DILAWAR SINGH DEAD Vs. ADDITIONAL DISTRICT JUDGE GHAZIABAD

JUDGEMENT

(1.) Pursuant to the notice under Section 10 (2 of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (for short, 'the Act') , the appellant had submitted his return. Therein he had stated that on 6/5/1965, he had gifted under Khasra No. 266 eighteen biswas 'pukhta', under No. 613 two bighas, seven biswas and ten biswansis; under No. 616 three bighas, sixteen biswas and six biswansis etc. etc. All the authorities concurrently found that the gift is a sham transaction to avoid the ceiling imposed under Section 5 of the Act. The High court in its order dated 10/11/1978 made in CMWP No. 522 of 1978 dismissed the petition agreeing with the finding thus:

(2.) Mr Ravindra Bana, learned counsel for the appellant, contended that in view of the decision of this court in Ramadhar Singh v. Prescribed Authority, the land covered by the gift deed needs to be excluded by operation of Section 5 (6 of the Act. Mr R. C. Verma, learned counsel appearing for the State urged that initially the notified date which the statute had prescribed was 20/8/1959. Since the appellant had not submitted his return for computation of the surplus ceiling area, notice under Section 10 (2 came to be issued. Therein, he had come with the plea that he had gifted the land to his grandnephew. Since the court below and the High court had found, as a fact, that the transaction of gift was a sham one, it must be construed as if there was no alienation or that it was intended to defeat the provisions of the Act. Therefore, the Amendment Act cannot be applied inthe circumstances. In that view, the ratio of Ramadhar Singh case does not apply to the facts in this case.

(3.) The question for consideration is whether the appellant is entitled to have the lands covered under the gift deed excluded from his holdings. If the gift deed is accepted to be a valid one. his holding would be within the ceiling limit prescribed by Section 5 of the Act. But Section 5 of the Act postulates that on and from the date of its enforcement, no tenure-holder shall, except as otherwise provided by this Act, be entitled to hold an area in excess of the ceiling area applicable to him, notwithstanding anything contained in any other law, custom or usage for the time being in force, or agreement, to the contrary. In determining the ceiling area applicable to a tenure-holder at the commencement of this Act any transfer or partition of land made after the twentieth day of August, 1959, which, but for the transfer or partition would have been declared surplus land under the provisions of this Act, shall be ignored and not taken into account. It would thus be clear that when the Act had come into force and declared that any transfer or partition effected on or after the twentieth day of August, 1959 shall be ignored and shall not be taken into account, the statutory provision required that the excess land shall be computed as if the land held by the declarant on or before the twentieth day of August, 1959 was not affected by virtue of any transfer or partition effected thereafter, and surplus shall be computed, despite such transfer. In view of the finding recorded by the courts below that the gift deed was a sham document in law, it does not have any existence which binds the government in determining the surplus area.