R.B. Misra, J. - (1.) THESE two petitions under Article 226 of the Constitution of India arising out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, as amended upto date, raise common questions of law. One of the questions in the two petitions is whether Proviso (b) to Sub -section (6) of Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act) is applicable to transfer by gift.
(2.) THERE is a conflict in the two decisions of this Court on the question. In Raghubar Datt Joshi v. State of U.P. : 1977 AWC 531, brother K.C. Agrawal answered the question in the negative while in Fateh Singh v. State of U.P. : 1977 AWC 534, brother A. Banerji answered the question in the affirmative. The question, therefore, has been referred to us to resolve the conflict. In order to appreciate the point involved in the cases, it will be appropriate at this stage to refer to the scheme of the Act. In order to ensure increased agricultural production and to provide land for landless labourers and to have a more equitable distribution of land, the Legislature thought it expedient to provide for the imposition of ceiling on land holdings in U.P. It is with that purpose that the Act was enacted.
(3.) SECTION 5 of the Act (deals) with the imposition of ceiling. In so far as it is material for the purposes of this case, it reads: 5(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. (2) .... (3) .... (4) .... (5) .... (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 subsection shall apply to (a) .... (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 the immediate or deferred benefit of the tenure holders 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.;