# Satbir Singh & Anr v. Addl. Commissioner & Ors

- **Citation:** (2021) 8 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-04
- **Case number:** Ceiling No. 50 of 1996
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satbir-singh-anr-v-addl-commissioner-ors-47174
- **Pages:** 7

## Headnote

Act,
1960
-
Section
5(1),
Explanation of Sections 5(1) & 10(2) -
Execution of Will in favour of grandson to
save property from the provisions of the
Act
-
Mutation
also
took
place
-
Impugned order passed declaring the land
as ceiling and surplus land - Validity -
Held, merely because the land has been
mutated in the name of the petitioners on
the basis of Will, which could not have
been executed to defeat the purpose of
the Act, it cannot be said that the land
cannot be treated of grandfather - High
Court found no illegality or error in the
impugned order. (Para 10, 11 and 17)
Writ petition dismissed. (E-1)
Cases relied on :-

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES
where on the face of it there is perversity or
irrationality, there can be judicial review
under Articles 226 or 227.

41. Upon analysis of the aforesaid
decisions, in the opinion of this Court, there
being no perversity or irrationality in the
findings recorded by the authorities below,
there appears to be no scope for judicial
review in the facts and circumstances of the
present case.

CONCLUSION

42. As a result of aforesaid
discussion, this Court is of the considered
view that no good ground exists warranting
interference with the orders impugned in
exercise of the writ jurisdiction.

43. The writ petition accordingly
lacks merit and, is dismissed.

44. No order as to costs.

Order Date :- 11.8.2021/Akbar

45. After the judgment has been
delivered,
learned
counsel
for
the
petitioner-tenant made a prayer that some
time may be granted to the tenant to vacate
the disputed shop.

46.

Learned
counsel
for
the
respondent-landlord has no objection in
case the reasonable time is granted to the
tenant-petitioner by this Court. He further
states that tenant should have paid the
damages at the rate of Rs. 10,000/- (Ten
Thousands) per month.

47. Under these circumstances, the
tenant is, accordingly, granted time up to
31st December,2021 to hand over the
peaceful possession of the disputed shop to
the respondent-landlady subject to the
tenant for giving an undertaking within two
weeks from today before the prescribed
authority to the following effect:

1. The tenant shall hand over
the peaceful possession of the shop to
the
landlady
on
or
before
31st
December, 2021.

2. The tenant shall pay the
damages at the rate of Rs. 10,000/- per
month.

3. The tenant shall not induct
any other person in the shop.

48. It is made clear that if the
tenant fails to give the undertaking
withing aforesaid period or fails to
comply with any of the undertaking, it
will open to the landlady to get the order
enforced.
----------
(2021)08ILR A164
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.08.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Ceiling No. 50 of 1996

Satbir Singh & Anr. ...Petitioners
Versus
Addl. Commissioner & Ors. ...Respondents

Counsel for the Petitioners:
H.S. Sahai, Badrul Hasan, Chhote Lal
Yadav, Jagannath Prasad Yadav, Manjusha
Kapil, Mohd. Hayun Hasan, Mohsin Khan,
Qamarul Hasan, U S Sahai, Uma Shankar
Sahai

