Point of Law: Notice to tenure holder - Limitation - Ceiling area and surplus area - If a land has come to be held by a tenure holder under Section 29, Prescribed Authority shall proceed to determine ceiling area in manner laid down under S. 10 - Hence notice under S. 10(2) of Act was rightly issued in accordance with law.

JUDGMENT :

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 (hereinafter 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 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,