Jagdish Prasad vs State
2011 Latest Caselaw 1873 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 34
 
Reserved
 

 
Case :- WRIT - C No. - 11701 of 1990
 

 
Petitioner :- Jagdish Prasad
 
Respondent :- State
 
Petitioner Counsel :- M.D. Singh,O.P. Singh,S.K.Gupta,S.K.Singh,S.R. Gupta,Vijay Tripathi
 
Respondent Counsel :- S.C.
 

 
Hon'ble Arun Tandon,J.

Proceedings giving rise to the present writ petition have checkered history. Notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as 'Act, 1960') dated 29th July, 1976 was issued by the Prescribed Authority calling upon the petitioners to file their reply, whereunder 9.08 hectare of irrigated land was proposed as surplus. Objections were filed by the landholders. After considering the material evidence brought on record, the Prescribed Authority vide order dated 28.07.1978 held that the landholder had 9.08 hectares of irrigated land as surplus.

Not being satisfied the petitioner filed appeal under Section 13 of the Act, 1960, being Appeal No. 217 of 1978, which was allowed vide order dated 14.04.1980 and the matter was remanded to the Prescribed Authority for redetermination of the share of Chandra Shekhar/petitioner no. 2.

On remand the Prescribed Authority vide order dated 18th June, 1981 held that Chandra Shekhar/petitioner no. 2 was a co-sharer. The area of surplus land was reduced from 9.08 hectares to 5.41 hectares of irrigated land.

Not being satisfied the petitioners filed an appeal under Section 13 of the Act, 1960, being Ceiling Appeal No. 980 of 1981. The appeal was allowed vide judgment and order dated 14.09.1981 and the matter was remanded to the Prescribed Authority with a direction to redetermine the ceiling area of the petitioners. The Prescribed Authority on remand found that the petitioners had 4.23 hectares of irrigated land as surplus.

Not being satisfied the petitioners filed appeal under Section 13 of the Act, 1960, being Appeal No. 250 of 1982, which was again allowed vide order dated 01.12.1983 and the matter was remanded to the Prescribed Authority with a specific direction to consider the legality and the consequences of the sale deeds, which have been separately executed by Smt. Jamuna Kunwar and Jagdish Prasad (petitioner no. 2) during the period 20.07.1971 to 01.07.1975. Not being satisfied with the order so passed by the Appellate Authority, the petitioner filed Writ Petition No. 3698 of 1984 before the High Court. The writ petition was disposed of vide order dated 23.05.1984 with the observation that the Prescribed Authority will decide the case afresh undeterred by any observation made by the learned District Judge in his judgment.

The Prescribed Authority accordingly proceeded to examine the matter afresh and vide order dated 17.10.1986 held that the petitioners had 3.575 hectares of irrigated land as surplus.

Not being satisfied with the order so passed, two appeals were filed. One by the State, being Appeal No. 22 of 1987 (State of U.P. vs. Jagdish Prasad and others) and other by the petitioners, being Appeal No. 23 of 1987 (Jagdish Prasad vs. State of U.P.).

Both the appeals were allowed by means of a common judgment dated 18.12.1987 and the case was remanded to the Prescribed Authority for decision afresh in light of the contentions raised on behalf of the State authorities.

It may be recorded that this order of remand was not subjected to challenge by the petitioner and it has become final between the parties. The Prescribed Authority by means of order dated 07.03.1989 held that the registered sale deeds dated 20.07.1971, 29.07.1971, 10.01.1973, 20.05.1974, 25.06.1974 and 01.07.1975 were not bona fide transaction as per Section 5(6) proviso (b) of the Act, 1960. Therefore, the transfer effected under the same had to be ignored for the purposes of determination of ceiling limits. The Prescribed Authority declared that tenure holder had 9.08 hectares= 35 Bigha, 17 Biswa and 7 Bishwansi of irrigated land as surplus.

Not being satisfied with the order so passed, the petitioners filed Ceiling Appeal No. 16/27 of 1989, which has been dismissed by the Additional Commissioner (Administration), Bareilly Division, Bareilly by means of order dated 27th March, 1990. Hence this petition.

