The court held that valid sale deeds executed before the appointed date under the Ceiling Act must be considered, and notices issued post-death of the tenure holder are invalid.

JUDGMENT :

Irshad Ali, J.

1. Heard Mohd. Arif Khan, learned Senior Counsel assisted by Sri Mohd. Aslam Khan, learned counsel for the petitioners and Sri S.P. Maurya, learned Additional CSC for respondent - State.

2. By means of present writ petition, the petitioners are challenging the impugned order dated 12.08.1997 passed by Additional Commissioner, Judiciary, Faizabad Division, Faizabad in Appeal No.47 (Ceiling) as well as against impugned order dated 31.12.1993 passed by the prescribed authority (Ceiling), Bahraich, in case No.812 under sub Section 2 of Section 10 of U.P. Imposition of Ceiling on Land Holdings Act .

3. Brief fact of the case is that a notice dated 10.11.1989 was issued in the name of the petitioners and their fathers requiring them to show cause why the land should not be declared surplus under sub section 1 of Section 10 of U.P. Imposition of Ceiling on Land Holdings Act . Earlier to the said notice issued against the petitioners, a notice dated 18.05.1989 was also issued in the name of deceased Prabhoo after his death, who was the father of petitioner No.4 to 7 and grand father of petitioner Nos.1 to 3.

4. The petitioners objected to the said notice through their objections dated 11.01.1990 stating therein that the notice was illegal, arbitrary as the petitioners and their fore-fathers were not having land beyond the limitations prescribed under Imposition of Ceiling on Land Holdings Act because father of petitioner No.4 to 7 and grand - father of petitioner Nos.1 to 3 had already died much earlier. Not only this, but the land in dispute was already transferred to the petitioner Nos.4 to 7 and petitioner Nos.1 to 3 through registered sale deed dated 02.02.1970 and also on the ground that petitioner Nos.4 to 7 and father of petitioner Nos.1 to 3 were major on the date the ceiling Act was imposed in the year 1972 amongst other grounds.

5. Thereafter, oral and documentary evidences were produced through the witnesses to establish the case that the petitioner Nos.4 to 7 and father of petitioner Nos.1 to 3 were major at the time of imposition of ceiling on land holdings act and it was also proved that the sale deed was executed before 24.01.1971 and all the transferees were separately in possession of their land as well as two bighas land was grove land and about one acre land was Usar land.

6. Thereafter, the objection was decided by the prescribed authority (Ceiling), Bahraich vide order dated 31.12.1993 and rejected the objections without application of mind judicially in as much as failed to appreciate the evidence already on records.

7. Feeling aggrieved with the said arbitrary and illegal order, the petitioner filed appeal No.47 before the Commissioner, Faizabad Division, Faizabad on the ground that the order passed by the prescribed authority was grossly erroneous in law as no specific and relevant issues were framed and also on the ground that the prescribed authority failed to appreciate the sale deed in the name of the petitioners, executed in the year 1970. It was also alleged in the appeal that the assessment was erroneously done without considering the position of land in as much as was irrigated and un-irrigated.

8. The Additional Commissioner, Judicial decided the appeal of the petitioners vide order dated 12.08.1997 and rejected the same again without considering and examining the evidences on record only on the basis of extraneous and irrelevant facts.

9. The Court below failed to give any finding on the point of pleading that the petitioner Nos.4 to 7 and father of petitioner Nos.1 to 3 were major at the time of Imposition of Ceiling on Land Holdings Act in the year 1972 and so no benefit of additional 2 hectares of land to which all the major adult sons of deceased Prabhoo was given while determining ceiling area.

10. The Court below also failed to consider evidenciary value of the sale deed executed before 24.01.1971, whereas the provisions of Imposition of Ceiling on Land Holdings Act clearly lays