# Bhanvi Saran Singh & Ors v. State of U.P

- **Citation:** (2024) 5 ILRA 1780
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-08
- **Case number:** Writ - C No. 3000102 of 1994
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhanvi-saran-singh-ors-v-state-of-u-p-51883
- **Pages:** 6

## Headnote

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
5 All. Bhanvi Saran Singh & Ors. Vs. State of U.P.
1781
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.
(Para 16)

Petition allowed. (E-14)

List of Cases cited:

## Text

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
5 All. Bhanvi Saran Singh & Ors. Vs. State of U.P.
1781
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.
(Para 16)

Petition allowed. (E-14)

List of Cases cited:

1. Surendra Pratap Singh Vs State of U.P. & ors.:
2024:AHCLKO:3082

2. Horam Singh & ors.Vs District Judge,
Moradabad & ors.: 1978 SCC OnLine All 682 =
1979 All LJ 85

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

Order on IA-08/24:

This
is
an
application
seeking
amendment of the writ petition, whereby the
petitioners have sought to amend the prayer
clause. The learned Standing Counsel has
also formally opposed the application
without filing any written objection. As the
amendment is formal in nature and it does
not change the nature of the petition, the
application for amendment is allowed. The
learned counsel for the petitioners may
incorporate necessary corrections in the
memo of writ petition forthwith.

Order on Writ Petition:

1. Heard Sri Utkarsh Srivastava and Sri
Rakshit Raj Singh Advocates, holding brief
of Sri B.K. Saxena Advocate, the learned
counsel for the petitioners and Sri S.K.
Khare, the learned Standing Counsel for the
State.

2. By means of the instant Writ
Petition filed under Article 226 of the
Constitution of India the petitioners have
sought quashing of the entire ceiling
proceedings initiated against Sri Hanuman
Singh, the predecessor in interest of the
petitioners, who had died before initiation of
the proceedings.

3. 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 (hereinafter referred to
as the Ceiling Act) 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.

4. The matter was decided exparte 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
no.244/80 was filed under Section 13 of
the Ceiling Act, which was allowed by
means of a judgment and order dated
18.07.1984, passed by the District Judge,
Lucknow and the matter was remanded to
the Prescribed Authority for being decided
afresh.
1782 INDIAN LAW REPORTS ALLAHABAD SERIES

5. After remand, the learned 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.

6. The sole reason assigned for
declaring the petitioners' land to be surplus
was that the petitioners had not filed copy of
the restoration application or reply to the
notice
filed
within
limitation.
The
prescribed authority did not advert to the
plea of the petitioner that the proceedings
under the Ceiling Act had been initiated
against a dead person.

7. The petitioners filed Appeal No.
13/85-86 under Section 13 of the Ceiling
Act against the aforesaid order dated
02.05.1985, which was dismissed by means
of
the
impugned
judgment
dated
13.09.1994,
passed
by
the
learned
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.

8. The State has filed a counter
affidavit in response to the writ petition and
the averments made in paras 2 and 3 of the
writ 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.

9. The learned 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 (hereinafter referred
to as the Rules of 1961).

10. Sub Rule (2) and (3) of Rule 19
(2) of Rules of 1961 provide as follows:

 "19. .....(2)Where a tenure-holder
dies before the publication of the general
notice under Section 9, such publication
shall be deemed to apply to his executor,
administrator,
or
other
legal
representatives
and
the
Prescribed
Authority may proceed to determine the
ceiling area applicable to the deceased
person as if such executor, administrator or
other legal representatives were the tenure
holder, for the purposes of service of such
notice.

(3)Where a tenure-holder dies
before he is served with a notice under subsection (2) of Section 10, the Prescribed
Authority may serve such notice on his
executor, administrator or other legal
5 All. Bhanvi Saran Singh & Ors. Vs. State of U.P.
1783
representatives, and may proceed to
determine the ceiling area applicable to the
deceased person as if such executor,
administrator or other legal representatives
were the tenure-holder for the purposes of
service of such notice."

11. The learned Standing Counsel
has relied upon a decision rendered by a
coordinate bench of this court in the case of
Surendra Pratap Singh Vs. State of U.P.
and
others:
2024:AHC-LKO:3082,
wherein the following observations have
been made:

"10. It is to be noticed that in case
a person dies before service of notice under
Section 10, the proceedings do not abate but
only the persons who can contest the said
case are the legal representative of the
recorded tenure holder and it is only after
service of notice as prescribed under Rule
19 (3) of the U.P. Imposition Of Ceiling On
Land Holdings Rules, 1961 the proceedings
may continue thereon."

12. Per contra, the learned counsel for
the petitioners has relied upon a decision of
a Division Bench of this Court in the case of
Horam Singh and others Vs. District
Judge, Moradabad and others: 1978 SCC
OnLine All 682 = 1979 All LJ 85, wherein
following questions were referred to the
Division Bench: -

"1. When a tenure-holder dies
after 8th June, 1973, and before the
publication of notice under section 9 of the
U.P. Imposition of Ceiling on Land
Holdings Act what should be the date for
determining the surplus area of a tenureholder for the purposes of determining the
surplus area in view of Rule 19 of the Act?

2. Whether Rule 19 read with its
sub-clauses (2-4) are within the powers of
rule making authority or they are against the
provisions of sections 9 and 10 of the Act
which speak about the tenure-holder i.e. the
real and living tenure-holder on the date
when the notice is to be issued?