Before this Court it has been contended that the findings recorded by the Prescribed Authority, in respect of the sale deeds had not been executed in good faith and for adequate consideration, is arbitrary and contrary to the findings recorded in that regard in the orders passed earlier. It is further stated that at least on four earlier occasions the Prescribed Authority had determined the surplus land available with the petitioner as between 5.41 hectares to 3.575 hectares. However, under the last impugned order it has increased the surplus area to 9.08 hectares for which cogent reasons have not been recorded. It is further recorded that the Prescribed Authority has wrongly interpreted the provisions of Section 4(a) of the Act, 1960 while holding that the land was irrigated and it has wrongly relied upon the judgment of this Court in the case of Jaswant Singh vs. S.D.O., reported in AIR 1978 Alld. 787, which has since been overruled. Lastly it is stated that the order dated 24.09.1982 determining the surplus land with the petitioners as 4.23 hectare was not challenged by the State authorities and therefore the authorities below could not have declared any area as surplus beyond the said 4.23 hectare.

Standing Counsel in reply points out that the Prescribed Authority, after taking into consideration the evidence brought on record and the provisions of Section 5(6) of the Act, 1960. It has recorded cogent reasons for declaring that the sale deed executed between 24.01.1971 to 08.03.1973 has not been executed in good faith and for adequate consideration. He further points out that the land situate in villages Rahtuiya, Targanj and Aspur have rightly been treated to be irrigated having regard to the irrigation facility available in the area, as has been noticed in the order of the authorities below. He submits that all earlier orders passed by the Prescribed Authority merged in the last judgment and order of the Appellate Court dated 17.10.1986, passed in Appeal No. 22 of 1987, filed by the State and Appeal No. 23 of 1987, filed by Jagdish, which has been permitted to become final by the petitioner and therefore it is not open for the petitioner to now contend that the Prescribed Authority could not have travelled beyond the earlier orders which had not been challenged by the State. Standing Counsel further points out that the plea, that Chandra Shekhar was entitled for third share in the ancestral property, has rightly not been accepted by the courts below.

I have heard learned counsel for the parties and have gone through the records of the writ petition.

The Court may first deal with the challenge made to the impugned order on the plea that on earlier occasion the Prescribed Authority had determined the surplus land available with the petitioner as 5.4 hectare under order dated 18th June, 1981, 4.23 hectare as per order dated 24.09.1982 and 3.57 hectare under order dated 17.10.1986 and therefore on fourth remand under order dated 17.10.1986 it could not have declared any land in excess of the aforesaid area as surplus.

The contention so raised has to be repelled on the short ground that against the last but one order of the Prescribed Authority dated 17.10.1986, declaring 3.57 hectare of irrigated land as surplus with the petitioner, the State did file an appeal under Section 13 of the Act, 1960, being Appeal No. 22 of 1987. This appeal was clubbed with the appeal filed by the petitioner being Appeal No. 23 of 1987. Both were decided under common judgment dated 17.10.1986. Both the appeals were allowed. The matter was remanded to the Prescribed Authority for redetermination of the ceiling limits afresh in light of the direction issued under the order of the Appellate Court dated 18.12.1987. The order of the Appellate Court dated 18.12.1987 was permitted to become final by the petitioner, inasmuch as he did not file any writ petition against the said order. This Court, therefore, holds that the Prescribed Authority has no option but to have redetermined the ceiling limits of the petitioners in light of the direction issued by the Appellate Court on all aspect of the matter irrespective of the findings recorded earlier and to have come to decode as to what area of land was surplus with the petitioners.

Now, turning to the second issue in respect of the sale deeds which have been found to be not for adequate consideration/bona fide/invalid. This Court finds that the Prescribed Authority as well as the Appellate Authority have specifically recorded that sale deeds dated 20.05.1974 and dated 01.07.1975 had been executed after publication of the notification under Section 9(2). Therefore, in view of the specific language of Section 5(6) of Act, 1960 such sale deeds had to be declared invalid. It has rightly been recorded that the sale deed executed by Smt. Jamuna Kunwar, who is stated to have expired on 25.08.1975 i. e. subsequent to 08th June, 1973, have also to be judged with reference to the statutory provisions, which regulate the transfer up to 01st June, 1975.

