# Bhukhal v. The Commissioner Gorakhpur & Ors

- **Citation:** (2024) 7 ILRA 306
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-24
- **Case number:** Writ C No. 31553 of 2002
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhukhal-v-the-commissioner-gorakhpur-ors-54532
- **Pages:** 6

## Headnote

A. Civil Law - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Section 10(2) &
11(2) - Objection u/s 11(2) of the Ceiling
Act filed by the petitioner on the basis of a
registered sale deed executed in his
favour
before
the
relevant
date,
24.01.1971, was allowed after hearing the
objector as well as the State - Appeal filed
by the State after five years was allowed
by the Appellate Court, and the matter
was remanded back before the Prescribed
Authority for fresh consideration - Appeal
filed in a similar situation of the remaining
area of the same plot was allowed by the
Commissioner.
Held:
Order
of
the
Prescribed Authority cannot be set aside
in appeal unless there is sufficient ground
for
setting
aside
the
order
of
the
Prescribed
Authority.
Remand
order
passed by the Commissioner in appeal is
nothing but an abuse of the process of
law, as the Prescribed Authority has
already decided the objection of the
petitioner
on
merit,
taking
into
consideration the sale deed executed in
the year 1960, which has not yet been
cancelled. (Para 12, 14)

Allowed. (E-5)

List of Cases cited:

Ramadhar Singh Vs Prescribed Authority & ors.,
1994 (Supp 3) SCC 702

## Text

306 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration of the facts of the case and
has recorded reasons. Ergo, the impugned
decision
for
impounding
petitioner's
passport contained in the impugned order
dated 30.05.2023 cannot be sustained in the
eyes of law.

15. In view of the aforesaid
reasons, this writ petition is allowed. The
impugned
decision
of
impounding
petitioner's
passport
No.
M1266202
contained
in
impugned
order
dated
30.05.2023 is quashed. The Respondent
No. 2 is directed to reconsider the entire
matter, grant an opportunity of hearing to
the petitioner and thereafter pass a fresh
order within a period of six weeks from the
date of service of a copy of this order.
---------
(2024) 7 ILRA 306
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2024

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ C No. 31553 of 2002

Bhukhal ....Petitioner
Versus
The Commissioner Gorakhpur & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri H.P. Mishra, Sri Hari Pratap Gupta, Sri
R.K. Gupta, Sri Upendra Kumar Mishra

Counsel for the Respondents:
C.S.C.

A. Civil Law - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Section 10(2) &
11(2) - Objection u/s 11(2) of the Ceiling
Act filed by the petitioner on the basis of a
registered sale deed executed in his
favour
before
the
relevant
date,
24.01.1971, was allowed after hearing the
objector as well as the State - Appeal filed
by the State after five years was allowed
by the Appellate Court, and the matter
was remanded back before the Prescribed
Authority for fresh consideration - Appeal
filed in a similar situation of the remaining
area of the same plot was allowed by the
Commissioner.
Held:
Order
of
the
Prescribed Authority cannot be set aside
in appeal unless there is sufficient ground
for
setting
aside
the
order
of
the
Prescribed
Authority.
Remand
order
passed by the Commissioner in appeal is
nothing but an abuse of the process of
law, as the Prescribed Authority has
already decided the objection of the
petitioner
on
merit,
taking
into
consideration the sale deed executed in
the year 1960, which has not yet been
cancelled. (Para 12, 14)

Allowed. (E-5)

List of Cases cited:

Ramadhar Singh Vs Prescribed Authority & ors.,
1994 (Supp 3) SCC 702

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Sri Satyendra Pratap Singh,
learned counsel for the petitioner and Sri
Krishna Mohan Mishra, learned counsel for
the State.

