# Kunwar Bahadur Singh Deceased now Dharmraj Singh & Ors v. Prescribed Authority/ A.D.M. Ceiling Unnao & Anr

- **Citation:** (2022) 3 ILRA 252
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-24
- **Case number:** Writ C No. 3000028 of 1991
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kunwar-bahadur-singh-deceased-now-dharmraj-singh-ors-v-prescribed-authority-a-d-48192
- **Pages:** 7

## Headnote

Civil Law - U.P. Imposition of Ceiling on
land Holdings Act, 1960 - Section 10 (2) -
Second notice to tenure holder - while
issuing a fresh notice u/s 10(2) prima
facie
subjective
satisfaction
of
the
authority is required to be recorded in the
subsequent notice u/s 10(2) that either of
the two conditions u/s 29 of the Act is
fulfilled i.e. (a) the land has come to be
held by a tenure holder under a decree or
order of any Court, or as a result of
succession or transfer, or by prescription
in consequence of an adverse possession,
and such land together with the land
already held by him exceeds the ceiling
area applicable to him or (b) that any
other unirrigated land becomes irrigated
land as a result of irrigation under certain
conditions - A second or a fresh notice u/s
10(2) by the authority cannot be issued
cursorily
without
adverting
to
the
conditions for issuance of a fresh notice -
3 All. Kunwar Bahadur Singh Deceased now Dharmraj Singh & Ors. Vs. Prescribed Authority/
 A.D.M. Ceiling Unnao & Anr.
253
Failure to adhere to mandatory statutory
conditions under Section 29 of Act of 1960
would lead to arbitrariness at the behest
of authorities concerned. (Para 14, 16)

Petitioner's objections filed against the alleged
second notice given to him u/s 10(2), proposing
declaration of other properties held by petitioner
as surplus, has been rejected - Prescribed
Authority rejected petitioner's objections by a
virtually non-speaking order merely indicating
the fact that petitioner is in possession of
surplus land - No subjective satisfaction by the
authority concerned has been recorded as
required u/s 29 while passing the impugned
order - Impugned notice & order quashed (Para
17, 19)

Allowed. (E-5)

List of Cases cited :

## Text

252 INDIAN LAW REPORTS ALLAHABAD SERIES
represented and had also been heard by the
competent authority prior to passing the
impugned order. Thus, the said ground is
rejected.

20. So far as the judgment of this
Court in the case of Sarvendra Veer
Vikram Singh (supra) is concerned,
suffice to say that in the said judgment the
Court had noted in paragraph 35 that the
list of members was admitted by the
Deputy Registrar by passing an order dated
20.12.2016 and the list was not merely
presented. Admittedly, in this case, the list
of members was only presented and never
admitted and thus it was in those
circumstances that the Court held that an
opportunity of hearing was required to be
given to the members. As such the said
judgment would not be applicable in the
facts of the present case.

21. So far as the judgment in the case
of Shiv Narain Agarwal (supra) is
concerned, the judgment of Sarvendra
Veer Vikram Singh (supra) has been
followed
without
noticing
the
distinguishing factors as are present in the
present case and thus the judgment of Shiv
Narain Agarwal (supra) would also not be
applicable in the facts of the present case.

22. So far as the ground of decision
making process being erroneous on account
of the aforesaid two grounds, suffice to say
that this Court does not find the grounds (a)
& (b) are attracted in the facts of the instant
case and, as such no error is found in the
decision making process of the competent
authority which has led to the passing of
the impugned order.

23. Considering the aforesaid, this
Court does not find any illegality or
infirmity with the impugned order dated
11.02.2022, a copy of which is annexure 1
to the writ petition. Accordingly the writ
petition is dismissed.
----------
(2022)03ILR A252
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 3000028 of 1991

Kunwar Bahadur Singh Deceased now
Dharmraj Singh & Ors. ...Petitioners
Versus
Prescribed
Authority/
A.D.M.
Ceiling
Unnao & Anr. ...Respondents

Counsel for the Petitioners:
D.C. Mukherjee, Amit Mukerjee, Ramesh
Chandra Pathak, Sri Sarvesh Kumar Verma,
Sukhveer Singh

Counsel for the Respondents:
C.S.C.

Civil Law - U.P. Imposition of Ceiling on
land Holdings Act, 1960 - Section 10 (2) -
Second notice to tenure holder - while
issuing a fresh notice u/s 10(2) prima
facie
subjective
satisfaction
of
the
authority is required to be recorded in the
subsequent notice u/s 10(2) that either of
the two conditions u/s 29 of the Act is
fulfilled i.e. (a) the land has come to be
held by a tenure holder under a decree or
order of any Court, or as a result of
succession or transfer, or by prescription
in consequence of an adverse possession,
and such land together with the land
already held by him exceeds the ceiling
area applicable to him or (b) that any
other unirrigated land becomes irrigated
land as a result of irrigation under certain
conditions - A second or a fresh notice u/s
10(2) by the authority cannot be issued
cursorily
without
adverting
to
the
conditions for issuance of a fresh notice -
3 All. Kunwar Bahadur Singh Deceased now Dharmraj Singh & Ors. Vs. Prescribed Authority/
 A.D.M. Ceiling Unnao & Anr.
253
Failure to adhere to mandatory statutory
conditions under Section 29 of Act of 1960
would lead to arbitrariness at the behest
of authorities concerned. (Para 14, 16)

Petitioner's objections filed against the alleged
second notice given to him u/s 10(2), proposing
declaration of other properties held by petitioner
as surplus, has been rejected - Prescribed
Authority rejected petitioner's objections by a
virtually non-speaking order merely indicating
the fact that petitioner is in possession of
surplus land - No subjective satisfaction by the
authority concerned has been recorded as
required u/s 29 while passing the impugned
order - Impugned notice & order quashed (Para
17, 19)

Allowed. (E-5)

List of Cases cited :

1. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors., reported in (1998) 8 SCC

2. Kranti Associates (P) Ltd. & anr. Vs Masood
Ahmed Khan & ors., reported in (2010) 9 SCC
496

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

1. Heard Mr. Sukhveer Singh, learned
counsel for petitioner and learned State
Counsel for the opposite parties.

2. The petition has been filed assailing
order dated 01.07.1991 whereby petitioner's
objections filed against the alleged second
notice given to him under Section 10(2) of
U.P. Imposition of Ceiling on land Holdings
Act, 1960 (hereinafter referred to as Act of
1960) has been rejected. A further prayer for
issuing a direction to opposite parties not to
proceed for re-determination of petitioner's
holdings in terms of second notice has also
been made.

3. Learned counsel for petitioner
submits that initially, a general notice under
Section 9 of Act of 1960 was issued on
11.06.1973 whereafter a specific notice
under Section 10(2) of the Act was issued
to petitioner on 23.04.1974. Since there
was no adequate receipt of the said notice,
a subsequent notice was issued to petitioner
whereafter his land was determined to be
surplus and was adjusted as per the
petitioner's option. It is submitted that
aforesaid
determination
made
on
13.01.1975 declaring an area of 5 Bighas, 8
Biswas in terms of irrigated land became
final qua the petitioner. It is submitted that
the surplus land was thereafter taken
possession of by State since neither party
preferred any appeal.

4. Learned counsel for petitioner
submits that thereafter a second notice was
issued in July, 1989 under Section 10(2) of
Act of 1960 proposing declaration of other
properties held by petitioner as surplus.
Petitioner filed his objections to aforesaid
notice on 01.08.1989 in which the primary
objection
advanced
was
that
the
fresh/second
notice
was
barred
by
limitation under provisions of Section 13A
of Act of 1960 as well as Section 31(3) of
Amending Act no.18 of 1972. Additionally,
objections were also taken specifically
stating that petitioner was not in possession
of any property belonging to one Smt.
Sarswati Devi as Benami transaction. It
was said that the said Sarswati Devi was
step mother of petitioner and had separate
holdings which were independent of
petitioner and as such her holdings could
not have been clubbed with that of
petitioner.

