The Lucknow Bench of the Allahabad High Court while allowing the petition said that no proceedings under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 could continue based on a notice issued under Section 9 (2) in the name of a dead person.
A Single Bench of Justice Subhash Vidyarthi passed this order while hearing a petition filed by Bhanvi Saran Singh and Others.
By means of the Petition filed under Article 226 of the Constitution of India the petitioners have sought quashing of the entire ceiling proceedings initiated against Hanuman Singh, the predecessor in interest of the petitioners, who had died before initiation of the proceedings.
It has inter alia been submitted in the writ petition that a notice under the Proviso appended to Section 9 (2) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 was issued in the name of Hanuman Singh, whereas Hanuman Singh had died in May, 1975, prior to issuance of the notice.
The petitioners submitted a reply to the notice stating that the notice had been issued in the name of a dead person. It was further stated in the objection that Hanuman Singh had already transferred 35 bigha of his land through a registered sale deed as far back as in the year 1963 and, therefore, he was not holding any surplus land.
The matter was decided ex-parte on 18.02.1976, whereby 35 bigha land of Hanuman Singh was declared surplus. An application for setting aside the ex-parte order dated 18.02.1976 was filed, which was rejected by means of an order dated 20.08.1976. An appeal was filed under Section 13 of the Ceiling Act, which was allowed by means of an order dated 18.07.1984, passed by the District Judge, Lucknow and the matter was remanded to the Prescribed Authority for being decided afresh.
After remand, the Prescribed Authority has decided the matter by means of an order dated 02.05.1985 stating that the petitioners had been directed to file a copy of the recall application but they did not file the same and had sought adjournment of the case on the ground that their counsel had gone out of station. The Prescribed Authority rejected the adjournment application and held that as the tenure holder has not brought on record the restoration/revision or objection against the notice which had been filed within limitation, the earlier order dated 18.07.1976, by which 22 bigha 5 biswa 6 biswanshi and 17 kachhwanshi land of the petitioners mentioned in Forms 3 A, B and C was declared surplus, was confirmed.
The sole reason assigned for declaring the petitioners’ land to be surplus was that the petitioners had not filed a copy of the restoration application or reply to the notice filed within limitation. The prescribed authority did not advertise the plea of the petitioner that the proceedings under the Ceiling Act had been initiated against a dead person.
The petitioners filed Appeal under Section 13 of the Ceiling Act against the order dated 02.05.1985, which was dismissed by means of the judgment dated 13.09.1994, passed by the Additional Commissioner (Judicial), Lucknow Division, Lucknow, on the ground that while remanding the matter by means of the order dated 14.08.1976, the District Judge had directed the prescribed authority to decide the matter on its merits but this application dated 14.08.1976 (which was an application for recall) was not available on record and the petitioner did not produce its copy before the Prescribed Authority and, therefore, there was no need for any interference in appeal.
The State has filed a counter affidavit in response to the petition and the averments made in paras 2 and 3 of the petition that the original tenure holder Hanuman Singh had died prior to issuance of notice under the proviso appended to Section 9 (2) of Ceiling Act have not been denied in the counter affidavit. Therefore, the aforesaid averments are deemed to be admitted by implication.
The Standing Counsel has submitted that even if the notice was issued after death of Hanuman Singh the original tenure holder, the notice published under Section 9 shall be deemed to apply to heirs of deceased tenure holder as per the provisions contained in Rule 19 (2) of Uttar Pradesh Imposition of Ceiling on Land Holdings Rules, 1961.
The Court observed that,
When the Division Bench has already held sub Rule 19 (2) of Rules of 1961 to be ultra vires and has declared that this cannot be relied upon for any purpose, the provisions contained in Rule 19 (2) cannot be relied upon by the opposite party-State. The Division Bench has specifically held that no proceedings for declaring the land of the tenure holder who is dead on the date of notification under Section 9 of the Ceiling Act can be taken.
As in the case this factual assertion made in the petition that the tenure holder Hanuman Singh had died prior to issuance of the notice under Section 9 (2) of the Ceiling Act has not been denied in the counter affidavit, in view of the law laid down by the Division Bench in Horam Singh (supra) no proceedings under the Ceiling Act could continue on the basis of notice under Section 9 (2) issued in the name of a dead person.
Moreover, the approach of the Prescribed Authority and the Appellate Court declaring in any land to be surplus for the sole reason that the petitioners could not provide copies of the records, which ought to have been maintained by the State authorities, is against the basic principle of dispensation of justice, which requires the person asserting a claim to prove the facts which form the basis of the claim. If the State asserts that some land is liable to be declared as surplus under the provisions of the Ceiling Act, the burden to prove the relevant facts lies on the State. The land cannot be declared surplus only because the tenure holder could not provide copies of some records, the liability to maintain which records rests on the State authorities.
“The prescribed authority and the appellate authority have not taken into consideration the aforesaid fact and the position of law and have passed the impugned orders against the petitioners, without application of mind to these facts, which makes the impugned orders unsustainable in law”, the Court further observed while allowing the petition.
The Court quashed the order dated 02.05.1985, passed by the Prescribed Authority (Ceiling), Tehsil Malihabad, District Lucknow, whereby 22 bigha 5 biswa 6 biswanshi and 17 kachhwanshi land of the petitioners mentioned in Forms 3 A, B and C was declared surplus and the order dated 13.09.1974, passed by the Additional Commissioner (Judicial), Lucknow Division, Lucknow.