Soorya Bali v. State of U. P — 1991 DIGILAW 999 (ALL)

JUDGMENT S.C. Mathur, J. - This petition arises from proceedings for determination of ceiling and surplus areas under the provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (U.P. Act. No. I of 1961), for short Act. The only question pressed by the learned counsel for the petitioner, as recorded in the order sheet dated 9th July 1991 relates to the choice of ceiling area given by the petitioner. 2. The petitioner has filed a copy of the application through which choice was given as Annexure No. 3. In this application the petitioner has not done anything except giving the numbers of the plots and area thereof which he wanted to retain in his ceiling area. Regarding the remaining area which could be taken away as surplus land he did not say anything. He had also made an application in which he mentioned certain transfers effected by him and prayed that the transferees be imp leaded in the proceedings. The prescribed authority instead of excluding the transferred area from petitioner's ceiling area included the same in the said area. For doing so it relied upon Section 12-A of the Act. Aggrieved by this order the petitioner preferred appeal before the learned District Judge who dismissed the same. The petitioner has now approached this Court through the instant petition under Article 226 of the Constitution. 3. The material question arising for determination in the present proceedings is whether the transfers effected by the petitioner are covered by sub-section (6) of Section 5 of the Actor sub-section (8) thereof. Sub-section (6) provides that - "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:" The sub-section is followed by a proviso which has clauses (a) and (b). For the purposes of the present case we are not concerned with clause (a). For the purposes of the present case we are not concerned with clause (a). Clause (b) provides that sub-section (6) shall not apply to" a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and 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." If the condition prescribed in clause (b) is satisfied the transfer although effected after 24th January 1971 will be taken into account and will not be ignored. In other words the transfer contemplated by sub-section (6) is not an absolutely void transaction. 4. Sub-section (8) provides that - "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." Sub-section (7) deals with partition with which we are not concerned in the present proceedings. In the present case there is no dispute that proceedings for determination of surplus land in relation to the petitioner commenced on or after 8th June 1973. Accordingly if the transfers relied upon by the petitioner were effected after 8th June 1973 they will be void under sub- section (9). 5. Section 12-A provides that "In determining the surplus area the prescribed authority shall as far as possible accept the choice indicated by the tenure-holder to the plot or plots which he and other members of his family. If any, would like to retain as part of the ceiling area applicable to him or them under the provisions of this Act, whether indicated by him in his statement under Section 9 or in any subsequent proceedings". If any, would like to retain as part of the ceiling area applicable to him or them under the provisions of this Act, whether indicated by him in his statement under Section 9 or in any subsequent proceedings". This provision is followed by a proviso which contains clauses (a), (b), (c) and (d) Clause (d) reads as follows :- "(d) where any person helds land in excess of the ceiling are including land which is the subject of any transfer or partition referred to in sub-section (6) or sub-section (7) of Section 5, the surplus land determined shall, as far as possible, be land other than land which is the subject of such transfer or partition, and if the surplus land includes any land which is the subject of such transfer or partition, the transfer or partition shall, in so far as it relates to the land included in the surplus land, be deemed to be:and always to have been void, and - (i) it shall be open to the transferee to claim refund of the proportionate amount of consideration, if any, advanced by him to the transferor, and such amount shall be charged on the the amount payable to the transferor under Section 17 and also on any land retained by the transferor within the ceiling area, which shall be liable to be sold in satisfaction of the charge, notwithstanding anything contained in Section 153 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950. (ii) ..............." This clause makes provision for two things. It first lays down the obligation of the prescribed authority at the time of determining the ceiling and surplus areas. Next, it makes provision for the right of the transferee arising from loss of land transferred to him, by its inclusion in the surplus area of the tenure holder. In respect of the obligation of the prescribed authority it is provided that it shall as far as possible, exclude the transferred land from the surplus area thereby that the transferred land shall be included in the ceiling area of the tenure holder. Surplus land