# Nirmohan Singh v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 598
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-25
- **Case number:** Writ C No. 3000020 of 2007
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirmohan-singh-v-state-of-u-p-ors-51445
- **Pages:** 7

## Headnote

Civil Law - Constitution of India, 1950Article 226 -U.P. Imposition of Ceiling on
Land Holdings Act,1960-Section 5(6)(b)-
The
petitioner
challenged
the
classification and determination of surplus
land by the authorities-the petitioner the
recorded tenure holder, received a notice
u/s 10(2) of the Act in the year 1974,
proposing that 50.442 acres of his land be
declared surplus-the Prescribed Authority
rejected his objections, citing lack of
evidence and determing that the transfers
to his sons were not bona fide but aimed
at evading ceiling limits-the appellate
authority
upheld
these
findings-no
substantial
evidence
apart
from
oral
claims was presented by the petitionerHeld, the petitioner failed to meet the
criteria u/s 5(6)(b) of the Act for proving
good faith, adequate consideration, and
irrevocability of the transactions-Tenure
holders may be allowed to exercise
options u/s 12 of the Act for retaining
specific portions of surplus land, provided
the
application
is
made
within
the
permissible timeframe.(Para 1 to 30)

The writ petition is dismissed. .( E-6)

## Text

598 INDIAN LAW REPORTS ALLAHABAD SERIES
clearly brings out that the discretion to
make subsequent transferee as a party is
discretion of the Court and the Court has to
look into the fact as to whether the
transferee has substantial right in the suit
proceedings and the subject matter related
therein. Transfer pendente lite is neither
illegal nor void ab initio but remains
subservient to rights eventually determined
by Court in pending litigation. The transfer
in favour of purchaser pendente lite is
effective in transferring title subject to
certain obligations as decision of Court in a
suit is binding not only on litigating parties
but also on those who derive title pendente
lite.

21. From the aforesaid facts it is clear
that entire disputed property which is
subject matter of the suit has been gifted in
favour of petitioner by means of registered
sale deed on 10.08.2009. From the above
any
judgment
in
the
suit
would
substantially effect the right of petitioner
who claims to have received gift from the
purchaser. Accordingly, there is no doubt
that petitioner has substantial interest in the
suit property and is a necessary party.

22. Considering the effect of Section
52 of the Transfer of Property Act on the
gift deed, this Court is of the considered
view that once the petitioner had been
made party even effect of gift deed could
have been adequately adjudicated by the
trial Court by framing issue and permitting
the parties to lead evidence in this regard.
Such an issue could not have been decided
at the preliminary stage while considering
the application for impleadment filed by
the petitioner under Order 1 Rule 10 CPC.

23. In the light of above, impugned
order dated 25.07.2011, is set aside. The
writ petition stands allowed.
----------
(2024) 2 ILRA 598
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.01.2024
BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 3000020 of 2007

Nirmohan Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
U.S. Sahai

Counsel for the Respondents:
C.S.C., Deepak Chandra Jain

Civil Law - Constitution of India, 1950Article 226 -U.P. Imposition of Ceiling on
Land Holdings Act,1960-Section 5(6)(b)-
The
petitioner
challenged
the
classification and determination of surplus
land by the authorities-the petitioner the
recorded tenure holder, received a notice
u/s 10(2) of the Act in the year 1974,
proposing that 50.442 acres of his land be
declared surplus-the Prescribed Authority
rejected his objections, citing lack of
evidence and determing that the transfers
to his sons were not bona fide but aimed
at evading ceiling limits-the appellate
authority
upheld
these
findings-no
substantial
evidence
apart
from
oral
claims was presented by the petitionerHeld, the petitioner failed to meet the
criteria u/s 5(6)(b) of the Act for proving
good faith, adequate consideration, and
irrevocability of the transactions-Tenure
holders may be allowed to exercise
options u/s 12 of the Act for retaining
specific portions of surplus land, provided
the
application
is
made
within
the
permissible timeframe.(Para 1 to 30)

The writ petition is dismissed. .( E-6)

 (Delivered by Hon'ble Alok Mathur J.)
2 All. Nirmohan Singh Vs. State of U.P. & Ors.
599

1. Heard Sri U.S. Sahai, learned
counsel for petitioner as well as learned
Standing Counsel for respondents.

2. The petitioner by means of present
writ petition has challenged the order dated
26.02.2005 passed by prescribed authority
whereby he has rejected the objections filed
by the petitioner as well as the order dated
26.02.2007
passed
by
Additional
Commissioner,
Lucknow
Division,
Lucknow whereby the appeal preferred by
the
petitioner
against
the
order
of
prescribed authority has been dismissed.

