Vyas Prasad vs Addl. Commissioner, Gorakhpur & ...
2017 Latest Caselaw 2549 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 16.5.2017
 
Delivered on 20.07.2017
 

 
Case :- WRIT - C No. - 55503 of 2002
 
Petitioner :- Vyas Prasad
 
Respondent :- Addl. Commissioner, Gorakhpur & Others
 
Counsel for Petitioner :- K.M. Misra
 
Counsel for Respondent :- C.S.C.,A.K.Srivastava,N.K.Singh,Pradeep Kumar Vi
 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed challenging the order passed by the Prescribed Authority / Chief Revenue Officer under the U.P. Imposition of Ceiling on land holdings Act, 1960 (herein after referred to as the Rural Ceiling Act) dated 7.12.1989 and the order dated 16.12.2002 passed in Appeal No. 109/278/18/G-1990 of the Additional Commissioner, Gorakhpur Division, Gorakhpur.

2. Heard Mr H.R. Mishra, learned Senior Advocate assisted by Mr K.M. Misra, learned counsel for the petitioner and Mr Pradeep Kumar, who has filed an impleadment application on behalf of the allottees of the land declared surplus with regard to proposed respondent Nos. 6 to 13, and Mr Aditya Kumar Yadav, learned Standing Counsel for the State.

3. Counsel for the petitioner, Sri H.R. Mishra, Senior Advocate arguing on the merits of the case has pointed out that the notice under Section 10(2) of the Rural Ceiling Act was issued on 12.11.1974 proposing to leave 18.02 acres of land with the petitioner and declaring 47.59 acres of land as surplus irrigated land. Later on, an amended notice was issued on 3.5.1976 under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, by which after leaving 18.02 acres irrigated land with the petitioner it was proposed to declare 50.72 acres as surplus irrigated land.

4. On receipt of notice, the petitioner preferred objections, but the Prescribed Authority by means of order dated 7.12.1989, rejected the objections by negativing all the pleas raised by the petitioner without examining them carefully. The objections preferred by the petitioner have been summarized by the learned Senior counsel as follows:

5. The Prescribed Authority ignored that 1.94 acres of land had been gifted to the temple of Hanuman Ji in the year 1946 by a registered gift deed and as such the same land was liable to be excluded from the Agricultural holding of the petitioner.

This objection was rejected by the Prescribed Authority on the ground that the petitioner was not only the trustee of the private trust, but he was also the Sarbarakar / Manager of the land gifted to the Deity.

According to the learned Senior Counsel for the petitioner, the said observations made by the Prescribed Authority are clearly erroneous in view of law laid down by this Court in the case of Bhagwan Dass Vs. Prescribed (Ceiling) Konch, District Jalaun reported in 1979 Allahabad Law Journal 105, wherein this Court held that the tenure-holder being the deity, the land held by the deity should not be clubbed with the land held by the Manager of the trust. A deity being recognised as a separate juristic person, its property could not be included in the total area of land held by the petitioner.

6. Learned Senior Counsel has also referred to the fact that in the objections, the petitioner had also given evidence that 8.70 acres of land belonged to Daya Nand and Krishna Nand and 3.34 acres belonged to one Ram Bachan Mishra, co-tenure holder along with the petitioner, and therefore this land could not have been included in the holding of the petitioner for calculation of ceiling area.

7. The Prescribed Authority in the order impugned has observed that with respect to land allegedly belonging to Daya Nand and Krishna Nand, no documentary evidence was provided by the petitioner and with respect to Sri Ram Bachan Mishra, who was co-tenure holder. It has been argued that the Prescribed Authority erroneously did not look into the land records, which would have established that Ram Bachan Mishra was the co-tenure holder along with the petitioner in 3.34 acres of land. In view of compromise decree in Suit No. 360 under Section 229(B) dated 24.11.1973 which was filed along with the evidence as documentary proof, the land of co-tenure holders could not have been clubbed along with the holding of the petitioner to determine surplus land.

8. It was also the case of the petitioner before the Prescribed Authority that Daya Nand and Krishna Nand had been gifted land by means of a Hiba in 1959 itself.

9. Counsel for the petitioner has pointed out from the orders impugned that the Prescribed Authority has wrongly mentioned that no documentary evidence was filed either with regard to compromise decree under Section 229 (B) with Ram Bachan Mishra the co-tenure holder, or the gift deed of in 1959, wherein 8.70 acres of land had been gifted to Daya Nand and Krishna Nand.