Counsel for the Respondents:
C.S.C.
8 All. Satbir Singh & Anr. Vs. Addl. Commissioner & Ors.
165
A. UP Imposition of Ceiling on Land
Holdings
Act,
1960
-
Section
5(1),
Explanation of Sections 5(1) & 10(2) -
Execution of Will in favour of grandson to
save property from the provisions of the
Act
-
Mutation
also
took
place
-
Impugned order passed declaring the land
as ceiling and surplus land - Validity -
Held, merely because the land has been
mutated in the name of the petitioners on
the basis of Will, which could not have
been executed to defeat the purpose of
the Act, it cannot be said that the land
cannot be treated of grandfather - High
Court found no illegality or error in the
impugned order. (Para 10, 11 and 17)
Writ petition dismissed. (E-1)
Cases relied on :-
1. Writ C No. 47592 of 2008, Rakesh Kumar &
ors. Vs St. of U.P. & ors. decided on 02.11.2018
2.
Noorullah
Vs
Additional
Commissioner,
Meerut Division, Meerut & ors., 2007 (4) AWC
3789
3. Civil Misc. Writ Petition No. 2063 of 2006,
Nand Kishore Seth Vs Additional Commissioner
Bareilly Mandal & ors. decided on 15.05.2013
4. Indra Pal Mishra @ Raju Vs Special Judge
(E.C. Act), Banda & ors., 2005 (3) AWC 2565
5. Udai Raj Vs St. of U.P. & ors., 2003 (3) AWC
1876
6. Gulam Mohd. Khan & ors. Vs 5th A.D.J. &
ors., 1979 ALJ 202
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Shri U.S. Sahai, learned
counsel for the petitioners and Shri Rajesh
Tiwari, learned Additional Chief Standing
Counsel for the State.

2. This petition has been field
challenging the order dated 24.07.1991
passed by the Prescribed Authority i.e. the
opposite party no.2 and order dated
30.05.1996 passed by the Additional
Commissioner-1,
Lucknow
Division,
Lucknow i.e. opposite party no.1.

3. The brief facts of the case, for
adjudication of the present writ petition, are
that a notice under Section 10 (2) of the
Uttar Pradesh Imposition of Ceiling on
Land Holdings Act, 1960 (here-in-after
referred as the Act) was issued to the grand
father of the petitioners namely Munsha
Singh in 1977 in respect of the land held by
him as Bhumidhar. The ceiling area and
surplus area were determined. Thereafter a
Will was executed by Munsha Singh in
favour of his four grand sons including the
petitioners. Munsha Singh had died in the
year 1980. After his death mutation was
made in favour of the petitioners. A notice
dated 14.03.1989 under Section 10 (2) of
the Act was issued to the Laxman Singh i.e.
the father of the petitioners. An ex-parte
order was passed by the opposite party no.2
on 23.04.1984. The said order was recalled
on an application moved by Laxman Singh.
Thereafter an order was passed on
28.05.1985 withdrawing the notice issued
under Section 10 (2) of the Act and a
direction was issued to the concerned
Tehsildar to get the ceiling file of Laxman
Singh constructed within fifteen days after
making re-enquiry. After enquiry a fresh
notice under Section 10 (2) of the Act dated
30.01.1988 was issued to the Laxman
Singh and the petitioners. Laxman Singh
and the petitioners filed their objections
before the opposite party no.2 taking
common grounds that the petitioners have
got the land on the basis of Will executed
by the grand father of the petitioners and
their names have been recorded by the
order
of
Tehsildar,
Nighasan
on
27.11.1981. The opposite party no.2, after
affording opportunity of hearing and
considering the objection and evidence,
passed the order dated 25.07.1991 and
166 INDIAN LAW REPORTS ALLAHABAD SERIES
declared the ceiling and surplus land. The
order was challenged by the petitioners in
appeal before the opposite party no.1. The
appeal field by the petitioners has been
dismissed by means of the order dated
30.05.1996. Hence the present writ petition
has been filed.

4. Submission of learned counsel for
the petitioners was that the land in question
had come to the petitioners by way of Will
from his Grand father Shri Munsha Singh,
but it has wrongly been added in the land of
the father of the petitioners. The proceedings
under the Ceiling Act were instituted against
the grand father of the petitioners. It was
decided
declaring
some
surplus
land.
Thereafter Munsha Singh had executed a
Will in favour of his four grand sons
including the two petitioners after disposal of
the case. Therefore it cannot be said that the
Will was executed with the intention to save
the land from Ceiling Act. After proceedings
were decided against Shri Munsha Singh, he
was free to execute the Will but the
Prescribed Authority as well as the Appellate
Authority on the basis of presumption held
that the unregistered Will was executed with
the intention to save the land from ceiling.
While at the relevant point of time the
unregistered Will could have been executed.
Learned counsel for the petitioners also
submitted that initially the notice under
Section 10(2) of the Ceiling Act was issued
to Laxman Singh father of the petitioners,
which was dropped by annexure no.2.
Therefore the subsequent notice could not
have been issued including the land of the
petitioners in the land of Laxman Singh. On
the basis of Will, the land in question was
recorded in the name of the petitioners.
Therefore, if the land of the petitioners was to
be included in the land of his father the notice
under Section 29 of the Ceiling Act should
have been issued.

