Kamal Singh And Ors vs Addl. Commissioner Jhansi And Ors
2023 Latest Caselaw 3458 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 25.01.2023
 
Delivered on 03.02.2023
 
Court No. - 10
 

 
Case :- WRIT - C No. - 26598 of 1998
 

 
Petitioner :- Kamal Singh And Ors
 
Respondent :- Addl. Commissioner Jhansi And Ors
 
Counsel for Petitioner :- S.K. Lakhtakiya,A.K. Shukla,Brajesh Singh,Siddharth Niranjan,Smt.Rita Shukla,Surendra Singh
 
Counsel for Respondent :- S.C.,Vivek Kumar Pandey
 
Along with 
 
Case :- WRIT - C No. - 30687 of 1998
 
Petitioner :- Dharm Singh
 
Respondent :- State Of U.P. Through Collector Hamirpur And Ors
 
Counsel for Petitioner :- R.K. Kakkar,R.S.Chauhan,Virendra Singh Chauhan
 
Counsel for Respondent :- C.S.C.,Anil Kumar,Bhuwaneshwar Prasad
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. These two writ petitions arise out of order dated 17.6.1998 passed in Ceiling Appeal Nos.27/27 of 1995-96 and 29/26 of 1995-96 decided by common order arising out of order dated 28.02.1996 passed by Prescribed Authority (Ceiling)/Additional District magistrate (Finance & Revenue), Hamirpur -respondent No.2 in Case No.11/15 of 1993-96.

2. Writ Petition No.26598 of 1998 has been filed by Kamal Singh and others (subsequent purchaser from original tenure holder) and Civil Misc. Writ Petition No.30687 of 1998 has been filed son of the original tenure holder Maheshwari Deen.

3. The facts, in brief, leading to filing of these petitions are that one Maheshwari Deen, the original tenure holder, had land situated at village Channi Khurd and at Village Dhanpura. The proceedings under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter called as "Act of 1961") was initiated against original tenure holder Maheshwari Deen and an area of 15.45 acres were declared surplus by the Prescribed Authority on 13.6.1976. On 08.6.1973 and 24.01.1971 the name of Maheshwari Deen was recorded in the revenue records. Against the order of the Prescribed Authority, Maheshwari Deen filed Ceiling Appeal No.133 of 1976, which was decided by IInd Additional District Judge, Hamirpur vide judgment dated 12.03.1977 and the appeal was allowed in part and total 3.33 acres land was declared surplus.

4. As no proceedings were initiated under Section 13-A and 38-B of the Act of 1961, the judgment of the Appellate Court became final. The surplus land was taken over by the State Government.

5. Maheshwari Deen, on 20.8.1981, executed sale deed of Plot No.179 measuring 10 acres for Rs.26,750/- in favour of Shiv Karan and others of the land situated at Village Dhanpura. The second sale deed was executed by Maheshwari Deen on 13.7.1988 of Plot No.791 measuring 10.44 acres for Rs.80,000/- situated at Village Channi Khurd in favour of Kamal Singh and others, petitioners of writ petition No.26598 of 1998. Mutation was carried out in favour of Kamal Singh and others on 28.3.1989.

6. On 16.5.1994 notice under Section 10(2) of the Act of 1961 was issued to Dharam Singh, son of original tenure holder Maheshwari Deen, which was registered as Case No.11/15 of 1993-96. On 07.02.1995 Dharam Singh, petitioner of Writ Petition No.30687 of 1998 filed his objections. On 28.02.1996 Prescribed Authority dismissed the objection and declared 5.126 hectare of irrigated land as surplus, including the land already sold by father of Dharam Singh (Maheshwari Deen) by means of registered sale deed dated 20.8.1981 and 13.07.1988. Against the order of the Prescribed Authority, Ceiling Appeal Nos.27/27 and 29/26 were filed by Dharam Singh and Kamal Singh and others. By the orders dated 17.6.1998 both the appeals were dismissed by common order hence the present writ petitions.

7. Sri Dharam Pal Singh, Senior Counsel appearing for the petitioners of Writ Petition No.26598 of 1998 submitted that notice issued under Section 10(2) in May, 1994 against Dharam Singh, who was treated as original tenure holder and the land sold by Maheshwari Deen through two sale deeds of the years 1981 and 1988 to be the land of Dharam Singh in place of Maheshwari Deen as on 08.06.1973. He then contended that notice was issued also on the ground that certain plots, which were treated as single crop land and also unirrigated land, have now been declared irrigated by State irrigation after decision of first proceedings and thus they are being clubbed and treated as irrigated land.

