Judgment

SARKARIA, J.:- Special leave to appeal granted.

2. This is an appeal by special leave against an appellate judgment dated may 23, 1978 of the High Court of Allahabad. The material facts giving rise to this appeal are as under :

The Prescribed Authority under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (Act No. 1 of 1961) (as amended by U. P. Act 18 of 1973) issued notice to the appellant to show cause why 25.96 acres out of 44 acres of irrigated land from his holding be not declared surplus. In response to this notice, the appellant filed objections stating, inter alia, (i) that the entire land was unirrigated; (ii) that there was no source of irrigation in field Nos. 1373, 79 and 80; (iii) that the appellant had made two sales of 12.50 acres each, 25 acres in all, for a valid necessity, namely, to raise funds for acquiring a site and constructing a resential house in New Delhi. (a) The appellant being an Army Officer in the rank of Brigadier had after obtaining permission on January 2, 1971 from the Army Headquarters, sold 12.50 acres of the land for a consideration of Rs. 25,000/- to one Inderjit Singh by a registered deed, dated August 9, 1971, and handed over the possession to the vendee; (b) Similarly, after obtaining the permission of the Army Headquarters on January 2, 1971, he sold 12.50 acres of the land for Rs. 25,000/- to one Gurjeet Singh by another registered sale deed and handed over the possession to the vendee. Since the money raised by these sales was insufficient to purchase a building site and constructing a house thereon, the appellant also raised a loan of Rs. 50,000/- from the Government for that purpose.

3. The Prescribed Authority by its order dated June 26, 1977, rejected the objections of the appellant and declared 25.96 acres of the land as surplus.

4. Aggrieved by the order of the Prescribed Authority, the appellant went in appeal before the Appellate Authority (District judge, Rampur), who, by his order dated December 8, 1977, partly allowed the appeal, holding that the entire land was unirrigated and accordingly declared 16.94 acres of unirrigated land as surplus. The District Judge has not held that the aforesaid sales made in favaur of Inderjit Singh and Gurjeet Singh by two sale deeds of 12.50 acres each, were fictitious or Benami, nor has he found that the vendees were not in possession of the sold land. The District judge seems to have denied the protection of Proviso (b) of sub-section (6) of Section 5 of the Ceiling Act to the said two sales, merely for the reason that "the appellant had failed to prove any impelling necessity for building a house and that he could not do without a house in New Delhi", and therefore, "it could not be held that the sales in question were not effected to avoid the Ceiling Law."

5. To impugn this decision of the District judge, in so far as he did not uphold the aforesaid sales relating to 25 acres of land, the appellant filed a writ petition under Article 226 of the Constitution in the High Court, which dismissed the same in limine by its order, dated May 23, 1978. Hence this appeal by special leave.

6. The question of law that has been mooted before us is, whether a sale made by a tenure-holder on a date between January 24, 1971 and June 8, 1973 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, can be held to be not in good faith within the contemplation of proviso (b) to sub-section (6) of Section 5 of the Ceiling Act, merely because the tenure-holder had failed to prove to the satisfaction of the Prescribed Authority or the Appellate Authority that the purpose for which the sale was made, did not, constitute an impelling necessity for the sale.

7. Answer to this question turns on a correct interpretation of the expression "good faith" used in the aforesaid proviso (b).

8. Learned counsel for