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2024 DIGILAW 1730 (ALL)

Bhukhal v. Commissioner Gorakhpur

2024-07-24

CHANDRA KUMAR RAI

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JUDGMENT : HON'BLE CHANDRA KUMAR RAI 1. Heard Sri Satyendra Pratap Singh, learned counsel for the petitioner and Sri Krishna Mohan Mishra, learned counsel for the State. 2. Brief facts of the case are that plot no. 156 area 0.50 Dismal situated in village Ahirauli Rai, Tappa Parwarpar, Pargana Sidhuwa Jobna, Tehsil Kasya, District-Deoria at present District Kushinagar was purchased by the petitioner by way of a registered sale deed executed in his favour on 10.03.1960. In proceeding under Section 10 (2) of Uttar Pradesh Imposition of Ceiling on Land Holdings Act 1960 hereinafter to referred as Ceiling Act, the aforementioned plot no. 156 was declared as surplus vide order dated 19.02.1990 without any notice to petitioner accordingly petitioner filed an objection under Section 11 (2) of the Ceiling Act stating that petitioner had purchased the plot in question by way of registered sale deed from the then recorded tenure holder Laxmi Pratap Narayan Singh, but without any notice and opportunity to petitioner, the plot in question has been declared as surplus. State has filed his reply in the aforementioned proceeding under Section 11 (2) of the Ceiling Act. The Prescribed Authority vide order dated 03.05.1994 allowed the objection of the petitioner under Section 11 (2) of the Ceiling Act and separated the plot no. 156 area 0.50 Dismil from the Ceiling proceedings. Against the said order dated 03.05.1994, State filed an appeal before Commissioner along with the prayer for condonation of delay of five years. The aforementioned appeal was registered as appeal no. 1/K of 1999. The Commissioner vide order dated 31.05.2022 allowed the appeal, set aside the order of the Prescribed Authority dated 03.05.1994 and remanded the matter before the Prescribed Authority for fresh decision of the dispute under Section 11 (2) of the Ceiling Act after affording opportunity of hearing to both the parties. Hence, the present petition on behalf of petitioner for the following reliefs:- i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.05.2002. ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to dispossess the petitioner from the land in dispute in pursuant to order dated 31.05.2002. iii) issue any other and further suitable order or direction in the nature which this Hon'ble Court may deem fit and proper in the circumstances of the case. ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to dispossess the petitioner from the land in dispute in pursuant to order dated 31.05.2002. iii) issue any other and further suitable order or direction in the nature which this Hon'ble Court may deem fit and proper in the circumstances of the case. iv) award cost of the writ petition to the petitioner. 3. This Court entertained the matter on 05.08.2002 and stayed the operation of the order dated 03.05.2002. 4. In pursuance of the order dated 05.08.2002 the State has filed Counter affidavit and petitioner has filed his rejoinder affidavit. 5. Learned counsel for the petitioner submitted that the objection under Section 11 (2) of the Ceiling Act filed by the petitioner on the basis of registered sale deed executed on 10.03.1960 in his favour was allowed after giving proper opportunity to the State, as such the order passed by the Prescribed Authority under Section 11 (2) of the Ceiling Act can not be set aside in appeal filed by the State after five years from the date of judgment of the Prescribed Authority. He further submitted that the appellate Court after granting benefit of Section 5 of Limitation Act, allowed the appeal setting aside the order of Prescribed Authority and remanded the matter back to the Prescribed Authority for fresh decision of objection, which is abuse of process of law. He next submitted that the sale deed executed in favour of the petitioner has not been cancelled, as such the order passed under Section 11 (2) of the Ceiling Act can not be set aside in appeal filed by the State. He further submitted that in respect to the remaining area of the same plot, another sale deed was executed by the then recorded owner Laxmi Pratap Narayan Singh in favour of one Jagar Nath and Others and under similar circumstances his appeal was allowed by the Commissioner, as such the claim of the petitioner can not be refused by the Ceiling Authorities. He submitted that under the impugned appellate order dated 31.05.2002 the matter has been again remanded before the Prescribed Authority for fresh decision, which is illegal, as such the same is liable to be set aside and the order passed by the Prescribed Authority deserves to be maintained. 