HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Judgment Reserved on 11.05.2011 Judgment Delivered on 05.07.2011 Court No. - 30 Case :- WRIT - C No. - 43101 of 1998 Petitioner :- Asharam Respondent :- State Of U.P.And Others Petitioner Counsel :- R.S.Maurya,Rakesh Kumar Singh Respondent Counsel :- S.C.,Ashok Gupta Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the petitioner and learned Standing counsel for the respondents.
This writ petition arises out of proceedings for determination of surplus land under U.P. Imposition of Ceiling on Land Holdings Act, 1960.
Earlier ceiling proceedings were initiated against Vishwanath father of the petitioner. The matter was ultimately decided on 25.09.1984 by District Judge, Banda. Through the said judgment and order Ceiling Appeal No. 12 of 1983 filed by the petitioner was allowed. Vishwanath father of the petitioner had died on 18.03.1979 hence petitioner had been substituted at his place in the ceiling proceedings which were pending at that time against Vishwanath. Through judgment dated 25.09.1984 it was held that Vishwanath did not possess any surplus land and half share of Smt. Jamunia which had earlier been included in holding of the Vishwanath should be separated. Before the decision of the appeal petitioner had executed a sale deeds on 14.12.1983. Another sale deed was executed by the petitioner after the decision i.e. on 13.12.1985. Names of the purchasers were mutated in the revenue record. 3rd sale deed was executed on 18.02.1992. 4th sale deed on 17.01.1997.
Thereafter a fresh notice was issued under Section 10(2) of Ceiling Act against the petitioner on 30.12.1996 giving rise to the instant writ petition proposing to declare 6.042 hectare land in terms of irrigated land as surplus with the petitioner. The main reason to initiate the proceedings was death of Smt. Jamunia. Smt. Jamunia had executed a will in favour of Smt. Sushila Devi and the name of Smt. Sushila Devi had been entered in the revenue records. Question of irrigated or unirrigated nature of certain plots, number of family members were also raised in the subsequent, fresh ceiling proceedings. This time the prescribed authority decided the matter on 30.07.1998, copy of which judgment is Annexure-6 to the writ petition, holding that petitioner had 6.042 hectare land as surplus. The above mentioned sale deeds executed by the petitioner were ignored. The said order was passed by the Prescribed Authority, Additional District Magistrate (Finance Revenue) Banda in case no.13 of 1997-98 State Vs. Asha Ram. Against the said order, petitioner filed appeal no. 15 of 1998. Additional Commissioner, Lucknow Dham, Mandal Banda dismissed the appeal on 02.12.1998 hence this writ petition.
When in 1984 matter had been decided in favour of the petitioner, there was no restriction upon him to execute the sale deeds. Those sale deeds cannot be ignored. Even the sale deed which was executed during pendency of the earlier appeal also stood validated after decision of the appeal on 25.09.1984 holding that petitioner did not possess any surplus land.
In the earlier judgment dated 25.09.1984 it had been held that the land of Smt. Jamunia could not be clubbed with the land of petitioner's father Vishwanath. Smt. Jamunia had full right to execute the will. Smt. Jamunia died on 17.04.1991. No tenure holder can be precluded from executing a will on the ground that in the absence of will the legal representative will be having surplus land after clubbing the land which already held by him and the land which he would inherit after the death of the tenure holder.
Moreover, the argument that family strength should have been taken as in the year 1991 when Smt. Jamunia died and not as in 1986, as has been held in the impugned judgments is also quite forceful.
However, as the very basis for issuing fresh notice i.e. death of Smt. Jamunia was wholly irrelevant for starting fresh ceiling proceeding and as through earlier order dated 25.09.1984 it had been held that petitioner's father did not possess surplus land and as petitioner did not purchase or otherwise acquire any other land hence, the impugned orders are liable to be and are hereby set aside.
Accordingly writ petition is allowed.
Order Date :- 05.7.2011 vks