Allahabad High Court
Balraj Singh vs State Of U.P. And Ors. on 23 May, 2002
Equivalent citations: 2002(3)AWC2333, 2002 ALL. L. J. 1862, 2002 A I H C 3915, (2002) 3 ALL WC 2333, (2002) REVDEC 498, 2002 ALL CJ 2 1050
JUDGMENT R.H. Zaidi, J.
1. The petitioner, by means of this petition filed under Article 226 of the Constitution of India, prays for issuance of a writ, order or direction in the nature of certiorari quashing the orders dated 2.6.1987 and 29.2.1988 passed by the Prescribed Authority and the Appellate Authority in the proceedings under U. P. Imposition of Ceiling on Land Holdings Act, 1960 against the petitioner.
2. The relevant facts of the case, in brief, are that Pala Singh had two sons, i.e., Bal Raj Singh, the petitioner, and Jog Raj Singh. It was on 19.2.1986 that a notice under Section 10 (2) was issued to the petitioner calling upon him to show cause as to why an area measuring 5.77 acres out of his holding be not declared as surplus land. On receipt of the said notice, petitioner filed his objection against the said notice contending that no land out of his holding was liable to be declared as surplus as he was in possession of the land within his ceiling limit. It was also urged that the land owned by Jog Raj Singh was illegally shown as part of his holding which he got from Pala Singh through a Will dated 28.5.1979. same was liable to be excluded from his holding and the said notice was liable to be discharged. Jog Raj Singh also filed an application for his impleadment in the said proceedings before the prescribed authority which was allowed and he was also impleaded as a party in the said proceedings. Jog Raj Singh also filed his objection pleading that Will dated 28.5.1979 was executed by his father Pala Singh in his favour. Bal Raj Singh, the petitioner, had no concern with the land covered by the said Will. Pala Singh died on 9.10.1982 leaving behind the petitioner and Jog Raj Singh. Land in dispute was mutated in the names of his said two sons. Thereafter, Jog Raj Singh applied for mutation of his name exclusively in the revenue papers on the basis of the Will before the revenue court but his mutation application was dismissed. Jog Raj Singh, thereafter, filed a suit for declaration under Section 229B of the U. P. Zamindari Abolition and Land Reforms Act against the petitioner and others which was decreed on 28.2.1987 and his claim on the basis of the aforesaid Will was upheld by the revenue court. It was, therefore, contended that the ceiling proceedings initiated by the prescribed authority against Bal Raj Singh were misconceived and were liable to be dropped.
3. On the pleadings of the parties, as many as five issues were framed by the prescribed authority. Thereafter, the parties have produced evidence, oral and documentary, in support of their cases.
4. The prescribed authority, after perusing the material on record and after hearing the parties while dealing with the issue Nos. 2 and 3, held that the judgment and decree dated 28.2.1987 was passed after 24.1.1971, therefore, the same was hit by Explanation II of Section 5 and was liable to be ignored. It was also held that the said decree was collusive and was obtained by the parties with a view to defeat the provisions of Ceiling Act. While dealing with the Will dated 28.5.1979, it was held that the same was not bona fide. It was also executed after 24.1.1971 with a view to save the land from the provisions of Celling Act, therefore, it was also liable to be ignored. It was also observed that it was not shown by the petitioner and Jog Raj Singh that what was the necessity for executing the Will. Having recorded the said findings, the Will was also ignored. After ignoring the decree and the Will referred to above, it was held that out of 19.66 acres of the land of Pala Singh, the petitioner got 1/2 which was in his possession and the same was rightly included in the notice issued to him under Section 10 (2). While dealing with the issue No. 1 after taking into consideration the provisions of Section 4A, extracts of Khasras 1378, 1379 and 1380 Fasli wherein the land in dispute was shown as irrigated land from Tube Well No. 149 and two crops were shown to be grown in the aforesaid years, therefore, the land in dispute was held to be irrigated land. While dealing with the issue Nos. 4 and 5, it was held that the land which was covered by the Abadi and grove was already shown as such in the notice. The said issues were also decided against the petitioner and ultimately 5.77 acres land was declared as surplus by the prescribed authority by his judgment and order dated 2.6.1987. Challenging the validity of the said order, two appeals were filed. One by the petitioner and other by Jog Raj. The appellate authority also affirmed the findings recorded by the prescribed authority on all issues and dismissed the appeal filed by the petitioner by judgment dated 29.2.1988. Hence, the present petition.
