CASE NO.:
Appeal (civil) 112 of 1995
PETITIONER:
SANJAY KUMAR AND ANR.
RESPONDENT:
STATE OF U.P. AND ORS.
DATE OF JUDGMENT: 31/08/1995
BENCH:
M.M. PUNCHHI & FAIZAN UDDIN
JUDGMENT:
JUDGMENT
1995 (3) Suppl. SCR 186
The following Order of the Court was delivered :
The question that arises for determination in this appeal is whether
involuntary transfers such as a court sale, is a transaction valid under
the provisions of sub-sections 6 and 8 of Section 5 of the Uttar Pradesh
Imposition of Ceiling on Land Holdings Act, 1960 (for short ‘the Ceiling
Act’), and to be reckoned in decreasing the surplus area?
One Jagdish Chander was a tenure-holder in village Bijeser Bijoria, Distt.
Shahjahanpur in the State of U.P. He had a large holding being over 1.00
acres of land. On 10-1-1974, he was served with a notice containing the
necessary statement of his holding under the provisions of Section 10{2) of
the Ceiling Act. A proposal was appended therewith as to which of his area
was proposed to be declared ‘surplus’ The tenure-holder thereafter filed
certain objections. His objections mainly were that his entire holding was
unirrigated and had wrongly been termed as ‘irrigated’ and for this twist,
he gave various reasons. He also raised the plea that he had one major
unmarried daughter and therefore was entitled to get two additional
hectares of land for her. He did not mentioned about his son. Perhaps he
was a minor on the crucial date. Lastly, he made an option to effect a
change in the lands proposed to be declared surplus. These facts are
crystal clear from the narration given in the order of the Additional
District and Sessions Judge, Shahjahanpur, appended as Annexure ‘A’ to the
special leave petition.
During the pendency of the proceedings, Jagdish Chander died and his heir
Ajai Verma was substituted in the year 1984. On 22-8- 1984, 82.49 acres of
land of the tenure-holder was declared ‘surplus’. The matter rested there
so far as Jagdish Chander and his family members were concerned. The matter
for them became closed.
The appellants before us were the writ petitioners in the High Court. They
are sons of one Dharmendra Nath. This Dharmendra Nath, apparently, had
certain money claims on the basis of pronotes against the aforesaid Jagdish
Chander, He filed four suits in the civil court for the recovery thereof.
The sums involved were small. The suit were decreed basically on consent or
compromise. All of them were instituted and decided in the year 1972.
Purporting to recover those decretal amounts, auction of land on the
judgment-debtor was suggested in execution and the executing court in order
to recover the decretal sums, put to auction 75.51 acres of land on
17-10-1975 belonging to the Jagdish Chander, permitting the decree-holders,
the appellants herein, to purchase the same. The sale was confirmed and
sales certificates were issued. It is in these circumstances that the
appellants moved the Prescribed Authority for setting aside the
determination of the surplus area of the decree-holder vide order dated
20-8-1984. Their objection was dismissed by the Prescribed Authority. Their
appeal, too, was dismissed by the Additional District Judge on 12-9-1985.
This gave an occasion to them to approach the High Court in proceedings
under Article 226 of the Constitution. The appellants, however, raised a
number of pleas to contend that their claim had wrongly been negatived
being bonafide purchasers of surplus area measuring 75.51 acres by an
auction sale and, hence they, were entitled to the protection of law. (In
fact, it was their father who was the auction-purchaser but on his demise
they had been projecting his case as his legal representatives).
The State, on the other hand, questioned the auction sale terming it as
neither being a bona-fide transaction nor for adequate consideration,
giving justification to the Ceiling Authorities to ignore the same. It was
highlighted that since the proceedings for determination of surplus area
were pending from 10-10-1974 till 22-8-1984, the auction sale effected
within that period had to be treated as Void’ conferring no right on the
appellants.
Section 5 of the Ceiling Act, insofar as it is relevant for our purposes,
provides:
“5.(1) IMPOSITION OF CEILING – (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.
EXPLANATION I – In determining the ceiling area applicable to a tenure-
holder, all land held by him in his own right, whether in his own name, or
ostensibly in the name of any other person, shall be taken into account.
EXPLANATION II – (If on or before January 24, 1971, any land was held by a
person who continues to be in its actual cultivatory possession and the
name of any other person is entered in the annual register after the said
date) either in addition to or to the exclusion of the former and whether
on the basis of a deed of transfer or licence or on the basis of a decree,
it shall be presumed, unless the contrary is proved to the satisfaction of
the prescribed authority, that the first mentioned person continues to hold
the land and that it is so held by him ostensibly in the name of the second
mentioned person.)
(2) xxxxxxxx
(3) xxxxxxxx
(4) xxxxxxxx
(5) xxxxxxxx
(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 sub-section shall apply to -
(a) a transfer in favour of any person (including Government) referred to
in sub-section (2) ;
(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 immediate or deferred
benefit of the tenure-holder 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 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 fails within clause (b)
of the proviso shall rest with the party claiming its benefit.
(7) xxxxxxx
(8) Notwithstanding anything contained in sub-sections (6) and (7), no
tenure-holder shall transfer any land held by him during the continuance of
proceedings for determination of surplus land in relation to such tenure-
holder and every transfer made in contravention of this sub-section shall
be void.
