Ref:- Restoration Application This is an application for restoration of the writ petition, which was dismissed in default on 22.3.2012 by this Court.
Other side has no objection to the said application.
Accordingly the application is allowed.
The order dated 22.3.2012 is recalled and the writ petition is restored to its original number.
Order Date :- 9.8.2012 Ram Murti .
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.AFR Court No. - 28 Case :- WRIT - C No. - 7860 of 2000 Petitioner :- Harjinder Singh & Others Respondent :- Addl.Commissioner & Others Petitioner Counsel :- Amaresh Sinha Respondent Counsel :- C.S.C.,B.R.Verma,Girish Kumar Singh Hon'ble Sunil Hali,J.
With the consent of the parties, the matter is taken up for final disposal.
One Charan Singh was the tenure holder of plot no. 256 area 2.25 acres situated in Village Pachpera Talluka Maharajpur, Pargana and Tehsil Puranpur, District Pilibhit. On 20.11.1974 he executed a sale deed in favour of the petitioners' father and thereafter petitioners' father applied for mutation of his name on the basis of the said sale deed. The Tehsildar allowed the said application and the name of petitioners' father was recorded as bhumidhar on the said plot and a separate khata was carved out on 20.11.1976.
The erstwhile tenure holder was served with a notice under Section 10 of the U.P. Imposition of Ceiling on Land Holdings Act. The tenure holder did not appear before the Prescribed Authority as a result of which an ex-parte decree was passed on 14.1.1975 declaring 8.77 acres of land as surplus. Against this order, Charan Singh filed restoration application which was dismissed by the Prescribed Authority on 14.7.1976. Against this order, Charan Singh filed appeal before the Commissioner who allowed the said appeal and set aside both the orders dated 14.1.1975 and 14.7.1976, and remanded back the matter to the Prescribed Authority to take decision afresh. On remand, the Prescribed authority framed two issues- firstly whether the land of the objector was unirrigated and secondly whether the objector had sold the land and if so, what would be its effect? During the proceeding, Lekhpal deposed that Charan Singh was the original tenure holder and executed sale deed in favour of the petitioners' father in respect of plot no. 258 measuring 2.25 acres. After hearing the parties, the Prescribed Authority partly allowed the objection of the erstwhile tenure holder Charan Singh by declaring 2.25 acres of land as surplus, vide order dated 30.12.1976. No notice in this behalf was ever served on the petitioners' father who acquired right in the property as a bonafide purchaser.
After coming to know about the order passed by the Prescribed Authority, an application was filed by the petitioners seeking recall of the order dated 30.12.1976 and thereby restoration of the case, which was dismissed on 14.11.1996. The appeal against this order was preferred and appellate court also dismissed the appeal on on 5.12.1997. The appellate court recorded finding that the land in question has been sold by the tenure holder after getting notice to avoid the rigours of Ceiling Act, therefore, the said sale deed is void ab initio in terms of Section 5 (6) of the Act 1972. Against this order, the petitioners' father filed review application which was also dismissed. Hence, present writ petition has been filed by the petitioners.
The short controversy involved in this writ petition is as to whether the petitioner would be entitled to the benefit of proviso (b) of sub Section (6) of Section 5 once it is established that the proceedings under Section 9(2) of the Act had been initiated against the erstwhile bhumidhar before the sale deed was executed. In order to resolve this controversy, it is important to examine the scope of proviso (b) of sub Section (6) and sub Section (8) of Section 5. While examining contours of sub section (6), it clearly emerges that any transfer made by a tenure holder after 24.1.1991 is void and has to be ignored. It clearly debars any transfer of a land which is in excess of the ceiling area after coming into force of the Act, 1972. However, this rule is subjected to proviso (a) & (b) of Section 5(6) which reads as under:-
"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.
Thus, exception to the rule clearly indicates that certain transfers are saved by the aforesaid proviso. The transfers, which have been saved are those which are not intended to defeat the provisions of the U.P. Imposition of Ceiling Land Holdings Act, 1960. In the light of this, the Prescribed Authority is given an option to examine the said transaction. Once the conditions provided in clause (b) of Section 5(6) is satisfied, any transfer made after coming into force of Act 1971 will be saved. Section 5(8) contemplates that 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.
In the present case, it is required to be seen whether proceedings under Act have been initiated against the tenure holder on the date when the transfer was effected or not. It is not in dispute that the sale deed has been executed on 22.4.1974 and admittedly proceedings were initiated against the tenure holder on 24.1.1974. Since sub Section (8) was made effective from 10.10.1975 as such its application would not be covered in the present case. The petitioners shall be entitled to invoke proviso (b) of Section 5(6) in this behalf. The Prescribed Authority had an obligation to give an opportunity to the petitioners to establish their bonafide in support of the sale deed which was executed in their favour. I say so because the petitioners were not aware of the proceedings initiated against the erstwhile bhumidhar under the Act when the sale deed was executed. This fact could have been disclosed by the erstwhile bhumidhar to the petitioners. The Prescribed Authority has an onerous duty to examine the issue in this context also. If the petitioners are able to show that they were not aware of the proceedings which were initiated against the erstwhile bumidhar, they cannot be said to have an intention to defeat the provision of the Act. In view of this, this matter is required to be determined by the Prescribed Authority afresh.
In view of the above, I allow this writ petition and set aside the impugned order . The Prescribed Authority is directed to allow the petitioners to prove their bona fide that the sale deed was executed in a good faith. The court may also issue notice to the erstwhile bhumidhar who is required to prove his conduct. These proceedings shall be concluded within a period of four months from the date of production of certified copy of this order.
Order Date :- 9.8.2012 Ram Murti