# Rajjan Singh and another v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1364
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-11-02
- **Case number:** Civil Misc Writ Petition No. 38545 of 1996
- **Bench:** Sunil Hali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajjan-singh-and-another-v-state-of-u-p-and-others-42017
- **Pages:** 4

## Headnote

Act 1960 Section 5(6)-Sale transaction
made
and
became
effective-prior
24.01.71-can
not
be
questioned,
Prescribed Authority-No jurisdiction to
consider nature of Transaction either bona
fide or
to
defeat
the ceiling-finding
3 All] Rajjan Singh and another V. State of U.P. and others
1365
regarding of cultivatory possession of
original tenure holder based on surmises
and conjectures-liable to quashed.

Held: Para 7

The only exception to such a principle is
contained in Section 5(1) Explanation II of
the Act which contemplates that in case
the original transferor continues and is in
actual cultivatory possession of the land
which he had transferred in the name of
any other person or to his relative, in that
eventuality it shall be presumed unless
proved otherwise that he continues to hold
the land in his own name. In the present
case, prescribed authority has concluded
that the transfer effected by the erstwhile
land holders were not in good faith and by
implication it has been presumed that
erstwhile petitioner continues to be in
possession of the land. There is no
documentary evidence to suggest that the
erstwhile owner continues to remain in
possession of the property. In the present
case, it be seen that no such enquiry or
any finding has been recorded on the basis
of any record that the original tenure
holder is in actual cultivatory possession of
the land even though the finding has been
recorded but that is based on only
surmises and conjectures. This being the
position the impugned order declaring the
land of the petitioner to be surplus cannot
be sustained and the same is liable to be
quashed.

## Text

1364 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
gross negligence and unmindful action
causing harassment of a common and
helpless man, this Court has never been a
silent spectator but always reacted to bring
the authorities to law.

13. In Registered Society Vs. Union
of India and Others (1996) 6 SCC 530 the
Apex court said:

"No public servant can say "you may
set aside an order on the ground of mala
fide but you can not hold me personally
liable" No public servant can arrogate in
himself the power to act in a manner which
is arbitrary".

14. In Shivsagar Tiwari Vs. Union
of India (1996) 6 SCC 558 the Apex Court
has held:

"An arbitrary system indeed must
always be a corrupt one. There never was a
man who thought he had no law but his own
will who did not soon find that he had no
end but his own profit."

15. In Delhi Development Authority
Vs. Skipper Construction and Another
AIR 1996 SC 715 has held as follows:

"A democratic Government does not
mean a lax Government. The rules of
procedure and/or principles of natural
justice are not mean to enable the guilty to
delay and defeat the just retribution. The
wheel of justice may appear to grind slowly
but it is duty of all of us to ensure that they
do grind steadily and grind well and truly.
The justice system cannot be allowed to
become soft, supine and spineless."

16. In view of the above discussion,
the impugned order cannot sustain. The writ
petition is allowed. The impugned order
dated 22.11.2007 is hereby quashed to the
extent it suspends the firearm licence of the
petitioner.

17. However quashing of order of
suspension will not prevent Licensing
Authority
to
proceed
and
conclude
proceeding, if any, for cancellation of
firearm licence of the petitioner pursuant to
impugned order dated 22.11.2007.

18. The petitioners shall be entitled to
cost which I quantify to Rs.10,000/- against
respondents 1 and 2. It is made clear that at
the first instance costs shall be paid by
respondent No.1 but it shall be at liberty to
recover the same from concerned District
Magistrate held office at Farrukhabad
during the relevant period and found
responsible for inaction in the matter, after
making such enquiry as permissible in law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2011

BEFORE
THE HON'BLE SUNIL HALI,J.

Civil Misc Writ Petition No. 38545 of 1996

Rajjan Singh and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri B.D. Mandhyan

Counsel for the Respondents:
C.S.C.

U.P. Imposition of Ceiling on Land Holding
Act 1960 Section 5(6)-Sale transaction
made
and
became
effective-prior
24.01.71-can
not
be
questioned,
Prescribed Authority-No jurisdiction to
consider nature of Transaction either bona
fide or
to
defeat
the ceiling-finding
3 All] Rajjan Singh and another V. State of U.P. and others
1365
regarding of cultivatory possession of
original tenure holder based on surmises
and conjectures-liable to quashed.