3. Brief facts of the case are that the
petitioner who is the recorded tenure holder
was served with a notice under Section
10(2) of the Uttar Pradesh Imposition of
Ceiling of Land Holdings Act, 1960 on
19.11.1974 indicating his holdings to be
80.04 acres out of which 77.25 acres were
shown irrigated land while 2.79 acres were
shown as a bagh. In the said notice, 50.442
acres was proposed to be declared as
surplus. The petitioner had filed his
objections stating that in his land, the
holdings of Ramendra Singh, Ravindra
Singh and Surjit Kaur W/o of Harvinder
Singh has wrongly been included and
prays for exclusion of the said land.

4. He has further stated that the entire
land was unirrigated and it was wrongly
shown in the notice that the land was
irrigated. The prescribed authority after
considering the objections rejected the
same by means of order dated 25.01.1975
and declared 50.442 acres as surplus. The
petitioner had filed an appeal which was
dismissed and subsequently a writ petition
was also filed before this Court.

5. The matter was remanded to the
prescribed authority who again rejected the
objections by means of order dated
17.01.2001. While rejecting the objections,
he
held
that
Ramendra
Singh
and
Gurmohan Singh were the sons of the
petitioner and consequently the sale deeds
in their favour have been made only for the
purpose of evading the proceedings under
the Act of 1960 and there was no material
that the said transaction were bonafide or
for
adequate
consideration
and
consequently refused to exclude the said
land from the holding of the petitioner. It
was also brought before him that despite
the execution of the said sale deeds, the
petitioner was still in possession of the said
land and consequently the sale deeds were
not bona fide.

6. Against the order dated 17.01.2001,
the petitioner had preferred an appeal
where again he sought exclusion of the land
which has been sold to his sons and further
canvas the issue pertaining to the fact that
the
land
were
unirrigated
and
the
prescribed authority had wrongly shown
them to be irrigated. The appellate
authority while considering the appeal was
of the view that the prescribed authority has
not duly considered the sale deeds by
which the sale deeds have been executed in
favour of the sons and also as to whether
adequate consideration was received and
whether the petitioner was entitled for the
benefit under Section 5 Sub-Clause 6 of the
Act of 1960 and consequently for this
reason remanded the matter back to the
prescribed authority for consideration on
these aspects.

7. With regard to the issue whether
the land was irrigated, a finding was
recorded in favour of the petitioner holding
that even as per the revenue records
pertaining to fasli year 1378-1380, the land
had been shown as unirrigated and the
600 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions for irrigation were made only
after the cut off date and consequently the
land could not be held to be irrigated.

8. In the remand proceedings, the only
issue before the prescribed authority was
the matter pertaining to the exclusion of the
lands which were sold to his sons, namely
Rameder Singh and Gurmohan Singh to
whom the sale deeds were executed on
28.10.1971 and 27.10.1971 respectively by
the petitioner. He has stated that notices
were sent to the petitioner and he was also
given an opportunity to adduce evidence.
Despite granting of the opportunity, no
documentary evidence was filed by the
petitioner and he merely reiterated that the
said lands deserve to be excluded from the
holdings of the petitioner. He has further
noticed that both the sale deeds were
excluded
between
28.10.1971
and
27.10.1971 which are after the two cut off
dates prescribed under the Act of 1960 and
no evidence was adduced by the petitioner
which can indicate that he had received
adequate consideration for the sale of land
and only reason stated by the petitioner was
that only for the marriage of his daughter
he had sold the lands.

9. The prescribed authority had
recorded that it is not believable that a
person would sell the land to his sons to get
money for the wedding of his daughter and
considering the fact that the land has been
sold to his sons, it cannot be said that the
sale is bonafide but it seems that an effort
was made to evade the provisions of
Ceiling Act of 1960 and hence rejected his
objections. He further noticed that no
option has been given by the petitioner as
per the provisions of Section 12 of the Act
of 1960 and hence while decided the
matter, declaring 17.302 acres as surplus
land in terms of irrigated land. The
petitioner being aggrieved by the said order
had preferred an appeal.