6. He submitted that under the impugned appellate order dated 31.05.2002 the matter has been again remanded before the Prescribed Authority for fresh decision, which is illegal, as such the same is liable to be set aside and the order passed by the Prescribed Authority deserves to be maintained. 6. On the other hand, Sri Krishna Mohan Mishra, learned Additional Chief Standing Counsel, submitted that the objection under Section 11 (2) of the Ceiling Act filed by the petitioner has been allowed in arbitrary manner, as such the said order has rightly been set aside in appeal filed by State. He next submitted that petitioner has not taken any steps to get his name recorded in the revenue record on the basis of the sale deed executed on 10.03.1960, as such the sale deed relied upon by the petitioner can not be taken into consideration. He next submitted that by the appellate order the matter has been remanded back to the Prescribed Authority for fresh decision of the dispute, as such no interference is required in the matter. He further submitted that there was a delay in filing the appeal before the Commissioner, which has been properly explained in the affidavit filed in support of the appeal, accordingly the delay was rightly condoned by the appellate Court. He next submitted that no interference is required in the matter and the petition is liable to be dismissed. 7. I have considered the arguments advanced by the Counsel for the parties and the perused the record. 8. There is no dispute about the fact that objection under Section 11 (2) of the Ceiling Act filed by the petitioner was allowed by the Prescribed Authority, vide order dated 03.05.1994, and plot no. 156 area 0.5 Dismil was separated from the Ceiling proceedings. There is also no dispute about the fact that on a time-barred appeal filed by the State against the order dated 03.05.1994, the matter was remanded back before the Prescribed Authority for fresh decision of the objection filed under Section 11 (2) of the Ceiling Act. 9. In order to appreciate the controversy involved in the matter perusal of Section 5 (1) Explanation I & II of the Ceiling Act as well as Section 11 (2) of the Ceiling Act will be relevant, which are as under:- Section 5 :- Imposition of Ceiling. 9. In order to appreciate the controversy involved in the matter perusal of Section 5 (1) Explanation I & II of the Ceiling Act as well as Section 11 (2) of the Ceiling Act will be relevant, which are as under:- 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. [Explanation I. - In determining the ceiling area applicable to a tenure-holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account. Explanation II. - [If on or before January 24,1971, any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual 5 register after the said date] either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person.] Section 11(2)- The Prescribed Authority shall, on application made within thirty days, from the date of the order under sub-section (1) by a tenure holder aggrieved by such order passed in his absence and on sufficient cause being shown for his absence, set aside the order and allow such tenure-holder to file objection against the statement prepared under Section 10 and proceed to decide the same in accordance with the provisions of Section 12. 10. Perusal of the aforementioned provision clearly demonstrates that the sale deed executed before 24.01.1971 can not be ignored by the Ceiling Authorities. 11. Perusal of relevant portion of finding of fact recorded by prescribed Authority will be relevant which is as under:- 12. 10. Perusal of the aforementioned provision clearly demonstrates that the sale deed executed before 24.01.1971 can not be ignored by the Ceiling Authorities. 11. Perusal of relevant portion of finding of fact recorded by prescribed Authority will be relevant which is as under:- 12. The objection under Section 11 (2) of the Ceiling Act filed by the petitioner on the basis of registered sale deed executed in his favour before the relevant date was allowed after hearing the objector as well as the State, as such the order of prescribed Authority dated 03.05.1994 can not be set aside in appeal unless there is sufficient ground for setting aside the order of prescribed authority. The appeal filed by the State after five years from the date of judgment passed by the Prescribed Authority under Section 11 (2) of the Ceiling Act has been allowed by Appellate Court and the matter has been remanded back before the prescribed Authority for fresh consideration, which is abuse of process of law, as the Prescribed Authority has already decided the objection of the petitioner on merit taking into consideration the sale deed executed in year 1960, which has yet not been cancelled. It is also material that appeal filed in similar situation on the basis of the sale deed executed by the then recorded tenure holder Laxmi Pratap Narayan Singh in favour of another person in respect to the remaining area of the same plot has been allowed by the Commissioner. 