J. Singh vs Asstt. Commissioner
2012 Latest Caselaw 2597 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Reserved on 09.04.2012
 
Delivered on 03.07.2012
 

 
Court No. - 2
 

 
Case :- WRIT - C No. - 25980 of 1992
 

 
Petitioner :- Jagir Singh and others 
 
Respondent :- Additional Commissioner (Admn.) and others
 
Petitioner Counsel :- K.R. Sirohi
 
Respondent Counsel :- S.C.,Anil Sharma
 

 
Hon'ble Sudhir Agarwal,J.

1. This writ petition is directed against the order dated 15.01.1992 (Annexure-13 to the writ petition) passed by Prescribed Authority declaring 108.08 acres (irrigated) land of tenure holders surplus and appellate order dated 29.05.1992 (Annexure-14 to the writ petition) rejecting their appeal.

2. The facts, in brief, giving rise to present dispute may be summarised as hereunder.

3. One Sri Ram Raksh Pal held certain agricultural land in three villages, namely, Kamalpur, Nazibpur Sadat and Harchandpur, Tehsil Nazibabad, District Bijnor. He claimed to have alienated, by sale, certain land in these villages to several persons through different sale deeds in the manner as below:

(1) Sale deed dated 20.06.1971 executed in favour of Sri Devi Deep Singh, Sri Kanak Singh and Sri Mayur Dhwaj, area 20 bighas.

(2) Sale deed dated 20.09.1971 executed in favour of Sri Mayur Dhwaj, area 15 bigha and 10 biswas.

(3) Sale deed dated 30.09.1971 executed in favour of Sri C.R. Krishnan, area 20 bighas.

(4) Sale deed dated 30.09.1971 executed in favour of Sri B.G. Kurian, area 20 bighas.

(5) Sale deed dated 30.09.1971 executed in favour of Sri Tej Pal Singh, area 20 bighas.

(6) Sale deed dated 30.09.1971 executed in favour of Sri Ravi Sharthi, area 20 bighas.

(7) Sale deed dated 31.01.1973 executed in favour of Sri Thakur Singh, area 15 bighas.

(8) Sale deed dated 30.06.1976 executed in favour of Sri Zahir, area 20 bighas.

4. All the above sale deeds were in respect to plot No. 241, situate at Village Kamalpur alias Jaganwala.

5. There was another sale deed dated 30.09.1971 in favour of Sri Kiran Karnik transferring by sale 19 bighas, 11 biswas and 10 biswanshi land out of plot No. 234.

6. The ceiling proceedings were initiated by Prescribed Authority by issuing notice under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the "Act, 1960") and final order was passed on 30.08.1976 declaring 108.08 acres (irrigated) land as surplus. The exemption claimed by tenure holder, Sri Ram Raksh Pal in respect to land sold to various persons, as referred to above, was rejected on the ground that purchasers reside at far away places from Nazibabad, i.e., Tamil Nadu, Bombay, Bangalore, New Delhi, Pune etc. and, therefore, it cannot be believed that they are cultivating the land themselves and the land continued to be in possession of tenure holder, Ram Raksh Pal.

7. Sri Ram Raksh Pal preferred Revenue Appeal No. 657 of 1976 which was partly allowed vide IVth Additional District Judge, Bijnor's order dated 27.02.1978 reducing surplus land to 87.26 acres (irrigated). The appellate court, however, in respect to sale deeds, as above, confirmed findings of Prescribed Authority and in para 5 of the judgment said as under:

"5. . . . . . It is peculiar to note that the transferees residing in Bihar, Bulandshahar, Delhi, Poona, Tamil Nadi, Bangalore and Bombay purchased the land referred to above. They could not cultivate this land situate in Pargana Najibabad, District Bijnor. Most of them have purchased the land through their attornies. The land has been sold for grossly inadequate consideration. To my mind, all the sale-deed referred to above have been executed to reduce the ceiling area and are mala fide. The tenure-holder has not made compliance of Sec. 5(6) of the Act. From the evidence on record I am not satisfied that the sale deeds referred to above have been executed in good faith and for adequate consideration and not for immediate or deferred benefit of the tenure-holder or his family. I, therefore, hold that the sale-deeds referred to above are malafide and for grossly inadequate consideration for the immediate or deferred benefit of the tenure-holder or other members of his family and the sale-deeds are to be ignored and not liable to be taken into account and the land so transferred is liable to be included in the holding of the tenure-holder."

