Research › Browse › Judgment

Allahabad High Court · body

1987 DIGILAW 465 (ALL)

Sanjay Kumar v. State of U. P

1987-04-17

K.P.SINGH

body1987
ORDER K.P. Singh, J. - Brief facts giving rise to the present writ petition are that one Jagdish Chandra was tenure-holder of the disputed land. Notice under section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act was served upon the tenure-holder. He had contested the notice.During the pendency of the proceedings the tenure-holder died and his heir Ajai Verma was substituted in the year 1984. On 22-8-1984, 82.49 acres land of the tenure-holder was declared as surplus. The petitioners father Dharmendra Nath appears to have purchased an area of 75.51 acres of the land belonging to Jagdish Chandra in an auction sale. It has also been brought to my notice that notice under section 10(2) of the U.P. imposition of Ceiling on Land Holdings Act (in short Act) had also been issued against Dharmendra Nath treating the land purchased in auction sale as the land of Dharmendra Nath, and ceiling proceeding against Dharmendra Nath is still pending. On the basis of the auction sale in favour of the petitioners father the petitioner Sanjay Kumar filed an application for setting aside the determination of surplus area of the tenure-holder through the order dated 22-8-1984 (see Annexure-1 attached with the writ petition). The application of the petitioner was dismissed as is evident from Annexure dated 1-5-1985 attached with the (writ petition). Against the order of the Prescribed Authority the petitioners preferred an appeal which has been dismissed by the appellate court through its judgment dated 12-9-1985. Aggrieved by the judgments of the Ceiling Authorities the petitioners have approached this Court under Article 226 of the Constitution. 2. Learned counsel for the petitioners has contended before me that the ceiling authorities have patently erred in negativing the claim of the petitioners who had purchased the disputed area measuring 75.51 acres of the tenure-holder in an auction sale. According to him sale deed in favour of the petitioners father was a bona fide transaction and could not be ignored by the ceiling authorities. 3. Learned counsel for the State has'' submitted in reply that the auction sale relied upon by the petitioners is not a bona fide transaction or is it for adequate consideration and the ceiling authorities were fully justified in ignoring the sale deed relied upon by the petitioners. 3. Learned counsel for the State has'' submitted in reply that the auction sale relied upon by the petitioners is not a bona fide transaction or is it for adequate consideration and the ceiling authorities were fully justified in ignoring the sale deed relied upon by the petitioners. According to the learned counsel title to the area claimed by the petitioners was obtained during the continuance of the ceiling proceedings against the tenure-holder named Jagdish Chandra, therefore, on the principle of S. 52 of the Transfer of Property Act, the claim of the petitioners was rightly negatived by the ceiling authorities and in this connection he placed reliance upon the ruling reported in AIR 1967 SC 1440 , Samarendra Nath Sinha v. Krishna Kumar Nag. 4. I have considered the contentions raised on behalf of the parties. The learned counsel for the petitioners has invited my attention to the ruling reported in 1981 All LJ 1293, Smt. Phulmati v. 7th Addl. Dist. Judge and has emphasised that the auction sale in favour of the petitioners would not be ignored because according to the aforesaid ruling the provisions of S. 5(6) of the Act would apply to the transfers between 24-1-71 and 8-6-73. I am unable to accept the contention raised on behalf of the petitioners. No doubt the observations made in para 7 of the above mentioned ruling indicates that the provisions of S, 5(6) of the Act will apply only to the transfers between 24-1-71 and 8-6-73, but if the ruling is read along with the ruling relied upon in that paragraph the correct inference would be that proviso to sub-sec. (6) of S.- 5 of the Act must apply to the transfers of land effected between 24-1-71 and 8-6-73. To my mind the contentions raised on behalf of the petitioners in this regard are baseless and without appreciating the true import of the provisions of S. 5 of the Act. 5. Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act provides : "(1) On and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him. 5. Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act provides : "(1) On and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him. Explanation I. - In determining the ceiling area applicable to a tenure-holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account. Explanation II. - If on or before January 24, 1971, any land was held by a person who continues to be in its actual cultivators 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 licence 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. (2) to (5)............................ (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-sec. (2); (b) a transfer proved to the satisfaction of the Prescribed Authority to be in good faith and for adequate consideration arid 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 For the purposes of this sub-section the expression transfer of land made after the twenty-fourth day of January, I 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, acknowledgement, 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 cl. (b) of the proviso shall rest with the party claiming its benefit. (7) ...... (8) Notwithstanding anything contained in sub-sections (6) and (7), no tenure-holder shall transfer any land held by him during the continuance of proceedings for determination of surplus land in relation to such tenure-holder and every transfer made in contravention of this sub-section shall be void. Explanation - For the purpose of this sub-section, proceeding for determination of surplus and shall be deemed to have commenced on the date of publication of notice under sub-section (2) of the Section and shall be deemed to have concluded on the date when an order in relation to such tenure-holder is passed under sub-section (12), or as the case may be, under S. 13." 6. In view of the above mentioned provisions of Section 5 of the U. P. Imposition of Ceiling on Land Holdings Act, I think that the petitioners have no case. The petitioner's father purchased the disputed area of the tenure-holder in an auction sale allegedly held in the year 1977, Therefore, on the relevant date i.e. on 8-6-73 the disputed area belonged to the tenure-holder named Jagdish Chandra. The ceiling authorities were fully justified in treating the disputed area at holding of the tenure-holder while determining the surplus area of the aforesaid tenure-holder namely Jagdish Chandra. No relief could be granted to the tenure-holders in the application contained in Annexure attached with the writ petition. The heir of the deceased tenure-holder had been substituted in the ceiling proceedings against the tenure-holder. Therefore, the question of abating the proceedings did not arise and the prayer in this regard is unjustified. 7. In view of the provisions of S. 5(8) of the U. P. Imposition of Ceiling and Land Holdings Act mentioned above it is clear that the auction sale in favour of the petitioners' lather would be void in the facts and circumstances of the present case. The aforesaid provisions had come on the statute book prior to the auction sale in favour of the petitioners father. The aforesaid provisions had come on the statute book prior to the auction sale in favour of the petitioners father. Therefore, the claim of the petitioners was rightly negatived by the ceiling authorities and the petitioners cannot attack the judgment of the ceiling authorities. 8. It is true that the reading of the aforesaid provision indicates that it would apply to the voluntary transfer made by the tenure-holder. In AIR 1967 SC 1440 , Samarendra Nath Sirigh v. Krishna Kumar Nag their Lordships of the Supreme Court have indicated in para. 16 of the judgment as below: - "........This principle is well illustrated in Radhamadhub Holdar v. Monohur, (1888) 15 Ind App 97 (PC) where the facts were almost to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienation's such as Court sales but it is well established that the principle of lis pendens applies to such alienation (see Nilkant v. Suresh Chandra, (1885) 12 Ind App 171 (PC) and Motilal v. Karrabuddin, (1897) 24 Ind App 170 (PC)." 9. On the analogy of the dictum of law laid down in the ruling mentioned in the previous paragraph think that the provisions of S. 5(8) of the U. P. Imposition of Ceiling on Land Holdings Act would also include involuntary stiles i.e. auction sales. Moreover, in the present case the petitioners did not produce relevant documents to demonstrate that a valid decree had been passed against the tenure-holder and that the auction sale was valid and legal. Moreover, an area of 75.51 acres was purchased for a sum of Rs. 10,000/- only. Therefore, the ceiling authorities have not patently erred in holding that the auction sale in favour of the petitioners father was not for adequate consideration. To my mind the sale of such a big area for a paltry sum of Rs. 10, 000/-does indicate that the transaction was not bona fide and for inadequate consideration. To my mind the claim of the petitioners has been rightly negatived by the ceiling authorities in the facts and circumstances of the present case. 10. hi the result for the foregoing discussion the writ petition fails and is accordingly dismissed. Parties are directed to bear their own costs.