Allahabad High Court
Rajjan Singh And Anr. vs State Of U.P. And Others on 2 November, 2011
Bench: Sunil Hali
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 35
Case :- WRIT - C No. - 38545 of 1996
Petitioner :- Rajjan Singh And Anr.
Respondent :- State Of U.P. And Others
Petitioner Counsel :- B.D. Mandhyan
Respondent Counsel :- Sc
Hon'ble Sunil Hali,J.
By means of this writ petition, petitioners have prayed for a writ, order or direction in the nature of certiorari quashing the judgement and orders dated 31.1.1996 and 26.9.1996 passed b y respondent nos. 3 & 2 respectively.
The facts shorn of details are that the prescribed authority gave a notice to the petitioner under Section 10(2) of the Ceiling Act. The petitioners in reply to the notice submitted that the land occupied by the petitioners was within the ceiling limit. The prescribed authority, declared 13.4402 hectares of land as surplus land. Aggrieved against the order of the prescribed authority, an appeal was filed which was dismissed vide order dated 26.9.1996 by Addl. Collector, Allahabad Region, Allahabad. Aggrieved against the aforesaid judgement of the appellate authority, present writ petition has been filed.
Original tenure holder during his life time had executed three sale deeds and three gift deeds in favour of his daughter-in-laws and daughters and two others namely Kalika Prasad and Kallu. These transfers have been affected prior to 24.1.1971. By virtue of amendment effected in Section 5(6) of the UP Imposition of Ceiling on Land Holdings Act, 1960 by UP Act No. 18 of 1973 any transfer of land effected prior to 24.1.1971 shall not be enquired into for the purpose of finding out as to whether such deed has been executed in good faith or not. While reading Section 5(1) Explanation II which contemplates that if on or before 24.1.1971, any person who was holding the land as owner and is in actual physical possession of the land and the name of any other person is entered in the annual register either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or license or on the basis of a decree, it shall be presumed unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person. The explanation contemplates that the genuineness and otherwise of any such transfer deeds can always be examined if it is found on fact that the original owner continues to cultivate the land for and on behalf of said person. If the case is otherwise then the authenticity of such transfer deeds can not be questioned.
Case of the petitioner is that the Prescribed authority while dealing with the issue of such transfer deeds has recorded a finding that all the transfers have not been made in good faith but with intent to defeat the provisions of ceiling Act. In this respect the findings recorded by the Prescribed authority on Issue No. 4, while dealing with this issue, has held that the transaction of the transfers have been made within the family except for the two regarding which it has been said that they are also not in good faith. After having held so, prescribed authority has decided to hold the petitioners to be in cultivatory possession not on the basis of the record but by implication.
The short questions involved in this case are that whether the transfer deeds effected by the original land holder in favour of his daughter-in-laws and two other persons can be gone into as the same have been effected prior to 24.1.1971 and secondly whether the transfer deed have been executed in good faith or only to circumvent the provisions of ceiling Act.
There is no dispute that all the transfer deeds have been executed prior to 24.1.1971. Prescribed authority has no competence to examine the veracity otherwise of the sale deeds executed prior to 24.1.1971. The enquiry regarding the validity of the sale deeds under sub section 6 of Section 5 of the Act was totally misplaced. Therefore the Prescribed authority has no jurisdiction to put the validity of the sale deed to test as his jurisdiction will arise only when the deed of transfer had been effected on or after the appointed date i.e. 24.1.1971. Section 5 (6) of Act, 1960 also provides that transfers of land made subsequent to 24th January, 1971 are liable to be examined except when it is established to the satisfaction of the authorities that the transfer was in good faith, for adequate consideration and under a irrevocable instrument not being a Benami transaction or for the immediate or deferred benefit of the tenure holder or other members of his family. Transfer effected prior to 24.1.1971 cannot be gone into by the authority.
The only exception to such a principle is contained in Section 5(1) Explanation II of the Act which contemplates that in case the original transferor continues and is in actual cultivatory possession of the land which he had transferred in the name of any other person or to his relative, in that eventuality it shall be presumed unless proved otherwise that he continues to hold the land in his own name. In the present case, prescribed authority has concluded that the transfer effected by the erstwhile land holders were not in good faith and by implication it has been presumed that erstwhile petitioner continues to be in possession of the land. There is no documentary evidence to suggest that the erstwhile owner continues to remain in possession of the property. In the present case, it be seen that no such enquiry or any finding has been recorded on the basis of any record that the original tenure holder is in actual cultivatory possession of the land even though the finding has been recorded but that is based on only surmises and conjectures. This being the position the impugned order declaring the land of the petitioner to be surplus cannot be sustained and the same is liable to be quashed.
In the circumstances, the writ petition is allowed. The impugned orders dated 31.1.1996 and 26.9.1996 passed by respondent nos. 3 & 2 are hereby quashed.Matter is remanded back to the authorities to consider the question of taking surplus land afresh.
Order Date :- 2.11.2011
RKS/
