IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1003 of 2002. (Old CMWP No. 30934 of 1990) Smt. Jamuna Devi (since deceased) wife of Sri Nand Kishore, resident of village Tanda Azam, Tehsil Bazpur, District Nainital (Now Udham Singh Nagar) substituted by her legal heirs 1/1 Sunder Lal and others. … Petitioners. Vs. State of U.P. through Collector Nainital and others. …Respondents. Sri Vijay Bhatt, learned counsel for the petitioners. Sri B.K.Gupta, learned Additional Advocate General for respondent nos. 1 to 3. Date December 17, 2008. P.C.: Hon’ble B.S.Verma, J. By means of this writ petition, the petitioners have sought for a writ of certiorari quashing the impugned orders dated 14-6-1988 (Annexure-2), 21-2-1990 (Annexure–3) and 26-10-1990 (Annexure-4) to the writ petition. At the outset, it may be mentioned that the sole petitioner Smt. Jamuna Devi has died and he has been substituted by her legal heirs Sunder Lal and others. Briefly stated, relevant facts of the case are that the petitioner’s husband Sri Nand Kishore was the tenure holder of the land in village Tanda Azam Sauka Nagala and Bichpuri of Tehsil Bazpur, district Nainital and he was served with a notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act 1960 (for short the Act) in the year 1975 and a Ceiling Case No. 51/4 of 1974-75 was registered against him. The Prescribed Authority by its judgment and order dated 29-6-1976 declared irrigated land measuring 94 Bighas 3 Biswa of late Sri Nand Kishore as surplus situate in village Tanda Azam, Tehsil 2 Bazpur, district Nainital (now Udham Singh Nagar). Aggrieved by the said order, the petitioner’s husband Nand Kishore filed an appeal before the District Judge, Nainital, registered as Ceiling Appeal No. 664/76, which was decided by order dated 18-4-1977. The appeal was allowed and it has been held that Nand Kishore possesses no surplus land. According to the petitioner, the order dated 18-4-1977 passed by the District Judge Nainital was not assailed by the State. It is further stated in the writ petition that late Nand Kishore did not increase the area of his land. To avoid future misunderstanding amongst the family members, he distributed the land among the family members. Some registered deeds were made in favour of the family members, therefore, fresh notice was served upon late Nand Kishore and the total land held by his legal heirs was clubbed in the said notice. It is pertinent to mention here that no notice was issued to the legal heirs of the petitioner’s husband whose land was clubbed in the second round of litigation with the land of late Nand Kishore. On 10-6-1986, objections were filed against the notice stating that the Ceiling Case against him has already been decided and there is no surplus land with him. During the ceiling proceedings, the petitioner’s husband Nand Kishore died on 22-4-1987. Even after the death of Nand Kishore, no notice was served upon the legal heirs/legal representatives of late Nand Kishrore. The petitioner and other family members filed their objections and it was stated therein that Nand Kishore left no surplus land. The learned Prescribed Authority ultimately declared 39- 09 Bigha land of plot no. 37 M., village Tanda Azam, Tehsil Bazpur, as surplus by the impugned judgment and order dated 14-6-1988. The appeal preferred against the said order of the Prescribed Authority before the Commissioner, Kumaun Division, Nainital was dismissed 3 on 21-2-1990. The learned Commissioner has affirmed the order. On the basis of the judgment of Prescribed Authority and the Commissioner, a notice Annexure 4 was issued on 26-10-1990 for taking over possession, hence this petition. Learned counsel for the petitioner has contended that the earlier proceedings, which were initiated against the petitioner’s husband have become final and there was no sufficient ground under Section 29 of the Act for re-determination of the ceiling area and there was no occasion to issue a fresh notice. It is also argued that the ground which was shown in the notice under Section 10(2) of the Act was also not sufficient to issue a notice for re-determination of ceiling area. Learned counsel for the petitioner further contended that no notice was ever given to the petitioner as well as other family members under Rule 19(4) of the Rules framed under the Act and no separate notice under Section 10(2) of the Act read with Rule 8 of the Rules framed thereunder was ever given. The learned Prescribed Authority after hearing the petitioner as well as other family members including sons and daughters of the deceased, who filed their objections before him, has held that late Nand Kishore had executed Will