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1978 Supreme(All) 767
IN THE HIGH COURT OF ALLAHABAD
B.N. SAPRU, J.
Gabboo Singh - Appellant
Versus
The Civil Judge and Others - Respondent
Civil Misc. Writ No. 3659 of 1976
Decided On : 05-05-1978
Advocate Appeared:
For the Appellant : R.S. Misra
A Bhumidhar under the U.P. Zamindari Abolition and Land Reforms Act, 1950, has the right to sell his land, and such a sale is a valid and irrevocable instrument of transfer.
Headnote:
LAND CEILING - U.P. IMPOSITION OF CEILING ON LAND HOLDINGS ACT, 1960 - SECTION 5(6) - SALE OF LAND BY BHUMIDHAR - VALIDITY - INTERPRETATION OF LEASE DEED AND RELEVANT PROVISIONS OF THE ACT - APPLICABILITY OF SECTION 131 OF THE U.P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1950 - DETERMINATION OF CEILING AREA.
Fact of the Case:
The Petitioner, a Bhumidhar of certain land in Nainital, sold a portion of his land to Satnam Singh by a registered sale deed. The Prescribed Authority and the appellate court rejected the Petitioner's objection to exclude the sold area from the ceiling area applicable to him, holding that the sale was not a valid transfer due to a lease prohibiting such transfer.
Finding of the Court:
The High Court held that the appellate court's order suffered from a manifest error of law. It found that the Petitioner had become a Bhumidhar under the U.P. Zamindari Abolition and Land Reforms Act, 1950, and as such, he had acquired the right to execute the sale deed, which was an irrevocable instrument of transfer.
Issues: 1. Whether the Petitioner had the right to sell the land in question. 2. Whether the sale deed was a valid and irrevocable instrument of transfer. 3. Whether the appellate court erred in not considering the relevant provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950, and the facts of the case.
Ratio Decidendi: 1. The High Court interpreted the lease deed and the relevant provisions of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, and the U.P. Zamindari Abolition and Land Reforms Act, 1950. 2. It held that the Petitioner, as a Bhumidhar, had the right to sell the land in question. 3. The High Court found that the sale deed was a valid and irrevocable instrument of transfer. 4. It held that the appellate court erred in not considering the relevant provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950, and the facts of the case.
Final Decision: The High Court allowed the writ petition, set aside the appellate court's order, and directed the Appellate Authority to decide the appeal afresh in light of the observations made in the judgment.
B.N. SAPRU, J.
1. This writ petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act).
2. The Petitioner is the Bhumidhar of certain land situated in village Kichha District Nainital. The Petitioner was served with a notice u/s 10(2) of the Act. He filed objections. One of the objections was that he had sold plot Nos. 41, 44, 71/1, 71/3, 72/1 and 72/3 by a registered sale deed dated 5th February, 1971 to Satnam Singh and that the land had been mutated in the name of Satnam Singh and as such the area covered by the said sale deed should be excluded while determining the ceiling area applicable to him.
3. The Prescribed Authority rejected the objection of the Petitioner.
4. The Petitioner preferred an appeal against the order of the Prescribed Authority. The appellate court rejected the appeal and the appellate court has held that the Petitioner had no right to sell the land and it has held that the Petitioner held (the land) under a lease which prohibited a lessee from transferring in contravention of the terms of the lease. Consequently, it held that the transfer by way of sale was not a valid transfer. Further it held that the sale deed was also not an irrevocable instrument of transfer. It, therefore, held that the Petitioner was not entitled to have the area excluded while determining the ceiling area applicable to him.
5. Aggrieved by the order of the appellate authority the Petitioner has filed the instant writ petition. The Petitioner has filed as annexure 3' to the writ petition, a copy of the lease which is in the Standard Forms of agricultural grant for use in the colonies to be established in the Tarai and Babar Government Estates, Nainital Ganga Khadir, Meerut. Clause 1 of the lease deed prescribes that in consideration of the rent reserved the land was leased out to the grantee, his heirs and assigns as a hereditary tenant as defined in the United Provinces Tenancy Act of 1939. Thereafter, Clause 5 of the lease deed provides that the grantee shall not sublet, transfer or otherwise alienate the land granted to him except with the written permission of the Land Settlement Cooperative Society, and such permission shall be given only with the approval of the grantor and in accordance with its bye-laws. It was also provided that any lease, transfer or alienation made in contravention of this condition shall be void.
6. The U.P. Zamindari Abolition and Land Reforms Act was not initially applicable to the area where the Petitioner's land is situated. It was, however, applied by a Notification No. 226(1)/ A-2-1(2)/69 dated June 30, 1969. The Act was made applicable to the area in question in accordance with the provisions of Clause (b) of Sub-section (1) of Section 21 of the U.P. Zamindari Abolition and Land Reforms Act. The Act was enforced with certain modifications. Learned Counsel for the Petitioner has drawn my attention to the notification and Schedule II. In serial No. 8, Section 131 has been substituted, which runs thus:
Every person belonging to any of the following classes shall be called a sirdar and shall have the rights and be subject to all the liabilities conferred or imposed upon sirdars by or under this Act; namely
(iv) a lessee holding a lease under the provisions of the Government Grants Act, 1895 and having rights of a hereditary tenant under the terms of the lease, but not possessing the right to transfer the holding by sale." The Petitioner's counsel argued that in view of the notification, the Petitioner became a sirdar. He further pointed out that he subsequently became a bhumidhar under item No. 7 of the notification. Thereafter, in Section 131, the following was substituted:
Every person belonging to any of the following classes shall be called a bhumidhar and shall have all the rights and be subject to all the liabilities conferred or imposed upon bhumidhars by or under this Act: namely
(b) every person who is admitted as