2. Brief facts of the case are that
plot no. 156 area 0.50 Dismal situated in
village Ahirauli Rai, Tappa Parwarpar,
Pargana Sidhuwa Jobna, Tehsil Kasya,
District-Deoria
at
present
District
Kushinagar was purchased by the petitioner
by way of a registered sale deed executed
in his favour on 10.03.1960. In proceeding
under Section 10 (2) of U.P. Imposition of
Ceiling on Land Holdings Act 1960
hereinafter to referred as Ceiling Act, the
aforementioned plot no. 156 was declared
7 All. Bhukhal Vs. The Commissioner Gorakhpur & Ors.
307
as surplus vide order dated 19.02.1990
without any notice to petitioner accordingly
petitioner filed an objection under Section
11 (2) of the Ceiling Act stating that
petitioner had purchased the plot in
question by way of registered sale deed
from the then recorded tenure holder Laxmi
Pratap Narayan Singh, but without any
notice and opportunity to petitioner, the
plot in question has been declared as
surplus. State has filed his reply in the
aforementioned proceeding under Section
11 (2) of the Ceiling Act. The Prescribed
Authority vide order dated 03.05.1994
allowed the objection of the petitioner
under Section 11 (2) of the Ceiling Act
and separated the plot no. 156 area 0.50
Dismil from the Ceiling proceedings.
Against the said order dated 03.05.1994,
State
filed
an
appeal
before
Commissioner along with the prayer for
condonation of delay of five years. The
aforementioned appeal was registered as
appeal
no.
1/K
of
1999.
The
Commissioner
vide
order
dated
31.05.2022 allowed the appeal, set aside
the order of the Prescribed Authority
dated 03.05.1994 and remanded the
matter before the Prescribed Authority
for fresh decision of the dispute under
Section 11 (2) of the Ceiling Act after
affording opportunity of hearing to both
the parties. Hence, the present petition on
behalf of petitioner for the following
reliefs:-

 i) issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 31.05.2002.

 ii) issue a writ, order or direction
in the nature of mandamus commanding
the respondents not to dispossess the
petitioner from the land in dispute in
pursuant to order dated 31.05.2002.
 iii) issue any other and further
suitable order or direction in the nature
which this Hon'ble Court may deem fit
and proper in the circumstances of the
case.

 iv) award cost of the writ petition
to the petitioner.

3. This Court entertained the
matter on 05.08.2002 and stayed the
operation of the order dated 03.05.2002.

4. In pursuance of the order dated
05.08.2002 the State has filed Counter
affidavit and petitioner has filed his
rejoinder affidavit.

5. Learned counsel for the
petitioner submitted that the objection
under Section 11 (2) of the Ceiling Act
filed by the petitioner on the basis of
registered
sale
deed
executed
on
10.03.1960 in his favour was allowed after
giving proper opportunity to the State, as
such the order passed by the Prescribed
Authority under Section 11 (2) of the
Ceiling Act can not be set aside in appeal
filed by the State after five years from the
date of judgment of the Prescribed
Authority. He further submitted that the
appellate Court after granting benefit of
Section 5 of Limitation Act, allowed the
appeal setting aside the order of Prescribed
Authority and remanded the matter back to
the Prescribed Authority for fresh decision
of objection, which is abuse of process of
law. He next submitted that the sale deed
executed in favour of the petitioner has not
been cancelled, as such the order passed
under Section 11 (2) of the Ceiling Act can
not be set aside in appeal filed by the State.
He further submitted that in respect to the
remaining area of the same plot, another
sale deed was executed by the then
308 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded owner Laxmi Pratap Narayan
Singh in favour of one Jagar Nath and
Others and under similar circumstances his
appeal was allowed by the Commissioner,
as such the claim of the petitioner can not
be refused by the Ceiling Authorities. He
submitted
that
under
the
impugned
appellate order dated 31.05.2002 the matter
has been again remanded before the
Prescribed Authority for fresh decision,
which is illegal, as such the same is liable
to be set aside and the order passed by the
Prescribed
Authority
deserves
to
be
maintained.