Held: Para 7

The only exception to such a principle is
contained in Section 5(1) Explanation II of
the Act which contemplates that in case
the original transferor continues and is in
actual cultivatory possession of the land
which he had transferred in the name of
any other person or to his relative, in that
eventuality it shall be presumed unless
proved otherwise that he continues to hold
the land in his own name. In the present
case, prescribed authority has concluded
that the transfer effected by the erstwhile
land holders were not in good faith and by
implication it has been presumed that
erstwhile petitioner continues to be in
possession of the land. There is no
documentary evidence to suggest that the
erstwhile owner continues to remain in
possession of the property. In the present
case, it be seen that no such enquiry or
any finding has been recorded on the basis
of any record that the original tenure
holder is in actual cultivatory possession of
the land even though the finding has been
recorded but that is based on only
surmises and conjectures. This being the
position the impugned order declaring the
land of the petitioner to be surplus cannot
be sustained and the same is liable to be
quashed.

(Delivered by Hon'ble Sunil Hali,J.)

1. By means of this writ petition,
petitioners have prayed for a writ, order or
direction in the nature of certiorari quashing
the judgement and orders dated 31.1.1996
and 26.9.1996 passed b y respondent nos. 3
& 2 respectively.

2. The facts shorn of details are that
the prescribed authority gave a notice to the
petitioner under Section 10(2) of the Ceiling
Act. The petitioners in reply to the notice
submitted that the land occupied by the
petitioners was within the ceiling limit. The
prescribed authority, declared 13.4402
hectares of land as surplus land. Aggrieved
against the order of the prescribed authority,
an appeal was filed which was dismissed
vide order dated 26.9.1996 by Addl.
Collector, Allahabad Region, Allahabad.
Aggrieved against the aforesaid judgement
of the appellate authority, present writ
petition has been filed.

3. Original tenure holder during his
life time had executed three sale deeds and
three gift deeds in favour of his daughter-inlaws and daughters and two others namely
Kalika Prasad and Kallu. These transfers
have been affected prior to 24.1.1971. By
virtue of amendment effected in Section
5(6) of the UP Imposition of Ceiling on
Land Holdings Act, 1960 by UP Act No. 18
of 1973 any transfer of land effected prior to
24.1.1971 shall not be enquired into for the
purpose of finding out as to whether such
deed has been executed in good faith or not.
While reading Section 5(1) Explanation II
which contemplates that if on or before
24.1.1971, any person who was holding the
land as owner and is in actual physical
possession of the land and the name of any
other person is entered in the annual register
either in addition to or to the exclusion of
the former and whether on the basis of a
deed of transfer or license or on the basis of
a decree, it shall be presumed unless the
contrary is proved to the satisfaction of the
prescribed authority, that the first mentioned
person continues to hold the land and that it
is so held by him ostensibly in the name of
the
second
mentioned
person.
The
explanation
contemplates
that
the
genuineness and otherwise of any such
transfer deeds can always be examined if it
is found on fact that the original owner
continues to cultivate the land for and on
1366 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
behalf of said person. If the case is
otherwise then the authenticity of such
transfer deeds can not be questioned.

4. Case of the petitioner is that the
Prescribed authority while dealing with the
issue of such transfer deeds has recorded a
finding that all the transfers have not been
made in good faith but with intent to defeat
the provisions of ceiling Act. In this respect
the findings recorded by the Prescribed
authority on Issue No. 4, while dealing with
this issue, has held that the transaction of
the transfers have been made within the
family except for the two regarding which it
has been said that they are also not in good
faith. After having held so, prescribed
authority has decided to hold the petitioners
to be in cultivatory possession not on the
basis of the record but by implication.

5. The short questions involved in this
case are that whether the transfer deeds
effected by the original land holder in
favour of his daughter-in-laws and two
other persons can be gone into as the same
have been effected prior to 24.1.1971 and
secondly whether the transfer deed have
been executed in good faith or only to
circumvent the provisions of ceiling Act.

6. There is no dispute that all the
transfer deeds have been executed prior to
24.1.1971. Prescribed authority has no
competence to examine the veracity
otherwise of the sale deeds executed prior to
24.1.1971. The enquiry regarding the
validity of the sale deeds under sub section
6 of Section 5 of the Act was totally
misplaced.
Therefore
the
Prescribed
authority has no jurisdiction to put the
validity of the sale deed to test as his
jurisdiction will arise only when the deed of
transfer had been effected on or after the
appointed date i.e. 24.1.1971. Section 5 (6)
of Act, 1960 also provides that transfers of
land made subsequent to 24th January, 1971
are liable to be examined except when it is
established to the satisfaction of the
authorities that the transfer was in good
faith, for adequate consideration and under
a irrevocable instrument not being a Benami
transaction or for the immediate or deferred
benefit of the tenure holder or other
members of his family. Transfer effected
prior to 24.1.1971 cannot be gone into by
the authority.

