Veer Pal Singh v. State of U. P — 1980 DIGILAW 589 (ALL)

ORDER M.P. Mehrotra, J. -This petition arises out of the proceedings under the U. P Imposition of Ceiling on Land Holdings Act 1960 (hereinafter called the Act). 2. The facts, in brief, are these. One Tribhuwan Singh was treated as the tenure-holder and the notice under Section 10 (2) of the Act was issued to him. He happened to be the father of petitioners. He filed objections and the same were decided by the Prescribed Authority by his order dated 25-4-1978, a certified copy whereof is on the record. Thereafter, the State filed an appeal and the same was allowed by the judgment dated 13-2-1978, a certified copy whereof is on the record. 3. Now the petitioners have come up in the instant writ petition and in support thereof, I have heard the learned counsel for the petitioners and in opposition, the learned Standing Counsel has made his submissions. 4. It may be stated that the tenure-holder Tribhuwan Singh died during the pendency of the proceedings before the Prescribed Authority and the petitioners were brought on record as his heirs and legal representatives. 5. It is contended that the appellate Court was wrong in denying the benefit of cl. (b) of the Proviso to Section 5 (6) of the Act. A sale-deed was executed on 29-12-1971, by the deceased tenure-holder in favour of Shiv Kumar Singh etc. The said deed was accepted by the Prescribed Authority but the appellate court below reversed the said finding and ignored the document under Section 5 (6) of the Act. It is contended that the finding of the appellate court is vitiated on account of misreading of the documentary and oral evidence on record. It is further contended that the appellate court could not apply the rule of circumstantial evidence in the presence of substantive evidence which had been led by the parties and further, that the alleged circumstances did not lead to the inference which were drawn by the appellate court. 6. In my view, taking into consideration the nature of the jurisdiction which I am exercising under Article 226 of the Constitution, I cannot interfere with the findings recorded by the appellate court. It should be seen that the clear legislative intention enshrined in Section 5 (6) of the Act is that transfers effected after 24-1-1971 shall be ignored and not taken into consideration. It should be seen that the clear legislative intention enshrined in Section 5 (6) of the Act is that transfers effected after 24-1-1971 shall be ignored and not taken into consideration. However, there is a proviso and clause (b) thereof enables the tenure-holders to save such transactions if they can satisfy the authorities concerned about the good faith and the adequacy of consideration involved in the impugned transaction. In Anurag Kumar v. 4th Addl. District & Sessions Judge (1979 All LR (Summary) No. 123 at p. 108), K. N. Goel, J., observed as under:- "Having regard to this history of legislation, the obvious intent of the Legislature was that transfers made on or after the date of release of the election manifesto (24-1-71) were normally to be presumed to be mala fide in the special sense of their being motivated by the desire of avoiding the impact of the expected legislation for lowering of ceilings. Conversely, it follows, such motivation should normally be presumed absent where steps for transfer had, beyond; the realm of doubt, been taken or initiated before that date". 7. Explanation 2 to Section 5 (6) clearly. lays down that the burden of proof that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit. Therefore, there can be no doubt that a heavy burden has been laid upon the tenure-holder to establish that the transfer effected after 24-1-1971 was executed in good faith and for adequate consideration. The appellate court in the instant case, was not satisfied that the transaction was effected m good faith. It has mentioned many aspects of the matter which laid it to hold that the two alleged agreements one alleged to have been executed on 21-3-1968, and the other alleged to have been executed on 19-8-1968 were not genuine documents and the transaction effected on 29-12-1971 lacked good faith. It is not the function of this Court in petition under Article 226 of the Constitution to upset such finding as has been recorded by the appellate court merely on the ground that there might be some slight errors in the reading or I interpretation of a witnesss statement. It is not the function of this Court in petition under Article 226 of the Constitution to upset such finding as has been recorded by the appellate court merely on the ground that there might be some slight errors in the reading or I interpretation of a witnesss statement. I may, however, state that if it were open to me to reappraise evidence and record findings of fact, I would myself have held that the alleged agreements, said to have been executed in 1968, were not real or genuine documents and the whole story which the petitioners had set up, lacked genuineness or reality. In the sale-deed dated 29-12-1971, a true copy whereof is Annexure 3, there is no reference to the aforesaid alleged agreements. In the agreement dated 21-3-1968, the price of the crop which was said to be standing on the date of the agreement, was stated to be Rupees 7000/- and the purchasers are supposed to have agreed to pay to the seller the sum of Rs. 7000/- for the said crop and in addition to pay Rs. 40000/- for the land. However, the remarkable thing is that at the said time the agreement recites the possession was that of Gurmukh singh and