declared in respect of a tenure holder vests in the State. In respect of the obligation of the prescribed authority it is provided that it shall as far as possible, exclude the transferred land from the surplus area thereby that the transferred land shall be included in the ceiling area of the tenure holder. Surplus land declared in respect of a tenure holder vests in the State. The obvious purpose of excluding the transferred land from the surplus area is to enable the transferee to enforce his rights arising from transfer against the tenure holder." The obligation to exclude transferred area from the surplus area is not absolute. The words "as far as possible" indicate that the prescribed authority shall make in attempt to exclude the transferred area from the surplus area. There may be a situation when) it may not be possible. In such a situation the right of the transferee arises. His right is to claim refund of the amount of consideration paid by him. The amount be refunded is charged on the amount payable to the transferor as compensation for the land acquired by way of surplus area. The charge is created not only in respect of the amount payable to the tenure holder in lieu of surplus land but also on the land retained by the tenure holder as a surplus area. In case the tenure holder does not refund the amount the same can be realised by selling the land comprised in the ceiling area. The material thing to be noticed is absence of sub-section (8) from clause (d). The absence of this sub-section from clause (d) makes the provisions contained therein inapplicable. In other words,there is no obligation on the prescribed authority to exclude the land covered by sub-section (8) from the surplus area and there is also no entitlement of the transferee to claim refund under the provisions of the Act. The corollary to this is that it is permissible to the tenure holder to exclude the transferred land from the choice of ceiling area given by him. However, in my opinion, the prescribed authority is not debarred from including the land covered by a transfer hit by sub-section (8) in the ceiling area. 6. In the present case, the prescribed authority has included the transferred land in the ceiling area of the petitioner and the petitioner's submission is that this is contrary to Section 12-A(d). However, in my opinion, the prescribed authority is not debarred from including the land covered by a transfer hit by sub-section (8) in the ceiling area. 6. In the present case, the prescribed authority has included the transferred land in the ceiling area of the petitioner and the petitioner's submission is that this is contrary to Section 12-A(d). The entire argument of the learned counsel at the time of hearing was that the transfers in question are covered by sub-section (8) and, therefore, Section 12A(d) was not attracted. In order to apply sub-section (8) the petitioner will have to establish that the transfers relied upon by him were effected after 8th June 1973. The learned District Judge has mentioned in his order that there was no evidence of this fact on record. In the writ petition there is no assertion by the petitioner that the observation of the learned District Judge is incorrect. Accordingly the finding of the learned District Judge regarding the inapplicability of sub-section (8) does not suffer from any infirmity. 7. Learned counsel for the petitioner has invited my attention to certain authorities which may now be noticed. 8. In 1978 All LJ 1099 Smt. Kunwar Rani Sushila Devi v. State. It has been held that the proviso to sub-section (6) applies only to those transfers of land which are effected during the period between 29th January 1971 and 8th June 1973 and nove-else. The petition in this Court was filed by the tenure holder against whom proceedings for determination of ceiling and surplus areas were taken. The tenure holder had sought exclusion of the transferred land from his holding for the purpose of determining the ceiling and surplus areas. His plea was rejected by the prescribed authority as well as by the District Judge on the ground that the transfer had been effected after 8th June 1973 and was, therefore, void and could not be taken into consideration for determining the ceiling and surplus areas. This was not a case under Section 12-A(d). Accordingly this authority is not relevant for the purposes of the present case. 9. Ranvir Singh v. District Judge, Etah, 1981 (7) All LR 222 was a case is which the application of the transferee under S. 11(2) of the Act had been rejected by the prescribed authority and the learned District Judge and their orders were upheld by this Court. 