Heard learned counsel for the petitioner and learned standing counsel for the respondents.
This writ petition arises out of proceedings for determination of surplus land with the petitioner (and his wife) under U.P. Imposition of Ceiling on Land Holdings Act, 1960. The first order was passed by prescribed Authority (Ceiling)/ A.D.M. (Administration) Agra in case No.6 of 1992-93, State Vs. Ram Charan on 29.04.1994 declaring 9.385 hectares land as surplus under the Ceiling Act with the petitioner (and his wife). Against the said judgment and order petitioner filed Appeal No.2 of 1994, which was dismissed by Additional Commissioner, Judicial, Agra Division, Agra on 24.12.1994, hence this writ petition.
Appellate court has not discussed any point properly. In a general manner the judgment of the Prescribed Authority has been approved by it in few lines.
Notice under Section 10(2) of the Act was given on 18.02.1993. In the order passed by the prescribed Authority, it is mentioned that petitioner held 13.42 hectares land and his wife was holding 6.25 hectares land (total land 19.67 hectares). The couple was held entitled to hold only 7.3 hectares of land. On Page-3 of the impugned judgment by the Prescribed Authority just before the issues details of 9 sale deeds have been given. Through some sale deeds petitioner purchased some agricultural land and through some other sale deeds petitioner sold some agricultural land. The lands which were sold by petitioner were included in his holding on the ground that the sale deeds had been executed to avoid ceiling.
The case of the petitioner was that he and his wife were licensed money-lenders and some properties had been purchased by them as security for loan and after payment of the loan the properties were sold back to the sellers. In Para-7 of the writ petition, details of three such transactions (six sale deeds) have been given. According to the said para on 21.04.1984, petitioner purchased some agricultural land from Eadal Singh and sold back the same to Eadal Singh on 09.12.1988. The sale deed dated 09.12.1988 of about 3 bighas is mentioned at Serial No.9 in the list of the 9 sale deeds mentioned in the judgment of the Prescribed Authority. The second such instance mentioned in Para-7 of the writ petition is of Plot No.142 (half share) area 3 bighas 15 biswas purchased by the petitioner on 09.04.1980 and sold back to the seller (or his heir) on 03.07.1985. The sale deed dated 03.07.1985 is mentioned at Serial No.2 in the list of the nine sale deeds given in the judgment of Prescribed Authority. The third transaction mentioned in Para-7 of the writ petition is of the sale deed through which petitioner purchased Plots No.351 to 353 from Brishbhan and then sold back the said property to him on 25.11.1992. Area is 5 bighas 2 biswas. The sale deed dated 25.11.1992 is at Serial No.3 in the list of the sale deeds mentioned in the judgment of the Prescribed Authority. The other sale deeds are of 1984, 1985, 1987, 1989 and 1992.
In Para-8 of the writ petition, it is mentioned that an area of 1 bigha 3 biswas 10 biswansis was sold by one Rammo to the petitioner and on the same date, petitioner sold an equal area of land to Smt. Rammo to readjust the respective plots.
Absolutely, no reason has been given by the authorities below for non-initiation of any ceiling proceedings against petitioner till 18.02.1993. The only inference which may be drawn is that at the initial stage when ceiling proceedings were continuing in the entire State, which had been initiated latest by 1975-76 petitioner and his wife were not having surplus land and it was due to subsequent purchases by them, that the authorities formed an opinion that they were having surplus land. In such situation 08.06.1973 cannot be taken to be the cut off date. Proceedings on the ground of subsequent acquisition may be initiated under Section 29 of the Ceiling Act. However for such initiation the date of notice will have to be taken as the cut off date. Accordingly, it was essential for the Prescribed Authority to decide as to whether on 18.02.1993 when for the first time notice was served upon the petitioner how much land he and his wife were holding. If a person holds a land within the ceiling limit and thereafter purchases some property in such manner that even after adding the said area the land held by him does not exceed the ceiling limit then he is fully entitled to sell either the newly acquired land or the other land held by him which will not be hit by any provision of Ceiling Act. Ceiling Act does not completely prohibit transfer of agricultural land.
In any case it was essential for the Prescribed Authority to determine a particular cut off date so that the position of land held by the petitioner and his wife could be seen on the said date. Fixing a cut off date is also essential to determine irrigated/ un-irrigated nature of land. In such situation khasras of 1378F, 1379F and 1380F are not relevant. In such situation on the analogy of Section 4-K of the Ceiling Act, khasras of three years immediately preceding cut off date will have to be seen.
Petitioner purchased one third part of Plot No.865 (total area 20 bighas, 8 biswas and 2 biswansis). Without any rhyme or reason the Prescribed Authority held that entire plot belonged to petitioner as he was in benami possession of the entire plot.
Accordingly, matter requires remand.
However, the practice of petitioner of compelling the debtors to execute sale deeds is highly deprecated. It was a fraudulent act. Accordingly, it is directed that whatever immovable property has been purchased by the petitioner or his wife or is purchased in future shall be treated to be a mortgage and not an outright sale. All executants of such sale deeds are entitled to get benefit of this observation.
Accordingly, writ petition is allowed. Both the impugned orders are set aside. Matter is remanded to the Prescribed Authority to decide the case again in the light of the observations made above taking 18.02.1993 to be cut off date.
Order Date :- 29.09.2011 NLY