Heard Shri P.K. Mishra, learned counsel for the petitioners in the connected writ petition and Shri Ravi Shankar Prasad, learned Chief Standing Counsel .
The controversy in the connected writ petitions relate to the proceedings initiated against Badri Narayan son of Durga Prasad, petitioner in writ petition no. 45110 of 1999 under U.P. Imposition of Ceiling on Land Holdings Act, 1960(hereinafter referred to as the Act).The proceedings were initiated against the petitioner with issuance of notice under Section 10 (2) of the Act dated 19.4.1974. Petitioner filed objection and case no. 114 (State Vs. Badri Narayan) was proceeded against him. The Prescribed Authority by judgement and order dated 4.8.1975 declared the land of the petitioner as surplus land to the extent of an area of 9.80 acres in the form of irrigated land. Aggrieved, the petitioner filed an appeal which was allowed vide judgment and order dated 11.9.1975 and the case was remanded to the then Prescribed Authority. In the meantime, one Mathura Prasad had intervened in the matter. His request was turned down, the matter travelled upto this court and was remanded to the Prescribed Authority vide judgement and order dated 24.4.1978 passed by this court for deciding the same afresh after considering the contention of the aforesaid intervener, Mathura Prasad. After considering the claim of Mathura Prasad, the Prescribed Authority by judgement and order dated 27.7.1981 declared 7.74 acres of the land of the petitioner as surplus.
By another notice dated 27.4.1989, the petitioner was called upon to submit the details regarding his holdings. It was mentioned in the notice dated 27.4.1989 that pursuant to the notice issued under Section 9(2) of the Act, the petitioner did not disclose the complete details of the land belonging to him and his family members and the detail given by the petitioner tenure holder was found to be incorrect. The Prescribed Authority prepared the statement containing particulars, thereafter, issued notice under Section 10 (2) of the Act calling upon the tenure holder to show cause within a period of 15 days as to why the said statement be not taken as correct.
Upon receipt of the said notice the petitioner filed objection which is annexed as Annexure-7 to the writ petition. In his reply the petitioner tenure holder contended that earlier proceedings under the Ceiling Act were initiated against him, which was registered as case no. 122 of 1979 in which an area of 7.74 acres unirrigated land was declared surplus. Against the order passed by the Prescribed Authority, the appeal filed by the tenure holder was pending before the Commissioner, Gorakhpur Division, Gorakhpur. In view of the pendency of the ceiling proceedings no fresh notice could have been issued nor any proceedings can be initiated against him. On merits, the petitioner tenure holder raised several objections. On the basis of objection of the petitioner- tenure holder Badri Prasad, seven issues were framed for decision by the Prescribed Authority.
In the present writ petition though order passed by the Prescribed Authority dated 31.3.1995 and order passed by the appellate authority dated 25.9.1999 in the appeal no. 60/79/P/1995 are under challenge . However, in the present writ petition learned counsel for the petitioner confined his arguments to challenge the findings on issue no.1 and issue no. 3 decided against the petitioner.
The connected writ petition no. 42570 of 1999 has been filed by Anil Kumar son of Ram Kishun challenging the order passed by the Prescribed Authority dated 31.3.1995 and the order of the appellate authority dated 25.9.1999 passed in appeal no. 59/80/P/ 1995(Anil Kumar Vs. State of U.P. and others). The petitioner Anil Kumar son of Ram Kishun has challenged the order passed by the Prescribed Authority dated 31.3.1995 on issue no. 3 only which is also under challenge by the petitioner tenure holder in the leading writ petition No. 45710 of 1999.As the controversy involved in both the writ petition is same and relate to the same subject matter, the writ petitions are being decided together by this common judgement.
It is relevant to note that against the order dated 31.3.1995 passed by the Prescribed Authority four appeals were filed before the Commissioner Gorakhpur Division, Gorakhpur. One appeal namely, appeal no. 82/104/P/ 1995 was filed by the State Government. The appeal no. 60/79/P/1995 was filed by the petitioner Badri Narayan out of which the present petition no. 45110 of 1999 arises. The appeal no. 59/80/P/95 was filed by Anil Kumar out of which the writ petition no. 45270 of 1999 arises. The appeal no. 2/2/P/1996 was filed by Thakur Ji Laxmi Narayan Ji Mandir. All four appeals were consolidated and dismissed by order dated 25.9.1999.
