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2007 DIGILAW 2891 (ALL)

RAUNAQ ALI v. STATE OF UTTAR PRADESH

2007-12-03

SHISHIR KUMAR

body2007
JUDGMENT Hon’ble Shishir Kumar, J.—By means of the present writ petition the petitioners have approached this Court for quashing the orders dated 21.5.1987 and 15.1.1988 (Annexures 7 and 11 to the writ petition) passed by the Prescribed Authority and the Appellate Authority. 2. The facts arising out of the writ petition are that a notice under Section 10(2) of the Imposition of Ceiling Act was issued on 20.8.1979 to the petitioner No. 2 in respect of the proposal to declare an area of 23 bighas, 4 biswa and 3 biswansi. Petitioners filed an objection including an objection to this effect that the land which has been covered by sale deed dated 27.8.1971 executed by Smt. Mubarak Bibi, wife of the petitioner No. 2 and in favour of Raunaq Ali, petitioner No. 1 be excluded as bonafide sale deed after full consideration was executed on 27.8.1981. The aforesaid objection was accepted by the prescribed authority but on an appeal filed by the State appeal was allowed vide its judgment and order dated 9.3.1976. The same was challenged in Writ Petition No. 3142 of 1976. The writ petition was allowed on 28.8.1978 and the matter was remanded to the Appellate Authority. The Appellate Authority vide its judgment and order dated 10.11.1979 partly affirmed the order of Prescribed Authority but remanded the matter for decision by prescribed authority on Issue Nos. 3 and 4. On remand the prescribed authority decided the Issue Nos. 3 and 4 against the petitioner No. 2 and an area of 4 bighas, 15 biswa and 15 biswansi was declared surplus in the holding of petitioner No. 2 vide its order dated 6.10.1980. Petitioner No. 2 filed an appeal which was dismissed by the Appellate Authority on 2.2.1983. The validity of the said order was challenged in Writ Petition No. 1946 of 1983. The writ petition was allowed on 29.9.1984 and the Appellate Authority was directed to re-decide the issues considering execution of bonafide sale deed dated 27.8.1971 after giving notice to the transferee, i.e. petitioner No. 1 as required under Rule 8 of the Rules, 1961. 3. In the meantime, due to the change of law the Commissioner, Meerut Division, Meerut sent the matter to be decided by the prescribed authority. The prescribed authority thereafter sent notice dated 15.12.1986 to the petitioner No. 1 to file an objection. Petitioner filed an objection to this effect on 5.2.1987. 4. 3. In the meantime, due to the change of law the Commissioner, Meerut Division, Meerut sent the matter to be decided by the prescribed authority. The prescribed authority thereafter sent notice dated 15.12.1986 to the petitioner No. 1 to file an objection. Petitioner filed an objection to this effect on 5.2.1987. 4. It has been submitted by the learned Counsel for the petitioners that with the objection, the petitioners filed so many documentary evidence as well as examined three witnesses namely petitioner No. 1 himself, secondly Shamim Haider, thirdly Smt. Mubarak Bibi and fourthly Sri Shahid Raza, Advocate. A copy of the statement has already been annexed as Annexures 5 and 6 to the writ petition. The prescribed authority without considering the oral and documentary evidence vide its order dated 21.4.1987 has rejected the claim of the petitioner holding therein that the sale deed executed after the prescribed date is not bonafide and declared an area of 4 bigha, 15 biswa and 15 biswansi as surplus in the holding of petitioner No. 2. 5. Petitioner being aggrieved by the aforesaid order has filed an appeal. The Appellate Authority too without considering the oral evidence as well as the documentary evidence has passed a cryptic order without assigning any reason and has dismissed the appeal filed by the petitioner vide its order dated 17.12.1987. 6. Aggrieved by the aforesaid order, the petitioner has filed the present writ petition. 7. It has been submitted by Sri P.N. Saxena, learned Senior Advocate assisted by Sri M.A.Zaidi on behalf of the petitioner that the judicial authority are bound to record reasons and they are bound to consider the oral evidence. If the same has not been done, the judgment and order passed by the authorities below are illegal and will be deemed to be without consideration of relevant documents. The prescribed authority to some extent has discussed the oral evidence but has not appreciated the same but the appellate authority has not discussed anything regarding oral evidence of three persons as well as regarding bonafide purchase of the land after the cut-off date. Therefore, the judgment and order passed by the Appellate Authority will be treated to be an order without assigning any reason and can be said to be an order of non-application of mind. 8. Therefore, the judgment and order passed by the Appellate Authority will be treated to be an order without assigning any reason and can be said to be an order of non-application of mind. 8. The learned Counsel for the petitioners has placed reliance upon a judgment of this Court reported in 1994 RD 318, Bal Kishan v. Board of Revenue, U.P. and others, and reliance has been placed upon para 7 of the said judgment. The same is being quoted below : "7. It appears from the orders of the Appellate Authority and the Board of Revenue that while deciding the appeals, they too have completely ignored the oral evidence. In Paras Nath and others v. Wajiul Hasan and others, trial Court considered oral evidence, but, first and second appellate Courts did not consider the same, a Division Bench of this Court held that the consolidation authorities being Courts of facts, they must consider the oral evidence, and, failure to do so will render their judgments bad in law." In support of the aforesaid contention, the learned Counsel for the petitioners submits that if the authority below has ignored oral evidence, and failure to do so will render their judgments bad in law. It has been submitted that the said judgment is based upon a judgment of the Division Bench of this Court reported in 1974 RD 615, Paras Nath and others v. Wajiul Hasan and others. 