13. Hon'ble Apex Court in the case reported in 1994 (Supp3) SCC 702 Ramadhar Singh Versus prescribed Authority and Others has held that sale-deed executed prior to 24.01.1971 can not be ignored. Paragraph no. 2 of the judgment rendered in Ramadhar Singh (Supra) will be relevant for perusal, which is as under:- 2. "It has to be seen under what provision of the Act can the validity of the sale executed prior to January 24, 1971, the appointed day, be gone into? Sub-section (6) of Section 5 of the said Act says that in determining the ceiling area applicable to a tenure-holder, any transfer of land made after the 24th days of January, 1971, which but for the transfer would have been declared as surplus land under the Act shall be ignored and not taken into account. Sub-section (6) of Section 5 of the said Act says that in determining the ceiling area applicable to a tenure-holder, any transfer of land made after the 24th days of January, 1971, which but for the transfer would have been declared as surplus land under the Act shall be ignored and not taken into account. The proviso (b) thereto, inter alia, provides that a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and an irrevocable instrument, not being of benami transaction or for immediate or deferred benefit for the tenure-holder or other members of the family, is outside the scope of the aforesaid sub-section. Thereafter explanation II provides that the burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit. Apparently, it is under this provision of law that the validity of the sale deed dated April 22, 1969 was put to test. The authorities under the Act took the view that the sale deed was not genuine because no consideration appears to have passed before the Sub-Registrar and that it was a transfer between father and son raising a dust of suspicion. Otherwise it was not disputed on fact that the sale had been effected by means of a registered deed in which the passing of consideration was mentioned as a recital. The existence of the sale deed being not disputed and it having taken place, as said before, on February 24, 1969, prior to the appointed day that is January 24, 1971, the inquiry regarding the validity of the sale deed under subsection (6) of Section 5 was totally misplaced. Thereunder, as it appears to us, the appropriate authority had no jurisdiction to be put the validity of the sale deed to test since his jurisdiction arose only when the deed of transfer had been effected on or after the appointed day. Not only the first and the appellate authority under the Act persisted in that view, but the High Court too proceeded on that basis. Not only the first and the appellate authority under the Act persisted in that view, but the High Court too proceeded on that basis. The effort of the appellant to have it declared that the authorities had no jurisdiction to invalidate the sale under sub-section (6) of Section 5 when read with Explanation II to sub-section (1) of Section 5 also was a futile attempt because the High Court followed the path, as did the authorities under the Act, and rejected the writ petition. We are of the view that this was a wholly erroneous approach. Sub-section (6) of Section 5 did not confer jurisdiction on the authorities to determine the validity of the sale and if that is so any finding of theirs as to the contents of the sale is of no assistance. In the result the appeal must succeed. Accordingly, allowing the same we set aside all the orders of the authorities below as also that of the High Court.” 14. Considering the findings recorded by the Prescribed Authority under Section 11 (2) Ceiling Act while allowing the objection filed by the petitioner, there was no occasion for the Commissioner to allow the appeal filed by the State and remand the matter back before Prescribed Authority for fresh consideration of the objection. The remand order passed by the Commissioner in appeal is nothing, but abuse of the process of law. 15. Considering the entire facts and circumstances of the case as well as ratio of law laid down by Hon'ble Apex Court in Ramadhar Singh (Supra) the impugned appellate order dated 31.05.2022 is hereby set aside and order of the Prescribed Authority dated 03.05.1994 is affirmed. 16. The writ petition stands allowed. 17. No order as to costs.