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2021 DIGILAW 1628 (ALL)

Sunder Lal v. State of U. P.

2021-12-24

RAJNISH KUMAR

body2021
JUDGMENT : 1. Heard Shri Vijay Bahadur Verma, learned counsel for the petitioner and Shri Rajeev Singh Chauhan, learned Additional Chief Standing Counsel for the State. 2. The writ petition No.808 (MS) of 1991, writ petition No.807 (MS) of 1991, writ petition No.809 (MS) of 1991 and writ petition No.810 (MS) of 1991 arises out of the common judgment and order dated 27.10.1989 passed by the Prescribed Authority/opposite party no.3 by means of which four applications of the petitioner under Section 11(2) of the U.P. Imposition of Ceiling on Land Holdings Act 1960 (hereinafter referred as the Ceiling Act) have been dismissed and the order dated 30.01.1991, passed by the Additional Commissioner (Judicial), Lucknow Division, Lucknow/opposite party no.2 in four appeals filed by the petitioner. Therefore, they have been clubbed together and are being decided together by a common judgment and order. 3. The brief facts of the case, for adjudication of the aforesaid cases as alleged in the writ petitions are that Kunwar Yudhendra Bahadur Singh son of Jayendra Bahadur Singh was the original tenure holder of the land in dispute who acquired the disputed property by means of a partition decree dated 07.04.1973 in Civil Suit No.11-B/52 from the court of Civil Judge, Kheri. He executed a registered sale deed of the plot no.68/4.43 acres in favour of the petitioner on 06.12.1983. The application under Section 11(2) of the Ceiling Act was filed on the ground that the petitioner is a tenure holder/bhumidhar of the land in dispute situated in village Bhansariya, Pargana-Kheri, Tehsil-Lakhimpur, District-Kheri on the basis of a registered sale deed. The land in dispute has wrongly been included in the holdings of the other co-tenure holders and declared surplus which could not have been done. An objection was filed by the State opposing the application on the ground that the sale deed was executed during ceiling proceedings because the Ceiling proceedings under Section 10 (2) of the Ceiling Act were pending since 1981 and decided on 28.02.1986, therefore it was not valid as such the application was liable to be dismissed. Considering the same the application was dismissed by means of the order dated 27.10.1989. The petitioners preferred four appeals under Section 13 of the Ceiling Act before the opposite party no.2. All the four appeals were dismissed by a common judgment and order dated 30.01.1991. Hence the present four writ petitions have been filed. Considering the same the application was dismissed by means of the order dated 27.10.1989. The petitioners preferred four appeals under Section 13 of the Ceiling Act before the opposite party no.2. All the four appeals were dismissed by a common judgment and order dated 30.01.1991. Hence the present four writ petitions have been filed. 4. The writ petitions have been contested by the respondent-State by filing the counter affidavits and supplementary counter affidavits, to which the rejoinder affidavit was filed by the petitioners. To which supplementary counter affidavit was filed, but no response to that has been filed. 5. The sole argument advanced by learned counsel for the petitioner was that the sale deed executed during the ceiling proceedings is not void, however it can be ignored for the purpose of Ceiling Act. But on the choice, under Section 12-A proviso (d) of the Ceiling Act, given on behalf of the transferrer was liable to be considered and the land of petitioner should have been excluded in lieu of other land of transferrer but it has not been considered and wrongly ignored on the ground that the right of choice has already been exercised by the transferrer. Therefore the impugned orders are not sustainable in the eyes of law and liable to be quashed with a direction to the Prescribed Authority to accept the choice of the transferrer and take his another land in place of the land of the petitioner. Learned counsel for the petitioner relied on Mohd. Hayat Khan (Minor) Versus State of U.P. and others; 1991 (9) LCD 395, Raja Yuveraj Datt Singh Versus Prescribed Authority and others (F.B., L.B.); 1968 RD 171, Mohd. Muste Hassan and others Versus The Addl. Commissioner, Meerut and others; 1995 RD186, Jogendra Singh and others Versus State of U.P. and others; 1983 All.L.J.1297, Smt. Prema Devi Versus A.D.J, Hamirpur and another; 2005(2) AWC 1411 , Deo Singh and others Versus Addl. Muste Hassan and others Versus The Addl. Commissioner, Meerut and others; 1995 RD186, Jogendra Singh and others Versus State of U.P. and others; 1983 All.L.J.1297, Smt. Prema Devi Versus A.D.J, Hamirpur and another; 2005(2) AWC 1411 , Deo Singh and others Versus Addl. Commissioner, Jhansi and others; 2004 (96) RD 228, Chaudhary Mohammad Mumtaz Husain Versus SDO/Press Authority and others; 1988 (6) LCD 374, Smt. Kamlesh Kumari Versus State of U.P. and others; 1981 All.L.J. 1139, Nakchhed Singh Versus State of U.P. and others; 1978 All.L.J. 776, Ravindra Singh Versus Phool Singh and another; (1995) 1 SCC 251 , Ghasi Ram and others Versus Prescribed Authority and others; 1988 RD 314 and Smt. Ram Kali Versus State of U.P. and others; 1982 All.L.J. 134. 