# Anand Kishor Devacharaya & Ors v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1775
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-14
- **Case number:** Writ - C No. 3000007 of 2015
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-kishor-devacharaya-ors-v-state-of-u-p-ors-51882
- **Pages:** 6

## Headnote

Civil Law - ceiling proceedings challengedSections 10 (2) & 13 of U. P. Imposition of
Land Holdings Act, 1960-impugned orderdeclaration of surplus land-land recorded
in the name of ancestors also included-U.P.
Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972 (U.P. Act 18 of
1973)- Section 19 of the Amendment Actproceedings initiated under unamended
Act stood abated on 08.06.1973-fresh
proceedings could only be initiated by
issuing a fresh notice-under Section 9(2) of
the Act-impugned orders quashed-petition
allowed. (Paras 18 to 21)

HELD:
In view of the provisions contained in Section
19(1) of the Amendment Act, 1972, all the
proceedings initiated under the unamended Act
stood abated on 08.06.1973. The Prescribed
Authority could have initiated fresh proceedings
by issuing a notice under Section 9 (2) of the Act.
(Para 19)

Therefore, the proceedings instituted on the
basis of notice issued to Maharaja Dharmendra
Pratap Singh, stood abated in view of the
provisions contained in Section 19 of the
amendment Act. Fresh proceedings could only be
initiated by issuing a fresh notice under Section 9
1776 INDIAN LAW REPORTS ALLAHABAD SERIES
(2) of the Ceiling Act, which was not done in the
present case. (Para 20)

The order passed by the Appellate Authority
stating that the proceedings against Maharaja
Pateshwari Prasad Singh and his heir Maharaja
Dharmendra Pratap Singh had been issued under
the old Ceiling Act (which is a misnomer, as there
was no old Ceiling Act and it was merely the
unamended Ceiling Act, as it was originally
enacted) and that the same proceedings shall be
deemed to be continuing, has been passed in
ignorance of the provisions of Section 19 of the
U.P. Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972 (U.P. Act 18 of 1973) and
the same is unsustainable in law. (Para 21)

Petition allowed. (E-14)

## Text

5 All. Anand Kishor Devacharaya & Ors. Vs. State of U.P. & Ors.
1775
of mentioning the land as commercial was
rectified by the petitioner.

9. It is to be noted that the relevance of
the spot verification carried out by the
authorities themselves is paramount in
nature and it is from such verification that
the assessment was carried out by the
authorities with regard to the nature of the
land. For example, if a person in a deed of
sale states that the land, that is being sold, is
agricultural land containing a water body
and on the spot verification it is found out
that the land is actually being used for the
purpose of running a factory, it is the spot
verification that has to be taken into
consideration by the authorities concerned.
The description of the property as given by
the vendor/vendee in a registration deed
cannot, under any circumstances, be
accepted as the ultimate truth de hors the
inspection carried out by the authorities.

10. In the present case, it is clear that
the spot verification carried out by the
authorities indicated that the property was
non commercial in nature. The rejection of
such spot verification without assigning any
reason to the same only on the basis that the
deed that was registered, indicated that the
property was commercial in nature, is
clearly arbitrary and illegal in law.

11. In light of the same, the
impugned orders dated December 4, 2020
and June 8, 2021 are quashed and set-aside.
The authorities are directed to refund the
deficient stamp duty, if any, paid by the
petitioner within a period of six weeks from
date.

12. Accordingly, the writ petition is
allowed.
----------
(2024) 5 ILRA 1775
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ - C No. 3000007 of 2015

Anand Kishor Devacharaya & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Karunakar Srivastava

Counsel for the Respondents:
C.S.C.