10. With regard to the argument raised by learned counsel for the petitioner that certain land had been transferred to co tenure-holders on the basis of a compromise in a suit filed under Section 229 (B) of the U.P. Z.A & L.R. Act, a reference can be made to sub-section 7 of Section 5 and the Explanation-I thereof which provides that in determining ceiling area applicable to the tenure-holder, any partition of land made after 24th day of January, 1971, which, but for the partition would have been declared as surplus land under this Act, shall be ignored and not taken into account. Explanation-I says that if in a suit instituted after the date of declaration (24.1.1971) it is claimed and declared that a partition of land has taken place on or before the said date, then such declaration shall be ignored and not be taken into account, and it shall be deemed that no partition has taken place on or before the said date. Explanation-II further provides that the burden of proving that a case falls within the first proviso shall rest in the party claiming its benefit.

11. Learned counsel for the petitioner has also argued that it was on record that besides the petitioner there were 7 other family members viz. his wife, three sons and three daughters. The Prescribed Authority had found on the basis of oral evidence of the Lekhpal that one of the daughters Saraswati Devi, was married but instead of eight family members, only six family members were considered and two hectares of land released in favour of each of them.

12. I have considered this argument of the learned counsel for the petitioner, but I find little substance therein, the petitioner and his wife shall be considered as one unit in terms of the provisions of the Act and thus only five children i.e. three sons and two unmarried daughters would be counted as one unit each making six units, and not eight as argued by the counsel for the petitioner.

Moreover the petitioner Vyas Prasad son of Shiv Narayan Prasad, died during the pendency of the writ petition and his legal heirs and representatives moved a Substitution Application No. 76120 of 2015, which was allowed by this Court on 4.1.2017 and his widow Shanti Devi and three sons Arun Kumar, Pawan Kumar & Manoj Kumar have been substituted as petitioner nos. 1/1 to 1/4 of this writ petition. The petitioner at the time of filing of the writ petition, while impugning the orders passed by the Prescribed Authority and the Appellate Authority claimed two hectares of land for each of his three daughters, none of these daughters have been impleaded as legal heirs and representatives of the petitioner.

13. It has been further argued by learned Senior Counsel that a registered sale deed dated 29.7.1970 executed in favour of Moti Ram Naik was brought to the notice of the Prescribed Authority which was of a date before the appointed day.

The Prescribed Authority erroneously took the view that the aforesaid sale deed was a sham sale deed, as there was no person by the name of Moti Ram Naik residing in the village at the time and that 10 acres of land could not be sold off for Rs. 5500/- only. The consideration being entirely inadequate in comparison to the market value of the land in the year 1970, the said sale deed itself became doubtful.

14. Learned Senior Counsel on the basis of judgment rendered by the Hon'ble Supreme Court in the case of Ramadhar Singh Vs. Prescribed Authority 1994 Supplementary SCC 702 has argued that the Prescribed Authority could not adjudicate the validity of a sale deed executed before 24.1.1971 i.e. the appointed day.

15. In the said judgment, the Hon'ble Supreme Court held that under the provisions of the Act itself, the validity of the sale deed executed prior to 24th January 1971, the appointed day, could not be gone into by the Prescribed Authority. Sub-Section 6 of Section 5 of the said Act says that in determining ceiling area applicable to a tenure-holder, any transfer of land made after 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, interalia, 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 a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family, is outside the scope of the aforesaid sub-Section. Thereafter Explanation (ii) provides that the burden of proving that a case was within clause (b) of the proviso shall rest with the party claiming its benefit.

16. The Supreme Court held in Ramadhar Singh (supra) that the existence of the sale deed being a registered sale deed was not questioned and the fact that it was executed prior to January 24, 1971 was also not in dispute therefore any inquiry regarding the validity of such a sale deed under sub-Section (6) of Section 5 was totally misplaced. The Prescribed Authority had no jurisdiction to put the validity of sale deed to test since its jurisdiction arose only when the deed of transfer had been effected on or after the appointed day. Sub-section 6 of Section 5 did not confer jurisdiction on the authorities to determine the validity of the sale and therefore the findings recorded by such an authority on the contents of the sale deed or the adequacy or otherwise of the sale consideration could also not be gone into.

17. With regard to the argument made on behalf of the petitioner that the registered sale deed made in favour of alleged Moti Ram Naik being of a date prior to the appointed day and thus could not be looked into at all on the basis reliance placed on the judgment rendered in the case of Ramadhar Singh Vs. Prescribed Authority & others 1994 Supp (3) SCC 702, the said argument is wholly misconceived and hence liable to be rejected.

