Allahabad High Court
Mahant Narvada Shankar Bharti And ... vs State Of U.P.And Others on 23 May, 2023
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:113756 Reserved on 22.03.2023 Delivered on 23.05.2023 Court No. - 7 Case :- WRIT - C No. - 39841 of 1996 Petitioner :- Mahant Narvada Shankar Bharti And Others Respondent :- State Of U.P.And Others Counsel for Petitioner :- R.C.Singh,Khurshed Alam,Upendra Kumar Mishra,Vishastha Tewari Counsel for Respondent :- S.C.,Pankaj Kumar Mishra,R.R. Tripathi,S.K. Misra,Shardendu Kumar Pandey Hon'ble Rohit Ranjan Agarwal,J.
1. Petitioner nos. 1 and 2 before this Court are chela/disciple of one Mahant Chetan Bharti, while petitioner nos. 3 and 4 are the purchasers of the land from Chetan Bharti through registered sale-deed executed on 05.12.1969 and 05.12.1972.
2. One Mahant Chetan Bharti was owner of plots of land in dispute. He died on 23.02.1976, while proceedings under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 was initiated on 24.03.1976, proposing to declare 6.80 acres of irrigated land as surplus. The case was registered as Case No. 190 under Section 10(2) of the Act. The notice was served upon petitioner no. 1 who filed his objections on 20.04.1976 that he does not possess any surplus land. The Prescribed Authority on 15.06.1976 declared 6.80 acres irrigated land as surplus.
3. Against the order dated 15.06.1976, petitioner no. 1 filed Ceiling Appeal No. 336 of 1976 before the District Judge, Deoria. The said appeal was allowed and the matter was remitted back to Prescribed Authority on 30.04.1979. Thereafter, fresh notices were issued proposing to declare 11.95 acres irrigated land as surplus.
4. Petitioner no. 1 filed his objections taking a stand that Plot no. 336/.17 and 340/.90 of Village- Patarhat are grove and were transferred by Late Mahant Chetan Bharti in favour of Kapura Devi, petitioner no. 3 through registered sale-deed dated 05.12.1969. While Plot No. 936/.38 of Village- Indupur was Abadi on spot where existed Kuti of Maharaj Pauhari, before date of vesting and Ram Lila is organised every year. Further, petitioner no. 1 had nothing to do with Plot No. 936. In respect of property situated at Village-Mathia and Labkani, Chetan Bharti had executed registered Will deed dated 12.02.1976 in favour of his disciples, petitioner no. 1 and 2. Further, Plot no. 68/.15 of Village- Mathia is Aabadi on spot and a primary school is situated over the said plot and Plot No. 40, measuring 4 decimal is Khalihan and Chetan Bharti during his lifetime had transferred 3.73 acres land vide registered sale-deed in favour of Vishwasi Devi. The said transfer was made in good faith and adequate consideration.
5. Plot No. 66/.29 of Village- Mathia is in the shape of big pit and Plot No. 68/.15 is not cultivable and does not yield any crop and unirrigated land has been shown as irrigated. Further, plots of Village- Labkani do not come in command area. Further, Plot No. 68/.36 of Village- Mathia is grove on spot which has been transferred in favour of Gulam Rasul and same has been treated illegally in the holding of petitioner no. 1.
6. Petitioner no. 2 also filed his objections. As the records of Ceiling Case No. 190 were not traceable and original sale-deed and Will were filed in the said case, petitioners made an application to trace the records of ceiling case but the same could not be traced. On the advise of District Government Counsel, fresh statements were prepared and petitioners were served with fresh notices.
7. Petitioner nos. 4 and 5 thereafter filed their objections on 05.07.1996 stating that the plot was purchased by them from Late Mahant. One Ishaq, Azim, Samiullah and Rafiullah also filed objections on 05.07.1996 that they had purchased Plot No. 58 of Village- Mathia through registered sale-deed and at present it is grove. Petitioner no. 3, Kapura Devi also filed her objections on 19.08.1996 stating that she has purchased the land through registered sale-deed on 05.12.1969.
8. The Prescribed Authority on 31.08.1996 declared 11.95 acres land as surplus. Against the said order, three separate appeals being Appeal No. 245/D of 1996, 246/D of 1996 and 247/D of 1997 were filed by different parties. By the composite order dated 05.12.1996, the said three appeals were dismissed. Hence, this writ petition.
9. This Court on 17.12.1996 framed three issues and directed Collector, Deoria to decide the same. The said three issues are as under:-
"1. (i) to decide regarding validity of the sale deed dated 5.12.1969;
(ii) Whether the sale deed dated 5.12.1972 was executed in good faith;
2. What are the Plots which have been taken as irrigated land and the basis for holding such Plots as irrigated land and the evidence on which it has been found to be irrigated land;
3. Where was the residential house of recorded tenureholder."
10. By order dated 18.11.1999, Commissioner, Gorakhpur endorsing the order of Collector decided the three issues framed by this Court considering the report of Additional District Magistrate dated 14.03.1997 and the report of the Collector dated 14.07.1999. Both orders passed by the appellate authority on 05.12.1996 and the order post remand by respondent no. 2 dated 18.11.1999 are under challenge in this writ petition.