Civil Law - ceiling proceedings challengedSections 10 (2) & 13 of U. P. Imposition of
Land Holdings Act, 1960-impugned orderdeclaration of surplus land-land recorded
in the name of ancestors also included-U.P.
Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972 (U.P. Act 18 of
1973)- Section 19 of the Amendment Actproceedings initiated under unamended
Act stood abated on 08.06.1973-fresh
proceedings could only be initiated by
issuing a fresh notice-under Section 9(2) of
the Act-impugned orders quashed-petition
allowed. (Paras 18 to 21)

HELD:
In view of the provisions contained in Section
19(1) of the Amendment Act, 1972, all the
proceedings initiated under the unamended Act
stood abated on 08.06.1973. The Prescribed
Authority could have initiated fresh proceedings
by issuing a notice under Section 9 (2) of the Act.
(Para 19)

Therefore, the proceedings instituted on the
basis of notice issued to Maharaja Dharmendra
Pratap Singh, stood abated in view of the
provisions contained in Section 19 of the
amendment Act. Fresh proceedings could only be
initiated by issuing a fresh notice under Section 9
1776 INDIAN LAW REPORTS ALLAHABAD SERIES
(2) of the Ceiling Act, which was not done in the
present case. (Para 20)

The order passed by the Appellate Authority
stating that the proceedings against Maharaja
Pateshwari Prasad Singh and his heir Maharaja
Dharmendra Pratap Singh had been issued under
the old Ceiling Act (which is a misnomer, as there
was no old Ceiling Act and it was merely the
unamended Ceiling Act, as it was originally
enacted) and that the same proceedings shall be
deemed to be continuing, has been passed in
ignorance of the provisions of Section 19 of the
U.P. Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972 (U.P. Act 18 of 1973) and
the same is unsustainable in law. (Para 21)

Petition allowed. (E-14)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri Karunakar Srivastava,
Advocate, the learned counsel for the
petitioner and Shri Sarvesh Kumar Mishra,
the learned Standing Counsel.

2. By means of the instant Writ
Petition filed under Article 226 of the
Constitution of India, the petitioners have
sought
quashing
of
an order
dated
29.07.1999 passed by the Additional
District Magistrate/Prescribed Authority
under the Ceiling Act, Balrampur, in Case
No.7/8 under Section 10 (2) of U. P.
Imposition of Land Holdings Act, 1960
(hereinafter referred as Ceiling Act). The
petitioners have also sought quashing of an
order
dated
15.04.2015
passed
by
Additional Commissioner (Judicial), Devi
Patan Division, Gonda dismissing Appeal
No.5/43 under Section 13 of the Ceiling Act,
which was filed against the aforesaid order
dated 29.07.1999 passed by the Prescribed
Authority.

3. It has been stated in the writ petition
that proceedings under the Ceiling Act had
been initiated against Maharani Rajlaxmi
Kumari and Maharaja Dharmendra Pratap
Singh and some of their lands had been
declared surplus by means of an order dated
26.04.1990 While declaring surplus lands of
Maharani Rajlaxmi Kumari and Maharaja
Dharmendra Pratap Singh, land bearing
Gata
No.1788/1.86
acre
(New
Gata
No.774/1.671 acre) was also included in
their surplus lands whereas this land had
already been recorded in the name of
ancestors of the petitioners by means of an
order dated 27.01.1968 passed by the
Consolidation Officer.

4. The petitioners' ancestors filed
objections against the order declaring their
land as surplus land of Maharani Rajlaxmi
Kumari and Maharaja Dharmendra Pratap
Singh but Prescribed Authority rejected the
same by means of an order dated
26.07.1997. Appeal No.197 was filed under
Section 13 of the Ceiling Act against the
order dated 26.07.1997, which was allowed
by means of a judgment and order dated
28.11.1998 passed by the Additional
Commissioner (Administration), Faizabad
Division, Faizabad.

