Allahabad High Court
Sabu And Others vs State Of U.P. And Another on 29 August, 2011
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Judgment reserved on 23.5.2011)
(Judgment delivered on 29.8.2011)
Case :- WRIT - C No. - 18923 of 1999
Petitioner :- Sabu And Others
Respondent :- State Of U.P. And Another
Petitioner Counsel :- Madhusudan Dikshit,K.M.Tripathi,S.N. Singh
Respondent Counsel :- C.S.C.,Havaldar Verma,S.N.Pandey,S.N.Singh
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the petitioners and learned standing counsel for the respondents.
This writ petition arises out of proceedings under U.P. Imposition of Ceiling of Land Holdings Act 1960.
A notice was issued in the year 1990 under Section 10 (2) of the Act to one Allah Rakkha father and grant father of the petitioners. Admittedly, Sri Allah Rakkha had died long before. Sri Allah Rakkha left behind 5 sons. Notice was served on some of his sons who filed objection . The sons and grand sons of Allah Rakkha contended that Allah Rakkha had died in 1972. However, the Prescribed Authority decided that he had died in 1973. Some land was declared as surplus by the Prescribed authority against which appeal was filed by the petitioners which was dismissed. Thereafter matter was brought to this court in the form of writ petition no.808 of 1994 which was allowed on 27.9.1996, orders passed by the Prescribed Authority and appellate court dated 16.9.1991 and 7.11.1991 were quashed and matter was remanded to the Prescribed authority to decide the same afresh keeping in view the findings recorded in the body of the said judgement. Copy of the said judgement dated 27.9.1996 is Annexure 1 to the writ petition.
It is noted in Anneuxre1 that some land purchased by the sons of Allah Rakkha was wrongly clubbed with the land of the Allah Rakkha. It was also observed in Annexure 1 that it was apparent from the notice sent to Allah Rakkha that plots of other persons were not recorded in the Revenue record on the relevant date and were clubbed while determining the ceiling area of Allah Rakkha.
After remand prescribed authority ceiling/Additional District Magistrate, Muzaffar Nagar through order dated 27.2.1999 contained in Annexure 2 to the writ petition passed in case no.6 of 1991 State Vs. Allah Rakkha again determined 26 bigha 17 biswa and 1.6 biswancies irrigated land as surplus. Plot numbers were also given which were declared as surplus which were 312 A , 312 B and 46. Against the said order petitioners filed appeal being Appeal no.2 of 1998-99. Additional Commissioner (Administration) Saharanpur, Division Saharanpur dismissed the appeal on 29.4.1999, hence, this writ petition.
The Courts/authorities below held that Allah Rakkha and his 5 sons were joint hence, all the properties purchased by his sons were joint property and his sons could not show that they had independent source of money to purchase the land. This is a strange finding. If the family was joint for all purposes then the land should have been divided among all.
First of all categorical finding regarding date of death of Allah Rakkha has not been recorded by the courts below. The petitioners claimed that Allah Rakkha died on 1.8.1972. The version of the petitioners that Allah Rakkha died on 1.8.1972 was not found correct on the ground that in the Khatauni 1377 to 1381 fasli his name was continuing. This is neither here nor there. Even in the year 1990 (1397-98 fasli) name of Allah Rakkha was continuing in the revenue records and for this reason notice was sent to him. The only finding which is recorded in Annexure 2 is that Allah Rakkha had not died before 8.6.1973. However, exact date has not been mentioned. It has also not been mentioned that why from 1973 till 1990 i.e. for 17 years notice was not issued either to Allah Rakkha or to his sons if they were having land beyond the ceiling limit.
If Allah Rakkha did not possess any surplus land then ceiling proceedings could be initiated after acquisition of some land by some of his sons only after recording categorical finding that the land was benami. The finding regarding benami are not based upon any evidence. They are based on presumption that every son who is living jointly with his father if he purchases some land the land must be deemed to have been purchased by the father in the name of the son. Moreover, the burden has been placed upon the petitioners which is not correct. If State wants to assert that land purchased by the sons of Allah Rakkha in fact was purchased by Allah Rakkha, benami in the name of his sons and he was the real tenure holder then the burden also lies upon the State to prove the said fact. In the impugned judgment even the dates of the sale deeds have not been mentioned. Specific finding is also required to be recorded as to why for 17 years notice was not issued either to Allah Rakkha or to his sons in respect of his land held by him on 8.6.1973 if he was alive on the said date.
In para 4 of the writ petition it has been mentioned that in the initial notice of 1990 in respect of 97 bigha of land only 37 bigha land belonged to Allah Rakkha and remaining 60 bigha belonged to his sons or grand sons. Almost same thing was stated by the Lekh Pal before Prescribed authority as is evident from para 1 of its judgment dated 27.2.1999 (Annexure-II). If during the life time of Allah Rakkha the land held by his sons and grand sons was not treated to belong to him then after his death it could not be so treated. In any case even during his life time the land held by his sons and grand son could be treated to belong to him only if on the basis of evidence finding was recorded that the sons and grand sons were only ostensible owners and the real Bhoomidhar tenure was Allah Rakkha. This finding cannot be recorded on the basis of presumption. At lest uptil the ceiling limit Allah Rakkha was fully entitled to purchase the land in his own name and the land entered in his name was much less than the ceiling limit.
Accordingly, it is clear that the prescribed authority and the appellate court while passing impugned orders contained in Annexures 2 and 3 have not kept in mind the findings recorded and observations made by this court in its earlier judgment dated 27.9.1996 (Annexure-1) to the writ petition. Accordingly, writ petition is allowed impugned orders dated 27.2.1999 and 24.4.1999 are set aside matter is remanded to the prescribed authority to decide the same again in the light of the observation made in the earlier judgment of this court as well as this judgement. Appellants are directed to appear before the prescribed authority on 20.10.2011.
Order Date :- 29.8.2011
vkg
