Smt. Asha Devi vs Addl. Commissioner Varanasi And Others
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Allahabad High Court

Smt. Asha Devi vs Addl. Commissioner Varanasi And Others on 31 May, 2024

Author: Rohit Ranjan Agarwal

Bench: Rohit Ranjan Agarwal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Neutral Citation No. 2024:AHC:100178
 
Reserved on : 16.05.2024
 
Delivered on : 31.05.2024
 
Court No. - 51
 

 
Case :- WRIT - C No. - 33948 of 2001
 

 
Petitioner :- Smt. Asha Devi
 
Respondent :- Addl. Commissioner Varanasi And Others
 
Counsel for Petitioner :- H.O.K.Srivastava,Man Mohan Singh,Sunil Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rohit Ranjan Agarwal,J.
 

1. Through this writ petition filed under Article 226 of Constitution of India, a challenge has been laid to the judgment and order dated 13.06.2001 passed by Additional Commissioner (Judicial-Ist), Varanasi Division, Varanasi and judgment dated 18.12.1999 passed by Prescribed Authority {under U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter called as 'Act of 1960')}/Additional Collector (Revenue and Finance), Ghazipur.

2. Facts, in nutshell, are that Smt. Asha Devi, the petitioner is daughter of one Late Sonkalli. A notice under Section 10(2) of the Act was issued to Sonkalli in the year 1974 by Prescribed Authority for declaring her land surplus. By order dated 17.09.1974, the Prescribed Authority declared certain land of Sonkalli as surplus. The order was put to challenge in appeal under Section 13 of the Act before the District Judge, Ghazipur, being Misc. Ceiling Appeal No. 147 of 1974. On 16.05.1975, the appeal was allowed and the matter was remitted back to Prescribed Authority for deciding afresh. Post remand, the proceedings were dropped. A fresh notice was issued under Section 10(2) of the Act on 24.04.1989 against Smt. Sonkalli alleging that she had a surplus land of 24 bigha, 3 biswa, 11 dhoor as surplus out of total land measuring 53 bigha, 5 biswa, 4 biswansi. The said notice was numbered as Case No. 9/120 (State vs. Sonkalli Devi). Objections were filed by tenure-holder/Sonkalli on 05.06.1989 alleging that it was against the provisions of Section 31(3) of U.P. Act No. 20 of 1976, and was not maintainable as after 16.05.1975 neither any unirrigated land being irrigated from State irrigation nor she had acquired any land either through decree or by a court or as a result of succession.

3. It was further averred that process of redetermination of surplus land is not in accordance with law, as she has no irrigated land, as well as in the notice issued in the year 1974, the proceedings were dropped after the appeal was allowed and the matter was remitted to Prescribed Authority. The second notice under Section 10(2) after 13 years was not maintainable. The U.P. Act No. 20 of 1976 provides for a period of 2 years for redetermination.

4. During the pendency of objections, Sonkalli died in the year 1995 and she was substituted by the petitioner. The Prescribed Authority on 18.12.1999 declared 18 bigha, 13 biswa and 3 dhoor land surplus. Against the said order, an appeal was preferred which has been decided by order dated 13.06.2001 and the order of Prescribed Authority has been amended to the extent that 14 bigha, 3 biswa land has been declared surplus. Hence, this writ petition.

5. Sri Man Mohan Singh, learned counsel appearing for the petitioner submitted that neither in the notice dated 24.04.1989, nor in the order dated 18.12.1999 and 13.06.2001, there is any recital about redetermination of ceiling proceedings under Section 29 of the Act. Neither the notice nor the orders passed by the authorities record any finding to the effect that any unirrigated land has become irrigated from the State irrigation or that she has acquired any land either through decree by court or as a result of succession after 16.05.1975. Thus, after 12 years, redetermination of ceiling area for the same land against Sonkalli by second notice cannot be permitted and orders impugned are contrary to provisions of Section 31(3) of U.P. Act No. 20 of 1976. According to him, the matter cannot be reopened under Section 29 without the conditions mentioned in sub-section (a) and (b) thereof being satisfied. He further submitted that both the authorities have not recorded any finding that on the land which have been brought under ceiling proceedings, two crops were grown in any agricultural year.

6. Reliance has been placed upon decision of co-ordinate Bench of this Court in case of Indra Pal Mishra @ Raju vs. Special Judge (E.C. Act), Banda, 2005 (98) RD 699; Nahar Singh vs. Sub Divisional Magistrate, Meerut, 1983 ALJ 391; Rajat Lal and another vs. Commissioner, Saharanpur Division, 2011 (5) ADJ 434 and Rakesh Kumar and others vs. State of U.P. and others, 2018 (Suppl.) ADJ 512.

