Full Judgment Text
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PETITIONER:
STATE OF U.P.
Vs.
RESPONDENT:
BANKE SINGH & ANR.
DATE OF JUDGMENT: 25/01/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (2) 517 1996 SCALE (2)128
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
This special leave petition arises from the order of
the High Court of Allahabad, Lucknow Bench made on September
21, 1988 in Writ Petition No.1731 of 1984.
Though the respondents had been served earlier and Sri
Mukul Mudgal who had taken notice has reported on September
1, 1995 that he could not appear and stated that he be
permitted to withdraw from the undertaking. He has also not
filed his Vakalatnama. In these circumstances, since
respondents are not represented, learned counsel for the
appellant was directed to produce necessary material on the
basis of which respondent Banke Singh became owner of the
land. The learned counsel has now produced the records.
The only question in this case is: whether the
respondents would get benefit of l/4th share in the surplus
land declared by the competent authority? On September 8,
1982, Krishan Pal Singh filed objection, who claimed land of
Khata Nos. 340, 341 and Khata No.33 of village Nawada and
Khata No.77 of Village Jamla Jot on the basis of a will
executed by Smt. Gajraji. On that basis, the said land is
required to be excluded from the surplus land. The primary
authority had rejected the claim by proceedings dated July
30, l983 and on appeal the District Judge allowed the appeal
by order dated November 9, 1983 and excluded 1/4th of the
land held by Gajraji on the basis of the Will dated
September 2, 1978. When it was questioned, the High Court
dismissed Writ Petition No.1731/84. Hence, this appeal by
special leave.
Section 5 of the U.P. Imposition of Ceiling on Land
Holdings Act, 1960 (U.P. Act No.l of 1961) (for short, ’the
Act’) in Chapter II imposes ceiling on land holdings.
Certain exemption mentioned in the Article gets excluded
from surplus land. Section 5 postulates that on and from the
commencement of the Uttar Pradesh Imposition of Ceiling on
Land Holdings (Amendment) Act, 1972, no tenure-holder shall
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be entitled to hold in the aggregate throughout Uttar
Pradesh, any land in excess of ceiling area applicable to
him.
Sub-section (6) postulates determination of the ceiling
area applicable to a tenure-holder. It provides that any
transfer of land made after the 24th day of January 1971,
which but for the transfer, would have been declared surplus
land under this Act, shall be ignored and not taken into
account. Explanation-I provides that for the purpose of this
sub-section the expression transfer of land made after the
twenty-fourth day of January, 1971 includes, among other
things, -
any admission, acknowledgement, relinquishment or
declaration in favour of a person to the like effect, made
in any other deed or instrument or in any other manner,
shall be construed to be a transfer for the purpose of sub-
section (6).
Admittedly, the Will was executed on February 10, 1978
long after the specified date. By the Will a devise was made
by Gajraji, owner of the land bequeathing her 1/4th share
in favour of her brother’s grand-son, Krishan Pratap Singh.
Therefore, it must be construed to be a devise "in any other
manner" within the meaning of Explanation I (b) of sub-
section (6) of the Act. It shall be ignored for the purpose
of determination of the surplus land. the High Court and the
appellate authority, therefore, were not right in directing
to exclude the said land.
The appeal is accordingly allowed. No costs.