Full Judgment Text
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PETITIONER:
DILAWAR SINGH (DEAD) THR. LRS.
Vs.
RESPONDENT:
ADDL. DISTRICT JUDGE, GHAZIABAD
DATE OF JUDGMENT13/09/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
JEEVAN REDDY, B.P. (J)
HANSARIA B.L. (J)
CITATION:
1995 SCC (6) 86 JT 1995 (7) 85
1995 SCALE (5)467
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Pursuant to the notice under s.10(2) of the U.P.
Imposition of Coiling on Land Holdings Act, 1960 [for short,
‘the Act’], the appellant had submitted his return. Therein
he had stated that on May 6, 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 s.5 of the
Act. The High Court in its order dated 10.11.1978 made in
C.M.W.P. No.522/78 dismissed the petition agreeing with the
finding thus:
"In my view, the Prescribed Authority
and the Court below which affirmed the
decision of the Prescribed Authority on
the controversy have recorded findings
which cannot be said to be vitiated by
any jurisdictional error. They were
entitled to reach their own conclusion
and this court in its writ jurisdiction
cannot substitute its own judgment for
the decision of the Prescribed Authority
on the ground that the said decision or
the judgment of the lower appellate
court should not have been so pronounced
on the basis of material and evidence on
the record. The next point urged was
that plot no.992 is Abadi land. Again, I
find that the necessary discussion is
there in the order of the Prescribed
Authority and in the judgment of the
lower appellate court and a finding of
fact has been recorded which cannot be
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disturbed in the writ jurisdiction."
Mr. Ravindra Bana, learned counsel for the appellant,
contanded that in view of the decision of this Court in
Ramadhar Singh vs. Prescribed Authority and Ors.,[(1994)
Supp.3 SCC 702], the land covered by the gift deed needs to
be excluded by operation of s.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 August 20, 1959. Since the appellant had not submitted
his return for computation of the surplus ceiling area,
notice under s.10 (2) came to be issued. Therein, he had
come with the plea that he had gifted the land to his grand-
nephew. 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 in the circumstances. In
that view, the ratio of Ramdhar Singh’s case (supra) does
not apply to the facts in this case.
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 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.
In view of the finding that it is a sham document, the
validation of any transfer or partition effected on or after
January 24, 1971 is of no avail to the appellant. The ratio
in the above case has no application to the facts of the
case. The appeal is accordingly dismissed. No costs.