9. The another judgment relied upon by the learned Counsel for the petitioners in Sita Ram (Dead) v. Deputy Director of Education, Jaunpur and others, 2003 (95) RD 557 and reliance has been placed upon para 3 of the said judgment. The same is being quoted below : "3. Sri S.N.Singh, learned Counsel for the petitioner submitted that the finding of the Deputy Director of Consolidation on the question of possession is perverse and has been arrived at without considering the material that was filed by the petitioner and relied upon by the Settlement Officer of Consolidation. He referred to the Khasra entries of 1361 to 1370 fasli and also upon the entry of 1358 and 1349 fasli. It was submitted by Sri Singh that the oral evidence of the parties has not been considered by the Deptuy Director of Consolidation at all nor he has considered the irrigation receipts filed by the petitioner. He referred to the Khasra entries of 1361 to 1370 fasli and also upon the entry of 1358 and 1349 fasli. It was submitted by Sri Singh that the oral evidence of the parties has not been considered by the Deptuy Director of Consolidation at all nor he has considered the irrigation receipts filed by the petitioner. Having considered the submissions of the learned Counsel for the parties it does appear that the Deputy Director of Consolidation failed to take into account the irrigation receipts and effect of long standing Khasra entries of 1358 fasli and 1361 to 1370 fasli. The Deputy Director of Consolidation has also relied upon the admission made by the petitioner that he had nothing to do with the land of Buddhu. It is well settled that an admission in order to bind a party must be unequivocal. A statement that a party has nothing to do with the land of the other party cannot be an unequivocal admission, that the disputed land belongs to the other party. Such a statement is not the admission of the claim of title of the other party. The Deputy Director of Consolidation has also not considered the oral evidence. In the circumstances the finding on possession recorded by the Deputy Director of Consolidation cannot be sustained as it is vitiated for non-consideration of the materials on the record." 10. In such way the learned Counsel for the petitioners submits that the judgment and order passed by the Appellate Authority dated 17.12.1987 (Annexure 8 to the writ petition) is liable to be quashed. 11. On the other hand, learned Standing Counsel has submitted that the prescribed authority as well as the Appellate Authority has discussed the oral evidence and as the petitioner No. 1 has failed to prove that from where he has got the money for the purposes of purchase of the land and admittedly, on the day when the sale deed was executed, he was studying, therefore, a proof to this effect has to be made regarding receipt of the amount for the purposes of purchase of the land. It has further been submitted that as the transaction is between the mother and son, therefore, it cannot be treated to be bonafide. 12. It has further been submitted that as the transaction is between the mother and son, therefore, it cannot be treated to be bonafide. 12. After considering the submissions made on behalf of the parties and after perusal of the record, it is not disputed that sale deed has been executed in favour of the petitioner No. 1 in the month of August, 1971 after the cut-off date. But in view of the provisions of Section 5 (6), it is clear that while determining the ceiling area of the tenure holder any transfer of land made after 24th day of January, 1971, has to be considered in view of the criteria laid down in the said section. Section 5(6) is being reproduced below : "Section 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-section (2); (b) 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. Explanation I.—For the purposes of this sub-section, the expression transfer to land made after the twenty-fourth day of January, 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, acknowledgment, 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 clause (b) of the proviso shall rest with the party claiming its benefit." 13. Explanation II—The burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit." 13. After perusal of the judgment passed by the prescribed authority as well as by the Appellate Authority, the Prescribed Authority to some extent has considered the statements of the persons who have been produced on behalf of the petitioners but the Appellate Authority being a last Court of fact was obliged to consider the oral evidence and a finding to this effect has to be recorded regarding the bonafide purchase of the land. If no such finding is recorded the judgment passed by the Appellate Authority cannot be said to be in consonance of the provisions of the Act. Such finding is lacking and there is no whisper to this effect by the Appellate Authority. 14. In view of the aforesaid fact, I am of the opinion that the judgment and order passed by the respondent No. 2 dated 17.12.1987 (Annexure 8 to the writ petition) is not sustainable in law, as such, is hereby quashed. The writ petition is allowed. The matter is remanded back to the appellate authority i.e. respondent No. 2 to decide the case in view of the observations made above taking into consideration the provision of Section 5(6) of the Act, as well as the judgment cited above. As the matter is very old, therefore, the respondent No. 2 is directed to decide the same within a period of six months from the date of production of the certified copy of this order after affording full opportunity to the petitioner. In case, the petitioners submit some additional evidence by way of documents that may also be considered by the Appellate Authority. 15. No order as to costs. ————