5. The Appellate Court held that the
name of Devadi Dev was ordered to be
mutated in place of Kuwar Dharmendra
Pratap Singh by means of an order dated
27.1.1968 passed by Consolidation Officer
in Case No.1944 under Section 9(2) of the
Consolidation of Holdings Act and this
order was passed much earlier than the
reference date i.e. 24.01.1971. The name of
Devadi Dev was recorded in CH Form
No.23 and 45 also in respect of disputed
Gata No.774. In the relevant extracts of
Khatuni relating to year 1399 to 1404 Fasli,
the disputed land was entered in the name of
Shanti Devi, widow of Devadi Dev and by
means of an order dated 03.03.1994 passed
5 All. Anand Kishor Devacharaya & Ors. Vs. State of U.P. & Ors.
1777
by Tehsildar, Balrampur in Case No.374, the
names of Tihuti Dev Acharya S/o Ganesh
Dutt Acharya, Anand Dev Acharya, Nand
Kishor Acharya and Anand Kishor Dev
Acharya all sons of Bindhar Dev Achary
were mutated in place of Shanti Devi W/o
Devadi Dev.

6. From the aforesaid facts, the
Appellate Court found that the land in
dispute was recorded in the name of Devadi
Dev and after him, it was recorded in the
name of his widow. The finding of the
Prescribed Authority that the petitioners
were not recorded as tenure holders of the
land in dispute and, therefore, there was no
need to issue a notice under Section 8 to
them, was against the facts evident from the
record. The Appellate Court further held that
the trial Court has wrongly stated in the
impugned order that the petitioners had not
adduced any evidence, whereas copies of
relevant extracts of Khataunies and CH
Forms No.23 and 45 were available on the
record
of
the
Prescribed
Authority.
Accordingly, the Additional Commissioner
(Administration) allowed the Appeal, set
aside the order dated 26.07.1997 and
remanded the matter to the Prescribed
Authority for being decided afresh.

7. After remand, the Prescribed
Authority again passed a non-speaking and
cryptic order dated 29.07.1999 and the
ancestors of the petitioners again filed an
Appeal
bearing
No.43
before
the
Commissioner, Devi Patan Division, Gonda
but the Appeal was dismissed as time barred
by means of an order dated 30.05.2001. The
petitioners challenged the order dated
30.05.2001 by filing Writ Petition No.64
(Ceiling) of 2001, which was disposed of by
means of an order dated 08.03.2010
whereby the order dated 30.05.2001 passed
by the Additional Commissioner dismissing
the petitioners' Appeal as time barred, was
quashed and the matter was remitted for
decision afresh on merits.

8. The petitioner filed a copy of the
aforesaid order dated 08.3.2010 passed by
this Court in Writ Petition No.64 (Ceiling)
of 2001 before the Commissioner, Devi
Patan Division, Gonda and thereafter, the
Commissioner, Devi Patan Division, Gonda
dismissed the Appeal by means of the
impugned order dated 15.04.2015.

9. It is stated in the appellate order that
the
Appeal
against
an
order
dated
29.07.1999 had been filed on 23.05.2001,
which is time barred but the appellant has
submitted an application under Section 5 of
the Limitation Act and the cause shown in
the affidavit filed in support of the
application appears to the sufficient and,
therefore, the application under Section 5 of
the Limitation Act was allowed.

10. It is strange that the Appellate
Authority did not make any reference of the
order dated 08.03.2010 passed by this Court
in Writ Petition No.64 (Ceiling) of 2001
whereby the order dismissing the appeal as
time barred had been quashed and this Court
has remanded the matter to the Appellate
Authority for deciding it afresh on merits.

11. The Appellate Authority held that
the proceedings against Maharaja Pateshwri
Prasad have been initiated under the old
Ceiling Act and after his death, the name
of Maharaja Dharmendra Pratap Singh
was substituted and a notice had been
issued to him under the old Ceiling Act.
Therefore, the proceedings shall be
deemed to be continuing against Maharani
Rajlaxmi Kumari Devi and Maharaja
Dharmendra Pratap Singh, under the old
Ceiling Act.
1778 INDIAN LAW REPORTS ALLAHABAD SERIES
12. The Appellate judgment states
that the following provision is contained in
the old Ceiling Act: -

"In accordance with Article 39 of
Constitution, the State Legislate enacted the
U.P. Imposition of Land Holding Act, 1960,
which came into force on January 3, 1961"

13. The Appellate court held that the
old Ceiling Act came into force with effect
from 03.01.1961 with reference year 1958.
As
proceedings
against
Maharaja
Pateshwari Prasad Singh and his heir
Maharajaa Dharmendra Pratap Singh had
been instituted under the old Ceiling Act,
they will be governed by the old Ceiling Act.