3. Can determination of surplus
area of a tenure-holder who is dead on the
date of notification under section 9 of the
U.P. Imposition of Ceiling on Land
Holdings Act be made ignoring the right of
the heirs of the deceased tenure-holder on
that date?

4. If the notice under: section 9
has been issued when the tenure-holder was
no more in this world can notice under
section 10(2) of the U.P. Imposition of
Ceiling on Land Holdings Act be issued
without publishing general notice calling
upon the heirs of the tenure-holder to submit
the statement contemplated by law under
section 9 of the Act?

5. If the recorded tenure-holder
dies soon after the publication of general
notice in the official gazette (e.g. before the
expiry of 30 days), is it necessary for the
Prescribed Authority to re-issue notices
under section 9(1) and (2) of the Act to
tenure-holder to comply with the provisions
of the Act?"

13. The Division Bench answered
the questions as follows:

"1. Where a tenure-holder dies
after 8th of June, 1973, and before the
publication of notice under section 9 of the
Act, the Act does not contemplate taking of
any proceedings for determining the surplus
land of such tenure-holder and as such no
question of considering any one as tenureholder in his place arises. Sub-rule (2) of
Rule 19 therefore is ultra vires and cannot
be relied upon for any purpose.

2. Sub-rules (3) and (4) of Rule 19
are within the powers of rule-making
1784 INDIAN LAW REPORTS ALLAHABAD SERIES
authority and they are not repugnant to the
provisions under sections 9 and 10 of the
Act.

3. As we are of the opinion that no
proceedings for declaring the land of a
tenure-holder who is dead on the date of
notification under section 9 of the Act, can
be taken, question no. 3 does not arise.

4. In view of our opinion that no
proceedings under sections 9 and 10 can be
taken in respect of holding of a tenureholder who dies before the publication of
general notice under section 9, question no.
4 does not arise.

5. In case, when a recorded
tenure-holder dies soon after publication of
general notice in the official Gazette, it is
not necessary for the Prescribed Authority
to reissue a notice under sections 9(1) and
9(2) of the Act. It will be sufficient, if the
Presented Authority proceeds to serve the
notice on an executor, administrator or
other legal representative of the tenureholder with the statement prepared by him
under section 10(2) of the Act in accordance
with Rules 19(3) and 19(4) of the Rules
framed under the Act."

14. 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.

15. 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.

16. 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.

17. 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.

18. Accordingly, the writ petition is
allowed.
The
impugned
order
dated
02.05.1985, passed by the Prescribed
Authority (Ceiling), Tehsil Malihabad,
District Lucknow in Case No. 7, 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 learned
5 All. Vivek Kumar Pandey Vs. State of U.P. & Ors.
1785
Additional
Commissioner
(Judicial),
Lucknow Division, Lucknow are hereby
quashed.

19. However, it will be open for the
authorities to institute fresh proceedings
under the Ceiling Act against the petitioners,
in accordance with law.

20. The parties will bear their own
costs of litigation.
----------
(2024) 5 ILRA 1785
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ - C No. 3996 of 2024

Vivek Kumar Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Pawan Kumar Pandey, Shashank Singh

Counsel for the Respondents:
C.S.C., Mohan Singh

Civil
Law
-
order
rejecting
the
representation
of
the
petitioner
on
compassionate ground upon death of his
grandfather-under
challenge-GO
dated
05.08.2019 deals with allotment of fair
price shops-definition of family-same as in
Cluase 2(p) of the Uttar Pradesh Essential
Commodities (Regulation of Sale and
Distribution
Control)
Order,
2016-
Government policy amended to include
daughter-in-law in the definition of familygrandson not included-policy not arbitraryno illegality in the impugned order-petition
dismissed. (Paras 15, 16, 18 and 21)

HELD:
This Court can make any interference in policy
laid down by the Government for compassionate
appointment of the dependants of deceased fair
price shop holders, only on the limited grounds
recognized by law in this regard. (Para 18)

As the Government has framed a policy for
compassionate appointment of dependants of
deceased fair price shop licensees by issuing the
Government Order dated 05.08.2019 and it has
decided to adopt the same definition of family for
the purpose of compassionate appointments as is
mentioned in Clause 2(p) of the Control Order,
2016, and when this Court interfered in some
matters to enlarge the scope of this definition,
the Government decided to amend the policy and
issued
another
Government
Order
dated
28.02.2022 so as to modify the definition of
family to the extent of including a daughter-inlaw, who is wholly dependent on the head of the
family and the Government did not think it proper
to include a Grand-son of the deceased also to be
eligible for compassionate appointment, this
policy of the Government cannot be said to be
arbitrary
or
unreasonable.
In
these
circumstances, this Court finds no good ground
to interfere in the Government's policy to as to
issue a direction for appointment of the Grandson of the deceased fair price shop owner on
compassionate ground. (Para 21)

Petition dismissed. (E-14)

List of Cases cited:

1. Writ Petition No.2899 (MS) of 2015 (Ashok
Kumar Vs St. of U.P. through Principal Secretary,
Food & Rasad Department and two others

2. Kusumlata Vs St. of U.P., 2022 SCC OnLine All
1025

3. Shri Sitaram Sugar Co. Ltd. Vs Union of India,
(1990) 3 SCC 223

4. M.P. Oil Extraction Vs St. of M.P., (1997) 7 SCC 592

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

1. Heard Shri Pawan Kumar Pandey,
learned counsel for the petitioner, Shri S.K.