7. Sri Kunal Ravi Singh, learned Chief Standing Counsel submitted that notice issued under Section 10(2) in the year 1989 has to be read along with Section 4-A and Section 29/30 of the Act. According to him, it was redetermination under Section 29 read with Section 4-A and relevant khasra to be seen was not for 1378-1380 fasli, but the relevant khasra was for 1395, 1396 and 1397 fasli. According to him, from perusal of khasra of 1395 fasli for Village-Badauli, it can be seen that plot of the tenure-holder was irrigated from the State tube-well, therefore, as per definition of Section 4-A, the land could be treated as irrigated land. Moreover, khasra for 1396 fasli demonstrates that two crops have been sown in the relevant years and, therefore, satisfied conditions under Section 4-A. According to him, the notice was with regard to change in irrigated area due to operation of State tube-well, which was established in the year 1976 as per statement of concerned Lekhpal. It is to be presumed that after 1976, the State irrigation network became available and land in dispute became irrigated, thus, bringing it under the purview of Section 29(b) of the Act.

8. I have heard respective counsel for the parties and perused the material on record.

9. The question for consideration before this Court is as to whether the notice issued by Prescribed Authority under Section 10(2) in the year 1989 is a second notice barred by transitory provisions of Section 31(3) of the U.P. Act No. 20 of 1976 or it is to be treated as a notice for redetermination to be read along with Section 4-A and Section 29(b).

10. Before adverting to decide the issue raised in the writ petition, a cursory glance of some of the relevant provisions of the Act of 1960 is relevant for better determination of the case.

11. Section 4-A provides for determination of irrigated land. The Prescribed Authority is obliged to examine the khasras for the years 1378 fasli, 1379 fasli and 1380 fasli, the latest village map and such other records as it may consider necessary, and may also make local inspection and thereupon if it is satisfied that an irrigation facility was available for any land in respect of any crop in any of the aforesaid years by any canal, any lift irrigation canal or any Sate tube-well or a private irrigation work and that at least two crops were grown in such land in aforesaid years or irrigation facility became available to land by State Irrigation Work coming into operation subsequent to enforcement of the Amendment of 1972 and at least two crops were grown in such land in any agricultural year, or that any land is situated within the effective command area of a lift irrigation canal or a State tube-well or a private irrigation work then it shall determine such land to be irrigated land for the purpose of the Act.

12. Section 9 originally as it stood, the Prescribed Authority was required by general notice, published in Official Gazette to call upon every tenure-holder holding land in excess of ceiling area to submit within 30 days statement in respect of his holding giving particulars as prescribed. Section 9 was amended in 1973 by U.P. Act No. 18 of 1973, thereafter, Section 9 was renumbered as sub-section (1), (2) and (3). By the U.P. Act No. 20 of 1976, a proviso to sub-section (2) of Section 9 was added, and also Section 2-A was inserted in Section 9.

13. Proviso to sub-section (2) of Section 9 provided that any time after October 10, 1975, the Prescribed Authority may, by notice, call upon any tenure-holder holding land in excess of the ceiling area applicable to him on the said date, to submit within 30 days from the date of such notice, a statement referred to in sub-section (1) or any information pertaining thereto.

14. Sub-section 2-A provided that every tenure-holder holding land in excess of the ceiling area on January 24, 1971, or at any time thereafter who has not submitted the statement referred to in sub-section (2) and in respect of whom no proceeding under the Act was pending on October 10, 1975 shall, within thirty days from the said date furnish to the Prescribed Authority a statement containing particulars of land - (a) held by him and members of his family on January 24, 1971; (b) acquired or disposed of by him or by members of his family between January 24, 1971 and October 10, 1975.

15. Section 13-A was inserted by U.P. Act No. 18 of 1973 which provided for redetermination of surplus land in certain cases. The said provision initially provided that Prescribed Authority may, at any time, within a period of two years from the date of notification rectify any mistake apparent on the face of the record. However, sub-section (1) of Section 13-A was further amended by U.P. Act No. 56 of 1976 and sub-section (4) of Section 14 was to be read in sub-section (1) of Section 13-A.

16. Section 29 of the Act provides for subsequent declaration of further land as surplus land after the date of enforcement of Uttar Pradesh Imposition of Ceiling on Land Holding (Amendment Act, 1972). The two conditions which are envisaged as sub-section (a) and (b) of Section 29 are that in case one land has come to be held by a tenure-holder under a decree or order of any Court, or as a result of succession or transfer, or by prescription in consequence of adverse possession, and such land together with the land already held by him exceeds the ceiling area applicable to him, the ceiling area shall be liable to be redetermined. Similarly, sub-section (b) envisages a situation where any unirrigated land becomes irrigated land as a result of irrigation from a State irrigation work or any grove-land loses its character as grove-land or any land exempted under the Act ceases to fall under any of the categories exempted, the ceiling area shall be redetermined.

17. Thus, from the reading of above statutory provisions, it is clear that after the amendment was made in the Act of 1960 by U.P. Act No. 18 of 1973 and U.P. Act No. 20 of 1976, Section 9 went under sea change. Similarly, section 13-A was inserted for redetermination of surplus land in certain cases. Section 29 applies for redetermination of ceiling area in case either of the two conditions mentioned in sub-section (a) and (b) are satisfied. Sub-section (a) postulates a condition that when a tenure-holder gets additional land under a decree or order of any Court, or as a result of succession or transfer and such land together with land held by him exceeds ceiling area, the redetermination can take place. Similarly, sub-section (b) provides that in case any unirrigated land becomes irrigated land as a result of irrigation from State irrigation work or any grove-land loses its character as grove-land or any land exempted under the Act ceases to fall under any of the categories exempted, the ceiling area can be redetermined.