14. The order dated 27.01.1968 for
recording the name of the appellant's
husband,
had
been
passed
by
the
Consolidation Officer on the basis of a
compromise and this order had been passed
10 years after the reference date. Therefore,
the order dated 27.01.1968 passed by the
Consolidation Officer is liable to be
neglected and no relief can be granted to the
appellant on the basis of the aforesaid order.

15. On 22.07.2021, this Court had
passed the following order in this case:

"Counsel for the petitioners has
argued that the appellate order has been
passed on an entirely different ground that
was not there before the Prescribed
Authority. The Appellate Court has referred
to Old Ceiling Act and cut off as mentioned
therein whereas the admitted position
between the parties is that the proceedings
that were initiated against the Maharaja
Dharmendra Pratap Singh and his mother
Maharani Raj Laxmi Kumari Devi was
under the New Ceiling Act on 26.04.1990
and therefore the compromise of 1968 which
was entered into between the parties before
the cut off date of 1971, should be respected
and the petitioners predecessor in interest
should be declared as an independent tenure
holder and his land could not have been
declared
as
the
land
of
Majaraja
Dharmendra Pratap Singh.

Shri V.P. Nag, prays for and is
granted a week's time to find out the current
position of the land in question as it has
come in the papers filed alongwith the writ
petition that Collectorate building was to be
constructed on such land and also to bring
case laws with regard whether the
proceedings under Old Ceiling Act would
continue even after New Ceiling Act came
into being."

16. Thereafter, the State has filed a
supplementary counter affidavit wherein it
has inter alia been stated that as per the
report of the Tehsildar Balrampur dated
28.07.2021, Plot No. 774 area 0.676
Hectares and Plot No. 775 area 0.061
Hectares are recorded for construction of
District Office and on the spot 25 Mango, 01
Jamun and 01 Tamrind tree was found. Plot
No. 774 and 775 are grove lands and are
vacant.
It
is
further
stated
in
the
supplementary affidavit that the notice to
Maharaja Dharmendra Pratap Singh have
been sent under the old Ceiling Act and the
basis of this averment made in the
supplementary counter affidavit is the
impugned order dated 15.04.2015 passed by
the Additional Commissioner (Judicial),
Devi Patan Division, Gonda.

17. Section 5 of the Ceiling Act, as it
was originally enacted, provided as follows:
-

5. Imposition of ceiling on
existing land holdings.-(1) As and from
the date of enforcement of this Act, no
5 All. Anand Kishor Devacharaya & Ors. Vs. State of U.P. & Ors.
1779
tenure-holder shall, except as otherwise
provided by this Act, be entitled to hold an
area in excess of the ceiling area applicable
to him, anything contained in any other law,
custom, or usage for the time being in force,
or
agreement,
to
the
contrary
notwithstanding.

(2) In determining the ceiling
area applicable to a tenure-holder at the
commencement of this Act, any transfer or
partition of land made after the twentieth
day of August, 1959, which, but for the
transfer or partition would have been
declared surplus land under the provisions
of this Act, shall be ignored and not taken
into account.

(3) The provisions of sub-section
(2) shall have no application to-

(a) a transfer in favour of the State
Government;

(b) a partition under the U.P.
Consolidation of Holdings Act, 1953, or

(c) a partition of the holding of a
joint Hindu family made by a suit or
proceeding pending on twentieth day of
August, 1959.
***

18. U.P. Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972 (U.P. Act
18 of 1973) made large-scale amendments
in the U.P. Imposition of Ceiling on Land
Holdings (Amendment) Act, 1961 with
effect from 08.06.1973. Section 19 of the
Amendment Act, 1972 provides as follows:
-

