# Bhuvnendra Singh v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 636
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-20
- **Case number:** Civil Misc. Writ Petition No. 32251 of 1994
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhuvnendra-singh-v-state-of-u-p-and-others-42241
- **Pages:** 5

## Headnote

Holding Act, 1966-Section 3 (8) readwith
Section 10 (2)-surplus land-land earlier
recorded with name of Father-died on
27.11.1983 and mother died on 17.04.87after name recorded as neutral heir-notice
issued-petitioner
replied
that
sale
transaction made after 24.01.71 as upto
84 the land was within ceiling limitignored
by
authority-held-illegal-land
recorded as Pond covered by water-not
within
definition
of
land-held-land
submerged
under
water
should
be
exempted-non consideration these aspect-
2 All] Bhuvnendra Singh V. State of U.P. and others
637
held-great illegality-order quashed matter
remitted back for fresh consideration.

Held: Para 5 and 9

The details of the sale deed have been
given in para 23 and it shows that out of
six deeds, there was only one sale deed
dated 13.6.1986 which was executed after
devolution
of
the
holding
of
the
petitioner's father upon petitioner after his
death and rest of the deeds were executed
when petitioner's holding was in his own
rights and within the ceiling limits since
the same was distinguished and other than
holdings of petitioner's father, who was
already subjected to ceiling proceedings
separately at that time. In my view, this
aspect has not been validly and legally
considered by the authorities concerned
and therefore, on this aspect the matters
needs be reconsidered.

In the present case it is not in dispute that
Gata No.604 on the spot actually was the
land submerged under water and a pond.
That be so, in view of the above exposition
of law, it would not qualify to be a land so
as to be included for the purpose of
determining surplus land of the petitioner
along with his other holding.
Case law discussed:
1978 AWC 574; 2008 (105) RD 185

## Text

636 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

3. The challenge made in the writ
petition is to the order dated 24.12.2009
passed by the Collector Mahamaya
Nagar and the appellate order thereto
dated 20.4.2011 passed by the Chief
Controlling Revenue Authority.

4. The argument advanced by the
learned counsel for the petitioner is that
the authorities could not have determined
the deficiency in stamp duty in excess of
the amount shown in the show cause
notice.

5. The show cause notice is on
record. It requires the petitioner to
submit explanation as to why deficiency
in stamp duty of Rs. 8,37,000/- may not
be determined in connection with the
instrument dated 13.7.2005. It means that
the authorities were themselves satisfied
that
there
was
deficiency
of
Rs.
8,37,000/- and not more. The petitioner
as such was given opportunity only in
that regard. There was no notice to the
petitioner to submit reply as to why
penalty of Rs. 30,11,160/- may not be
imposed.

6. The show cause notice was never
modified and no corrigendum in that
regard was issued.

7.

In
view
of
the
above,
determination of deficiency in excess of
the amount mentioned in the notice is
clearly in violation of the principles of
the natural justice and can not be
sustained in law. The authorities could
not have travelled beyond the show
cause
notice
in
determining
the
deficiency.

8. Accordingly, the impugned
orders dated 24.12.2009 passed by the
Collector and 20.4.2011 passed by the
Chief Controlling Revenue Authority are
quashed and the matter is remanded to
the
Collector
for
determining
the
deficiency afresh keeping in view the
show
cause
notice
issued
to
the
petitioner.

9. The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 32251 of 1994

Bhuvnendra Singh

 ...Petitioner
Versus
State of U.P. & another ...Respondents

Counsel for the Petitioner:
Sri M.S. Singh
Sri Ashok Khare
Sri M.K. Shukla
Sri Manu Khare
Sri Manish Singh
Sri H.O.K. Srivastava

Counsel for the Respondents:
S.C.

U.P. Imposition of Ceiling on Land
Holding Act, 1966-Section 3 (8) readwith
Section 10 (2)-surplus land-land earlier
recorded with name of Father-died on
27.11.1983 and mother died on 17.04.87after name recorded as neutral heir-notice
issued-petitioner
replied
that
sale
transaction made after 24.01.71 as upto
84 the land was within ceiling limitignored
by
authority-held-illegal-land
recorded as Pond covered by water-not
within
definition
of
land-held-land
submerged
under
water
should
be
exempted-non consideration these aspect-
2 All] Bhuvnendra Singh V. State of U.P. and others
637
held-great illegality-order quashed matter
remitted back for fresh consideration.

Held: Para 5 and 9

The details of the sale deed have been
given in para 23 and it shows that out of
six deeds, there was only one sale deed
dated 13.6.1986 which was executed after
devolution
of
the
holding
of
the
petitioner's father upon petitioner after his
death and rest of the deeds were executed
when petitioner's holding was in his own
rights and within the ceiling limits since
the same was distinguished and other than
holdings of petitioner's father, who was
already subjected to ceiling proceedings
separately at that time. In my view, this
aspect has not been validly and legally
considered by the authorities concerned
and therefore, on this aspect the matters
needs be reconsidered.

In the present case it is not in dispute that
Gata No.604 on the spot actually was the
land submerged under water and a pond.
That be so, in view of the above exposition
of law, it would not qualify to be a land so
as to be included for the purpose of
determining surplus land of the petitioner
along with his other holding.
Case law discussed:
1978 AWC 574; 2008 (105) RD 185

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Both these matters relates to
common questions of law and facts and
therefore, as requested and agreed by learned
counsel for the parties, are being heard and
decided by this common judgement.

2. Heard Sri Manu Khare, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

3. This writ petition has arisen out of
the orders passed by ceiling authorities in the
proceedings arising out of U.P. Imposition of
Ceiling on Land Holdings Act, 1960
(hereinafter referred to as "Act 1960"). The
Prescribed
Authority
by
order
dated
28.9.1993 (Annexure 1 to the writ petition)
declared 5.11 acres at Village Malakapur,
Pargana Koda, District Fatehpur being Gata
No.450 and 480 irrigated land surplus and
the Appellate Authority has confirmed the
said order by rejecting petitioner's appeal
vide order dated 30.5.1994.

4. Sri Manu Khare, learned counsel
appearing for the petitioner contended that
earlier ceiling proceedings were initiated
against petitioner's father and had attained
finality. However, on 27.11.1983 the
petitioner's father died and on 17.4.1987 his
mother died. The holding of the petitioner's
parent naturally succeeded by the petitioner
as a result whereof his holding exceeded the
prescribed limit giving an occasion to the
ceiling
authorities
to
initiate
ceiling
proceedings by issuing a notice dated
1.7.1989 under Section 10(2) of the Act
1960. After considering the objections filed
by the petitioner, 11 issues were framed by
Prescribed Authority. Learned counsel for
the petitioner contended that much before the
death of the petitioner's parents, a sizeable
area of holding belong to petitioner was
already transferred by way of several sale
deeds executed to various persons for bona
fide and valid consideration. The same
therefore could not have been included to
determine surplus land against the petitioner.
The
authorities
below
have
rejected
petitioner's contention only on the ground
that all the aforesaid sale deed were
registered after 24.1.1971 ignoring the fact
that upto 1983 the land in its entirety did not
belong to the petitioner and whatever holding
the petitioner had up to 1983 i.e. till the death
of his father was within ceiling limit.
Therefore in a bona fide manner he claims to
have executed certain sale deeds, and, unless
the same are found to be vitiated on account
638 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
of lack of bona fide and valid consideration,
the same could not have been excluded only
on the ground that they were executed after
24.1.1971.

5. The details of the sale deed have
been given in para 23 and it shows that out of
six deeds, there was only one sale deed dated
13.6.1986
which
was
executed
after
devolution of the holding of the petitioner's
father upon petitioner after his death and rest
of the deeds were executed when petitioner's
holding was in his own rights and within the
ceiling
limits
since
the
same
was
distinguished and other than holdings of
petitioner's father, who was already subjected
to ceiling proceedings separately at that time.
In my view, this aspect has not been validly
and legally considered by the authorities
concerned and therefore, on this aspect the
matters needs be reconsidered.

