Smt. Kamla Devi And Others v. State Of U.P And Others.

S.U Khan, J.:— Heard learned counsel for the parties.

2. This writ petition arises out of proceedings for declaring and taking surplus agricultural land initiated against original petitioner No. 1 since deceased and survived by legal representatives (i.e remaining petitioners and one more) under U.P Imposition of Ceiling on Land Holdings Act, 1960. Petitioner No. 2 Arvind Kumar is son and petitioners 3 and 4 are daughters of Smt. Kamla Devi. Prescribed authority Shikohabad district Mainpuri through order dated 13.1.1975 declared 61.82 acres of irrigated land belonging to original petitioner No. 1 as surplus land. Against the said order dated 13.1.1975 original petitioner No. 1 filed appeal. After amendment in the Ceiling Act in respect of the authority competent to decide the appeal, appeal was transferred for disposal to Additional Commissioner, Agra Division Agra and was numbered as appeal No. 1 of 1986-87. The learned Commissioner, dismissed the appeal on 3.12.1987, hence, this writ petition.

3. The first point argued by learned counsel for the petitioner is that after amendment in the Ceiling Act fresh notice was issued to the petitioners on 24.11.1975 by the prescribed authority (i.e after decision of prescribed authority dated 13.1.1975), hence the entire proceedings stood abated. The learned commissioner has thoroughly examined this aspect and has utterly disbelieved the version that any fresh notice was issued on 24.11.1975 Learned commissioner found that on the photostat copy of the notice there was interpolation in the date. It was also stated that nothing could be brought on record regarding fate of proceedings which were allegedly initiated on the second notice dated 24.11.1975

4. The next point argued by the learned counsel for the petitioners is regarding plot No. 484 area 9.51 acres. Before the courts below as well as this court it was strenuously argued that the said plot contained a brick kiln hence it was not agricultural land and in any case petitioner No. 1 on 26.1.1964 had sold the said plot to Dev Dutt Paliwal for Rs. 50000/- and since then Sri. Paliwal was in possession thereof and running the brick kiln therein. No registered deed was executed on 26.1.1964 or on any other date. Bhumidhari right can be transferred only through registered sale deed. In revenue records the said plot was never entered as brick kiln. Both the courts below negatived the contention of the petitioners and in my opinion rightly. Under section 6(1)(b) of the Ceiling Act, it has been provided that land occupied by a residential house shall not be taken into consideration for determining the ceiling area. However, under section 6(1)(a) it has been provided that land used for industrial purpose and in respect of which the declaration under section 143 of U.P.Z.A.L.R Act subsists shall not be taken into consideration for the purpose of determining ceiling area. By reading two clauses of section 6(1), it is quite clear that even if a land is actually being used for industrial purpose including brick kiln it can not be excluded from consideration unless declaration under section 143 of U.P.Z.A.L.R Act has been obtained in respect of the said land and the said declaration subsists till the date of initiation of ceiling proceedings. In the instant case absolutely no such declaration was obtained. Both the courts below found that in Khasras of 1378 and 1379 fasli no brick kiln was mentioned in the revenue records. In respect of allegation of transfer of plot No. 484, appellate court has recorded that neither any agreement nor Patta nor any other written document to substantiate the said plea was filed. Before the prescribed authority some licence to run brick kiln issued in favour of Paliwal dated 1.10.1965 which was valid for two years was filed. It was observed by the courts below that no evidence of renewal of 1965 licence was filed. Appellate court has also found that Sri. Paliwal was real brother of original petitioner No. 1.

5. It was also argued that Ms. Mridula petitioner No. 3 was major on the crucial date i.e 24.1.1971 However, the appellate court has found that in Khasra of 1379 fasli she was shown to be minor. Appellate court also found that no school certificate etc. was filed to show her age. Copy of Kutumb register showing her date of birth as 7.11.1954 was not found convincing by the appellate court. In view of this the land of Ms. Mridula was rightly clubbed with the land of the petitioner No. 1. In such situation, it was not necessary to issue notice to Ms. Mridula. Under section 3(17) of the Ceiling Act, it is provided that tenure holder does not include a minor child whose father or mother is tenure holder.

6. Accordingly, I do not find any error in the impugned orders, writ petition is therefore dismissed.