8. The tenure holder came to this Court in Writ Petition No. 5421 of 1978. However, so far as claim of exemption of land based on aforesaid sale deeds is concerned, this Court vide judgement dated 11.03.1980 confirmed the findings of courts below stating as under:

"In view of the aforesaid cases, in my opinion, no interference is called for in the concurrent findings recorded by the Prescribed Authority and thereafter by the appellate court in respect of the sale deeds which were ignored under Sec-5(6) of the Act. It should be seen that the documents were bound to be ignored in view of the mandatory provision contained in the main part of Sec.5(6) of the Act. However, the documents could be accepted if the petitioner succeeded in satisfying the authorities that they were for adequate consideration and were executed in good faith. The burden of satisfying the authorities lay on the petitioner as the tenure-holder in terms of the second Explanation to Section 5(6) of the Act. The authorities below felt that the said burden was not discharged. They did not feel satisfied with the adequacy of consideration and with the good faith of the transactions. These are findings of fact based on an appraisal of the material and the evidence on record including the circumstances of the case. In my opinion, in view of the law laid down in the aforesaid Supreme Court pronouncements, it is not open to me to disturb the said findings by doing re-appraisal of the evidence bearing on this controversy."

9. The Court also observed that transferees of disputed sale deeds came to this Court in Writ Petition No. 4334 of 1978 which was dismissed in limine on 28.05.1978. However, in respect to Plots No. 234 and 241 this Court found that the authorities below while determining, whether the land is irrigated or not, did not follow the requirement of Section 4-A of Act, 1960 and consequently allowed writ petition and remanded the matter to appellate court on limited question of determination of irrigated land with respect to plots No. 234 and 241 and thereafter to determine surplus land of petitioner, Ram Raksh Pal. The operative part of judgment dated 11.03.1980, on pages 78 and 79, reads as under:

"This petition, accordingly succeeds and is allowed. The judgment of the appellate court (annexure-7 to the petition) is hereby quashed in so far as plots no. 234 and 241 were treated as irrigated and the case is remanded to the appellate court with a direction that the controversy whether the said plots should be treated as irrigated or unirrigated shall be re-examined in the light of the requirements laid down in any of the three categories of Sec. 4-A of the Act. The Appellate Court shall state how both the requirements in any of the three categories of the said section stand satisfied or do not stand satisfied and thereafter the plots shall be treated as irrigated or unirrigated. Further, so far as the aforesaid third controversy is concerned the appellate court shall decide the same in case leave and given by the said court with a view to the Sec. 10 the tenure-holder to incorporate the said plea in his objection filed under Sec.10(2) of the Act.

So far as the choice is concerned, it will be open to the tenure-holder to express his choice and as laid down above, such choice shall as far as possible be accepted under Sec. 12-A subject to what has been stated above in respect of the land covered by the transfer deeds ignored under Sec. 5(6) in respect of which the appellate court shall follow the injunction which is laid down in clause (d) of the proviso to Sec.12-A of the Act. The ceiling area and the surplus land shall be redetermined thereafter. It is made clear that no other controversy shall be allowed to be raised before the appellate court. In the circumstances, there will be no order as to costs."

10. The matter was re-examined by appellate authority. Vide judgment dated 07.01.1983 the IIIrd Additional District Judge, Bijnor allowed appeal and remanded the matter further to Prescribed Authority. This order dated 07.01.1983 was assailed in Writ Petition No. 3234 of 1983 and this Court vide judgement dated 14.11.1984 set aside the appellate order dated 07.01.1983 and directed appellate court to determine the question of land being irrigated or not in the light of directions contained in judgment dated 11.03.1980 passed in Writ Petition No. 5421 of 1978 and pass a fresh order.

11. It appears that in the mean time Sri Ram Raksh Pal, tenure holder died on 26.03.1985 and his legal heirs did not press the appeal before appellate court. Hence without redetermining the question, as directed by this Court, the appellate authority rejected appeal on 30.07.1987.

12. In the meantime an objection was filed under Section 11(2) by Sri Jagir Singh, Sri Balvir Singh and Sri Kuldeep Singh on 25.03.1983 with respect to land, part of plot No. 234(m) area 9 bigha, 11 biswa and 19 biswanshi, situate at Village Kamalpur, Tehsil Nazibabad claiming that the said land was sold by Sri Ram Raksh Pal to Sri Kiran Karnik vide sale deed dated 30.09.1971 wherefrom it was purchased by these objectors on 09.04.1975.