6. On the other hand, Sri Krishna
Mohan Mishra, learned Additional Chief
Standing Counsel, submitted that the
objection under Section 11 (2) of the
Ceiling Act filed by the petitioner has been
allowed in arbitrary manner, as such the
said order has rightly been set aside in
appeal filed by State. He next submitted
that petitioner has not taken any steps to get
his name recorded in the revenue record on
the basis of the sale deed executed on
10.03.1960, as such the sale deed relied
upon by the petitioner can not be taken into
consideration. He next submitted that by
the appellate order the matter has been
remanded back to the Prescribed Authority
for fresh decision of the dispute, as such no
interference is required in the matter. He
further submitted that there was a delay in
filing the appeal before the Commissioner,
which has been properly explained in the
affidavit filed in support of the appeal,
accordingly the delay was rightly condoned
by the appellate Court. He next submitted
that no interference is required in the matter
and the petition is liable to be dismissed.

7. I have considered the arguments
advanced by the Counsel for the parties and
the perused the record.
8. There is no dispute about the
fact that objection under Section 11 (2) of
the Ceiling Act filed by the petitioner was
allowed by the Prescribed Authority, vide
order dated 03.05.1994, and plot no. 156
area 0.5 Dismil was separated from the
Ceiling proceedings. There is also no
dispute about the fact that on a time-barred
appeal filed by the State against the order
dated 03.05.1994, the matter was remanded
back before the Prescribed Authority for
fresh decision of the objection filed under
Section 11 (2) of the Ceiling Act.

9. In order to redress the
controversy involved in the matter a
perusal of Section 5 (1) Explanation I & II
and the Ceiling Act will be relevant, which
are as under:-

 Section
5
:-
Imposition
of
Ceiling.
-
(1)
[On
and
from
the
commencement of the Uttar Pradesh
Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972], no tenureholder shall be entitled to hold in the
aggregate through-out Uttar Pradesh, any
land in excess of the ceiling area
applicable to him.

 [Explanation I. - In determining
the ceiling area applicable to a tenureholder, all land held by him in his own
right, whether in his own name, or
ostensibly in the name of any other
person, shall be taken into account.

 Explanation II. - [If on or before
January 24,1971, any land was held by a
person who continues to be in its actual
cultivatory possession and the name of
any other person is entered in the annual
5 register after the said date] either in
addition to or to the exclusion of the
former and whether on the basis of a deed
7 All. Bhukhal Vs. The Commissioner Gorakhpur & Ors.
309
of transfer or licence or on the basis of a
decree, it shall be presumed, unless the
contrary is proved to the satisfaction of the
prescribed
authority,
that
the
first
mentioned person continues to hold the
land and that it is so held by him
ostensibly in the name of the second
mentioned person.]

 Section 11(2)- The Prescribed
Authority shall, on application made
within thirty days, from the date of the
order under sub-section (1) by a tenure
holder aggrieved by such order passed in
his absence and on sufficient cause being
shown for his absence, set aside the order
and allow such tenure-holder to file
objection against the statement prepared
under Section 10 and proceed to decide
the
same
in
accordance
with
the
provisions of Section 12.

10. Perusal of the aforementioned
provision clearly demonstrates that the
sale deed executed before 24.01.1971 can
not be ignored by the Ceiling Authorities.

11. Perusal of relevant portion of
finding of fact recorded by prescribed
Authority will be relevant which is as
under:-

"न्यायालय
नियत
प्राधिकारी/अपर
जिलाधिकारी (वि०/रा०) देिररया।

सरकार
 । मुकदमा अन्तर्गत िारा 11
(2)

बिाम
। सीललिंर् अधिनियम नििासी

लक्ष्मी प्रताप िरायि लसिंह
।
सा०
अहहरौली राय, तप्पा- परिरपार

मृतक िाररस प्रा०ि० लसिंह आहद ।
पर०-
लस०िो०, तह०- हाटा,

(आपविकताग भूखल)
। जिला देिररया
निर्गय
.........................................................
.........................................................
.........................................................
...........................