5. On the basis of above, learned
counsel for the petitioners submitted that
the impugned orders are liable to be
quashed and the writ petition allowed.
Learned counsel for the petitioners relied
on Rakesh Kumar and Others Vs. State of
U.P. and Others; Writ C. No.47592 of
2008 decided on 02.11.2018, Noorullah
Vs. Additional Commissioner, Meerut
Division, Meerut and Others; 2007 (4)
AWC 3789, Nand Kishore Seth Vs.
Additional Commissioner Bareilly Mandal
and Others; Civil Misc. Writ Petition
No.2063 of 2006 decided on 15.05.2013,
Indra Pal Mishra alias Raju Vs. Special
Judge (E.C. Act), Banda and Others; 2005
(3) AWC 2565 and Udai Raj Vs. State of
U.P. and Others; 2003 (3) AWC 1876.

6. Per contra, learned Additional
Chief Standing Counsel submitted that the
Will was executed by Shri Munsha Singh
in favour of his four grand sons leaving his
sons without disclosing any reason. It was
only with the purpose to save the land from
the Ceiling Act. The objections were filed
by the petitioners as well as his father
which have duly been considered by the
Prescribed Authority and the ceiling area
and surplus area has rightly been declared.
There is no illegality or error in the
impugned orders. Therefore, the writ
petition is misconceived and lacks merit
and it is liable to be dismissed.

7. I have considered submissions of
learned counsel for the parties and perused
the record.

8. A notice under Section 10 (2) of
the Act was issued to the father of the
petitioners Laxman Singh but no objection
was filed by him therefore an ex-parte
order dated 23.04.1984 was passed by the
opposite party no.2. On the application
8 All. Satbir Singh & Anr. Vs. Addl. Commissioner & Ors.
167
moved by the father of the petitioners, the
order was set aside. Thereafter an order
was passed on 28.05.1985 withdrawing the
notice under Section 10 (2) and the
Tehsildar,
Nighasan
was
directed
to
construct ceiling file of Laxman Singh after
re-enquiry. Thereafter, after enquiry a
notice under Section 10 (2) of the Act was
issued to Laxman Singh and the petitioners,
therefore it can not be said that the notice
was
wrongly
issued
because
while
withdrawing the earlier notice the Tehsildar
concerned was directed to construct the
ceiling file after re-enquiry, as such the
matter was not closed and the said order
was not challenged. The father of the
petitioners had also admitted in his
objection that on earlier notice the case was
not decided on merit and the notice was
withdrawn on 28.05.1985. This Court is of
the view that there was no illegality or error
in the subsequent notice issued to the father
of the petitioners and the petitioners
because the matter was not closed and it
was in continuation of the said proceedings.

9. In response to the notice issued
under Section 10 (2) of the Act the
petitioners and their father filed separate
objections. A common objection was taken
that the land of the petitioners has wrongly
been included with the land of Laxman
Singh because they were adult and acquired
it separately much after 08.06.1973. It was
further stated that the grand father of the
petitioners namely Munsha Singh was a
tenure holder and was subjected to a ceiling
case and as a result of which some land was
declared surplus. Later on he executed a
Will in favour of his grand sons for his
ceiling area. After his death the same was
mutated in favour of the petitioners
including the others by means of the order
dated 27.11.1981 passed by the Tehsildar-
Nighasan.

