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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.