Mahendra Singh and Ors. vs State of U.P.& Ors

Shitla Prasad Srivastava, J.—This petition under Article 226 of the Costitution of India has been filed by the petitioner for quashing the order dated 24th June, 1974, Annexure9 and order dated 6th March, 1990, Annexure10 passed by the respondent Nos. 3 and 2 respectively and further a writ of mandamus directing the respondents to exclude the plots mentioned in the ifdeed eluding the ceiling area of Late Sri Narain Singh.

A counter affidavit has been filed by the State and a rejoinderaffidavit is also there, therefore, with the consent of the parties, counsel the petition is being disposed of finally on merits.

The brief facts as stated in the writ petition are that Late Sri Narayan Singh, father of the petitioner Nos. 1 and 2 was served with a notice under Section 10 of U.P. Imposition of Ceilings on Land Holdings Act (hereinafter referred to as the Act). After receipt of the notice Sri Narayan Singh sought exemption of certain plots of the land which was transferred by him to another person under Section 5(6) (b) of the Act. It is stated that plot Nos. 246 and 247 were proposed to be transferred in favour of Atar Singh through agreement of sale, dated 15th October, 1970 and possession was also given to Atar Singh. Plot Nos. 481, 482 and 483 were transferred by means of a registered giftdeed dated 10th November, 1971 in favour of Rakesh Kumar, plot Nos. 250 and 251 were transferred in favour of Ashok Kumar through giftdeed dated 10th November, 1970 of plot Nos. 487, 249 and 236 were transferred in favour of Sri Jai Ram Singh through registered giftdeed dated 101 l79.''It is stated in the writ petition that permission for making gifts regarding the aforesaid plots in favour of the aforesaid three persons was sought from the Sanyukta Sehkari Kheti Samifi Ltd. vide application dated 1st Nov., 1970 and Surpanch of Sanyukta Sehkari Kheti Samiti Ltd. directed on 10th November, 1970 to the Secretary of Samiti to present an application dated 1st November, 1970 for meeting of the Sanchalak Mandal was moved. On 3081971 the Secretary vide his noting dated 3081971 opined that the transfer in favour of Jai Raj Singh, Ashok Kumar Singh and Rakesh Kumar who have already become members of the Society can be made by complying the Regulation 10(Gha) of the Regulation of the Society. On 31st October, 1971 the society granted permission to Sri Narain Singh to transfer the aforesaid land in favour of the abovementioned persons. It is further stated that on 3rd November, 1971 the Surpanch communicated the resolution of the Society dated 31st October, 1971, granting permission of transfer on the basis of the aforesaid statement which has been submitted by the learned Counsel for the petitioner that the proceedings for transfer by way of giftdeed in favour of Rakesh Kumar, Ashok Kumar and Jai Ram were initiated as long back as on 1st November, 1970 by moving an application and delay on the part of the Sanchalak Mandal for granting permission was not in the hands of the petitioner, therefore the transaction of transfer was bona fide transaction and as the land was transferred in favour of the above named three persons they became tenure holder and that those plots should not have been taken into consideration, while determining the ceiling area of Late Sri Narain Singh. The Prescribed Authority has held that the gift deeds are not the bona fide transfers and in all these ingredients of adequate consideration are missing and transfers were made in the interest of the members of the family, therefore, they have to be ignored.

Aggrieved by the order of the Prescribed Authority an appeal was filed by the petitioner. The appeal was also dismissed with the finding that as the giftdeeds were after 24th January, 1971 and were not bona fide transactions and were executed in favour of grandsons of the tenureholders who were legally entitled to inherit the same, therefore, the land covered by the giftdeed cannot be treated to be the land of the transferees rather they will be treated to be the land of Sri Narain Singh.