10. Admittedly, a proceeding under
Section 10 (2) of the Act was taken against
the grand father of the petitioners Munsha
Singh in the year 1977 and ceiling area and
surplus area were determined. Thereafter
the grand father of the petitioners had
executed a Will in favour of his grand sons
surpassing his sons who were legally
entitled to inherit the agricultural property.
The Will was executed in favour of the
grand sons without assigning any reason as
to why the natural successors are being
ignored and deprived of the property. The
alleged unregistered Will appears to have
been executed on 27.01.1979. He had
stated in the Will that he has become very
old and can die any time so he wants to
make such arrangement in his lifetime so
that his property would remain in his
family. It has not been disputed that the
father of the petitioners namely Laxman
Singh had already some land, therefore it is
apparent that the Will was executed by the
grand father of the petitioners with a view
to save it from the provisions of the Act,
whereas no such Will could have been
executed to defeat the provisions of the
Act. This view is fortified by a judgment of
coordinate bench of this Court in the case
of Gulam Mohd. Khan and Others Vs.
5th
Additional
District
Judge
and
Others; 1979 ALJ 202. The relevant
portion of paragraph- 2 is extracted below:-

"2.-------------------------------------
-----------------------------------Lastly,
he
contended that on the basis of the Will
mutation had taken place in favour of the
legatees and therefore notices should have
been issued to them. In my view these
contentions are not tenable. The father of
the petitioner died in June, 1975 and it
seems that it will not be possible to accept
that any tenure holder could have executed
any Will on that day which would have the
168 INDIAN LAW REPORTS ALLAHABAD SERIES
effect of defeating the Ceiling Law. It seems
to me that if Sri Islam's contentions were
accepted then it would be possible for any
tenure holder to execute such a Will and to
claim that the legacies bequeathed by such
will should be given effect to, then the
easiest thing for any tenure holder would
be to defeat the Ceiling Law by executing
such Will and defeating the law. I do not
think that this is really possible. I have so
held in many judgments of mine and in this
view of the matter any Will which has been
executed after 8th June, 1973, in my
opinion, cannot be allowed to defeat the
previsions of the ceiling law. Further, I
have to observe that the genuineness of the
Will was not acceptable to the Prescribed
Authority and the appellate court below; I
do not think that the said finding of fact can
in any manner be interfered with in these
proceedings. In this view of the matter the
petition fails and is dismissed but there will
be no order as to costs."

11. Section 5 (1) of the Act provides
that 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 of Section 5 (1) provides
that in determining the ceiling area applicable
to a tenure holder, 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. Therefore, merely
because the land has been mutated in the
name of the petitioners on the basis of Will,
which could not have been executed to defeat
the purpose of the Act, it can not be said that
the land can not be treated of Laxman Singh.

12. One of the grounds of the learned
counsel for the petitioners was that in case
the land of the petitioners was included
with the land of the father of the
petitioners, notice under Section 29 of the
Act should have been issued in place of
Section 10 (2). For consideration of this
argument, the provisions of Section 29 and
30 of the Act are relevant, which are
extracted below:-

"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) one 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 under 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 mutandisapply].

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
8 All. Satbir Singh & Anr. Vs. Addl. Commissioner & Ors.
169
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
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."

13. In view of above, under Section
29 the ceiling area is liable to be
determined where after the date of
enforcement
of
the
Uttar
Pradesh
Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972, one 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, the ceiling area shall be
liable to be redetermined. Therefore, if a
land has come to be held by a tenure holder
under Section 29, the Prescribed Authority
shall proceed to determine the ceiling area
in the manner laid down under Section 10,
according to Section 30. Therefore, this
Court is of the view that the notice under
Section 10 (2) of the Act was rightly issued
in accordance with law.

14. This Court, in the case of Rakesh
Kumar and Others Vs. State of U.P. and
others (Supra), has held that no finding
was recorded by the Prescribed Authority
and he had not looked into the objections
with regard to the earlier order passed by
the
Prescribed
Authority
acting
as
resjudicata and preventing reopening of
issues already settled as such he had not
considered the case of the tenure holder
properly and the Appellate Authority had
also not considered the question raised
before it. Therefore, the writ petition was
partly
allowed
and
the
matter
was
remanded. It is not applicable in the present
case because in the present case the notice
issued against the father of the petitioner
was only withdrawn and while withdrawing
the notice the Tehsildar concerned was
directed to re-enquire the matter and
prepare the ceiling file of Laxman Singh as
such the matter was not closed. It has also
been admitted by the father of the
petitioners that the case was not decided on
merit. Therefore, it is not applicable on the
facts and circumstances of the instant case,
as discussed above also.