11. Sri R.C. Singh, learned Senior Advocate submitted that this Court on 17.12.1996 after hearing the parties had framed three issues and remitted back the matter to respondent no. 2 to decide the same. According to him, issue No. 1(i) which was in regard to validity of sale-deed dated 05.12.1969 has been wrongly dealt with by the authorities holding that the land measuring 1.01 acres had been sold only for Rs.1,500/- and the execution of document amounts to under valuation. No reason has been recorded as to the market rate prevailing at that time and the circle rate fixed by the Government. Moreover, the Act provides that any transaction entered subsequent to 24.01.1971 shall be ignored but the said transaction was prior to said cut-off date. He then contended that issue no. 1(ii) has also been dealt by the authorities in a very cursory manner and a finding has been recorded that the sale-deed dated 05.12.1972 was executed for Rs.9,000/- for a land measuring 3.63 acres which shows it to be benami transaction.
12. Then, coming to issue no. 2, learned Senior Counsel submitted that petitioners had filed an extract of khasra for Fasli Year 1378-1379 and 1380 before the Prescribed Authority but as the records had disappeared and no endeavour to trace the original records was made, the finding recorded is against the provisions of Section 4-A. According to him, no irrigation facility is available for the disputed land by any canal included in Schedule-I of irrigation rate notified on 31.03.1953 as amended from time to time, or any lift irrigation canal or any State tubewell or private irrigation work. According to him, non consideration of khasra for the Fasali Year 1378-1379 and 1380 fasali would vitiate the entire finding. Further, no spot inspection was made as alleged by the competent authority in presence of the petitioners nor any opportunity was afforded to file objections.
13. As far as the finding which has been recorded on Issue No. 3 is also incorrect. According to him, Aabadi does not fall within the definition of land and it could not be included in the statement.
14. Per contra, learned Standing Counsel appearing for the State defended the order passed by Commissioner post remand and relied upon the reports of Additional District Magistrate and Collector.
15. I have heard respective counsel for the parties and perused the material on record.
16. This Court while hearing the matter on the earlier occasion on 17.12.1996 had confined the matter to three issues which were remitted to the Commissioner, Gorakhpur to record its finding and return it back to the Court. As far as finding on Issue No. 1(1), it appears that opposite party no. 2 has been swayed away by the statement of District Government Counsel (DGC) (Revenue) that the sale consideration made by the purchaser when the sale-deed was executed on 31.07.1968 was meager and proceeded to hold the transaction as benami. I find that this Court had clearly framed issues as to record finding as to the validity of sale-deed dated 05.12.1969. Opposite party no. 2 has not denied the execution of registered sale-deed by Mahant Chetan Bharti in favour of Smt. Kapura Devi, which was an irrevocable transaction. Moreover, no proceedings were initiated by State Government for under valuation of the stamp duty payable by the purchaser at the time of execution of the sale-deed. After 30 years of the execution of the sale-deed, the question relating to under valuation of the document recorded by the Commissioner does not hold any ground and cannot be accepted and the finding recorded is totally against Section 5 of the Act.
17. Coming to the finding recorded on Issue No. 1(ii), I find that same ground has been taken by opposite party no. 2 as to under valuation of the document executed on 05.12.1972 by Chetan Bharti in favour of petitioner no. 5, Saraswati Devi. No finding has been recorded so as to prove that transfer was not made for adequate consideration and it was a benami transaction. The State did not initiate any proceedings for under valuation of the document as it was executed after 24.01.1971. Reason given while deciding the issue is not in consonance with the scheme of Section 5(6) of the Act. The finding recorded cannot be accepted.
18. From reading of the finding recorded on Issue No. 2, it is clear that the records of khasra for Fasli Year 1378-1379 and 1380 were not available. Once the documents were not on record, a team constituted on 13.07.1999 having given its report as to the land being irrigated cannot be accepted as the ceiling proceedings were initiated in the year 1976. The Act in Section 4-A clearly provides the methodology for determination of irrigated land. The said provisions were inserted through U.P. Act No. 2 of 1975 w.e.f. 08.06.1973. It was mandatory on the part of revenue authorities to have examined the relevant khasras in coming to record the finding of irrigated land. Once it was found that khasra for the Fasli Year 1378-1379 and 1380 was not available, the land cannot be presumed to be an irrigated land on the basis of the survey made in the year 1999. The finding recorded on Issue No. 2 cannot be accepted and deserves to be rejected.
19. The Issue No. 3 framed by this Court has also been dealt with by the authorities in a very casual manner and a finding has been recorded that half of land consists of Aashram of Pauhari Ji and on rest of the land annual mela is being organised, which can be used for agricultural purpose. From the finding recorded by the authorities, it is clear that they themselves have failed to arrive at any finding despite opportunity having given to them by the Court.
20. Having heard counsel for the parties and considering the facts and circumstances of the case, I find that the appellate court had not dealt with the issues raised by the petitioner in appeal and the land which was sold by Chetan Bharti during his lifetime was wrongly added into holdings of petitioner no. 1. Moreover, Aabadi land was also included in declaring the land surplus. This Court in the year 1996 had framed three issues and remitted the matter to be decided by the Commissioner, who could not record satisfactory finding, so as to warrant a case for declaring the land of petitioners as surplus.
21. I find that orders dated 05.12.1996 and 18.11.1999 passed by appellate court and opposite party no. 2 are unsustainable in the eyes of law and both the orders are hereby set aside.
22. Writ petition succeeds and is hereby allowed.
Order Date :- 23.5.2023 V.S.Singh