A counteraffidavit has been filed on behalf of the State to the effect that the finding of fact has been recorded by the Prescribed Authority, which has been affirmed by the appellate authority, therefore, the finding of fact cannot be dealt within the writ jurisdiction. It has further been stated that Sanyukta Sehkari Samiti has no power to issue any permission for sale or gift of the land to any Khatedar and as such on the basis of any such permission no exemption can be granted to the petitioner, even though the application was filed before 24th January, 1971. In rejoinderaffidavit the facts stated in paragraph 5 of the counteraffidavit has been denied and it is stated that since Chaudhary Narain Singh was member of the Joint Cooperative Farming Society, Jwalapur, which is a registered society governed by laws, "Adarsha Upridhyak Sehkari Krishi Samiti Ltd." framed under U.P. Cooperative Societies Act, 1965 and there is a bar under Regulation 10Gha of the byelaws that the member of the Society cannot transfer their land within five years from the date of sale of the property, therefore, it was not incumbent on the petitioners to seek permission of Society for transferring the land. The relevant portion of the byelaws have been filed as Annexure R. A. 1.

Learned Counsel for the petitioner has urged that as there was bar for making transfer, therefore, the permission was necessary under the byelaws for that purpose the application was filed before the relevant date but if the permission was not granted till the relevant date and after the permission the transfer was made that shows the bona fide of the tranferorer and it cannot be said that the transfer manipulated the things to show the transactions as bona fide. The learned Counsel for the petitioner has referred to the Regulation 10 of the byelaws annexed with the rejoinderaffidavit and has placed reliance on subclause ''Gha Abare perusal of such clause Ghat shows that there is no mention of any permission for transfer.

In reply the learned Standing Counsel has urged that as there is no bar for making transfer, therefore if some application was filed before a person who was not authorised under the law to grant any permission nor any such permission was needed for making transfer thee such documents filed by the petitioner to show his bona fide has no relevance and the Prescribed Authority has jurisdiction to ignore such transfers, if he is satisfied that transactions are not bona fide and were made after relevant dated 2411971 after hearing learned Counsel for the petitioner and the learned Standing Counsel at length, I am of the view that the finding of fact recorded by the Prescribed Authority and affirmed by the appellate authority cannot be interfered with under Article 226 of the Constitution of India, firstly for the reasons that there was no need to obtain permission for making transfer as is clear from the Regulation 10Gha of the byelaws and secondly that the transaction was made in favour of the grandson.

Learned Counsel for the petitioner has further urged that the finding recorded by the authorities concerned that the giftdeed was not for relevant consideration is illegal as in the giftdeed the consideration is only the love and affection for that purpose. He has placed reliance on 1979 AWC 87, Yadunath v. State of U.P. His contention is that the Ceiling Authority can look into and examine whether any transfer deed executed before a decree passed prior to 24th January, 1971 was sham, fictitious or collusive transaction between 24th January, 1971 and 8th June, 1973 can be examined by the Ceiling Authorities in the light of Principles contained in Section 5(6) of the U.P. Imposition of Ceiling on Land Holdings Act. His contention is that the finding recorded by the appellate authority that as no consideration was paid while executing gift deed, the giftdeed was without consideration is also bad as for that purpose he has placed reliance on 1981S C, 1274, Km. Sonia Bhatia v. State of U.P. and others, wherein it has been held that the concept of gift is diametrically opposed to the presence of any consideration or compensation. Agift has aptly been described as a gratuity and an act of generosity and stress in on the fact that if there is any consideration then the transaction ceases to be a gift. Complete absence of consideration is the main hallmark which distinguishes a gift from a grant or for that matter other transactions which may be for valuable or adequate consideration. Learned Counsel for the placed reliance on 1979 Digvijaya Singh Judeo v. The Prescribed Authority, Jalaun and another on the point that the State if claims that any land is held ostensibly by the tenureholder or he in cultivatory possession, it will be for the State to establish the same. On the basis of this decision the petitioner has also pi; AWC 22, Dewan Dig learned counsel for the petitioner has urged that when the petitioner has shown his bona fide by showing that an application for permission was filed earlier to the relevant date, then it was for the State to prove that this is all fictitious transaction and that the property was transferred only with a view to save the land from the clutches of the ceiling law. After hearing learned counsel for the parties at length and going through the record, I am of the view that as it was for the Prescribed Authority to be satisfied with the transaction being bona fide. A finding of fact was recorded by the Prescribed Authority and even if there is some observation by the Appellate Authority that the giftdeed was not for the consideration that will not of much help to the petitioner as there was no need to take permission from any of the authority under the Regulation/Cooperative Society nor any such permission shall bind the State.

Accordingly the writ petition fails and is dismissed. There will be no orders as to costs. Petition dismissed.