Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(UK) 570

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
B.S.Verma, J.
Smt. Sheela Devi (since deceased) substituted by her legal heirs Raman Rekhi and another. …Petitioners.
Versus
The Commissioner, Kumaun Division, Nainital and others. Respondents.
Writ Petition No.4837 of 2001 (M/S) (Old CMWP No. 14873 of 1990)
Decided on : December 19, 2008.

Advocates Appeared:
Sri Bharat Bhushan, learned counsel for the petitioners. Sri Sudhir Kumar, Brief Holder, for the State-respondents.

The central legal point established in the judgment is the interpretation of Section 5(6) proviso (b) of the U.P. Imposition of Ceiling on Land Holdings Act in the context of a disputed gift-deed and its impact on the validity of the land dispute.

Headnote:
Gift-Deed - Land Dispute - U.P. Imposition of Ceiling on Land Holdings Act - Section 5(6) proviso (b) - [Section 5(6) proviso (b)] - The court discussed the alleged gift-deed made by the tenure holder and its relevance in the context of the U.P. Imposition of Ceiling on Land Holdings Act. The court referred to the Apex Court verdict in the case of Km. Sonia Bhatia Vs. State of U.P. and others [(1981) 2 Supreme Court Cases, 585] and interpreted the provisions of Section 5(6) proviso (b) to determine the validity of the gift-deed and its impact on the land dispute.
Fact of the Case:

The case involved two writ petitions related to a land dispute over 67 Acre, 15 Biswa of land. The petitioner claimed that the land was gifted to her by the tenure holder and challenged the orders declaring the land as surplus under the U.P. Imposition of Ceiling on Land Holdings Act.
Finding of the Court:

The court found that the alleged gift-deed executed after 24th January 1971 could not be considered under the provisions of Section 5(6) proviso (b) of the U.P. Imposition of Ceiling on Land Holdings Act. The court upheld the decisions of the lower courts and dismissed both writ petitions.
Issues: The main issue was the validity of the alleged gift-deed in the context of the U.P. Imposition of Ceiling on Land Holdings Act and its impact on the land dispute.
Ratio Decidendi: The court relied on the interpretation of Section 5(6) proviso (b) of the U.P. Imposition of Ceiling on Land Holdings Act as established in the case of Km. Sonia Bhatia Vs. State of U.P. and others [(1981) 2 Supreme Court Cases, 585] to determine that the gift-deed executed after 24th January 1971 could not be considered for protecting the land from being declared as surplus.
Final Decision: Both the writ petitions were dismissed, and the interim orders passed by the Allahabad High Court were vacated.

JUDGMENT

Since the controversy involved in both the writ petitions is similar and subject matter of both the writ petitions is the same land measuring 67 Acre, 15 Biswa of Khasra No. 148/5 of village Shahdaura, Tahsil Kichcha, therefore, for the sake of convenience, they are being decided by this common judgment.

2. Both these writ petitions were preferred by Smt. Sheela Devi, daughter of late Madan Gopal, resident of village Sahadoura, Tehsil Kichha, district Nainital, who died during the pendency of writ petitions, and she was substituted by petitioner no. 2 1/1 Raman Rekhi and petitioner no. 1/2 Aman Rekhi, sons of Jagdish Gopal vide order dated 5-6-2006 passed by this Court. The respondent no. 4 Jagdish had also died during the pendency of writ petition no. 4837 of 2001. His name has been deleted by order dated 27-10-2006 passed by this Court.

3. At the outset, it may be mentioned that the land measuring 10.8 Hectares of respondent no.4- Jadgish was declared surplus by the Prescribed Authority by his order dated 28-7-1980. According to the petitioner Sheela Devi (since deceased), the said surplus land included the land measuring 67 Acre, 15 Biswa of Khasra No. 148/5 of Khatauni Khata No. 257 of village Shahdaura, Tahsil Kichcha (Nainital), which was alleged gifted by respondent no.4 Jagdish son of Sri Madan Gopal in favour of petitioner Sheela Devi (since deceased) by gift-deed dated 20-1-1972. The petitioner Sheela Devi (since deceased) in Writ Petition No.4837 of 2001 (M/S) has challenged the order passed by the Prescribed Authority as well as the appellate court on that sole ground. In the other petition (Writ Petition M/S No. 4705 of 2001), she claimed the disputed land out of scope of ceiling by virtue of gift-deed allegedly executed by the tenure holder-Jagdish in the year 1972.

4. Writ Petition No. 4837 of 2001 (M/S) has been filed for issue a writ of certiorari quashing the impugned orders dated 31-3-1986 and 30-3-1990 (Annexure III and IV) passed by Prescribed Authority and the appellate authority respectively.

5. Writ Petition No. 4705 of 2001 (M/S) has been filed for issue a writ of certiorari quashing the order dated 11-2-1991 in Ceiling Case No. 16/16 of 1984-85 by the Additional Commissioner (Judicial), Kumaun Division Nainital.

6. Relevant facts giving rise to the writ petition no. 4837 of 2001, in brief, according to the petitioners, are that the petitioner Sheela Devi (since deceased) was a tenure holder and her name was recorded as Bhumidhar in Khatauni Khata no. 257. Notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act (for short the Act) was issued to respondent no.4 on 31-12-74, who filed objection before the Prescribed Authority. Ultimately land measuring 10.8 Hectares was declared surplus vacant land vide order dated 10-6-1976. Aggrieved, the respondent no. 4 preferred two appeals before the Civil Judge, Nainital, which were dismissed vide order dated 15-9-1977. The respondent no. 4 went up in Writ Petition No. 4167 of 1977 before the Allahabad High Court. The said writ petition was allowed vide order dated 17-5- 1979 and the matter was remanded to the Prescribed Authority.

7. After remand of the case, the Prescribed Authority by his order dated 28-7-1980 again declared 85.04 Bighas land as surplus vacant land in possession of respondent no.4. The respondent no.4 again preferred appeal, which was ultimately dismissed by the Additional District Judge, Nainital by order dated 17-12-1980. A writ petition no. 3556 of 1981 was preferred before the Allahabad High Court, which too was dismissed on 15-4-1981.

8. The respondent no. 4 filed Special Leave Petition before the Supreme Court, but no interim order was passed therein. The respondent no. 4 gave choice to the Prescribed Authority in respect of the land held by the petitioner but without informing the deceased petitioner. When the petitioner Sheela Devi (since deceased) came to know that the respondent no. 4 had given choice of her

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