Court No. - 34
Case :- WRIT - C No. - 11633 of 1987 Petitioner :- Bhagat Singh Respondent :- State Of U.P. & Others Counsel for Petitioner :- Parmatma Rai,A.B. Saran,B.K. Pandey,P.K. Sinha,Pawan Kumar Kushwaha,Rajesh Kumar Verma, S.K.Mishra, Sanjeev Kumar Pandey, Vikrant Pandey, Pradeep Kumar Rai Counsel for Respondent :- SC,C.B.Yadav
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Pradeep Kumar Rai, learned counsel for petitioners and learned Standing Counsel for respondents.
2. The order dated 31.05.1985 passed by Prescribed Authority declaring 3.29 acres irrigated land Khasra No. 81(M) in Village Baskhera surplus under the provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as “Act, 1960”) and appellate order dated 02.03.1987 passed by Additional Commissioner (J), Moradabad dismissing petitioners' appeal, are under challenge in this writ petition.
3. Dispute relates to agricultural land of petitioners in Village Banskhera, Milak Mandi, Bhimherkhera, Tehsil Bilaspur, District Rampur. Proceedings were initiated under Act, 1960 and after serving notice dated 08.06.1973 upon petitioners under Section 10(2), order was passed by Prescribed Authority on 19.12.1980 declaring 3.75 acres of irrigated land surplus. Petitioners preferred appeal which was allowed by Second Additional District Judge, Rampur vide order dated 10.09.1981 observing that entire land of petitioner was shown in notice dated 08.06.1973 though some land was purchased after 08.06.1973 and this was also included in the notice. It was also observed that some part of land was purchased by petitioners' son which could not have been included. After remand three sale deeds dated 12.02.1975 were placed before Prescribed Authority. One sale deed was executed by one Mohd.
Noor resident of Aharo in favour of Tara Singh, Pyar Singh and Sukhvir Singh sons of Bhagat Singh, i.e., petitioner-1 and Bhagat Singh son of Ujagar Singh. Another sale deed was executed by Shahid Raza, Hamid Raza and Aliuddin sons of Mithoo in favour of petitioner-1 and his sons and third sale deed was executed by Nanjin, Altaf Khan, Kalwa and Rahim in favour of petitioner-1 and his sons. One Ram Autar, Lekhpal was also examined who admitted that aforesaid land came in possession of petitioner-1 and his sons in 1382 Fasli. Thus Prescribed Authority held that 10.62 acres of land which came to be purchased by petitioner-1 and his sons on 12.02.1975 was wrongly shown in the notice dated 08.06.1973. Consequently, notice was discharged vide order dated 31.05.1983. Fresh notice was issued by Prescribed Authority and vide order dated 31.05.1985 it declared 3.29 acres of irrigated land as surplus. Thereagainst petitioners preferred appeal No. 30/85-86 which has been dismissed by Additional Commissioner (Judicial), Moradabad Mandal, Moradabad vide judgment and order dated 02.03.1987.
4. Petitioners claimed that they had no land in village Milak Mandi inasmuch as in the year 1973-74 he sold entire land to Gurbaksh Singh, Gurmeet Singh and Fakir Singh. Both the Courts below have found that transfer was made after 24.01.1971 and they have found that transactions were not made bona fide and for valuable consideration. Finding in this regard has been recorded by Additional Commissioner in appellate order in para 4, which reads as under:
^^fodz; fnukad 24-1-71 ds mijkUr fd;k x;k gS vkSj fo}ku fu;r izkf/kdkjh us mHk; i{kks ds lk{; dh HkyhHkkafr fo'ys"k.k ls ;g fu"d"kZ fudyk fd ;g cSukek ln~Hkkouk rFkk mfpr izfrQy izkIr fd;s fcuk fd;s x;s gSaA vkSj ;gkaW rd fd dqN fodzsrk x.k fo'ks"kdj xq:c['k flag o Qdhj flg ds C;ku Hkh gq;s gS vkSj bu lc dh tkap ds mijkUr ;gh ik;k x;k fd ;g gLrkUrj.k lhfyax ds cpus ds vHkhizk; ls fd;k x;k Fkk vkSj tgka rd bu dzsrk x.kks dh fof/kor uksfVl u fn;s tkus dk iz'u gS og Hkh vc ,d izdkj ls fujFkZd gks tkrk gSA** “The sale was done after 24.01.1971; and from a thorough analysis of the testimonies of both the parties, the ld. designated authority has come to a finding that this sale-deed was without bona fides and with no proper consideration. Even the statements of some sellers, particularly, Gurubaksh Singh and Fakeer Singh have been recorded. After examining all these aspects, it was only found that this transfer was given effect just to escape from the ceiling process. As far as the question of the notices not having been given to these purchasers is concerned, this exercise has now become futile in a way.”
