# Smt. Sushila Devi v. State of U.P. & Ors

- **Citation:** (2025) 9 ILRA 1091
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-08
- **Case number:** Writ - C No. 3000112 of 2002
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sushila-devi-v-state-of-u-p-ors-54760
- **Pages:** 22

## Headnote

Whether the judgment and order passed by the
appellate
authority
does
not
fulfills
the
requirements of provisions of sub section (1) of
Section 38 of the Act read with order 41 Rule 31
CPC?

Head Notes
The Uttar Pradesh Imposition of Ceiling on
Land Holdings Act, 1960- Sections 4(A),
5(3)(a), 10(2) & 38(1); The Code of Civil
Procedure-1908- Order XLI Rule 31Appellate Authority to required to apply
its mind to the facts of the case, state the
questions involved in the case and decide
the same giving its own reason for the
decision - The appellate authority failed
to discharge its duty and has dismissed
the judgment and order dated 29.04.2002
and 01.10.2002 by recording its general
expression
of
inference
with
the
Prescribed Authority written and quoting
any reason at would amount from the
judgment of the appellate authority-
Prescribed authority is directed to decide
the objection filed by the petitioner in
accordance with law and in the mean
time, the prescribed authority shall not
lease out the surplus land to any person-
Petition allowed.
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
Held- Judgment and order passed by the
appellate
authority
does
not
fulfills
the
requirements of provisions of sub section (1) of
Section 38 of the Act read with order 41 Rule 31
CPC and same, therefore, liable to be set aside.
(E-15)
(Para 36 to 40)

Case Law Cited
Vithaldas Jagannath Khatri (Dead) through
Shakuntala alias Sushmi & others Vs. State of
Maharashtra Revenue and Forest Department &
others [2020 (16) Supreme Court Cases 1];
Damodar Singh and others Vs. State of U.P. and
others [2001(Suppl.) R.D. 396]; Janki Prasad
Vs. Sanjay Kumar [AIR 2022 (NOC) 254 (ALL.)];
Benny D'Souza Vs. Melwin D'Souza [AIRONLINE
2023 SC 1320]

List of Acts
The Uttar Pradesh Imposition of Ceiling on Land
Holdings Act, 1960; The Constitution of India1950; The Code of Civil Procedure-1908

List of Keywords
Appeal
dismissed;
Recording
general
expression; without quoting reason; Order XLI
Rule 31

Case Arising From
Orders dated 29.4.2002 and 24.2.2000,
declaring
her
land
as
surplus.
It
is
submitted that the authorities wrongly
classified her land as irrigated, ignoring an
earlier report dated 5.4.1976 that classified
it
as
unirrigated.
The
Additional
Commissioner's order dated 29.4.2002 was
ex-parte, without giving the petitioner a
hearing opportunity. The petitioner filed a
writ petition No.50 (M/S) (Ceiling) of 2002,
which was disposed of on 29.8.2002,
directing the Additional Commissioner to
consider her restoration application. The
Additional
Commissioner
rejected
the
restoration application on 1.10.2002, which
the petitioner claims was done illegally and
arbitrarily.

Appearances for Parties
Counsel for Petitioners(s) : Vimal Kishore
Verma, A.K. Verma, Mohammad Aslam Khan,
Sayeed Ahmad Jamal
Counsel for Respondent(s) : C.S.C

## Text

_Characters 0–39,961 of 72,596. This is a partial read: ask again with offset=39961 for what follows._

9 All. Smt. Sushila Devi Vs. State of U.P. & Ors.
1091
On the said land institution had also been
built, which is also imparting education to
students. We find that once the land vested
in the State, the same is free from all
encumbrances, it cannot be divested or
revested.

47. We are also of the considered
opinion that at this belated stage we cannot
permit the petitioner to revive the dead and
stale claims. The stale and dead claims
cannot be permitted to be canvassed on the
pretext of enactment of Section 24. In view
of the law laid down by this Court in Atul
Sharma & Ors. (Supra) and Jagbeer Singh
& Ors. (Supra) Section 24 of the Act, 2013
would not be attracted in the present
matter.
Even
otherwise
as
per
the
parameters of the Constitution Bench
mandate in Indore Development Authority
(Supra) as averred in detail, the claim of the
petitioner does not fall under Section 24 of
the Act, 2013.

48. In the facts and circumstances, so
far as the determination of quantum of
compensation is concerned, the same
would be governed as per the principles
applied in relation to acquisition made by
Parishad under the Adhiniyam, 1965.
However, it is always open to the petitioner
to move appropriate application to get the
compensation in accordance with law.

49. Consequently, for all the reasons
aforesaid, the reliefs claimed in the writ
petition with regard to lapse of acquisition
proceeding cannot be accorded to the
petitioner.