5. Aforesaid objections were rejected
by means of impugned order dated
01.07.1991 against which petition has been
preferred.
Initially
vide
order
dated
19.01.2006, a preliminary objection had
254 INDIAN LAW REPORTS ALLAHABAD SERIES
been taken regarding maintainability of
petition due to availability of Appeal under
Section 13 of Act of 1960. The said
preliminary objection was rejected by this
Court holding the writ petition to be
maintainable. Prior to aforesaid, impugned
proceedings had been stayed by means of
interim order dated 20.08.1991.

6. Learned counsel for petitioner has
laid much emphasis on the fact that a
second notice is not provided for under the
provisions of the Act and only redetermination under Section 13-A of Act of
1960 can be made in case of any mistake
apparent on the face of record. It is
submitted that a fresh notice can however
be issued but that can be only in terms of
provisions of Sections 29 & 30 of Act of
1960, which are necessarily required to be
fulfilled and indicated in the notice itself. It
has further been submitted that impugned
notice even otherwise is barred by
limitation indicated in the Act.

7. Learned State Counsel appearing
on behalf of opposite parties have refuted
the submissions advanced by learned
counsel for petitioner on the basis of
counter affidavit filed in the petition. It is
submitted that the alleged second notice
was in fact a fresh notice under Section
10(2) of Act of 1960 and was issued since
petitioner was found to be in possession of
the land recorded in the name of Smt.
Sarswati Devi, alleged step mother of
petitioner. It is submitted that considering
aforesaid, notice had been issued to
petitioner under provisions of Sections 5
and 30 of Act of 1960 and is therefore
maintainable. It has been further submitted
that impugned order has considered all the
objections taken by petitioner and that the
notice is perfectly legal and not barred by
limitation. It has been further submitted
that impugned proceedings have been
initiated in pursuance of notice under
Section 10(2) of Act of 1960 and is not a
re-determination of surplus land under
provisions of Section 13-A of Act of 1960.
Even otherwise it is submitted that petition
has been filed only against a show cause
notice to which petitioner can very well
submit reply and final decision may be
taken by authorities concerned.

8. Considering the submissions
advanced by learned counsel for the parties
and upon perusal of record, it is apparent
that the present petition has been filed
against
proceedings
initiated
against
petitioner
in
terms
of
notice
under
section10(2) of Act of 1960 and which has
been alleged by petitioner to be a second
notice. Hon'ble the Supreme Court in the
case
of
Whirlpool
Corporation
v.
Registrar of Trade Marks, Mumbai &
others, reported in (1998) 8 SCC 1 has
clearly indicated the exceptions where writ
petition is maintainable even despite
availability of alternative remedy. Such
exceptions
being
enforcement
of
fundamental rights, violation of principles
of
natural
justice,
where
order
or
proceedings are without jurisdiction and
where vires of an Act is challenged.

9. As such, it is quite evident that a
show cause notice such as a notice under
Section 10(2) of the Act can be adjudicated
upon by this Court only in case a plea of
jurisdiction or incompetence of authority
concerned has been taken by petitioner.

10. In objections filed by petitioner to
the said notice,it has been clearly stated tat
he was earlier issued a notice under Section
10(2) of Act of 1960 which culminated in
passing of final order dated 13.01.1975
whereby certain land in possession of
3 All. Kunwar Bahadur Singh Deceased now Dharmraj Singh & Ors. Vs. Prescribed Authority/
 A.D.M. Ceiling Unnao & Anr.
255
petitioner was declared surplus. It has been
further stated in the objections that once
earlier land belonging to petitioner has
already been declared surplus,a second
notice
pertaining
to
same
is
not
maintainable. A specific plea has also been
taken that properties belonging to Smt.
Sarswati Devi are separate and independent
from the holdings of petitioner. As such, it
is evident that the plea of jurisdiction and
competence of the authorities concerned for
issuance of impugned notices under Section
10(2) of Act of 1960 has been taken by
petitioner. The same pleadings have also
been reiterated in the present writ petition.

11. In view of aforesaid, the writ
petition would be maintainable against
impugned proceedings initiated pursuant to
notice under under Section 10(2) of Act of
1960 particularly since objections filed by
petitioner against the said notice have been
rejected by means of impugned order.

12. In the counter affidavit, opposite
parties have neither denied the fact that
earlier notices under Section 10(2) of Act
of 1960 were issued to petitioner nor is the
fact that pursuant to earlier notices, land
belonging to petitioner has been declared
surplus by order dated 13.01.1975. In
paragraph-6 of counter affidavit, however,
it has been stated that a fresh notice under
Section 10(2) of Act of 1960 was issued
since petitioner was found to be in
possession of land recorded in the name of
Smt. Sarswati Devi and, therefore notice
was issued in terms of Sections 5 and 30 of
the Act.

13. A perusal of Sections 29 & 30 of
Act of 1960 indicate that the provisions
pertain to subsequent declaration of further
land as surplus land and determination of
surplus land regarding future acquisition
respectively. The provisions of aforesaid
sections are as follows:-

"29. Subsequent declaration of
further land as surplus land - Where after
the date of enforcement of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972,-

(a) any land has come to be held
by a tenure-holder under a decree or order
of any court, or as a result of succession or
transfer, or by prescription in consequence
of adverse possession, and such land
together with the land already held by him
exceeds the ceiling area applicable to him;
or

(b) any unirrigated land becomes
irrigated land as a result of irrigation from
a State irrigation work or any grove-land
loses its character, as grove-land or any
land exempted uader this Act ceases to fall
under any of the categories exempted-- the
ceiling area shall be liable to be redetermined and accordingly the provisions
of this Act, except Section 16, shall mutatis
mutandis apply."

"30. Determination of surplus
land regarding future acquisition - (1)
Where any land has become liable to be
treated as surplus land under Section 29,
the tenure-holder shall, within such period
as may be prescribed, submit a statement to
the Prescribed Authority in the form and in
the manner laid down under Section 9
indicating in the statement the plot or plots
which he would like to retain as a part of
his ceiling area.

(2) (a) Where the statement
submitted under sub-section (1) is accepted
by the Prescribed Authority, it shall
proceed to determine the surplus land
accordingly.

(b) Where a tenure-holder fails to
submit a statement required to be submitted
under sub-section (1) or submits an
256 INDIAN LAW REPORTS ALLAHABAD SERIES
incomplete or incorrect statement the
Prescribed Authority shall proceed in the
manner laid down under Section 10.

(c) The provisions of this Act in
respect of declaration, acquisition, disposal
and settlement of surplus land, shall
mutatis mutandis, apply to surplus land
covered by this section."

14. For the purposes of a fresh notice
under Section 10(2) of Act of 1960
pertaining to subsequent declaration of
further land as surplus land after the
enforcement of Amendment Act of 1972, it
is imperative that the land has come to be
held by a tenure holder under a decree or
order of any Court, or as a result of
succession or transfer, or by prescription in
consequence of an adverse possession, and
such land together with the land already
held by him exceeds the ceiling area
applicable to him or that any other
unirrigated land becomes irrigated land as a
result of irrigation under certain conditions.

15. Once the said conditions of
Section 29 are fulfilled, the provisions of
Section 30 of the Act become applicable.
From a perusal of aforesaid proceedings, it
is clear that for issuance of a fresh notice
under Section 10(2) of Act of 1960, the
conditions stipulated under section 29 of
Act of 1960 are compulsorily required to be
fulfilled.