not that of the seller. Therefore, it was Gurmukh Singh, who was the owner of the crop and he would have been entitled to the price of the said crop. There was no occasion for paying the said price to the seller who had not grown the said crop. Moreover, when the sale was not going to take place immediately after the execution of the said agreement, but instead a period up to the end of 1971 was being stipulated for the execution or the sale-deed, it was wholly artificial for the parties to reach any agreement regarding the price of the crop to be paid by the purchasers to the seller. No one could predicate the price of the crop which might be standing at the time of the actual execution of the sale-deed. It is further extraordinary that the agreement dated 21-3-1968 recites that possession of the land was with Gurmukh Singh but there was no agreement entered into between Gurmukh Singh and the tenure-holder at 1he time when such transaction is said to have been effected. It is further extraordinary that the agreement dated 21-3-1968 recites that possession of the land was with Gurmukh Singh but there was no agreement entered into between Gurmukh Singh and the tenure-holder at 1he time when such transaction is said to have been effected. The alleged agreement between the said two parties came long after the said agreement dated 21-3-1968. The alleged agreement between Gurmukh Singh and Tribhuwan Singh is dated 19-8-1968. The entire story, which the petitioners chose to put forward in evidence suggesting that initially possession had been given to Gurmukh Singh and thereafter, the possession was taken back from him, has seemed to me to be 'wholly artificial and unbelievable. However, I must emphasise that I am not saying all this as if I am acting as an appellate court. I only emphasis that there is no perversity in the finding recorded by the appellate court below and in my view, the said court was entitled to record its findings in respect of the said alleged agreements and in respect of the lack of good faith in the impugned sale-deed. 8. I may also mention that the agreement dated 19-8-1968 was inadmissible in evidence as it was unregistered though it declared the land to stand mortgaged on account of the unpaid price of the tractor. 9. In Syed Yaqub v. K.S. Radha Krishnan ( AIR 1964 SC 477 ), it was laid down as under :- "It may be conceded that it would have been better if the appellate Tribunal had indicated why it rejected the case of respondent No. 1 in regard to his alleged workshop at Chidambaram, but we do not think that the failure of the appellate Tribunal to give a reason in that behalf, or to refer specifically to the evidence adduced by respondent No. 1, would, by itself, constitute such an error in its decision as to justify the issue of a writ of certiorari under Article 226. In this connection, we ought to add that it has been suggested by respondent No. 1 that in dealing with his claim for a permit, admissible evidence which he wanted to adduce had been excluded by the Tribunal from the record, the argument that some evidence was not duly considered by the Tribunal, would normally pertain to the realm of the appreciation of evidence and would, as such be outside the purview of an enquiry in proceedings for a writ of certiorari under Article 226." In Babhutmal Rai Chand Oswal v. Laxmibai R. Tarte ( AIR 1975 SC 1297 ), it was again laid down as under:- "Here, when we turn to the judgment of the High Court, we find that the High Court has clearly misconceived the scope and extent of its power under Art. 227 and overstepped the limits of its jurisdiction under that Article. It has proceeded to re-appreciate the evidence for the purpose of correcting errors of fact supposed to have been committed by the District Court. That was clearly impermissible to the High Court in the exercise of its jurisdiction under Article 227. The District Court was the final court of fact and there being no appeal provided against the findings of fact reached by the District Court, it was not open to the High Court to question the propriety or reasonableness of the conclusions drawn from the evidence by the District Court. The High Court could not convert itself into a court of appeal and examine the correctness of the findings of fact arrived at by the District Court. The limited power of interference which the High Court possessed under the Art. 227 was to see that the District Court functions within the limits of its authority and so far as that was concerned, there was no complaint against the District Court that it transgressed the limits of its authority. It is true that the High Court claimed to interfere with the findings of the fact reached by the District Court on the ground that the District Court had misread a part of the evidence and ignored another part of it but that was clearly outside the jurisdiction of the High Court to do under Article 227. It is true that the High Court claimed to interfere with the findings of the fact reached by the District Court on the ground that the District Court had misread a part of the evidence and ignored another part of it but that was clearly outside the jurisdiction of the High Court to do under Article 227. This is precisely what the High Court did in Nagendra Nath Bora's case, 1958 SCR 1240 : ( AIR 1958 SC 398 ) while setting aside the orders of the appellate authority under the Excise Act and that was disapproved by this Court in clearest terms. The exercise of the power of interference in that case was sought to be justified by reference both to Arts. 226 and 227. So