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R.M. Singh v. State - WRIT - C No. 154 of 1979  RD-AH 5015 (21 March 2007)
(Court No. 28)
Civil Misc. Writ Petition No.154 of 1979
Raja Mahipal Singh Versus State of U.P and others.
Hon'ble S.U.Khan J
Heard learned counsel for the parties.
This writ petition is directed against judgement and order dated 13.11.1978 passed by III Additional District Judge, Hamirpur in ceiling Appeal No. 526 of 1978, copy of which is Annexure 2 to the writ petition. The said Annexure does not contain any date. In the prayer clause of the writ petition, it is mentioned that the said judgement is dated 13.11.1978. Initially prescribed authority under Ceiling Act had passed the order on 29.6.1976 declaring an area of 44.43 acres of irrigated land as surplus land hold by the petitioner under U.P. Imposition of Ceiling on Land Holdings Act 1960. The said order was modified to some extent by the appellate court.
The main dispute in between the parties is regarding four gift deeds and one sale deed executed by the petitioner prior to 24.1.1971. Four gift deeds were executed by petitioner in favour of his grandsons and grand daughters on 24.1.1970, 31.1.1970 (two gift deeds) and 2.2.1970. Area covered by these four deeds was about 70 acres. The dispute is also in respect of sale deed executed in January 1970 by the petitioner in favour of his barber Dhani Ram area 3.27 acres. Courts below held that the said deeds were executed in contemplation of ceiling proceedings hence liable to be ignored. Sale deed executed by petitioner in favour of Smt Vidya Kumari has been found to be bonafide and genuine. The said deed was also executed before 24.1.1971. The said finding in favour of the petitioner is confirmed.
Prior to amendment of Ceiling Act with effect from 8.6.1973 agricultural land belonging to ex-rulers was exempted from the Ceiling Act. Petitioner is ex-ruler. However with effect from 8.6.1973 the said exemption granted under section 6(14) of the Act was withdrawn by deleting the said clause. The petitioner contended that as Ceiling Act itself was not applicable upon him in the year 1970 hence deeds executed by him in the year 1970 should be taken to be quite valid. This contention was rejected by the appellate court. Appellate court held as follows:
"Therefore I am of the opinion that provisions appended to section 5(6) of the Act are applicable to the applicants."
Section 5(6) without explanation is quoted below.
(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."
Thereafter appellate court held that the grandsons and grand daughters to whom land was gifted by the petitioner were aged about 3, 2 and 5 years and all were minors at the time of execution of gift deeds. Appellate court opined that the petitioner was highly qualified person and he contemplated that Ceiling Act might be imposed upon his lands hence he as precautionary measure, settled his land with his grandsons and grand daughters to save his skin from the operation of the law which would come in due course of time. Thereafter appellate court held as follows:
"Therefore the appellant made the Benami transaction for his deferred benefit. According to section 5(6)(b) a transaction, proved to the satisfaction of the prescribed authority to be in good faith and 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." (Sic)
From the above it is quite clear that the appellate court judged the four gift deeds and one sale deed in favour of Dhani Ram on the touch stone of section 5(6)(b). In this regard appellate court was not correct. Section 5(6)(b) deals with the transfer deeds made after 24.1.1971. Of course in certain circumstances even the deeds prior to 24.1.1971 may be ignored after holding them to be sham, fictitious or collusive transactions. However some distinction has to be drawn in between the deeds prior to 24.1.1971 and after the said date. The same criteria which is applicable to post 24.1.1971 deed can not be applied to pre 24.1.1971 deed.
Learned counsel for the petitioner has cited a division bench authority of this Court reported in Yadunath Vs. State 1979 AWC 187. In para 18 of the said judgement it has been held that transfer deeds executed before 24.1.1971 may also be looked into by the prescribed authority to ascertain as to whether the transaction was sham, fictitious and collusive or not.
Section 5(1) and the two explanations appended thereafter are quoted below:
"5. Imposition of Ceiling - (1) [On and from the commencement of the Uttar Pradesh Laws (extension to Territories Transferred from Bihar) Act, 1976], no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of ceiling area applicable to him.
[Explanation I-- In determining the ceiling -area applicable to a tenure holders, 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 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.]
From perusal of the above it is clear that the date of mutation in favour of the transferees in case of deeds prior to 24.1.1971 is very important. Unfortunately in the instant writ petition the dates on which the names of donees and Dhani Ram were entered in the revenue records have not been mentioned.
Accordingly writ petition is allowed. Both the impugned orders are set-aside. Matter is remanded to the prescribed authority. The prescribed authority shall decide the matter within six months from the date on which the certified copy of this order is filed before it. The question of genuineness of sale deed in favour of Vidya Kumari shall not be reopened. The petitioner shall bring on record before the prescribed authority the dates on which mutation orders were passed and mutation was affected in favour of donees and Dhani Ram.
Learned counsel for the petitioner has also argued that during pendency of this writ petition consolidation has taken place and area of the agricultural land held by the petitioner has reduced. If the reduction is due to change in the valuation of the lands earlier held by the petitioner and lands allotted to him in consolidation proceedings in lieu of old lands then the same shall be taken into consideration. However, in this regard petitioner shall file before the prescribed authority complete copies of orders passed and forms prepared in consolidation proceedings to substantiate the plea of reduction in area due to change in the valuation precisely. It is needless to add that while determining the surplus land, if any, and while determining the land held by the petitioner prescribed authority must specifically keep in mind that the lands lie in Bundelkhand area and determination shall be made in accordance with the section 4(ii)(a). The question regarding nature of some plot being irrigated or not or being grove or not may also be reconsidered by the prescribed authority on the basis of evidence already on record or brought on record. It is needless to add that fresh evidence may be adduced by the parties, However it is clarified that question of irrigated or unirrigated nature of land shall be decided on the basis of Khasras of 1378-80 fasli and position of grove must be decided as on 24.1.1971.
Writ petition is accordingly allowed.
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