8. According to senior counsel the two sale deeds, which were executed by the original tenure holder Maheshwari Deen after declaration of 3.33 acres of land as surplus in the first ceiling proceedings, which attained finality on 12.3.1977, the holdings of the petitioners cannot be clubbed as holding of original tenure holder. According to him, if the land transferred in the years 1981 and 1988 are ignored then original tenure holder will have no surplus land. There is no provision under the Act of 1961 where such sale deeds are clubbed after finalization of first ceiling proceedings. He then contended that Prescribed Authority as well as Appellate Court ignored two sale deeds solely on the ground that they were executed after 24.01.1971. According to him, genuinness and validity should have been tested in view of Explanation II to Section 5 and Section 5(6) of the Act of 1961. He then contended that no finding has been recorded by both the authorities on these two provisions of law. According to him, sale deed, which has been executed by the original tenure holder Maheshwari Deen after completion of first ceiling proceedings, cannot be ignored and the land transferred cannot be clubbed with the holding of the original tenure holder. In view of the legal position, the question of nature of land whether irrigated or not is not necessary to be decided.

9. Sri V.S.Chauhan, counsel appearing for the petitioner of Writ Petition No.30687 of 1998 while endorsing the argument of senior counsel submitted that Dharam Singh, son of original tenure holder Maheshwari Deen, was left with land sold by his father after the first round of ceiling proceedings concluded. Neither there was any partition of land by the petitioner nor any unirrigated land become irrigated. According to him, the principle of res judicata apply and the transfer of land was made by Maheshwari Deen after the land was declared surplus in the year 1977 and land to the extent of 3.33 acres was taken by the State Government.

10. I have heard the respective counsel and perused the material on record.

11. Before adverting to decide the issue in hand, a cursory glance of some of the provisions of the Act of 1961 are necessary for better appreciation of the case.

12. Sub-section (11), (14), (15), (16) and (18) of Section 3 of the Act of 1961 define "irrigated land", "private irrigation work", "State irrigation work", "surplus land" and "unirrigated land", which are as under :

"(11) "irrigated land" means land determined as such in the manner laid down in Section 4-A;"

"(14) "private irrigation work" means a private tube-well, or a private lift irrigation work operated by diesel or electric power for the supply of water from a perennial water source, completed before August 15, 1972;

(15) "State irrigation work" means a canal as defined in the Northern India Canal and Drainage Act, 1873, or a State Tube-well as defined in the United Provinces State Tube-wells Act, 1936, or lift irrigation work constructed, maintained or controlled by the State Government and operated by diesel or electric power for the supply of water from any perennial water source;

(16) "surplus land" means land held by a tenure-holder in excess of the ceiling area applicable to him, and includes any building wells and trees existing thereon;"

"(18) "unirrigated land" means any land other than irrigated land, grove land or usar land;"

13. Section 4 of the Act of 1961 provides for determination of area for purposes of ceiling and exemptions. Explanation to Section 4 defines ''single crop land', which means any unirrigated land capable of producing only one crop in an agricultural year in consequence of assured irrigation from any State irrigation work or private irrigation work.

14. Similarly, Section 4-A provides procedure for determination of irrigated land. Chapter II of the Act of 1961 is of great importance as it provides for imposition of ceiling on land holdings, exemption and acquisition of surplus land. Section 5 provides for imposition of ceiling. Explanation II to Section 5 is of great relevance in the present case and are extracted hereas under :

"Explanation II -- If on or before January 24, 1971, any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date 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."

15. Similarly, sub-section (6) of Section 5 of Act of 1961 is also extracted hereas under :

"(6) In determining the ceiling area applicable to a tenure-holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account;

Provided that nothing in this sub-section shall apply to-

(a) a transfer in favour of any person (including 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 his family.

Explanation I -- For the purposes of this sub-section, the expression ''transfer of land made after the twenty-fourth day of January, 1971', includes --

(a) a declaration of a person as a co-tenure-holder made after the twenty-fourth day of January, 1971, in a suit, or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty-fourth day of January, 1971;

(b) any admission, acknowledgment, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner.

Explanation II -- The burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit."

16. Section 9 of Act of 1961 provides for general notice to tenure-holders holding land in excess of ceiling area for submission of statement in respect thereof. Sub-section (2) of Section 9 provides that after enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, the Prescribed Authority shall, by like general notice, call upon every tenure-holder holding land in excess of the ceiling area applicable to him to submit within 30 days of publication of notice a statement referred to in sub-section (1) of Section 9. Section 10 of Act of 1961 provides for notice to tenure-holders failing to submit a statement or submitting an incomplete or incorrect statement. Section 11 of Act of 1961 provides for determination of surplus land where no objection is filed. Similarly, Section 12 of Act of 1961 provides for determination of the surplus land by the Prescribed Authority where an objection is filed. Section 13 provides for an appeal within thirty days from the date of order.