In so far as the appeal no. 2/2/P/1996 filed by Thakur Ji Laxmi Narayan Ji Mandir challenging the issue no. 4 decided by the Prescribed Authority, the Writ Petition No. 45266 of 1999 was filed . The said writ petition was allowed vide judgement and order dated 3.4.2013 which has been brought on record by filing supplementary rejoinder affidavit dated 11.8.2013. Thus only controversy remains with regard to the land which is alleged to be the land of Anil Kumar son of Ram Kishun. Both Badri Prasad and Anil Kumar son of Ram Kishun filed objections before the Ceiling Authority. Their contention was that plots, namely, plot nos. 189 Ga, 190 Ka, 191 Ka, 192 Ka, 193 Ka, 194 Ka, 195 Ka, 196 Ka, 223, 228, 470, 471 and 472 Ka situated in village Sirasiya were the holdings of Anil Kumar son of Ram Kishun. The name of Anil Kumar was recorded as Bhumidhar in the proceedings held before the Consolidation Authority. It was contended that the name of petitioner tenure holder Badari Prasad was never recorded in the revenue record at any stage. Plots in dispute were recorded in the name of Hari Prasad and Devki Nandan, both sons of Lakhu Ram and Durga Prasad. After expunging the name of these tenure holders namely Hari Prasad, Devki Nandan and Durga Prasad, the name of Anil Kumar son of Ram Kishun aged about thirteen years was mutated under Section 210 of U.P. Z.A. and L.R. Act in the guardianship of Ganga Mal Chacha Hakiki. It was contended that the tenure holder Badri Prasad had no concern with the plot in question nor he was in possession over the same at any point of time. Though plots in dispute were recorded in the name of Hari Prasad, Devki Nandan and Durga Prasad, yet the petitioner Anil Kumar son of Ram Kishun was in possession of the same from the time of his ancestors. It was contended that the land in question was in possession of father of Anil Kumar prior to the year 1978 and after his death Anil Kumar came in possession of the same. The said fact is apparent from the revenue extract i.e. 1378 Fasli to 1380 Fasli. The petitioner Anil Kumar son of Ram Kishun perfected his possession over the plots in question by way of adverse possession and as such the order dated 7.3.1975 was passed by the Assistant Consolidation Officer, during consolidation proceedings and the name of Anil Kumar was recorded as Bhumidhar over the plots in question.
The Prescribed Authority rejected the contention of the petitioners on the ground that the order passed by the Consolidation Officer dated 7.3.1975 is subsequent to the relevant date i.e. 24.1.1971 and the said order was obtained in order to escape from the ceiling and as such tenure holder Badri Narayan was not entitled to any benefit from the fact that the name of Anil Kumar was recorded as tenure holder in the consolidation proceedings. The issue no. 3 was decided against tenure holder Badri Narayan. The appellate authority upheld the findings of the Prescribed Authority and dismissed all the four appeals including the appeal filed by the State Government.
Regarding the first contention of the learned counsel for the petitioners challenging the findings on issue no.1on the the maintainability of the notice dated 27.4.89, it may be noted that as per own contention of the petitioner Badri Narayan the proceedings under Ceiling Act were going on against him and the appeal filed by him pursuant to the first notice was pending. A bare perusal of the notice dated 27.4.1989 indicates that the same was issued to rectify the mistake as tenure-holder Badri Narayan did not give correct details of his holdings and holdings of his family. The notice dated 27.4.1989 was issued in the form of rectification of the mistake which has the effect of increasing surplus land and, therefore, the petitioner has been given an opportunity of being heard. Moreover ,as is apparent from the contention of the tenure holder in his objection, Ceiling proceedings were going on at the relevant point of time and therefore, there was no bar in issuing the notice dated 27.4.1989 for correction of the mistake under the Ceiling Act. Notice dated 27.4.1989 is not a notice under Section 29/30 of the Act as contended by the learned counsel for the petitioner. The issue no. 1 framed by the Prescribed Authority was rightly decided against the tenure holder and was rightly upheld by the appellate authority.