6. Learned Additional Chief Standing Counsel vehemently opposed the submissions of learned counsel for the petitioner. He had submitted that the sale deed executed during the ceiling proceedings is void under Section 5(8) of the Ceiling Act and it cannot be legalized. He further submitted that the choice once exercised cannot be again exercised. He had also submitted that the transferee cannot exercise the choice because the choice was already exercised by the transferrer on the basis of which the land of the petitioner was declared surplus. He had also submitted that the possession of the land in dispute was taken on 13.12.1986. There is no illegality or error in the impugned orders. The writ petitions are misconceived and lacks merit, therefore liable to be dismissed. Learned Additional Chief Standing counsel had relied on Rajendra Singh and others Versus State of U.P. and others; 1999 (1) AWC 188 (SC) and Sanjay Kumar and another Versus State of U.P. and others; 1995 RD 478 (SC). 7. I have considered the submissions of learned counsel for the parties and perused the records. 8. The ceiling proceedings under Section 10(2) of the Ceiling Act were started against the original tenure holders in the year 1981 and the order was passed on 28.02.1986 declaring the surplus land, which was the land, sold by Kunwar Yudhendra Bahadur Singh to the petitioner by means of the registered sale deed executed on 06.12.1983 i.e. during the ceiling proceedings. The possession was taken by the State Government on 13.12.1986 as per statement of Lekhpal and the documents filed before the prescribed authority, which is recorded in the order. The possession was taken by the State Government on 13.12.1986 as per statement of Lekhpal and the documents filed before the prescribed authority, which is recorded in the order. The dispute relates to plot no.68 situated in village-Bhansariya, Pargana-Kheri, Tehsil-Lakhimpur, district-Kheri. The applications under Section 11(2) of the Ceiling Act was filed by the petitioner on 20.12.1986 on the ground that the petitioner had purchased the land in dispute through registered sale deed. Therefore it could not have been declared as surplus land. Four cases were registered. The case was contested by the State on the grounds that the sale deed was void under Section 5(8) of the Ceiling Act, the sale deed was also defective and not admissible because the trees on the plot were not included and there was deficiency of Stamp duty, the compromise decree was made after the 24.01.1971 therefore it was ignored and in Gata No.68 on area 4.43 acre other co-tenure holders had also share. The written statement was filed by the Power of Attorney holder of Kunwar Yudhendra Bahadur Singh stating therein that order in regard to grove may be cancelled and in lieu thereof other grove may be declared surplus. But the same has not been accepted by the Prescribed Authority on the ground that the land in dispute has been declared surplus as per option exercised by the original tenure holder. Being aggrieved the appeal was filed by the petitioner, which has also been dismissed. 9. The ceiling area has been declared following the provisions under Section 5(6) of the Ceiling Act, as per option of the original tenure holders under Section 12-A proviso (d) of the Ceiling Act. Section 5(6) and Section 12-A proviso (d) of the Ceiling Act are extracted below :- "Section 5 -Imposition of ceiling (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 through-out Uttar Pradesh, any land in excess of the ceiling area applicable to him. ....................................................................................................... ....................................................................................................... (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. "Section 12A In determining the surplus land under Section 11 or Section 12, 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 : Provided that-- (a) the Prescribed Authority shall have regard to the compactness of the land to be included in the ceiling area applicable to the tenure-holder; (b) where the tenure-holder's wife holds any land which is aggregated with the land held by the tenure-holder for purposes of determination of the ceiling area, and his wife has not consented to the choice indicated by the tenure-holder as to the plot or plots to be retained as part of the ceiling area applicable to them, then the Prescribed Authority shall, as far as possible, declare the surplus land in such manner that the area taken out of the land held by the tenure-holder's wife bears to the total surplus area the same proportion as the area originally held by her bore to the total land held by the family; (c) where any person holds land in excess of the ceiling area including any land mortgaged to the State Government or to a [bank as defined in clause (c) of Section 2 of the Uttar Pradesh Agricultural Credit Act, 1973] or to a co-operative land development bank or other co-operative society or to the Corporation or to a Government Company, the surplus land to be determined shall, as far as possible, be land other than that so mortgaged; (d) where any person holds land in excess of the ceiling area 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 [amount] payable to the transferor under Section 17 and also on any land retained by the transferrer 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) any party to the partition (other than the tenure-holder in respect of whom the surplus land has been determined) whose land is included in surplus land of the said tenure-holder shall be entitled to have the partition re-opened." 