Rajendra
Singh & Ors Vs. State of U.P. & Ors [1998] INSC 492 (8 October 1998)
S.Saghir
Ahmad, S. Rajendra Babu. S.Saghir Ahnad, J
ACT:
HEAD NOTE:
Respondent
No. 4, Mahant Narendra Das, was the tenure-holder of considerable agricultural
land. A notice, under Section 10(2) of U.P. Imposition of Ceiling on Land
Holdings Act, 1960 (hereinafter referred to as 'the Act') was issued to him
proposing certain area to be declared as surplus. The notice was served upon
the tenure-holder on 6th of February, 1974 but the tenure-holder, namely,
respondent No. 4, did not file any objection.
Consequently,
the statement made in the notice was confirmed and about 13 bighas 7 biswas 2 biswansis
of land was declared as surplus by judgment and order dated 02.03.1974 passed
by the Prescribed Authority. While the appeal against this judgment was pending
before the District judge, the Act was amended by U.P. Ordinance No. 31 of
1975, which was subsequently replaced by U.P. Act No. 20 of 1976, as a
consequence of which the appeal was abated and a fresh notice, under Section
10(2) of the amend Act, was issued to the tenure-holder who filed objections
and the Prescribed Authority, after hearing the parties, disposed of the case
by his judgment dated 30th Aril, 1976. This order was challenged in appeal by
the tenure-holder which was allowed on 25.3.1997 and the surplus area reduce.
In the
meantime, respondent No.4, by means of registered Sale Deed date 26th August, 1974, transferred certain land in favour
of appellant No.1 (Rajendra Singh) and by another Sale Deed of the same date,
certain other plots were transferred in favour of Jogendra Singh, son of Shital
Das. This Jogendra Singh, in his turn, transferred that land to appellants No.2
and 3, namely, Pritam Singh and Jogendra Singh, sons of Sardar Mansa Singh, by
a registered Sale Deed dated 04.12.1975.
The
appellants who were not the parties before the Prescribed Authority or the
Addl. District Judge, filed a review application before the Addl. District
Judge, Saharanpur praying that the surplus area may
not be taken out of the land transferred in their favour but the application
was rejected on 13.01.1978. The appellants then filed a Writ Petition in the
High Court which was dismissed on 14.3.1980. It is in these circumstances that
the present appeal has come to this Court.
Learned
counsel for the appellants has contended that under Section 12-A of the Act, it
is open to the State Government not to take surplus land from out of the land
which was the subject matter of transfer and, therefore, the respondents may be
directed to take the surplus land from out of the other land of the
tenure-holder, namely, respondent No. 4, as the latter still has, in his
possession, considerable land which can satisfy the requirements of the State
so far as surplus area determined by the area determined by the Prescribed
Authority is concerned. This contention was also raised before the High Court
but it was accepted.
Section
12-A of Act, inter alia, provides as under :- "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 indicated by him in his
statement under Section 9 or in any subsequent proceedings :
Provided
that- (a)................................
(b)................................
(c)................................
(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 or partition, the transfer
or partition shall, in so far as it relates to the land included in the 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, advance 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 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 Reform Act, 1950;
(ii)
..................................
The
words "as far as possible" have been used in the main Section as also
in Clause (d) of the Proviso. These words are not prohibitory in nature. They
rather connote a discretion vested in the Prescribed Authority who can exercise
that discretion at the time of carving the surplus area from of the total
holding of a person.
Section
5(1) provides that a tenure-holder shall not be entitled to hold in the
aggregate throughout Uttar Pradesh, any land in excess of ceiling area
applicable to him.
Section
9 provides that the Prescribed Authority shall, by general notice, published in
the official Gazette, call upon every tenure-holder holding land in excess of
the ceiling area applicable to him, to submit a statement in respect of all his
holdings wherein he shall also indicate the plots which he would like to retain
as part of his Section 12-A and it is provided that the Prescribed Authority
shall, as far as possible, accept the choice indicated by the tenure-holder as
to the plots which he would like to retain as part of his ceiling area. It is
at this stage, that the description can be exercised by the Prescribed
Authority and he may not take over those plots as part of the surplus area. It
is thus "discretion", and not "compulsion", which
constitutes the core of this statutory provision. It is obvious that before
taking over any area as surplus area or leaving any area as ceiling area of the
tenure-holder, the Prescribed Authority shall first take into consideration the
choice indicated by the tenure-holder and if it is not possible, to act wholly
upon the choice, for which there may be variety of reasons, the Prescribed
Authority will proceed in his own way to leave the area determined by him as
the ceiling area with the tenure-holder and take over the other area as surplus
area.
This
provision has to be read in the light of the provisions contained in
Sub-sections (6), (7) and (8) of Section 5 which provide as under :-
"5(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 renure-holder
or other member of his family.
Explanation
I, -For the
purposes of this sub-section the expression transfer of 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.
(7) In
determining the ceiling area applicable to a tenure-holder, any partition of
land made after the twenty-fourth day of January, 1971, which but for the
partition 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) * * * * * (b) a partition
of a holding made in a suit or a proceeding pending on the said date:
Provided
further that notwithstanding anything contained in the preceding proviso the
Prescribed Authority, if it is of opinion that by collusion between the
tenure-holder and any other party to the partition, such other party has been
given a share which he was not entitled to, or a large share than he was
entitled to, may ignore such partition.
Explanation
I, - If a suit is
instituted after the said date for declaration that a partition of land has
taken place on or before the said date, then such declaration shall be ignored
and not be taken into account, and it shall be deemed that no partition has
taken place on or before the said date.
Explanation
II, -The burden of
proving that a case falls within the first proviso shall rest with the party
claiming its benefit.
(8)
Notwithstanding anything contained in sub-sections (6) and (7), no ternure-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.
Explantion-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.
The
relevant date under the Act which constitutes the basis for determining the
ceiling or surplus area of tenure-holder is 24th of January, 1971. Whatever
land was held by a tenure-holder on that date will have to be indicated by him
in the statement required to be submitted under Section 9 of the Act.
It is
with reference to this date that it has been provided that in determining the
ceiling or surplus area of a tenure-holder, the Sale Deed, if any, executed by
the tenure-holder, after 24th of January, 1971, shall be ignored. Proviso to
Sub-section (2) of Section 5, however, carves out an exception in favour of
transfers which are proved to the satisfaction of the Prescribed Authority, to
have been in good faith and for adequate consideration and not for any
immediate or deferred benefit of the tenure-holder or other members of his
family. It is on the basis of this provision that it is contended by the
learned counsel for the appellants that since the Sale Deeds, in question, were
executed in their favour for valuable consideration and they had not obtained
the land "benami" nor were they holding the land for any immediate or
deferred benefit to the tenure-holder, they are entitled to hold the land
covered by the said Sale Deeds in their own independent rights and, therefore,
the said land could not have been treated as the land of tenure-holder, namely,
respondent No.4, for purposes of determining his ceiling or surplus area. This
contention is wholly without substance. The proviso cannot be read in
isolation. It has to be read along with Sub-section (8) of Section 5 which
provides as under :- "(8) Notwithstanding anything contained in sub-sections
(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 purpose 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) Section 11 or
under sub-section (1) of Section 12, or as the case may be, under Section
13." The prohibition contained in this sub-section that during the pendency
of proceedings under the Act, there cannot be any transfer, is absolute. This
prohibition is contained in the first part of sub-section (8) while in the
second part, the consequence thereof is indicated providing that every
transfer, made in contravention of this provision shall be void. The
Explanation appended to this Sub-section creates a legal fiction by saying that
the 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 they shall be deemed to have concluded when an order is made under
Sub-section (1) of Section 11 by the Prescribed Authority in a case where
either the statement submitted by the tenure-holder, under Section 9, is
accepted by the Prescribed Authority or the statement prepared by the
Prescribed Authority, under Section 10, is not disputed by the tenure-holder.
But in a case where these statements are contested, the proceedings shall be
deemed to have concluded when an order is made by the Prescribed Authority
under Section 12(1) of the Act,.
If,
however, an appeal has been filed against the order of the Prescribed
Authority, the proceedings shall be deemed to have concluded on the disposal of
the appeal under Section 13 of the Act.
Thus,
the Sale Deeds executed by tenure-holders after 24th January, 1971, have been
classified into two distinct categories : (1) Sale Deeds executed by the
tenure-holder after 24th January, 11971, without the proceedings under the Act
for determination of the ceiling sand surplus area having been commenced or
being pending.
Proviso
(b) to Sub-section (6) of Section 5 would be applicable to such a Sale Deed and
it would be open to the Prescribed Authority to look into the genuineness of
such a sale Deed in the light of the factors indicated therein; and (ii) Sale
Deeds executed by the tenure-holder after 24th January, 1971, but during the pendency
of the proceedings for determination of the ceiling and surplus area. Such a
Sale Deed would be void in view of Sub-section (8) of Section 5. It will not be
open to the Prescribed Authority to hold any enquiry in respect of such a Sale
Deed which has to be treated as void from its inception.
The
prohibition on transfer of land during the pendency of the proceedings was
introduced in the principal Act by U.P. Act No. 20 of 1976 with retrospective
effect from 10.10.1975, that is, with effect from the date on which U.P.
Ordinance No. 31 of 1975 was issued. This prohibition was introduced with the
object of facilitating an early disposal of the proceedings for determination
of surplus land as also for preventing the tenure-holder from disturbing the
status-quo of his holding as existing on the date of Notification under Section
9 of the Act by making transfers of land in favour of other persons which
obviously would have the effect of complicating the process of determination of
surplus land.
Since,
in the instant case, a notice had already been issued under Section 9 of the
Act and the proceedings for germination of ceiling and surplus area were pending
before the Prescribed Authority, the Sale Deeds, in question, which were
executed on 26.8.1974 and 04.12.1975 respectively were obviously void being hit
by the provision contained in Sub-section (8) of Section 5.
The
contention of the learned counsel for the appellants that the surplus area may
not be taken out of the land covered by the Sale Deeds cannot, therefore, be
accepted, as it would mean that the Sale Deeds, though void, are still being
given effect to indirectly which is positively impermissible. The land covered
by the aforesaid Sale Deeds shall, therefore, be treated to be part of the land
held by respondent No.4 and it would be within the exclusive jurisdiction of
the Prescribed Authority to take or carve out the surplus area from any land of
respondent No. 4, notwithstanding that any portion of that land was covered by
Sale Deeds allegedly executed in favour of the appellants.
No
other point was argued. The appeal has no merits and is dismissed but without
any order as to costs.
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