ABDUL RASHID KHAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. The facts, in brief, are these: The petitioner was issued notice under section 10 (2) and he filed objections. The objections were decided by the Prescribed Authority and thereafter two appeals were filed in the appellate court below. 'One was filed by the petitioner and the other was filed by Smt. Khairunnissa claiming to be the transferee of certain land from the petitioner. Both the appeals were heard and decided by the appellate court by a common judgment, a certified copy whereof is annexure 8 to the peti tion. Now the petitioner has come up in the instant petition and in support thereof I have heard Shri K.M. Sinha, learned counsel for the petitioner. Learned counsel raised two contentions. Firstly, he contended that the two sale deeds respectively dated 6th May, 1971 and 22nd June, 1972, executed by the petitioner were wrongly ignored by the Prescribed Authority and by the appellate court below. I have looked into the finding recorded by the Pres cribed Authority by his order dated 12th July, 1976, a true copy whereof is annexure 7 to the writ petition. The controversy has been dealt' with under issue no. 1. The Prescribed Authority was not satisfied with the good faith of the transactions concerned and, therefore, ignored the same under section 5 (6). The appellate court in its judgment did not consider the controversy in the light of the earlier part of clause (b) of the proviso to section 5 (6) which lays down that such transfers can be accepted as are proved by a tenure-holder to be in good faith and for adequate consideration to the satisfaction of the Prescribed Authority. The burden is obviously on the petitioners as is made clear by the second explanation to section 5 (6) and, therefore, it was for the petitioner as the appellant in the appel late court to have satisfied the said court that the Prescribed Authority's finding, holding that the petitioner had failed to satisfy the good faith involved in the transaction was an incorrect finding. However, the appel late court really did not consider the controversy in the said light and held against the petitioner on the ground that the transaction was a benami transaction the vendee Khairunnissa holding the land benami for her husband Kasim Ali, It is obvious that the appellate court was wrong there because in using the expression "not being a benami transaction" in clause (b) of the proviso to section 5 (6), the legislature contemplates that the transac tion should be benami in reference to the tenure-holder who is being pro ceeded against in the ceiling proceedings. The benami relationship, if any, between the parties other than the tenure-holder, is wholly irrelevant for deciding the controversy. As the appellate court decided this controversy on a wrong legal basis without considering the real point as to whether the petitioner was justified in claiming that the Prescribed Authority was not justified in treating the transactions as not in good faith, therefore, this con troversy has to be remanded to the appellate court for a fresh decision. The next contention raised by Shri Sinha is that the controversy about certain plots being treated as irrigated or unirrigated has again not been consi dered by the appellate court in the light of the requirements laid down in section 4-A as interpreted by the Division Bench in Jaswant Singh's case (1978 (4) A.L.R. 787 = 1978 A.W.C. 577). THIS contention again seems to be correct and, therefore, this controversy will also have to go to the appellate court for a fresh decision. Accordingly, I allow this petition to the extent and in the manner that the judgment of the appellate court below, a true copy whereof is annexure 8 to the writ petition, is hereby quashed and the aforesaid two controversies are remanded to the said court for a fresh decision in the light of the observations made and directions given above. No other controversy shall be allowed to be raised before the appellate court. As I have already stated above, the controversy about in the plot being irrigated or unirrigated shall be decided in the light of the law laid down in the aforesaid Division Bench pronounce ment. In the circumstances, there will be no order as to costs.