Laxmi Lal v. State of Uttar Pradesh — 1964 DIGILAW 49 (ALL)

JUDGMENT S.N. Dwivedi, J. - This case presents an interesting question about the interpretation of sub-Section (2) of Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act, (Act I of 1961). Hereinafter I shall refer to it as "the Act". Before considering the question it is necessary to set out a few facts and dispose of another short contention of the petitioner. Plots Nos. 1512, 1513, 1514, 1516, 1517, 1520/1 and 1521/1, situate in village Pakaria Naugawan Chak Mustaqil in the district of Pilibhit, were held by one Raja Radha Raman presumably as a Bhumidhar. Those plots covered an area of 12 acres. By a sale deed executed and registered on September 15, 1959 he sold them to Laxmi Lal, the petitioner, for a sum of Rs. 1,500/-. 2. When proceedings commenced under the Act in the village, the Prescribed Authority constituted under the Act ignored the sale and assumed that the sold plots were still held by the seller. On that assumption he declared 8.35 acres of land belonging to the seller as surplus land under the Act. The area of the surplus land was directed to be carved out of the sold area. The surplus land vests in the State under the Act. 3. Thereafter the Prescribed Authority published a notification under sub-Section (1) of Section 14 of the Act in the Gazette, dated December 16, 1961 declaring the said area as surplus land. Then the petitioner filed an objection under sub-Section (3) of Section 14 alleging that he was the tenure holder of the area which has been declared as surplus land and that the declaration was illegal. It was further alleged that the negotiation for sale was really concluded on August 4, 1959 though the sale deed was executed and registered on September 15, 1959. The Prescribed Authority, by his order dated March 27, 1962, dismissed the objection. The petitioner went in appeal from his order to the District Judge, Pilibhit. The appeal was transferred to the Civil Judge, Pilibhit. The Civil Judge dismissed the appeal on January 16, 1963. He seems to be inclined to take the view that the petitioner has not succeeded in establishing that the negotiation for sale was concluded on August 4, 1959. The petitioner went in appeal from his order to the District Judge, Pilibhit. The appeal was transferred to the Civil Judge, Pilibhit. The Civil Judge dismissed the appeal on January 16, 1963. He seems to be inclined to take the view that the petitioner has not succeeded in establishing that the negotiation for sale was concluded on August 4, 1959. Alternatively, he has affirmed the finding of the Prescribed Authority that in view of the provisions of sub-Section (2) of Section 5 the sale was to be ignored. 4. There is no satisfactory evidence to prove that the sale was firmly negotiated on August 4, 1959. Assuming that there was a firm agreement on that date, it would not vest title in the petitioner. Section 9 of the Transfer of Property Act provides that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. Section 54 of that Act provides that a sale of tangible immovable property of the value of Rs. 100/- and upwards, shall be made only by a registered instrument. In the present case the sale was for a sum of Rs. 1,500/-. Accordingly it could not be oral. It could be made only by a written and registered instrument. The U.P. Zamindari Abolition and Land Reforms Act, which has created the Bhumidhari tenure, does not comprehend any provision prescribing the manner of sale of the Bhumidhari tenure. Accordingly Section 54 of the Transfer of Property Act would apply to it. The petitioner, therefore, became entitled to the sold plots on and from September, 15, 1959, on which date the relative sale deed was executed and registered. 5. The fact that he had paid the whole sale consideration to the seller on August 4, 1959 and that he was put in possession over the sold plots on that very date (there is no clear finding that these facts are proved) would not help him. The rule of part performance of contract would not apply because Section 53-A of the Transfer of Property Act envisages a written contract to transfer as a condition precedent for its operation. 6. All the cases relied on by the petitioner are distinguishable. The rule of part performance of contract would not apply because Section 53-A of the Transfer of Property Act envisages a written contract to transfer as a condition precedent for its operation. 6. All the cases relied on by the petitioner are distinguishable. T.V. Kalvanasundaram Pillai v. Karuppa Moopanar and others, AIR 1927 (P.C.) 42 , Venkat Subba Srinivas Hegde v. Subba Rama Hegde, AIR 1928 (P.C.) 86 , Mahadeo Singh v. Mian Din and others, AIR 1938 (Alld.) 431. In all these cases there was a written instrument of transfer unlike the present case. They would, therefore, not lend help to the petitioner's argument that he became entitled to the sold plots on August 4, 1959 when there was a concluded bargain. 