50. The writ petition stands dismissed
accordingly.
----------
(2025) 9 ILRA 1091
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.09.2025

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ - C No. 3000112 of 2002

Smt. Sushila Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vimal
Kishore
Verma,
A.K.
Verma,
Mohammad Aslam Khan, Sayeed Ahmad
Jamal

Counsel for the Respondents:
C.S.C.

Issue for Consideration
Whether the judgment and order passed by the
appellate
authority
does
not
fulfills
the
requirements of provisions of sub section (1) of
Section 38 of the Act read with order 41 Rule 31
CPC?

Head Notes
The Uttar Pradesh Imposition of Ceiling on
Land Holdings Act, 1960- Sections 4(A),
5(3)(a), 10(2) & 38(1); The Code of Civil
Procedure-1908- Order XLI Rule 31Appellate Authority to required to apply
its mind to the facts of the case, state the
questions involved in the case and decide
the same giving its own reason for the
decision - The appellate authority failed
to discharge its duty and has dismissed
the judgment and order dated 29.04.2002
and 01.10.2002 by recording its general
expression
of
inference
with
the
Prescribed Authority written and quoting
any reason at would amount from the
judgment of the appellate authority-
Prescribed authority is directed to decide
the objection filed by the petitioner in
accordance with law and in the mean
time, the prescribed authority shall not
lease out the surplus land to any person-
Petition allowed.
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
Held- Judgment and order passed by the
appellate
authority
does
not
fulfills
the
requirements of provisions of sub section (1) of
Section 38 of the Act read with order 41 Rule 31
CPC and same, therefore, liable to be set aside.
(E-15)
(Para 36 to 40)

Case Law Cited
Vithaldas Jagannath Khatri (Dead) through
Shakuntala alias Sushmi & others Vs. State of
Maharashtra Revenue and Forest Department &
others [2020 (16) Supreme Court Cases 1];
Damodar Singh and others Vs. State of U.P. and
others [2001(Suppl.) R.D. 396]; Janki Prasad
Vs. Sanjay Kumar [AIR 2022 (NOC) 254 (ALL.)];
Benny D'Souza Vs. Melwin D'Souza [AIRONLINE
2023 SC 1320]

List of Acts
The Uttar Pradesh Imposition of Ceiling on Land
Holdings Act, 1960; The Constitution of India1950; The Code of Civil Procedure-1908

List of Keywords
Appeal
dismissed;
Recording
general
expression; without quoting reason; Order XLI
Rule 31

Case Arising From
Orders dated 29.4.2002 and 24.2.2000,
declaring
her
land
as
surplus.
It
is
submitted that the authorities wrongly
classified her land as irrigated, ignoring an
earlier report dated 5.4.1976 that classified
it
as
unirrigated.
The
Additional
Commissioner's order dated 29.4.2002 was
ex-parte, without giving the petitioner a
hearing opportunity. The petitioner filed a
writ petition No.50 (M/S) (Ceiling) of 2002,
which was disposed of on 29.8.2002,
directing the Additional Commissioner to
consider her restoration application. The
Additional
Commissioner
rejected
the
restoration application on 1.10.2002, which
the petitioner claims was done illegally and
arbitrarily.

Appearances for Parties
Counsel for Petitioners(s) : Vimal Kishore
Verma, A.K. Verma, Mohammad Aslam Khan,
Sayeed Ahmad Jamal
Counsel for Respondent(s) : C.S.C
(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Mohd. Arif Khan, learned
Senior Advocate assisted by Sri Vimal
Kishore Verma, Advocate and Sri Syed
Ahmad Jamal, learned counsel for the
petitioner and learned Standing Counsel for
the State-respondent.

2. By means of the present writ
petition, the petitioner has prayed for the
following reliefs :-

 "(i) issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
1.10.2002 and impugned judgment and
order dated 29.4.2002, passed by opposite
party No.2 in Appeal No.33/1999-2000
Under Section- 13 of the Ceiling Act,
contained at Annexure No.14 and 10 to the
writ petition and impugned order dated
24.2.2000, passed by opposite party No.3,
Prescribed Authority, Sitapur in Case
No.3/2/3 Under Section- 10 (2) of the
Ceiling Act, contained at Annexure No.8 to
the writ petition.

 (ii) issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties and
directing them to not interfere in the
peaceful possession of the petitioner over
the disputed land and excluded the disputed
land from the Ceiling Act, in the interest of
justice.

 (iii)...

 iv)..."

3. Brief facts of the case are that
the disputed land was recorded in the name
of Pirtha Singh, father in law of the
petitioner, thereafter a notice under Section
9 All. Smt. Sushila Devi Vs. State of U.P. & Ors.
1093
10(2) of the Ceiling Imposition of Ceiling
and Land Holdings Act was issued and
served to Pirtha Singh, recorded tenure
holder on 10.12.1975. Subsequently Pirtha
Singh filed an objection on 24.12.1975
against the aforesaid notice under Section
10(2) of the Ceiling Act before the
prescribed authority. He claimed much of
the land was unirrigated, and Gata Nos. 139
and 211 were wrongly shown as irrigated.
He also stated that some land had been
transferred through registered sale deeds
before the cut-off date 8.6.1973.

