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1995 Supreme(All) 1104
HIGH COURT OF ALLAHABAD
S.R.Singh
SHREE ARYA DHARM SEWA SINGH BIRLA MILLS DELHI
Versus
STATE OF U P
Decided On : 03 November 1995
Civil Misc. W. P. No. 1682 and 17997 of 1987
Ranjit Saxena,
Sub-sections (2), (3), and (4) of Section 6 of the U. P. Imposition of Ceiling on Land Holdings Act, 1960, which were inserted retrospectively, made it clear that any land transferred in contravention of Section 6(2) by a wakf, trust, or endowment would be deemed surplus land.
Headnote:
CEILING ACT - U. P. IMPOSITION OF CEILING ON LAND HOLDINGS ACT, 1960 - SECTION 6(2), (3), (4) - RETROSPECTIVE EFFECT - TRANSFER OF LAND WITHOUT PRIOR PERMISSION - VOID - DEEMED SURPLUS LAND - LIMITATION - SECTION 31 - NOT APPLICABLE.
Fact of the Case:
The Trust, Shree Arya Dharm Sewa Sangh Birla Mills, Sabzi Mandi, Delhi, filed a writ petition challenging a notice issued under Section 9(2) read with Sections 29 and 30 of the U. P. Imposition of Ceiling on Land Holdings Act, 1960, calling upon the Trust to show cause why surplus land should not be determined. The State of Uttar Pradesh filed writ petitions challenging appellate orders that reversed orders passed by the Prescribed Authority under Section 6(2) of the Act, holding that the sale deeds executed by the Trust without prior permission were not void and the land covered by the sale deeds would not be deemed surplus.
Finding of the Court:
The court held that sub-sections (2), (3), and (4) of Section 6 of the Act, which were inserted retrospectively, made it clear that any land transferred in contravention of Section 6(2) by a wakf, trust, or endowment would be deemed surplus land. The court rejected the argument that the requirement of obtaining prior permission of the State Government for transfer under sub-section (2) was impossible to perform, as the doctrine of impossibility (lex non cogit ad impossibilia) did not apply to completed transactions that may stand nullified as a result of retroactive enactment.
Issues: 1. Whether sub-sections (2), (3), and (4) of Section 6 of the Act had retrospective effect. 2. Whether the transfer of land without prior permission of the State Government was void. 3. Whether the land transferred without permission was deemed surplus land. 4. Whether the limitation period under Section 31 of the Amending Act applied to the proceedings initiated by the prescribed authority.
Ratio Decidendi: 1. The court held that sub-sections (2), (3), and (4) of Section 6 of the Act were retrospective in operation, as they were deemed to have been always inserted by Section 7 of the U. P. Imposition of Ceiling on Land Holdings (Amendment) Ordinance, 1975, and Section 1(2) of the U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1976. 2. The court held that any transfer of land made without prior permission of the State Government under Section 6(2) was void, as per the provisions of the Act. 3. The court held that any land which was the subject of a transfer that was void under Section 6(2) would be deemed to be surplus land with effect from October 10, 1975, or the date of the purported transfer, whichever was later, as per sub-section (3) of Section 6. 4. The court held that the limitation period under Section 31 of the Amending Act did not apply to the proceedings initiated by the prescribed authority, as Section 6 of the Act did not provide for re-determination of surplus land, but rather required the prescribed authority to find out if any transfer had been made without permission of the State.
Final Decision: The court dismissed the writ petition filed by the Trust and allowed the writ petitions filed by the State of Uttar Pradesh, quashing the appellate orders that had reversed the orders passed by the Prescribed Authority under Section 6(2) of the Act.
This bunch of 108 writ petitions - one filed by Shree Arya Dharm Sewa Sangh Birla Mills, Sabzi Mandi, Delhi (in short the Trust) and others by State of U. P.- may conveniently be disposed of by a common order in that the causes of action giving rise to these petitions are exactly similar identical and same questions of law are involved in these writ petitions It is not disputed that in proceeding for determination of surplus land, if any, held by the Trust, the prescribed authority, vide its order dated 29- 11-1974, had held that the Trust was entitled to be exempted under Section 6 (f) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (in short the Ceiling Act) and provisional notice dated 2-3-1974 issued to the Trust for determination of surplus land as tenureholder was dropped vide order dated 22- 11-1974 on the finding that the Trust was created before the prescribed date i. e. 1-5-1959 wholly for charitable purposes and its income was being utilised for such purposes.
2. For the convenience it may be stated that writ petition No. 1682 of 1987 has been filed by Shree Arya Dharm Sewa Sangh, Birla Mills, Sabzi Mandi, Delhi against the notice dated 31-10-1986 under Section 9 (2) read with Sections 29, 30 of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 whereby the Manager, Arya Dharm Sewa Sangh Trust, Haripar Kalan, Dehradun was called upon to show cause, within 15 days, as to how much total area of land was held by the Trust at the time of commencement of the Act and how much areas had been transferred by it in favour of individuals. The notice was alto called upon to disclose how much area remained with it on the date of notice, so that fresh proceeding, under the Ceiling Act be initiated, if necessary against the Trust, Writ Petition No. 17997 of 1987 and other connected writ petitions mentioned herein above have been filed by the State of Uttar Pradesh against the identically worded separate appellate orders dated 4-3-1987 whereby the Divisional
Commissioner has allowed the appeals preferred by different transferees of the Trust aforesaid against identi cally worded separate orders passed by the Prescribed Authority (Ceiling) under Section 6 (2) of the Act. It appears that an area of 62. 01 acres was transferred by means of different sale deeds executed by the Trust (tenure holder) in favour of various persons between 6-3-1972 and 20-8-1974 (both dates inclu sive) and 0. 27 acre by sale deed dated 13-2-19 6 as per statement made be Sri K. N. Tripathi learned counsel appearing for the Trust and its vendees. Orders in respect of some transfers were passed by the Prescribed Authority while in respect of others the proceedings were stayed as a result of stay order dated 24-3-1987 passed by this Court on application for interim relief moved in writ petition No. 1682 of 1987. Orders already passed under Section 6 (2) of the Act were, however, reversed by the appellate authority vide separate but identi cal orders dated 4-3-1987 which orders are under challenge in writ petitions filed by the State of U. P.
3. The Divisional Commissioner has taken the view that sub-section (2) of Section 6 of the Act does not have retrospective effect and hence the sale-deeds executed without prior permission were not void and consequently the land covered by the sale-deeds would not be deemed to be surplus.
4. So far as the view taken by the Additional Commissioner is concern ed, it is pulpably and manifestly erroneous. According to Section 6 (1) (f) of the Act land held from before the 1st day of May, 1959 by or under a public and religious or charitable wakf, trust, endowment, or institution the income from which is wholly utilised for religious or charitable purposes, and not being a wakf trust or endowment of which the beneficiaries wholly or partly are settlor or members of his family or his descendants, is no doubt, not to be taken into consideration for the purposes of determination of ceiling area
