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IN THE HIGH COURT OF ALLAHABAD
K.N. SETH, H.N.SETH, JJ.
Yadunath - Appellant
Versus
State - Respondent
Civil Miscellaneous Writ Nos. 522 and 562 of 1977
Decided On : 19-01-1979
U.P. IMPOSITION OF CEILING ON LAND HOLDINGS ACT - Ceiling area determination - Transfer of land - Partition - Burden of proof - Explanation II to Section 5(1) - Scope and effect.
Fact of the Case:
Two writ petitions were filed challenging the orders of the Prescribed Authority and the Civil Judge, Aligarh, in proceedings under the U.P. Imposition of Ceiling on Land Holdings Act. The petitioners claimed that certain transfers of land and a partition decree were genuine and should not be ignored in determining the ceiling area applicable to them. The State contended that these transactions were sham and collusive and should be ignored.
Finding of the Court:
The Court held that the ceiling authorities are not precluded from examining the validity or otherwise of a transfer deed or a decree passed prior to 24th January 1971 while determining the ceiling area applicable to a tenure-holder. The Court also held that a tenure-holder who has not sold his entire tenancy but has retained a small portion of the holding, the transfer deeds executed by him between 24th January 1971 and 8th June 1973 can be examined by the ceiling authorities while determining the ceiling area applicable to him. The Court further held that the burden of proving that a transaction entered into by a tenure-holder prior to 24th January 1971 is a genuine transaction is on the tenure-holder. However, where the material on record indicates circumstances which satisfy the Prescribed Authority either that as a result of the transaction the title in the holding has passed to some other person or that circumstances exist which indicate that a prudent person should act upon the supposition that the title has passed to a third person, the burden shifts and it would be for the State Government to show that the transaction in question was really a sham transaction. The Court also held that Explanation II to Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act controls the provisions of Section 5(1) of the Act.
Issues: 1. Whether the ceiling authorities are precluded from examining the transfer deed or the decree which is prior to 24-1-1971 while determining the ceiling area of a tenure-holder? 2. Whether a tenure-holder if he has not sold his entire tenancy but has retained a small portion of the tenancy, the transfer deeds executed by him between 24-1-1971 and 8-6-1973 can be examined by the ceiling authorities while determining the ceiling area of the tenure-holder? 3. Whether the burden is upon the department to prove that a transaction executed by a tenure-holder is sham, fictitious or no transaction in the eye of law or the burden is upon the tenure-holder to prove its genuineness and bonafide nature with regard to the transaction prior to 24-1-1971. 4. How far explanations I and II to Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act control the provisions of Section 5 Sub-section (1) of the Act?
Ratio Decidendi: The Court held that the ceiling authorities are not precluded from examining the validity or otherwise of a transfer deed or a decree passed prior to 24th January 1971 while determining the ceiling area applicable to a tenure-holder. The Court also held that a tenure-holder who has not sold his entire tenancy but has retained a small portion of the holding, the transfer deeds executed by him between 24th January 1971 and 8th June 1973 can be examined by the ceiling authorities while determining the ceiling area applicable to him. The Court further held that the burden of proving that a transaction entered into by a tenure-holder prior to 24th January 1971 is a genuine transaction is on the tenure-holder. However, where the material on record indicates circumstances which satisfy the Prescribed Authority either that as a result of the transaction the title in the holding has passed to some other person or that circumstances exist which indicate that a prudent person should act upon the supposition that the title has passed to a third person, the burden shifts and it would be for the State Government to show that the transaction in question was really a sham transaction. The Court also held that Explanation II to Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act controls the provisions of Section 5(1) of the Act.
Final Decision: The Court allowed the writ petition No. 562 of 1977 and set aside the judgment of the Civil Judge, Aligarh. The Court also answered the four questions referred to it in writ petition No. 522 of 1977 as indicated in the judgment.
H.N. SETH, J.
1. These two petitions under Article 226 of the Constitution have, on reference by a learned single Judge, been placed before us for making appropriate orders. Both the petitions arise out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act. Whereas, in view of an apparent conflict between two single Judge decisions of this Court in the cases of Ahmad Husain and Others Vs. State of U.P. and Others, (1978) AWC 299 and Hukum Singh v. State U.P. 1978 ALJ 291, the learned Judge has referred the whole case in writ petition No. 562 of 1977 to us for decision. He has, in writ petition No. 522 of 1977 formulated the following four questions of law and has referred the same to us for opinion:
(1) Whether the ceiling authorities are precluded from examining the transfer deed or the decree which is prior to 24-1-1971 while determining the ceiling area of a tenure-holder?
(2) Whether a tenure-holder if he has not sold his entire tenancy but has retained a small portion of the tenancy, the transfer deeds executed by him between 24-1-1971 and 8-6-1973 can be examined by the ceiling authorities while determining the ceiling area of the tenure-holder?
(3) Whether the burden is upon the department to prove that a transaction executed by a tenure-holder is sham, fictitious or no transaction in the eye of law or the burden is upon the tenure-holder to prove its genuineness and bonafide nature with regard to the transaction prior to 24-1-1971.
(4) How far explanations I and II to Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act control the provisions of Section 5 Sub-section (1) of the Act? As the nature of controversy involved in both the references covers common field, we propose to dispose them off by a common order.
2. Petitioners in writ petition No. 562 of 1977, which is directed against the judgment of the Civil Judge, Aligarh dated December 23, 1976 are Brij Bhushan Rathi, his four sons, Rekesh Kumar, Raghuwansh Kumar, Rasik Behari and Vishwa Behari and his daughter Kumari Aruna Rathi. It appears that notices u/s 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act were issued jointly in the names of the Petitioners and one Ram Swarup stating that out of total area of 48.71 acres of. irrigated land belonging to Petitioner Brij Bhushan Rathi, area of 15.85 acres i.e. 27 Bighas, 16 Biswas, 15 Biswansis was proposed to be declared as surplus. Sri Brij Bhushan Rathi filed an objection contending that he had by means of a gift deed dated 27th March, 1970 gifted 41 bighas, 17 biswas of land in Khata No. 37 to his two sons Rasik Behari and Vishwa Behari (Petitioner Nos. 4 and 5). In due course the donees got their names mutated and have been in possession of the land in their own right ever since then. Subsequently in partition suit No. 75 of 1972, the civil court passed a decree on 18th May, 1972 holding that Rakesh Kumari Petitioner No. 2 was owner in possession of 9 Bighas, 16 Biswas, 3 Biswansis of land. It also held that Raghuwansh Kumar was in possession of 19 Bighas, 16 Biswas, 2 Biswansis land and that Kumari Aruna Rathi Petitioner No. 6 owned and possessed 5 Bighas, 16 Biswas, 2 Biswansis of land. Tile objector also claimed that he had, by means of a registered sale deed dated 15-9-1971, sold an area of 4 Bighas, 13 Biswas and 6 Biswansis of land to one Sri Ram Swarup for valuable consideration amounting to Rs. 12,000/-and that in due course the name of Sri Ram Swarup also came to be recorded in the revenue papers in the year 1379 Fasti. Accordingly Sri Brij Bhushan Rathi was not a tenure-holder on 8th June, 1973 and no question of declaring any land as surplus arose. It was also claimed in the alternative that Brij Bhushan Rathi and his four sons were the co-tenure holders of the holding in respect of which notice has been issued to Brij Bhushan Rathi as the same had been their ancestral Sir and Khudkasht and that none of them possessed land in excess of the ceiling area ap
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