In so far as the contention of the learned counsel for the petitioner regarding order passed by the Consolidation Authority dated 7.3.1975 whereby name of the petitioner Anil Kumar (in the connected writ petition no. 45270 of 1999) was recorded in the revenue record is concerned, learned counsel for the petitioner placed reliance upon Section 5(8) of the Act and the judgement of this court dated 3.4.2013 passed in writ petition no.45266 of 1999(Thakur Ji Laxmi Narayan Ji Mandir Vs. Additional Commissioner (Admn.) Gorakhpur and others). Placing reliance on the said judgement, learned counsel for the petitioner submits that as Section 5 (8) of the Act was inserted by U.P. Act No. 20 of 1976 with effect from 10.10.1975 and therefore, its provisions could not be invoked for invalidating the transfer effected prior thereto. The reliance has been placed upon the Division Bench judgement of this court in Om Prakash Agarwal Vs. Additional District Judge reported in 1981 A.W.C 775 in support of his arguments. Learned counsel for the petitioner further submits that in the case of Thakur Ji Laxmi Narayan Ji Mandir which was rejected by the Prescribed Authority vide impugned order dated 31.3.1995 while deciding the issue no. 4, this court in writ petition No. 45266 of 1999 has held that the name of the temple was recorded by the order of Consolidation Authority dated 7.3.1975 which is prior to 10.10. 1975. Thus, the sale deed issued in favour of temple admittedly being prior to 10.10.1975 was not hit by Section 5(8) of the Act, which was added by Act no. 20 of 1976 with effect from 10.10.1975. There is no material to show that Badri Narayan had inherited property and was in possession over the land in dispute. Thus the impugned orders passed by the Prescribed Authority dated 31.3.1995 (deciding issue no. 4) against the petitioner-tenure holder and the appellate order dated 25.9.1999 were held illegal and against the evidence on record. Placing reliance upon these two judgements learned counsel for the petitioner submitted that the facts of the present case are squarely covered by the above judgements of this court and, therefore, both the writ petitions deserve to be allowed.
Learned Standing Counsel on the other hand submits that the dispute in the present writ petitions is not covered by the judgement dated 3.4.2013 in the case of Thakur Ji Laxmi Narayan Ji Mandir where sale deed was executed in favour of the temple., rather in the present case dispute pertains to Explanation -1 to Section 5 (6) of the Act.
In the instant case, the name of Anil Kumar was recorded by the order passed by the Consolidation Authority dated 7.3.1975 i.e subsequent to 24.1.1971 i.e. date mentioned in Section 5(6) of the Act. In view thereof the order passed by the Consolidation Authority is liable to be ignored.
Heard learned counsel for the parties and perused the record.
Before dealing with the case on merits it would be apt to go through the provisions of Section 5 (6) of the Act. Explanation-1 to Section 5 (6) of the Act is also relevant. The same is reproduced below :-
"5 (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 the 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 acknowledgement, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner."
A careful reading of Section 5 (6) read with Explanation (1) (a) of the Act clearly indicates that any transfer of land made after 24.1.1971 is liable to be ignored in determining ceiling area applicable to the tenure holder. The Explanation-I to Section 5 (6) of the Act was inserted by U.P. Act No. 2/75 with effect from 8.6.1973, which provides that the expression transfer of land made after 24.1.1971 includes a declaration of a person as a co-tenure-holder made after 24.1.1971 , in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after 24.1.1971. Thus looking to the scheme of the Act, declaration dated 7.3.1975 i.e 24.1.1971 made in favour of Anil Kumar son of Ram Kishun will be covered under Explanation I(a) to Section 5(6) of the Ceiling Act and sub-section (8) of Section 5 will not be attracted in the present case. The said declaration has rightly been ignored by the Prescribed Authority being of no avail as it was made after 24.1.1971.
In Rambir Singh Vs. Additional Commissioner, Agra Division, Agra reported in 2008 (2) AWC 1126, learned Single Judge placing reliance upon the Full Bench decision of this court has held in paragraph -3 that the decision of the Consolidation Courts given after 24.1.1971 in respect of declaration of right in any manner are liable to be ignored. Learned Single Judge placed reliance on the first sentence of paragraph 34 of Full Bench decision of this court in Ram Charan Vs. State of U.P. and others reported in AIR 1979(All.) 114 decided on 19.9.1978. The said observations made by the Full Bench Authority quoted in paragraph 3 of the judgement of this court in Rambir Singh (supra) is as follows:-
"3.The aforesaid single judge authority of Babu Ram stands impliedly overruled by Full Bench authority of Ram Charan V. State of U.P., AIR 1979 All. 114 decided on 19.9.1978. Taking note of the aforesaid Explanation in paragraphs 33 to 39 of the aforesaid Full Bench authority it has been held that decision of consolidation Courts given after 24.1.1971 in respect of declaration of right in any manner are to be ignored. First sentence of para 34 of the aforesaid Full Bench authority is quoted below :
"The existence of a decree of a Court, or a deed of transfer or licence even recognised by Court or even authorities under the Consolidation Act, will be of no avail."
In the aforesaid single Judge authority of Babu Ram it was held that a pre-existing right recognised by consolidation courts was not hit by the Explanation to Section 5 (6) of the Act. In the aforesaid paragraph of the Full Bench it has categorically been held that even a right recognised by Consolidation Court will be of no avail."
