Manvendra Singh and Others vs State of U.P. and Others

Arun Tandon, J.—This writ petition has been filed against the order of the District Judge, Bareilly dated 27.10.1994 whereby the appeal filed by the State u/s 13 of the U.P. Imposition of Ceiling On Land Holdings Act, 1960 (herein after referred to as the Act, 1960) against the judgment and order of the Prescribed Authority dated 30.3.1982 has been allowed. The order of the Prescribed Authority has been set aside.

Facts in short giving rise to the present writ petition are as follows:

(i) Proceedings u/s 10(2) of the Act, 1960 were initiated against one Pooram Singh, the recorded tenure holder. Objections were filed to the notice by Pooran Singh on 31.8.1974 and it was stated that he had transferred certain land through four sale deeds, three of the same date i.e. 24.5.1971 and the fourth dated 28.6.1971. These sale transactions according to Pooran Singh were bona fide, therefore, the land covered by the said sale-deed was liable to be excluded from his total land holding. The objections so raised by Pooran Singh were repelled by the Prescribed Authority and the land covered by the sale-deeds was directed to be included in the land holding as the bona fides of sale could not be established. Accordingly 91 Bigha 4 Biswa and 4 Biswansi of land was declared as surplus.

(ii) Not being satisfied with the order, Pooran Singh filed an Appeal No. 2310 of 1973. In the appeal also he raised the same issues. The Appellate Court also rejected the contentions so raised and dismissed the appeal vide order dated 27.10.1974. Not being satisfied, he filed writ petition before the High Court which was also dismissed under an order dated 18.4.1978. Meaning thereby that so far as Pooran Singh is concerned i.e. the recorded tenure holder, his plea that the transfers effected by sale-deeds dated 24.5.1971 and dated 28.6.1971 were held to be not bona fide transfer and the land so transferred had to be treated as part and parcel of the holdings of Pooran Singh.

(iii) At this stage of the proceedings the present Petitioners, who claim to be the purchaser of the land in dispute and who are none other than the sons and the grandsons etc. of Pooran Singh, filed an application for recall of the order passed by the Prescribed Authority dated 28.12.1974, referred to above.

(iv) It is not necessary for the Court to enter into the details of the proceedings taken thereafter. Suffice is to record that under an order of the Civil Judge dated 10.11.1978, it was directed that the objectors were entitled to a notice and opportunity of hearing to establish that the sale transactions were bona fide and the land covered by the said sale-deed be excluded from the holdings of Pooran Singh. It was specifically provided that the Prescribed Authority would re-determine the issue after affording opportunity to the parties concerned.

(v) In terms of the order of the Civil Judge, the proceedings were reopened and the Prescribed Authority vide order dated 30.3.1982 held that the land covered by the sale deeds dated 24.05.1971 and dated 28.6.1971 were bona fide transactions and that the land so transferred by Pooran Singh had to be executed from his tenure holding.

Not being satisfied with the order so passed the State of U.P. preferred an appeal. The Appellate Authority under the impugned order has held that the finding with regard to the bona fide of the sale transactions as were recorded in proceedings against Pooran Singh were binding upon the present Petitioners inasmuch as they were the purchasers and had stepped into the shoes of the recorded tenure holder against whom the proceedings had become final upto the Hon''ble High Court. The Appellate Authority however also examined the merits of the case pleaded by the Petitioners for establishing the bona fide of the sale transactions and held against the objectors.

I have heard learned Counsel for the parties and have examined the records.

Under the Appellate order dated 10.11.1979 the matter was remanded to the Prescribed Authority for examining the bona fide of the sale transactions afresh, after affording opportunity to the present Petitioners and the said order was permitted to become final by the State. It was, therefore, not open for the appellate authority, under the impugned order, to go behind the same. This Court leaves the issue at this stage only. As according to the Court the issue qua sale transaction being bona fide need be examined on merits itself.

The Appellate Authority has specifically noticed in detail the law explained by the Supreme Court, for a sale transaction to be held as one in good faith as required u/s 5(6) proviso B of the Act, 1960 in the case of Brijendra Singh v. State of UP. and Ors. 1981 RD 35 (SC) After quoting the relevant portion of the judgment of the Supreme Court the Appellate Authority has considered the evidence which has been brought on record. It has been noticed that the sale-deeds have been executed by the tenure holder Pooran Singh in favour of his sons and grandsons. The plea that Pooran Singh was in debt could not established by the present Petitioners and for the purposes cogent reasons have been recorded. Similarly it has been recorded that although the Registrar had made a note that he knew Pooran Singh, yet no witness was produced who could establish the actual payment of sale consideration for the purchase of the land. A finding has been recorded that recorded tenure holder has failed to establish the bona fide of the sale transactions which were admitted by subsequent to 24.1.1971.

Challenging the finding so recorded by the Appellate Authority, Counsel for the Petitioner took the Court through various evidence on record namely revenue entries were in the name of the purchaser were mutated, due registration of the sale-deed etc. for alleging that the findings are illegal.

I am of the considered opinion that due execution of the sale-deed which have been executed after 24.1.1971 is only one of the factors which is to be taken into consideration. Not only do execution of the sale-deed is to be established, passing of adequate compensation and the sale being in good faith are also to be proved by tenure holder.

This Court may only reproduce Section 5(6) Proviso (b) of the Act, 1960 which is relevant for our purposes:

Section 5....

(6) ....

(a) ....

(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.

From the aforesaid Section, it is apparently clear that qua a sale transaction effected after 24.01.1971, it has to be established by the recorded tenure holder or by the person concerned to the satisfaction of the Prescribed Authority that such sale has been made in good faith, in addition to the same being through an irrevocable instrument. The Petitioners by establishing the due execution of the sale-deed for valuable consideration only satisfied one of the requirements of Section 5(6) proviso (b). The other requirement that the transaction was in good faith and for adequate consideration which in fact was paid had not been established by the Petitioners as has been held by the Appellate Authority.

Before this Court, the Petitioners could not dislodge the finding recorded by the Prescribed Authority that it could not be established that the tenure holder was in debt on the date of sale. The Petitioner could also not dispute that sale was effected in favour of his sons and grandsons by the tenure holder and there was no evidence to establish the payment of sale consideration. Mere execution of a registered sale deed cannot establish good faith in the transfer.

From the facts on record, the requirements for a sale transaction subsequent to 24.1.1971 being in good faith as per the judgment of the Apex Court in the case of Brijendra Singh (supra) are not satisfied.

Counsel for the Petitioner then contended that it is for the State to establish that the transactions were Benami. The contention so raised does not appeal to the Court in view of the specific language of Section 5(6) Proviso B which require that the sale transfer of a date after 24.1.1971 has to be proved to the satisfaction of the Prescribed Authority to be in good faith in addition to the same being through an irrevocable instrument. Thus the burden of proof that the transaction was in good faith is upon the tenure holder qua sale subsequent to 24.1.1971 and not for the State to establish otherwise.

The findings of fact recorded by the authorities cannot be reopened on re-appreciation of evidence by the Court. The finding cannot be termed as perverse or based on no evidence. No interference is warranted under Article 226 of the Constitution of India. Writ petition is dismissed.

Interim order, if any, stands discharged.