Raghubir Singh And Others vs L.T. Col. K.B. Singh & Others

Sudhanshu Dhulia, J

This case has got an old and chequered history of multiple litigations which have been contested right from the Prescribed Authority till the Hon'ble Apex Court. There has been several rounds of litigation between the parties.

The matter relates to Uttar Pradesh Imposition of Ceiling on Land Holdings, Act, 1960 (from hereinafter referred to as the "Act"), which is also in force in the State of Uttarakhand as well, and by which a ceiling was imposed on the holdings which a tenure-holder could have.

In this case, the original tenure-holder of the concerned land was one Smt. Mahendra Kaur. By the orders of the Prescribed Authority under the Act, her 246 odd "bighas" of land was declared as surplus. Admittedly, the appointed date on which the calculation of the surplus land is to be done is 24.01.1971. The present petitioners before this Court had admittedly purchased this 246 odd "bighas" of land by two separate sale deeds from the original tenure-holder i.e.Smt. Mahendra Kaur, after 24.01.1971 i.e. on 10.05.1974.

Meanwhile, against the land which was declared as surplus, the original tenure-holder Smt. Mahendra Kaur filed an appeal before the Third Additional District Judge, Nainital. A similar appeal was also preferred by the present petitioners before the Third Additional District Judge, Nainital. Both these appeals were dismissed by the court below in the year 25.03.1977 with a direction to the Prescribed Authority to consider the matter under Section 12-A (d) of the Act, where a choice as to which land he could keep was liable to be given to the tenure-holder, whose land was declared surplus.

Thereafter fresh notices were issued and again the land was declared as surplus vide order dated 02.06.1977. The matter ultimately went before the Hon'ble Apex Court in SLP Nos.4540 of 1979 and 3420 of 1979, which were decided by the Hon'ble Apex Court with directions to the original tenure-holder Smt. Mahendra Kaur to submit fresh choice before the Prescribed Authority.

Consequent to the direction of the Hon'ble Apex Court, Smt. Mahendra Kaur filed her fresh choice before the Prescribed Authority and thereafter the Prescribed Authority vide order dated 30.06.1981 declared various plots as surplus, including the plot sold to the present petitioners. Aggrieved, the petitioners filed an appeal against the order passed by the Prescribed Authority. The appellate authority allowed the appeal of the petitioners vide order dated 04.12.1981 and set aside the order dated 30.06.1981 passed by the Prescribed Authority. Subsequently, the order dated 04.12.1981 was challenged by Smt. Mahendra Kaur before the High Court of Judicature at Allahabad by filing the Writ Petition No. 3077 of 1982. The writ petition was allowed by the High Court of Judicature at Allahabad and the order dated 04.12.1981 passed by the appellate authority was set aside. The petitioners then filed an SLP before the Hon'ble Apex Court being SLP No. 662 of 1985, which came to be dismissed by the Hon'ble Apex Court vide order dated 17.04.1996, (Raghubir Singh and others vs. State of U.P. & others), where it was held:-

"8. In the instant case, as aforestated, the transfers of land by the third respondents to the appellants were held to be void and therefore, there was no transfer in the eye of the law. Learned counsel emphasised that they have been held to be void by reason of the provisions of Section 5 (8) which says that no tenure-holder may 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 would be void. It seems to us quite irrelevant whether the transfer was held to be void under this or any provision. The fact is that it was held to be void and that has become final. Since there is no transfer in the eye of the law there is no occasion to apply Section 12-A and Clause (d) of the proviso.

The appeal is accordingly dismissed. No order as to costs."

In other words, the transfer of land in favour of the present petitioners was made after the appointed day i.e. 24.01.1971, it was held to be void in terms of Section 5(8) of the Act.

The petitioners, however, still filed their objections before the Prescribed Authority on 10.02.1997. Subsequently the Prescribed Authority passed an order dated 12.03.1997 declaring the land as surplus. Against the order dated 12.03.1997, the petitioners preferred an appeal no. 7/7/1996-97, in which the petitioners filed a compromise entered into with the respondents. The appellate court vide order dated 30.03.1998 dismissed the appeal with direction to the petitioners to file the compromise before the Prescribed Authority. Thereafter on the basis of the said compromise, the Prescribed Authority passed an order dated 04.07.1998. Against the order dated 04.07.1998, the respondents filed a review application before the Prescribed Authority which was dismissed by the Prescribed Authority vide order dated 15.09.1998. Subsequently, the respondents filed an appeal no. 1/1/1998-99 challenging the orders dated 04.07.1998 and 15.09.1998. The appeal filed by the respondents was allowed by the appellate authority vide order dated 29.11.1999. Aggrieved, the petitioners have filed the present writ petition before this Court.

From the perusal of the records, it appears that the appellate authority while passing the order dated 29.11.1999 (which is presently being challenged by the petitioners before this Court), had relied upon the judgment passed by the Hon'ble Apex Court, already referred above, i.e. (Raghubir Singh and others vs. State of U.P. & others) dated 17.04.1996, and had therefore ordered that it would be the land transferred to the petitioners which was liable to be declared as surplus.

Hon'ble Apex Court in the case of Ravindra Singh vs. Phool Singh and another, reported in (1995) 1 SCC 251, has laid down very clearly as to what would be the plain meaning of a combined reading of sub-section (6) of Section 5 and clause (d) of proviso to Section 12-A, which clarifies as to which would be the land liable to be declared as surplus. Paragraph 6 of the said judgment reads as under:-

"6. A combined reading of sub-section (6) of Section 5 and clause (d) of the proviso to Section 12-A yields the following position (insofar as it is relevant for the purpose of this appeal):

(a) In determining the ceiling area applicable to a tenure-holder, any transfer of land made after 24-1-1971 shall be ignored and such transferred land shall be included in the holding of the transferor except where such transfer is saved by the proviso to sub-section (6) of Section 5;

(b) In the matter of surrender, however, the Prescribed Authority is entitled to insist that the tenure-holder surrender land which is not the subject-matter of transfer referred to in Section 5(6);

(c) If, however, surrender of surplus land by the tenure-holder is not possible or feasible without including the transferred land, then the Prescribed Authority will accept such surrender, in which event transfer of such land shall be deemed to be null and void;

(d) Where the Prescribed Authority accepts the surrender of transferred land, the transferee is entitled to compensation and other rights as are provided in sub-clause (1) of clause (d) of the proviso to Section 12-A.

The object of the above provisions is quite clear and consistent. Any transfer effected after 24-1-1971 shall be ignored for the purpose of determining the ceiling area of the tenure-holder, but in the matter of surrender, the Government does not want, as far as possible, to accept surrender of transferred land. This may be for the reason that acceptance of surrender of transferred land is likely to lead to complications and disputes; the Government wants to accept the surrender of lands, which are free of any such controversy. But if that does not prove possible, the Government will accept the surrender of transferred land even, in which event the transfer of such land shall be treated as null and void so as to vest clear title in the Government. The transferee of a land so surrendered is entitled to claim the compensation money and other rights mentioned in sub-clause (i) of clause (d)."

What goes to the root of the matter is that the petitioners alleged rights are on a piece of land which was acquired by way of a sale deed after the appointed date. The transfer after the appointed date (i.e. 24.01.1971) becomes null and void. The original tenure-holder Smt. Mahender Kaur has retained the land which had escaped being the surplus land. Rest of the land which she had passed to the others as surplus will only vest with the State Government.

In view of the above, no interference is being called for by this Court in the matter. The writ petition fails and it is hereby dismissed.