Krishna Kumar v. Prescribed Authority — 1978 DIGILAW 1072 (ALL)

ORDER M. P. Mehrotra, J. - This petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act. 2. The facts, in brief are these: The usual notice under Section 10 (2) of the said Act was issued to the petitioner and he filed objections. The objections were dealt with and disposed of by the Prescribed Authority. Subsequently, an appeal was filed to the appellate court below and the appeal was allowed and the order of the Prescribed Authority was set aside in view of the fact that the Act had undergone big amendments and it became necessary for the Prescribed Authority to proceed de novo in the matter. Thereafter, fresh proceedings started and the Prescribed Authority passed fresh orders and this time the petitioner went up in appeal to the appellate Court below and the said appeal was partly allowed. On the first occasion it may be stated that the State had gone up in appeal against the Prescribed Authority's first order. 3. Now the petitioner has come up in the instant petition and in support of the same Sri Rajesh Ji Verma learned counsel for the petitioner has contended before me that the Prescribed Authority and the appellate court below wrongly rejected the sale deed which the petitioner had executed in favour of one Smt. Saroj Kumari on 17th March, 1972. The learned counsel submitted that in the earlier proceedings the Prescribed Authority had accepted the said transaction. He next contended that the evidence on the record has not been considered and discussed by the Prescribed Authority and by the appellate Court below. He further contended that his client was at the relevant time detained under MISA and two applications were made on his behalf to the Prescribed Authority praying that he should be summoned to appear before the Prescribed Authority in support of his case but no orders were passed on these applications. He placed reliance on the judgment of a learned single Judge of this court reported in 1978 All LJ 597 (Mewa Devi v. State) where it has been laid down that Section 5 (6) (b) aims to hit transfers by which a tenure holder ostensibly transfers land to retain ownership and control of it. He placed reliance on the judgment of a learned single Judge of this court reported in 1978 All LJ 597 (Mewa Devi v. State) where it has been laid down that Section 5 (6) (b) aims to hit transfers by which a tenure holder ostensibly transfers land to retain ownership and control of it. The learned Judge further observed that when the Legislature speaks of a transfer being not proved to be in good faith, it contemplates a transfer being vitiated on account of something akin to fraud. Lastly, the learned counsel placed reliance on 1978 All LJ 724 (Rajendra Prasad v. State) where it has been laid down as under (at p. 727): - "When once an adjudication of the rights of the tenure-holders in respect of the land lying within the consolidation area has been made, Section 49, makes such determination of title conclusive. Section 49 in a way lays down a rule of res judicata so far as the question relating to the declaration and adjudication of the rights of tenure-holders in respect of the holdings are concerned; the jurisdiction of the civil or revenue court to question the correctness or otherwise of the entries, which are made in the revenue records as a result of the consolidation proceedings is, therefore, completely passed on." 4. I have considered the aforesaid submissions. It is obvious that so far as the earlier order of the Prescribed Authority is concerned the same could be ignored in view of Section 38-B of the Act which lays down as under: - "38-B. Bar against res judicata - No finding or decision given before the commencement of this section in any proceeding or on any issue (including any order, decree or judgment) by any court, tribunal or authority in respect of any matter governed by this Act, shall bar the retrial of such proceeding or issue under this Act, in accordance with the provisions of this Act as amended from time to time." So far as the merits of the adjudication are concerned, it has to be seen that the Prescribed Authority did refer to the oral evidence examined by the petitioner in his support but he was not satisfied with the said evidence and held the transfer not to be bona fide. Similarly, the appellate court in agreement with the Prescribed Authority felt that there were circumstances which were not compatible with the bona fides of the transaction. It is not for this court to do any re-appraisal of the evidence and the material on the record. Within the very strict limits of the certiorari jurisdiction, I cannot condemn a decision on the ground that on a more proper and reasonable appreciation of the material on the record a contrary decision should have been arrived at. On frequent occasions the High Courts have been insisting not to allow the writ jurisdiction to be converted into an appellate jurisdiction. The learned counsel for the petitioner moved an application seeking to bring on record true copies of the statements which were made by the witnesses before the Prescribed Authority. A prayer has also been made that an additional ground set out in the application should be allowed to be canvassed in the petition. The application shall stand allowed. I have looked into the statements of the witnesses. As I have stated earlier, it is not for me to re-appraise the evidence on the record yet since a point has been made that the order of the Prescribed Authority and the judgment of the lower appellate court are almost perverse warranting an Interference in Writ Jurisdiction of this Court, it may be observed that the witnesses have made contradictory statements, in respect of the amount which was paid by way of earnest money at the time of the execution of the sale agreement. While Radhey Lal stated that Rs. 14,000 were paid, Budh Singh stated that five thousand rupees were paid at the time of the agreement of sale. It is an important aspect of the matter that Smt. Saroj Kumari, the purchaser has been found, from the evidence on the record, to be residing at Meerut and the land is situated in the District of Jalaun. I am not pointing out these aspects of the matter as if I am justifying or expressing my own agreement with the conclusion arrived at by the Prescribed Authority or by the lower appellate court. It is well known that it is possible for this Court to hold its own conclusions on the basis of a given record different from those of the subordinate courts and authorities but that fact would not justify interference in the writ jurisdiction. It is well known that it is possible for this Court to hold its own conclusions on the basis of a given record different from those of the subordinate courts and authorities but that fact would not justify interference in the writ jurisdiction. I am only pointing out that the Prescribed Authority and the appellate court below cannot be said to have acted in a perverse manner. 