4. An Advocate Commissioner
submitted his commission report stating
that
the
land
was
unirrigated.
The
prescribed authority vide order dated
18.6.1976, declared 11.70 acres of irrigated
land as surplus without considering the
legal point that Ram Singh was alive on
8.6.1973, hence the family was entitled to
an additional 2 hectares under Section
5(3)(a), it is the submission of learned
counsel for the petitioner.

5. The petitioner has filed multiple
appeals and applications, including Writ
Petition No. 50(M/S) (Ceiling) of 2002
before this Court against the impugned
orders dated 29.4.2002 and 24.2.2000,
passed by opposite parties Nos.2 and 3
which was disposed of finally on 29.8.2002
with the direction to the Additional
Commissioner,
Lucknow
Division,
Lucknow to consider and dispose of the
petitioner's
restoration
application
as
expeditiously as possible within 6 weeks
from the date of production of the certified
copy of the order. She seeks to set aside the
impugned orders and have her case
reconsidered.

6. The petitioner challenges orders
dated 29.4.2002 and 24.2.2000, declaring
her land as surplus. It is submitted that the
authorities wrongly classified her land as
irrigated, ignoring an earlier report dated
5.4.1976 that classified it as unirrigated.
The Additional Commissioner's order dated
29.4.2002 was ex-parte, without giving the
petitioner a hearing opportunity. The
petitioner filed a writ petition No.50 (M/S)
(Ceiling) of 2002, which was disposed of
on 29.8.2002, directing the Additional
Commissioner to consider her restoration
application. The Additional Commissioner
rejected the restoration application on
1.10.2002, which the petitioner claims was
done illegally and arbitrarily. The petitioner
seeks to set aside the impugned orders and
requests the Court to direct the parties to
maintain the status quo over the disputed
land.

7. Submission of learned counsel
for the petitioner is that the disputed land
was the ancestral property and recorded in
Jiman-1, as such, the petitioner was having
1/2 share in the disputed land, and the land
declared as a surplus of her share is totally
illegal. It is also stated that in the notice
Gata No.139 and 211 wrongly mentioned
as irrigated land and in fact, the aforesaid
land was unirrigated.

8.
Learned
counsel
for
the
petitioner submitted that after lapse of long
period the situation of the spot has been
changed and facility of irrigation is
available to the 80% agricultural land at
present time, hence on the basis of the
aforesaid
inspection
report
regarding
irrigated and non-irrigated land no decision
can be taken, hence the opposite party No.3
passed the impugned order on 24.2.2000 on
the basis of the aforesaid inspection report
dated 7.12.99 and treated the whole land of
the petitioner irrigated according to the
present position.
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
9.
Learned
counsel
for
the
petitioner further submitted that based on
the
Advocate
Commissioner's
spot
inspection and report dated 5.4.1976
(Annexure No. 2 to the writ petition), plots
gata Nos. 139 and 211 were found to be
unirrigated. The report further states that no
tube well or Nahar exists near these plots
and that irrigation was solely dependent on
a Talab (pond), which qualifies the plots as
unirrigated under Section 4(A) of the U.P.
Imposition of Ceiling on Land Holdings
Act. Despite this, the prescribed authority,
in its judgment dated 18.6.1976, held that
these plots were irrigated, citing the
existence of a tube well in adjoining gata
No.
212.
However,
no
documentary
evidence supports the claim that plots 139
and 211 are irrigated, and no tube well
exists directly on them. The prescribed
authority also ignored the Commissioner's
report of 5.4.1976, leading to an erroneous
and illegal finding that plot Nos.139 and
211 are irrigated.

10. It is also relevant to mention
here
that
after
remand,
Additional
Collector/prescribed
authority,
Sitapur
himself made the spot inspection and
submitted the report on 7.12.1999, in which
it is specifically stated that area 0.332
Hectare of gata No. 292 is not the
agricultural land due to jungle and brick
kiln, but the prescribed authority has not
excluded the aforesaid land from the
ceiling in illegal and arbitrary manner.

11. It is also relevant to mention
here that after remand of the case, opposite
party No.3, prescribed authority (Ceiling)/
Adddtional Collector, Sitapur himself made
the spot inspection and submitted the
inspection report dated 7.12.1999 on the
basis of the present position, by which
illegally treated the whole land as irrigated.
It is also relevant to mention here that
according to Section- 4(A) of the U.P.
Imposition of Ceiling and Land Holding
Act, the determination regarding the
irrigated and non irrigated land should be
made from the date of issuance of the
notice under Section 10(2) of the U.P.
Imposition of Ceiling and Land Holding
Act, and on the basis of the relevant Khasra
1378, 1379 and 1380 fasli, but not on the
basis of the present position.

