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2007 DIGILAW 362 (UTT)

The State of U. P. v. Sri Moti Singh and others

2007-07-05

B.S.VERMA

body2007
JUDGMENT This writ petition is directed for quashing the impugned order dated 16-121982 (Annexure No.3) passed by the Prescribed Authority Kashipur in Ceiling Case No. 511 10 of 1981-82 State Vs. Moti Singh whereby the notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act (for short the Act) issue to the petitioner was cancelled. The petitioner has further assailed the order (Annexure No.1) passed by the Appellate Court whereby the appeal preferred by the petitioner was dismissed vide order dated 12-11-1984 passed by I Additional District Judge, Nainital. 2. Brief facts giving rise to the present writ petition are that according to the petitioner, Moti Singh tenure holder held land measuring 25.10 acres in terms of the irrigated land, situated in village Bhagwantpur, Tehsil Kashipur, district Nainital. Notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act (for short the Act) was given to Sri Moti Singh proposing 7.07 acre land of his holding to be declared as surplus after giving him the benefit of 18.03 acre irrigated land as ceiling area. 3. Objections were filed against the notice on the ground that the notice being against the provisions of the Act is illegal. The land which had already been transferred to respondent nos. 2 to 4 has been wrongly clubbed. The land measuring 5 acres was sold through registered sale deed dated 21-2-1980 for a consideration of Rs. 35,000/-, 2.01 acres land through sale deed dated 4.7.1981 for a consideration of Rs. 16,000/-,2.50 acres land through sale deed dated 5-1-1982 for consideration of Rs. 22,000/- to Pooran Lal and through sale deed dated 5-11-982, land measuring 1.5 acre was sold to Resham Singh for Rs. 12,000/-. It was also alleged in the objection by Moti Singh that the land measuring 9.60 acres only is with him. 4. According to Sri Moti Singh, respondent no.1, the aforesaid transfers were made in good faith and for adequate consideration and under an irrevocable instrument not being Benami transaction or for the immediate or deferred benefit of himself or other members of his family. On the basis of the sale deeds, the purchasers were in possession on the date of issuance of notice under Section 10(2) of the Act and their names were also mutated in the revenue records on the basis of sale deeds. 5. On the basis of the sale deeds, the purchasers were in possession on the date of issuance of notice under Section 10(2) of the Act and their names were also mutated in the revenue records on the basis of sale deeds. 5. The writ petition has been filed on the ground that the aforesaid transactions are not bona fide and the findings of the courts below are perverse. The learned Prescribed Authority as well as the appellate court has mis-read the evidence adduced by the respondents. After hearing the parties and perusing the evidence on record, the Prescribed Authority has given a categorical finding that the aforesaid transactions are bona fide and for adequate consideration and they are not Benami. This fact is not disputed by the petitioner that the purchasers are not family members of Moti Singh. There is clear cut finding of the Prescribed authority that the purchasers are not relatives of the respondent no. 1 Moti Singh and it was sufficiently proved by the witnesses that they are in possession of the land and that the transfers were made bona fide with adequate consideration. The benefit was given of the provision of Proviso of Section 5(6)(b) of the Act. After excluding the land sold to the respondents, it has been held that there is no surplus land. The Prescribed Authority by his order dated 16-12-1982 ultimately dropped the notice under Section 10(2) of the Act issued to respondent no. 1 Moti Singh. 6. Aggrieved, the State preferred appeal before the District Judge Nainital, which was subsequently heard by the 1st Additional District Judge. The appellate court dismissed the appeal vide order dated 12-11-1984. The appellate court after re-appraisal of the evidence has confirmed the finding of the Prescribed Authority and has held that the transactions were made bona fide for adequate consideration and the respondents are entitled to the benefit of Section5(6)(b) of the Ad because the transactions were made after 24-1-1971 as mentioned in the said Section. The appellate court has placed reliance upon the judgment of the Apex Court in the case of Bijendra Singh Vs. Slate of U.P. and others [AIR, 1981, Supreme Court, Page 636] wherein it has been held that the expression 