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2003 DIGILAW 416 (ALL)

Inder Pal Singh v. Vth Addl. District Judge

2003-02-25

ASHOK BHUSHAN

body2003
JUDGMENT : Ashok Bhushan, J. 1. Heard counsel for the Petitioner and the learned standing counsel. 2. By this writ petition the Petitioner has prayed for quashing of order dated 12.4.1985 passed by the 5th Additional District Judge, Meerut in Revenue Appeal No. 14 of 1977 and the order dated 31.12.1976 passed by the Prescribed Authority. Notice u/s 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 was issued to the Petitioner on 28.1.1974. Petitioner filed objection to the aforesaid notice. The Prescribed Authority vide order dated 5.10.1974 held the land to be un-irrigated. The Prescribed Authority, however observed that the sale deed claimed by the Petitioner in favour of Prahlad Singh appears to be doubtful. By order dated 5.10.1974 Prescribed Authority held that there is no surplus land with the Petitioner. Appeal was filed by the State against the said order which was dismissed on 1.7.1975. After enforcement of the U.P. Act No. II of 1975 a fresh notice was issued to the Petitioner u/s 10 (2) on 21.6.1976 which was objected by the Petitioner. The Prescribed Authority vide its order dated 31.12.1976 declared 3 Bigas 14 Bishwa and 14 Biswansi land of plot No. 399 as surplus. An appeal was filed by the Petitioner against the above order which was dismissed on 25.4.1978. Petitioner filed a writ petition No. 4707 of 1978 challenging the aforesaid order which writ petition was allowed by this Court vide its judgment dated 19.4.1979. This Court after setting aside the order of the appellate authority remanded the case to the Prescribed Authority for deciding afresh in accordance with law. After the aforesaid judgment of the High Court the appellate authority has now again decided the matter vide its order dated 12.4.1985 against which the present writ petition has been filed. 3. Learned Counsel appearing for the Petitioner in support of the writ petition raised the following submissions : (1) The findings of the appellate authority with regard to the land being irrigated is not in accordance with the provisions of Section 4A of the Act and further the appellate authority has not determined the question of irrigated or unirrigated land in accordance with the order of the High Court dated 19.4.1979. The submission is that the land is unirrigated and no basis has been given for holding it to be irrigated as permissible u/s 4A of the Act by the appellate authority. (2) The second submission of the counsel for the Petitioner is that the sale deed which was executed on 18.9.1971 has wrongly been ignored by the courts below. The submission of the counsel for the Petitioner is that the State of Uttar Pradesh has failed to discharge its burden that the sale deed was not bona fide. (3) The third submission of the counsel for the Petitioner is that in earlier ceiling proceedings the Prescribed Authority has held Plot No. 399 to be unirrigated and the said finding will operate as res judicata in further ceiling proceedings and in view of the aforesaid finding it was not open for the Prescribed Authority to hold the land irrigated. 4. Learned Counsel for the Petitioner in support of the aforesaid submissions has relied on several judgments of this Court which will be discussed while discussing the said submission. The learned standing counsel has supported the impugned order passed by the appellate authority and has submitted that the appellate authority has not committed any error in relying on the records prepared under the consolidation proceedings. The submission is that there is no prohibition in Section 4A in looking to the records prepared during the consolidation proceedings and the said records form as relevant material for consideration on arriving on the findings regarding irrigated or unirrigated land. Learned standing counsel further contended that the burden to prove that the sale deed was bona fide was on the tenure holder in which the Petitioner miserably failed. He has submitted that no error has been committed by the Respondents in not accepting the sale deed. 5. Lastly the learned standing counsel submitted that the findings earlier given will not operate as res judicata in view of Section 38B of the Act. He further submitted that while recording earlier finding the Prescribed Authority has not even looked into the Khasras of 1378, 1379 and 1380 Fasli and those findings were not in accordance with the provisions of the Act and will not operate as res judicata. 6. I have considered the submission of the parties and perused the record. 7. He further submitted that while recording earlier finding the Prescribed Authority has not even looked into the Khasras of 1378, 1379 and 1380 Fasli and those findings were not in accordance with the provisions of the Act and will not operate as res judicata. 6. I have considered the submission of the parties and perused the record. 7. The first submission of the counsel for the Petitioner relates to the question of land being irrigated or unirrigated. This Court while allowing the writ petition of the Petitioner on 19.4.1979 has referred to Section 4A and also the judgment of this Court in Jaswant Singh Vs. State of U.P. and Others, (1978) AWC 577 and has held that the enquiry with regard to question of irrigation has to be made in accordance with Section 4A with reference to the documentary evidence referred to therein. This Court has held that the Additional District Judge has looked into the oral evidence which could not have been looked while determining the question u/s 4A. The appellate court while deciding the question of irrigated or unirrigated has looked into the records prepared during the consolidation proceedings. The appellate court, however, observed that the Appellant has not been able to file the Khasras of 1378, 1379 and 1380 F. on the record hence it is not possible to carry out the order of this Court dated 19.4.1979. The submission is that the appellate court cannot rely on the records prepared under the consolidation proceedings while deciding the question u/s 4A of the Act which submission has been refuted by the learned standing counsel. The learned standing counsel referring to Section 4A has submitted that use of words "such other records" in Section 4A gives a wide discretion to the authority to look into any relevant record having bearing on the question under issue. The submission of the learned standing counsel is that there was no prohibition for the appellate authority from looking into the records prepared under the consolidation proceedings. I have given