5. Learned counsel for the petitioner vehemently urged that the land covered by the Will executed by Pala Singh in favour of Jog Raj Singh on 28.5.1979 was Illegally shown in the holding of the petitioner, the same was liable to be excluded from his holding and after exclusion of the same, there remained no land to be declared as surplus. The authorities below acted illegally in taking into consideration the said land as part of the holding of the petitioner. It was also urged that the land covered by the Will could not be treated as part of the holding of the petitioner. In support of his submission he has placed reliance upon the decision of the Apex Court in Jamil Ahmad and Ors. v. Vth Additional District Judge, Moradabad and Ors., 2001 (4) AWC 3168 (SC) : 2001 (92) RD 851. It was also urged that the findings recorded by the authorities below are perverse. The impugned Judgment and orders were, therefore, liable to be quashed.
6. On the other hand, learned Standing Counsel Smt. Archna Srivastava vehemently urged that the concurrent findings recorded by the authorities below are all findings of fact, which are based on the relevant evidence on the record and the same, therefore, cannot be interfered with under Article 226 of the Constitution of India. In support of his submissions, he has placed reliance upon the decisions in the cases of Girraj v. State of U. P. and Ors., 1979 AWC 169 ; Devkinandan Agrawal v. State of U. P. and Anr., 1996 AWC (Suppl) 216 : 1996 RD 112 ; Mahendra Singh v. State of U. P., 1998 (89) RD 407 and in Chandradhar Prasad Narain v. State of U. P. and Ors., 1998 (2) AWC 1356 : 1998 (89) RD 424.
7. I have considered the submissions made by the learned counsel for the parties and also carefully perused the record.
8. It is not disputed that Pala Singh was the tenure holder of the disputed land who after enforcement of the Act, executed a Will in favour of Jog Raj Singh on 28.5.1979. On the basis of which Jog Raj Singh applied for mutation of his name over the land in dispute. However, his application for mutation was rejected by the revenue Court and names of both sons, petitioner and Jograj. were mutated. Jograj. thereafter, filed a suit under Section 229B. which was decreed by the Revenue Court on 28.2.1987.
9. In the ceiling proceedings, the prescribed authority and the appellate authority have ignored the said Will as well as the decree passed by the revenue court, dated 28.2.1987 in exercise of power under Section 5 of the Act and treated the land of Pala Singh as owned by his two sons named above and thereafter calculated their ceiling area and surplus land by the impugned orders. Thus, the question which arises for consideration and decision by this Court is as to whether the authorities below were right in ignoring the Will and the decree passed by the revenue Court. The ceiling area of a tenure holder is determined in accordance with the provisions of the Act. The relevant provisions of the Act are quoted below :
"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 throughout 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 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.
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(3) .........................................
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Explanation.--Any transfer or partition of land which is liable to be ignored under Sub-sections (6) and (7) shall be ignored also--
(p) for purposes of determining whether an adult son of a tenure-
holder is himself a tenure-
holder within the meaning of Clause (a) or Clause (b) of this Sub-section ;
(q) for purposes of service of notice under Section 9.
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(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.
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) .........................................
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 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.
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(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.
10. The authorities below have recorded concurrent findings of fact that Will was executed by Pala Singh with a view to defeat the provisions of the Act and the decree was obtained from the revenue court by Jog Raj was a collusive decree. It has also been held that on the land in dispute, the petitioner was in actual cultivatory possession. Having recorded the said findings, the Will and the decree have been ignored by the authorities below. The petitioner and Jog Raj have failed to prove that the Will and the decree in question were bona fide transactions. They could not show any reason for execution of the Will by Pala Singh in favour of his one son, ignoring the petitioner. The findings recorded by the authorities below are concurrent findings of fact, which are based on relevant evidence on the record.
11. From the aforesaid provisions, it is also apparent that for the purposes of Sub-section (6) of the Act, expression "transfer of land made after 24th day of January, 1971" includes any admission, acknowledgment, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instruments or in any other manner. Thus, the Will in question for the purposes of the Act was a transfer, which was admittedly executed after 24th day of January, 1971. The authorities below, therefore, did not commit any error of law in ignoring the said Will, which was nothing but a declaration by Pala Singh in favour of Jog Raj. Similarly, the decree was obtained from the revenue court on 28.2.1987, i,e., after 24th day of January, 1971. The authorities below have recorded a find -ing that the said decree was collusive. The said finding is also based on the relevant evidence, oral and documentary, and is a finding of fact. The authorities below were right in ignoring the said decree while calculating the ceiling limit of the petitioner and surplus land. So far as the decision in Jamil Ahmad v. Vth Additional District Judge, Moradabad and Ors., 2001 (92) RD 851, is concerned, the said decision is on the facts of the said case, the same is distinguishable from the facts of the present case. In the said decision, the Court observed :
"The question that falls for our consideration is : whether the Will of Wall Mohammad is genuine and the land bequeathed by late Wali Mohammad in favour of appellant could be treated as inherited land of Ghulam Mohammad."
