# Chakra Manoher & Anr v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 1060
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-20
- **Case number:** Writ - C No. 3000014 of 2007
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chakra-manoher-anr-v-state-of-u-p-ors-51408
- **Pages:** 5

## Headnote

Criminal Law - U.P. Imposition of Ceiling
on Land Holdings Act, 1960 - Sections 5,
10(2), 11(2) & 14 - Ceiling Proceedings -
Non-Issuance of Notice - Right to Possession -
Article 226

The
petitioners
challenged
orders
dated
08.03.1990, 26.03.1996, and 10.11.2006 passed
by the Prescribed Authority and Additional
Commissioner in ceiling proceedings under the
U.P. Imposition of Ceiling on Land Holdings Act,
1960, concerning 19.152 acres in Village
Gurchahi, Shrawasti. The land, originally held by
Sampata Devi, devolved to Bindra Devi, from
whom the petitioners purchased it via a
registered sale deed dated 01.09.1970. No
notice under Section 10(2) was issued to the
petitioners, despite their recorded possession
and inclusion in L.H. Form-3, rendering the
proceedings voi The petitioners' application
under Section 11(2) and subsequent appeal
were rejecte Held: Relying on Shantanu
Kumar Vs St. of U.P. (1979 ALL L.J. 1174), the
court held that non-issuance of notice to the
petitioners, whose names appeared in revenue
records and L.H. Form-3, violated Section
10(2), making the proceedings jurisdictionally
defective. Explanation II of Section 5 presumes
possession by the original holder unless proven
otherwise, and the petitioners' sale deed (pre24.01.1971) excluded the land from ceiling
proceedings. The Prescribed Authority's failure
to consider possession and the sale deed,
coupled
with
the
appellate
authority's
affirmation, warranted quashing the orders. The
matter was remitted to the Prescribed Authority
for fresh adjudication within three months, with
the petitioners given four weeks to submit
evidence, including the original sale dee

The writ petition was allowed

Case Law Cited:

## Text

1060 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Further, the petitioner is given
liberty to move an appropriate application
for mutation before the competent authority
for mutating the name of the petitioner in
place of State. On petitioner's moving said
application, necessary orders in terms of
the directions issued by this Court shall be
passed by the competent authority with
expedition in accordance with law.

16. Subject to above directions, the
writ petition stands allowed.
----------
(2024) 2 ILRA 1060
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ - C No. 3000014 of 2007

Chakra Manoher & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Dr. L.P. Misra, Lalta Prasad Misra

Counsel for the Respondents:
C.S.C.

Criminal Law - U.P. Imposition of Ceiling
on Land Holdings Act, 1960 - Sections 5,
10(2), 11(2) & 14 - Ceiling Proceedings -
Non-Issuance of Notice - Right to Possession -
Article 226

The
petitioners
challenged
orders
dated
08.03.1990, 26.03.1996, and 10.11.2006 passed
by the Prescribed Authority and Additional
Commissioner in ceiling proceedings under the
U.P. Imposition of Ceiling on Land Holdings Act,
1960, concerning 19.152 acres in Village
Gurchahi, Shrawasti. The land, originally held by
Sampata Devi, devolved to Bindra Devi, from
whom the petitioners purchased it via a
registered sale deed dated 01.09.1970. No
notice under Section 10(2) was issued to the
petitioners, despite their recorded possession
and inclusion in L.H. Form-3, rendering the
proceedings voi The petitioners' application
under Section 11(2) and subsequent appeal
were rejecte Held: Relying on Shantanu
Kumar Vs St. of U.P. (1979 ALL L.J. 1174), the
court held that non-issuance of notice to the
petitioners, whose names appeared in revenue
records and L.H. Form-3, violated Section
10(2), making the proceedings jurisdictionally
defective. Explanation II of Section 5 presumes
possession by the original holder unless proven
otherwise, and the petitioners' sale deed (pre24.01.1971) excluded the land from ceiling
proceedings. The Prescribed Authority's failure
to consider possession and the sale deed,
coupled
with
the
appellate
authority's
affirmation, warranted quashing the orders. The
matter was remitted to the Prescribed Authority
for fresh adjudication within three months, with
the petitioners given four weeks to submit
evidence, including the original sale dee

The writ petition was allowed

Case Law Cited:

1. Shantanu Kumar Vs St. of U.P., 1979 ALL L.J.
1174

2. Dilbagh Singh Vs St. of U.P., 1978 AWC 393

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Ms. Anapoorna Agnihotri,
Advocate holding brief of Dr. Lalta Prasad
Misra, learned counsel for the petitioners as
well as learned Standing Counsel for the
respondents.