13. Another set of objection is by Sri Mahendra Singh filed on 25.03.1983 in respect to land, part of plot No. 241(m), area 20 bigha at Village Kamalpur, Tehsil Nazibabad. He claimed that said land was transferred vide sale deed dated 30.09.1971 by Sri Ram Raksh Pal to Sri Ravi Sharthi wherefrom was transferred to Sri Jaswant Singh, Sri Balwant Singh, Sri Dharam Singh and Sri Sharam Singh son of Sri Dhanna Singh on 25.06.1973 and then to Sri Mahendra Singh and his two sons Sri Balvir Singh and Sri Balwant Singh who purchased the aforesaid land from Sri Jaswant Singh and Sri Sharam Singh vide sale deeds dated 14.06.1979 and 03.01.1983.

14. An application (copy whereof is Annexure-5 to the writ petition), was filed on behalf of widow of Sri Ram Raksh Pal, i.e., Smt. Shakuntala Devi expressing her choice for retention of land. Subsequently an objection dated 01.02.1990 was filed by Sri Jaswant Singh, Sri Balwant Singh, Sri Dharam Singh and Sri Karan Singh son of Sri Dhanna Singh alleging that certain land belong to them was wrongly treated as holding of Sri Ram Raksh Pal and included in the total land of Sri Ram Raksh Pal for the purpose of ceiling proceedings though neither he was in possession thereof nor had any connection therewith and, therefore, the said land ought not be treated as holding of Sri Ram Raksh Pal. The objection dated 01.02.1990 was filed in respect to part of land of Plot No. 241, area 60 bigha, situate at Village Kamalpur, Tehsil Nazibabad. It is said that the aforesaid land was purchased from Sri Ram Raksh Pal by Sri Mayur Dhwaj Singh, Sri Ravi Sharthi and Sri Divya Deep Singh vide sale deeds dated 20.09.1971, 20.06.1971 and 24.05.1973 and therefrom it was transferred through registered sale deeds dated 24.05.1973 and 26.06.1973 to the said applicants. Therefore, it is said that on 08.06.1973 neither Sri Ram Raksh Pal was in possession of land nor otherwise had any concern with land in question.

15. Another application was filed by these objectors on the same date, i.e., 01.02.1990 stating that in case the land possessed and purchased by them is not excluded, then possession thereof be not taken and any other land possessed by the heir(s) of Sri Ram Raksh Pal, namely, Smt. Shakuntala Devi should be determined and declared surplus.

16. Sri Jagir Singh, Sri Balvir Singh and Sri Kuldeep Singh sons of Sri Bachan Singh filed third set of objection dated 01.02.1990 under Section 10 of Act, 1960 before Prescribed Authority in respect to same part of land.

17. The fourth set of objection was filed by one Sri Bishan Singh son of Sri Mohan Singh on 25.05.1990 in respect to plot No. 241, area 20 bigha situate at Village Kamalpur, Tehsil Nazibabad stating that there was an oral agreement with Sri Ram Raksh Pal for transfer of aforesaid land to said objector and he got possession thereof which is continuing for the last 15 to 20 years.

18. All these objections were taken together and the Prescribed Authority rejected all these objections vide order dated 15.01.1992 reiterating surplus land as 108.08 acres (irrigated). He held that in respect to same land for which objections were filed, the issue has already been decided, hence cannot be reopened.

19. The objectors came in Appeal No. 10 of 1991-92 claiming that the sale deeds in question since were executed between 24.01.1971 and 08.06.1973, therefore, in view of Section 12-A(d) the same were to be exempted and Prescribed Authority has erred in law by rejecting their objections. The Appellate Court found that Section 12-A(d) has no application to subsequent transferees particularly when objectors were not the transferees to whom the land was transferred by original tenure holder, i.e., Sri Ram Raksh Pal himself but they are subsequent purchasers from the transferees of tenure holder through various sale deeds executed between June, 1971 and onwards. Consequently, the appeals were rejected by judgement dated 29.05.1992. Hence this writ petition.

20. Heard Sri K.R. Sirohi, learned Senior Advocate assisted by Sri Yogesh Kumar Singh, learned counsel for the petitioners, learned Standing Counsel for respondents no. 1 to 3 and Sri Anil Sharma, Advocate for respondent no. 4.

21. Sri K.R. Sirohi, learned Senior Advocate appearing for petitioners vehemently contended that the courts below have erred in law by failing to grant the benefit contemplated under Section 12-A(d) and, therefore, the impugned orders are liable to be set aside.