18. In the instant case, the question which needs adjudication is that whether the notice, which was issued in the year 1974 to the mother of the petitioner and was dropped after the appeal was allowed on 16.05.1975 and the matter stood remitted back, could again be pressed into by ceiling authorities after a gap of 13 years.

19. It was after 16.05.1975 that certain provisions of original Act were amended by U.P. Act No. 20 of 1976, which came into force on 10th October, 1975. Section 31 of the amending Act of 1976 was a transitory provision and sub-section (3) of Section 31 provides that where an order determining surplus land in relation to a tenure-holder has been made under the principal Act before the tenth day of October, 1975, the Prescribed Authority may, at any time within a period of two years from the said date, redetermine the surplus land in accordance with principal Act as amended by this Act, whether or not any appeal was filed against such order and notwithstanding any appeal (whether pending or decided) against the original order of determination of surplus land.

20. Thus, it is clear that redetermination or determination as to surplus land after 10.10.1975 was to be done within a period of two years by ceiling authorities where an order determining surplus land in regard to a tenure-holder had already been made under principal Act.

21. The transitory provision restricted the redetermination proceedings after two years from the cut-off date of 10th October, 1975, in all those cases where the proceedings had already been undertaken by Prescribed Authority for determining the land surplus.

22. In the instant case, notice under Section 10(2) issued in the year 1974 was set aside by appellate Court on 16.05.1975 and the matter having been remitted back and the proceedings having been dropped, ceiling authorities could have proceeded to redetermine the surplus land, within two years i.e. by 10th October, 1977.

23. On the contrary, fresh notice was issued on 24.04.1989 under Section 10(2) alleging 24 bigha, 3 biswa, 11 dhoor land as surplus. Specific ground was taken by Sonkalli, mother of petitioner in her objections before Prescribed Authority that the proceedings were barred in view of Section 31(3) of amending Act of 1976. The Prescribed Authority while passing the order dated 18.12.1999 had only reduced the area of surplus land shown in the notice and declared 18 bigha, 13 biswa and 3 dhoor as surplus. No finding was recorded on the objections moved by mother of petitioner. Similarly, appellate Authority also fell into the same trap and reduced the area of surplus land to 14 bigha 2 biswa without recording as to how the redetermination of the surplus land has taken place, once the earlier proceedings were dropped in the year 1975 and specific objections having been taken in view of Section 31(3) of amending Act of 1976 as well as the provisions of Section 4-A read with Section 29 being not applicable in the instant case.

24. The argument raised from State side cannot be accepted that it was a redetermination of the ceiling area as the land had become irrigated in 1395, 1396 and 1397 fasli, as neither the notice nor the order of both the authorities demonstrate the said fact.

25. Provisions of Section 4-A are clear that while determining the irrigated land, the Prescribed Authority has to examine the khasras for 1378 fasli, 1379 fasli and 1380 fasli. Had the State provided irrigation and the unirrigated land had become irrigated in 1395, 1396 and 1397 fasli, the ceiling authorities should have come out with specific case and the objections raised by tenure-holder should have been dealt with before declaring the land surplus.

26. In Indra Pal Mishra (supra), the co-ordinate Bench of this Court had taken a view that in absence of any finding with regard to ingredients and circumstances enumerated in Section 29, the order of ceiling authorities cannot stand.

27. The Apex Court in case of State of Uttar Pradesh vs. Mithilesh Kumari, Nahar Singh (Dead, by Lrs.) and others, 1987 SCC (Suppl.) 21 held that period of two years prescribed under Section 31(3) is a limitation period for concluding the redetermination proceedings.

28. In Arvind Kumar vs. State of U.P., AIR 2016 SC 3651, the Apex Court relying upon upon the transitory provisions of Section 31(3) held that redetermination as per 1976 amending Act has to be done within two years. There is no discretion with the authorities to redetermine beyond the period prescribed thereunder.

29. Considering the facts and circumstances of this case, I find that neither the notice issued in the year 1989 nor the orders impugned disclose that any redetermination proceedings were initiated by the authorities exercising power under Section 29 read with Section 4-A, nor the authorities have recorded any finding as to how the action of the ceiling authorities are justified after the amending Act of 1976, once the earlier notice was dropped and the proceedings came to an end and redetermination was never done within two years as prescribed under Section 31(3), the orders impugned cannot be sustained and are liable to be set aside.

30. In view of said fact, both the orders dated 13.06.2001 and 18.12.1999 along with notice dated 24.04.1989 are hereby quashed.

31. Writ petition stands allowed.

Order Date :- 31.5.2024

V.S.Singh