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Bhagwat Prasad v. A.C. - WRIT - C No. 34 of 1989 [2007] RD-AH 6673 (12 April 2007)


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Court No.28

Civil Misc. Writ Petition No.34 of 1989

Sri Bhagat Prasad   Vs. Addl. Commissioner, Jhansi & others


Hon'ble Tarun Agarwala, J.

Heard Sri U.K. Saxena, the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.

The proceedings under section 10 of the U.P. Imposition of Ceiling on Land Holdings Act 1960 was initiated against the petitioner. One of the objections raised by the petitioner was that the son of the petitioner Sri Virendra Singh from his second wife was major as on 8.6.1973 and therefore his share should also be determined. The prescribed authority rejected the contention of the petitioner holding that his son Virendra Singh was only seventeen and a half years as on the cut off date i.e. 8.6. 1973. The appeal filed by the petitioner was also rejected. The petitioner filed Writ Petition No.11253 of 1981 which was allowed by a judgment dated 3.10.1983 and the matter was remanded back to the appellate authority to decide the matter afresh in the light of the observations made therein. Upon remand, the appellate authority again held that the petitioner's son Virendra Singh was less than 18 years on 8.6.1973. The petitioner, being aggrieved  by the aforesaid order, has filed the present writ petition.

The lower appellate court found that that the petitioner had two wifes and that Virendra Singh was the son from the second wife. The court below has given its finding on the ground that as per the gift deed dated 13.1.1970, Vinod Kumar  and Anand Kumar, the sons of the petitioner from the first wife were shown to be minors and as per the statement of the petitioner, Virendra Singh was the third son in  the order of  hierarchy. On this basis, the court presumed that the age of Virendra Singh, as on 8.6.1973, could not be more than 18 years. The court below also rejected the documentary evidence filed by the petitioner namely, the Kutumb/Family register and the Birth register issued under the U.P. Panchayat Raj Rules, on the ground, that the  date of birth recorded in both the registers are different and therefore contradictory  and  the same  could not be relied upon.

In my view, the findings given by the court below are speculative in nature and based on presumption which cannot be permitted especially, when the land is sought to be taken by the State. Surplus land can only be taken under the provisions of the Act, when the State is absolutely sure that the surplus land was available with the petitioner. In the present case, the finding of the appellate court with regard to the date of birth of Virendra Singh, is purely speculative and is not based on any clinching evidence. On the other hand, two documentary evidence has been filed by the petitioner, namely, the Kutumb register and the register relating to the date of birth maintained in Form-A and D respectively under the Panchayat Raj Rules. These registers are maintained by the State Authorities. Form-A of the Panchayat Raj Rules relates to the maintenance of the family register. Column-8 of the said form indicates "Date of birth, if known, or probable date of birth." Under Form-D, in Column-7, the words used are " Date of birth". Consequently, it can be contended that the date of birth recorded in the family register was the probable date of birth and that the date of birth recorded in Form-D was the actual date of birth. In any case, if either of the date of births are taken into consideration, the petitioner's son Virendra Singh would be a major as on 8.6.1973. Consequently, the court below committed a manifest error in discarding the documentary evidence filed by the petitioner.

In view of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed.

Dt. 12.4.2007



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