Allahabad High Court
Ajay Pratap Singh vs The Commissioner Gorakhpur ... on 5 January, 2023
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- WRIT - C No. - 12254 of 1995
Petitioner :- Ajay Pratap Singh
Respondent :- The Commissioner Gorakhpur Division And Another
Counsel for Petitioner :- T.N.Tiwari,Khursheed Alam,Ram Mohan,Satendra Kumar Singh,Suresh Chandra Varma
Counsel for Respondent :- C.S.C.,Adya Prasad Tewari
Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri S.C. Varma, learned counsel for the petitioner, Sri I.B. Singh, learned Standing Counsel for respondent nos. 1 and 2 and Sri A.P. Tewari, learned counsel appearing for respondent nos. 3, 4 and 5.
This writ petition has been filed assailing the order of prescribed authority dated 13.03.1991 passed in Case No. 19 under Section 10(2) of the U.P. Imposition of Ceiling on Lands Holdings Act, 1960 (U.P. Act No. 1 of 1961) (hereinafter called as "Act of 1961") and order dated 29.12.1994 passed by the appellate authority.
Facts in nutshell, are that petitioner is holding land to the tune of 5.60 acres. Initially, in the year 1972, a notice under Section 10(2) of the Act of 1961 was issued which was registered as Case No. 5 of 1994. Another notice was issued which was under Section 10(2) and case was registered as Case No. 46 of 1972. In both the cases, the notices issued by the authorities were withdrawn and judgement was passed on 30.01.1975 and 31.01.1976 holding that the petitioner was not holding land in excess of the prescribed limit. After more than 10 years, the district authorities again issued notice under Section 10(2) of the Act of 1961 holding that area of irrigated land of the petitioner has increased. A reply was filed on 21.12.1989 by the petitioner wherein it was categorically stated that land held by the petitioner was only to the tune of 5.60 acres and the area of the irrigated land has not increased. The prescribed authority vide judgment dated 13.03.1991 held that the irrigated area of petitioner has increased and a land to the tune of 19.71/1/2 acres was held to be surplus. Against this judgment, an appeal no. 26 of 1991 was preferred before the Commissioner, Gorakhpur Division, Gorakhpur which was dismissed vide judgment dated 29.12.1994. Hence, the present writ petition.
Sri Varma, learned counsel appearing for petitioner submitted that area of the land remained unchanged and the notice issued in the year 1987 was not maintainable as the matter relating to declaration of surplus land was already settled by the earlier court in the year 1975-76. He has further relied upon the provisions of Section 29 and 30 of the Act of 1961 wherein it has been provided that the subsequent to the amendment made in the year 1971 declaration of surplus land can only be made where the tenure holder has succeeded to land or has purchased the land in excess of the limit prescribed under the Act. He has also relied upon a decision of this Court in case of Vyas Prasad vs. Additional Commissioner, Gorakhpur and others, 2017 8 ADJ 217.
Sri Varma further contended that there was no material on record to substantiate the claim of the prescribed authority while declaring the land of the petitioner surplus as the burden was upon the State to prove that the petitioner has acquired surplus land or has changed the nature of land from unirrigated to irrigated land. He further contended that neither the provisions of Section 29(b) or Section 4(A) of the Act of 1961 is attracted in the present case.
Per contra, Sri I.B. Singh, learned Standing Counsel submitted that prescribed authority has recorded a finding to the effect that the total irrigated land was 41.89/1/2 acres and in form 3(a), 3(b) and 3(c), the said entry is there. He further contended that in earlier round of litigation in the form 3(a), 3(b) and 3(c), the area of irrigated land has been mentioned as 22.09 acres. He then contended that there is a surplus land to the extent of 19 acres and odd and the prescribed authority has rightly declared the said land as surplus.
Sri Tewari, learned counsel appearing for the bona fide purchasers of the land in dispute has endorsed the argument made by Sri Varma. Sri Tewari further contends that transfer made by the petitioner to his client in the year 1999 is saved by the provisions of Section 5(6)(b) of the Act.
I have heard learned counsel for the respective parties and perused the material on record.
It is not in dispute that in the earlier round of proceedings for declaring the land surplus, notice issued against the petitioner was withdrawn by judgment and order dated 30.01.1975 and 31.01.1976 holding that the petitioner was not holding the land in surplus. The fresh proceeding launched in the year 1987 was objected by the petitioner and in the objections, ground was taken that the total irrigated land with the petitioner is only to the extent of 5.60 acres and no fresh land has been purchased. It was also stated in the objections that petitioner is having 1/8 share in the land over which the proceeding has been initiated and the other plot numbers which has been declared surplus does not belong to the petitioner. The prescribed authority has not recorded any finding as to share of the petitioner and solely on the basis of the land mentioned in Form 3(a), 3(b) and 3(c) has proceeded to declare the land of the petitioner as surplus. The prescribed authority has not recorded any finding as to Section 29(a) or 29(b) to bring on record any additional land purchased by the petitioner or the unirrigated land having been converted into irrigated land. The prescribed authority has accepted the fact that earlier judgment was rendered in the year 1975 and 1976 wherein the proceedings were dropped against the petitioner for declaring the land surplus.
I find that appellate court has not gone through and taken note of the prayer made in the appeal and recorded any finding and solely relying upon the judgment of the prescribed authority has dismissed the appeal. The argument raised on behalf of the State to the extent that there is a difference in From 3(a), 3(b) and 3(c) which was brought on record subsequently in the year 1987 differs from the area of land mentioned in the earlier round of proceedings does not demonstrate the fact that any additional land was purchased by the petitioner or succeeded by him pursuant to provisions of Section 29 of the Act or there was any increase in the area of irrigated land. It is further to be noted that when the State had issued second notice in the year 1987, it should have come up with a specific case as once the proceeding for declaring the land surplus was dismissed and the notice under Section 10(2) was withdrawn in the year 1975-76.
The land having been remained the same, the proceedings for declaring the land surplus cannot be sustained and the judgment and orders passed by both the prescribed authority as well as the appellate authority are hereby set aside. The notice issued under Section 10(2) stands discharged.
Writ petition stands allowed.
Order Date :- 5.1.2023
V.S.Singh