7. The only exception to such a
principle is contained in Section 5(1)
Explanation
II
of
the
Act
which
contemplates that in case the original
transferor continues and is in actual
cultivatory possession of the land which he
had transferred in the name of any other
person or to his relative, in that eventuality
it shall be presumed unless proved
otherwise that he continues to hold the land
in his own name. In the present case,
prescribed authority has concluded that the
transfer effected by the erstwhile land
holders were not in good faith and by
implication it has been presumed that
erstwhile petitioner continues to be in
possession of the land. There is no
documentary evidence to suggest that the
erstwhile owner continues to remain in
possession of the property. In the present
case, it be seen that no such enquiry or any
finding has been recorded on the basis of
any record that the original tenure holder is
in actual cultivatory possession of the land
even though the finding has been recorded
but that is based on only surmises and
conjectures. This being the position the
impugned order declaring the land of the
petitioner to be surplus cannot be sustained
and the same is liable to be quashed.
3 All] Abhishek Kumar Pandey V. State of U.P. and others
1367

8. In the circumstances, the writ
petition is allowed. The impugned orders
dated 31.1.1996 and 26.9.1996 passed by
respondent nos. 3 & 2 are hereby
quashed.Matter is remanded back to the
authorities to consider the question of taking
surplus land afresh.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2011

BEFORE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 58165 of 2011

Abhishek Kumar Pandey
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri Pradeed Kumar Singh
Sri Pradeep Kumar Mishra

Counsel for the Respondents:
Sri R.A. Akhtar
Sri Rajeev Joshi
C.S.C.

Right of Children to free education Act,
2009 Section-23(1) readwith U.P. Basic
Education (Teachers) Service Rules, 1981,
Rule 4-5-Petitioners diploma holders as B.P.
Ed. And D.P.Ed-claiming appointment on
Post of Asst. Teacher for Children Education
upto class V to VIII-Rule 81 nowhere
provides Teachers for Physical Educationrelief
to
quash
notification
dated
20.08.2010
and
to
re-advertisements
permitting them to appear U.P.T.E.T.-in
absence
of
challenge
to
validity
of
Notification-such relief can not be granted
nor any direction for creation of post of
Asstt. Teachers of -under these categories
can be issued.

Held: Para 15 and 17

The relief claimed in these petitions is to
quash the Notification dated 23rd August,
2010
and
suitably
amend
the
advertisement
so
as
to
permit
the
petitioners to appear at the forthcoming
UP-TET to be held on 13th November, 2011.
There is no submission that paragraph 5(b)
of the notification is bad in law or that the
NCTE was not competent to provide the
minimum
qualifications.
As
noticed
hereinabove, Section 23(1) of the Act
confers powers on the academic authority
authorised by the Central Government to
prescribe the minimum qualification for a
person to be eligible for appointment as a
teacher and the Central Government has by
the Notification dated 31st March, 2010
authorised the NCTE to lay down the
minimum qualifications. The NCTE has,
accordingly, issued the Notifications dated
23rd August, 2011 and 29th July, 2011 and
under
paragraph
5(b),
the
minimum
qualifications
for
Physical
Education
Teachers are the qualifications contained in
2001 NCTE Regulations. These Regulations
do not provide for holding a TET. There is no
challenge to the 2001 NCTE Regulations. In
such circumstances, the relief claimed for
by the petitioners for permitting them to
appear at the UP-TET so that they can be
considered for appointment cannot be
granted.
The
petitioners
cannot,
accordingly, be permitted to assail the
advertisement to the extent it does not
permit them from appearing at the UP-TET.

This apart, a direction cannot be issued to
the respondents to create posts of Assistant
Teachers
(Physical
Education)
in
elementary schools run by the Basic
Education Board or recgonised by the Basic
Education Board so that the petitioners can
be considered for appointment. There is no
categorical averment in the petitions that
the post of Assistant Teacher (Physical
Education) in elementary school exists in
the other two categories of Institutions
referred to in Section 2(n) of the Act.
Case law discussed:
(2010) 1 SCC 756