With regard to sale deed dated 10.01.1973 it has been recorded that the sale deed has been executed by the tenure holder in favour of his son and daughter-in-law. From the sale deed it was apparent that no money had been paid in the presence of the Registrar. Similarly, in respect of sale deeds dated 20th July, 1971 and 29th July, 1971 it has been recorded that the sale deeds have been executed for a meager amount. Absolutely no explanation could be given by the tenure holder justifying the said transfer of the land and further that no money had been paid in the presence of the Registrar. It has, therefore, been held that the transaction of sale referred to above cannot be treated to have been done in the good faith and for adequate consideration.

The findings so recorded by the Prescribed Authority have since been affirmed by the Appellate Authority after recording a categorical finding that there has been true and correct appreciation of the evidence on record by the Prescribed Authority and the interpretation placed on the statutory provision is also legally correct.

This Court finds absolutely no reason to take different view on the facts as on record. The authorities have rightly held that the sale transactions made (a) subsequent to the publication of notice under Section 9(2) i. e. subsequent to 08th June, 1973, (b) in favour of the son and daughter-in-law by the tenure holder and (c) the sale deeds of the year 1971 were for inadequate consideration wherein no money had been passed in the presence of the Registrar, therefore liable to be ignored. Reference may also be made to the statement made by the Lekhpals of all the three villages, wherein they have categorically stated that the possession over the land was that of Jagdish Prasad and he himself was cultivating the same.

Now turning to the third issue that Chandra Shekhar was entitled to 1/3 share in the ancestral property, this Court finds that the Prescribed Authority has recorded that the petitioner has admitted that the property was not ancestral and that it was a self acquired property. It has also been recorded that benefit of number of family members of the recorded tenure holder has been provided to the tenure holder. It has been recorded that the son Chandra Shekhar had 1.98 hectares of land on his own name and therefore benefit of additional 0.02 hectare of irrigated land has been provided for him. Similarly, 2 hectares of land has been provided in respect of other major son Girish Chandra and for the tenure holder Jagdish Prasad, his wife and three daughters, i. e. for five family members, 7.3 hectares (total 9.32 hectares) of irrigated land has been provided.

Now turning to the last issue with regard to the land being irrigated or not. The land in village Rahtuiya has been treated as irrigated by the Prescribed Authority on the finding that Gata No. 690 in 1381 Fasli had been shown to have two crops and the source of irrigation has been disclosed as Tube-well. Similarly in respect of Gata No. 789 in 1382 Fasli source of irrigation has been shown as Tube-well and two crops have been recorded to have been grown. In respect of Gata No. 709 in 1381 Fasli, source of irrigation has been shown as Tube-well with two crops having been grown. It has further been recorded that for the village in question it was admitted to the parties that Khasra for the Fasli 1374 to 1380 Fasli had not been prepared and therefore, Khasra of 1381 Fasli and 1382 Fasli had been examined.

Similarly in respect of village Targanj, source of irrigation for Gata No. 249 has been shown as Government Tube-well in 1378 Fasli two crops have been shown to have been grown and Khasra of 1378, 1979, 1380 and 1395 Fasli have been taken into consideration.

In respect of village Aaspur, source of irrigation has been shown as Tube-well and two crops have been shown to have been cultivated over Gata No. 38 and 49 in 1380 and 1381 Fasli. The Lekhpal had also stated on oath that the plots were being irrigated with the help of the Tube-well.

It has, therefore, rightly been held that plots situate in all the three villages were irrigated and the said finding is based on true and correct reading of Section 4(a) of the Act, 1960.

In view of the aforesaid, this Court finds that the orders passed by the court below are based on appreciation of evidence and on true and correct appreciation of law applicable on the subject. This court finds no good ground to interfere with the order so passed.

Writ petition is dismissed.

Order Date :- 23.5.2011

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