18. The judgment in the case of Ramadhar Singh (supra) was held to be per incurium and in Sant Singh Vs. ADJ. Jhansi 1996 (3) SCC 400. The Hon'ble Supreme Court in Sant Singh (supra) has held that in view of the specific language used in Section 5 (6) of the Rural Ceiling Act. The Prescribed Authority in determining the ceiling applicable to a tenure-holder shall ignore any transfer of land made after the 24.1.1971, which, but for the transfer would have been declared as surplus land under the Act. However, the proviso further says thus "provided that nothing in the sub-section shall apply to --------- (a) a transfer in favour of any person (including the Government) referred to in sub-section 2 (b) a transfer proved to the satisfaction of the Prescribed Authority to be in good faith and for adequate consideration and under an irrevocable instrument, not being a benami transaction, or for immediate or deferred benefit of 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.

19. The Supreme Court has specifically rejected in the aforesaid case reliance placed upon the judgment in the case of Ramadhar Singh, by observing thus, "learned counsel also relied upon Ramadhar Singh (supra), wherein the question was whether genuineness of the sale deed could be gone into. This Court held that the validity of the sale deed executed prior to 24.1.1971 could not be determined but in view of the specific language referred to herein before, which was not brought to the notice of this Court, it is difficult to hold that the Tribunal committed any error in looking into that question. Thus, construed, we find it difficult to give relief to the appellant ...........".

20. The Hon'ble Supreme Court in the aforesaid case of Sant Singh (supra) observed thus, "It is seen that object of sub-section 6 of Section 5, was that in determining the ceiling area applicable to a tenure-holder, any transfer of land made after 24.1.1971, 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 provides that nothing in the sub-section shall apply to "a transfer proved to the satisfaction of the Prescribed Authority to be in good faith and for adequate consideration under an irrevocable instrument, not being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of the family.

21. The Supreme Court observed that a sale deed executed even prior to 24.1.1971 could be looked into and the question would be whether the sale deed is executed in good faith and for adequate consideration and is not a benami transaction for the immediate or deferred benefit of the tenure-holder or other members of the family.

22. It has also been argued by the learned Senior Counsel that for determination of the irrigated land, the Prescribed Authority wrongly relied upon the oral statements of the Lekhpal. As per the law laid down by this Court in a larger Bench decision in the case of Jaswant Singh Vs. State of U.P. reported 1978 AWC 577 under Section 4-A of the Rural Ceilings Act, oral evidence cannot be relied upon to determine whether land is irrigated land to declare its as surplus, the Division Bench of this Court affirmed the judgment rendered by a learned Single Judge in the case of Ghasiram Vs. State of U.P. 773 Allahabad 438. The Division Bench considered the question referred to it with regard to "whether in proceedings under Section 4-A of the Act parties can adduce oral evidence and the Prescribed Authority can look into the same for determining irrigated land?"

23. This Court observed that irrigated land has been defined in Section 3(11) of the Act, which means land determined as such in the manner laid down in Section 4-A. Section 4-A lays down the procedure in order to determine irrigated land and it is not open to the Prescribed Authority to adopt a procedure inconsistent with the provisions of Section 4-A.

The relevant part of Section 4-A reads as follows:

"The Prescribed Authority shall examine the relevant Khasras for the years 1378 fasli, 1379 fasli and 1380 fasli, the latest village map and such other records as it may consider necessary, and may also make local inspection where it considers necessary, and thereupon if the Prescribed Authority is of opinion:

Firstly, (a) that, irrigation facility was available for any land in respect of any crop in any one of the aforesaid years; by-

(i) any canal included in Schedule No.1 of irrigation rates notified in notification no. 1579-W-XXIII-62-W-1946, dated March 31, 1953, as amended from time to time or;

(ii) any lift irrigation canal; or

(iii) any State tube-well or a private irrigation work; and

(b) that at least two crops were grown in such land in any one of the aforesaid years; or Secondly, that irrigation facility became available to any land by a State irrigation work coming into operation subsequent to the enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, and at least two crops were grown in such land in any agricultural year between the date of such work coming into operation and the date of issue of notice under Section 10; or

Thirdly (a) that any land is situated within the effective command area of a lift irrigation canal of a State tube-well or a private irrigation work; and

(b) that the class and composition of its soil is such that it is capable of growing at least two crops in an agricultural year; then the Prescribed Authority shall determine such land to be irrigated land for the purpose of this Act........."

