was executed after devolution of the holding of the petitioner's father upon petitioner after his death and rest of the deeds were executed when petitioner's holding was in his own rights and within the ceiling limits since the same was distinguished and other than holdings of petitioner's father, who was already subjected to ceiling proceedings separately at that time. In my view, this aspect has not been validly and legally considered by the authorities concerned and therefore, on this aspect the matters needs be reconsidered.
6. Secondly, it is contended that Gata No.233, 350 and 440 mentioned in the notice were grove land and therefore, had to be exempted. On this aspect issue no.4 was framed. The State contended that Gata No.350 was a typing error and it was actually 450. In respect to the land in Gata No.233 and 440, findings shows that in 440 it was registered as grove, mentioning the number of trees being 40 of guava and one of mango. Section 3(8) of the Act 1960 while defining grove land excluded the holding having trees of guava, papaya, banana and vine. In Gata No.440 virtually all the trees of guava and only one tree of mango which would not make it a grove land under Section 3(8) but the land virtually having trees of guava, it would not qualify to be a 'grove land' under Section 3(8) of the Act 1960. Similarly, since Gata No.233 have all the trees of guava, it also rightly has not been held to be a 'grove land'. However, in respect to Gata No.450, nothing has been said. As pointed out otherwise by the petitioner, no interference is called for in the aforesaid findings.
7. Learned counsel for the petitioner has relied on a decision of this Court in Hamid Husain Vs. State of U.P., 1978 AWC 574. The aforesaid judgment on the contrary, in my view, does not help the petitioner but goes against him inasmuch as in para 6 thereof it says:
"The trees which do not constitute grove within the meaning of this definition are guava, papaya, banana or vine trees."
8. Lastly, it is contended that Gata No.604 is a pond and the land being sub merged in the water does not fall within the definition of 'land' hence could not have been included to determine surplus area of the holding belong to the petitioner. This question has been considered vide issue No.8 and the Courts below have simply observed that under Act 1960 there is no provision to exclude a land which is a pond on the spot. In my view, the authorities below have erred in law in deciding issue no.8. This Court has considered this aspect in Vibhuti Kumar Bajpai Vs. State of U.P. through Collector Lucknow & Ors., 2008(105) RD 185 and in para 12 and 13 of the judgment it has said as under:
12. The identical controversy arose in a case before this Court in the case of Tej Pal Singh v. State of U.P. and Ors. 1999 (90) RD 424, and the Court, while observing that in spite of directions of the Supreme Court dated 01.12.1987 given in SLP No. 3654 of 1987 that the petitioner's ceiling area be re-determined after arriving at a finding as to whether the plots of the petitioner are irrigated and submerged under water or not, the courts below have not adverted to the question involved in the light of judgment of the Supreme Court, allowed the writ petition and set aside the orders impugned and also remanded the matter to the Prescribed Authority for making spot inspection. The relevant portion of the said judgment is as follows:
"3. The Prescribed Authority and in appeal, the Additional Commissioner mentioned in their judgments the two directions given by the Supreme Court which were required to be followed by the respondents, but while deciding the case of the petitioner, only gave lip service to the directions of the Supreme Court. The directions of the Apex Court are binding and its non-compliance directly or indirectly amounts to non-application of mind.
4. The question as to whether the land of the petitioner is submerged under water or not cannot be decided only from the entries mentioned in the records or upon the statement of Lekhpal. In view of the directions of the Apex Court, it was incumbent upon the Prescribed Authority to have made spot inspection in the presence of the petitioner and to have prepared a detailed report about the plots which are alleged to be submerged under water."
13. In another case Rani Prem Kunwar v. District Judge, Bareilly and Ors. 1978 AWC 431 again the question arose as to whether the land submerged with water can be treated to be the land for the purposes of the Act. This Court after considering the definition of the land laid down as under:
"5. The preamble makes it clear that the Act has been passed to provide land for landless agricultural labourers and for a more equitable distribution of land as also in the interest of community to ensure increased agricultural production and for other public purposes as best to subserve the common good. The object of the Act, therefore, is to carve out land from the large holdings so that the remaining holdings may be manageable and capable of more intensive cultivation as also to provide land to whose who could not have got it or who have very little of it. Obviously this purpose cannot be achieved unless there is land. A land which remains submerged with water and which cannot be used for any purpose contemplated by Section 3(14) of U.P. Act I of 1951 cannot be regarded as land nor it can serve the purposes contemplated by the preamble of the U.P. Imposition of Ceiling on Land Holdings Act.
6. The learned Standing Counsel has referred to Sections 3(2), 3(9), 3(16) and 3(17) which define ceiling area, holding, surplus land and tenure-holders respectively. His contention is that if the petitioner is tenure-holder of plot No. 135 and it is not exempted from Section 6 of the Act it will be included in determining the ceiling area. I am reluctant to subscribe to this view because in all these proceedings the word used is 'land' which is defined in Section 3(14) of U.P. Act I of 1951 only. As discussed above, plot No. 135 does not fall within the definition of land and it cannot be taken into consideration in determining the ceiling area. The learned District Judge committed manifest error of law by including it in that area."
9. In the present case it is not in dispute that Gata No.604 on the spot actually was the land submerged under water and a pond. That be so, in view of the above exposition of law, it would not qualify to be a land so as to be included for the purpose of determining surplus land of the petitioner along with his other holding.
10. No other issue has been argued.
11. In view of the above discussion it is evident that the matter need be reconsidered by the authorities below on the issues discussed above.
12. The writ petition is allowed. The impugned orders dated 28.9.1993 and 30.5.1994 (Annexures No. 1 and 2 to the writ petition) are hereby set aside. The matter is remanded to the Prescribed Authority to reconsider the matter and pass a fresh order in accordance with law after affording opportunity of hearing to all concerned parties.
Order Date :- 7.5.2012 KA