10. The matter pertaining to exclusion
of the land sold to his sons was again
agitated before the appellate authority. The
appellate authority also recorded that no
evidence has been filed by the petitioner
from which it can be demonstrated that the
sale deeds were bonafide and for adequate
consideration. He has stated that out of
four sale deeds, two sale deeds were in
favour of his sons while the rest two sale
deeds which were in favour of other
persons have already been excluded. Even
before the appellate authority, it was
submitted that for the purpose of marriage
of his daughter, the land was sold to his
sons. It could not be demonstrated that the
sons had capacity to pay for the said land or
that the consideration as shown in the sale
deeds
was
adequate
considering
the
location of the land and it could not be
shown that after the said sale deeds the
sons were in occupation of the said land
and
performing
agricultural
activities
themselves. While on the contrary, there
was material on record to show that
despite the execution of the sale deeds the
petitioner continued to have possessory
rights over the land and consequently in
absence of any material to show that there
was compliance of statutory provisions
contained in Section 5 Sub-Clause 6 (b) of
the Act of 1960, this issue was rejected.

11. With regard to issue pertaining to
irrigated or unirrigated land, the appellate
authority has relied upon the revenue
records pertaining to the khasra for fasli
years 1370 and 1379 where the said land
was shown to be irrigated and the petitioner
was obtaining two crops and hence after
observing the said facts he found that no
interference in this regard was also required
2 All. Nirmohan Singh Vs. State of U.P. & Ors.
601
and hence rejected the appeal of the
petitioner.

12. Sri U.S. Sahai, learned counsel for
petitioner has reiterated all the issues. He
has submitted that the said sale deeds
executed in favour of sons by the petitioner
were for adequate consideration and bona
fide and hence deserves to be excluded
from the holding of the petitioner and
submitted that the finding recorded by the
prescribed authority and the appellate
authority require interference by this Court.

13. When a pointed query was put to
him as to the material which was placed by
him either before the authorities below or
before this Court to demonstrate as to
whether the said sale deeds were for
adequate consideration and bonafide, he
submitted that apart from oral testimony
there was no other material. He has
submitted that the reasons stated before the
authorities below was that for the purpose
of marriage, the land was sold by the father
to his sons and that was the reasons
sufficient itself for exclusion of the lands
from the holdings of the petitioner.

14. Learned Standing on the other
hand has opposed the writ petition. He has
submitted that the mere fact that the father
has sold his properties to the sons a
presumption and suspicion arises that the
said transfer of the land has been made by
the tenure holder only for the purposes of
evading
from
the
clutches
of
the
provisions of Ceiling Act of 1960. He
has stated that before the prescribed
authority and appellate authority there
was material to indicate that despite the
said sale deeds the land continued to be
in possession of the recorded tenure
holder and accordingly submitted that the
said sale deeds were a mere sham and not
entered into for the purpose of transferring
the lands in the hands of his sons. He has
further submitted that onus lay upon the
petitioner to adduce evidence to show that
after execution of the said sale deeds the
sons had possessory rights over the said
land and were in fact cultivating the land
themselves to the exclusion of the recorded
tenure holder. He has further submitted
that no exemplars were filed by the
petitioner to show that the consideration
paid by his sons for purchase of the land
was adequate.

15. In absence of any material or
evidence adduced by the petitioner, both
the authorities below could not have
recorded any finding in favour of petitioner
who has failed to demonstrate that the said
sale deeds were executed for adequate
consideration
and
were
bonafide.
Accordingly, he stated that there is no
infirmity in the order of prescribed
authority or the appellate authority and
consequently the writ petition deserves to
be dismissed.

16. I have heard learned counsel for
respective parties and also perused the
record.

17. With regard to issue pertaining
to the exclusion of the land for which
the petitioner has entered into a sale
deed and sold the said lands to his sons
by registered sale deed on 28.10.1971
and 27.10.1971. According to the
provisions contained in the Act of 1960,
no alienation or transfer of land is
permitted after the cut off date or any
such alienation or transfer is liable to be
ignored by the prescribed authority
while considering the land to be
declared surplus at the hands of the
recorded tenure holder.
602 INDIAN LAW REPORTS ALLAHABAD SERIES

18. As per Section 5 of the Act of
1960, on or from of the commencement of
the Act of 1960, no tenure holder is entitled
to hold aggregate any land in excess of the
ceiling area applicable to him and while
determining the ceiling area all lands held
by him in his own right, whether in his own
name, or ostensibly in the name of any
other person shall be taken into account.
According to Explanation - 2 of Section 5,
where a person continues to be in actual
cultivatory possession even if the said land
is recorded in the name of any other person,
it shall be presumed, unless the contrary is
proved that the first person continues to
hold the land so held by him even if it is
recorded in the someone else name.