6. Secondly, it is contended that Gata
No.233, 350 and 440 mentioned in the notice
were grove land and therefore, had to be
exempted. On this aspect issue no.4 was
framed. The State contended that Gata
No.350 was a typing error and it was actually
450. In respect to the land in Gata No.233
and 440, findings shows that in 440 it was
registered as grove, mentioning the number
of trees being 40 of guava and one of mango.
Section 3(8) of the Act 1960 while defining
grove land excluded the holding having trees
of guava, papaya, banana and vine. In Gata
No.440 virtually all the trees of guava and
only one tree of mango which would not
make it a grove land under Section 3(8) but
the land virtually having trees of guava, it
would not qualify to be a 'grove land' under
Section 3(8) of the Act 1960. Similarly, since
Gata No.233 have all the trees of guava, it
also rightly has not been held to be a 'grove
land'. However, in respect to Gata No.450,
nothing has been said. As pointed out
otherwise by the petitioner, no interference is
called for in the aforesaid findings.

7. Learned counsel for the petitioner
has relied on a decision of this Court in
Hamid Husain Vs. State of U.P., 1978
AWC 574. The aforesaid judgment on the
contrary, in my view, does not help the
petitioner but goes against him inasmuch as
in para 6 thereof it says:

"The trees which do not constitute
grove within the meaning of this definition
are guava, papaya, banana or vine trees."

8. Lastly, it is contended that Gata
No.604 is a pond and the land being sub
merged in the water does not fall within the
definition of 'land' hence could not have been
included to determine surplus area of the
holding belong to the petitioner. This
question has been considered vide issue No.8
and the Courts below have simply observed
that under Act 1960 there is no provision to
exclude a land which is a pond on the spot.
In my view, the authorities below have erred
in law in deciding issue no.8. This Court has
considered this aspect in Vibhuti Kumar
Bajpai Vs. State of U.P. through Collector
Lucknow & Ors., 2008(105) RD 185 and in
para 12 and 13 of the judgment it has said as
under:

12. The identical controversy arose in a
case before this Court in the case of Tej Pal
Singh v. State of U.P. and Ors. 1999 (90) RD
424, and the Court, while observing that in
spite of directions of the Supreme Court
dated 01.12.1987 given in SLP No. 3654 of
1987 that the petitioner's ceiling area be redetermined after arriving at a finding as to
whether the plots of the petitioner are
irrigated and submerged under water or not,
the courts below have not adverted to the
question involved in the light of judgment of
2 All] Bhuvnendra Singh V. State of U.P. and others
639
the Supreme Court, allowed the writ petition
and set aside the orders impugned and also
remanded the matter to the Prescribed
Authority for making spot inspection. The
relevant portion of the said judgment is as
follows:

"3. The Prescribed Authority and in
appeal,
the
Additional
Commissioner
mentioned in their judgments the two
directions given by the Supreme Court which
were required to be followed by the
respondents, but while deciding the case of
the petitioner, only gave lip service to the
directions of the Supreme Court. The
directions of the Apex Court are binding and
its non-compliance directly or indirectly
amounts to non-application of mind.

4. The question as to whether the land
of the petitioner is submerged under water or
not cannot be decided only from the entries
mentioned in the records or upon the
statement of Lekhpal. In view of the
directions of the Apex Court, it was
incumbent upon the Prescribed Authority to
have made spot inspection in the presence of
the petitioner and to have prepared a
detailed report about the plots which are
alleged to be submerged under water."

13. In another case Rani Prem Kunwar
v. District Judge, Bareilly and Ors. 1978
AWC 431 again the question arose as to
whether the land submerged with water can
be treated to be the land for the purposes of
the Act. This Court after considering the
definition of the land laid down as under:

"5. The preamble makes it clear that
the Act has been passed to provide land
for landless agricultural labourers and
for a more equitable distribution of land
as also in the interest of community to
ensure increased agricultural production
and for other public purposes as best to
subserve the common good. The object of
the Act, therefore, is to carve out land
from the large holdings so that the
remaining holdings may be manageable
and capable of more intensive cultivation
as also to provide land to whose who
could not have got it or who have very
little of it. Obviously this purpose cannot
be achieved unless there is land. A land
which remains submerged with water and
which cannot be used for any purpose
contemplated by Section 3(14) of U.P. Act
I of 1951 cannot be regarded as land nor
it can serve the purposes contemplated by
the preamble of the U.P. Imposition of
Ceiling on Land Holdings Act.