17. Section 13-A of Act of 1961 provides for redetermination of surplus land within a period of two years from the date of notification under sub-section (4) of Section 14 and the Prescribed Authority may rectify any mistake apparent on the fact of record. Section 14 provides for acquisition of surplus land by the Collector in cases where the order passed under sub-section (1) of Section 11 has become final; or where no appeal has been preferred under Section 13 after expiration of period of limitation; or in case of appeal after the decision. Sub-section (4) of Section 14 is of great importance as it provides for notification in the Official Gazette every land declared surplus under the Act. Sections 29 and 30 provide for subsequent declaration of further land as surplus land which includes determination of surplus land regarding future acquisition. Both Sections 29 and 30 are extracted hereas under :

"29. Subsequent declaration of further land as surplus land - Where after the date of enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972,--

(a) any land has come to be held by a tenure-holder under a decree or order of any court, or as a result of succession or transfer, or by prescription in consequence of adverse possession, and such land together with the land already held by him exceeds the ceiling area applicable to him ; or

(b) any unirrigated land becomes irrigated land as a result of irrigation from a State irrigation work or any grove-land loses its character as grove-land or any land exempted under this Act ceases to fall under any of the categories exempted,

the ceiling area shall be liable to be re-determined and accordingly the provisions of this Act, except section 16, shall mutatis mutandis apply.

30. Determination of surplus land regarding future acquisition-(1) Where any land has become liable to be treated as surplus land under Section 29, the tenure-holder shall, within such period as may be prescribed, submit a statement to the Prescribed Authority in the form and in the manner laid down under Section 9 indicating in the statement the plot or plots which he would like to retain as a part of his ceiling area.

(2) (a) Where the statement submitted under sub-section (1) is accepted by the Prescribed Authority, it shall proceed to determine the surplus land accordingly.

(b) Where a tenure-holder fails to submit a statement required to be submitted under sub-section (1) or submits an incomplete or incorrect statement, the prescribed authority shall proceed in the manner laid down under Section 10.

(c) The provisions of this Act in respect of declaration, acquisition, disposal and settlement of surplus land, shall, mutatis mutandis, apply to surplus land covered by this section.

18. Thus, a conspicuous glance of relevant provisions of the Act of 1961 makes it clear that under the Act of 1961 the land has been divided into ''irrigated land' and ''unirrigated land'. The irrigation work is also defined and bifurcated under ''private irrigation work' and ''State irrigation work'. Section 4 clearly provides as to how the land is determined for the purpose of ceiling and exemption and it provides methodology for calculating of the unirrigated land in various areas of the State and also the expression ''single crop land'.

19. The two relevant dates for calculating surplus land held by a tenure holder is 24.01.1971 and 08.06.1973. Section 5(3) is of great importance as it provides for the procedure for calculating the surplus land of a tenure holder. The provision encompasses within itself as to the land which can be held by a tenure holder along with his family members. Sub-section (6) of Section 5 clearly provides that any transfer of land made after 24.01.1971 shall be ignored and not taken into account by the authorities. However, this is subject to exemption that any transfer made in favour of any person (including Government) referred to in sub-section (2), and further 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 his family.

20. Thus, those transaction made after 24th of January, 1971 are saved which has been made in favour of persons mentioned in sub-section (2) of Section 5 or transfers proved to the satisfaction of Prescribed Authority which have been made in good faith.

21. In the instant case, the first ceiling proceedings concluded after the decision of ceiling appeal by the Appellate Court on 12.03.1977 and surplus declared area of 3.33 acres having been taken over by the State Government under Section 14 of the Act and no appeal having been filed, become final against original tenure holder Maheshwari Deen.

22. The original tenure holder on 20.08.1981 and 13.7.1988 executed two sale deeds, one in favour of Shiv Karan and others, and, another in favour of Kamal Singh and others for an area 20.44 acres (10 acres in favour of Shiv Karan and 10.44 acres in favour of Kamal Singh and others). Till this time, neither there was any objection nor any proceedings was pending against original tenure holder Maheshwari Deen. It was after the death of Maheshwari Deen that on 16.5.1994 notice under Section 10(2) was issued against Dharam Singh, the son of original tenure holder Maheshwari Deen and the land was declared surplus taking into account the lands sold by the original tenure holder Maheshwari Deen on 20.08.1981 in favour of Shiv Karan and others and sale deed dated 13.7.1988 in favour of Kamal Singh and others. The Prescribed Authority while deciding the case, framed following issues :

"1. क्या खातेदार के पास सीलिंग सीमा से अधिक भूमि है, यदि हाँ तो उसका प्रभाव ?

