- (1.) SHITLA Prasad Srivastava, J. This petition under Article 226 of the Constitu tion of India has been filed by the petitioner for quashing the order dated 24th June, 1974, Annexure-9 and order dated 6th March, 1990, Annexure-10 passed by the respondent Nos. 3 and 2 respectively and further a writ of man damus directing the respondents to ex clude the plots mentioned in the gift-deeds including the ceiling area of Late Sri Narain Singh.
(2.) A counter-affidavit has been filed by the State and a rejoinder-affidavit is also there, therefore, with the consent of the parties, counsel the petition is being disposed of finally on merits. The brief facts as slaloa in the writ petition are that Late Sri Narayan Singh, father of the petitioner Nos. 1 and 2 was served with a notice under Section 10 of U. P. Imposition of Ceilings on Land Hold ings Act (hereinafter referred to as the Act ). After receipt of the notice Sri Narayan Singh sought exemption of cer tain plots of the land which was transferred by him to another person under Section 5 (6) (b) of the Act. It is stated that plot Nos. 246 and 247 were proposed to be transferred in favour of Atar Singh through agreement of sale, dated 15th Oc tober, 1970 and possession was also given to Atar Singh. Plot Nos. 481,482 and 483 were transferred by means of a registered gift-deed dated 10th November, 1971 in favour of Rakesh Kumar, plot Nos. 250 and 251 were transferred in favour of Ashok Kumar through gift-deed dated 10th November, 1970 of plot Nos. 487,249 and 236 were transferred in favour of Sri Jai Ram Singh through registered gift-deed dated 10-11-79. It is stated in the writ petition that permission for making gifts regarding the aforesaid plots in favour of the aforesaid three persons was sought from the Sanyukta Sehkari Kheti Samiti Ltd. vide application dated 1st Nov. , 1970 and Surpanch of Sanyukta Sehkari Kheti Samiti Ltd. directed on 10th November, 1970 to the Secretary of Samiti to present an application dated 1st November, 1970 for meeting of the Sanchalak Mandal was moved. On 30-8-1971 the Secretary vide his noting dated 30-8-1971 opined that the transfer in favour of Jai Raj Singh, Ashok Kumar Singh and Rakesh Kumar who have already become members of the Society can be made by complying the Regulation 10 (Gha) of the Regulation of the Society. On 31st October, 1971 the society granted permission to Sri Narain Singh to transfer the aforesaid land in favour of the abovementioned persons. It is further stated that on 3rd November, 1971 the Surpanch communicated the resolution of the Society dated 31st Oc tober, 1971, granting permission of trans fer on the basis of the aforesaid statement which has been submitted by the learned Counsel for the petitioner that the proceedings for transfer by way of gift-deed in favour of Rakesh Kumar, Ashok Kumar and Jai Ram were initiated as long, back as on 1st November, 1970 by moving an application and delay on the part of the Sanchalak Mandal for granting permis sion was not in the hands of the petitioner, therefore the transaction of transfer was bona fide transaction and as the land was transferred in favour of the above named three persons they became tenure holder and that those plots should not have been taken into consideration, while determin ing the ceiling are a of Late Sri Narain Singh. The Prescribed Authority has held that the gift- deeds are not the bona fide transfers and in all these ingredients of adequate consideration are missing and transfers were made in the interest of the members of the family, therefore, they have to be ignored. Aggrieved by the order of the Prescribed Authority an appeal was filed by the petitioner. The appeal was also dis missed with the finding that as the gift-deeds were after 24th January, 1971 and were not bona fide transactions and were executed in favour of grand-sons of the tenure-holders who were legally entitled to inherit the same, therefore, the land covered by the gift-deed cannot be treated to be the land of the transferees rather they will be treated to be the land of Sri Narain Singh.
(3.) A counter-affidavit has been filed on behalf of the State to the effect that the finding of fact has been recorded by the Prescribed Authority, which has been af firmed by the appellate authority, there fore, the finding of fact cannot be dealt within the writ jurisdiction. It has further been stated that Sanyukta Sehkari Samiti has no power to issue any permission for sale or gift of the land to any Khatedar and as such on the basis of any such permission no exemption can be granted to the petitioner, even though the application was filed before 24th January, 1971. In rejoinder-affidavit the facts stated in para graph 5 of the counter-affidavit has been denied and it is stated that since Chaudhary Narain Singh was member of the Joint Co-operative Farming Society, Jwalapur, which is a registered society governed by laws, "adarsha Upridhyak Sehkari Krishi Samiti Ltd. " framed under U. P. Co-opera tive Societies Act, 1965 and there is a bar under Regulation 10-Gha of the bye-laws that the member of the Society cannot transfer their land within five years from the date of sale of the property, therefore, it was not incumbent on the petitioners to seek permission of Society for transferring the land. The relevant portion of the bye-laws have been filed as Annexure R. A. 1. Learned Counsel for the petitioner has urged that as there was bar for making transfer, therefore, the permission was necessary under the bye-laws for that pur pose the application was filed before the relevant date but if the permission was not granted till the relevant date and after the permission the transfer was made that shows the bona fide of the transferred and it cannot be said that the transfer manipu lated the things to show the transactions as bona fide. The learned Counsel for the petitioner has referred to the Regulation 10 of the bye-laws annexed with the rejoinder-affidavit and has placed reliance on sub-clause 'gha'. A bare perusal of such clause Gha shows that there is no mention of any permission for transfer.;