Ashok Singh and Another vs State of U.P. and Others

Arun Tandon, J.—Proceeding Section 9 of the U.P. Imposition of Ceiling on Land Holdings Act, 1961 were initiated against the tenure holder culminating in an order dated 14.2.1986 passed by the Prescribed Authority declaring that the tenure holder Ashok Singh had 9-9-14 bighas of land as surplus and tenure holder Kushal Pal Singh had 10-4-0 bighas of land as surplus. Against the aforesaid order, two appeals were filed. One by Ashok Singh being Appeal No. 2/1985-86 and other by Kushal Pal Singh being Appeal No. 3/1985-86. Both the appeals have been dismissed under the impugned order of the Appellate Authority dated 15.1.1987. Hence this petition.

Facts in short giving rise to the present writ petition are as follows:

Proceedings by issuance of notification u/s 9 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 were initiated in respect of the area in question. At the relevant time father of the Petitioner was the recorded tenure holder namely Yash Pal Singh. Before notice u/s 10(2) could be issued to Yash Pal Singh he expired on 9.11.1980. In accordance with the Rule 19 sub-Clause 3 of the U.P. Imposition of Ceiling on Land Holdings Act, 1961 notice was issued to the son of Yash Pal Singh, who inherited the property from Yash Pal Singh. It may be stated that in view of Rule 19 Sub-clause 3, the ceiling area as applicable qua the deceased tenure holder as on 6.8.1973 had to be determined as in the hands of his legal heirs.

On behalf of the legal heirs practically two objections were raised to the notice issued.

That Yash Pal Singh executed a ''Will'' on 25.12.1970 in favour of his wife Smt. Santi Devi and the land covered by the ''Will'' could not be included in the holding of the sons.

The other contention raised on behalf of the Petitioners was that a partition suit was filed in the year 1977-78 being Partition Suit No. 134 of 1977-78 u/s 176 of U.P.Z.A & L.R. Act. The property recorded in the name of Yash Pal Singh was partitioned between his two sons, his wife and mother under orders of the Court passed in said suit. It was stated that the partition so affected resulted in each of the person became owner of the agricultural land in his own right. Therefore, clubbing of the land covered by the partition decree was legally not justified.

Lastly, it has been stated that the land which was self acquired has also been included for the purpose of determining the ceiling limits which is legally not permissible.

7.1 have heard counsel for the parties and have examined the records to the writ petition.

The issue with regard to the effect of ''Will'' executed by the tenure holder who expired on 9.11.1980 and the proceedings taken against the legal heirs of such a deceased tenure holder, who expired after issuance of notification u/s 9 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, but before service of notice u/s 10(2) of the Act, 1960 has been settled by the Hon''ble Supreme Court in the case of State of U.P. Vs. Civil Judge, Nainital and Others, against the Petitioner. It has been held in paragraph 5 as follows:

The principle enunciated in the above decision had been followed by this Court in Bhikoba Shankar Dhumal v. Mohan Lai Punchand Tathed. In that case it was held that the surplus land in the case of a person who held land in excess of the ceiling area on the appointed day had to be determined as on the appointed day even though such person might have died before the actual extent of surplus land was determined and notified. It was further held that the persons on whom his holding devolved on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the deceased would not come to an end on his death.

Counsel for the Petitioners placed reliance upon the judgment of the Hon''ble Single Judge in the case of Devendra Kumar v. Additional Commissioner (JUD.) Meerut Division and Ors. 2001 (92) R.D. 810.

This Court finds that the Hon''ble Single Judge has not noticed the judgment of the Hon''ble Supreme Court referred to above and, therefore, the said judgment can be of no help. The other contention raised on behalf of the Petitioners, namely the effect of partition decree dated 20.10.1978, may not detain the Court for long. u/s 5 Sub-section 7 explanation 1 to the U.P. Imposition of Ceiling on Land Holdings Act, 1961, it has been clarified that if any partition suit is filed after the relevant date and a decree has been passed then the partition decree has to be ignored and not be taken into account. Explanation 1 to Sub-section 7 of Section (5) is as follows:

[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 take, place on or before the said date.]

In view of the aforesaid statutory provision, the partition decree obtained by the Petitioner in Partition Suit No. 134/1977-78 decided on 20.12.1978 is squarely covered by the aforesaid explanation to Section 5 Sub-clause 7 and has to be ignored.

This Court finds that no plea qua self-acquired land of the Petitioners being wrongly clubbed for the purpose of determination of his ceiling limits was ever raised before the Prescribed Authority. There has been no such pleading before the Appellate Authority. Before this Court also in the present writ petition no such pleading is there. Issues which have not been raised before the authorities cannot be made a ground for the purpose of challenging the order passed by the statutory authorities.

In view of the aforesaid, this Court finds no good ground to interfere with the orders impugned.

Writ petition is dismissed.