मैंिे
आपविकताग
के
विद्िाि
अधििक्ता तथा राज्य सरकार के तरफ से
विद्िाि जिला शासकीय अधििक्ता (माल) के
तकग को सुिा तथा पत्रािली का सम्यक
अिलोकि ककया।

आपविकताग के विद्िाि अधििक्ता
की तरफ से यह कहा र्या कक वििाहदत भूलम
का बैिामा सिंशोधित सीललिंर् अधिनियम लार्ू
होिे की नियत हदिािंक 24.1.71 के बहुत पूिग का
है इसललए इसे खातेदार की भूलम मािकर
अनतररक्त घोवित िहीिं ककया िा सकता। इसके
विरोि में जिला शासकीय अधििक्ता (माल) िे
यह तकग प्रस्तुत ककया कक आपविकताग द्िारा
ललया र्या बैिामा पुरािी सीललिंर् अधिनियम के
लार्ू होिे की नियत नतधथ हदिािंक 20.8.1959 के
बाद का है, इसललए सीललिंर् प्रयोिि के ललए
इसे उपेक्षर्ीय समझा िाये।

मैंिे पत्रािली का अिलोकि ककया।
आपविकताग के विद्िाि अधििक्ता के कथि में
बल है, क्योंकक खातेदार के विरूद्ि सिंशोधित
सीललिंर् अधिनियम के अन्तर्गत सीललिंर् िोहटस
िारी की र्यी और इन्हीिं िम्बराि के निस्फ
रकबे के बाित िर्रिाथ आहद िे आयुक्त
र्ोरखपुर मण्डल, र्ोरखपुर के न्यायालय में
सीललिंर् अपील दायर ककया था जिसे अपर
आयुक्त न्यानयक, र्ोरखपुर मण्डल, र्ोरखपुर िे
अपिे निर्गय हदिािंक 27.5.91 द्िारा सिंशोधित
सीललिंर् अधिनियम की नियत नतधथ हदिािंक
24.1.71 के पूिग का बैिामा मािते हुए सीललिंर्
िोहटस से पृथक करिे का आदेश पाररत कर
310 INDIAN LAW REPORTS ALLAHABAD SERIES
हदया है। उसी के निस्फ रकबे को सीललिंर्
िोहटस में बिे रहिे का कोई औधित्य िहीिं रह
िाता है।

आदेश

उपयुगक्त वििेििा के आिार पर
आपविकताग की आपवि िारा 11 (2) स्िीकार की
िाती है तथा र्ाटा सिंख्या 156 लम०/0-50 डड०
िानिब उिर आपविकताग भूखल की भूलमिरी की
आरािी मािते हुए खातेदार लक्ष्मी प्रताप
िरायि लसिंह की सीललिंर् िोहटस से पृथक ककया
िाता है। आदेश की एक प्रनत प्रभारी अधिकारी
सीललिंर्/तहसीलदार हाटा को आिश्यक कायगिाही
हेतु भेिी िािे। िाद अिुपालि पत्रािली दाखखल
दफ्तर हो।

हदिािंक - 3.5.94
ह० अप०
(राि कुमार सिाि) नियत प्राधिकारी/अपर
जिलाधिकारी (वि०/रा)
देिररया।

12. The objection under Section 11
(2) of the Ceiling Act filed by the petitioner
on the basis of registered sale deed
executed in his favour before the relevant
date was allowed after hearing the objector
as well as the State, as such the order of
prescribed Authority dated 03.05.1994 can
not be set aside in appeal unless there is
sufficient evidence before Appellate Court.
The appeal filed by the State after five
years from the date of judgment passed by
the Prescribed Authority under Section 11
(2) of the Ceiling Act has been allowed by
Appellate Court and the matter has been
remanded back before the prescribed
Authority for fresh consideration, which is
abuse of process of law, as the Prescribed
Authority has already decided the objection
of the petitioner on merit taking into
consideration the sale deed executed in
year 1960, which has yet not been
cancelled. It is also material that appeal
filed in similar situation on the basis of the
sale deed executed by the Laxmi Pratap
Narayan Singh in favour of another person
in respect to the remaining area of the same
plot
has
been
allowed
by
the
Commissioner.

