Shri Raghubir
Singh & Ors . Vs. State of U.P. & Ors [1996] INSC 562 (17 April 1996)
Ramaswamy,
K.Ramaswamy, K.Bharucha S.P. (J)
CITATION:
1996 AIR 2058 JT 1996 (5) 240 1996 SCALE (4)169
ACT:
HEAD NOTE:
O R D
E R
This
appeal arises from the judgment of the High Court of Allahabad dated September 14, 1984 in which, upon a writ petition, it
set aside the order of the First Additional District Judge, Nainital in a
Ceiling Appeal.
The
third respondent was the tenure-holder of agricultural land situated in Village
Gumsani and Village Bichpuri. She transferred 64 bighas of the land in Village Gumsani
to appellant Nos.1 to 3 by a registered sale deed dated 10th May, 1974. On the same date, she transferred
64 bighas of the land in Village Bichpuri to the fourth appellant. In response
to a notice under Section 10(2) of the U.P. Imposition of Ceiling on Land
Holdings Act, 1960, [hereinafter referred to as the 'Act'] the third respondent
filed objections. The appellants sought to be made parties thereto and were impleaded.
The prescribed authority did not accept as valid the transfers made by the
third respondent in favour of the appellants, as aforesaid, and appeals were
filed from his order. It is enough to state that the appeals were dismissed all
the way and upon special leave petition filed by the appellants before this
Court, the following order was passed:- "Upon hearing counsel, the Court
dismissed the Special Leave Petition. But so far as the surplus land to be
surrendered is concerned, the Prescribed Authority shall decide as to which
land should be required to be surrendered, after hearing the tenure holder Smt.
Mohinder Kaur as a transferee and Gurdev Singh's Legal Representative and in
accordance with the Section 12(A) of the imposition of ceiling of Land Holding
Act 1960, as also the agreement dated 16.1.1974 and the sale deed between the
tenure holder Smt. Mohinder Kaur and Gurdev Singh relating to the transferee of
the land." The third respondent thereupon elected to surrender the land
which had been transferred by her to the appellants.
The
appellants objected, but the prescribed authority overruled the same. The
Ceiling Appeal was filed which was allowed by the Additional District Judge.
Against his order, the third respondent filed the writ petition upon which the
order under appeal was passed.
Learned
counsel for the appellants drew our attention to the terms of the order of this
Court aforequoted and the provisions of Section 12-A of the said Act. The
relevant provisions, upon which emphasis was laid, read thus:
"S.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 them under the provisions of this Act, whether indicated by him in his
statement under Section 9 or in any subsequent proceedings:
Provided
that - (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 restained by the transfer
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
part 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."
Learned counsel submitted that having regard to proviso (d), the surplus land
in the hands of the third respondent had to be determined, excluding therefrom
that land which had been the subject matter of transfer to the appellants.
Reliance
was placed by the learned counsel for the appellants upon the decision of this
Court in Ravindra Singh v. Phool Singh & Anr. [(1995) 1 SCC 251. It has
been held that a combined reading of Section 5(6) and clause (d) of the proviso
to Section 12-A shows that - "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." This judgment very correctly, with respect,
sets out the effect of Section 12-A and clause (d) of its proviso.
The
provisions thereof apply to transfers which have not been found to be bad in
law.
In the
instant case, as aforestated, the transfers of land by the third respondent to
the appellants were held to be void and, therefore, there was no transfer in
the eye of the law. Learned counsel emphasised that they have been held to be
void by reason of the provisions of Section 5(8) which says that no
tenure-holder may 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 would be void. It seems to
us quite irrelevant whether the transfer was held to be void under this or any
other provision. The fact is that it was held to be void and that has become
final. Since there is no transfer in the eye of the law there is no occasion to
apply Section 12-A and clause (d) of the proviso.
The
appeal is accordingly dismissed. No order as to costs.
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