Ravindra
Singh Vs. Phool Singh [1994] INSC 593 (21 November 1994)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Sen, S.C. (J)
CITATION:
1995 SCC (1) 251 JT 1994 (7) 503 1994 SCALE (4)1007
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- Leave granted.
2.
Heard the counsel for both the parties.
3.
Respondent Phool Singh filed a declaration of his agricultural holding as
required by and under the U.R Imposition of Ceiling on Land Holdings Act, 1960.
After an appropriate inquiry, the Prescribed Authority determined his holding.
According to the said determination, he was holding surplus land to the extent
of 8.26 acres of irrigated land. While determining his, holding, it is
necessary to mention, the lands transferred by him in favour of the appellant Ravindra
Singh and his wife Smt Kamla Devi under sale deeds dated 2-9-1975 (in respect
of 6 acres 66 decimals of land) and dated 3-9-1975 (in respect of 6 acres 67
decimals of land) were included in his holding, inasmuch as the said sale deeds
were subsequent to 24-1-197 1. This was done following the provision in
sub-section (6) of Section 5 of the Act, which reads as follows:
"(6)
In determining the ceiling area applicable to a tenure- holder, any transfer of
land made after the twenty-fourth day of January, 197 1, which 253 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
1.-For the purposes of this sub-section, the expression transfer of land made
after the twenty-fourth day of January, 197 1, 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, acknowledgement, 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
11.- The burden of proving that a case falls within clause (b) of the proviso
shall rest with the party claiming its benefit." 4.When the stage of
surrender of surplus land arrived, respondent Phool Singh sought to surrender
land which was transferred in favour of the appellant and his wife, to which
the Prescribed Authority did not agree oil the ground that it was a transferred
land. Against the said non- acceptance of land surrendered by him, Phool Singh
filed a writ petition in the Allahabad High Court which was dismissed oil 26-3-1979. Phool Singh carried the matter to this Court by way
of SLP No. 4975 of 1979 which was dismissed by this Court oil 7-5-1981 under the following order:
"Special
leave petition dismissed but the petitioner will be entitled to choice in
respect of plots forming the subject- matter of the sale deed." Treating
the aforesaid order of this Court as an authority entitling him to surrender
land of his choice, Phool Singh wanted the Authorities to accept the surrender
of the land transferred in favour of the appellant and his wife. The Authority
accepted the said surrender overruling the objections of the appellant. An
appeal preferred by the appellant was dismissed by the Additional Commissioner
and a writ petition filed by him in the Allahabad High Court (CMWP No. 9302 of
1986) was also dismissed.
5.In
this appeal tile learned counsel for the appellant relies upon the provisions
contained in clause (d) of the proviso to Section 12-A of the Act. Section 12-A
reads as follows:
254
"12-A.
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 then
under tile provisions of this Act, whether indicated by him in his statement
under Section 9 or in any subsequent proceeding:
Provided
that-
(a) the
Prescribed Authority shall have regard to the compactness of the landto 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 tile 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
cooperative land development bank or other cooperative 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 ill 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, tile transfer or partition shall, insofar 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 tile 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 transferor 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 255 is included in surplus land of
the said tenure-holder, shall be entitled to have the partition reopened."
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
subsection (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 ill
Sub-clause (1) of clause (co 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. Tills 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 ill 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
7. In
the light of the above provisions, the Authorities ought to have examined the
offer of Surrender made by the respondent, Phool Singh in accordance therewith.
He Must be asked to Surrender lands which are not the subject-matter of
transfer. Only where the Prescribed Authority is satisfied that surrender of
surplus land is not possible without including the transferred land, will he
accept the surrender of transferred land, to the extent necessary-with the
necessary consequences flowing therefrom. The High Court and Authorities under
the Act, however, have not followed this course because they felt that the
order of this Court dated 7-5-1981
entities the respondent Phool Singh to surrender such land as he chooses. We
are of the opinion that they were not right in construing this Court's order in
the above 256 manner. Firstly, the appellant herein was not heard (he says that
he was not even a party to the said SLP) before passing such order. Secondly,
the said order cannot be understood as laying down a proposition contrary to
law.
All
that it says is that the petitioner therein, i.e., respondent Phool Singh
"will be entitled to choice in respect of plots forming the subject-matter
of the sale deed". The said words are not capable of being construed as authorising
Phool Singh to surrender the transferred land even if he is in a position to
comply with the requirement of surrender of surplus land without touching the
transferred land. To repeat, the order of this Court cannot and should not be
construed in a manner inconsistent with the provisions of the Act. This Court
could not have contemplated passing an order contrary to the provisions of the
Act or to authorise the respondent Phool Singh to surrender surplus land
contrary to the provisions of the Act. We are, therefore, of the opinion that
the said order of this Court is not capable of nor can it be construed as
over-riding or Superseding the provisions of the Act. The choice referred to in
the order of this Court is the choice referred to in Section 12-A(d) and not
independent of it.
8.The
view taken by us is supported by an order of this Court in Kamlesh Kumari v.
State of U.P I It is a short order and it reads thus:
"The
short point taken by Mr Ashok 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 No. 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.
Order
accordingly." 9.For the above reasons, the appeal is allowed, the orders
impugned herein are set aside, and the Prescribed Authority is directed to
consider the respondent Phool Singh's proposal to surrender surplus land in
accordance with Section 12-A of the Act and in the light of this judgment.
A
decision in that behalf shall be taken as expeditiously as possible having
regard to the fact that this matter has been pending over a long number of
years. No costs.
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