Heard Mr.Hohd.Arif Khan, learned Senior Advocate, assisted by Mr. Mohiuddin Khan, learned counsel for the petitioner and learned Standing Counsel.
The petitioner is aggrieved with the order dated 10th of January, 2007, passed by the Prescribed Authority/Additional Collector, Kheri, whereby some of the petitioner's land has been declared as surplus land under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act,1960 (hereinafter referred to as the 'Act',) as also the order dated 22nd of May, 2007, passed by the Additional Commissioner (Administration), Lucknow Division, Lucknow, whereby the order passed by the Additional Collector has been upheld. Briefly, the facts of the case as set out by the petitioners are that Plot No.403, measuring areas 4.913 hectare was recorded in the name of Shri Parmeshwar Datt, who executed the sale deeds on 22.11.2001 and 28.11.2001 and transferred the said plot in favour of the petitioner. The petitioner's name was also mutated in the revenue record on 28th of January, 2002. However, a notice under Section 10(2) of the Act was issued to the petitioner for declaration of some of the areas as surplus. The petitioner filed objection submitting therein that he was holding the said land being a major in his own name as he purchased the same from his own earning from Shri Parmeshwar Datt, who was having the land within the ceiling limit, as such, the sale transaction cannot be said to be a sham transaction. However, the Prescribed Authority rejected his objection, on the ground that Shri Parmeshwar Datt transferred the land in favour of his grant son (petitioner), just to avoid from declaration of surplus land, whereas Sudarshan Pandey, the petitioner's father was holding possession of the land ostensibly. Being aggrieved with the order of Prescribed Authority the petitioner filed an appeal before the opposite party No.2, who dismissed the same on the same very ground. The fact that Shri Parmeshwar Datt was holding the land within ceiling limit has not been disputed by the State through the counter affidavit. The Prescribed Authority has also discussed the fact of possession as reported by Lekhpal concerned, who reported that the petitioner himself has been found in possession over the land in dispute. The Circle Lekhpal also produced himself as witness before the Prescribed Authority and stated that the petitioner (purchaser) is in possession over the land in dispute and it was never recorded in the name of Sudarshan Pandey nor through any evidence his possession is established over the land in dispute. Accordingly he recommended for exclusion of the said land from the holding of Sudarshan Pandey. Section 5(1) of the Act provides that no tenure holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of ceiling area applicable to him with the explanation clause that if on or before January, 24, 1971 any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person.
In the present case this fact is undisputed that Mr.Parmedhswar Datt was holding the land including transferred land within ceiling limit. The State has also failed to establish the possession of Sudarshan Pandey over the land in dispute ostensibly, therefore, I am of the definite view that the land in dispute cannot be said to be the land, which is excess for imposition of ceiling. Under the circumstances, I am of the view that the orders impugned dated 10th of January, 2007, passed by the Prescribed Authority/Additional Collector, Kheri, whereby some of the petitioner's land has been declared as surplus land under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act,1960 as also the order dated 22nd of May, 2007, passed by the Additional Commissioner (Administration), Lucknow Division, Lucknow suffer from error, therefore, the same are hereby quashed.
The writ petition is allowed.
Order Date :- 21.1.2010/Banswar