It may be noted that the question referred to the Full Bench was as to whether the proceedings of U.P. Imposition of Ceiling on Land Holdings Act are maintainable and can continue during the pendency of proceedings under the U.P. Consolidation of Holdings Act. While answering the question whether ceiling proceedings are liable to be stayed during the pendency of consolidation proceedings in negative, the Full Bench in paragraph 48 of the judgement has observed as under:-
".........The persons who allege to be in adverse possession will have to satisfy the prescribed authority that they did not hold the land ostensibly in the name of the original tenure-holder or that he has lost rights by their adverse possession for the requisite period. In such a case the original tenure-holder will implead those who claim rights by virtue of adverse possession, to his objection in the ceiling proceedings and the prescribed authority will have to decide the point and his decision alone will be the final adjudication of rights of all of them inter se."
It was observed in paragraph 34 by the Full Bench that the orders passed by the Consolidation Authority after 24.1.1971 will be futile qua ceiling proceedings. It was observed that there is no point in staying ceiling proceedings when in such a situation the result of declaration of rights in consolidation proceedings will be futile.
In paragraph 35 of the Full Bench decision the provisions of Section 5 (6) Clause (a) of Explanation 1 to sub-section (6) was considered and it was observed as under:-
"35. Sub-section (6) of S. 5 provides that any transfer of land made after 24th January, 1971, shall be ignored and not taken into account in determining the ceiling area of a tenure-holder. The proviso to it gives certain exception in favour of certain categories of transfers and transferees. Clause (a) of the first Explanation to sub-section (6) defines transfer to include a declaration of a person as a co-tenure-holder made after 24th January, 1971, in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after 24th Jan. 1971.Under clause (b) transfer includes any admission, acknowledgement, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner. A declaration of a person as a co-tenure-holder made in consolidation proceedings after 24th Jan. 1971, is thus valueless, it was liable to be ignored, be it based on a genuine dispute or an admission etc. made in a deed or instrument, in such case also staying of ceiling proceedings would be of no avail. Whatever adjudication of rights as a co-tenure-holder or in relation to any other form of transfer is made by consolidation authorities it would be a waste paper."
Similarly in Changu Ram Vs. III Addl. District Judge and others reported in 1981 A.W.C page 677 in paragraph-4 it was observed that such adjudication by the Consolidation Authorities on the question of title could not be taken into consideration by the Ceiling Authorities as the adjudication was admittedly done after 8.6.1973, which is the material date under the Ceiling law. It was observed that adjudication done by the consolidation authorities in the said case touched the question of title in respect of the land in dispute. It was held that :-
"4 .......I should like to emphasise here that the question of reduction during the consolidation proceedings on account of the change in the plots and in consequence of the change in the valuation of the land is a controversy altogether different from the alleged reductions brought about due to adjudication of title by the Consolidation Authorities. Such title adjudications, if they are done after 8.6.1973, will have to be disregarded by the Ceiling Authorities. Therefore, in my view, this contention raised by the learned counsel is also untenable and is rejected."
Viewed from the legal position discussed above, this court finds that the order passed in the instant case by the Consolidation Authorities recording the name of Anil Kumar son of Ram Kishun aged about 13 years under Section 210 of U.P. Z.A. and L.R. Act dated 7.3.1975 is much after the cut off date as provided under Clause (a) of Explanation 1 to Section 5 (6) of the Act.
The Full Bench in paragraph 35 of the judgement quoted above had observed that whatever adjudication of right as a co-tenure holder or in relation to any other form of transfer is made by the Consolidation Authorities would be a waste paper. Paragraph 35 refers to clause "a" of Explanation I to Section 5(6) of the Act . In view of the said dictum of the Full Bench of this court, the order dated 7.3.1975 passed by the consolidation authorities by which the name of Anil Kumar was mutated is no avail. The same is liable to be ignored.
The contention of the learned counsel for the petitioner is that the relevant date in the instance case would be 10.10.1975 and not 24.1.1971. The said contention is liable to be rejected in view of the law discussed above in detail and the fact that the provisions of Section 5 (8) of the Ceiling Act are not attracted in the present case rather Explanation I(a) to sub-section (6) of Section 5 is applicable.
In view of the discussion made above this court does not find any merit in the case of the petitioners. The orders passed by the Prescribed Authority and the Appellate Authority warrant no interference. Both the writ petitions are accordingly dismissed.
Date:10.2.2014 Aks