12. It is also stated that prescribed
authority has passed the impugned order
dated 24.2.2000 without considering the
legal point that at the time of enforcement
of the Ceiling Act dated 8.6.1973, the
petitioner's husband Ram Singh was alive,
as such, the petitioner namely Sushila Devi
being his widow is entitled for the benefit
of two Hectare additional irrigated land
according to Section 5(3) (a) of the U.P.
Imposition of Ceiling and Land Holding
Act, which has been considered by the
prescribed Authority at the time of passing
the earlier judgment and order dated
28.2.1979 and given the benefit of two
Hectare additional irrigated land to the
petitioner,
but
after
remand
in
the
subsequent order dated 24.2.2000, the
prescribed authority has not considered the
aforesaid legal point and not given the
benefit of two hectare additional irrigated
land to the petitioner illegally and no
finding given regarding the additional
issue.

13. He further submitted that the
appellate court without complying the
requirement of provisions of (1) of Section
38 CPC has decided the appeal, which is
not justifiable in law. He submitted that no
finding has been returned on the order of
prescribed
authority
and
without
considering
the
relevant
facts
and
9 All. Smt. Sushila Devi Vs. State of U.P. & Ors.
1095
circumstances of the case, the appellate
court has proceeded to decide the appeal
ex-parte.

14. He further submitted that the
application for restoration of the order was
submitted before the appellate court and
when no order was passed, Writ Petition
No.50/2002; Smt. Sushila Devi Vs. State of
U.P. and others was filed before this Court,
wherein direction was issued by disposing
of the writ petition to the Additional
Commissioner,
Lucknow
Division,
Lucknow to consider and dispose of the
application
of
the
petitioner
as
expeditiously as possible preferably within
six months from the date of production of
certified copy of the order and till disposal
of
the
application
the
order
dated
07.06.2002 shall continue.Thereafter, on
the application for restoration an order was
passed
by
the
appellate
court
on
01.10.2002, whereby the application was
rejected on the ground that there is no merit
in the application.

15. His next submission is that the
application was not considered properly
and
without
assigning
reasons
the
application was rejected. In support of his
submission,
learned
counsel
for
the
petitioner has relied upon the following
judgments, which are as under :-

 (i) Vithaldas Jagannath Khatri
(Dead) through Shakuntala alias Sushmi
& others Vs. State of Maharashtra
Revenue and Forest Department &
others [2020 (16) Supreme Court Cases
1]. Paragraph-18 onwards are being quoted
below :-

 "18. It will thus be seen that
underSection 11of the 1961 Act, where
any land held by a family is partitioned
after the cut-off date of 26.09.1970, the
partition so made shall be deemed, unless
the contrary is proved, to have been made
in anticipation of, or in order to avoid or
defeat, the Amending Act 1972 and shall
accordingly be ignored. There is nodoubt
that on the facts of this case that the
partition deed, as well as its registration, is
prior to the cut-off date.

 19. On 19.11.1976, 60 acres and
27 gunthas of land of Vithaldas was
declared surplus. An appeal preferred
against this order was dismissed by the
Maharashtra
Revenue
Tribunal
on
16.02.1977. On 02.03.1982, a learned
Single Judge of the Nagpur Bench of the
Bombay High Court remitted the matter to
the Surplus Land Determination Tribunal
for fresh enquiry. On remand, a fresh order
was passed by the Sub-Divisional Officer
on 07.05.1984, where land admeasuring 59
acres 35 gunthas was deemed to be
surplus. An appeal was filed against the
aforesaid order by Vithaldas, his wife, his
son and the third daughter Bela Devi under
Section 33 of the 1961 Act. The two other
minor daughters did not file any appeal, as
they were satisfied with the view adopted
by the Sub-Divisional Officer, by which no
part of the property that devolved on them
by means of the partition deed was
declared surplus. The State filed crossobjections in the appeal filed by Vithaldas,
challenging the exclusion of the land, inter
alia, of the two elder daughters. However,
the State did not take care to implead them.
The appeal filed by Vithaldas et. al. was
dismissed by the Appellate Authority, who
allowed the cross objections of the State by
its order dated 03.12.1984. The appellate
authority found that the partition deed
dated 31.01.1970, though before the cut-off
date, was against the principles of Hindu
Law, to the extent that it gave a share to
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
minor daughters in ancestral land. On this
basis, the partition deed was declared to be
of no effect in law.

 20. The aforesaid appellate order
was challenged by Vithaldas and his wife in
writ proceedings before the Bombay High
Court. The learned Single Judge dismissed
the writ petition in September, 1987. An
intra- court appeal was preferred which
was then dismissed by the impugned order
dated 27.11.2007. A Special Leave Petition
was filed by Vithaldas through his legal
representatives who are the two elder
daughters, as his legal heirs, as by now
Vithaldas had expired. During the course
of the initial hearing, this Court, by its
order dated 23.11.2016, passed an order
stating that it wished to see revenue entries
in terms of Section 148 and 149 of the
Maharashtra Land Revenue Code, 1966,
post- execution of the partition deed. An
additional affidavit was filed by the son of
the late Vithaldas, stating that records from
1970-75 are in a mutilated condition, but
that from the records made available, the
two elder daughters were shown as
occupants from 1972 to 1976 for survey
nos. 12 and 14, through their guardian, i.e.
their grandfather.

