State Of U.P. Through D.M. ... vs Ravi Kant Misra And Others
2023 Latest Caselaw 3608 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 
Case :- WRIT - C No. - 29476 of 1998
 
Petitioner :- State Of U.P. Through D.M. Varanasi
 
Respondent :- Ravi Kant Misra And Others
 
Counsel for Petitioner :- Sanjay Goswami
 
Counsel for Respondent :- C.S.C.,M.M. Sahai 
 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Ajay Singh, learned Standing Counsel for the State and Sri M.M. Sahai, learned counsel for the respondent no.1. No one has put in appearance on behalf of respondent no.2, even in the revised call.

2. This writ petition has been filed assailing the order passed by the Additional Commissioner, IInd, Varanasi Division, Varanasi dated 27.01.1993.

3. The facts, in brief, are that a notice under Section 10(2) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "the Act of 1960") was issued to the original tenure holder, Bachau Mishra, father of respondent no.1 on 03.07.1974. An objection was filed on 15.07.1974. The Prescribed Authority vide its order dated 27.12.1974 declared 4 acres land as surplus.

4. On 15.12.1976, Bachau Mishra moved an application that he has again received a notice and the judgment passed by the Prescribed Authority dated 27.12.1974 is accepted to him. The Prescribed Authority on 09.10.1977 kept intact the order order dated 27.12.1974 declaring surplus land.

5. One Laxmi Dutt Mishra challenged the order dated 09.10.1977 through a Ceiling Appeal before the District Judge, Varanasi. The Additional and Sessions Judge, IVth vide order dated 07.04.1979 accepted the appeal, and remanded back the matter to the Prescribed Authority. On 07.06.1980, the Prescribed Authority declared the land to be surplus.

6. A recall application was moved by one Girja Prasad Mishra on 19.06.1980, which was allowed by the Prescribed Authority on 20.06.1980, and the earlier order dated 07.06.1980 was set aside.

7. Sri Girja Prasad Mishra filed his objection on 08.11.1982 claiming interest in the land in question. He claimed that land situated in village Bheethi and Ram Nagar was the joint property of Bachau Mishra, Chandrawati and others, while land situated at Haripur Patti Majhhli, Chak No.44,103 shown to be the individual land of Bachau Mishra was wrong, as partition had taken place before the Consolidation Court. The Prescribed Authority on 31.01.1983 declared 14 Bhigha 3 Biswa and 10 Biswansi land as surplus.

8. Against the said order, Bachau Mishra filed an appeal which was allowed by the IInd Civil Judge, Varanasi on 28.09.1984 permitting the parties to lead evidence and to act in accordance with Section 12 (A) of the Act. During the pendency of the matter, Bachau Mishra died, and his son Ravi Kant Mishra, present respondent no.1, filed objection on 23.01.1990. The Prescribed Authority on 19.12.1991 again declared 14 Bhigha 3 Biswa and 10 Biswansi land as surplus.

9. Against the said order, an appeal was preferred being Appeal No.04 1991 before the Additional Commissioner (IInd), Varanasi Division, Varanasi, wherein the appellate Court found that during the consolidation proceedings, the Consolidation Officer on 03.06.1979 and Settlement Officer, Consolidation on 13.10.1987 had passed the order holding that half of the land in dispute comes into the share of Girja Prasad Mishra, while 1/4th of the land came into the share of Bachau Mishra, father of respondent no.1, and 1/8th portion of the land came into the share of Chandrawati and Lalit Kishor. The order passed by the Consolidation Authority became final.

10. In view of the said fact, the appeal filed by the respondent no.1 was allowed as no land of Bachau Mishra could be declared surplus as partition had taken place.

11. Learned Standing Counsel submitted that the Prescribed Authority had examined the fact that the Consolidation Authorities had passed the order on subsequent appointed date i.e. 24.01.1971, as they were liable to be ignored in view of provision contained under Section 5(7) of the Act. According to him, the Prescribed Authority had rightly declared the land of the father of respondent no.1 as surplus, as no partition had taken place prior to 24.01.1971.

12. Learned counsel appearing for respondent no.1 submitted that the language used in Section 5(7) of the Act is clear that in case of proceedings which are pending before the Authorities, the benefit has to be given to the tenure holder, and the land cannot be declared surplus. He further submitted that as the partition had taken place during the consolidation proceedings and recorded by the Consolidation Officer as well as Settlement Officer, Consolidation, the appellate Court had rightly allowed the appeal.

13. I have heard the respective parties and perused the material on record.

14. The sole question which arises for consideration is that whether in determining the ceiling area applicable to a tenure holder, any partition of land made after 24.01.1971 can be ignored and not taken into account in a partition proceedings pending on the said date.

15. Before adverting to decide this case, a cursory glance of provision of Section 5(7) of the Act is necessary for better appreciation of the case, which is extracted hereasunder:-

"(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 no entitled to, or a larger share than he was entitled to, may ignore such partition.

[Explanation I- If a suit is instituted after the said date for declaration that a partition of land has taken place on or before the said date, then such declaration shall be ignored and not be taken into account, and it shall be deemed that no partition has taken place on or before the said date.]

Explanation II- The burden of proving that a case falls within the first proviso shall rest with the party claiming its benefit."

16. From the reading of the first proviso of Section 5(7) of the Act, it is clear that sub-Section 7 shall not apply to a partition of holding made in a suit, or proceeding pending on the said date. The relevant cut off date in determining the ceiling area applicable to a tenure holder is 24th January, 1971.

17. It is not in dispute that on the said cut off date, the consolidation proceedings were under way in the said village, and by orders of the Consolidation Officer as well as Settlement Officer, Consolidation, the partition between the tenure holder became final, and was never challenged before any higher forum.

18. Bachau Mishra, father of respondent no.1 got 1/4th share in the holding during partition. The finding recorded by the Prescribed Authority holding that partition took place subsequent to the cut off date of 24.01.1971 does not hold ground as the proviso to sub-Section 7 of Section 5 of the Act clearly provides that the partition of a holding made in a suit or proceeding, which is pending on the said cut off date, cannot be ignored and not taken into account.

19. The Appellate Court rightly repelled the finding recorded by the Prescribed Authority and held that no land of the tenure holder, Bachau Mishra can be declared surplus as he was holding the land within the ceiling limit on the cut off date as the partition had taken place between the parties, tenure holders and the Prescribed Authority had not taken into cognizance the partition decree passed during the consolidation proceedings.

20. The word "suit or proceeding" in regard to the partition pending on the cut off date i.e. 24.01.1971 means any suit pending before the Civil Court or Revenue Court, the word 'proceeding' encompasses within itself the consolidation proceedings undergoing in an area once, it is not in dispute that the consolidation proceedings were on in the said village and partition decree was passed during the said proceedings, the partition decree passed by the Consolidation Court cannot be ignored and not taken into account in determining the ceiling area applicable to a tenure holder.

21. Considering the facts and circumstance of the case and the clear provisions of Section 5(7) of the Act, I find that there is no infirmity in the order passed by the Appellate Authority which needs any interference by this Court exercising extraordinary jurisdiction under Article 226 of the Constitution of India.

22. Writ petition fails and is, hereby, dismissed.

Order Date :- 6.2.2023

SK Goswami