State Of U.P. vs The Addl.Commissioner & Others
2012 Latest Caselaw 3137 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 38
 
Case :- WRIT - C No. - 3468 of 1996
 
Petitioner :- State Of U.P.
 
Respondent :- The Addl.Commissioner & Others
 
Petitioner Counsel :- Standing Counsel
 
Respondent Counsel :- C.S.C.,Ajit Kumar
 
Hon'ble Amreshwar Pratap Sahi,J.

This Writ Petition has been filed by the State of U.P. Challenging the order dated 26th July, 1995 passed by the Respondent No.1 in two appeals arising out of a common order of the prescribed authority in proceedings under  the U.P. Imposition of Ceiling on Land Holdings Act 1960. The prescribed authority had partly allowed the objections filed by Respondent No.2-tenure holder and partly rejected the same. Consequently, the Respondent No.2 and the petitioner-State both filed appeals. Both the appeals have been decided simultaneously. The appeal filed by the petitioner State has been dismissed but the appeal filed by the Respondent No.2-tenure holder has been allowed. The proceedings under the Ceiling Act has been dropped and the appellate authority has held that there is no land surplus in the hands of the Respondent No.2. The State aggrieved has filed this petition.

The back ground of the case in which this dispute arose is that one Atma Ram was the tenure holder of land in village Sarsohandi and Sahsawan. This land according to the Respondent No.2 was exclusively in the name of Atma Ram who was his father and who was living separately the area whereof was much less than the ceiling limit prescribed under the 1960 Act.

Consequently, Atma Ram did not have any holding in excess of the ceiling area to be determined and therefore no notices were issued to him. Since he had land less than the ceiling limit he was entitled to dispose of the same being the tenure holder thereof and during his life time he executed a registered Will on 23.2.1982. He died on 22.9.2001 and on the strength of the said Will the beneficiaries thereunder applied for mutation which was carried out on 7.12.1991. Thus Atma Ram had bonafidely made this arrangement during his life time and there was nothing to indicate that this transaction was even remotely carried out with a view to avoid ceiling proceedings. As a matter of fact Atma Ram was never put to any such notice or subjected to any such proceedings.

Long after the death of Atma Ram the respondent No.2 who is his son was issued a notice under Section 10 (2) of the 1960 Act on 30.6.1994 clubbing his land with that of Atma Ram to calculate the maximum area under the Ceiling Act that may be permissible for the Respondent No.2 to retain. The Respondent No.2 filed his objection on 5th September, 1994. The beneficiaries under the Will who were the grand sons of late Atma Ram also filed their separate objections contending that Atma Ram had no land in excess of ceiling area and, therefore, he executed the Will in their favour which they inherited under Section 169 of the U.P. Zamindari and Land Reforms Act, 1950. The Will was proved by adducing the witnesses in support thereof and it was also brought on record that they were in possession and their names had also been mutated in the revenue records.

The Respondent No.2-Brahm Dutt in his objection clearly stated that he had no land in excess of ceiling area inasmuch as his land was subjected to consolidation operations as a result whereof certain deductions were admissible and some of the land was also grove. It was further contended by the Respondent NO.2 that his holding was separate and held by him independently and he was not living with his father who lived in a different village. There was nothing to indicate that he had acquired any fresh land or had inherited any land from his father. In such circumstances, the notice issued invoking the provisions of Section 29 and Section 30 of 1960 Act was erroneous. He further alleged that Atma Ram at no point of time ever held the land which was separately owned by the Respondent No.2 nor it was the part of the holding of Atma Ram so as to allow clubbing of the same for initiating proceedings. He, therefore, urged that the notice should be discharged.

The prescribed authority proceeded to examine the issue and he further granted an exemption of two hectares each as required under the provisions of the Act to three major sons of the respondent No.2. The prescribed authority also granted benefit of reduction of land due to consolidation operations and the existence of part of the land as grove.

The prescribed authority, however, rejected the contention of the respondent No.2 in relation to the land covered under the Will executed by  Atma Ram on the ground that the Will appears to have been executed with a view to avoid the ceiling proceedings. There is only a one line conclusion in the order of the prescribed authority with no reason to support the same. The prescribed authority, therefore, under the order dated 31.3.1995 declared an area of 7 Bigha 12 Biswa and 3 Biswansi as surplus in the hands of the Respondent NO.2.

The State filed an appeal against the findings of exemptions granted by the prescribed authority whereas the Respondent No.2 filed an appeal against the rejection of the claim in relation to the holding covered under the aforesaid Will. Both the appeals were simultaneously decided and the appeal filed by the Respondent No.2 was allowed and that filed by the State was dismissed. Consequently, the State has come up before this Court.

Learned Standing Counsel contends that the appellate authority has committed a manifest error by accepting the Will inasmuch as, such a Will ought to have been ignored in terms of Section 5 (6) of the 1960 Act, as it was the Will executed long after the appointed date i.e. 24th January, 1971. It is for this reason that the prescribed authority had discarded the Will as it had been executed for the purposes of avoiding the Ceiling Law. Learned Standing Counsel, therefore, contends that the appellate authority on a  misreading of the Provisions of Act has arrived at a wrong conclusion.

On the other issues learned Standing Counsel contends that the findings of the prescribed authority have been affirmed and during the course of argument it does not appear that there is any serious contest on the other issues.

Sri Saxena on the other hand who appears for the respondent No.2, placing reliance on the judgment in the case of Devendra Kumar Vs. Additional Commissioner reported in 2001 (45) ALR Page 572 contends that since the land covered under the Will was that of Atma Ram, who had no land in excess of the ceiling area, he had every right to dispose of the same by way of a Will to his Grand Sons. The Respondent NO.2 being his son was holding a separate tenancy which could not be treated to have been ostensibly held by Atma Ram. These holdings were separate and were independent without over-lapping each other. He, therefore, contends that the ratio of the judgment in the case of Devendra Kumar (Supra) squarely applies as the facts are almost identical except the date of the Will which is 1975 in the case of Devendra Kumar (Supra).It is also stated at the bar that the judgment in the case of Devendra Kumar (Supra) has been upheld by the Apex Court as the Special Leave to Appeal (Civil) No.:6000/2002 filed by the State has been dismissed on 10.2.2003.

Having heard learned counsel for the parties and having perused the judgment as relied upon it is correct that Atma Ram had the right to dispose of his property by way of a Will. Atma Ram never knew nor can it be presumed that his property would be subjected to ceiling proceedings when admittedly the area held by him was less than the maximum limits. The Will, therefore, was executed bonafidely and not with a motivated intention to avoid the ceiling proceedings. Sri Atma Ram was never confronted with this situation even though he died in 1991 twenty years after the appointed date. The State never chose to put Atma Ram to notice or take any action against him. There is no evidence that Atma Ram in any way could have held the land of the Respondent No.2 ostensibly so as to club them together. On the contrary there was no other evidence against the respondent no.2 to conclude that he was holding his father's land ostensibly. It is to be noted that the Will was execyted by Atma Ram and not by the Respondent No.2. The prescribed authority, therefore, committed a manifest error by treating the said instrument to be a document of avoidance and it was a  conclusion based on mere surmises and conjunctures. The instrument, therefore, was neither executed by the respondent No.2 nor was it for his deferred benefit. The transaction under the writ nowher related to the holding by the respondent No.2. Accordingly the provisions of Section 5 (6) of 1960 Act are not at all attracted against the said respondent. The appellate authority, therefore, was fully justified in reversing the same and as contended by the learned counsel for the respondent No.2 the judgment in the case of Devendra Kumar applies with full force to the stand taken by the  respondent. The argument on behalf of the State by the learned Standing Counsel, therefore, has to be rejected and the writ petition deserves to be dismissed.

The writ petition is accordingly dismissed.

Order Date :- 23.7.2012

Manish