10. The sale deed of the land in dispute was executed in favour of the petitioner on 06.12.1983 during pendency of the ceiling proceedings against the original tenure holders. Sub-section (8) of Section 5 provides that 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. Section 5(8) is extracted below:- "Section 5 (8) Notwithstanding anything contained in Subsections (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 purposes of this sub-section, proceedings for, determination of surplus land shall be deemed to have commenced on the date of publication of notice under Sub-section (2) of Section 9 and shall be deemed to have concluded on the date when an order in relation to such tenure-holder is passed under Sub-section (1) of Section 11 or under Sub-section (1) of Section 12, or as the case may be, under Section 13." 11. This amendment has been incorporated by way of U.P. Act No.20 of 1976 (w.e.f.10.10.1975). The combined reading of the aforesaid provisions shows that in determining the ceiling area applicable to a tenure holder any transfer of land made after 24.01.1971 and during the continuance of the ceiling proceedings shall be ignored and such transferred land shall be included in the holding of the transferrer for the purposes of Ceiling Act and declaring surplus land. Thereafter while determining the surplus area a tenure holder may exercise choice and the Prescribed Authority shall as far as possible accept the choice. If however surrender of surplus land by tenure holder is not possible or feasible without including the transferred land then the Prescribed Authority will accept such surrender and in such an event the transfer of such land shall be deemed to be null and void and the transferee is entitled to compensation and other rights as are provided under sub clause (i) of clause (d) of the Proviso to Section 12-A. 12. It is fortified by the judgment of Hon'ble Supreme Court in the case of Ravindra Singh Versus Phool Singh and another; (1995) (1) SCC 251. The relevant paragraph 6 is extracted below:- "6. It is fortified by the judgment of Hon'ble Supreme Court in the case of Ravindra Singh Versus Phool Singh and another; (1995) (1) SCC 251. The relevant paragraph 6 is extracted below:- "6. A combined reading of sub-section (6) of Section 5 and clause (d) of the proviso to Section 12-A yields the following position (insofar as it is relevant for the purpose of this appeal): (a) In determining the ceiling area applicable to a tenure-holder, any transfer of land made after 24-1-1971 shall be ignored and such transferred land shall be included in the holding of the transferor except where such transfer is saved by the proviso to sub-section (6) of Section 5; (b) In the matter of surrender, however, the Prescribed Authority is entitled to insist that the tenure-holder surrender land which is not the subject-matter of transfer referred to in Section 5(6); (c) If, however, surrender of surplus land by the tenure-holder is not possible or feasible without including the transferred land, then the Prescribed Authority will accept such surrender, in which event transfer of such land shall be deemed to be null and void; (d) Where the Prescribed Authority accepts the surrender of transferred land, the transferee is entitled to compensation and other rights as are provided in sub-clause (1) of clause (d) of the proviso to Section 12-A. The object of the above provisions is quite clear and consistent. Any transfer effected after 24-1-1971 shall be ignored for the purpose of determining the ceiling area of the tenure-holder, but in the matter of surrender, the Government does not want, as far as possible, to accept surrender of transferred land. This may be for the reason that acceptance of surrender of transferred land is likely to lead to complications and disputes; the Government wants to accept the surrender of lands which are free of any such controversy. But if that does not prove possible, the Government will accept the surrender of transferred land even, in which event the transfer of such land shall be treated as null and void so as to vest clear title in the Government. The transferee of a land so surrendered is entitled to claim the compensation money and other rights mentioned in sub-clause (i) of clause (d)." 13. The transferee of a land so surrendered is entitled to claim the compensation money and other rights mentioned in sub-clause (i) of clause (d)." 13. Similar view has been taken by the Hon'ble Supreme Court in the case of Smt. Kamlesh Kumari Versus State of U.P. and others; (1982) 3 SCC 315 by a short order, which reads as under:- "The short point taken by Mr Ashoke Sen in support of the petition is that even assuming that the finding of the prescribed authority that the transfer was not bona fide is correct, the prescribed authority was in error in not excluding the land said to have been transferred from the surplus area. The land which was the subject-matter of transfer was covered by Plot 460. The contention is well-founded and must prevail. In these circumstances, we set aside the judgment of the High Court and that of the prescribed authority and remit the case to the prescribed authority to decide the surplus land in accordance with Section 12-A(d) of the Act by excluding the area which was the subject of transfer as far as possible. 