16. As a consequence, in the
considered opinion of this Court while
issuing a fresh notice under Section 10(2)
of Act of 1960, prima facie subjective
satisfaction of the authority is required to
be recorded in the subsequent notice
under Section 10(2) of Act of 1960 that
either of the two conditions under Section
29 of the Act is fulfilled. A second or a
fresh notice under Section 10(2) of Act of
1960 by the authority cannot be issued
cursorily
without
adverting
to
the
conditions for issuance of a fresh notice.
Failure to adhere to mandatory statutory
conditions under Section 29 of Act of
1960 would lead to arbitrariness at the
behest of authorities concerned.

17. In the present case, it is apparent
no such prima facie satisfaction has been
recorded by the authority concerned as
required under Section 29 of Act of 1960.
Even the Prescribed Authority while
rejecting
petitioner's
objections
vide
order dated 01.07.1991 has not at all
adverted to the requirements for issuance
of fresh notice under Section 10(2) of
Act of 1960. In fact, the objections have
been rejected by a virtually non-speaking
order merely indicating the fact that
petitioner is in possession of surplus land.
No
subjective
satisfaction
by
the
authority concerned has been recorded
while passing the impugned order, which
is
unreasonable
and
arbitrary
and
therefore violative of Article 14 of the
Constitution of India.

18. With regard to orders passed by
the
authorities
concerned
requiring
reasoning, Hon'ble the Supreme Court in
Kranti Associates (P) Ltd. & another v.
Masood
Ahmed
Khan
and
others,
reported in (2010) 9 SCC 496 has held
that reasons are the soul of an order
without which an order is clearly vitiated.
The
relevant
portions
of
aforesaid
decision are as follows:-

"47. Summarising the above
discussion, this Court holds:

(a) In India the judicial trend has
always been to record reasons, even in
administrative decisions, if such decisions
affect anyone prejudicially.
3 All. Kunwar Bahadur Singh Deceased now Dharmraj Singh & Ors. Vs. Prescribed Authority/
 A.D.M. Ceiling Unnao & Anr.
257

(b) A quasi-judicial authority
must record reasons in support of its
conclusions.

(c) Insistence on recording of
reasons is meant to serve the wider
principle of justice that justice must not
only be done it must also appear to be done
as well.

(d) Recording of reasons also
operates as a valid restraint on any
possible arbitrary exercise of judicial and
quasi-judicial
or
even
administrative
power.

(e)
Reasons
reassure
that
discretion has been exercised by the
decision-maker on relevant grounds and by
disregarding extraneous considerations.

(f) Reasons have virtually become
as indispensable a component of a
decision-making
process
as
observing
principles of natural justice by judicial,
quasi-judicial and even by administrative
bodies.

(g)
Reasons
facilitate
the
process of judicial review by superior
courts.

(h) The ongoing judicial trend
in all countries committed to rule of law
and constitutional governance is in
favour of reasoned decisions based on
relevant facts. This is virtually the
lifeblood of judicial decision-making
justifying the principle that reason is the
soul of justice.

(i) Judicial or even quasijudicial opinions these days can be as
different as the judges and authorities
who deliver them. All these decisions
serve one common purpose which is to
demonstrate by reason that the relevant
factors
have
been
objectively
considered.
This
is
important
for
sustaining the litigants' faith in the
justice delivery system.

(j) Insistence on reason is a
requirement
for
both
judicial
accountability and transparency.

(k) If a judge or a quasi-judicial
authority is not candid enough about
his/her decision-making process then it is
impossible to know whether the person
deciding is faithful to the doctrine of
precedent
or
to
principles
of
incrementalism.

(l)
Reasons
in
support
of
decisions must be cogent, clear and
succinct. A pretence of reasons or ?rubberstamp reasons? is not to be equated with a
valid decision-making process.