7. I shall now take up the question of the interpretation of sub-Section (2) of Section 5. Sub-Section (1) of Section 5 provides that as from the commencement of the Act no tenure-holder shall, except as otherwise provided by the Act, be entitled to hold an area in excess of the ceiling area fixed for him. Sub-Section (2) of Section 5 reads: "In determining the ceiling area applicable to a tenure-holder at the commencement of this Act any transfer or partition of land made after the 20th day of August, 1959, which but for the transfer or partition would have been declared surplus land under the provisions of this Act, shall be ignored and not taken into account." The argument of Sri S.C. Khare, learned counsel for the petitioner, is: the sale of September 15 may be ignored only for the purpose of determining the ceiling area in respect of the seller. The sale is efficacious for all other purposes. It cannot accordingly be ignored for the purpose of declaring the sold plots as surplus land of the seller, as he has no subsisting interest in the sold plots after the sale. On the other hand, the contention of Sri Gopinath, learned junior Standing counsel, is: the sale is to be ignored not only for the purpose of determining the ceiling area in respect of the seller, but also for the purpose of determining his surplus land. The old area may accordingly be declared as surplus land. The sale is not efficacious for these two purposes which are interrelated. 8. The old area may accordingly be declared as surplus land. The sale is not efficacious for these two purposes which are interrelated. 8. The sale was perfectly lawful and effective when concluded in September 1959, and the argument of Sri Gopi Nath, if accepted, would wrench from the vendee his valuable property. This feeling has caused a good deal of difficulty in my way in interpreting Section 5(2). However, after hearing both counsel I have come to the conclusion that I should accept Sri Gopi Nath's argument. 9. The first thing that strikes the reader of sub-Section (2) of Section 5 is the date-line of August 20, 1959. Why has the legislature selected that date for rendering a transfer or partition of land ineffective for a certain purpose or purposes? Section 5(2) of the U.P. Imposition of Ceiling on Land Holdings Bill, 1959, which eventually became the Act, mentioned August 15, 1959 as the critical date-line. The Bill was introduced in the Vidhan Sabha on August 20, 1959. It was later referred to a Joint Select Committee of the two Houses on a motion by the Nyaya Mantri. The report of the Joint Select Committee is published in the U.P. Gazette, part VII, dated April 23, 1960. By sub-CI. (3) of Clause 12 of their report the Committee recommended that the critical date-line should be changed to August 20, 1959 from August 15, 1959. This recommendation was presumably made to avoid unfairness to unwary transferees who being ignorant of the Bill had accepted transfers of land between those two dates. A man is, however, presumed to be aware of the proceedings in the House of the legislature, as he is presumed to be aware of the proceedings in a court of law for certain purposes. The date-line of August 20 was, therefore, regarded as more consonant with reason and justice. The recommendation of the Committee was accepted by the legislature and consequently the fateful date-line is now August 20 instead of August 15, 1959. 10. The opening phrase, "In determining the ceiling area applicable to a tenure-holder" is also significant. 'Ceiling area' is defined in Clause (a) of Section 3 as the area of land, not being land exempted under the Act, ascertained in accordance with the provisions of Section 4. 10. The opening phrase, "In determining the ceiling area applicable to a tenure-holder" is also significant. 'Ceiling area' is defined in Clause (a) of Section 3 as the area of land, not being land exempted under the Act, ascertained in accordance with the provisions of Section 4. Sub-Section (1) of Section 4 provides that subject to the provisions of the Act the ceiling area in respect of a tenure-holder shall be calculated after taking into account all the land in the State held by him, whether in his own right or in his own name or ostensibly in the name of any other person. The ceiling area is ordinarily 40 acres of Fair Quality Land. This area would vary in accordance with the number of members of the tenure holder's family. If the land is other than Fair Quality Land, explanation to sub-Section (2) of Section 4 provides how the ceiling area in regard to that kind of land shall be ascertained. "Surplus Land" is defined in Clause (k) of Section 3 as land held by a tenure-holder in excess of the