Dilip Singh & Others vs Commissioner Agra Division Agra & ...
2012 Latest Caselaw 950 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 26
 

 
Case :- WRIT - C No. - 2280 of 1995
 
Petitioner :- Dilip Singh & Others
 
Respondent :- Commissioner Agra Division Agra & Others
 
Petitioner Counsel :- Dr.R.G.Padia,K.Ajit,Prakash Padia,Prashant Mishra
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sunil Hali,J.

Out of total holdings of the petitioners, 14.12 acres of land has been declared surplus under Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act 1960 vide order passed by the Prescribed Authority on 26.12.1979. The property owned by the father of the petitioners No. 2 & 3 is ancestral property and at the time of vesting under the U.P. Z.A.& L.R. Act it was recorded as proprietary land in the share of Sir and Khudkasht.

Proceedings were initiated under the U.P. Imposition of Ceiling on Land Holdings Act 1960 by the Prescribed Authority on 8.6.1973. In this behalf notices were issued to the petitioner no. 1 to file statement of facts. After hearing the parties, prescribed authority found that the petitioner no. 1 was the sole tenure holder of the land as a result of which the land held in excess of the ceiling limit was required to vest in the State. Total land measuring 14.12 acres was found in excess of ceiling area. Objections which were taken by the petitioner no 1 before the Prescribed Authority that he was not sole owner of the property but was joint holder with petitioner nos. 2 & 3. It was contended that the petitioner nos. 2 & 3 were born before Ist of July 1952 and they acquired their rights in the property at the time of their birth. They acquired this right to be joint holder of this land prior to vesting under U.P. Z.A. & L.R. Act 1950 i.e. on Ist of July 1952. Specific stand was that the petitioner did not hold this land as a sole owner but was joint holder with his sons petitioners no. 2 & 3. Other plea taken were that while determining the nature of the land error was committed by the respondents by holding the land which was un-irrigated as irrigated land. Prescribed Authority formulated four issues. Issue nos 1 & 2 dealt with as to whether the petitioner No. 1 was the sole tenure holder of the land or as a joint holder with petitioner nos. 2 & 3. Findings recorded by the Prescribed Authority was that during initiation of consolidation proceedings an application was filed by the petitioner before the consolidation officer seeking partition of the property. This application was moved on 20.10.1970 and the order was passed on 7.9.1971. By virtue of this order petitioner's property was partitioned and respective shares were assigned to the petitioners. While acknowledging that the partition had taken place the Prescribed Authority held that the effect of this partition would not give any benefit to the petitioner as the same has been done after the date prescribed under the Act of 1960 i.e. 24.1.1971. Any transfer made after the 24.1.1971 effecting distribution of shares in the land would not give any benefit for the purpose of determining ceiling of the land. It was held by the Prescribed Authority vide order dated 30.3.1991 that the petitioner no. 1 was sole tenure holder of the property and held that he was holding the land in excess of the ceiling limit.

On an appeal being preferred against this order the appellate court allowed the appeal partly vide order dated 8.4.1993. Appellate court upheld the findings of the prescribed authority in respect of issue nos. 1 & 2 which held that the petitioner no. 1 was sole tenure holder of the land after rejecting his plea that it was held in joint ownership with petitioner nos. 2 & 3. On issue nos. 3 & 4 the matter was remanded by the appellate court to the Prescribed Authority for re-examining the nature of the land held by the petitioners. Prescribed Authority thereafter disposed of the matter in respect of issues no. 3 & 4. It again passed an order upholding its earlier direction. Against this an appeal was preferred and the appellate authority vide order dated 3.1.1995 dismissed the same. It is this order which is subject matter of challenge before this Court.

Heard learned counsel for the parties and perused the material on record.

During pendency of the writ petition an application for seeking an amendment has been filed in which petitioners seek to add paragraph no. 35 A and ground L as well as Prayer IV seeking quashing of the order passed by the appellate authority on 8.4.1993 and that of the Prescribed Authority dated 30.3.1991 with respect to Issue nos. 1 & 2.

No objections were filed by the respondents to the said amendment application.

Application was allowed and necessary amendment was carried out during the course of the day.

