Birendra Kumar Saxena and Another vs State of U.P. and Others

K.P. Singh, J.—In this writ petition the ceiling authorities have declared 7.09 sq. metres as surplus land in excess of the ceiling limit held by Petitioner No. 1. Aggrieved by the judgments of the Ceiling Authorities the Petitioners have approached this Court under Article 226 of the Constitution.

The main contention of the learned Counsel for the Petitioners before me is that the house in question was purchased by Petitioner No. 1 with the fund provided by his father. Therefore, the house In question was the property of a Hindu Undivided Family consisting of his wife, two daughters and a son named, Ravindra Saxena, who is Petitioner No. 2 in this writ petition. According to the learned Counsel for the Petitioners, the ceiling authorities have patently erred in treating the disputed house as the property of Petitioner No. 1 alone and erred in law in not holding the same as the property of a Hindu Undivided Family. It has also been emphasised that the evidence on record has been misappreciated and misunderstood by the ceiling authorities in calculating the surplus area held by the Petitioners.

The second contention raised on behalf of the Petitioners is to the effect that the house in question has servant quarters and the ceiling authorities have patently erred in not excluding the area appurtenant to the servant quarters while determining the surplus area held by the Petitioners.

The learned Counsel for the opposite parties has tried to support the impugned judgments. According to him, the ceiling authorities have taken the view on the materials on record which cannot be termed as arbitrary or unreasonable. Therefore, the impugned judgments need not be quashed.

After considering the contentions raised on behalf of the parties, I think that the Appellate Authority has not approached the problem from correct angle with the result it has erred in confirming the judgment of the Competent Authority.

As regards the first contention, the Appellate Authority has observed as below:

...So far as this contention goes, it may be noticed that the Appellant has filed the attested copy of the sale-deed where under he purchased the land and building in question. In this sale-deed it has been clearly mentioned that the Appellant acquired the said property as absolute owner and not in his capacity as Karta of the Hindu Undivided Family. There is also no iota of evidence on record to show that the said acquisition/purchase was made by the Appellant from the funds of the Hindu Undivided Family. The Appellant''s learned Counsel placed reliance on the assessment made by the Income Tax Authority and contended that the property was shown as that of Hindu Undivided Family. A perusal of the assessment order indicates that the Appellant had filed a return before the Income Tax Authority as an individual and not on behalf of the Hindu Undivided Family. Hence nothing of particular importance turns upon the contention advanced by the learned Counsel for the Appellant on the first count. In the premises, the finding of the Competent Authority on this score is liable to be upheld and it is found that the land and building is held by the Appellant in his individual capacity.

A perusal of Annexure ''8'' on the record indicates that the Petitioner No. 1 had shown the house in dispute as the property held by the Hindu Undivided Family. No doubt, Petitioner No. 1 had submitted the return in individual capacity but while giving details of the property, it has been indicated that the house property was a Hindu Undivided Family property. Therefore, a relevant question arises whether the house in dispute is Hindu Undivided Family property or it is an individual property of Petitioner No. 1. In the impugned judgment of the Appellate Authority, it has been observed that there is no iota of evidence on record to show that the said acquisition/purchase was made by the Appellant from the fund of Hindu Undivided Family. The relevant allegations have been made by the Petitioners in paragraphs 26 to 31 of the writ petition,which have been vaguely controverted in the counter affidavit. The counter affidavit does not specifically deny the allegations that the sum of Rs. 28,000/- paid by late Sri. M.K. Saxena, father of Petitioner No. 1, I think that the Appellate Authority has not approached the problem from correct angle. It has misread annexure ''8'' and the sale-deed in favour of the Petitioners. The counter affidavit filed in the writ petition does not specifically deny the averments made by the Petitioners, that a sum of Rs. 28,000/- was paid by the father of petitioner No. 1 when the house in dispute was purchased. In paragraph 35 of the writ petition, it has been stated that the Petitioner has filed an affidavit before the learned District Judge and that affidavit was not controverted, yet the District Judge has arrived at the conclusion that the disputed house was the property of Petitioner No. 1. The aforesaid paragraph 35 of the writ petition has been controverted by the opposite parties through paragraph 25 of the counter affidavit and it has been stated that the Ceiling Authorities have taken into account the affidavit filed by the Petitioner. The perusal of the impugned judgments does not justify the stand taken in the counter affidavit to the effect that the appellate authority has considered the affidavit. In my opinion, non consideration of the affidavit filed on behalf of the Petitioners before the Appellate Authority vitiates the finding recorded by the Appellate Authority to the effect that the house in question was the individual property of Petitioner No. 1. Since the Appellate Authority has not appreciated Annexure ''8'' attached to the writ petition, the sale deed with regard to the house in question in the name of Petitioner No. 1 as well as the affidavit filed by the Petitioner No. 1 before the Appellate Authority, I think the finding recorded by the Appellate Authority to the effect that the land and the building in question were held by Petitioner No. 1 in his individual capacity stands vitiated in law and deserve to be re-examined by the Appellate Authority after taking into consideration that Petitioner No. 1 treated the disputed property as a Hindu Undivided Family property in the year 1964 when the Ceiling Act has come into existence in the year 1976. The affidavit filed on behalf of the Petitioners needs consideration by the Appellate Authority in the facts and circumstances mentioned above. The consideration of the sale-deed shown to have been paid through a cheque of the Petitioner''s father needs also appraisal by the court of facts. In my opinion, the findings recorded by the Appellate Authority in this regard suffer from patent error of law.