In the said case, the authorities below recorded findings that the said Will was not proved. The Hon'ble Court after reversing the said finding held as under :
"In appeal filed by the appellants, the appellate authority took note of the fact that the lands were mutated in their names. It was however, observed that the Will was not proved. In our view the observation is not well founded. As noted above, the question of genuineness of Will was not considered by the prescribed authority. Before the appellate authority there was no occasion to prove the Will as it was not in dispute.,....................."
After recording the said findings, the judgments and orders passed by the High Court and the authorities below were reversed and the case was sent back to the prescribed authority with the observation that the land bequeathed in favour of the appellant by late Wali Mohammad should be treated to form part of the holding of legatee. Therefore, the petitioner cannot take any advantage of the said decision in the present case. It may also be noted that if liberty is given to execute the Will after enforcement of the Act to the tenure holders, which may be by registered or unregistered documents, the tenure holders will defeat the provisions of the Act in as much as immediately after receipt of notice under Section 10 (2) of the Act or before it, they will be executing Wills in favour of their kith and kin, friends and other persons, who are in possession of the land less than their ceiling limit. They will never permit any portion of their holding to be declared as surplus, if the argument of learned counsel for the petitioner that land covered by Will cannot be taken into consideration for the purposes of calculating ceiling area of a tenure holder in any case, is accepted. The Act and the Rules framed thereunder shall become unworkable. Similar view was taken by this Court in Girraj v. State of U. P., 1979 AWC 169, wherein it was ruled as under :
"It was not open to the petitioner's father to have changed the position of the surplus land in his hand by a subsequent Will which was said to have been executed on 31st January, 1976. If such a course was permissible, it would mean almost a complete nullification of the provision contained in Section 5......It cannot be said that the son inherited only the land which is not covered by the Will because such a course will be fundamentally opposed to the provisions of Section 5. No Instrument whether by way of Will or any other instrument can have any validity which nullifies the mandatory provisions contained in Section 5, therefore, I reject the contention raised by the learned counsel."
12. Learned standing counsel was also right in his contention that the findings recorded by the authorities below are all findings of fact and the same cannot be interfered with under Article 226 of the Constitution of India. A reference in this regard may be made to a decision in the case of Devki Nandan Agarwal v. State of U. P., 1996 RD 112, in which it was held that a collective reading of Section 5 (8) read with Explanation I to subsection (8) clearly mandates that any declaration made by a competent court after 24th day of January, 1971 and in any case after 8.6.1973 is to be ignored for the purposes of determining the ceiling area of a tenure holder.
13. In Chaudhry Mahendra Singh v. State of U. P., 1998 (89) RD 407, it was ruled by this Court as under :
"Prescribed authority has jurisdiction to ignore such transfers if he is satisfied that transactions are not bona fide and were made after relevant date 24.1.1971. After hearing learned counsel for the petitioner and learned Standing Counsel at length, I am of the view that the findings of fact recorded by the appellate authority cannot be interfered with under Article 226 of the Constitution of India."
14. In Chandradhar Prasad Narain v. State of U. P. and Ors., 1998 (2) AWC 1356 : 1998 (89) RD 424, this Court after quoting Clause (b) of Explanation I of Sub-section (6) of Section 5 of the Act ruled as under :
"This provision clearly excludes any declaration made in respect of rights of the party in any suit has to be ignored. Sitakant Misra had filed the suit on 4.9.1972, viz., after the appointed date i.e., 24.1.1971. The suit was decreed on 18.7.1974 and further it was on the basis of admission of the claim of the petitioner. Such decree has to be ignored irrespective of the nature of the decree and the parties in that suit."
15. It may, however, be noted that if any will is found to be bona fide and genuine transaction, the land covered by the said Will is to be treated as the land of the legatee and not of other co-sharers as ruled by Hon'ble Supreme Court in Jamil Ahmad's case (supra), the same cannot be included in the holding of any other co-tenure holder or person. In the present case, neither Will nor decree has been found to be the genuine and bona fide transactions, therefore, the authorities below did not commit any error of law in ignoring the same.
16. Learned counsel for the petitioner has failed to demonstrate from the record that any relevant evidence was either ignored, misread or misconstrued by the authorities below. Therefore, the submission made by him that the findings recorded by the authorities below were perverse, cannot be accepted.
17. In view of the aforesaid discussion, I do not find any perversity in the findings recorded by the authorities below, which are findings of facts based on the relevant evidence on the record. No case for interference under Article 226 of the Constitution of India is made out.
18. The writ petition fails and is hereby dismissed but without any order as to costs.