(m) It cannot be doubted that
transparency is the sine qua non of
restraint on abuse of judicial powers.
Transparency in decision-making not only
makes the judges and decision-makers less
prone to errors but also makes them subject
to broader scrutiny. (See David Shapiro in
Defence of Judicial Candor [(1987) 100
Harvard Law Review 731-37] .)

(n) Since the requirement to
record reasons emanates from the broad
doctrine of fairness in decision-making, the
said requirement is now virtually a
component of human rights and was
considered
part
of
Strasbourg
Jurisprudence. See Ruiz Torija v. Spain
[(1994) 19 EHRR 553] EHRR, at 562 para
29 and Anya v. University of Oxford [2001
EWCA Civ 405 (CA)] , wherein the Court
referred to Article 6 of the European
Convention
of
Human
Rights
which
requires, ?adequate and intelligent reasons
must be given for judicial decisions?.

(o) In all common law jurisdictions
judgments play a vital role in setting up
precedents for the future. Therefore, for
development of law, requirement of giving
reasons for the decision is of the essence and
is virtually a part of ?due process?.
258 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Considering aforesaid facts, this
Court reaches to a conclusion that the
proceedings under challenge are violative
of the mandatory conditions of Section 29
of
Act
of
1960
and
is
therefore
unsustainable.

20. Consequently, impugned order
dated 01.07.1991 as well as notice issued
under Section 10(2) of Act of 1960 are
hereby quashed by issuance of a writ in the
nature of Certiorari.

21. In view of aforesaid, the writ
petition succeeds and is allowed. Parties to
bear their own costs.
----------
(2022)03ILR A258
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 3000130 of 1994

Kaushlendra Bahadur Singh ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
U.S. Sahai

Counsel for the Respondent:
C.S.C.

Civil Law - U.P. Imposition of Ceiling on
land Holdings Act, 1960 - Sections 3, (14)
& 4-A - Irrigated plot or unirrigated -
Determination - For determination as to
whether a particular agricultural plot was
under irrigation or not u/s 4-A it is
essential that there must be irrigation
facility and decision regarding irrigation
facility and growing of crops is required to
be taken by the Prescribed Authority on
the basis of Khasras for the years 1378
Fasli, 1379 Fasli and 1380 Fasli, along
with the latest village map and such other
records as it may consider necessary, and
may also make local inspection where it is
considered necessary - Local inspection as
such is meant merely to be corroborative
and
cannot
form
the
basis
for
determination of irrigated land (Para 11,
23)

In the instant case dispute was to whether plot
no.347 could be held as irrigated or unirrigated
land - disputed plot was held to be irrigated on
the basis of statement of Lekhpal & the Lekhpal
made said statement on the basis of alleged
spot inspection - Held - In the impugned order
there is nothing to indicate that the relevant
revenue records i.e. Khasras for the said three
years have been considered by the authority
concerned - Such a basic activity not having
been done by the authorities concerned renders
the impugned orders against provisions of
Section 4-A of Act of 1960 - Prescribed Authority
could not have made local inspection and the
statement of Lekhpal at best is merely
corroborative - fact that two crops were shown
to have been produced on the plot in question is
also merely corroborative and has to be seen in
juxtaposition with other aspects of the matters,
particularly with regard to entries made in the
Khasras of the relevant years- Impugned order
set aside (Para 14, 24, 27)

Allowed. (E-5)

List of Cases cited :

1. St. of U.P. Vs D.J. & ors. 2007 4 AWC 3700
(Allahabad)

2. St. of U.P. through Collector Vs Mukh Ram
Singh & anr. 1991 RD 312

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

1.

Heard
learned
counsel
for
petitioner and Sri J.P. Maurya, learned
Additional Chief Standing Counsel for
opposite parties 1 to 3. No one has
appeared on behalf of opposite parties 4
and 5.