Skip to content


Mathura Prasad Vs. Iii Additional District Judge, Shahjahanpur - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 11354 of 1981
Judge
Reported inAIR1982All181
ActsUttar Pradesh Imposition of Ceiling on Land Holdings Act, 1961 - Sections 5(6) and 12A; Constitution of India - Article 226
AppellantMathura Prasad
Respondentiii Additional District Judge, Shahjahanpur
DispositionPetition dismissed
Excerpt:
.....u. p. imposition of ceiling on land holdings act, 1961 and its proviso - ascertaining of surplus land - prescribed authority must under general circumstances accept the choice given by owner of land - if choice not acceptable sufficient reasons must be given - if matter covered under clause (d) of proviso land transferred and ignored under section 5(6) must not be included in surplus land. (ii) relief under writ petition - article 226 of constitution of india - mere purpose of transfer of land by petitioner was to avoid ceiling law - wrong conduct of petitioner - relief not available under article 226. - - (1978 all lj 776), i should like to say that the correct legal position is that section 12-a both in its body as well as in the various clauses of its proviso, contains the..........of ceiling on land holdings act.2. the facts, in brief, are these. the petitioner is the tenure-holder to whom the notice under section 10 (2) of the act was issued. it seems that he did not contest and gave in choice some land which he had sold by a sale deed which was executed in 1973 in favour of the contesting respondents nos. 4 to 6. the choice given by the petitioner was not accepted by the prescribed authority which is clear from the order dated 15-2-1975, a true copy of which is annexure 1 to the petition. it seems that the prescribed authority rejected the said choice because the transferees had put in appearance and contended that in view of the sale deed dated 12-1-1973 in their favour, the choice as given by the petitions as the tenure-holder, should not be accepted.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. This petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act.

2. The facts, in brief, are these. The petitioner is the tenure-holder to whom the notice under Section 10 (2) of the Act was issued. It seems that he did not contest and gave in choice some land which he had sold by a sale deed which was executed in 1973 in favour of the contesting respondents Nos. 4 to 6. The choice given by the petitioner was not accepted by the Prescribed Authority which is clear from the order dated 15-2-1975, a true copy of which is Annexure 1 to the petition. It seems that the Prescribed Authority rejected the said choice because the transferees had put in appearance and contended that in view of the sale deed dated 12-1-1973 in their favour, the choice as given by the petitions as the tenure-holder, should not be accepted in view of the provisions contained in Clause (d) of the proviso to Section 12-A of the Act. This contention found favour with the Prescribed Authority and, therefore, the choice as given by the petitioner was rejected. The petitioner filed an appeal. This appeal was allowed by the appellate Court by its judgment dated 20th Sept., 1975. A true copy of the same is Annexure 2 to the petition. Thereafter, it seems that a writ petition was filed in this Court by the said transferees against the said appellate judgment. The writ petition is admitted to have been allowed by this Court but unfortunately, however, no copy of the judgment passed in the earlier writ petition has been annexed to this writ petition. Any way it seems that this Court directed that the appeal should be heard after giving an opportunity to the transferees also. The appeal was, thereafter, heard by the appellate Court and the same was dismissed. However, in view of the prayer made on behalf of the petitioner, that he should be given an opportunity to give some other land in choice, the appellate Court observed that such an opportunity would be given to the petitioner to give in choice any other land except the plot No. 40 M area 7.98 acres which he had sold in favour of the said transferees.

3. A true copy of the said appellate judgment dated 19-8-1981 is Annexure 3 to the petition and a certified copy of the same is also on the record.

4. Feeling aggrieved, now the petitioner has come up in the instant writ petition and in support thereof I have heard Sri B. D. Mandhyan, learned counsel for the petitioner.

5. The learned counsel for the petitioner contended that the appellate Court was not justified in rejecting the choice given by the petitioner and in this connection he placed reliance on a pronouncement of a learned single Judge of this Court in Nakchhed Singh v. State of U. P. (1978 All LJ 776), I should like to say that the correct legal position is that Section 12-A both in its body as well as in the various clauses of its proviso, contains the legislative mandate in respect of the choice which has to be given by the tenure-holder and the manner in which it is to be accepted or rejected by the Prescribed Authority. The basic scheme of Section 12-A of the Act is that the choice as given by the tenure-holder shall, as far as possible, be accepted. In other words, the Prescribed Authority has to make a sincere effort to accept the choice as given by the tenure-holder, but if due to any reason, it is not possible to accept such choice then the Prescribed Authority must state such reason. It is a case of an imperative direction combined with discretion. However, if a case is governed by Clause (d) of the proviso then the clear legislative mandate is that the land which is covered by a transfer ignored under Section 5 (6) of the Act, shall not be included in the surplus land as far as possible. The Prescribed Authority has to carry out this legislative mandate and if it is not possible to carry out the said mandate, then the reason has to be given why it is not possible to carry oat the said legislative mandate. In the instant case, the Prescribed Authority and the Appellate Court had carried out the legislative mandate and excluded the land which was the subject matter of the transfer from the surplus land of the petitioner. It should be seen mat the transferees were all the time claiming that the land transferred in their favour should not be declared as surplus land and this contention Was accepted by the Prescribed Authority and also by the Appellate Court.

6. I should like to emphasise here that the jurisdiction which is exercised by this Court is an extraordinary jurisdiction and this Court has a discretion to interfere or not to interfere taking into consideration all the circumstances including the broad equities of the case. The petitioner of his own admission has by his own conduct rendered himself incapable of getting any relief in this jurisdiction. In para 19 of the petition, it is averred as follows :

'That the sale deed in favour of the contesting respondents Nos. 4 to 6 were executed with an intention to save the land from ceiling and in fact those sale deeds were not for valuable consideration. Though in the sale deeds a sum of Rs. 8,000/- was shown but only Rs. 1,000/- were paid before the Sub-Registrar and even that amount was taken back by the respondents. Therefore, no credence can be given to such sale deeds and the respondents were not entitled to the exclusion of the land transferred to them.' I do not think that a tenure-holder, who has acted in this manner and who, on his own admission, conducted himself in that manner is entitled to any relief in the writ jurisdiction of this Court, which is an extraordinary jurisdiction under Article 226 of the Constitution.

7. This petition fails and is dismissed in limine.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //