Smt. Prema Devi vs The State Of U.P. & Others
2012 Latest Caselaw 4227 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 26
 

 
Case :- WRIT - C No. - 24618 of 1995
 

 
Petitioner :- Smt. Prema Devi
 
Respondent :- The State Of U.P. & Others
 
Petitioner Counsel :- Ashok Bhushan
 
Respondent Counsel :- S.C.,Bijendra Kumar Mishra
 

 
Hon'ble B. Amit Sthalekar,J.

This writ petition has been filed by the petitioner challenging the order dated 31.07.1992, passed by the Chief Revenue Officer/ Prescribed Authority under the U.P. Imposition of Celling on Land Holdings Act, 1960 (hereinafter referred to as "1960 Act") and the order of the Commissioner, Azamgarh Division, Azamgarh dated 28.06.1995.

The facts of the case in brief are that the petitioner who is a tenure holder sold certain plots of land, namely, plot nos. 144, 166, 167 and 170 a total area mentioning 1.99 acres to one Lalta Prashad and others by sale deed dated 1.4.1969. It is claimed by the petitioner that from the date of the sale, Lalta Prashad continues to be in possession of the plots in question and the petitioner had no connection with the plots. The case of the petitioner further is that on 20.04.1971, she sold a portion of plot no. 235 measuring 6.98 acres out of total area of 15.78 acres to one Smt. Anara Devi and others. It is also stated that proceedings under the Ceiling Act, 1960 were initiated against the petitioner in the year 1973 through a notice under Section 10(2) of the Act. The proceedings were started on 16.07.1981 and CLH Form 4 was prepared showing certain lands as surplus land. Plot no. 236, which did not belong to the petitioner was also shown as part of the land of the petitioner.

The petitioner filed an application on 9.12.1981 before the Prescribed Authority stating therein that the re-determination could not have been initiated on the ground that her plot was actually a portion of plot no. 235 and no plot no. 236. Detailed objections were filed on 16.03.1982. Thereafter by the order dated 24.05.1981, the Prescribed Authority declared an area of 5.79 acres of land as surplus.

Aggrieved by the said order, the petitioner filed an appeal before the Appellate Authority which was duly considered and thereafter disposed of by the Appellate Authority, who remitted the matter back to the Prescribed Authority to re-consider the matter on the ground that the petitioner had not been given opportunity to substantiate his pleas. The Prescribed Authority reconsidered the matter and by his order dated 28.1.1986 held that since now the land in question had come within the command area, therefore, it could be taken into consideration. The Prescribed Authority however held that the sale in favour of Anara Devi was not valid and hence declared 6.91 acres of land as surplus land. The issue regarding the plot no. 236, namely, that the said plot did not belong to the petitioner was not considered by the Prescribed Authority while passing the order dated 28.1.1986.

The petitioner challenged the order dated 28.01.1986 by filing an appeal.  The Appellate Authority by his order dated 20.9.1988, after perusing the entire records particularly the CLH Form 5, recorded a finding that plot no. 236 was not taken into consideration, although throughout the contention of the petitioner was that plot no. 236 was not belonging to her and only plot no. 235 was belonging to her. The Appellate Authority remitted the matter back to the Prescribed Authority for the reconsideration. After reconsideration of the matter, the Prescribed Authority has now passed the impugned order dated 31.07.1992. The contention of the petitioner is that while passing the impugned order the competent authority has held that on a perusal of Fasli 1378, the contention of the petitioner that she is the tenure holder and that the plot no. 235 is unirrigated, cannot be accepted and appears to be suspicious. The Prescribed Authority has further held that the sale deed executed on 20.04.1971 in favour of Smt. Anara Devi cannot be accepted for the reason that the said sale deed has been executed after the cut off date on 24.1.1971 and therefore does not fall within the exclusionary clauses of Sections 35, Clause 5 (6) (b) of the 1960 Act. By the impugned order, the Prescribed Authority has upheld the earlier order of the Prescribed Authority dated 28.1.1986.

The contention of the petitioner is that in the earlier order dated 28.1.1986 the then Prescribed Authority while considering the plot nos. 144, 166, 167 and 170 has upheld the sale in favour of Sri Lalta Prashad, as being prior to the cut off date of 25.1.1971 and therefore exluded these plots from the purview of ceiling and therefore, the submission of the petitioner is that this finding recorded by the Prescribed Authority in his order dated 28.1.1986 cannot be upset by the subsequent order dated 31.7.1992. Aggrieved by the order dated 31.7.1992, the petitioner preferred an appeal before the Commissioner, Azamgarh Division, Azamgarh which has been rejected by the impugned order dated 28.06.1995, upholding the findings recorded in the orders dated 28.1.1986 and 31.7.1992.

I have heard Dr. S.B. Singh, learned counsel for the petitioner and Learned Additional Chief Standing Counsel for the State.

The first submission of learned counsel for the petitioner is that while passing the impugned order dated 31.7.1992, the Prescribed Authority had not taken into consideration the exception of provision 4 (A) of the 1960 Act and it was incumbent upon to him to have taken into consideration this fact as to whether the plot no. 235 was irrigated through Government sources or not, and to that extent there is no finding recorded by the Prescribed Authority.

The second submission of learned counsel for the petitioner is that the Prescribed Authority had completely erred in taking into account the land of 1.469 acre while computing surplus land.

The third submission of learned counsel for the petitioner is that the Prescribed Authority had also committed a grave error in taking into account the land sold after 24.1.1971 inasmuch as these lands were exempted in view of the provisions of Section 5 (6) (b) of the Act.

Lastly, the learned counsel submitted that even otherwise the proceedings under Section 10(2) had been dropped in the year 1973, and therefore the fresh proceedings for  re-determination could not have been undertaken in the year 1981 in view of the specific bar by provisions of Section 13-A (1) of the Act, 1960 read with Section 31 (3) of U.P. Act, 20 of 1976 and the Imposition of Ceiling on Land (Amendment) Act, 1976.

Taking the first submission of the learned counsel, his submission is that since the cut off date itself is 24.1.1971 therefore, any sale deed in favour of Lalta Prashad on 1.4.1969, i.e., prior to the cut off date could not have been taken into consideration for purposes of declaring the land as surplus land. The submission of the learned counsel has force and he also relied upon the decision of the Supreme Court reported in (1994) Supp3 SCC 702 Ram Adhar Singh versus Prescribed Authority which reads as follows:

"1. Leave was granted in this case confined to the validity of the Sale Deed dated 22/4/1969 executed by the appellant in favour of his son in the context of the U.P. Imposition of Ceiling on Land Holdings Act, 1960.

2. It has to be seen under what provision of the Act can the validity of the sale executed prior to 24/01/1997, the appointed day, be gone into? Sub-Section (6) of Section 5 of the said Act says that in determining the ceiling area applicable to a tenure holder, any transfer of land made after the 24th day of January, 1971, which but for the transfer would have been declared as surplus land under the Act shall be ignored and not taken into account. The Proviso (b) thereto, inter alia, provides that a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and an irrevocable instrument, not being of benami transaction or for immediate or deferred benefit for the tenure holder or other members of the family, is outside the scope of the aforesaid sub-Section. Thereafter Explanation II provides that the burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit. Apparently, it is under this provision of law that the validity of the sale deed dated 22/4/1969 was put to test. The authorities under the Act took the view that the sale deed was not genuine because no consideration appears to have passed before the Sub-Registrar and that it was a transfer between father and son raising a dust of suspicion. Otherwise it was not disputed on fact that the sale had been effected by means of a registered deed in which the passing of consideration was mentioned as a recital. The existence of the sale deed being not disputed and it having taken place, as said before, on February 24, 1969, prior to the appointed day that is 24/1/1971, the inquiry regarding validity of the sale deed under subsection (6) of Section 5 was totally misplaced. Thereunder, as it appears to us, the appropriate authority had no jurisdiction to be put the validity of the sale deed to test since his jurisdiction arose only when the deed of transfer had been effected on or after the appointed day. Not only the first and the appellate authority under the Act persisted in that view, but the High Court too proceeded on that basis. The effort of the appellant to have it declared that the authorities had no jurisdiction to invalidate the sale under Ss.(6) of Section 5 when read with Explanation II to Ss. (1) of Section 5 also was a futile attempt because the High Court followed the path, as did the authorities under the Act, and rejected the writ petition. We are of the view that this was a wholly erroneous approach. Ss (6) of Section 5 did not confer jurisdiction on the authorities to determine the validity of the sale and if that is so any finding of theirs as to the contents of the sale is of no assistance. In the result the appeal must succeed. Accordingly, allowing the same we set aside all the orders of the authorities below as also that of the High Court. No costs."

Learned counsel has also referred to a decision of the Supreme Court reported in 1995 Supp (1) SCC 204 Naval Singh versus State of U.P. and others which reads as follows:

" 3. We do not at all appreciate the approach of the courts below. If this approach is accepted that no transfer effected after 24.1.1971 can escape, sub-section (6) of Section 5 would be rendered meaningless and a dead letter in the statute. The facts as stated above have been asserted by the appellant clearly and openly. There is nothing on these facts to attract a finding that all what he did was in bad faith. We are satisfied that he has more than ordinarily proved that the transaction of sale was effected in good faith and the approach of the courts below was not in accordance with the spirit of the statute. We thus set aside the impugned orders of the High Court as also that of the courts below and hold that the transaction in question was entered in good faith and the land covered by it is not to be reckoned towards computing his holding for ceiling purposes. The appeal is accordingly allowed. No costs."

So far as the third submission of the learned counsel is concerned, namely, that before taking into account plot no. 235, it was incumbent upon the Prescribed Authority to have determined as to whether the Provision of Section 4(A) applies or not, the learned counsel has referred to the decision of the Supreme Court reported in 1990 (Supp) SCC 91, Kallu Versus State of U.P. and others with Abrar Singh Versus State of U.P. and others para 9 and 10 of which reads as follows:

"9. Coming now to the specific provisions of Section 4-A dealt with by the High Court, it may be seen that in order to form an opinion whether irrigation facility was available for any land from one of the sources mentioned in sub- clauses (i), (ii) and (iii) in respect of any crop in anyone of the aforesaid years viz., Faslis 1378 to 1380, the Prescribed Authority is enjoined to examine the Khasras for those three Fasli years, the village map, other relevant records considered necessary and also to make a local inspection whenever it is necessary. Hence there is no scope for contending that a Prescribed Authority may form his opinion without reference to relevant material, in an arbitrary or capricious manner, to the detriment of a tenure holder as regards the availability of assured irrigation facility to a land from one of the enumerated sources. Consequently, there is no merit in the first contention of the appellant that in addition to the materials and records set out in the sub-clause, there must be independent evidence of assured irrigation facility before ever a Prescribed Authority can form an opinion about a land having assured irrigation facility.

10. As regards the second contention relating to sub-clause (b), the clause refers only to the growing of atleast two crops in a land found to be having assured irrigation facility in any one of the relevant years. The sub-clause does not contemplate the raising of two crops on the entire extent of the land. The classification has to be made with reference to the potentiality of the land to yield two crops in one Fasli year and not on the basis of the actual raising of two crops on the entire extent of the land. Therefore, sub-clause (b) cannot be read so as to mean that two crops should have been grown on the entire extent of a land having irrigation facility for classifying the land as 'irrigated land' as it would have the effect of limiting the operation of the sub-clause contrary to the legislative intent. The High Court has taken the view that when the Legislature made amendments to the Act, it must have had in mind the advancement that has been made in agricultural science and farm technology and by reason of it a tenure holder can overcome hurdles and raise two crops in a year over the entire extent of a land having irrigation facility. We need not go as far as that. The normal presumption, in the absence of contra-material, would be that the quality and content of soil of a land would be uniform throughout its extent. Such being the case, if a tenure holder is able to raise two crops in a year in a portion of the land, then it would be logical to hold that the other portions of the land also would have the capacity to yield two crops if the tenure holder had utilised the entire extent to raise two crops instead of utilising a portion of the land alone. The raising of two crops even on a portion of the land will prove, in the absence of material to show poor quality of soil in portions of the land due to salinity etc., the uniform nature and content of the soil of the entire land. The High Court was therefore right in holding that the Prescribed Authority can treat a land, having assured irrigation facility, as 'irrigated land' if the tenure holder had raised two crops even in a portion of the land during anyone of the prescribed years and that it is not necessary that the raising of the two crops should have been made on the entire extent of the land in order to classify the land as 'irrigated land'."

From a perusal of the impugned order, it will be seen that the Prescribed Authority has not recorded any findings at all as to whether the portion of plot no. 235 was irrigated from Government sources as per the provisions of Section 4 (A) of the Ceiling Act, 1960.

The last submission of the learned counsel is that once the proceedings had been dropped by the Ceiling Authorities in the year 1973 it could not have been restarted in the year 1981, in view of the specific bar in Section 31 (3) of the U.P. Act 20 of 1976, U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1976 by the U.P. Act, 20 of 1976 Section 31 and its sub-sections. Section 31(3) of the Act, prescribes the limitation of two years in respect of land which has been declared surplus before 10th of October, 1975. Sub-Section 3 of Section 31 reads as follows:

"(3) Where an order determining surplus land in relation to a tenure-holder has been made under the principal Act before the tenth day of October, 1975, the Prescribed Authority (as defined in the principal Act) may, at any time within a period of two years from the said date, redetermine the surplus land in accordance with the princpal Act as amended by this Act, whether or not any appeal was filed against such order and notwithstanding any appeal (whether pending or decided) against the original order of determination of surplus land."

Learned counsel further submits that even otherwise under Section 13(A) (1) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, re-determination can be commenced for purposes of rectification of arrears within a period of two years and not beyond that. Section 13 (A) (1) reads as follows:

"(1) The Prescribed Authority may, at any time, within a period of two years from the date of the notification under [sub-section (4) of the Section 14], rectify any mistake apparent on the face of the record:

Providing that no such rectification which has the effect of increasing the surplus land shall be made, unless the Prescribed Authority has given notice to the tenure-holder of its intention to do so and has given him a reasonable opportunity of being heard."

He therefore, submits that the entire proceedings initiated by the subsequent notice dated 16.7.1981 are void. The learned counsel has referred to a decision of the Supreme Court reported in 1992 1 SCC 737 (Mansoor Ali Khan and others versus State of U.P. and others wherein the Supreme Court has held as follows:

"3. We are, however, not inclined to accept the contention of Mr. Satish Chandra that the proceeding for redetermination of ceiling land could not have been initiated by the Prescribed Authority until notice under Section 9(2) was issued by him to all the heirs and he could only assume jurisdiction for initiation of a proceeding for re-determination of ceiling land after serving such notices to all the heirs of late Wadood Ali Khan. Section 31(3) of U.P. Act 20 of 1976, in our view, authorises the Prescribed Authority to redetermine the surplus land in relation to the tenure holder if initiated within two years from October 10, 1975. Admittedly, the previous determination of ceiling was made before October 10, 1975."

In the present case it will be seen that the initial ceiling proceedings had been dropped in the year 1973 and therefore the same could not have been commenced by a second notice under Section 10(2) of the Ceiling Act, 1960 on 16.7.1981, therefore the said proceedings were definitely beyond the permissible period of two years as prescribed under Section 31(3) of the U.P. Act, 20 of 1976 read with Section 13(A) (1) of the Ceiling Act, 1960 and in the circumstances the entire proceedings commenced after 16.7.1981 became void.

Learned Additional Chief Standing counsel however sought to draw a distinction by referring to the provisions of Section 13(A) (2) of the Act. It was submitted that the limitation of two years prescribed in Section 13(A) (1) was confined only to the proceedings referred to under Section 13 A (1) and the proceedings initiated sub-section 2 of Section 13(A) would apply to notices and proceedings under the Sections mentioned therein and therefore the proceedings commenced with the second notice dated 16.07.1981 would be valid.  Section 13 A (2) reads as follows:

"(2) The provisions of Sections 10, 11, 12, 12-A, 13, 14, [15 and 16] shall mutatis mutandis apply in relation to any proceeding under sub-section (1), and for purposes of application of Section 10, the notice under the proviso to sub-section (1), shall be deemed to be a notice under Section 9."

This submission of the learned Chief Standing Counsel is totally misconceived and fallacious and has been made only to be rejected. Sub-Section 2 of Section 13(A) refers to the provisions of Section 10 to Section 16 of the Act as well as the proceedings under Section 10 and notice under Section 9 (1) of the Act. The Section 13(A) itself provides for initiating proceedings for re-determination of surplus land in certain cases, namely, for rectification of any mistake apparent on the face of the record. Sub-Section 2 also being a part of Section 13(A) would refer to proceedings permissible under Section 13(A). However, Section 13(A) (1) prescribes a limitation of two years within which such proceedings may be initiated, it does not create an absolute bar to proceeding for re-determination of surplus land if such re-determination is for purposes of rectification of any mistake apparent on the face of the record. The only proscription in Section 13(A), sub-section 1 is that such proceedings can be initiated only within a period of two years meaning thereby that proceedings initiated beyond the period of two years by logical conclusion and judicial interpretation would necessarily be void being barred by the limitation prescribed in Section 13 (A) 1. The proceedings contemplated under sub-section 2 of Section 13(A) are also covered by the limitation prescribed under sub-section (1) and therefore no artificial distinction can be created between proceedings under sub-section (1) and those contemplated by proceedings under sub-section (2). Thus in my view, the submission made by the learned Chief Additional Standing Counsel has no force.

Having given my anxious consideration to the entire facts of the case and the law settled by the Supreme Court on each of the points raised by the learned counsel for the petitioner, in my opinion, the entire proceedings initiated by the second notice under Section 10 (2) of the Ceiling Act w.e.f. 16.7.1981 were void in their entirety and therefore the impugned order dated 31.7.1992 passed by the Revenue Officer as well as the Appellate order dated 28.06.1995 passed by the Commissioner, Azamgarh Division, Azamgarh are also absolutely illegal and void being without jurisdiction.

For the reasons stated above the impugned orders dated 31.07.1992 and 28.06.1995 are quashed.

The writ petition stands allowed. There shall be no order as to cost.

Order Date :- 18.9.2012

N Tiwari