SH. RAGHUBIR SINGH AND ORS.versusSTATE OF U.P. AND ORS.

                   SH. RAGHUBIR SINGH AND ORS.                                 A
                                      v.
                        STATE OF U.P. AND ORS.

                               APRIL 17, 1996

             [K. RAMASWAMY AND S.P. BHARUCHA, .JJ.]                            B

        U.P. Impositio11 of Ceili11g on Land Holdings Act, 1960:

       Section 12-A and clause (d) of its proviso-Transfer of land-Held to
be void and that has become final-Siltce there is no transfer in the eye of
law there is no occasion to apply S. 12-A and clause (d) of the proviso-Hence C
the transfer of land 1ightly not taken into co11sideration for detennining the
ceiling.

        Ravindra Singh v. Phool Singh & Anr., [1995] 1 SCC 251 relied on.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 662 of                 D
1985.

     From the Judgment and Order dated 14.9.84 of the Allahabad High
Court in C. Misc. W.P. No. 3077 of 1982.

        Ms. Rachna Gupta and Mrs. Rani Chhabra for the Appellants.             E

        R.C. Verma and S.P. Sharma for the Respondents.

        The following Order of the Court was delivered :

      The appeal arises from the judgment of the High Court of Allahabad       }<
dated September 14, 1984 in which, upon a writ petition, it set aside the
order of the First Additional District Judge, Nainital in a Ceiling Appeal.

      The third respondent was the tenure-holder of agricultural land
situated in Village Gumsani and Village Bichpuri. She transferred 64
bighas of the land in Village Gumsani to appellant Nos. 1 to 3 by a            G
registered sale deed dated 10th May, 1974. On the same date, she trans-
ferred 64 bighas of the land in Village Bichpuri to the fourth appellant. In
response to a notice under Section 10(2) of the U.P. Imposition of Ceiling
on Land Holdings Act, 1960, (hereinafter referred to as the 'Act') the third
respondent filed objections. The appellants sought to be made parties          H
                                     503
    504                   SUPREME COURT REPORTS (1996J SUPP.1 S.C.R.

A thereto and were impleaded. The prescribed authority did not accept as
    valid the transfers made by the third respondent in favour of the appellants,
    as aforesaid, and appeals were filed from his order. It is enough to state
    that the appeals were dismissed all the way and upon special leave petition
    filed by the appellants before this Court, the following order was passed :

B            "Upon hearing counsel, the Court dismissed the Special Leave
             Petition. But so far as the surplus land to be surrendered is
             concerned, the Prescribed Authority shall decide as to which land
             should be required to be surrendered, after hearing the tenure
             holder Smt. Mohinder Kaur as a transferee and Gurdev Singh's
c            Legal Representative and in accordance with the Section 12(A) of
             the imposition of ceiling of Land Holding Act 1960, as also the
             agreement dated 16.1.1974 and the sale deed between the tenure
             holder Smt. Mohinder Kaur and Gurdev Singh relating lo the
             transferee of the land."

D         The third respondent thereupon elected to surrender the land which
    had been transferred by her to the appellants. The appellants objected, but
    the prescribed authority overruled the same. The Ceiling Appeal was filed
    which was allowed by the Additional District Judge. Against his order, the
    third respondent filed the writ petition upon which the order under appeal
E   was passed.

          Learned counsel for the appellants drew our attention to the terms
    of the order of this Court aforequoted a.'l.d the provisions of Section 12-A
    of the sai.d Act. The relevant provisions, upon which emphasis was laid,
    read thus :
F
             "!\.12-A. - In determining the surplus land under Section 11 or
             Se.ction 12, the Prescribed Authority shall as far as possible accept
             the choice indicated by the tenure-holder to the plot or plots, which
             he and other members of his family, if any, would like to retain as
             part of the ceiling area applicable to him or them under the
G
             provisions of this Act, whether indicated by him in his statement
             under Section 9 or in any subsequent proceedings :

              Provided that -

H                  (d) where any person holds land in excess of the ceiling area

                                                                                     -
                      RAGHUBIRSINGHv. STATE                              505

             including land which is the subject of any transfer or partition   A
             referred to in sub-section (6) or sub-section (7) of Section 5,
             the surplus land d<;termined shall, as far as possible, be land
             other than land which is the subject of such transfer or
             partition, and if the surplus land includes any land which is
             the subject of such transfer or partition, the transfer or
             partition shall, in so far as it relates to the land included in   B
             the surplus land, be deemed to be and always to have been
             void, and -

             (i) it shall be open to the transferee to claim refund of the
             proportionate amount of consideration, if any, advanced by
             him to the transferor, and such amount shall be charged on
                                                                                c
             the amount payable to the transferor under section 17 and
             also on any land restained by the transfer within the ceiling
             area, which shall be liable to be sold in satisfaction of the
             charge, notwithstanding anything contained in Section 153 of
             the Uttar Pradesh Zamindari Abolition and Land Reforms D
             Act, 1950;

        (ii) any part to the partition (other than the tenure-holder in.
        respect of whom the surplus land has been determined) whose
        land is included in surplus land of the said tenure-holder, shall be
        entitled to have the partition re-opened."                              E

      Learned counsel submitted that having regard to proviso (d), the
surplus land in the hands of the third respondent had to be determined,
excluding therefrom that land which had been the snbject matter of transfer
to the appellants.
                                                                                F
      Reliance was placed by the learned counsel for the appellants upon
the decision of this Court in Ravindra S1i1gh v. Phool Singh & Anr., [1995]
1 SCC 251. It has been held that a combined reading of Sectio~ 5(6) and
clause (d) of the proviso to Section 12-A shows that -
                                                                                G
        "any transfer of land made after 24.1.1971 shall be ignored and
        such transferred land shall be included in the holding of the
        transferor except where such transfer is saved by the proviso to
        sub-section (6) of Section 5."

      This judgment very correctly, with respect, sets out the effect of H
    506                   SUPREME COURT REP ORTS [1996] SUPP. 1 S.C.R.

A   Section 12-A and clause (d) of its proviso. The provisions thereof apply to
    transfers which have not been found to be bad in law.

           In the instant case, as aforestated, the transfers of land by the third
    respondent to the appellants were held to be void and, therefore, there was
    no transfer in the eye of the law. Learned counsel emphasised that they
B   have been held to be void by reason of the provisions of Section 5(8) which
    says that no tenure-holder may transfer any land held by him during the
    continuance of proceedings for determination of surplus land in relation
    to such tenure-holder and every transfer made in contravention of this
    sub-section would be void. It seems to us quite irrelevant whether the
C   transfer was held to be void under this or any other provision. The fact is
    that it was held to be void and that has become final. Since there is no
    transfer in the eye of the law there is no occasion to apply Section 12-A
    and clause (d) of the proviso.

           The appeal is accordingly dismissed. No order as to costs.
D
    G.N.                                                      Appeal dismissed.