Sheo Narain vs Addl. Commissioner, Jhansi Division, Jhansi

This writ petition has come up for admission. However, with the consent of learned counsel for the parties, the case is being disposed of finally, in accordance with Rules of the Court.

By means of the present writ petition, the petitioners have challenged orders dated I5th April, 1988 passed by Additional Commissioner, Jhansi Division, Jhansi and January 30. 1986 passed by Prescribed Authority, Banda.

The facts, giving rise to the present petition, in brief, are that by order dated January 30, 1986, the Prescribed Authority declared 7.27 acres land of father of the petitioners Nos. 1 and 2 as ''surplus''. The aforesaid order was challenged in appeals on the plea that plot No. 252, having an area of 5.65, plot No. 412, area 10.18 are recorded in the names of petitioners Nos. I and 2, plot No. 254, area 5.44 is recorded in the name of petitioner No. 2 and plot No. 412, area 0.86 is owned by petitioner No. 3, which is self-acquisition. Petitioners Nos. I and 2 have been living separately from their father, late Jagjeet, for the last more than 30 years. The grounds of objection taken in the appeal are mentioned in paragraph 5-A, 5-B and 5-C of the writ petition.

It is further case of the petitioners that the appellate authority, namely, Additional Commissioner, Jhansi, dismissed their appeal by a two-line order. The appellate authority, while pronouncing judgment, had said in open court that he will pass a separate detailed judgment, but no such detailed judgment was ever passed.

From perusal of order sheet, it appears that by virtue of interim stay order dated May 13, 1988, which has been extended from time to time, the petitioners are still in possession over the disputed land.

Having heard learned counsel for the petitioner and the Standing Counsel, 1 am of the view that law is well settled that if a name is mutated on the basis of separate acquisition of property in favour of an adult son long before enforcement of ceiling, in terms of U.P. Imposition of Ceiling on Land Holdings Act, 1960, that land cannot be clubbed for the purposes of computation of ceiling area.

Although, learned counsel for the petitioner could not put forward direct pronouncement on the point involved in the present case, but this court is not unmindful of decisions of Calcutta High Court on the point in issue, which has a persuasive value.

In Abdul Haque and Another Vs. State of West Bengal and Others, , it was by Hon''ble D.N. Sinha, J. (as His Lordship then was and later on became Chief Justice of Calcutta High Court) that if the rent has been accepted by subsequent post vesting transferee, it will create tenancy right in favour of post vesting transferee, and the post vesting transferee will be treated as direct tenant under the State.

In Panchu Mulla v. J.L.R. reported in 1981 (1) Cal HCN 1 it was held by Hon''ble G.N. Ray, J. (as His Lordship then was, and who is, at present a Judge of Supreme Court) that if a person, after purchase of land, gets his name mutated through regular mutation proceeding, and regularly paying rent to the State, he cannot be evicted by subsequent proceedings.

There are other decisions, as well, of Calcutta High Court, wherein I was a party, as Presiding Judge following the aforesaid proposition of law, which, of course, I do not propose to refer in the present case as I feel that reference of Abdul Haq and Panchu Mulla cases 1981 (1) Cal HN 1 (supra) are sufficient for the purpose of resolving the present controversy.

The decision of Calcutta High Court in Abdul Haque and Another Vs. State of West Bengal and Others, has persuasive value and I respectively agreed with the view expressed in the aforesaid case laws.

In the result, the writ petition is allowed. The judgment and orders dated 30th January, 1986 (Annexure 3) passed by Prescribed Authority and dated 15-4-1988 (Annexures 1 and 2) passed by Additional Commissioner Jhansi are set aside. The respondents and each one of them are restrained from interfering with the possession of the petitioners over the land in dispute. The State is at liberty to initiate proceedings against the petitioners, afresh, according to law and in the light of observations made in the body of this judgment.

Petition allowed.