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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.