2. By means of present writ petition
the petitioners have challenged the order
dated 26.03.1996, passed by the Prescribed
Authority, Bahraich in Case No. 45/106,
the order dated 10.11.2006, passed by the
Additional Commissioner (Judicial), Devi
Patan Division, Gonda in Case No. 238/2
and the order dated 08.03.1990, passed by
2 All. Chakra Manoher & Anr. Vs. State of U.P. & Ors.
1061
the Prescribed Authority in Case No.
778/3/48/15, on the ground that in ceiling
proceedings pending before the Prescribed
Authority, Bahraich no notice was issued to
the petitioners and for want of which the
proceedings
and
the
order
passed
thereunder are vitiated in law.

3. It is submitted by learned counsel
for the petitioners that notice under Section
10(2) of the U.P. Imposition of Ceiling on
Land Holdings Act, 1960 (hereinafter
referred to as the "Act, 1960") was issued
to one Sampata Devi with regard to land
holding measuring 19.152 acres situated in
Village - Gurchahi, Pargana - Ikauna,
District - Shrawasti. Sampata Devi had
filed objections to the said notice but did
not contest the objections seriously. After
Sampata Devi's land dwelled upon Smt.
Bindra Devi and petitioners purchased the
said land through registered sale deed dated
01.09.1970 from Bindra Devi and the land
was also recorded in the name of
petitioners subsequent to the registration of
sale deed. During the course of pendency
of the proceedings before the Prescribed
Authority, Smt. Bindra Dei died and the
petitioners possession over the land in
question has been admitted prior to the cut of
date fixed under Section 5 of the Act, 1960,
under Explanation II in the light of the sale deed
executed in 1970. The land in question stood
excluded from the proceedings under Section 5
of the Act, 1960 on account of which for want
of notice issued to the petitioners, the order is
nullity. When the order came to the knowledge
of the petitioners, they preferred an application
under Section 11(2) of the Act, 1960, the same
has been rejected. The order passed by the
Prescribed Aurhority has been affirmed in the
appeal.

4. In support of his contentions learned
counsel for the petitioners has cited certain
decisions of this Court one which is referred
hereunder i.e. Shantanu Kumar Vs. State of
U.P. and Others, 1979 ALL L.J. 1174,
wherein it has been held that once the authority
concerned has arrived at the conclusion that the
land in question included in the statement in
C.L.H. Form 3 includes the land ostensively
held in the name of any other person, it was
incumbent upon the Prescribed Authority to
serve upon the petitioners the requisite notice
together with the copy of the statement and call
upon him to show cause why that statement be
not taken as correct. If no notice was issued
under Section 11(1) of the Act, 1960, remedy is
available to the petitioners to challenge the
validity of the proceedings and by considering
likewise facts involved in the matter, the Full
Bench of this Court had proceeded to allow the
writ petition and quash the order passed by the
Prescribed Authority on this very ground.

5. From the perusal of the order
passed by the Prescribed Authority dated
08.03.1990, it is obvious that the possession of
the petitioners over the land in question has
been discussed as it was stated by the
concerned Lekhpal. The Explanation II of
Section 5 of the Act, 1960 speaks that 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
register either in addition to or to the
exclusion of the former and whether on the
basis of a deed of transfer or license 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. He further submits that
the sale deed was executed in favour of the
petitioners on 1st September, 1970 and
since thereafter as per the statement of the
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned Lekhpal, they were holding the
possession over the land in question. Under
the circumstances, the benefit of this
Explanation is not applicable to the
petitioners to include the land treating them
as ostensible owner.

6. Learned Standing Counsel on
the other hand has opposed the writ petition
on the point that the the observations made
in the order of the Prescribed Authority has
been misinterpreted as while recording the
findings of the possession of the petitioners
over the land in question, the statement of
the concerned lekhpal has not been
believed by the authority concerned and
still the authority concerned has proceeded
to take a decision in the matter. Under the
circumstances, he submits that since
petitioners have claimed right of possession
over the land in question on the basis of the
execution of sale deed, their case cannot be
excluded
from
consideration
under
Explanation II of Section 5 of the Act,
1960, and accordingly, he submits that
under Section 5 of the Act, 1960 the land in
question had rightly been included under
the ceiling proceedings.

7. Learned Standing Counsel has
further submitted that from the order
passed by the Prescribed Authority it is
evident that the application for stay moved
by the petitioners on 22nd September, 1999
has been rejected by the Prescribed
Authority and the Prescribed Authority
fixed the matter for hearing. He has next
submitted that it is obvious from the order
passed by the Prescribed Authority that the
petitioners have no possession over the
land in question and accordingly they
cannot claim the possession over the land
in question as well as any benefit arising
out of possession in the proceedings in
question.
8. Learned counsel for the
petitioners disputes the above contentions
of learned Standing Counsel. He submits
that from the order of Prescribed Authority
it is evident that Smt. Bindra Dei was
treated as ostensible owner but she was cotenure holder and further on the point of
possession he submits that in light of the
provisions of Section 14 of the Act, 1960,
the possession can only be taken over after
determination of surplus land in appeal.
Since they preferred the appeal before the
Additional Commissioner against the order
passed
by
the
authority
concerned
alongwith an application under Section
11(2) of the Act, 1960 and now the appeal
is under challenge before this Court from
which it is obvious that the proceeding is
continuing without attaining finality and it
is not open for the respondents to take a
stand that the possession has been taken
over.

9. It has been submitted by learned
counsel for petitioner that they had
purchased Gata No. 953, 954 and 987 from
Smt. Bindra Dei on 01.09.1970 by a
registered sale deed and on the basis of the
said sale deed they had sought exclusion of
the land from the holding of the recorded
tenure holder. The Prescribed Authority as
well as the appellate authority has rejected
the objections filed by the petitioners. It has
been pointed out that before both the
authorities below, the petitioner could not
demonstrate the title on the said land
because of the fact that the petitioner had
filed photocopy of the sale deed.

10. Learned counsel for the
petitioners on the other hand submits that
the petitioners may be given an opportunity
to demonstrate before this Court that the
aforesaid land was in fact transferred in
favour of the petitioners by a registered
2 All. Chakra Manoher & Anr. Vs. State of U.P. & Ors.
1063
instruments and they can produce thus
original
sale
deed
before
Court
to
demonstrate that the said land was
purchased by the petitioner on 01.09.1970.

11. Heard learned counsel for the
parties and perused the record.

12.

Learned
counsel
for
the
petitioners has produced the copy of
original sale deed on the directions of this
Court and the same has been looked into by
learned Standing Counsel, who does not
dispute that it is the same sale deed which
was
produced
before
the
Prescribed
Authority.

13. In the present case objections under
Section 11(2) of the Act, 1960 were rejected by
the Prescribed Authority, on the ground that the
petitioners could not demonstrate their case and
satisfy him about the sale deed, as only photo
copy of the sale deed was filed and original
copy was not filed.

14. From the discussion made above, this
Court relying upon the judgment of this Court
in the case of Shantanu Kumar Vs. State of
U.P. and Others (supra), is of the considered
view that name of petitioners existed in C.L.H.
Form - 3, which raises presumption with regard
to possession of petitioners over the land in
question at the relevant point of time when
consolidation operations were undertaken. It is
also to be seen that the said sale deed was
executed on 01.09.1970 which is prior to the
cut-off date and according to Explanation II of
Section 5 of the Act, 1960, the actual
cultivatory possession of the person has to be
seen in case sale deed is executed prior to the
cut-off date.

15. This Court in the case of
Shantanu Kumar Vs. State of U.P. and
Others (supra), has held :-

"9. It is thus evident that the notice
requiring the tenure-holder to show cause why
the statement prepared by the Prescribed
Authority be not taken as correct is to be issued
to the tenure-holder in respect of whose holding
the statement has been prepared. Under the
proviso, the Prescribed Authority shall cause to
be served a notice to the person in whose name
the land included in C.L.H. Form 3 is ostensibly
held. The Prescribed Authority prepares the
statement on the basis of revenue records. If
from the revenue records or other information,
the Prescribed Authority comes to know that the
land included in the statement in C.L.H. Form 3
includes land ostensibly held in the name of any
other person, the Prescribed Authority is bound
to serve notice on such person. The phrase used
is 'shall cause to be served'.

10. The petitioner claimed under a
sale deed. It is not disputed that the
Petitioner's name was recorded in the
revenue papers over the land which was
transferred to him. It is admitted that the
statement in C.L.H. Form 3 included the
land held by the petitioner. He was hence a
person in whose name some part of the
land mentioned in the statement was
believed by the Prescribed Authority to be
ostensibly held. In this situation, it was
incumbent upon the Prescribed Authority to
serve upon the petitioner the requisite
notice together with a copy of the statement
and call upon him to show cause why that
statement be not taken as correct.

11. It is obvious that service of
such a notice is preliminary to the
acquisition of jurisdiction to proceed in the
matter and decide whether the land
ostensibly held in the name of the petitioner
could be declared as surplus land in the
hands of Bhupendra Singh. In the premises,
the proceedings were without jurisdiction
and void. Learned Standing Counsel
submitted that the petitioner had knowledge
and he should have filed an objection u/s
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
11(2) of the Act as has been held by a
Division Bench of this Court in Dilbagh
Singh v. The State of Uttar Pradesh, 1978
AWC 393. The existence of another remedy
under the Act cannot validate the
proceedings which are void for lack of
jurisdiction and which have resulted in
the declaration as surplus land of an area
which a person other than the tenure
holder who has been heard, claims. The
fact that the petitioner could have filed
an objection u/s 11(2) will not breath life
into or validate these dead proceedings."

16. The aspect of possession, it
seems that was never discussed before the
Prescribed Authority and accordingly
from the aforesaid facts it is clear that the
order of the Appellate Authority as well
as Prescribed Authority are liable to he
quashed,
as
the
petitioners
have
demonstrated that transfer of land was
made prior to 1971 that is they are in
possession over the said land and further
that their names find mention in C.L.H.
Form-3, strongly suggests that contention
of the petitioners is correct.

17. In the light of above, the
impugned
orders
dated
08.03.1990,
26.03.1996 and 10.11.2006 are set aside.
The matter is remitted back to the
Prescribed Authority for deciding the
matter afresh. It is provided that the
petitioners will have four weeks time
from today to file all the evidence to
demonstrate that they are owners of the
land in question.

18. Considering that much time has
lapsed, let the proceedings be concluded
expeditiously, say within three months,
thereafter, in accordance with law after
giving opportunity of hearing to all the
parties concerned.

19. The writ petition is allowed.
----------
(2024) 2 ILRA 1064
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application u/s 378 (D) No. 138 of 2016

Smt. Sarla Devi ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sushil Kumar Rastogi

Counsel for the Opp. Parties:
G.A., Shailendra Singh Rajawat

Delay Condonation-Rules of limitation are not
meant to destroy rights of parties-meant with the
objective that parties should not resort to dilatory
tactics and sleep over their rights-must seek remedy
promptly-complete careless and reckless long delay
on the part of appellant-virtually unexplained at allApplication for condonation of delay and
Appeal dismissed. (E-9)

Cases cited:

1. Collector, Land Acquisition Vs Katiji, 1987(2)
SCC 107

2. P.K. Ramachandran Vs St. of Kerala, AIR
1998 SC 2276

3. Shakuntala Devi Jain Vs Kuntal Kumari, AIR
1969 SC 575

4. Brij Indar Singh Vs Kanshi Ram ILR (1918) 45
Cal 94

5. St. of Nagaland Vs Lipok AO & ors., AIR 2005
SC 2191

6. Vedabai @ Vaijayanatabai Baburao Vs
Shantaram Baburao Patil & ors., JT 2001(5) SC
608