2. The appeal is disposed of accordingly." 14. Similar view has been taken by this court in the case of Mohd.Hayat Khan (minor) Versus State of U.P. and others; 1991 (9) LCD 396, Mohd.Muste Hassan and others Versus The Addl. Commissioner, Meerut and others; 1995 RD 186, Jogendra Singh and others Versus State of U.P. and others; 1983 All.L.J.1297, Chaudhary Mohammadn Mumtaz Husain Versus SDO/Press Authority and others; 1988(6) LCD 374 and Nakchhed Singh Versus State of U.P. and others; 1978 All.L.J.776. 15. In the case of Sanjay Kumar and another Versus State of U.P. and others; 1995 RD 478 , the Hon'ble Supreme Court considered the question as to whether voluntary transfers such as a court sale, is a transaction valid under the provisions of sub-section (6) and (8) of Section 5 of the Ceiling Act and to be reckoned in decreasing the surplus area and the Hon'ble Supreme court concluded to say that the sales voluntary or involuntary are required to pass the test of being bona fide sales and for adequate consideration so as to be excluded from being computed in the surplus area of the tenure holder and are to be treated as void when taking place during continuance of surplus area proceedings. 16. 16. The Hon'ble Supreme Court in the case of Rajendra Singh and others Versus State of U.P. and others; 1999(1) AWC 188 (SC) has held that the prohibition contained in sub-Section (8) of Section 5 of the Ceiling Act is absolute, therefore the sale deeds executed in violation thereof to be treated to be part of the land held by the tenure holder and it would be within the exclusive jurisdiction of the Prescribed Authority to take or carve out the surplus area from any land of tenure holder. 17. In view of above, it is settled that the sale deed executed during pendency of the Ceiling proceedings would be ignored and the transferred land shall be included in the holding of the transferee i.e. the original tenure holder. However, in view of the judgment of the Hon'ble Supreme Court in the Case of Ravindra Singh Versus Phool Singh and another; (1995) (1) SCC 251, the Prescribed Authority is entitled to accept the surrender of land which is not the subject matter of transfer in lieu thereof and if not possible the transferee is entitled to compensation and other rights as are provided in sub clause (i) of clause (d) of proviso to Section 12-A. 18. A Full Bench of this court in the case of Raja Yuveraj Datt Singh Versus Prescribed Authority and others; 1968 RD 171, has held that clearly the scheme of the Act is that the tenure holder remains the owner (Bhumidhar) of the entire land held by him retaining with him the entire bundle of rights until a notification is issued under Section 14 of the Act and the rights, title and interest of the tenure holder even in respect of the surplus land stand extinguished only from the date of the notification under Section 14 of the Act. It has also held that the Prescribed Authority has no authority to deal with the rights of the transferees. It had to treat the transfers a nullity. 19. It has also held that the Prescribed Authority has no authority to deal with the rights of the transferees. It had to treat the transfers a nullity. 19. This court, in the case of Smt. Prema Devi Versus A.J.D., Hamirpur and anther; 2005(2) AWC 1411 , has held that the rights conferred upon the tenure holder of making a choice by enacting part of Section 12-A has to be balanced with the right of a transferee to seek exclusion of the plots purchased by him for a valuable consideration from the surplus land in case plots other than those purchased by him are available for being declared surplus. Only such a construction of Section 12A of the Act will further the object of Clause (d) of proviso to the said section and any other construction will make it redundant. Thus the normal rules is that the land forming subject matter of transfer shall not be included in the surplus land unless the tenure holder is left with no other land or the area available with him falls short of area declared surplus. 20. This court, in the case of Smt. Ram Kali Versus State of U.P. and others; 1982 All. L.J. 134, has held that the Prescribed Authority and the Appellate Court did not have valid or sufficient grounds for rejecting the revised choice indicated by the petitioner because the choice can be revised till such time his rights stand extinguished under Section 14 of the Act. The relevant paragraph 5 is extracted below:- "The second reason, which the Prescribed Authority gave, was that in the revised choice certain plots were sought to be declared as surplus which stood transferred after 8-6-1973. The appellant Court itself has held that the said ground was not valid or good ground. In my view, the Prescribed Authority and the appellate Court did not have valid or sufficient grounds for rejecting the revised choice indicated by the petitioner. There is a uniform case law of this Court on the point that the petitioner can revise his choice till such time as her rights stand extinguished under S.14 of the Act. In the instant case, from the record it is clear that the Prescribed Authority held that the so-called dispossession of the petitioner on 8-4-1977 was illegal. There is a uniform case law of this Court on the point that the petitioner can revise his choice till such time as her rights stand extinguished under S.14 of the Act. In the instant case, from the record it is clear that the Prescribed Authority held that the so-called dispossession of the petitioner on 8-4-1977 was illegal. In this view of the matter, it has to be held that there was o extinction of the interest of the petitioner when she moved the application dated 6-9-1979, and, therefore, there was no good ground for rejecting the prayer made in the said application." 