2. क्या नोटिस में अन्य खातेदार के नाम अंकित भूमि शामिल करके गलत नोटिस जारी किया है यदि हाँ तो उसका प्रभाव ?

3. क्या आपत्तिकर्तागण द्वारा कराये गए बैनामा वैध है और मोनफाइड परचेजर है, यदि हाँ तो उसका प्रभाव ?

4. क्या सीलिंग नोटिस में दर्शायी गयी समस्त भूमि एकल सिंचित है यदि हाँ तो उसका प्रभाव ?

5. क्या खातेदार के पिता के विरुद्ध सीलिंग वाद पूर्व में चल चुका है और वर्तमान में यह वाद में रेसजुडीकेटा में बाधित है, यदि हाँ तो उसका प्रभाव ?

6. क्या खातेदार 29 व 30 सीलिंग अधिनियम का लाभ पाने का अधिकारी है?"

23. All these issues were tried together and decided. The Prescribed Authority wrongly recorded finding that in order to avoid land being declared surplus, sale deeds were executed in 1981 and 1988 by Maheshwari Deen. However, Prescribed Authority failed to record any finding as to how the transaction was benami when the sale consideration was passed on and sale deeds were executed after the land was declared surplus in 1977. The Appellate Authority was also misled into the facts and wrongly held that case under Section 29 was made out against petitioner prior to the execution of sale deed in the year 1988. The Appellate Court further recorded that though the provisions of sub-section (b) of Section 29 of Act of 1961 was attracted but the notice could not be issued prior to execution of sale deed as all the papers were not ready is totally against the material on record.

24. From the reading of Sections 29 and 30 of Act of 1961 it is crystal clear that subsequent declaration of further land as surplus can only be declared under sub-section (b) of Section 29 where any unirrigated land becomes irrigated land as a result of irrigation from a State irrigation work or any grove-land loses its character as grove-land or any land exempted under the Act ceases to fall under any of the categories exempted.

25. In the present case, the State has not brought any material on record to demonstrate that unirrigated land became irrigated and moreover the transaction entered into by Maheshwari Deen with Kamal Singh and others in the year 1988 was not a bona fide transaction. Section 29 has to be read in harmony with sub-section (6)(b) of Section 5 with Section 29(b) of Act of 1961.

26. From these two provisions it is clear that any transfer made after 24th day of January, 1971, in a good faith and for an adequate consideration and under an irrevocable instrument, the land cannot be treated and determined as surplus by the Prescribed Authority.

27. Once the ceiling proceedings were over in 1977, and there was no proceedings for reconsideration under Section 13-A and declared surplus land was taken by the State Government, the land transferred by the original tenure holder could not be questioned after six years treating it to be the land of the original tenure holder so as to fall under sub-section (b) of Section 29 of Act of 1961.

28. Moreover, looking from another angle, prior to issuance of notice under Section 10(2) of the Act of 1961 by the Prescribed Authority, there was no publication of notice under sub-section (2) of Section 9 by the Prescribed Authority like general notice prior to the date of sale deed dated 13.7.1988 in favour of Kamal Singh and others by original tenure holder Maheshwari Deen. The notice under Section 10(2) was issued on 16.5.1994. In view of provisions of Section 9(2) of the Act, any transfer made after publication of notice would be void under sub-section (8) of Section 5 of the Act.

29. In the instant case, the action of the State authorities clearly signify that after the proceedings for declaring land surplus stood concluded in the year 1977, no further proceedings were launched and it was only in the year 1994 notice under Section 10(2) was issued. Meaning thereby that any transaction having taken place between this period cannot be declared to be void.

30. Considering the facts and circumstances of the case, I find that both the Prescribed Authority as well as appellate Authority failed to test the objections filed by the tenure holder on the alter of provision of sub-section (6)(b) of Section 5 read with Section 9(2), 14 and 29(b) of the Act. Hence, both the orders passed by Prescribed Authority as well as Appellate Authority dated 28.02.1996 and 17.06.1998 are unsustainable in the eyes of law and are hereby set aside.

31. Both the writ petitions succeed and are allowed.

Order Date :- 03.02.2023

Kushal