Santosh Kumari v. State of Uttar Pradesh — 1983 DIGILAW 555 (ALL)

ORDER M.P. Mehrotra, J. - This petition under Article 226 of the Constitution arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act. 2. The fact in brief, are these The petitioner was treated as the tenure holder and the ceiling proceedings were initiated and finalised against her. She had a grievance that the land of four sale deeds executed by her were wrongly included in her holding. In other words, her contention was that the said sale deeds were wrongly ignored under S. 5 (6) of the Act and that they should have been accepted in view of cl. (b) of the proviso to sub-see. (6) of S. 5 of the Act. This contention, however, failed up to the stage of this Court in Civil Misc. Writ Petition No. 288 of 1976. However, in the said writ petition a learned Judge of this Court directed a remand on the question of the choice to be exercised by the tenure- holder under S. 12-A of the Act. Thereafter the appellate court held that in view of the direction given by this Court in the said writ petition No. 288 of 1976. it was hound to accept the choice given by the tenure- holder, Smt. Santosh Kumari. The said tenure-holder had given in choice the land of the said four sale deeds. Therefore, the land of the said sale deeds was declared as surplus land of the tenure-holder. The purchasers of the said lands on the basis of the said sale deeds thereafter filed writ petition No. 3274-C of 1979. The contention of the purchasers was that their land which they had purchased from the tenure-holder should not be included in the surplus land of the tenure-holder. I accepted the contention of the purchasers that the land purchased by them could not be declared as surplus land on the basis of the choice expressed by the tenure-holder under S. 12-A of the Act. The petition of the purchasers was accordingly allowed. Of course, I left the controversy open to whether the tenure-holders' rights s rod extinguished in the proceedings under 14 of the Act. 3. It seems that after my aforesaid decision dated 18-1-80, a true copy of which is annexure 2 to the petition, the Prescribed Authority declared some land (other than the land of the sale deeds) as surplus land of the tenure-holder. 3. It seems that after my aforesaid decision dated 18-1-80, a true copy of which is annexure 2 to the petition, the Prescribed Authority declared some land (other than the land of the sale deeds) as surplus land of the tenure-holder. The tenure-holder aggrieved with the said decision filed an appeal before the appellate court. In the appeal, the appellate court' rejected the contention of the tenure-holder that the land sold by her on the basis of the aforesaid sale deeds could not be included in the ceiling area of the tenure-holder. The appellate court observed as follows : "Once it is held that the sale deeds have to be ignored, natural consequence is that the subject of sale has to be treated as part and parcel of the holding of the tenure-holder. And since the finding further is that the subject of sale shall not he placed within the class surplus land, as of the necessity, it has to be placed, within the ceiling area. This is what has been exactly done by the learned Prescribed Authority. The argument is devoid of merit." 4. In my view, the aforesaid observations correctly lay down the law. Another contention raised before the appellate court was that as a tenure-holder she has been deprived of her choice. The appellate court gave 15 days' time to the tenure-holder to file her choice in writing before the said court and observed - "In case the choice is to be distinct from the land declared surplus under the impugned judgment, the matter shall go back to the Prescribed Authority for declaring the surplusage in accordance with the choice, unless for reasons to be specified, the Prescribed Authority finds it difficult to replace a choice." 5. Feeling aggrieved, the petitioner has now come up in the instant writ petition and in support thereof, I have heard Sri S. B. Chaudhary, learned Senior Counsel for the petitioner. Learned counsel contended that on the basis of my judgment dated 18-1-80 in Civil Misc. Writ Petition No. 3274-C of 1979, Prem Kumar Singh v. State of U. P. (Annexure no. 2 to the petition), the land covered by the sale deeds in question should not have been included in the holding of the tenure-holder, who is the petitioner before me in the instant writ petition. In my view, this interpretation of my judgment is not correct. 