22. Sri Anil Sharma, learned counsel appearing for respondent no. 4 on the contrary submitted that ceiling proceedings were initiated by a notice issued for the first time in 1973 which was issued again after the Amendment Act No. 2 of 1975 proposing 168.75 acres of tenure holder's land as surplus. The tenure holder claimed exemption of land transferred by him through various sale deeds, as already detailed above, but that claim was rejected by Ceiling Authority and findings have been confirmed by this Court in its judgment dated 11.03.1980 in Writ Petition No. 5421 of 1978. It is also evident from the said judgment that transferees of disputed sale deeds, namely, the vendees from whom these petitioners claim to have purchased land, also came to this Court in Writ Petition No. 4334 of 1978 challenging the findings for ignoring their land but that writ petition was also dismissed on 23/28.05.1978. This writ petition was filed by eleven persons, namely, K.S. Karnik, Mayur Dhwaj, Divya Deep Singh, Nanak Singh, C.R. Krishnan, Ravi Sarthy, Zohar Shipehandoler, B.G. Kurian, T.S. Hors, Bhannu Singh and Thakura Singh. The vendees took up the matter to Apex Court also but Special Leave Petition was also dismissed. In these circumstances, further and subsequent transferees of same land would have no locus standi to challenge ceiling proceedings and findings already recorded in respect to land in question. They cannot raise the same issue. These findings having attained finality are binding on subsequent purchasers also.

23. In the rejoinder affidavit filed on behalf of petitioners, stress has been laid upon the judgment of this Court dated 11.03.1980 that while considering choice of tenure holder, the land covered by transfer deeds may be ignored applying Section 5(6) of Act, 1960 and, therefore, the land which was already sold by tenure holder, it is contended by Sri Sirohi, ought to have been excluded. He also placed reliance on a judgement of this Court in Krishna Mohan Vs. District Judge, Pilibhit and others, 2007(102) RD 588 holding, if the sale deeds have been executed between 24.01.1971 and 08.06.1973, the vendee was entitled to the benefit of Section 12-A(d) and if the vendee further has executed sale deed after 08.06.1973 and mutation has taken place, the persons whose names have come in the Revenue Record, are entitled for notice.

24. The aforesaid submission this Court would examine in the light of relevant statutory provisions as also the precedents cited at the bar as said above.

25. Before the amendment of Act, 1960 by U.P. Amendment Act No. 18 of 1973, the ceiling limit was 40 acres which was reduced to 18.75 acres w.e.f. 08.06.1973. It is not in dispute that aforesaid ceiling area is applicable in the case in hand. The notice initially was issued to tenure holder, Sri Ram Raksh Pal before U.P. Amendment Act No. 18 of 1973 which obviously would have issued taking the ceiling limit as 40 acres. After the amendment of Act afresh notice was issued taking reduced ceiling limit to 18.75 acres.

26. Explanation II to Section 5 read with sub-section(6) provides that for determining land excess to ceiling area applicable to tenure holder, the cut off date would be 24.01.1971 or before that. Further the land held by a person, continuing to be in actual cultivatory possession or if is the ostensible owner of such land, would be considered and name entered in the revenue records after 24.01.1971 would have to be ignored unless it is proved that land was transferred in good faith and for adequate consideration and under an irrevocable instrument not being a Benami transaction etc. The sale deeds in question, exemption whereof was claimed by erstwhile tenure holder, were transferred under various sale deeds executed after 24.01.1971. The tenure holder Sri Ram Raksh Pal however, failed to satisfy Ceiling Authorities about the bona fide transaction/sale and, therefore, Proviso (b) was held inapplicable in the case in hand and all such transactions, for the purpose of determining surplus land of Sri Ram Raksh Pal, the original tenure holder, were ignored. A similar issue raised by purchasers also failed. These findings attained finality not only upto this Court but upto Apex Court. Thus far and to this extent there is no dispute and Sri Sirohi could not make any submission otherwise. This is one aspect of the matter.

27. In Escorts Farms Ltd. Vs. The Commissioner, Kumaon Division, Nainital, U.P. and others, AIR 2004 SC 2186 the Apex Court said that burden of proof that the transfers were bona fide and for adequate consideration was on the party claiming such transfer and if in a particular case such party has failed, no further discussion on this aspect is permissible.

28. The land claimed to have been transferred after 24.01.1971 cannot be exempted or ignored. On the contrary, the transfer has to be ignored unless the tenure holder satisfy requirement of proviso to sub-section (6) of Section 5 which in the present case he failed. These findings as said above, now cannot be agitated/re-adjudicated before courts below or this Court.

29. But then comes the question of surrendering surplus land to State as per the choice advanced by tenure holder and there the statute provides certain aspects which have to be taken due respect and attention. In my view one of the provision namely, Section 12-A substituted by U.P. Act No. 18 of 1973 is attracted in such a case. The proviso contemplates certain aspects which have to be given due regard by Prescribed Authority while accepting the choice indicated by tenure holder while surrendering his holding declared surplus. Clause (d) of proviso to Section 12-A reads as under:

"12-A. In determining the surplus land under Section 11 or Section 12, the Prescribed Authority shall, as far as possible, accept the choice indicated by the tenure-holder to the plot or plots which he and other members of his family, if any, would like to retain as part of the ceiling area applicable to him or them under the provisions of this Act, whether indicated by him in his statement under Section 9 or in any subsequent proceedings:

. . . . . . . .

(d) where any person holds land in excess of the ceiling area including land which is the subject of any transfer or partition referred to in sub-section (6) or sub section (7) of Section 5, the surplus land determined shall, as far as possible, be land other than land which is the subject of such transfer or partition, and if the surplus land includes any land which is the subject of such transfer or partition, the transfer or partition shall, insofar as it relates to the land included in the surplus land, be deemed to be and always to have been void, and--

(i) it shall be open to the transferee to claim refund of the proportionate amount of consideration, if any, advanced by him to the transferor, and such amount shall be charged on the [amount] payable to the transferor under Section 17 and also on any land retained by the transferor within the ceiling area, which shall be liable to be sold in satisfaction of the charge, notwithstanding anything contained in Section 153 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950;

(ii) any party to the partition (other than the tenure-holder in respect of whom the surplus land has been determined) whose land is included in surplus land of the said tenure-holder shall be entitled to have the partition re-opened."

30. A perusal of the above would show that transfer or partition referred to in sub-section (6) or sub-section (7) of Section 5 may not be available for saving the land from ceiling limit but the transferee is not without any remedy since while surrendering surplus land due regard can be given to land already transferred under sub-section (6) of Section 5, may be after 24.01.1971. This Court in Krishna Mohan Vs. District Judge, Pilibhit (supra) has observed that a land sold between 24.01.1971 and 08.06.1973 can be given due regard under Section 12-A(d) while considering the choice of tenure holder but any transfer made after 08.06.1973 would be void by virtue of Section 9(2) of the Act, 1960. In para 8 of the judgement, this Court, after referring Apex Court's decision in Escorts Farms Ltd. (supra), has said:

"8. . . . . . section 12-A(d) was applicable to the sale deeds in between 24.1.1971 and 8.6.1973 and sale deeds after 8.6.1973 were void (section-9(2) was added with effect from 8.6.1973). In the instant case sale deed by Krishna Mohan to Sarla Devi was executed on 12.1.1972 i.e. in between 24.1.1971 and 8.6.1973 hence Sarla Devi was entitled to the benefit of section 12-A (d) of the Act. Even though Salra Devi sold the land to respondent No. 3 in 1974, however, the sale deed cannot be held to be void for the reason that it was not executed by petitioner. By virtue of the said deed of 1974 respondent No. 3 stepped into the shoes of Sarla Devi. If the land had been sold by the petitioner after 8.6.1973 then of course it would have been void and petitioner could assert that he was entitled to give the said land in choice."

31. In the present case objection for exclusion of land of petitioners for the purpose of determination of surplus land of tenure holder has rightly been rejected by Ceiling Authorities but while accepting the choice of tenure holder for surrendering the land declared surplus, the sale deeds in question could have been given due regard which are executed between 24.01.1971 and 08.06.1973. For this purpose even a subsequent transferee step into the shoes of earlier transferee and can raise this issue, as held in Krishna Mohan Vs. District Judge, Pilibhit (supra). Merely because the petitioners are second, third or forth transferee, that itself would not be of any significance for this limited purpose provided the land in question was transferred by tenure holder by a sale deed executed between 24.01.1971 and 08.06.1973. This aspect, in my view, ought to have been considered in proper perspective by Appellate Authority while accepting the choice of tenure holder for taking possession of surplus land but having failed to look into this aspect, as discussed above, the authorities below have committed a patent error. Instead of remanding the matter to Prescribed Authority, in my view, the Appellate Authority would be competent enough to look into this aspect of the matter and pass appropriate order.

32. I, therefore, set aside the appellate order dated 29.05.1992 and remand the matter to Appellate Authority to consider the objections of petitioners in the light of observations made above and only to the extent as directed above. He shall pass fresh order, as directed above, within a period of six months from the date of production of a certified copy of this order, after giving due opportunity of hearing to all concerned parties.

33. The writ petition is partly allowed in the manner, as directed above.

34. No costs.

Order Date :-03.07.2012

AK