# Amir Ahmad v. Additional Commissioner and others

- **Citation:** (2012) 2 ILRA 895
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-10
- **Case number:** Civil Misc. Writ Petition No. 27717 of 1995
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amir-ahmad-v-additional-commissioner-and-others-42200
- **Pages:** 5

## Headnote

Holdings Act, Section 3(8)-surplus land-
.grove land-consisting 22 trees existed
prior 1974-can not be ceased to grove if
same part utilized for cattle fodder-other
ground for denying the will-delay about
11 years in mutation-also unfounded-if
the
exertion
and
attestation
not
questioned-delay in mutation can not be
basis to ignore the will-order quashed.

Held: Para 14 and 17

 It is only on the ground of an alleged
delayed mutation proceeding that the
Will
has
been
discarded
by
the
Prescribed Authority. In the opinion of
the Court merely because proceedings
for recording the name took 11 years will
not defeat the devolution of interest
under the Will so long as the Will is not
stated to be either fake or forged. In the
absence of any such finding neither the
Prescribed Authority nor the Appellate
Authority could have discarded the said
Will more so when the appellate order
dated
17.5.1988
and
19.2.1991
specifically issued a direction to exclude
the land under the Will.

As to what should be the criteria to
judge the status of a holding as grove,
reference can be had to the definition of
a grove as contained in Section 3(6) of
the
U.P.
Tenancy
Act,

## Text

2 All] Amir Ahmad V. Additional Commissioner and others
895
security and apply afresh for interim
injunction.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 27717 of 1995

Amir Ahmad

 ...Petitioner
Versus
Additional Commissioner and others

 ...Respondents

Counsel for the Petitioner:
Sri K.G.Srivastava
Sri Amaresh Sinha
Sri Dinesh Pathak
Sri Mohd. Farooq
Sri S.T. Ali
Usha Kiran
Sri Preetam Lal

Counsel for the Respondents:
C.S.C.

U.P. Imposition of Ceiling on Land
Holdings Act, Section 3(8)-surplus land-
.grove land-consisting 22 trees existed
prior 1974-can not be ceased to grove if
same part utilized for cattle fodder-other
ground for denying the will-delay about
11 years in mutation-also unfounded-if
the
exertion
and
attestation
not
questioned-delay in mutation can not be
basis to ignore the will-order quashed.

Held: Para 14 and 17

 It is only on the ground of an alleged
delayed mutation proceeding that the
Will
has
been
discarded
by
the
Prescribed Authority. In the opinion of
the Court merely because proceedings
for recording the name took 11 years will
not defeat the devolution of interest
under the Will so long as the Will is not
stated to be either fake or forged. In the
absence of any such finding neither the
Prescribed Authority nor the Appellate
Authority could have discarded the said
Will more so when the appellate order
dated
17.5.1988
and
19.2.1991
specifically issued a direction to exclude
the land under the Will.

As to what should be the criteria to
judge the status of a holding as grove,
reference can be had to the definition of
a grove as contained in Section 3(6) of
the
U.P.
Tenancy
Act,
1939.
The
definition is similar, in so far as this
feature is concerned, to Section 3(8) of
the 1960 Ceiling Act. The same was
considered by a learned Single Judge of
this Court in the case of Shiv Sahai &
others Vs. Har Nandan & others reported
in 1963 RD Pg. 119 where it was held
that the existence of fourteen trees in an
acre of land was sufficient to construe a
grove. In the present case there are 22
trees which were found to be existing
prior to the appointed date aged about
25 to 30 years and some newly planted
trees aged about four to five years
spread over an area of approximately
one hectare. Thus even if some of the
trees are sparsely located, the same
would not change the nature of the
holdings.
Case law discussed:
1978 AWC 205; 1978 AWC Page 574; 1963 RD
199

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard Shri Preetam Lal holding
brief of Shri Dinesh Pathak, learned counsel
for the petitioner and the learned Standing
Counsel for the contesting respondents.