5. So far as the judgment of the learned single Judge reported in 1978 All LJ 597 (supra) is concerned it has to be emphasised that the facts in the said case were significantly different. The widow made the transfer and the entire sale consideration had been deposited in the fixed deposit in the bank. The learned Judge observed there is no finding or even a suggestion on behalf of the State that the transaction was benami or for the immediate or deferred benefit of the tenure holder or other members of his family. The land was not shown to have been situated at such different places as is the position in this case. Here the purchaser residing at Meerut is alleged to have purchased land in Jalaun. She herself even did not enter the witness box and the entire exercise has been done by the Karinda. So far as the interpretation of Section 5 (6) is concerned, I have already taken a view in some of my decisions. The said portion enshrines the clear legislative wisdom that transactions which were executed after 24th Jan., 1971 shall be ignored and not taken into account. It is obvious to me that the said injunction was given by the Legislature because the legislature felt that in view of the contemplated legislative amendments in respect of the ceiling law, attempts were being made to circumvent or escape the incidence arising out of such contemplated amendments. It is not for the Court to expatiate on the correctness or otherwise of the legislative approach in this matter. However, it is obvious that in laying down a date from retrospective effect, the legislature was seeking to nullify certain transactions which had been put through before the enactment of the Amending Act but after 24th Jan. 1971. I am of the view that bearing in mind fundamental rule of interpretation the courts have to give effect to the legislative intention in the fullest measure. 1971. I am of the view that bearing in mind fundamental rule of interpretation the courts have to give effect to the legislative intention in the fullest measure. The substantive provision is contained in Section 5 (6) and cl. (b) of the proviso clearly lays down that a transfer can only be saved if it is proved to the satisfaction of the Prescribed Authority to be in good faith and for adequate consideration not being a benami transaction or for the immediate or deferred benefit of the tenure-holders, or other members of his family. The important point to be emphasised is that it is the satisfaction of the Prescribed Authority. I do not suggest that such satisfaction has been reduced to a mere subjective approach of the functionary but it seems that in laying down that the satisfaction should be that of the Prescribed Authority, it was clearly emphasised that particular functionary in the hierarchy of the ceiling law should be fully satisfied before he allowed the Central legislative intention not to be implemented in a particular transaction. It is clear to me that the Prescribed Authority and the appellate court below were not satisfied with the good faith of the transaction. Much point was made of the fact that there was some kind of agreement of sale executed in 1970. It is well known on the basis of the law laid down by the Supreme Court in AIR 1954 SC 44 Satyavrata v. Mungneeran Bangur and Co. that an agreement of sale does not create any interest or right in the property. The enforceability of such agreement in the face of the legislative enactment cannot be taken for granted, lastly, so far as 1978 All LJ 724 (supra) is concerned the same is not at all applicable to the facts of the instant case; there the transaction had taken place sometime in 1970 and the court was not called upon to decide in respect of the transaction taking place after 24th Jan., 1971. I am of the view in view of the legislative enactment contained in Section 5 (6) any transaction which has taken place after 24th Jan. 1971 is bound to be discarded if the court is not satisfied with the conditions and requirements laid down in clause (b) of the proviso. I am of the view in view of the legislative enactment contained in Section 5 (6) any transaction which has taken place after 24th Jan. 1971 is bound to be discarded if the court is not satisfied with the conditions and requirements laid down in clause (b) of the proviso. I have already referred above to the grievance of the learned counsel that his client was detained under MISA and his applications were not disposed of. This point has been considered by the appellate court below and it has held that no prejudice was caused to the petitioner. It seems to me that in civil litigation the mere fact that litigant happens to be in jail cannot hold up the progress of the proceedings. He could manage to get the three witnesses examined and one cannot understand that it was not possible for him to examine the purchaser Smt. Saroj Kumari. It is somewhat strange in these proceedings that the real purchaser looks almost sleepy even though she should be considered to be more vitally affected than the vendor. In any case, I have not been persuaded to hold that there has been a jurisdictional error in the approach or decision of the Prescribed Authority and the appellate court below. 6. The petition accordingly fails but in the circumstances of the case there will be no order as to costs.