JUDGMENT R.H. Zaidi, J.
1. By means of this petition under Article 226 of the Constitution of India, petitioners pray for issuance of writ order or direction in the nature of certiorari quashing the orders dated 23.4.1986 passed by respondent No. 2 and the order dated 26.4.1989 passed by the respondent No. 1 whereby objections filed by the petitioners and appeal filed by them were dismissed by the prescribed authority and the appellate authority respectively constituted under U. P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as 'the Act).
2. The brief and relevant facts of the case giving rise to the present writ petition are that notice under Section 10 (2) of the Act was issued to respondent No. 4 Sri Shatrughan Singh who was recorded tenure holder of the land in dispute calling upon him to show cause as to why an area measuring 3 Bighas, 3 Biswas and 13 Dhoors out of his holding be not declared as surplus. By order dated 20.12.1974, the prescribed authority declared the aforesaid area as surplus but subsequently on an application made by respondent No. 4, the order dated 20.12.1974 was set aside on 13.1.1975. The respondent No. 4 thereafter filed objection against the aforesaid notice and claimed that no land out of his holding was liable to be declared as surplus. The respondent No. 4 produced, oral and documentary evidence in support of his case. The prescribed authority after considering the evidence on the record by order dated 6.2.1975 declared an area measuring 3 Bighas,8 Biswas and 15 Dhoors as surplus.
3. Aggrieved by the judgment and order passed by the prescribed authority, the respondent No. 4 filed an appeal before the appellate authority, During the pendency of the said appeal before the appellate authority, the petitioners made application for their impalement as party in the case. The appeal filed by the respondent No, 4 was ultimately allowed by the appellate authority by Judgment and order dated 12.3.1979. The application filed by the petitioners for their impalement was also allowed and the case was remanded to the prescribed authority for decision afresh. The prescribed authority again by judgment and order dated 5.6.1985 confirmed its earlier order dated 6.2.1975. However, the said order was set aside on an application filed by the petitiners. The case was restored to its original number. Petitioners were permitted to file their objections. Petitioners thereafter filed objection claiming that the respondent No. 4 has executed a sale deed dated 13.4.1973 whereby half land of his holding situate at village Arda, district Basti was transferred in their favour and rest of the land was thereafter transferred in their favour by the sons of respondent No. 4, namely, Om Prakash and Harvinder Pratap Singh through registered sale deeds dated 5.11.1974 and 20.9.1975. On the basis of the sale deed, it was claimed that the name of the petitioners were mutated in the revenue papers. The sale deeds were alleged to have been executed in good faith and were not benami they were as such protected under clause (b) of sub-section (6) of Section 5 of the Act. Alternatively, it was pleaded that in case any land out of holding of Shatrughan Singh (respondent No. 4) and his sons were liable to be declared as surplus. The same may be declared from the land situate in village Rudhauli Kalan and the land covered by the aforesaid sale deeds was liable to be excluded from their holding. Petitioners in support of their case have filed oral and documentary evidence including the registered sale deeds and the document relating to purchase of the Tractor etc. The prescribed authority however, taking the view sale deeds were executed after 24.1.1971 and were also hit by sub-section (8) of Section 5 dismissed the objection filed by the petitioner by his judgment and order dated 23.4.1986.
4. Aggrieved by the judgment and order passed by the prescribed authority, petitioners filed appeal before the appellate authority. Appeal filed by the petitioner also met the same fate and was dismissed by the appellate authority by its judgment and order dated 26.4.1989. As stated above, challenging the validity of the said orders, petitioners have filed the present writ petition.
5. Mr. S. D. Pathak, learned counsel for the petitioners vehemently urged that the judgment and order passed by the Courts below were manifestly erroneous and illegal. It was contended that the sale deeds executed by respondent No. 4 and his sons referred to above, were in good faith and for valuable consideration, They were not benami, therefore, the land covered by the said sale deeds could not be treated as part of the holding of respondent No. 4 and his sons. It was urged that the prescribed authority has acted Illegally in discarding the sale deeds and the appellate authority has also committed manifest error which is apparent on the face of record in not applying its mind to the question of validity of the sale deeds and without recording any findings as required under clause (b) of sub-section (6) of Section 5 dismissed the appeal wholly arbitrarily. On the other hand learned standing counsel supported the judgment and Order passed by the authorities below. It was urged that the said judgment and orders were concluded by concurrent findings of facts and do not suffer from any infirmity or illegality. The writ petition according to him was therefore, liable to be dismissed.