Dispute in this writ petition relates to the fact as to whether the conclusion drawn by the Prescribed Authority were correct in ignoring the fact that the petitioner nos. 2 & 3 had acquired right in the property prior to coming into force of Act of 1950 and holding that the petitioner no. 1 was the sole tenure holder or wrong.

It is not in dispute that the property owned by the petitioner no. 1 was an ancestral property and the same was held by him as sir and khudkasht which is in the nature of proprietary rights. It is also admitted that petitioner nos. 2 & 3 were born prior to Ist of July 1952 which fact has been admitted by the learned counsel for the respondents before the appellate court. Being aware of this fact a notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act 1960 was issued by the Prescribed Authority by holding that the entire land recorded in the name of petitioner no. 1 was his sole proprietary land and was not held by him in joint ownership with petitioners no. 2 & 3.

Law is well settled that in case of a Hindu as far as his interest in ancestral property is concerned the same accrues right from the date of conception in the womb and the same does not wait till the child is born. Even if he may not be in actual control of the property, he has inalienable right to own the said property. So while determining the shares in the said holding, right of the such child has also to be looked into. In the present case, admitted fact is that the petitioners no. 2 & 3 had acquired their respective rights in the ancestral property prior to Ist of July 1952 and had clear interest in the property as such it could not be said to be exclusive property of the petitioner no. 1. It was by way of necessity the Prescribed Authority was required to examine this aspect of the matter at the time of initiating ceiling proceedings under Section 10(2) of the Act, 1960. This aspect had to be looked into irrespective of any subsequent proceedings being initiated by the petitioners to define their shares. Limited role of Prescribed authority was to determine the surplus land by reference to the number of owners holding such land. As already stated herein-supra petitioners no. 2 & 3 had acquired their right in this property prior to 1.7.1952 and had interest in the property. This aspect has been consistently ignored by the Prescribed Authority even though specific objection was taken before the Prescribed Authority.

Reliance placed by learned counsel for the petitioners on the case of Vishwa Nath Singh Vs State of UP and others, 1978 All. L. J. 1085 wherein a co-ordinate bench of this Court in paragraph no. 12 has held as under:-

"In my opinion the Prescribed Authority has misappropriated the contentions raised on behalf of the petitioner tenure holder. The relevant thing to be determined in the case is as to whether the plots claimed by the petitioner were coming down in his family from the time of his ancestor and whether the petitioner's son Madan Gopal was born before Ist July 1952. If the aforesaid two questions are answered in the affirmative the petitioner's son Madan Gopal would get a right in Sir or Khudkasht land by virtue of his birth in the family. It is immaterial whether his name was entered over the disputed plots or not, or he was not in actual possession over his share in the plots. Even if the petitioner was in possession over the ancestral property, the rights of his son Madan Gopal would not extinguish in the disputed plots if the disputed plots were coming down in the family from the time of grand father or great grand father or even from before them. It is true that the devolution would be governed by the provisions of UPZA & LR Act after the enforcement of Act I of 1951, but on 30.6.1952 the persons who could in law be sir holder or Khudkasht holder would not lose their rights due to enforcement of Act I of 1951. The Prescribed Authority appears to have failed to examine the claim of the petitioner from this angle. The appellate authority h as not dealt with this aspect of the matter. Since the judgements of the ceiling authorities are patently erroneous on the questions of the claim put forward by the petitioner that his plots were unirrigated, I think that the appellate authority should also examine the claim of the petitioner that his son Madan Gopal has a share in the plots indicated by him (the petitioner) as ancestral property."

Impugned order has been passed by the Prescribed Authority in the year 1979 declaring this much of land as surplus land. The plea of the respondents is that the partition effected by the petitioners has been made effective from the date which is posterior to one prescribed under the Act of 1960 i.e. after 24.1.1971. Both the Prescribed Authority and appellate authority have relied upon the partition effected by the petitioners of the land before the consolidation officer under U.P. Imposition of Ceiling on Land Holdings Act 1960. Reliance has been placed on Section 5(7) of the Act of 1960, which is quoted as under:-

"(7) In determining the ceiling area applicable to a tenure holder, any partition of land made after the twenty fourth day of January, 1971 which but for the partition would have been declared surplus land under this Act shall be ignored and not taken into account:

Provided that nothing in this sub section shall apply to-

	(a)          [X X X]
 
	(b)	a partition of a holding made in a suit or a proceeding pending on the said date:
 

Provided further that notwithstanding anything contained in the preceding proviso, the prescribed authority, if it is of opinion that by collusion between the tenure holder and any other party to the partition, such other party has been given a share which he was not entitled to, or a larger share than he was entitled to, may ignore such partition."