'good faith' has not been defined in the Ceiling Act. The appellate court has placed reliance upon the judgment of the Apex Court in the case of Bijendra Singh Vs. Slate of U.P. and others [AIR, 1981, Supreme Court, Page 636] wherein it has been held that the expression 'good faith' has not been defined in the Ceiling Act. Although the meaning of 'good faith' may vary in the context of different statues, subjects and situations, honest intent free from taint of fraud or fraudulent design, is a constant element of its connotation. Even so, the quality and quantity of the honesty requisite for constituting 'good faith' is conditioned by the context and object of the statute in which this term is employed. It is a cardinal cannon of construction that an expression which has no uniform precisely fixed meaning, takes its colour, light and content from the context. It was further held inter alia in paragraph 19 that "once it is established by the transferring tenure-holder that the transfer in question effected in the course of ordinary management of his affairs, was made for adequate consideration and he has genuinely, absolutely and irrevocably divested himself of all right, title and interest (including cultivatory possession) in the land in favour of the transferee, the onus under Explanation II, in the absence of any circumstances suggestive of collusion, or an intention or design to defraud or circumvent the Ceiling Act, on the tenure-holder to show that the transfer was effected in 'good faith', will stand discharged and it will not be necessary or the tenure holder to prove further that the transfer was made for an impelling need or to raise money for meeting a pressing legal necessity." 7. The Prescribed Authority has also got the sale deeds examined from the record of office of Sub Registrar by Naib Tahsildar vide his report dated 15-12-1982 and after comparison it was held that the transactions were made bona fide for adequate consideration. The learned Appellate Court has also arrived at the same conclusion after re-appraisal of the evidence. The argument of the learned Brief Holder for the State cannot be accepted that the transactions are not bona fide. 8. The findings recorded by the Prescribed Authority as well as the Appellate Court are fully based on evidence and both the courts below have concurrently held that the sale-deeds were made in favour of the respondent nos. The argument of the learned Brief Holder for the State cannot be accepted that the transactions are not bona fide. 8. The findings recorded by the Prescribed Authority as well as the Appellate Court are fully based on evidence and both the courts below have concurrently held that the sale-deeds were made in favour of the respondent nos. 2 to 4 are bona fide transactions for adequate consideration and the benefit of Section 5(6)(b) of the Act was rightly given to the respondents. I have perused the judgment and order of Prescribed Authority as well as appellate court thoroughly and have gone through the grounds raised in the present writ petition and averments made in the counter affidavit. In this writ petition intervention application was filed by the interveners, who have purchased the disputed land subsequently from respondent nos. 2 to 4. I have also heard Sri Sharad Sharma assisted by Ms. Indu Sharma on behalf of the interveners. 9. It is not disputed that the respondent nos. 2 to 4 are not family members of respondent no. 1, who sold the land in their favour, therefore, the finding of the Prescribed Authority is fully based on evidence. The Prescribed Authority also got compared the disputed transactions by Naib Tahsildar from the list obtained from Sub Registrar, which was summoned by the Prescribed Authority on the request of the learned counsel for the State before the trial court. The petitioner State has miserably failed to establish the case before the Prescribed Authority that the sale transactions were not bona fide and that they were not made for adequate consideration. 10. For the reasons aforesaid, the ground raised in the writ petition that the transactions are not bona fide is not tenable in the eye of law. There is concurrent finding of the two courts below, which is fully based on evidence, that the transactions are bona fide and for adequate consideration. The findings recorded by the Prescribed Authority as well as the Appellate Court do not suffer from any manifest error of law or perversity or serious infirmity. The writ petition is devoid of merit and is liable to be dismissed. 11. The writ petition is dismissed. No order as to costs. 12. All applications stand disposed of.