thought to the aforesaid submission. It is true that the words "such other records" as used in Section 4A are of very wide import and they do not restrict the record to any particular category. I have given thought to the aforesaid submission. It is true that the words "such other records" as used in Section 4A are of very wide import and they do not restrict the record to any particular category. The records prepared during the consolidation proceedings cannot be said to be irrelevant nor the order will be vitiated only because of appellate authority having looked into the said record. However, even if the record of consolidation or any other relevant record are looked into the findings has to be recorded by the authorities in accordance with Section 4A while deciding the question of irrigated land. From the judgment of the appellate authority it is clear that there is no finding in consonance with Section 4A that the land of the Petitioner is irrigated. The findings recorded by the appellate authority not satisfy with the conditions as enumerated in Section 4A for declaring the land as irrigated. Further, the appellate authority has observed that the Appellant has no Khasras of 1378, 1379 and 1380 F. hence the order of remand cannot be carried out. Learned Counsel for the Petitioner has rightly pointed out that the Prescribed Authority while considering the question of plot No. 399 being irrigated has referred to Khasras of 1378, 1379 and 1380 F., while discussing the issue No. 1 and has also observed that the part of the said plot is irrigated. The Prescribed Authority having looked into the Khasras of 1378, 1379 and 1380 F., which fact has been mentioned in the order, the appellate authority committed error in not looking into the aforesaid Khasras and observing that the Appellant has not filed the relevant Khasra. Looking into the Khasras of 1378, 1379 and 1380 F. is obligatory for determining the question of irrigated land. The appellate court having not looked into the aforesaid Khasras the findings recorded by the appellate authority on the question of irrigated land, cannot be sustained. 8. Coming to the second submission of the learned Counsel for the Petitioner that the sale deed has wrongly been ignored. It is relevant to look into the provisions of Section 5 (6) of the Act. Section 5 (6) of the Act provides that the transfer made after the twenty-fourth day of January, 1971 shall be ignored. 8. Coming to the second submission of the learned Counsel for the Petitioner that the sale deed has wrongly been ignored. It is relevant to look into the provisions of Section 5 (6) of the Act. Section 5 (6) of the Act provides that the transfer made after the twenty-fourth day of January, 1971 shall be ignored. The said Sub-section (6), however, contains a proviso which provides that 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 is not covered by above provision. In the present case, the Prescribed Authority while considering the said question has held that the vendee is relation of the Petitioner. Further, the facts of the transfer which has been noted by the Prescribed Authority do not inspire confidence that the transaction was bona fide. The appellate authority also did not accept the transaction. The appellate authority has also recorded finding that it has not been proved from any material that Prahlad Singh was in possession of the land transferred to them and the said transferees were not related to him. The appellate authority has refused to believe the case of the Petitioner that the transaction is not a sham transaction. The counsel for the Petitioner contended that it has not been said in the judgment as to what relation was of the Petitioner with Prahlad Singh. The counsel for the Petitioner has also placed reliance on the judgment of this Court in Om Prakash Agarwal Vs. First Additional District and Sessions Judge and Others, (1981) AWC 775 in support of the contention that the Prescribed Authority was required to consider various factors as enumerated in the judgment. The finding as to whether the particular transaction is to be saved under the proviso is essentially a question of fact dependent on the evidence brought before the court. Both the courts below have recorded finding that the benefit of proviso cannot be given to the Petitioner. No good grounds have been made out to interfere with the aforesaid findings of facts recorded by both the courts below. On the aforesaid question the orders of the courts below thus cannot be interfered with. 9. Both the courts below have recorded finding that the benefit of proviso cannot be given to the Petitioner. No good grounds have been made out to interfere with the aforesaid findings of facts recorded by both the courts below. On the aforesaid question the orders of the courts below thus cannot be interfered with. 9. The third submission of the counsel for the Petitioner is to the effect that the Prescribed Authority in earlier finding has held the plot to be unirrigated. The said finding could not have been reopened in subsequent proceedings. Suffice it to say that when the matter was taken by this Court in earlier writ petition of the Petitioner this submission was not made. The submission of the learned Counsel for the Petitioner was that the findings are not in accordance with Section 4A and in accordance with law laid down in Jaswant Singh's case (supra). This Court set aside the order and remanded the matter for deciding the case afresh. The aforesaid argument was not made at that stage and it is, too late for the Petitioner to make the submission that the questions of determination of irrigated land cannot be reopened. Section 38B of the Act specifically provides that the findings or decision given before the commencement of U.P. Act No. II of 1975 was not to bar the retrial of such issue. In view of the aforesaid, the submission of the Petitioner's counsel cannot be accepted that the question that plot No. 399 was irrigated or not cannot be reopened. 10. In view of foregoing discussion the order passed by the appellate authority dated 12.4.1985 is quashed. The appellate authority is directed to consider the question as to whether the plot No. 399 is irrigated or not in accordance with the provisions of Section 4A. Since the matter is very old one appellate authority will decide this question expeditiously preferably within a period of six months from the date of production of a certified copy of this order. It is made clear that the decision of the appellate authority will confine only to the question of plot No. 399 being irrigated or not. 11. The writ petition is allowed to the extent as indicated above.