13. Hon'ble Apex Court in the
case reported in 1994 (Supp3) SCC 702
Ramadhar Singh Versus prescribed
Authority and Others has held that saledeed executed prior to 29.01.1971 can not
be ignored paragraph no. 2 of the judgment
rendered in Ramadhar Singh (Supra) will
be relevant for perusal, which is as under:-

 2. "It has to be seen under what
provision of the Act can the validity of the
sale executed prior to January 24, 1971,
the appointed day, be gone into? Subsection (6) of Section 5 of the said Act says
that in January, 1971, which but for the
transfer would have been declared as
surplus land under the Act shall be
ignored and not taken into account. The
proviso (b) thereto, inter alia, provides
that a transfer proved to the satisfaction of
the prescribed authority to be in good faith
and for adequate consideration and an
irrevocable instrument, not being of
benami transaction or for immediate or
deferred benefit for the tenureholder or
other members of the family, is outside the
scope
fo
the
aforesaid
sub-section.
Thereafter explanation II provides that
the burden of proving that a case falls
within clause (b) of the proviso shall rest
with the party claiming its benefit.
Apparently, it is under this provision of
law that the validity of the sake deed dated
April 22, 1969 was put to test. The
7 All. M/S Shakuntla Educational & Welfare Society Vs. Yamuna Expressway Industrial
 Development Authority
311
authorities under the Act took the view
that the sale deed was not genuine
because no consideration appears to have
passed before the Sub-Registrar and that
it was a transfer between father and son
raising a dust of suspicion. Otherwise it
was not disputed on fact that the sale had
been effected by means of a registered
deed in which the passing of consideration
was mentioned as a recital. The existence
of the sale deed being not disputed and it
having taken place, as said before, on
February 24, 1969, prior to the appointed
day that is January 24, 1971, the inquiry
regarding the validity of the sale deed
under sub-section (6) of Section 5 was
totally misplaced. Thereunder, as it
appears to us, the appropriate authority
had no jurisdiction to be put the validity of
the sale deed to test since his jurisdiction
arose only when the deed of transfer had
been effected on or after the appointed
day. Not only the first and the appellate
authority under the Act persisted in that
view, but the High Court tooo proceeded
on that basis. The effort of the appellant to
have it declared that the authorities had
no jurisdiction to in validate the sale
under sub-section (6) of Section 5 when
read with Explanation II to sub-section
(1) of Section 5 also was a futile attempt
because the High Court followed the path,
as did the authorities under the Act, and
rejected the writ petition. We are of the
view that this was a wholly erroneous
approach. Sub-section (6) of Section 5 did
not confer jurisdiction on the authorities
to determine the validity of the sale and if
that is so any finding of theirs as to the
contents of the sale is of no assistance. In
the result the appeal must succeed.
Accordingly, allowing the same we set
aside all the orders of the authorities
below as also that of the High Court.

14. Considering the findings
recorded by the Prescribed Authority under
Section 11 (2) Ceiling Act while allowing
the objection filed by the petitioner, there
was no occasion for the Commissioner to
allow the appeal filed by the State and
remand the matter back before Prescribed
Authority for fresh consideration of the
objection. The remand order passed by the
Commissioner in appeal is nothing, but
abuse of the process of law.

15. Considering the entire facts
and circumstances of the case as well as
ratio of law laid down by Hon'ble Apex
Court in Ramadhar Singh (Supra) the
impugned appellate order dated 31.05.2022
is hereby set aside and order of the
Prescribed Authority dated 03.05.1994 is
affirmed.

16. The writ petition stands
allowed.

17. No order as to costs.
---------
(2024) 7 ILRA 311
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Writ C No. 38069 of 2022
And
Writ C No. 2674 of 2023

M/s Shakuntla Educational & Welfare
Society ...Petitioner
Versus
Yamuna
Expressway
Industrial
Development Authority ...Respondent