2 to the petition), the land covered by the sale deeds in question should not have been included in the holding of the tenure-holder, who is the petitioner before me in the instant writ petition. In my view, this interpretation of my judgment is not correct. It should be seen that so far as the said controversy was concerned, the same had become final with the judgment of this Court in the earlier writ petition, namely. Civil Misc. Writ Petition No. 288 of 1976, which had been decided by a learned Judge of 'this Court on 10-4-78. By the said judgment it had been held that the sale deeds in question were rightly ignored under S. 5 (6) of the Act. In other words, it was held that the ceiling authorities were justified in including the land of the said sale deeds in the holding of the tenure-holder Smt. Santosh Kumari. The said sale deeds had been executed after 24-1-71 and the benefit of cl. (b) of the proviso to sub- see. 1,6) of S. 5 of the Act was not given to the tenure-holder. However, on the question of choice the case was remanded for a fresh consideration. Thereafter, it seems that the tenure-holder gave in choice the land of the sale deeds to be declared as surplus. The appellate court accepted the said choice and declared the land of the sale deeds as the surplus land of the tenure-holder. The purchasers thereafter came to this Court in Civil Misc. Writ Petition No. 3274-C of 1979 and their only contention was that the land purchased by them from the tenure-holder could not be declared as surplus land of the tenure-holder. This contention was based on cl. (d) of the proviso to S. 12-A of the Act. It was not their contention that in the total area including the holding of the tenure-holder the land of the said sale deeds should not have been included. So far as that controversy was concerned, the purchasers were not contesting the same and the same had become final with the decision in the earlier writ petition. It was not their contention that in the total area including the holding of the tenure-holder the land of the said sale deeds should not have been included. So far as that controversy was concerned, the purchasers were not contesting the same and the same had become final with the decision in the earlier writ petition. However, what mattered to the purchasers was that they should not be deprived of the land purchased by them from the tenure- holder and, therefore, they contended that the tenure-holder should not be allowed to exercise her choice to give as surplus land the land which had been purchased by them from the tenure-holder. Since this contention was accepted by me, therefore the inevitable result was that the tenure- holder could be permitted to give in choice as surplus land some other land, i.e. the land other than that which was sold by her to the purchasers. The learned counsel's contention is that the result has been that even some land within the ceiling area of the petitioner will now travel (sic) as surplus land of the tenure-holder-petitioner. This undoubtedly may be so but that it is because of the legislative policy as enshrined in S. 5 (6) read with S. 12-A and its proviso. It was the Legislature's anxiety that even though the land of certain sale deeds should be included in the holding of the tenure-holder, still, it was thought that as far as possible, the relationship between the transferor and the transferee should not be disturbed and the transferee should continue to be in possession of the land purchased by him from the transferor. This is manifest from cl. (d) of the proviso to S. 12-A of the Act. The Legislative thinking seems to have been that such sale deeds were meant to defeat the ceiling law and were, therefore, to be ignored for the purpose of calculating the total area of the tenure-holder's holding and the surplus land but the transaction as far as possible, was to remain unaffected between the parties to the transaction. The inevitable result was that in such cases the tenure- holder had,to give as surplus land from his ceiling area since the tenure holder could not give as surplus land of the sale deeds which stood ignored under S. 5 (6) of the Act. The inevitable result was that in such cases the tenure- holder had,to give as surplus land from his ceiling area since the tenure holder could not give as surplus land of the sale deeds which stood ignored under S. 5 (6) of the Act. In my view, therefore, as I have stated above, the appellate court's observations extracted above, correctly lay down the legal position. 6. The learned counsel next contended that a very short time had been granted by the appellate court to enable the petitioner to exercise her choice. It seems to me that in view of the settled case law of this Court, the tenure-holder may be allowed to exercise her choice before the Prescribed Authority under S. 12-A of the Act in case her rights have not become extinguished under S. 14 of the Act (Vide Bharat Singh v. State of U. P. (1977 All WC 407) : (1977 All LJ 375) and Meharban Singh v. S.D.M. (1978-4 All LR (SOC) 92. 7. This writ petition is accordingly disposed of in the manner that the petitioner may be allowed to exercise her choice regarding surplus land under S. 12-A in case her rights do not stand extinguished under S. 14 of the Act. However, she will not have the right to give in choice as surplus land the land which was sold by her to the purchasers in question by the sale deeds which were rightly ignored by the ceiling authorities. There will be no order as to costs.