"19. Transitory provisions.-(1)
All proceedings for the determination of
surplus land under Section 9, Section 10,
Section 11, Section 12, Section 13 or
Section 30 of the principal Act, pending
before any court or authority at the time of
the commencement of this Act, shall abate
and the prescribed authority shall start the
proceedings for determination of the
ceiling area under that Act afresh by issue
of a notice under sub-section (2) of Section
9 of that Act as inserted by this Act:

Provided that the ceiling area in
such cases shall be determined in the
following manner-

(a) firstly, the ceiling area shall
be determined in accordance with the
principal Act, as it stood before its
amendment by this Act;

(b) thereafter, the ceiling area
shall be redetermined in accordance with
the provisions of the principal Act as
amended by this Act.

(2) Notwithstanding, anything in
sub-section (1), any proceeding under
Section 14 or under Chapter III or Chapter
IV of the principal Act, in respect of any
tenure-holder in relation to whom the
surplus land has been determined finally
before the commencement of this Act, may
be continued and concluded in accordance
with the provisions of the principal Act,
without prejudice to the applicability of the
provisions of sub-section (2) of Section 9
and Section 13-A of that Act, as inserted by
this Act, in respect of such land."

19. In view of the provisions
contained
in
Section
19(1)
of
the
Amendment Act, 1972, all the proceedings
initiated under the unamended Act stood
abated on 08.06.1973. The Prescribed
Authority could have initiated fresh
proceedings by issuing a notice under
Section 9 (2) of the Act.

20. Therefore, the proceedings
instituted on the basis of notice issued to
Maharaja Dharmendra Pratap Singh, stood
abated in view of the provisions contained in
Section 19 of the amendment Act. Fresh
proceedings could only be initiated by
issuing a fresh notice under Section 9 (2) of
1780 INDIAN LAW REPORTS ALLAHABAD SERIES
the Ceiling Act, which was not done in the
present case.

21. The order passed by the Appellate
Authority stating that the proceedings
against Maharaja Pateshwari Prasad Singh
and his heir Maharaja Dharmendra Pratap
Singh had been issued under the old Ceiling
Act (which is a misnomer, as there was no
old Ceiling Act and it was merely the
unamended Ceiling Act, as it was originally
enacted) and that the same proceedings shall
be deemed to be continuing, has been passed
in ignorance of the provisions of Section 19
of the U.P. Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972 (U.P. Act
18 of 1973) and the same is unsustainable in
law.

22. Accordingly, the writ petition is
allowed. The order dated 15.04.2015 passed
by Additional Commissioner (Judicial),
Devi Patan Division, Gonda dismissing
Appeal No.5/43 under Section 13 of the
Ceiling Act is quashed. The matter is
remanded to Additional Commissioner
(Judicial), Devi Patan Division, Gonda for
being decided afresh in accordance with the
law, keeping in view the observations made
in this judgment.
----------
(2024) 5 ILRA 1780
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ - C No. 3000102 of 1994

Bhanvi Saran Singh & Ors. ...Petitioners
Versus
State of U.P. ...Respondent

Counsel for the Petitioners:
B.K. Saxena

Counsel for the Respondent:
P. Mahapatra, Waseem Uddin Ahmad

Civil Law -ceiling proceedings against the
predecessor in interest of the of the
petitioner challenged- he had died before
the initiation of proceedings-Section 9 (2)
of the Uttar Pradesh Imposition of Ceiling
on Land Holdings Act, 1960-Rule 19 (2) of
Uttar Pradesh Imposition of Ceiling on
Land Holdings Rules, 1961-rule has been
declared ultra vires by the Division Benchtenure holder dead on the date of
notification under Section 9 of the Act-no
proceedings can be initiated against himfurthermore-State asserts some land liable
to be declared surplus under the Ceiling
Act-burden to prove the relevant fact lies
on the State-both these legal propositions
not followed-impugned orders quashedpetition allowed. (Para 14, 15 and 16)

HELD:
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 partyState. 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. (Para 14)

As in the present case this factual assertion made
in the writ 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. (Para 15)

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