2. This writ petition arises out of
proceedings under the U.P. Imposition of
Ceiling on Land Holdings Act, 1960. The
petitioner was put to notice and the ceiling
proceedings
were
concluded
by
the
896 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Prescribed Authority in the year 1977. An
appeal was filed which appears to have been
allowed on 17th of May, 1988 and the
matter was remanded back to the Prescribed
Authority. The Prescribed Authority passed
a fresh order on 20th of June, 1990 against
which the petitioner again filed an appeal
before the learned Commissioner.

3. The appeal was allowed and the
matter was again remanded holding that the
Prescribed
Authority
has
incorrectly
proceeded to ignore the Will of Smt. Fatima
and that the land which had devolved on
Mr. Nasir Ahmed and the other sons of the
petitioner under the said Will ought to have
been excluded, keeping in view the earlier
appellate order dated 17.5.1988 which fact
is evident from the appellate order dated
5.2.1991 (Annexure No. 1 to the writ
petition).

4.

The
Prescribed
Authority,
thereafter, has again proceeded to hold that
the Will as set up could not be proved and
has also doubted the said Will on the
ground that the proceedings of mutation on
the basis of the said Will were initiated after
a lapse of the 11 years in the year 1987. On
this ground the Prescribed Authority came
to the conclusion that the Will was set up
only with a view to avoid the ceiling
proceedings.

5. On other grounds also the
Prescribed Authority rejected the objections
particularly with regard to the existence of a
grove over the entire Plot No. 1362 on the
ground that the existing trees were scattered
and some new saplings were planted.

6. The petitioner filed an appeal and
the appeal has been dismissed cursorily
without appreciating the issue so raised by
the petitioner by the impugned order dated
31.8.1995 hence this petition.

7. This writ petition was entertained
and an interim order was passed on 18th
October, 1995. A counter affidavit has been
filed on behalf of the state and the reasons
given in the impugned order are sought to
be supported without anything further. It
has been asserted in paragraph 9 that the
Prescribed Authority has proceeded to
decide the objections in the light of the
remand order dated 5.2.1991 and that the
conclusion drawn that the land under the
Will was in possession of the petitioner is
correct. On other issues also the Appellate
Authority and the Prescribed Authority
have not committed any error in declaring
the land of the petitioner as surplus.

8. Learned counsel for the petitioner
submits that on both grounds the impugned
orders are unsustainable, inasmuch as the
Will has been discarded only on the ground
that the mutation on the strength of the Will
was sought after 11 years of its execution.

9. It is urged that the Will could not
have been ignored once it has been set up
and proved. Unless there is a finding that
the Will has not been proved in accordance
with the Evidence Act there was no
occasion for the Prescribed Authority to
have drawn a conclusion to the contrary. It
is also urged that the name of Fatima
Begum has been scored out by Supervisor
Kanoongo in 1976 itself and therefore, to
conclude that the sons of the petitioner had
delayed in setting up their case of
succession is incorrect.

10. It is further submitted that the
definition of grove land as contained in
Section 3(8) of the U.P. Imposition of
Ceiling on Land Holdings Act, 1960 clearly
2 All] Amir Ahmad V. Additional Commissioner and others
897
indicates that trees as existing prior to 24th
January, 1971 would be sufficient to
construe that it was a grove. Learned
counsel submits that the finding recorded by
the Prescribed Authority itself indicates that
plot no. 1362 which was being claimed as
grove was in the nature of the grove. It is for
the said reason that the impugned order is
vitiated as a major part of the land was
grove. The proceedings in 1977 had also
concluded that the said plot was grove and
the order of the Prescribed Authority
holding Plot No. 1362 as grove was not
challenged by the State any further.

11. He, therefore, contends that the
Will having been rightly set up which was
in existence and there being no evidence to
the contrary, the impugned order proceeds
on surmises and conjunctures, and the
finding on the issue of grove is also
erroneous.