21. Adverting to the facts of the present case and upon consideration in the light of above this court finds that the Prescribed Authority has recorded a categorical finding that on perusal of files of proceedings under Section 10(2) of Ceiling Act, it is apparent that 0.83 dic. of plot No.68 has been declared surplus from the holding of Kunwar Gokhale Bahadur Singh and 1.86 acre was given to other two co-tenure holders as their Ceiling area. It has also come in the appellate order that 0.83 acre of plot no.68 of Smt.Raj Kumari Ranja Devi was declared surplus. Therefore the dispute relates to 2.77 acre area. Whereas it has been claimed by the petitioner that Kunwar Yudhendra Bahadur Singh had executed the registered sale deed of 4.43 acre of plot no.68 in favour of petitioner on 06.12.1983, which was during pendency of Ceiling proceedings against him. Therefore the said land was to be treated as of transferrer for the purpose of Ceiling proceedings ignoring the sale deed in view of Section 5(8) as it was void. As claimed the land in dispute had come to Kunwar Yudhendra Bahadur Singh on the basis of a compromise decree dated 07.04.1973 passed by Civil Judge, Kheri, whereas such transfer was to be ignored under Section 5(6) of the Ceiling Act. Accordingly the land in dispute has rightly and in accordance with law was not treated as exclusive of Kunar Yudhendra Bahadur Singh. It was dealt with accordingly treating it to be of all the four tenure holders and it appears the same has not been challenged by anybody because nothing was brought before this court in this regard. 22. Accordingly the land in dispute has rightly and in accordance with law was not treated as exclusive of Kunar Yudhendra Bahadur Singh. It was dealt with accordingly treating it to be of all the four tenure holders and it appears the same has not been challenged by anybody because nothing was brought before this court in this regard. 22. The sale deed executed in favour of the petitioner has also not been found bona fide by the court's below on the ground that there was a grove on the land in dispute but the sale of only land was made, whereas both should have been sold, accordingly there was a deficiency of stamps of Rs.40,000/-. It seems to be correct because certified copy of the written statement filed by the Power of Attorney holder before the Prescribed Authority, which has been filed with supplementary affidavit dated 30.01.2013 by the petitioner. It has been disclosed in the written statement that Kunwar Yudhendra Bahadur Singh had got the disputed grove in partition in the suit, which was pending in the court of Civil Judge w.e.f. 24.01.1971 to 08.07.1973. It was further stated that the said grove may be included in his ceiling area and the notice may be cancelled and if it is not possible another grove of answering respondent may be kept in his ceiling area. Therefore the sale deed was not bonafide and the partition on the basis of compromise was made in a proceeding which had started on the cut of date i.e. 24.01.1971. Therefore apparently the whole exercise was done in a fraudulent manner to save the land from the provisions of Ceiling Act, which was not permissible and against the aims and objects of the Ceiling Act. 23. In view of above, the contention of learned counsel for the petitioner is misconceived and not tenable. The land of other co tenure holders was also included and declared surplus or given to them in the land in dispute. The land in dispute was declared surplus on the option of tenure holders. Therefore the vague revised option of Power of Attorney holder of only one of them that too without specification was not valid and acceptable in the facts and circumstances of case. Therefore it has rightly not been accepted. 24. The land in dispute was declared surplus on the option of tenure holders. Therefore the vague revised option of Power of Attorney holder of only one of them that too without specification was not valid and acceptable in the facts and circumstances of case. Therefore it has rightly not been accepted. 24. Thus the impugned orders have rightly been passed in accordance with law by reasoned and speaking orders, this court does not find any illegality or error in the impugned orders, which may call for any interference by this court. The writ petitions are misconceived and lacks merit. 25. The writ petitions Misc. Single No.808 of 1991, Misc. Single No.807 of 1991, Misc. Single No.809 of 1991 and Misc. Single No.810 of 1991 are, accordingly, dismissed. No order as to costs.