15. The case of Noorullah Vs.
Additional
Commissioner,
Meerut
Division, Meerut and Others (Supra) is
also not applicable on the facts and
circumstances of the instant case because in
this case after conclusion of ceiling
proceeding in favour of the petitioners, the
petitioners therein had transferred some
land and thereafter he had purchased some
land. Therefore, it was held that the ceiling
proceedings may be initiated but the cut of
date would be the date on which he
acquired a fresh land.

16. This Court, in the case of Nand
Kishore
Seth
Vs.
Additional
Commissioner
Bareilly
Mandal
and
Others (Supra), has held that subsequent
notice issued under Section 10 (2) of the
Act after period of almost 20 years after
culmination of earlier proceedings itself is
bad however the liberty was granted to
proceed in accordance with the provisions
of the Act by issuing a fresh notice under
170 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 29 / 30 of the Act, if any of the
conditions mentioned therein are fulfilled.
In the present case the proceedings had not
culminated. The notice was only withdrawn
with a direction to re-enquire and make a
fresh ceiling file of Laxman Singh S/o
Munsha Singh. In pursuance thereof after
re-enquiry, the notice was issued on the
basis of whole land and Luxman Singh and
petitioners had submitted reply claiming
that the petitioners had got the land through
Will so it would not be included in Laxman
Singh's holding, as such the reply was
submitted knowing fully well. Therefore,
merely
because
Section
29
is
not
mentioned, can not be a ground for
challenge.

17. In view of above and considering
the over all facts and circumstances of the
case, this Court is of the view that the
impugned
orders
have
been
passed
considering the objections raised by the
petitioners and evidence in accordance with
law. There is no illegality or error in the
impugned orders. The writ petition has
been filed on misconceived grounds and it
lacks merit.

18. The writ petition is dismissed. No
order as to costs.
----------
(2021)08ILR A170
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.08.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Consolidation No. 723 of 2015

Rajendra Prasad ...Petitioner
Versus
D.D.C. Sitapur & Ors. ...Respondents

Counsel for the Petitioner:
Subodh Awasthi

Counsel for the Respondents:
C.S.C., Manendra Nath Rai, V.K. Pandey,
Yogendra Nath Yadav

A. UP Consolidation of Holdings Act, 1953
-
Section
9-A(2)
-
Consolidation
proceeding - Concurrent finding of fact -
General rule of non-interference - It's
exceptions - Interference can be made
where there is a failure to exercise
jurisdiction or where there is an exceeding
of jurisdiction vested in the courts below
or where the findings of facts have been
arrived at on misreading of evidence or
misinterpretation
of
law
leading
to
perversity. (Para 17)
B. UP Zamindari Abolition and Land
Reform Act, 1950 - Section 176 - Joint
Family Property - Sale of undivided and
specific part - Validity - Held, a sale or
any instrument of transfer that violates
the provisions of the U.P.Z.A. & L.R. Act is
a void document. A sale deed which is
conceived in fraud and delivered in deceit
is void and could be ignored by the
consolidation authorities - Unless there is
a division of the property by metes and
bounds
under
Section
176
of
the
U.P.Z.A.&L.R. Act a co-sharer is entitled to
every inch of the joint holding - If the
Vendee from a co-sharer entered into
possession of the property the possession
would not be in accordance with law.
(Para 25 and 32)
C. Transfer of Property Act, 1882 - Joint
Family
Property
-
Oral
Partition
-
Permissibility - Not registered, even the
property is of value of more than hundred
rupees - Validity - Held, the value of the
property involved in the partition being
more than hundred rupees, oral partition
is not permissible. Registration of such
partition was also required - If the
partition
has
not
been
proved
by
independent and competent witnesses
before the court of law, such partition