12. Replying to the aforesaid
submissions, learned Standing Counsel
contends that in effect the Prescribed
Authority has found that it was the
petitioner himself who was in occupation of
the land and, therefore, the holding will be
presumed to be of the petitioner, as such,
the Will could not extend any benefit to the
beneficiaries named thereunder. He further
contends that on facts and on inspection, it
was found that part of the land was not
grove and hence the said finding of fact
cannot
be
disputed.
The
Appellate
Authority also, therefore, has not committed
any error in affirming the same.

13. Learned Standing Counsel further
contends that the direction contained in the
remand order has been complied with by
examining the same in detail and hence it
cannot be said that the Prescribed Authority
has committed any error. The appellate
order also, therefore, for the same reason
does not require any interference.

14. Having heard learned counsel for
the parties the subject matter of land under
the Will had been directed to be excluded
under the appellate order dated 17th of
May, 1988 and the same has been reiterated
in the appellate order dated 5.2.1991. In
view of the provisions of Section 13 of the
U.P. Imposition of Ceiling on Land
Holdings Act, 1960 it is clear that the
decision in an appeal shall be final and
conclusive and shall not be questioned in
any Court of law. The appellate order dated
17.5.1988 as reiterated in the order dated
5.2.1991 was, therefore, final. There was no
evidence to the contrary to dispute the
execution of the Will. It is only on the
ground of an alleged delayed mutation
proceeding that the Will has been discarded
by the Prescribed Authority. In the opinion
of the Court merely because proceedings for
recording the name took 11 years will not
defeat the devolution of interest under the
Will so long as the Will is not stated to be
either fake or forged. In the absence of any
such
finding
neither
the
Prescribed
Authority nor the Appellate Authority could
have discarded the said Will more so when
the appellate order dated 17.5.1988 and
19.2.1991 specifically issued a direction to
exclude the land under the Will. It is for this
reason that this Court granted an interim
order recording the same on 18.10.1995.
The stand taken in the counter affidavit that
the earlier remand order has been complied
with
is
absolutely
illusory
and
the
authorities have mechanically proceeded to
pass the impugned order ignoring the
impact of the said appellate orders.

15. Coming to the question of the
existence of grove as claimed by the
petitioner once the same plot no. 1362 has
898 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
been accepted as a grove by the
Prescribed
Authority
in
the
earlier
proceedings culminating in the order
dated 9.8.1977 and the State did not
contest the said position by filing an
appeal, then the State on a later stage of
remand could not have taken a u-turn. The
fact aforesaid has been stated in Para-11
of the writ petition to which the reply of
the State in para-7 of the counter affidavit
is that it is not disputed. Apart from this
the finding is that 22 old trees were in
existence but they were scattered and
some new saplings that are 4 to 5 years
old have been planted.

16. The Prescribed Authority on the
said basis of inspection and the fact that
some cattle fodder was also sown and
irrigated, came to the conclusion that it
did not fall within the definition of grove.
In my opinion, even accepting the said
factual situation as narrated in the
inspection
report,
the
Prescribed
Authority completely lost sight of the
contingency of old trees being replaced by
new saplings. If the trees planted earlier,
which were twenty two in number and
were found in existence, then the planting
of new trees which were 4 to 5 years old
in place of earlier ones for filling in the
gaps will not amount to creating a new
grove and will simply be trying to restore
the status of the grove that did exist as per
the evidence of the State itself. The
existence of 22 very old trees therefore,
even in a scattered state did clearly
exhibit the existence of the grove. The
temporary utilization of the gaps between
the newly planted trees by growing cattle
fodder and irrigating it would not
transform the original nature of the land
which had full grown 22 trees that were
quite old according to the State itself.