24. Thereafter, the Division Bench of this Court has observed that provisions of the Section 4-A make it obligatory on the Prescribed Authority, to examine Khasras for the years are 1378, 1379 and 1380 Faslis. It further makes it obligatory for the Prescribed Authority also to examine the latest village map. It then confers a discretion on the Prescribed Authority to examine such other records as it may consider necessary and also to make local inspection, if that too be necessary. The section then proceeds to say that thereafter, if the Prescribed Authority be of opinion, as mentioned in sub-sections Firstly, Secondly and Thirdly, he shall determine the land to be 'irrigated land." ............. There are no words in Section 4-A to justify anything other than that specified therein to be made use of by the Prescribed Authority for the formation of opinion on the points specified in sub-sections Firstly, Secondly and Thirdly thereof.--------"

"-------- The legislature thought it fit to confine the scope of enquiry to the examination of documents and local inspection presumably because almost everything that is mentioned in various sub-sections of Section4-A was capable of being ascertained on the basis thereof and, indeed, where any fact can be ascertained on the basis of documents, oral evidence can serve no useful purpose .................. It is worthy of notice that the documents, which it is obligatory for the Prescribed Authority to examine under Section 4-A, include the village map. It can be found out on an examination of the village map coupled with the Khasra, whether or not a particular land is situate within the effective command area of any State or private irrigation work. Even if there remains any doubt after examining the Khasras, the village map, or such other records as may be available, the Prescribed Authority can himself visit the site and inspect it to himself find out whether the land in question does or does not fall within the command area of any State or private irrigation work. As far composition of soil, that too is mentioned in village records. In any case, oral evidence regarding composition of soil can be most conflicting and consequently, if on any particular case village records do not contain any information regarding composition of soil, that fact as well can be ascertained by local inspection. It would thus appear that on all the points specified in the various sub-sections of Section 4-A the Prescribed Authority can form an opinion on the basis of records and local inspection. The legislature, therefore thought it fit that the enquiry under Section 4-A should remain confined to examination or records and local inspection and not to production and examination of oral evidence.----------"

25. Counsel for the petitioner has relied upon a Division Bench judgment of this Court in the case of Jaswant Singh (supra). More or less the same view has been taken by the Hon'ble Supreme Court in Kallu Vs. State of U.P. & others 1990 Supplementary SCC 91, wherein the Hon'ble Supreme Court observed thus:

"Para 6. On a reading of Section 4-A, it may be seen that the Legislature has prescribed different kinds of tests on the basis of which the Authorities have to determine whether a land is irrigated land or not for the purpose of determining the ceiling area of a tenure-holder. The two broad tests are (I) availability of irrigation facilities and (II) the factum of raising the capability of the soil for raising at-least two crops in an agricultural year.----------"

"Para 4 --------- 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 any one 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.----------"

26. It is true that other arguments raised by learned counsel for the petitioner for challenging the order impugned passed by the Prescribed Authority may not hold on merit, but most certainly the argument with regard to determination of irrigated land having been made on the basis of oral evidence of the Lekhpal, without examining the Khatuani of the relevant dates or examining other relevant records including village map or making a local inspection still holds good.

27. From a perusal of the orders impugned, it is evident that the prescribed Authority did not apply its mind to the various factors enumerated in Section 4-A for determining irrigated land with respect to the petitioner.

28. It is also the case of the counsel for the petitioner that all these grounds were raised in appeal before the Appellate Authority i.e. Additional Commissioner, Gorakhpur Division, Gorakhpur, but the Appellate Authority failed to look into the same and decided the appeal in a summary manner, learned Senior Counsel has relied upon Section 38 of the Rural Ceiling Act, wherein it has been provided that Civil Procedure Code shall apply to all appeals before the Appellate Authority. He has relied upon the judgment rendered by the Hon'ble Supreme Court in Madhukar & others Vs. Sangram & others 2001 (4) SCC 756, that it is the duty of the Court of first appeal that it must record its finding only after dealing with all issues of law as well as facts and with the evidence, oral as well as documentary led by the parties. In case, the Court of first appeal does not fulfill its obligation to consider all oral and documentary evidence placed before it on behalf of the both the parties, it fails to discharge its obligation and therefore, the valuable right of the parties that is a right to be heard on both questions of law and fact is defeated.

29. I have gone through the Appellate order passed by learned Additional Commissioner dated 16.12.2002, wherein the Appellate Authority has not dealt with oral and documentary evidence produced by the appellant and dismissed the appeal in a summary manner.

30. The question before this Court is now to see as to what relief can the petitioner be held entitled to in this writ petition? When such a dispute had been raised by the petitioner that the relevant Khasras of 1378 Fasli to 1380 Fasli were not examined, and the village map and other relevant records relating to the land of the petitioner showing it to be irrigated or not or being able to produce at least one crop in an agricultural year were not looked into, by the Prescribed Authority, it would be appropriate that the entire matter is remanded back to the Prescribed Authority for taking a decision afresh, after examining the relevant Khasras, village map and other records including Kisan Bahi of the relevant years to determine whether the land was irrigated land.

31. Pending a fresh decision before the Prescribed Authority, regarding possession of the land, the parties are directed to maintain status quo as on today. The prescribed Authority shall determine the issue raised by the petitioner, as expeditiously as possible, without giving unnecessary adjournments to the petitioner, within a period of six months from today.

Order Date :- 20.07.2017

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