K. P. Singh, J. - (1.) THIS writ petition arises out of proceedings under Section 10, sub-clause (2) of U. P. Imposition of Ceiling on Land Holdings Act. The petitioner was served with a notice to show cause why 38.88 acres irrigated land may not be declared as surplus area. The petitioner had filed an objection with the allegation that Smt. Bari Dulaiya was not a legally married wife and the land standing in her name was wrongly treated as the land of the petitioner, hence the surplus area indicated in the notice was patently wrong. Another material objection raised on behalf of the petitioner-objector was that he had transferred some plots through registered deed for adequate consideration and the sold land has been wrongly included in the ceiling limit of the petitioner. The petitioner had raised other objections also which are not material for the purposes of the present writ petition. The Prescribed Authority through its judgment date 30th June, 1976 declared 38.38 acres land of the petitioner as surplus area.' Aggrieved by the decision of the Prescribed Authority the petitioner had preferred an appeal which was also dismissed by the appellate authority through its judgment dated 29-11-1976. Thereafter the petitioner has come up to this Court under Article 226 of the Constitution and the learned counsel for the petitioner has challenged the judgment of the appellate authority on the following grounds:- Firstly according to the learned counsel for the petitioner the appellate authority has committed an error apparent on the face of the record in ignoring the sale deed dated 12-4-1972 on erroneous grounds. The appellate authority has ignored the oral evidence on the record while ignoring the sale deed dated 12-4-1972. Secondly the learned counsel for the petitioner has contended that there was no legal marriage between the petitioner and Smt. Bari Dulaiya, hence the land standing in the name of Smt. Bari Dulaiya was wrongly treated as the land of the petitioner and thus the determination of surplus area of the petitioner stands vitiated in law.
(2.) LEARNED counsel for the State has refuted the contentions raised on behalf of the petitioners. He has submitted that the transfer deed relied upon by the petitioner is of later date than 24th January, 1971, hence it was rightly ignored by the ceiling authorities. He has further submitted that the petitioner and Smt. Bari Dulaiya were living as husband and wife for sufficiently long time, hence the land standing in the name of Smt. Bari Dulaiya was rightly treated as the land of the petitioner. I have examined the contentions raised on behalf of the parties. The appellate authority has dealt with the grievance of the petitioner with regard to the sale deed dated 12-4-1972 as below :- " The first is a transfer of 32.57 acres of unirrigated land on 12-4-72 by the appellant. These transfers which are seven in number were made by registered deed and it is argued on behalf of the appellant that since these transfers are bona fide and for consideration they should be ignored and the ceiling area determined after excluding them. The spirit of the Act is that all transfers made after 1971 are to be treated as void because there is a presumption that they were made primarily to evade the law. It is only in exceptional circumstances that they can be considered, on the face of it therefore, a presumption would arise that they are void and they were made only to get out of the clutches of the law. The onus was thus very heavy on the appellant to prove that they were really bona fide. For this it was necessary for him to show that there was any pressing necessity to transfer the same. There is however, no such evidence on record. Moreover the genuineness of these transfers is not in question before me. The only thing done by the State is that that area has been included for the purpose of determining the ceiling area of the appellant. The contention was thus to my mind rightly repelled by the Prescribed Authority."
(3.) LEARNED counsel for the petitioner has invited my attention to sub-clause (6) of Section 5 of U. P.. Imposition of Ceiling on Land Holdings Act, which runs thus :- "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." Learned counsel for the petitioner has emphasised that in the present case the sale deeds were for adequate consideration and irrevocable instrument, not being benami transactions or for immediate or deferred benefit of the tenure-holder or other members of his family, hence the ceiling authorities have committed patent mistake in ignoring the safe deeds executed by the petitioner. In the present case I find that the appellate authority has not discarded the sale deed on the ground that the transaction was through revocable instrument or was benami transaction or for immediate or deferred benefit of the tenure holder or other members of the family.;