6. The learned Standing Counsel has
referred to Sections 3(2), 3(9), 3(16) and
3(17) which define ceiling area, holding,
surplus
land
and
tenure-holders
respectively. His contention is that if the
petitioner is tenure-holder of plot No. 135
and it is not exempted from Section 6 of
the Act it will be included in determining
the ceiling area. I am reluctant to
subscribe to this view because in all these
proceedings the word used is 'land' which
is defined in Section 3(14) of U.P. Act I of
1951 only. As discussed above, plot No.
135 does not fall within the definition of
land and it cannot be taken into
consideration in determining the ceiling
area.
The
learned
District
Judge
committed manifest error of law by
including it in that area."

9. In the present case it is not in
dispute that Gata No.604 on the spot
actually was the land submerged under
water and a pond. That be so, in view of
the above exposition of law, it would not
qualify to be a land so as to be included
for the purpose of determining surplus
640 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
land of the petitioner along with his other
holding.

10. No other issue has been argued.

11. In view of the above discussion
it is evident that the matter need be
reconsidered by the authorities below on
the issues discussed above.

12. The writ petition is allowed. The
impugned orders dated 28.9.1993 and
30.5.1994 (Annexures No. 1 and 2 to the
writ petition) are hereby set aside. The
matter is remanded to the Prescribed
Authority to reconsider the matter and
pass a fresh order in accordance with law
after affording opportunity of hearing to
all concerned parties.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2012

BEFORE
THE HON'BLE SHASHI KANT GUPTA, J.

Civil Misc. Writ Petition No. 48329 of 2011

Anil Kumar

 ...Petitioner
Versus
Kishan Lal

 ...Respondents

Counsel for the Petitioner:
Sri R.D.Tiwari
Sri M.D.Singh 'Shekhar'

Counsel for the Respondents:
Sri Sandeep Agarwal
C.S.C.
Sri Rahul Sahai

Constitution of India, Article 226-suit for
arrear of Rent and eviction-denied by
Trail Court-with findings of default in
rent-future benefits of Section 114 of
T.P. Act not available-in absence of
written
argument
between
partiesinterference by Revisional Court taking
otherwise-views-held-illegal
being
contrary to law.

Held: Para 8

Since
there
is
no
written
lease
agreement between the parties, the
provisions of Section 111(g) is not
applicable, therefore, the respondent can
not take benefit of Section 114 of the
T.P. Act.
Case law discussed:
2005 (3) Allahabad Rent Cases, Page 764

(Delivered by Hon'ble Shashi Kant Gupta,J. )

1. This writ petition has been filed
against the judgement and order dated
18.07.2011 passed by Lower Appellate
Court/Additional District and Sessions
Judge, Court No. 5, Mathura, whereby
the order passed by the Trial Court
dated 26.10.2009 was set aside and the
matter was remanded to the Trial Court.

Brief facts of the case as set out
in the writ petition are as follows:-

2. The petitioner purchased the
disputed shop by registered sale deed
dated 03.06.2004. The petitioner sent a
registered notice under Section 106 of
Transfer of Property Act, 1882 (in short
"T.P. Act") which was duly served upon
the tenant-opposite party and also
replied
by
him.
Thereafter,
the
petitioner filed a S.C.C. Suit No. 8 of
2005 for arrears of rent and ejectment.
The respondent-tenant filed a written
statement admitting the fact that the
petitioner is a landlord and the rent is
Rs.150/- per month.

3. The Trial Court by order dated
26.10.2009 decreed the suit for arrears
of rent holding that the U.P. Act No.