(English translation by Court)
5. Nothing has been placed by petitioners on record to show that aforesaid finding is perverse or otherwise erroneous. Petitioner-1 transferred land to petitioner-2 vide sale deed dated 27.11.1974. Section 5(1) and (6), relevant for our purposes are reproduced as under:
“5. 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 through-out 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.
…..
(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, 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 falls within clause (b) of the proviso shall rest with the party claiming its benefit.”
6. The onus to prove that transfer was made in good faith and for adequate considerations lay upon petitioners which they have failed before Prescribed Authority. In the present case Prescribed Authority formulated issue-4, whether transaction was bona fide and for valuable consideration and in this regard it has recorded its finding as under:
^^iz'u gS fd ;g cSukek lnHkkouk ,oa mfpr izfrQy izkIr djds fd;s x;s gSa ;k ugha [kkrsnkj us bl dze esa u rks lEcfU/kr cSukeas gh i'ks fd;s gS vkSj u gh cSukesa ds gkf'k;s ds xokgku ;k ,sls fdlh O;fDr ds c;ku djk;s gSa ftlls ;g ekuk tk lds fd ;g cSukeas ln~Hkkouk ls fd;s x;s gSa rFkk mfpr izfrQy izkIr fd;k x;k gS xzke feyd eqUMh dh vkjkth xqjjehr flag Qdhj flag ,oa xqjc['k flag dks csph tkuk crkbZ gSA bl dze esa xqjehr flag Qdhj flag ds c;ku djk;s gSa Mh0MCyw 2 Qdhj flag us ftjg eas Hkxr flag ls 18 o 20 gtkj :0 eas Lohdkj fd;k gS fd fookfnr vkjkth mlus yh FkhA vui<+ gksus ds dkj.k fuf'pr jde u rks crk ldrk Mh0MCyw0 3 bj'kkn gqlSu fuoklh feydeqUMh us vius C;ku eas Qdhj flag dks tehu Hkxr flg vkfn }kjk cspk tkuk crk;k gS ftjg eas mlus Lohdkj fd;k gS Hkxr flag o xqjc['k flag nksukas ljnkj gSa eq>s irk ugha fd xqjc['k Hkxr flag dk cguksbZ gS ;k ugha xokg us ;g Lohdkj fd;k fd eq>s irk gS fd Hkxr flag us ;g vkjkth jftLVMZ cSukek ls fy[kh Fkh ijUrq jftLV~h ds le; eas ugha vk;k Fkk eq>s ugha irk bl rjg izFke rks [kkrsnkj }kjk xzke feydeqUMh dh vkjkth dks csps tkus ls lEcfU/kr dksbZ cSukek ;k mldh izfris'k ugha dh xbZ gS nwljs fdlh cSukeas ds gkf'k;s ds xokg ds c;ku ugha djk;s x;s gS blds lkFk gh Mh0MCyw0 tks xzke feyd eqUMh dk fuoklh gS us c;ku eas ;g Hkh Li"V ugha fd;k gS fd Hkxr flag ls dzsrkvkas dh fj'rsnkjh ugha gS gYdk y[s kiky xzke feydeqUMh eas fn0 8-6-76 dks xzke feydeqUMh dh vkjkth [kkrsnkj ds uke ntZ gksuk crkbZ gS bl izdkj mijksDr ls Li"V gS fd xzke feyd eqUMh dh vkjkth Hkkouk ,oa mfpr izfrQy ysdj csph tkuk izrhr ugha gksrh vkSj gLrkUrj.k lhfyax ls cpus dh xjt ls fd;k x;k izrhr gksrk gSA [kkrsnkj ds rhu ckfyx yM+ds gS vkSj rhuksa ds uke tehu 1-74] 1-74] 1-74 ,dM vkjkth gSA D;kasfd [kkrsnkj }kjk is'k fd;s x;s lk{; ls Li"V gS fd rhu ckfyd iq= vius firk ds lkFk jgrs gSa vr% rhuksa dks ckfyx ekurs gq;s 9-60 ,dM iz;ksftr {ks=Qy eas fn;k x;k gSA** vfrfjDr yxk “The question is whether or not this sale-deed has been executed bona-
fide and with proper consideration. In this connection, khatedaar (account-holder) has neither produced concerned sale-deed(s) nor got recorded the statements of witnesses thereto or that of any such person which may go to establish that the sale-deed(s) has/have been executed bona-fide and with proper consideration. The araji of the village Milak Mundi is said to have been sold to Gurmeet Singh, Fakir Singh and Gurbaksh Singh. In this respect, the statements of Gurmeet Singh and Fakir Singh have been recorded. DW-2 Fakir Singh has admitted in cross examination that he had purchased the disputed araji for Rs. 18,000 and 20,000. Due to being illiterate he cannot tell exact amount. DW-3 Irshad Hussain r/o Milak Mundi has in his statement stated the land to have been sold by Bhagat Singh and others to Fakir Singh. He has admitted in cross examination that both Bhagat Singh and Gurbaksh Singh are sardars; and he does not know whether or not Gurbaksh is the brother-in-law of Bhagat Singh. The witness has admitted that he is aware that Bhagat Singh had purchased this araji through registered sale-deed but he does not know whether he had not come at the time of registry. Thus, first, sale-deed or its copy related to sale of araji at Village Milak Mundi has not been produced by the