19. Under Section 2 of Section 5
under such a situation, the land of the
recorded tenure holder can be excluded and
according to Sub-Section 6, any transfer of
land made after 24.01.1971 if made in good
faith and for adequate consideration under
an irrevocable instrument not being a
benami transaction or for immediate or
deferred benefit would be excluded. To
seek the benefit of such exclusion, as is
being sought by the petitioner in the first
case it has to be demonstrated by him to the
satisfaction of the prescribed authority that
the said transaction is in good fair and for
adequate consideration under the sale deed
which is not a benami transaction.

20. In order to bring his case within
the purview of Proviso (b), the tenureholder has to show-

(i) that the transfer has been made
in 'good faith';

(ii) that it is a transfer for
adequate consideration;

(iii)that it has been made under an
irrevocable instrument; and

(iv) that it is not a benami
transaction or for immediate or deferred
benefit of the tenure- holder or other
members of his family.

21. The primary object of the Ceiling
Act, as stated in Section 5(1) is to prohibit
and disentitle a tenure-holder from holding
land in the aggregate in the State of Uttar
Pradesh, in excess of the ceiling area, in his
own right, whether in his own name, or
ostensibly in the name of any other person.
The ceiling area and surplus land of a
tenure-holder under the Ceiling Act, as
already mentioned, are to be determined as
on
June
8,
1973
when
the
U.P.
(Amendment) Act.

22. No. 18 of 1973 came into force. A
transfer, therefore, made after January 24,
1971 which is designed to serve as a cloak
for retention of a right or interest of the
transferor in the ostensibly transferred land
in excess of the ceiling area, even on or
after June 8, 1973, will be patently not in
'good faith'. But the Proviso (b) to
subsection (6) of Section 5 extends the
negative aspect of the concept 'good faith' a
little further by indicating, that even if the
transfer is not an ostensible transfer and the
transferor divests himself of all interest and
rights in presenti in the transferred land, but
reserves some benefit in futuro for himself
or other members of his family, then also
the transfer will be not in 'good faith'. A
transfer
solely
for
the
purpose
of
converting surplus land into cash without
any kind of need (not to be confused with
legal necessity) may also lack good faith.

23. Broadly speaking, the benefit of
clause (b) of the Proviso to subsection (6)
is available to a transfer made in good faith,
that is to a bona fide transfer whereby the
tenure-holder genuinely and irrevocably
2 All. Nirmohan Singh Vs. State of U.P. & Ors.
603
transfers all right, title and interest in the
land in favour of the transferee, in the
ordinary course of management, of his
affairs and which is not a collusive
arrangement, or device or subterfuge to
enable the tenure-holder to continue to hold
the surplus land or any reserved interest in
presenti or in futuro, therein (or merely to
convert it into cash), and thus circumvent
the ban under Section 5(1) of the Ceiling
Act. In order to be entitled to the benefit of
Proviso (b), a transfer made in good faith,
must satisfy the further conditions, (ii) to
(iv), enumerated in the Proviso (b). The
positive conditions laid down in Proviso (b)
are that the transfer should be for adequate
consideration; that it should have been
made under an irrevocable instrument. The
negative conditions set out in clause (b) of
the Proviso are that it must not be a benami
transaction; that it must not be for
immediate or deferred benefit of the
transferring
tenure-holder
or
other
members of his family. These tests or
conditions (ii), (iii) and (iv) provided in
Proviso (b) may not by themselves be
conclusive to hold that the transfer was in
'good faith'. For instance, another important
test for judging the genuineness or
otherwise of a sale would be whether or not
cultivatory possession and enjoyment of the
land has passed under the sale to the
vendee. Even so, once it is established by
the transferring tenure-holder that the
transfer in question effected in the course
of ordinary management of his affairs, was
made for adequate consideration and he has
genuinely,
absolutely
and
irrevocably
divested himself of all right, title and
interest (including cultivatory possession)
in the land in favour of the transferee, the
onus under Explanation II. in the absence
of
any
circumstances
suggestive
of
collusion, or an intention or design to
defraud or circumvent the Ceiling Act, on
the tenure-holder to show that the transfer
was effected in 'good faith', will stand
discharged, and it will not be necessary for
the tenure-holder to prove further that the
transfer was made for an impelling need or
to raise money for meeting a pressing legal
necessity.

