Shishir Kumar - (1.) -This writ petition has been filed for quashing the impugned orders dated 24.4.1981 and 29.11.1997 (Annexures-2 and 5 to the writ petition) passed by prescribed authority and appellate authority (respondent Nos. 2 and 1).
(2.) THE facts arising out of present writ petition are that petitioner was served with a notice under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act, 1961 as amended by U. P. Act No. 18 of 1973 (hereinafter referred to as Act) for declaring 5.77 acres of land as surplus. Petitioner filed an objection on the ground that family of petitioner consists seven members, as such, petitioner is entitled in his ceiling area 22.97 acres of land. Further objection was taken that land detailed whereof has given is grove and same land has wrongly been treated as irrigated in notice under Section 10 (2) of the Act. Further objection was also taken by petitioner that in good faith petitioner has transferred certain land, therefore, that land cannot be taken into consideration for the purposes of determination of ceiling area. Further detail has been given in the objection regarding un-irrigated plot No. 867 having an area of 1 bigha, 6 biswa situated in Haldaur was transferred to Ram Charan Lal by father of petitioner during his life time and the said plot was never devolved upon the objector, as such, said area cannot be taken into consideration for the purposes of ceiling limit. THE prescribed authority vide its order dated 24.4.1981 held that plot mentioned in the judgment are grove and petitioner is entitled for relief of the aforesaid area and he granted relief to the petitioner regarding the grove. Rest of the pleas taken in objection by petitioner has not been taken into consideration and regarding the sale deed it has been held that as it was executed after appointed date but prescribed authority has not recorded any finding regarding execution of sale deed executed by father of petitioner in favour of Sri Ram Charan Lal in the year 1959. Feeling aggrieved by aforesaid order of prescribed authority, petitioner filed an appeal. Appellate authority partly allowed the appeal and held that Plot Nos. 168 and 170 of village Faridpur is grove. Appellate authority rejected relief regarding family and has not taken into consideration sale deed executed by father of petitioner. A writ petition against the aforesaid order was filed being Writ Petition No. 367 of 1982. This Hon'ble Court vide its judgment and order dated 19.7.1984 was pleased to allow writ petition and remanded the matter to appellate authority for consideration. Respondent No. 1 on remand, appeal filed by petitioner was dismissed in default on 21.10.1987. An application for restoration filed by petitioner was also dismissed. Again petitioner approached this Court by filing Writ Petition No. 19483 of 1986 and said writ petition was allowed on 20.3.1996 directing the appellate authority to decide the appeal on merits. Appellate authority illegally without considering the evidence on record held that sale deed executed by Sri Balwant Singh is non-effective on the ground that sale deed has not been given effect to by purchaser Ram Charan Lal. Appellate authority has wrongly held that as the name of father of petitioner remained in revenue record, as such, no relief can be granted to petitioner. Petitioner has filed copy of registered sale deed of Plot Nos. 972, 102 and 703 situated in Village Haldaur and Chhajupura of town Bijnor on 1.5.1959. An application was filed by Ram Charan Lal for mutation and his name was duly mutated in respect of aforesaid plots because petitioner filed copy of khatauni, which was on record as 1381 F to 1383 F. From perusal of the aforesaid documents it was clear that sale deed was executed in favour of Ram Charan Lal was duly given effect to in the revenue record. Prescribed authority also has not taken into consideration the effect that father of petitioner executed a sale deed in the year 1959 and has failed to examine the ingredients of Section 5 (6) of the Act, as such, orders passed by respondents are vitiated in law.
(3.) FURTHER submission has been made by Sri Anil Sharma, learned counsel for petitioner that as sale deed was executed in the year 1959 prior to vesting date, therefore, burden was upon the State to establish regarding execution of sale deed in good faith and for adequate consideration. Respondents as well as courts below have not taken into consideration the aforesaid fact. The findings to this effect recorded by court below that at the time of execution of sale deed, the village in question was under consideration, is patently incorrect and is against facts on record. Appellate authority has illegally held that sale deed has been executed without permission of Settlement Officer, Consolidation, though respondent-State at no point of time has filed any document to show that village in question during period of execution of sale deed was under consolidation and permission of Settlement Officer, Consolidation was required. Appellate authority without considering the khatuni on record held that there is no evidence to show that sale deed has been given effect too. The consolidation proceeding was initiated in village subsequent to execution of sale deed and in place of plot No. 972, new plot No. 867 came into existence and said plot was in possession of purchaser. As petitioner had no concern with land in question, therefore, inclusion of such area in holding of petitioner, was totally illegal and against relevant provision of the Act. The appellate authority vide its order dated 29.9.1981 held that plot Nos. 168 and 170 of village Faridpur was held grove but petitioner has been denied the benefit of these plots in the ceiling limit. As family member of petitioner consists of seven members, as such, petitioner is entitled more area in ceiling limit, hence, petitioner has approached this Court. Learned counsel for petitioner has placed reliance upon a judgment of the Apex Court in Ramadhar Singh v. Prescribed Authority and others, 1994 (Suppl) (3) SCC 702. Taking support of aforesaid judgment, learned counsel for petitioner submits that sub-section (6) of Section 5 of the Act says that in determining the ceiling area applicable to a tenure holder, any transfer of land made after 24.1.1971, which but for the transfer would have been declared as surplus land under the Act shall be ignored and not taken into account. It does not confer jurisdiction on the authorities to determine the validity of a sale deed executed prior to 24th January, 1971. Reliance has been placed upon para 2 of the said judgment. The same are being reproduced below : "2. It has to be seen under what provision of the Act can the validity of the sale executed prior to 24.1.1971, the appointed day, be gone into ? Sub-section (6) of Section 5 of the said Act says that in determining the ceiling area applicable to a tenureholder, any transfer of land made after 24.1.1971, which but for the transfer would have been declared as surplus land under the Act shall be ignored and not taken into account. The proviso (b) thereto, inter alia, provides that a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and an irrevocable instrument, not being of benami transaction or for immediate or deferred benefit for the tenureholder or other members of the family, is outside the scope of the aforesaid sub-section. Thereafter Explanation II provides that the burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit. Apparently, it is under this provision of law that the validity of the sale deed dated 22.4.1969 was put to test. The authorities under the Act took the view that the sale deed was not genuine because no consideration appears to have passed before the Sub-Registrar and that it was a transfer between father and son raising a dust of suspicion. Otherwise it was not disputed on fact that the sale had been effected by means of a registered deed in which the passing of consideration was mentioned as a recital. The existence of the sale deed being not disputed and it having taken place, as said before, on 24.2.1969, prior to the appointed day that is 24.1.1971, the inquiry regarding the validity of the sale deed under sub-section (6) of Section 5 was totally misplaced. Thereunder, as it appears to us, the appropriate authority had no jurisdiction to put the validity of the sale deed to test since his jurisdiction arose only when the deed of transfer had been effected on or after the appointed day. Not only the first and the appellate authority under the Act persisted in that view, but the High Court too proceeded on that basis. The effort of the appellant to have it declared that the authorities had no jurisdiction to invalidate the sale under sub-section (6) of Section 5 when read with Explanation II to sub-section (1) of Section 5 also was a futile attempt because the High Court followed the path, as did the authorities under the Act, and rejected the writ petition. We are of the view that this was a wholly erroneous approach. Sub-section (6) of Section 5 did not confer jurisdiction on the authorities to determine the validity of the sale and if that is so any finding of their's as to the contents of the sale is of no assistance. In the result the appeal must succeed. Accordingly, allowing the same we set aside all the orders of the authorities below as also that of the High Court. No costs." ;