EXPLANATION – For the purposes of this sub-section, proceedings for
determination of surplus land shall be deemed to have commenced on the date
of publication of notice under sub- section (2) of Section 9 and shall be
deemed to have concluded on the date when an order in relation to such
tenure-holder is passed under sub-section (1) of Section 11 or under sub-
section (1) of Section 12, or as the case may be, under Section 1.3.
The High Court in its judgment under appeal, on applying the abovesaid
provisions, arrived at a decision that the appellants had no case since
they had purchased the area in an auction-sale in the year 1975, sale of
which was confirmed in 1977, after the date of the commencement of the Act,
i.e., 8-6-1973, when the disputed area belonged to Jagdish Chander, the
tenure holder. The High Court viewed that the Ceiling Authorities were
fully justified in ignoring the auction sale and treating the auctioned
area as holding of the tenure-holder while determining his surplus area.
Notice was found to have been given to the son of the tenure-holder, even
though residing in Sweden at that time. The High Court also opined the sale
would be Void’ in the facts and circumstances, even though involuntary and
being an auction-sale. Besides, the High Court was also of the view that
the appellants had failed to produce relevant documents to demonstrate that
valid decrees had been passed in good faith against the tenure-holder and
that the auction-sale was held in good faith and was valid and legal,
removing the suspicion of a large area of 75.51 acres being sold for just a
sum of Rs. 10,000 only. The transaction, as such, was viewed by the High
Court as not bona fide or for adequate consideration.
The Ceiling Act came as a measure to further promote agrarian reforms and
to curtail the size of the land holdings to 7.5 hectares per family. The
provisions of the ceiling Act enjoy the protection of the 9th Schedule to
the Constitution. In reading the provisions thereof one has to attune
oneself with the purposes of the Act. As it is, Section 5 imposes a ceiling
on land holdings and has taken care to plug all escape routes by which the
measure of the holding could, by patent or latent devices, be diminished.
The courts, and especially the officers in the hierarchy, have to have the
necessary insight to see that the purposes of the Ceiling Act are not
frustrated. The view of the courts would necessarily have to bear that
slant in giving full effect to the provisions of the Act. As reproduced
above, Section 5 lays down the method of determination of the ceiling area.
It is to be computed as the holding stood on 24.1.71. All transfers
effected thereafter, would have to be ignored not taken into account.
Exceptions thereto are provided in the proviso and the explanations. 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 immediate or deferred
benefit of the tenure-holder or other members of his family is excepted
from the purview under sub-section 6. Then again sub-section 8 which starts
with a non-obstante clause, inter alia, provides that “Notwithstanding
anything contained in sub-section (6), no tenure-holder shall transfer any
land held by him during the continuance of proceedings for determination of
surplus land in relation to such tenure-holder and every transfer made in
contravention of this sub section shall be void”. The Explanation thereto
gives the duration during which proceedings can be said to have continued
for determination of surplus area. Undeniably, had the transfer of 75,51
acres been made by the tenure-holder himself, sub-sections (1), (6) & (8)
of Section 5 would warrant ignoring thereof and not being taken into
account. Further, if that transfer was within the time during the
continuance of the proceedings for determination of surplus land then it
would be void altogether. This being the scheme of the Act, principly it
would not make any difference whether the sale is voluntary or involuntary,
for in either way the surplus area would get diminished and susceptible to
the adoption of devices so as to diminish the extent of surplus area,
expected to be reaped in the measure of agrarian reforms. The High Court
was, thus, not wrong in trying to discover and then finally determine that
in the absence of full particulars regarding the auction- sale, it was
difficult to hold that the auction-sale happened to be bona fide and for
adequate consideration or otherwise valid. The appellants themselves have
produced before us the copies of the judgments/decrees of the Civil Court.
They are, as said before, for paltry sums of money & basically on
compromise or consent. Significantly, they date back to the year 1972 when
agrarian reforms throughout India w.e.f. 24.1.71 was a talk of the times,
in media, Press and policy statement of the government of the time. Those
amounts were not such which the judgment-debtor could not pay off and had
to let auction take place of such a large chunk of land of 75.51 acres to
be purchased by the decree-holders themselves for a paltry sum of Rs.
10,000 only, even if the tenure-holder were to be believed that the area
was unirrigated, though not holding so. That the auction-sale took place at
a time when the surplus area proceedings were pending, further goes to show
that the transfer was void. The auction-sale cannot be validated merely
because it was conducted under Orders of the Civil Court especially when
such sale if allowed to stand would tend to defeat the provisions of the
Ceiling Act. That Act would stand as a clear bar to the claim of the
decree-holder in respect of lands which were involved in the surplus area
proceedings.
The view of the High Court thus, as it appears to us, was in consonance
with the letter and spirit of the Act and quite just in the circumstances.
We agree with that view. We, thus, conclude to say that the sales,
voluntary or involuntary, are required to pass the test of being bona fide
sales and for adequate consideration so as to be excluded from being
computed in the surplus area of the tenure-holder and are to be treated as
void when taking place during continuance of surplus area proceedings.
For these reasons, we dismiss this appeal but without any order as to
costs.
Appeal dismissed.