It is necessary to mention that the affidavits filed by the Petitioner before the District Judge were pieces of evidence worthy of consideration by the Appellate Authority in view of the rulings reported in Aran Kumar v. Distt. Judge, Saharanpur 1985 AWC 287, Smt. Maya Devi v. VIII Addl. Distt. Judge, Kanpur 1981 RCC 96, M/s. Kunwar Ayurvedic Pharmacy Pvt. Ltd. v. VIII Addl. Distt. Judge, Kanpur 1981 RCC 350. It is also useful to refer the observations made in Kanhaiya Lai S. Dedlani v. Meghraj Ramkaranji AIR 1954 Nag 260 head note B and Shamsunder Rajkumar Vs. Bharat Oil Mills, , wherein the aforesaid Nagpur case has been referred and followed.

As regards the second contention raised on behalf of the Petitioners, it is proper to quote the findings recorded by the Appellate Authority in the following terms:

...Likewise, a perusal of paper No. 8 of the record of the trial court, which is a letter from the Appell ant himself would show that the copy of the sanctioned plan of the existing building filed by him did not include servant''s quarters. In the premises, it is the Appellant''s own case that the sanctioned plan of the construction did not include the servant''s quarters and accordingly it has to be found that the same were made unauthorisediy. The mere fact that tax has been assessed on the building including the servant''s quarters and garage would not render the servant''s quarters and garage as authorised constructions. It is common knowledge that tax is also imposed and collected on unauthorised constructions. Therefore, the Competent Authority cannot be said to have committed an illegality in not giving any benefit to the Appellant in respect of the servant''s quarters and garage and not treating them as independent building. The second contention raised on behalf of the Appellant is accordingly not laible to be accepted.

Learned Counsel for the Petitioners has placed reliance upon the rulings reported in M/s Agra Concrete Pipe Co. v. Competent Authority Agra 1987 AWC 643 and in State of U.P. v. Manoj Kumar Mukerji 1988 AWC 718. My attention has also been drawn to the ruling reported in State of U.P. v. Mrs. Rakesh Murthy 1984 AWC 715 to justify the claim of the Petitioners that they are entitled to the area permissible in law appurtenant to servant''s quarters and garage. I find that the Appellate Authority has not accepted the claim of the Petitioners in this regard on the ground that the servant''s quarters and garage indicated by the Petitioners did not exist in the sanctioned plan of the existing building. It is noteworthy that there is enough evidence to indicate that the servant''s quarters and garage existed in the year 1936. Even if these constructions were not strictly in accordance with law, if they remained for more than twelve years, the question arises whether it would acquire legal sanctity or not. I think that by mere lapse of statutory period, the unauthorised constructions would be treated as authorised construction in the eye of law and the Appellate Authority has patently erred in not giving the benefit to the Petitioners regarding the appurtenant area permissible in law with regard to servant''s quarters. Since the Appellate Authority has not approached the problem from correct angle and has not considered the effect of the rulings reported in State of U.P. v. Mrs. Rakesh Murthy 1984 AWC 715, the findings appear to me to be vitiated in law and deserve to be quashed. Ends of justice demand that the Appellate Authority should consider the claim of the Petitioners regarding the appurtenant area to the servant''s quarters and garage in the light of the aforesaid ruling.

In the result, for the foregoing discussion, the writ petition succeeds and the impugned judgment of the Appellate Authority dated 19-1-1988 is hereby quashed and the Appellate Authority is directed to re-determine the claim of the Petitioners in the light of the foregoing discussion.

If the Appellate Authority comes to the conclusion after reconsideration that the building in question is a Hindu Undivided Family property, it would examine the claim of Petitioner No. 2 in the light of the rulings reported in Maharao Sahib Shri Bhim Singhji Ors. Vs. Union of India (UOI) and Others, and in Prabhakar Narhar Pawar Vs. State of Maharashtra and Another, . Since the Appellate Authority has patently erred in determining the question of fact without paying due regard to the evidence on record, therefore, I have not decided the question finally in writ jurisdiction because it centres round the question of facts. The appraisal of evidence is not the function of this Court.

Parties are directed to bear their own cost.