khatedar; and second, statement of any witness to the sale-deed has been got recorded. Moreover, DW, a resident of Village Milak Mundi, has not even clarified that purchasers are not relatives of Bhagat Singh. Halka (area) Lekhpal, Village Milak Mundi has stated the araji of Village Milak Mundi to be registered as on 8.6.76 in favour of the khatedar. Thus, it is clear from the aforesaid that araji of the Village Milak Mundi does not appear to have been sold bonafide and with proper consideration and the transfer appears to have been executed just to escape from ceiling. The khatedar has three major sons and each of them possess 1.74 acres of land in their names. Since it is clear from the evidence adduced by the khatedar that all three major sons reside with their father. Hence, taking all three to be major, 9.60 acres of additional land has been added to the estimated area of the land.”
(English translation by Court)
7. None of the findings recorded above could be shown to be perverse, incorrect or contrary to record and no material has been placed on record to do so. In these circumstances, concurrent findings recorded by both authorities below on the question of non satisfaction of requirement of Section 5(6), I do not find any reason to interfere with aforesaid concurrent finding of fact.
8. The scope of judicial review in such matters where the orders of courts below are assailed before this Court in a writ petition under Article 226/227 of the Constitution is very limited. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
9. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Court said:
“Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere.”
10. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
11. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.
12. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47).
13. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).
14. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).
15. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Hon'ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
16. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Hon'ble Supreme Court held that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.
17. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.
18. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Hon'ble Apex Court held that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re- appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.
19. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.
20. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.
21. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Court said:
“...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions.”
22. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.
23. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.
24. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.
25. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.
26. In view thereof, I find no justification warranting interference with the orders impugned in this writ petition.
27. Dismissed. Interim order, if any, stands vacated.
Order Date :- 19.12.2018 AK
Court No. - 34
Case :- WRIT - C No. - 11633 of 1987 Petitioner :- Bhagat Singh Respondent :- State Of U.P. & Others Counsel for Petitioner :- Parmatma Rai,A.B. Saran,B.K. Pandey,P.K. Sinha,Pawan Kumar Kushwaha,Rajesh Kumar Verma, S.K.Mishra, Sanjeev Kumar Pandey, Vikrant Pandey, Pradeep Kumar Rai Counsel for Respondent :- SC,C.B.Yadav
Hon'ble Sudhir Agarwal,J.
C.M. Delay Condonation Application No. 5 of 2018:
1. This is an application seeking condonation of delay in filing substitution application.
2. Heard.
3. Cause shown for delay in filing substitution application is sufficient.
4. Delay condoned.
5. The application is allowed.
C.M. Substitution Application No. 6 of 2018:
1. Petitioner-1 having died, this is an application seeking substitution of his legal heirs. Learned Standing Counsel states that he does not propose to file any written objection and the Court may pass appropriate order after hearing learned counsel for applicant.
2. Heard.
3. Allowed.
4. Let substitution be carried out during course of the day.
Order Date :- 19.12.2018 AK