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I.N. Bajpai v. Commissioner - WRIT - C No. 19795 of 1988  RD-AH 4978 (21 March 2007)
(Court NO. 28)
Civil Misc. Writ Petition No. 19795 of 1988
Inder Narain Bajpai Versus Commissioner Allahabad Division Allahabad
Hon'ble S.U.Khan J
Heard learned counsel for the parties.
This writ petition arises out of proceedings under U.P. Imposition of Ceiling on Land Holdings Act 1960. Prescribed authority Kanpur Dehat in case No. 2 of 1987-88, State Vs. Inder Narain decided on 1.2.1988 declared 5 Bigha 4 Biswa 4 Biswancy land as surplus land. Against the said order petitioner filed appeal No. 4 of 1988. Commissioner Allahabad Division Allahabad on 26.7.1988 dismissed the appeal hence this writ petition.
The first point argued before the court below as well as this court is that Mahavir Prasad father in law of the petitioner had bequeathed his agricultural land to his daughter Premo Devi wife of the petitioner with the condition that after the death of Premo Devi the property would devolve upon her children. Smt Premo Devi died in 1972. At that time she had three daughters aged about 5, 7 and 10 years old. Her minor daughters inherited the land in dispute after her death in 1972 in accordance with the will. Smt Premo Devi was wife of petitioner hence during her life time her land had to be clubbed with the petitioner's land. After the death of Premo Devi in 1972 the land belonged to the minor daughters of her and petitioner and till 8.6.1973 admittedly the said daughters were minors hence this land was again to be clubbed along with the land of the petitioner. Land of wife and minor children is to be clubbed along with the land of the tenure holder for determining ceiling limit. I therefore do not find any error in the clubbing of the lands.
Learned counsel has further argued that under Hindu Minority and Guardianship Act property of minor can not be sold by her guardian without permission of the court hence the land of the aforesaid minors could not be clubbed with the land of their father. Restriction on transfer is no ground to exclude the land from Ceiling proceedings. Sirdar land could not be transferred but it was included in Ceiling proceedings. Accordingly the contention being misconceived is rejected.
The other point argued is that there was a brick Kiln over plot No. 204 area 11 Bigha 15 biswa 15 biswancy. In this regard petitioner himself filed an agreement for letting out the plot for said brick kiln which was executed on 8.10.1975. Learned counsel states that the correct number of the said plot is 247 and not 204 however it will not make any difference. Trial court further found that in Khasra of 1384 Fasli (1.7.1976 to 30.6.1977), the land was entered as usar in the revenue records and no brick kiln was shown therein. These things shows that till 8.6.1973, the crucial date there was no brick kiln. Moreover by virtue of section 6 (1) (a) only such land is exempted from the operation of the Ceiling Act which is used for industrial purposes and declaration under section 143 of U.P.Z.A.L.R Act in that regard has been issued in respect thereto. In the instant case neither on 8.6.1973 the plot was used for brick kiln nor there was any certificate under section 143 of UPZALR Act to that effect.
Third point argued is regarding very small portion which according to the petitioner was acquired for construction of road. Both the courts below have held that no evidence to that effect was filed by the petitioner.
Accordingly there is no merit in the writ petition, hence it is dismissed.
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