17. As to what should be the criteria
to judge the status of a holding as grove,
reference can be had to the definition of a
grove as contained in Section 3(6) of the
U.P. Tenancy Act, 1939. The definition is
similar, in so far as this feature is
concerned, to Section 3(8) of the 1960
Ceiling Act. The same was considered by
a learned Single Judge of this Court in the
case of Shiv Sahai & others Vs. Har
Nandan & others reported in 1963 RD Pg.
119 where it was held that the existence
of fourteen trees in an acre of land was
sufficient to construe a grove. In the
present case there are 22 trees which were
found to be existing prior to the appointed
date aged about 25 to 30 years and some
newly planted trees aged about four to
five years spread over an area of
approximately one hectare. Thus even if
some of the trees are sparsely located, the
same would not change the nature of the
holdings.

18. A grove also requires periodical
cultivation of the land to keep the trees
spruced and healthy and therefore even if
something is sown, like in the present
case cattle fodder, the same will not dilute
the status of the grove. The cultivator of
the holding, namely the tenure holder, has
every right to restore his grove by
increasing the number of trees. This
therefore is not a case where the Plot No.
1362 was never a grove nor it can be said
that the tenure holder intended to
subsequently convert the holding into a
grove to avoid the provisions of the
Ceiling Act.

19. This Court in the case of
Mahendra Singh vs. State of U.P. and
others reported in 1978 AWC 205, Hamid
Hussain vs. State of U.P., 1978 AWC
Page 574, and relying on Shiv Sahai vs.
2 All] Smt. Prema Devi V. State of U.P. and others
899
Har Nandan 1963 RD 199 has held that if
some area of a grove is cultivable then the
character of land does not cease to be that
of a grove. The test is to decipher as to
whether the grove was planted prior to
24th January, 1971 or not. The said
decisions have again been followed in the
case of Indrapal Singh vs. Prescribed
Authority reported in 2007 volume 6
AWC Page 5810 and in the case of
Narendra Pal Singh Gahlot vs. The Upper
Commissioner Judicial reported in 2009
volume 1 AWC Page 46. This aspect was
also considered by another learned Single
Judge in the case of Smt. Indu Rani vs.
State of U.P. and others in Writ Petition
No. 4982 of 1988 decided on 17th
September, 2001 where it was held that
the authorities have miscalculated the
number of trees existing in the plot and
then holding that the land is not grove.
The action of the authorities was held to
be unjustified.

20. The presumption therefore,
drawn adverse to the petitioner on the
facts of this case is perverse. It also
cannot be said that if the new saplings
were planted 4 to 5 years before the
inspection, the same had been done with
some ulterior motive. To the contrary the
motive is to restore and revive the grove
over the area that required a re-plantation.

21. The Ceiling Act does not
prohibit or create any disqualification if
new saplings are planted to restore the
status of a grove as this is a natural
process. Old trees once stop bearing fruits
or die out or even new trees or middle
aged trees falling down are contingencies
which are genuine and a tenure holder is
not prohibited from planting new trees in
an old grove. If the interpretation and
presumption adverse to this is accepted
then the status of grove land will
gradually become coterminous with even
a minor decrease in the number of trees,
which is not the intention of the
legislature.

22. In this circumstances none of the
grounds taken either by the Prescribed
Authority or the Appellate Authority for
non-suiting
the
petitioner
can
be
sustained. The impugned order dated
25.2.1992 as affirmed in appeal vide order
dated 31.8.1995 are both quashed.

23. The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.22012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No. 31489 of 2012

Smt. Prema Devi

 ...Petitioner
Versus
State of U.P. Through Principal Secretary
Department & Ors
 ...Respondents

Counsel for the Petitioner:
Sri Kapil Muni Dubey
Sri S.N. Tripathi

Counsel for the Respondents:
C.S.C.
Sri Vikash Tiwari

U.P. Kshetra Panchayat & Zila Panchayat
Act
1961-Section-15(3)
(i)-no
confidence
motion-against
Pramukhmeeting convened before expiry of 30
days-liable to set-a-side-keeping it open
to
hold
no
confidence
meeting
in
accordance with law