on 5-2-1985 and 20-1- 1987. The earlier will executed by the executor was cancelled by the subsequent will dated 20-1-1987. It was held that the will was executed by late Nand Kishre with a view to defeat the provisions of the Act. In its judgment, the learned Prescribed Authority excluded the land, which was obtained on the basis of registered gift deed dated 19-10-1970. In appeal, the learned Commissioner also took the same view. 4 Counter affidavit has been filed by the State and the averments made in the writ petitions have been denied. There is no denial of the fact that no notice under Rule 19(4) or under Section 10(2) and Rule 8 of the Act was given to the petitioner. I have heard learned counsel for the parties and perused the material on record including the impugned orders. The controversy to be decided in this writ petition is whether the Will was executed to defeat the provisions of the Act. On the other hand, the learned Additional Advocate General on behalf of the respondents has contended that in view of the law laid down by Allahabad High Court in the case of Girraj Vs. State of Uttar Pradesh and others [1979(5), A.L.R., Page 210] and the case of Balraj Singh Vs. State of U.P. and others [2002(3), A.W.C., Page 2333] under the provision of Section 5(6) of the Act, the expression “transfer of land made after 24th day of January, 1971” includes any admission, acknowledgment, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instruments or in any other manner. It is submitted that the will in question for the purposes of the Act was a transfer. I have perused the judgment and the Prescribed Authority. From a bare perusal of the same, it reveals that the learned Prescribed Authority has committed a manifest error of law in not dealing with the question whether the land was held by the sons in their independent holding on the date of enforcement of the Act. Learned Prescribed Authority in its earlier judgment did not club that land with the land of Nand Kishore. I have also perused the judgment rendered by the appellate court in Appeal No. 684 of 1976, dated 18-4-1997 and I find that the learned appellate authority did not club the land of the sons along with the holding of late Nand Kishore. 5 The argument of the learned Additional Advocate General for the State that the order passed by the Prescribed Authority as well as appellate court are correct in view of the judgments of the Allahabad High Court in the case of Girraj Vs. State of Uttar Pradesh and others and Balraj Singh Vs. State of U.P. and others (supra) cannot be accepted, because the said case law is not applicable while determining ceiling area of late Nand Kishore. The ratio of the judgment could be seen in the case of sons and daughters if the notices had been issued to them. Fresh notice was issued under Section 29 of the Act for re-determination of ceiling area in the lifetime of late Sri Nand Kishore. It well settled that a will would come in operation only after the death of the executor of the will. The learned Prescribed Authority has not given a finding to this effect that the will was made in favour of a particular member, so that other family members could get the benefit of the proviso (b) of sub-section (6) of Section 5 of the Act and also to defeat the provisions of the Act. In the above facts and circumstances of the case, it would be in the interest of justice that the case be remanded for a fresh decision to the Prescribed Authority for determination of ceiling area of the legal heirs of late Nand Kishore after issuing notice under Rule 19(4) of the Act. For the reasons and discussion aforesaid, the writ petition is liable to be allowed on this ground alone that notices were not issued after the death of late Nand Kishore to the legal representatives and other tenure holders whose land has been clubbed in the notice under Section 10(2) of the Act, which was issued to late Nand Kishore. The writ petition is allowed. The impugned order dated 14-6-1988 passed by the learned Prescribed Authority and the order dated 21-2-1990 Additional Commissioner, Kumaun Division, Nainital are set aside. The case is remanded to the Prescribed 6 Authority concerned for a decision afresh. The Prescribed Authority is directed to proceed afresh in the light of the observations made in the body of this judgment against the legal heirs of late Nand Kishore and other persons in accordance with law. No order as to costs. The Prescribed Authority shall expedite the ceiling proceedings as far as possible without any further delay in the matter and the present petitioners shall also co-operate in the expeditious disposal of the case. (B.S.Verma,J.) RCP