 21. When the matter was argued
before a Division Bench of this Court, Justice
Sanjay Kishan Kaul, after stating these facts,
held that a limited fiction has been created by
Section 11of the 1961 Act, as a result of
which, if a partition deed is prior to the cutoff date, it cannot be ignored under Section
11. The learned Judge also held that the
States cross- objections being allowed in
the absence of the two elder daughters was
fatal, as they were both necessary parties to
the proceedings. The learned Judge then
went into the unmarried daughters claims
in HUF property and held:
 35. The legal view, thus, is very
clear:

 35.1.. A provision for marriage of
unmarried daughters can be made out of
ancestral property.

 35.2. Such provision can be made
before, at the time, or even after the
marriage.

 35.3. The provision is being made
out of pious obligation, though the right of
women got diluted over a period of time.
However, with the amendment to the Hindy
Succession Act, in 2005, a specific right is
now conferred on women to get a share on
partition of ancestral property, including
the right to claim partition. As mentioned
above this change was brought about in
Maharashtra in 1994, itself.

 22. The learned Judge went on to
further observe that a provision for an
unmarried daughter in a partition deed
may partake the nature of a gift, and then
concluded:

 41. In the end, it may be noted
that the only aspect on which the debate
occurred was the share of the two elder
daughters, and the right to retain the land
as their separate land, without it being
adjusted with the lands of late Vithaldas.
The findings above, thus, lead to the
conclusion that the view taken by the SDO
vide order dated 7.5.1984, regarding the
land of the two elder daughters, is the
correct view, and the subsequent view by
the appellate authority faulted on more
than one reason, as mentioned aforesaid.
The further imprimatur of that view by the
learned Single Judge and the Division
Bench of the High Court, thus, also cannot
be sustained.
9 All. Smt. Sushila Devi Vs. State of U.P. & Ors.
1097
 42. The impugned orders of the
appellate authority, the learned single
Judge and the Division Bench are, thus,
liable to be set aside and the view taken by
the SDO, restored, qua the lands located in
Survey Nos. 12 & 14 of Babhulgaon, giving
rights to the two elder daughters, who are
the appellants in the present proceedings.

 23. K.M. Joseph, J. differed with
Justice Kaul. According to the learned
Judge, the questions that would arise for
consideration by the Court are as follows:

 102. The following questions
would arise for consideration by the
Court:-

 102.1. (i)Whether the authorities
under the Act have the power to find that
the partition entered into before26.9.1970,
was sham or collusive and thereby ignore
the same?

 102.2. (ii) Notwithstanding the
registered partition dated 31.01.1970,
whether the property allotted to the elder
daughters of Shri Vithaldas is liable to be
included in the account of the family unit?

 102.3. (iii)What is the effect of the
cross-objections of the State being allowed
in the absence of elder daughters, in the
appeal before the Tribunal?

 24.
After
setting
out
the
provisions of the Act, the learned Judge
concluded as follows:

 119. Thus, it can be concluded as
follows:

 119.1. A transfer or a partition
entered into before 26.09.1970, if it is not
genuine and is collusive or is a sham
transaction, can, in a given case, on
materials being present, be found to be so
by the Authority under the Act;

 119.2What is contemplated under
Sections 10and 11 of the Act read with
Section 8, undoubtedly, is a transfer as
defined in Section 8, being a genuine
transaction. A fraudulent transaction or a
sham transaction if entered into before
26.09.1970, would incur the wrath of
Section (3), and a farce of a partition
likewise, bringing about a mock division of
property among the sharers, would also
incur wrath of Section (3) of the Act. No
doubt, even if the transaction is a sham
transaction, be it a transfer or a partition,
needless to say, it would incur the wrath of
Sections 10 and 11and it would not be
necessary to justify the invalidity with any
materials if entered into or effected after
26.09.1970.

 119.3. It does not mean that a
transaction
which
is
entered
into,
particularly after the Act came into force,
be it a transfer or a partition, and if there
are materials and circumstances brought
out, which persuades Authorities to hold
that it is collusive or a sham transaction
and the property did not change the hands,
the property would not be liable to be
treated as held by the previous owner as on
the commencement day and included in the
account despite the purported transfer or
partition.

 25. Having concluded thus, the
learned Judge then went on to declare that
the partition deed, being unnatural, was
sham; that coparcenary property alone is
partible, and stated that the question as to
whether or not a gift could have been
validly made by Vithaldas to his elder
daughters cannot be gone into, as no such
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
case had been set up. Finally, the learned
Judge held that it was of no moment that
cross- objections of the state were allowed
without making the two elder daughters
parties to the appeal before the appellate
tribunal, and then concluded that the
appeal should stand dismissed.