9. Ranvir Singh v. District Judge, Etah, 1981 (7) All LR 222 was a case is which the application of the transferee under S. 11(2) of the Act had been rejected by the prescribed authority and the learned District Judge and their orders were upheld by this Court. In this case the sale deed in favour of the petitioner had been excluded on 12th March 1973. In the choice given by the tenure holder he had excluded the transferred land from the area which he wanted to retain as ceiling area. The choice was accepted and the transferred land was included in the surplus area which was to vest in the State. Faced with this prospect the transferee preferred application under Section 11(2) of the Act. The application was beyond time and accordingly a prayer was made in the application itself for condonation thereof. The prescribed authority rejected the application as not maintainable. The District Judge took the view that separate application, should have been made under Section 5 of the Limitation Act for condonation of delay. The explanation for delay given in the application was also not found satisfactory and the appeal was accordingly dismissed. This Court upheld the finding of the learned District Judge on the question of condoning the delay. Thereafter the learned single Judge proceeded to consider the question as to whether the tenure holder could, while indicating his choice of the plots which he wanted to retain as part of his ceiling area, mention the plots which he had already transferred and the transfers had not been accepted and those lands had been treated as part of his holding. The learned single Judge replied to the question in the affirmative relying upon 1979 (5) ALR 208 , Smt. Girja Devi v. State of U.P. and 1977 AWC 91 Pooran Kaor v. State. It has been observed- "The declaration of the surplus land having been made under a valid law cannot be challenged by such a transferee who has no title to such land inasmuch as the transfer made in his favour, so far as that land is concerned, is and has always been void in view of clause (d) of the proviso to Section 12A of the ,Act. In my opinion, therefore, the petitioners could not object to the indication of choice by the tenure-holder, for surplus area to be taken from some of the plots transferred when he had been proceeded on the assumption that those plots formed part of his holding. As for the remedy of the petitioners, safeguard has been made in sub-clause (i) of clause (d) of the proviso itself and it is that they are entitled to claim refund of the amount of consideration paid by them to the transferor and such amount shall be a charge on the amount payable to the transfer under Section 17 and also on any land retained by the transferor within the ceiling area." In this case the sale deed had been executed prior to 8th June 1973 and was accordingly covered by sub-section (6) of Section 5. All transfers covered by that sub-section are not valid; only those transfers are valid which are made after 24th January 1971 and before 8th June 1973 and are proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument. It appears that the validity of the transfer had already been determind in proceedings for determination of ceiling and surplus area against the tenure holder and the land had been included in the surplus area on the basis of the choice given by the tenure holder. The judgment of this Court proceeds on the basis that once the sale deed has been found to be not satisfying the requirements of clause (b) of proviso to sub-section (6) of Section 5, the tenure holder could include the land covered by the transfer in this choice of surplus area. This judgment is not authority for the proposition that the prescribed authority is not competent to include the land covered by a void sale deed in the surplus area of the tenure holder. According this authority is also of no assistance to the petitioner. 10. In the judgment of the Court below there is reference to 1983 All LJ 71, Har Bilas Misra v. Civil Judge, Etawah. It has been held in this case that since a transfer hit by sub-section (8) of Section 5 is void, the tenure holder can include the transferred plots in his choice of surplus area. 10. In the judgment of the Court below there is reference to 1983 All LJ 71, Har Bilas Misra v. Civil Judge, Etawah. It has been held in this case that since a transfer hit by sub-section (8) of Section 5 is void, the tenure holder can include the transferred plots in his choice of surplus area. This authority does not lay down that the Prescribed Authority is bound to accept such choice. The Prescribed Authority may accept such choice, it may not accept such choice, as the transfer being void, it is a neutral circumstance. Being a neutral circumstance, it creates no right in favour of either the transferor or the transferee. When the Prescribed Authority includes plots transferred by a transaction hit by sub-section (8) of S. 5 in the ceiling area of the tenure holder, the equities are properly adjusted between the transferor and transferee and it would not be fair exercise of jurisdiction under Article 226 of the Constitution to disturb such an adjustment. 11. It may also be stated that they petitioner's action in insisting on inclusion of that land in his surplus area which he has transferred for consideration is wholly dishonest. He wants to appropriate the sale consideration and deprive the transferee of the land purchased by him. By inclusion of the said land in the surplus area of the petitioner will also receive compensation for that land. In view of this dishonest and fraudulent act, the petitioner must bear costs of the present proceedings. 12. In view of the above, writ petition is dismissed with costs to the opposite parties which are assessed at Rs. 500/-.