MEWA DEVI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS writ petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, (hereinafter referred to as the Act). The petitioner had executed a sale deed in regard to land which formed part of his tenure holding. The petitioner claimed that the land compromised in the sale deeds should be excluded while determining the ceiling area applicable to her. The Prescribed Authority and the Appellate Authority have decided that the land comprised in the sale deeds cannot be excluded from the petitioner's holding while determining the ceiling area applicable to her. Two sale deeds were executed on 7-9-1971 by the petitioner; the first was for 13 bighas 4 biswas in favour of Raghubir Singh for Rs. I6,600/-, and the second on the same date for 31 bighas 1 biswa and 17 biswansis for Rs. 33.500/- in favour of Devi Singh and Satya Veer. Subsequently, on 27-8-1973 the petitioner executed two sale deeds; one in favour of Mukesh Mukar and the other in favour of Vinit Kumar; one of 19 bighas and II biswas of land and the other of 21 bighas and 8 biswas of land for Rs. 20.000/-and Rs. 25.000/-, respectively. Aggrieved by the order of the Prescribed Authority and the Appellate Authority, the petitioner has filed the instant writ petition. The learned counsel for the petitioner has confined this writ petition to the two sale deeds executed by the petitioner on 7-9-1971. The Prescribed Authority held that the aforesaid sale deeds have to be ignored in view of the provisions of Section 5 (6) of the Act, as they were executed after 24th January, 1971. He found that the petitioner had deposited a sum of Rs. 50.000/- in the State Bank of India which, according to him, showed that the petitioner did not have any special need for the money she received as a result of the sale deeds executed by her. The Prescribed Authority also noted that some sale deeds had been executed on 8-6-1973 and as such, were void. He, therefore, came to the conclusion that the sale deeds had been executed in order to evade the provisions of the Act. The petitioner appealed. The Appellate Authority noted that the entire sale consideration was deposited in fixed deposit in a bank, and that if the sale deeds had not been executed, the land would have been declared to be surplus. The Appellate Authority on these findings came to the conclusion that the Prescribed Authority rightly ignored the sale transactions. The Appellate Authority also recorded a finding that the transfers were not made in good faith. In this connection the Appellate Authority noted in its judgment that certain other lands had been sold by the petitioner on 27-3-1973 for Rs. 45.000/-, and that those transfers had also been ignored by the Prescribed Authority. The Appellate Authority went on to add in its judgment that the conduct of the petitioner subsequent to the execution of the sale deeds dated 7-9-1971 show that the transfers had been effected to defeat the provisions of the Ceiling Act and not because she, being an elderly lady, was unable to manage her property as pleaded by her. 4- Section 5 (1) of the Ceiling Act is in Chapter II of the Act. It provides that no tenure holder shall on and from the commencement of the Act, be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him. Section 5 (6) provides that in determining the ceiling area applicable to a tenure holder any transfer of land made after the 24th day of January, 1971, which but for the transfer would have been declared surplus land under the Act, shall be ignored and not taken into account. Then follow two provisos. In this case we are concerned with proviso (b) to Section 5 (6). It provides: "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." Now, let us examine the facts of this case in the light of the provisions of the law referred to above. The petitioner is a widow. She possessed agricultural land. According to her she decided that she could not properly look after her property and that it would be in her interest to sell the property and put the sale proceeds in a bank in fixed deposit. It has been found that she put the sale proceeds in fixed deposit in the State Bank of India. On a fixed deposit the petitioner would get interest which would be available to the petitioner for her needs. The area of the land sold and the sale price are known. Neither the Prescribed Authority nor the Appellate Authority have come to the conclusion that the sale consideration was inadequate. It has also not been found by them that the sale deed was a revocable instrument. There is no finding or even a suggestion on behalf of the State that the transaction was benami or for the immediate or deferred benefit of the tenure holder ors other members of his family. From the mere fact that the petitioner deposited the sale consideration in a bank in fixed deposit, the Prescribed Authority came to the conclusion that there was no need on the part of the petitioner to execute the sale deed. With this finding the Appellate Authority has concurred. While considering whether the benefit of section 5(6)(b) should be extended to a tenure holder, the Prescribed Authority is not to enter into the wisdom of the transaction on the part of the tenure holder when he effected a transfer. It must be remembered that in view of the provisions of Section 5 (6;(b) the transfers effected after the 24th day of January, 1971 are not invalidated as is the case with transfers which fall within the purview of section 5 (8) of the Act When the Legislature speaks of a transfer being not proved to be in good faith, it contemplates a transfer not being vitiated on account of something akin to fraud. The provision aims to hit transfers by which a tenure holder ostensibly transfers land to retain ownership and control of it. No such circumstances have been found in the instant case to justify the Prescribed Authority coming to a conclusion that the transfers were not in good faith. The circumstances in which a tenure holder may decide to sell the land have not been defined. There is no criteria of needs which should be treated as genuine and which should not be treated as genuine needs. If a tenure holder fails to manage the land and sells the land and keeps the sale proceeds in a bank and draws interest on that, it cannot be said that there was no need to sell the land. The learned Standing Counsel appearing on behalf of the State says that no exemption in regard to transfers by widows or such other person has been given in the U. P Imposition of Ceiling on Land Holdings Act. His submission is correct However, while determining the needs of a particular widow for selling land is concerned, it must be remembered that in this State widows are often unable to look after their lands and are cheated by others. It is quite possible that the petitioner genuinely thought by selling the land and keeping the sale proceeds in a bank, she would be better off. The Prescribed Authority and the Appellate Authority both committed a manifest error of law in holding that the two sale deeds are vitiated on the ground that there is a lack of good faith on the part of the petitioner when she executed the sale deeds dated 7-9-1971. There is also no evidence on the basis of which the Appellate Authority and the Prescribed Authority came to the conclusion that the transaction was entered into by the petitioner to evade the provisions of the Act. In the special circumstances of the case, it will not serve any useful purpose to send the case back to the Appellate Authority to determine the case afresh. The area declared surplus was 40 bighas 7 biswas and 19 biswansis, while the area of land covered by the two sale deeds dated 7-9-1971 is 44 bighas and 5 biswas. It has been held by me that these sale deeds have been wrongly ignored both by the Prescribed Authority and the Appellate Authority. The two sale deeds were protected by the provisions of section 5 (6)(b) of the Act. Any money deposited by the petitioners with the prescribed authority in pursuance of the interim order of this Court dated 2-1-1976 shall be refunded to the petitioner. In the result, the writ petition succeeds and is allowed and the impugned orders are quashed.