Import of the aforesaid provision is that while determining the ceiling area applicable to tenure holder any partition of land made after 24.1.1971 which but for the partition would have been declared surplus land, shall be ignored and not taken into account. While holding that partition was effected between the parties same was ignored as it had become effective after 24.1.1971.

In this respect, learned counsel for the petitioners submits that an amendment was effected to Section 5(7) of the Act 1960 in the year 1972 by U.P. Act No. 18 of 1973. The following amendment has been effected in Section 5(7) of the Act, which is quoted as under:-

"(7) In determining the ceiling area applicable to a tenure holder, any partition of land made after the twenty fourth day of January, 1971 which but for the partition would have been declared surplus land under this Act shall be ignored and not taken into account:

Provided that nothing in this sub section shall apply to-

(a) a partition under the UP Consolidation of Holdings Act 1953,

(b) a partition of a holding made in a suit or a proceeding pending on the said date:

Provided further that notwithstanding anything contained in the preceding proviso, the prescribed authority, if it is of opinion that by collusion between the tenure holder and any other party to the partition, such other party has been given a share which he was not entitled to, or a larger share than he was entitled to, may ignore such partition."

In view of the amendment, any partition which has been effected under the UP Consolidation of Holdings Act 1953 sub section (7) will have no effect as it contemplates that if any partition has been effected under the Consolidation of Holdings Act 1953 after the 24.1.1971 the same cannot be ignored for the purpose of determining the ceiling area.

Learned counsel for the petitioners states that the partition was effected under the U.P. Consolidation of Holdings Act 1953 by virtue of which petitioners were assigned their respective shares. Ceiling authority was required to examine this transfer of shares for the purpose of determining the ceiling area of the tenure holders.

Amendment of sub Section 7 of Section 5 of the Act 1960 clearly imposed an obligation on the respondents to take cognizance of the partition and after determining the shares of the petitioner it was required to be determine the ceiling limit applicable to tenure holders. This aspect has not been taken into consideration by the respondents.

Last but least the issue which will have overriding effect is that the right of petitioners no. 2 & 3 had to be recognised as being joint tenure holder with their father which right they had acquired prior to 1.7.1952. This could not have been ignored by the Prescribed Authority and appellate authority as the facts have not been disputed by the State in this behalf regarding their status as joint holders.

It is further stated that the names of the petitioners no. 2 & 3 have not been reflected in the revenue record. It is only petitioner No. 1 whose name has been recorded as tenure holders in the revenue records. Mere entry of the petitioner no. 1 in the revenue record did not confer exclusive bhumidhari rights over the entire property on the petitioner no. 1 to the exclusion of right of his sons. Under the UPZA & LR Act, the land in possession of or held or deemed to be held by an intermediary as sir and khudkasht they shall continue to acquire their Bhumidhari rights in the said land. This issued has already been dealt by a co-ordinate bench of this Court in Vishwa Nath Singh (Supra).

From the aforesaid discussion, it clearly emerges that the Prescribed Authority has not examined the case in its true legal perspective by ignoring the right of the petitioners no. 2 & 3 to be joint holder of the ancestral property from the date of their birth. It was incumbent upon him that while determining the ceiling area it should have taken into consideration the land which had fallen into the share of petitioner nos. 2 & 3 as owners. As a matter of fact what is being construed as assigning of shares before the consolidation officer is infact a partition of the property. Partition can be effected only where the ownership is joint. Petitioners acquired ownership right prior to 1.7.1952. Partition was effected only for the purposes of assigning their respective shares. This could not be construed to be a transfer as held by the Prescribed Authority.

Fore the reasons stated above, this writ petition is allowed. The impugned orders are hereby quashed. The matter is remanded back to the concerned authorities to determine the shares of the petitioners no. 2 & 3 and after such determination the authorities shall determine as to whether they hold the land in excess of the ceiling limit in accordance with law.

Order Date :- 27.4.2012

RKS/