6. I have considered the rival contentions made by the learned counsel for the parties and carefully perused the record of the case.
7. The question which arises for consideration by this Court is as to whether the sale deeds relied upon by the petitioners were saved under clause (b) of sub-section (6) of Section 5 of the Act. Section 5 of the Act provides as under : (only relevant quoted) "5. Imposition of Ceiling.--(i) 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 throughout Uttar Pradesh any land in excess of ceiling, area applicable to him.
(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.
8. It may be noted that prescribed authority could look into the validity of the sale deeds not only executed after 24.1.1971 but also of the sale deeds executed prior to it. The sale deeds which are covered by sub-section (8) of Section 5 of the Act are to be treated as void.
9. The sale deeds executed after 24.1.1971 are to be ignored unless they are saved under clause (b) of sub-section (6) of Section 5. A reference in this regard may be made to the decision rendered in the case of Raghuvir Singh v. State of U. P, and others, 1996 AWC 1380 and Raghuvir Singh v. State of U. P. and others, 1979 AM 767.
10. Sub-section (8) of Section 6 has been added in the Statute by U. P. Imposition of Celling (Amendment] Act, 1976 (Act No. XX of 1976) which came into force with effect from 10.10.1975. Thus all sale deeds relied upon by the petitioners, i.e., dated 13.4.1973, 5.11.1974 and 20.9.1975 were executed before the enactment and enforcement of sub-section (8) of Section 5. Therefore, the said sale deeds cannot be said to be void in terms of sub-section (8) of Section 5. View taken to the contrary by the authorities below is thus, manifestly erroneous. Illegal. A reference in this regard may be made to the decision rendered by a Division Bench in the case of Om Prakash Agarwal v. A.D.J, and others, 1981 AWC 775. It was thus obligatory upon the authority below to look into the validity or otherwise of the sale deeds in question before discarding the same. The authorities below committed an error which is apparent on the face of record in holding that the aforesaid sale deeds were void and were hit by sub-section (8) of Section 5.
11. The prescribed authority after going through the evidence on the record, recorded findings on the issues framed in the case against petitioners while dealing with sale deeds dated 5.11.1974 and 29.9.1975. It has taken the view that the said sale deeds were void on the basis of sub-section (8) of Section 5, which as stated above had no application in the present case. The appellate authority did not apply Its mind to the question as to whether the said sale deeds were executed in good faith, and for adequate consideration, under Irrevocable Instrument and as to whether they were benami or were executed for Immediate and deferred benefit of the tenure holder and other members of his family. In accordance with law, it had to apply Its mind to the said questions before discarding the said sale deeds and rejecting the claim of the petitioners.
12. The petitioners are admittedly in possession of the land in dispute since the date, the sale deeds were executed in their favour. They are also appropriating the usufruct arising out of the said land. Ultimately, their claim may be rejected by the appellate authority. It is therefore, necessary to protect the interest of the State. In view of the said facts, the petitioners are directed to deposit a sum of Rs. 20,000 before the appellate authority within a month from today.
13. In view of the said discussions, this writ petition succeeds and Is allowed. Since the appellate authority exercises the powers of prescribed authority, I do not consider it necessary to quash the order of the prescribed authority. Only the order passed by the appellate authority respondent No. 1 dated 26.4.1989 is quashed. The said respondent is directed to decide the appeal filed by the petitioners afresh in the light of observations made above in accordance with law. Since the matter is pending disposal since 1974, it is directed that the appeal shall be decided by the appellate authority expeditiously preferably within a period of two months from the date a certified copy of this order is communicated to him. The amount-deposited by the petitioners shall be paid after the decision of the appeal to the winning party.