ceiling area in respect of him. 11. It would appear from a reading of the definition of the "Ceiling area" and of the provisions of Section 4 that the ceiling area is to be determined by pooling together all kinds of land held by a tenure holder in the State. The land sold after August 20, shall also be brought within the pool, and it shall be deemed to be held by the seller in his own right for the purposes of Section 4. After his ceiling area has been determined the residue comprised of land held by him actually as well as fictionally, would be his surplus land. 12. The concept of "ceiling area" is thus directly and inseparably co-related to the concept of "surplus land." The determination of the ceiling area inevitably results in the determination of the surplus land. Indeed the two things are the parts of one and the same process. If that is so, as I think, then it would appear that the legislature intended that the post-August 20 transfer should be ignored both for ascertaining the ceiling area and the surplus land. 13. Some support is received for this view from the wording of Section 9. Indeed the two things are the parts of one and the same process. If that is so, as I think, then it would appear that the legislature intended that the post-August 20 transfer should be ignored both for ascertaining the ceiling area and the surplus land. 13. Some support is received for this view from the wording of Section 9. It enables a tenure-holder to indicate to the Prescribed Authority land which he would like to retain as his ceiling area and land which he would like to be declared surplus land. A seller, if not conscientious, may opt to retain the unsold area as his ceiling area. In that event the Prescribed Authority is ordinarily bound to accept his choice. 14. It may be observed that Section 5(2) does not confine itself to a transfer of land only; it also eclipses a partition of land, if made after August 20. In the case of a partition there is no unfairness to a stranger. His rights are not directly affected. A post-August 20 partition is made ineffective because the legislature has, to my mind, raised a presumption that it has been brought about for the purpose of defeating the provisions of the Act. It follows that the legislature has likewise presumed that a post-August 20 transfer has been made for the same purpose. 15. The object of Section 5(2) thus is to frustrate shifts and contrivances to defeat the beneficent provisions of the Act. Even if Section 5(2) is susceptible of two constructions, that meaning should be preferred which is apt to accomplish the object. The construction suggested by me is calculated to achieve this object and at the same time does not appear to be strained or unnatural. 16. Sub-Section (7) of Section 14 declares that no person shall for the purposes of the Act be considered to have any right, title or interest in the surplus land. This provision is also a pointer to the construction that has appealed to me. 17. Learned counsel for the petitioner refers me to sub-Section (1) of Section 17 which provides for payment of the compensation to the tenure-holder, whose surplus land has vested in the State, and submits that his transferee is not entitled to the compensation although his land is acquired by the State. 17. Learned counsel for the petitioner refers me to sub-Section (1) of Section 17 which provides for payment of the compensation to the tenure-holder, whose surplus land has vested in the State, and submits that his transferee is not entitled to the compensation although his land is acquired by the State. The submission is correct, but it does not affect the true construction of sub-Section (2) of Section 5. The payment of compensation to the seller-tenure-holder is the necessary consequence of the legislative declaration in sub-Section (2) of Section 5 that the post-August 20 transfer would be deemed to be non-existent for the purposes of that section. I have, however, no doubt that the seller-tenure-holder would be deemed to be a constructive trustee of the compensation for the benefit of his transferee. A transferee is, therefore, not prejudiced. Sub-Section (4) of Section 22 itself makes a reservation in his favour as against his vendor, when it declares that the payment of compensation to the original tenure-holder shall not prejudice the right of any other person to receive the compensation from the tenure-holder. Section 23 further provides that where before any court or authority any dispute is pending in regard to the amount of compensation, the court or authority may direct the Compensation Officer to place at its disposal the amount or to dispose of it in accordance with its orders. The Officer is enjoined to comply with such direction. 18. In view of the foregoing discussion the petition fails and is dismissed with costs.