far as the exercise of jurisdiction under Article 226 is concerned, this Court pointed out that a writ or order of Certiorari could be issued by the High Court only if there was an error of law apparent on the face of the record and no error of fact, howsoever apparent on the face of the record, could be a ground for interference by the High Court exercising its writ jurisdiction. It was observed by this Court, while applying this principle to the facts of appeals before it: "In the judgments and order impugned in these appeals, the High Court has exercised its supervisory jurisdiction m respect of errors which cannot be said to be errors of law apparent on the face of the record. If at all they are errors, they are errors in appreciation of documentary evidence of affidavits, errors in drawing inferences or omission to draw inferences. In other words, those are errors which a court sitting as a court of appeal only, could have examined, and, if necessary, corrected." "The High Court, in its several judgments and orders has scrutinised, in great detail, the order passed by the excise authorities under the Act, we have not thought it fit to examine the record or the orders below in any detail, because, in our opinion, it is not the function of the High Court or of this Court to do so. The jurisdiction under Art. 226 of the Constitution is limited to see that the judicial or quasi-judicial tribunals or administrative bodies exercising quasi-judicial powers, do not exercise their powers in excess of their statutory jurisdiction but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. The Act has created its own hierarchy of officers and appellate authorities as indicated above, to administer the law. So long as those Authorities function within the letter and spirit of the law, the High Court has no concern with the manner in which these powers have been exercised. In the instant cases, the High Court appears to have gone beyond the limits of its powers under Article 226." This Court also held that the High Court was not justified in interfering with the orders of the appellate authority in exercise of its jurisdiction under Article 227, since this jurisdiction was limited only to seeing that the District Court functions within the limits of its authority and did not extend to correction of mere errors. What this Court said in that case applies with equal force in the present case and we must hold that the High Court acted beyond the limits of its jurisdiction under Art. 227 in interfering with the findings of fact reached by the District Court. Even if the Special Civil Application had been under Article 226 that would have made no difference and the High Court would still have had no jurisdiction to dispute these findings of fact. Now, if these findings of fact stand, as they must, it is obvious that the dominant or primary user of the shop by the appellant was for business and not residence and there was accordingly no change of user of the shop, and if that be so, the respondents were not entitled to recover possession of the shop from the appellant either Tinder clause (a) or clause (k) of sub-section (1) of Section 13." 10. The learned counsel next contended that Tribhuwan Singh, the deceased tenure-holder, died during the pendency of the Ceiling Proceedings and thereafter the proceedings abated, and fresh proceedings should have taken place against the heirs and legal representatives of the' said deceased tenure-holder. This point was never taken before the authorities below and, therefore, it cannot be allowed to be canvassed for the first time in this petition. This point was never taken before the authorities below and, therefore, it cannot be allowed to be canvassed for the first time in this petition. Admittedly, the deceased tenure-holder was alive on 8-6-1973 which is the relevant date for determining the ceiling area and the surplus land of the tenure-holder. It has not been suggested that he was dead on the date I when the general notice under Section 9 (2) was issued by the Prescribed Authority concerned. Indeed this could not be so because admittedly, the deceased tenure-holder received the notice issued to him under Section 10 (2) of the Act on 7-5-1974. This is so stated in para 1 of the writ petition itself. Therefore, he must have been alive when the general notice under Section 9 (2) of the Act was given by the Prescribed Authority because the individual notice under Section 10 (2) is issued after the general notice under Section 9 (2) of the Act. According to Division Bench pronouncement in Horam Singh v. Distt. Judge (1978 All LR 918) : (1979 All LJ 85) if a tenure-holder dies after the general notice issued under Section 9 (2), then the proceedings against the deceased tenure-holder do not abate and are continued after the legal representatives are brought on the record. This happened in the instant case also. Therefore, the said contention of the learned counsel for the petitioners is rejected. I may mention that the learned counsel placed reliance on the following cases in support of his contention:- 1. AIR 1970 Bom 144 , Dadarao v. State of Maharashtra. 2. AIR 1978 NOC 150 Smt. Savitn Devi Drolia v. State of Bihar. 3. 1972 M.P. Revenue Nirnaiya, p. 1 Jalam Singh v. State of M.P. 11. These cases were decided in reference to separate ceiling Acts and I am bound by the Division Bench pronouncement in Horam Singhs case which considered the law under the U. P. Imposition of Ceiling on Land Holdings Act, 1960. 12. The petition fails and is dismissed but there will be no order as to costs.