25. Apart from oral submission, no
documentary evidence or any material was
adduced before the prescribed authority to
enable him to record a satisfaction that all
the conditions existing as per Section 5(6b)
are fulfilled in the present case. The only
reason given was that the money was
required for the marriage of his daughter. It
could not be demonstrated that the sons had
the capacity to pay the amount paid in the
sale deed or that after the sale deed they
were in actual cultivatory possession of the
said land and the said transaction was not a
benami transaction. To fulfil the conditions
as stated above, explicit material and
evidence should have been placed before
the prescribed authority so as to enable him
to record the satisfaction. Both the
authorities below have unequivocally
stated that the petitioner had failed to
adduce any material or evidence to satisfy
the authorities in this regard and even
before this Court no such material has been
placed to indicate that there were sufficient
conditions existing for exclusion of the
lands sold to his sons on the ground that the
sale was bonafide and for adequate
consideration.

26. In light of the above, this Court is
of the considered view that there is no
infirmity in the order dated 26.02.2005
passed by prescribed authority whereby he
has rejected the objections filed by the
petitioner as well as the order dated
26.02.2007
passed
by
Additional
Commissioner,
Lucknow
Division,
604 INDIAN LAW REPORTS ALLAHABAD SERIES
Lucknow whereby the appeal preferred by
the petitioner against the order of prescribed
authority has been dismissed.

27. Lastly, it has been submitted by
learned counsel for the petitioner that petitioner
may be given liberty to make an appropriate
application before the prescribed authority to
exercise option as per provisions of Section 12
of the Act.

28. In this regard, this Court is of the view
that statute itself provides that at the time of
declaring any land to be surplus, the option
given by the recorded tenure holder has to be
given, though he has not exercised the option
any time prior but the request made by the
petitioner before this Court cannot be ignored
considering the statutory provisions contained
in the Act of 1960.

29. Accordingly, it is provided that in case
any application is made before the prescribed
authority within next four weeks, the same may
be
considered
by
the
said
authority
expeditiously in accordance with law and
appropriate orders be passed after hearing all
the concerned parties.

30. In view of above, the writ petition
stands dismissed.
----------
(2024) 2 ILRA 604
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 12545 of 2020

Seema Nagar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Gulrez Khan, Sri Javed Husain Khan

Counsel for the Respondents:
C.S.C., Sri Aakash Rai, Sri Bheem Singh

Service Law - U.P. Secondary Education
Services Selection Board Rules, 1998 -
Rule 10, Rule 14 - Intermediate Education
Act, 1921 - Promotion to Lecturer Post -
Petitioner, an Assistant Teacher (L.T. Grade),
challenged requisitions dated 09.07.2019 and
05.10.2019 for direct recruitment to Lecturer
(Economics) post, claiming promotion under
50% quota - Held, out of five sanctioned
lecturer posts, three (including Economics)
vacant; Rule 10 mandates 50% of lecturer posts
filled by promotion from substantively appointed
Trained Graduate teachers - Committee of
Management
wrongly
requisitioned
direct
recruitment
for
Economics
post
without
considering petitioner's eligibility - Rule 14
requires promotion based on seniority, subject
to rejection of unfit, with Regional Selection
Committee to decide - Management's claim of
uncertified character roll (2010-17) and sub
judice claims of others irrelevant, as petitioner's
claim for Economics post survives within
promotion quota - Reservation inapplicable to
promotion quota alone, per Smt. Pholpati Devi
Vs Smt. Asha Jaiswal and R.S. Garg Vs St. of
U.P.,
as
clubbing
promotion
and
direct
recruitment
vacancies
for
reservation
impermissible
-
Requisitions
quashed,
Committee directed to forward petitioner's
service records to District Inspector of Schools
within three weeks for onward transmission to
Regional Joint Director, with final decision by
Regional Selection Committee within six weeks.
(Para 5-11)

Writ petition allowed.

List of Cases Cited:

1. Smt. Pholpati Devi Vs Smt. Asha Jaiswal;
2009 (2) ADJ 90 (DB)

2. Tejveer Singh Vs St. of U.P.; (not fully cited,
referenced as Co-ordinate Bench decision)

3. R.S. Garg Vs St. of U.P.; (2006) 6 SCC 430