 26. Shri Krishnan Venugopal,
learned Senior Advocate appearing on
behalf of the Appellants largely relied upon
the judgment delivered by Justice Sanjay
Kishan Kaul and in particular, strongly
relied upon Gurdit Singh v. State of Punjab
1974 (2) SCC 260 and Uttar Chand v. State
of Maharashtra (1980) 2 SCC 292.On the
other hand, Shri Rahul Chitnis, appearing
for the State, largely read from Justice
Josephs judgment and supported it.

 27. On a conspectus of the
provisions of the 1961 Act that have been
set out hereinabove, what becomes clear is
that transfers or partitions of land made in
anticipation of or in order to avoid or
defeat the 1972 Amending Act were to be
ignored in calculating ceiling limits. This
was so laid down by the Amending Act,
1975, which made 26.09.1970 the cut-off
date after which such transfers became
suspect. What is important to note is that
the 1961 Act does not in any manner
declare such transfers to be void. However,
if the contrary is proved on the facts of a
given case, i.e. that a bonafide transfer or
partition was in fact effected after the cutoff date, the person affected would be out of
the clutches of Section 10 and/or Section 11
of the 1961 Act. In fact, what is important
is the expression shall accordingly be
ignored, which occurs in Section 11.

 28. The scheme of the 1961 Act is
that a person or a family unit has to submit
returns by certain dates and extended dates
that are mentioned in Sections 12 and 12-A
of the 1961 Act. Section 13 is important in
that where a person or member of a family
unit either fails without reasonable cause
to furnish a return, or furnishes a false
return, he becomes liable to a penalty,
which may extend to INR 100 or 500, as the
case may be. A false return may be ignored
by the Collector, requiring the person or
family unit to submit a true and correct
return complete in all particulars under
Section 13(2), together with the penalty of
INR 500. If thereafter, any such person or
family unit fails to comply with the order
within the time so granted, then, as a
penalty for failure to furnish such return or
a true and correct return complete in all
particulars, the right, title and interest in
the land held by him or the family unit as
the case may be, in excess of the ceiling
area, shall, subject to the provisions of
Chapter 4, be forfeited to the State
Government and vest in that Government.
This Section gives a limited jurisdiction to
the Collector to determine whether a true
and
correct
return
complete
in
all
particulars has been given. Thus, a
Collector would be well within his
jurisdiction to state that a registered
partition
deed
entered
into
after
26.09.1970 has been suppressed in the
return furnished, as a result of which a
penalty of INR 500 may be imposed, or
excess land forfeited under Section 13(3).
This jurisdiction is limited only to the
factum of a partition deed having been
suppressed from the return, and does not
extend to conduct an enquiry as to
whether a partition deed prior to
26.09.1970 is or is not a sham document.
Also,
the
discretion
vested
in
the
Collector under Section 30 is at a stage
anterior to the holding of an enquiry
under Section 14, and the resultant
declaration under Section 21.
9 All. Smt. Sushila Devi Vs. State of U.P. & Ors.
1099
 29. By Section 14 of the 1961 Act,
the Collector is then to hold an enquiry
either suo motu or otherwise, whether or
not a return has been filed, in respect of
every person or a family unit holding land
in excess of the ceiling area. In so doing,
Section 18 states that the Collector must
consider several matters including, under
sub-clause
(b),
whether
any
land
transferred between 26.09.1970 and the
commencement date (which we have seen is
02.10.1975), or any land partitioned after
the cut-off date should either be considered
or ignored in calculating the ceiling area
as provided in Sections 10 and 11 of the
1961 Act. If Section 18(a) to (k) are seen,
the evidence adduced at the hearing to be
given to the holder and other persons
interested in the land, only goes to
calculating the total area of the land,
including land held by the holder between
26.09.1970 and 02.10.1975 and lands that
have been acquired after 02.10.1975. All
the details mentioned in Section 18 only
speak of ignoring certain transfers or
partitions between the cut-off date and the
commencement date, and otherwise would
only go to the calculation of lands held by
persons, and then applying the drill of the
ceiling provisions of the 1961 Act. To state
that Section 18(l) is a catch- all provision
by which the Collector can determine
whether a particular transfer or partition is
a sham transaction, even if entered into
before the cut-off date, is to go beyond the
jurisdiction conferred on the Collector by
the 1961 Act. In point of fact, even the
language of Section 18(l) makes it clear
that any other matter is circumscribed
by the following words: for the purpose
of calculating the ceiling area, and
delimiting any surplus land.

 30. This becomes even clearer
when the other provisions of the 1961 Act
are looked at. Under Section 21, the
Collector has to make a declaration as to
entitlement of a person or family unit to
hold within the ceiling area and area of
land which is in excess of the ceiling area.
Further, what is of importance is that
Section
44B
excludes
pleaders
from
appearing on behalf of any party in any of
the proceedings under the 1961 Act. This is
for the reason that the Collector has to
determine on the facts of each case, based
on returns filed if any, as to what areas are
to be excluded, and what areas of land are
to be included so far as determination of
ceiling of a person or family unit is
concerned. If it were to be held that the
Collector could go into a trial as to
whether a particular partition deed is or is
not sham, even though it is before the cutoff date, would have two effects that are not
warranted in law - first, it would extend the
legal fiction that is limited to transfers and
partitions made after the cut-off date; and
second, if a period even before the cut-off
date can be considered, it would render the
cut-off date otiose, as then in all cases the
Collector
could
go
into
whether
a
particular transfer or partition has been
entered into to avoid the effect of the 1972
Amendment Act, which is an enquiry
restricted only to transfers and partitions
which take place on or after 26.09.1970
upto the commencement date. Also, if the
Collector were to substitute himself as a
Civil Court deciding a Civil Suit, it would
be absolutely essential for a person or
family unit to engage a pleader of his
choice to argue all the ramifications that
his case may have, both in fact and in law.
In fact, a Civil Court alone would have the
jurisdiction to decide a question as to
whether a partition deed entered into
before the cut-off date is or is not sham,
which would involve a declaration that the
partition be declared void. The 1961 Act
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore bars the jurisdiction of the Civil
Court only insofar as transfers and
partitions are entered into on or after
26.09.1970 and before the commencement
date, and not to transfers and partitions
that take place before the cut-off date.

 31. As a matter of fact, if the
appeal provision, i.e. Section 33 of 1961
Act is to be seen, it is clear that appeals are
provided to the Maharashtra Revenue
Tribunal against a declaration or part
thereof made under Section 21 of the 1961
Act. The persons who would be aggrieved
by such declarations can only be the person
or family unit whose ceiling area is
determined or the landlord to whom
possession of land is to be restored or the
right, title and interest of the person or
family unit whose land is to be forfeited to
the State Government. If at all a crossobjection can be taken by a respondent
under Section 33(1A), it can only be a
person or family unit or landlord spoken of
in Section 21(1) of the 1961 Act. The State
Government may perhaps file a crossobjection where it contends that land has
wrongly not been forfeited to it. But such is
not the case on the facts of this appeal.
Thus, the State taking a cross objection on
the facts of this case would itself be outside
Section 33(1A). If at all the State can be
said to be aggrieved by a declaration made
under Section 21, a suo moto power of
revision is given to the State Government
under Section 45, which on the facts of a
particular case may well be exercised.

 32. This apart, once it is clear
that the elder daughters are affected by
virtue of the partition deed being held to be
non est in law by the appellate tribunal,
they ought to have been made parties to the
appeal so that they could have made
arguments in favour of the legal validity of
the partition deed. This opportunity being
denied to them, as has been rightly held by
Justice Kaul, is also fatal to the appellate
authoritys order, which has therefore
wrongly been upheld by the learned Single
Judge and Division Bench of the Bombay
High Court.

 33. At this stage, it is important to
consider some of the judgments of this
Court under the 1961 Act.In Raghunath
Laxman Wani and Ors. Vs. State of
Maharashtra (1971) 3 SCC 391, a Special
Leave Petition was entertained directly
against the judgment and order passed by
the Maharashtra Revenue Tribunal dated
02.09.1966, in proceedings held by the
Deputy Collector under Section 14 of the
1961 Act in respect of lands held by the
appellants therein. The Deputy Collector
and the Tribunal concurrently found on
fact that the appellants case of severance
of status and partition of the family lands -
partially in 1956, and then in 1960, was not
acceptable. In the absence of any document
regarding alleged severance of the family
and partition, other factors when toted up
rendered the appellants case of partition,
first in 1956 and then in 1960, doubtful.
Given these circumstances, this Court held
that it would be more than reluctant to
interfere and upset such a finding (see
paragraph 14). The Court then examined
the scheme of the 1961 Act in paragraphs
15 to 17, and held that the ceiling area is to
be ascertained with reference to the state of
affairs existing only on the appointed
date. In this view, the Revenue Tribunal
was held to be correct in not taking into
consideration three children born in the
family after the appointed date while
determining the ceiling area to which the
appellants family was entitled. This case
turned largely on its facts, and was in any
case decided before the introduction of
9 All. Smt. Sushila Devi Vs. State of U.P. & Ors.
1101
Section 44-B to the 1961 Act in 1976 -
which forbade pleaders from arguing cases
before the authorities under the 1961 Act.

 34. In Jugal Kishore v. State of
Maharashtra (1989) Supp. (1) SCC 589,
the question before this Court was whether
in view of Section 100(2) of the Bombay
Tenancy
and
Agricultural
Lands
(Vidharbha Region) Act, 1958 (hereinafter
referred to as the Bombay Tenancy Act),
the Tenancy Tehsildar had exclusive
jurisdiction to decide the issue of tenancy.
In holding that the authorities under the
1961 Act would have to determine the land
holdings of the petitioner therein, this
Court held:

 8. It is, therefore, submitted on
behalf of the petitioner that determination
of the question of tenancy by the Ceiling
Authorities, was without jurisdiction. The
High Court held that in the facts of this
case it was not. The Ceiling Authority had
to determine the land holdings of the
petitioner. Incidentally, where a transfer is
made by the landholder creating a tenancy,
there whether the transfer was made bona
fide or made in anticipation to defeat the
provisions of the Ceiling Act, is a question
which falls for determination squarely by
the Ceiling Authorities, to give effect to or
implement
the
Ceiling
Act.
In
that
adjudication it was an issue to decide
whether tenancy right was acquired by the
tenant of the petitioner. But here before the
Ceiling Authorities the adjudication was
whether
the
transfer
to
the
tenant,
assuming that such transfer was there, was
bona fide or made in anticipation to defeat
the provisions of the Ceiling Act. This latter
question can only be gone into in
appropriate proceedings by the Ceiling
Authorities. Unless the Acts, with the
intention of implementing various socioeconomic
plans,
are
read
in
such
complementary manner, the operation of
the different Acts in the same field would
create contradiction and would become
impossible. It is, therefore, necessary to
take a constructive attitude in interpreting
provisions of these types and determine the
main aim of the particular Act in question
for adjudication before the court.

 9. In our opinion, having regard
to the Preamble to the Act of the
Maharashtra Agricultural Lands (Ceiling
on Holdings) Act, 1961, which was enacted
for giving effect to the policy of the State
towards securing the principles specified in
clauses (b) and (c) of Article 39of our
Constitution; and in particular, but without
prejudice to the generality of the foregoing
declaration, to ensure that the ownership
and control of the agricultural resources of
the community are so distributed as best to
subserve the common good and having
regard to the purpose of the Bombay Act, it
was open to the Ceiling Authorities to
determine whether there was, in fact, a
genuine tenancy.

 35. In Jugal Kishore case, case,
no question similar to the question that is
before us in the present matter arose on the
facts. It was assumed that adjudication
before the ceiling authority would include
an adjudication as to whether a person was
made a tenant to defeat the provisions of
the 1961 Act. Based on that assumption, the
question posed and answered by the Court
was that it would be the ceiling authorities
- and not the Bombay Tenancy Act
authorities - who would be competent to
answer such question. This judgment also
does not, in any manner, decide the
questions that have been posed before this
Court, with particular reference to the
language of Section 11 of the 1961 Act and
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
partitions which took place prior to a cutoff date where even a limited deeming
fiction did not become applicable.

 36. In State of Maharashtra and
Anr. v. Rattanlal (1993) 3 SCC 326, this
Court was concerned with the operation
and reach of Section 45 of the 1961 Act,
which dealt with the revisional power of the
State
Government.On
the
facts
of
Rattanlal
(supra),
the
Additional
Commissioner had issued a show cause
notice to the respondents therein, inter alia,
for the reason that the respondent did not
disclose the lands or his half share in a
particular declaration, having suppressed
the same. On hearing the respondent, and
for reasons recorded in his order dated
09.06.1980, he remitted the case to the
primary Tribunal to redetermine surplus
land. The High Court held that once an
appeal was preferred by the declarant
under the 1961 Act, and an order made
thereon, the Commissioner or State
Government is devoid of jurisdiction to
determine the ceiling area. The Supreme
Court set aside the judgment of the High
Court, and held that it was perfectly
within the jurisdiction of the Additional
Commissioner under Section 45 of the
1961 Act, suo moto, to call for the
records of a case and thereafter to decide
it and pass such order thereon as it
deems fit under Section 45(2) of the 1961
Act. This case again is far removed from
the facts of the present case, concerning
itself
with
the
suo
moto
powers
exercisable under Section 45 of the 1961
Act.

 37. In Bhupendra Singh v. State
of Maharashtra(1996) 1 SCC 277, this
Court, while dealing with proceedings
under the 1961 Act, held:

 13. Section 18 of the Ceiling Act
requires the ceiling authority to consider
certain matters enumerated therein before
issuing a declaration under Section 21
declaring the land which the person or the
family unit is entitled to hold and the
surplus lands. Clause

 (d) of Section 18 requires the
Collector to consider, inter alia, whether
any transfer is made by the holder in
contravention of Section 8, and if so,
whether the land so transferred should be
considered or ignored in calculating the
ceiling area under Section 10(1). Clause
(g) requires the authority to consider what
is the total area of land held at the time of
the enquiry and what is the area of land
which the holder is entitled to hold. Clause
(j) requires the authority to consider
whether the proposed retention of land by
the holder is in conformity with the
provisions of Section 16.