Full Judgment Text
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PETITIONER:
RAM CHANDRA SINOH (DEAD) THROUGH LEGAL HEIRS
Vs.
RESPONDENT:
STATE OF U.P. AND OTHERS
DATE OF JUDGMENT30/08/1990
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
SAIKIA, K.N. (J)
CITATION:
1990 AIR 2186 1990 SCR Supl. (1) 118
1990 SCC (4) 546 JT 1991 (1) 68
1990 SCALE (2)380
ACT:
U.P. Imposition of Ceiling on Land Holdings Act 1960
Amended by Act of 1972 (18 of 1973) further amended by U.P.
Act 2 of 1975--Sections 5, 6, 8, 10, II--Ceiling area deter-
mination of.
HEADNOTE:
The 1960 Act makes provision for imposition of Ceiling
on Land holdings and for determination of surplus land. It
was amended by U.P. Act 18 of 1973 to lower the ceiling
limit and to make provisions with regard to transfers of
land in anticipation of the imposition of ceiling. This Act
came into force on June 8, 1973. Further amendments were
made in the Act by U.P. Act 2 of 1975 inserting Explanation
I & Explanation II after sub-section (1) of section 5 as
substituted by 1973 Act and given effect retrospectively
i.e. from June 8, 1973.
A notice under section10(2) of Act was issued to the
appellant and he filed objections submitting that Chhiddu
Singh, his father, had executed a registered gift deed dated
October 13, 1971 in respect of plot No. 111 measuring 63
Bighas, 12 Biswas and 17 Dhur in favour of appellant’s
mother. appellant’s wife and two sons of the appellant.
Chhiddu Singh died on April 28, 1973. Accordingly the said
gifted land was not inherited by the appellant and it could
not be treated as part of his holding for the purpose of
imposition of ceiling. The prescribed authority overruled
the objections, included the said land as part of the hold-
ing of the appellant and declared the surplus land of the
appellant to the extent of 49 Bighas and 17 Biswas.
The appellant filed an appeal to the First Additional
Civil Judge. It was allowed partly and the surplus land was
reduced to 42 Bighas 13 Biswas and 6 Dhur. The appellant
thereafter filed a writ petition in the High Court which was
dismissed. Feeling aggrieved the appellant filed this appeal
after obtaining special leave to appeal.
The appellant urged before this Court-that amendments
introduced by the 1973 Act are not retrospective in nature
and are operative only from June 8, 1973, that the surplus
land has to be determined as on June 8, 1973, the date of
coming into force of 1973 Act, and that the
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119
land gifted by the appellant’s father on October 13, 1971
could not be included in the holding of the appellant as he
was not the tenure holder of the said land on the death of
his father on April 28, 1973.
Dismissing the appeal, the Court,
HELD: The 1973 Act postulates that ceiling area of a
tenure holder has to be determined in accordance with the
provisions contained in sec. 5 of the Act. While determining
the ceiling area, the surplus land held in excess of ceiling
area, which is to be acquired by the State, has also to be
determined. [123H; 124A]
For determining ceiling area sub-section (6) of section
5 provides that any transfer of land, which but for the
transfer would have been declared surplus land under the Act
if made after January 24, 1971 shall be ignored and not
taken into account but transfers falling within the ambit of
clauses (a) and (b) of the proviso to sub-sec. (6) are,
excluded, and such transfers even though made after January
24, 1971, have to be taken into account. [124B]
In the instant case, the gift was made and executed on
October 13, 1971 and it was a transfer of land and as it was
made after January 24, 1971 the transfer of land was in
respect of land which would have been declared surplus land
under the Act. This transfer did not fall within the ambit
of clauses (a) and (b) of the proviso to sub-section (6) of
section 5. Thus such gift was liable to be ignored for the
purpose of determining the ceiling area applicable to the
appellant. Sub-section (6) of section 5 does not speak of a
transfer by the tenure holder but it speaks of any transfer
of land made after January 24, 1971. So the contention of
the appellant that gift was made by his father and not by
him as tenure holder and he did not inherit the same on the
death of his father is untenable, since sub-section (6) of
section 5 is applicable to a transfer even made by the
predecessors-in-interest of the tenure holder whose ceiling
area is to be determined and who inherited the land prior to
June 8, 1973. The land which was transferred vide gift deed
dated October 13, 1971 was land which but for the said
transfer would have been declared surplus land under the
Act. [124C-H; 125A]
Thus, once the gift is ignored it is to be treated to
have continued to vest in the appellant’s father and after
his death the appellant inherited the same and as such was
part of the holdings of the appellant on June 8, 1973 and
has to be taken into consideration for determining the
surplus land held by the appellant. [125B]
120
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5653
1983.
From the Judgment and Order dated 31.8.1979 of the
Allahabad High Court in Misc. Writ Petition No. 4994 of 1975
E.C. Agarwal for the Appellant.
Manoj Swarup and Ashok K. Srivastava for the Respondent.
The Judgment of the Court was delivered by
S.C. AGRAWAL, J. This appeal by special leave is direct-
ed against the judgment of the High Court of Judicature at
Allahabad dated August 31, 1979 in Civil Misc. Writ Petition
No. 4994 of 1975 filed by the appellant. The said writ
petition related to proceedings for determination of surplus
land under the U.P. Imposition of Ceiling on Land Holdings
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Act. 1960 (hereinafter referred to as ’the Act’).
The Act has been enacted by the U.P. State legislature
to provide for the imposition of ceiling on land holdings in
Uttar pradesh and certain other matters connected therewith.
In Section 4 of the Act provision is made for calculation of
ceiling area. Section 5 provides for imposition of ceiling
on existing holdings. Sections 6 to 8 provide for exemption
of certain lands from the imposition of ceiling. Section 9
provides for issue of a general notice by the Prescribed
Authority calling upon every tenure holder holding land in
excess of the ceiling area to submit to him a statement in
respect of all his holdings. Section 10 days down that in
every case where a tenure holder fails to submit a statement
or submits an incorrect statement the Prescribed Authority
shall. after making such enquiry as he may consider neces-
sary cause to be prepared a statement indicating the plot or
plots proposed to be declared as surplus land and thereupon
cause to be served on every such tenure holder a notice
together with a copy of the statement thus prepared calling
upon him to show cause. within a period specified in the
notice. why the statement be not taken as correct. Section
11 provides for determination of surplus land by the Pre-
scribed Authority in cases where no objection is filed
within the period specified in the notice. issued under
Section 10. Section 12 provides for determination of surplus
land by the Prescribed Authority in cases where an objection
has been filed. Section 13 makes provision for appeal
against the order passed by the Prescribed Authority under
Section 11 or Section 12.
121
In 1972 it was decided to lower the ceiling limit and to
make further provisions with regard to transfers in antici-
pation of the imposition of ceiling. The U.P. State legisla-
ture enacted the U.P. Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972. U.P. Act 18 of 1973 (hereinafter
referred to as ’the 1973 Act’) which came into force on June
8, 1973. By the 1973 Act Sections 3 to 8 were substituted
and other amendments were made in the Act. Certain further
amendments were made in the Act by the U.P. Act 2 of 1975.
Among the amendments introduced by the Amendment Act of 1975
was insertion of Explanation I and Explanation II after
sub-section (1) of Section 5 as substituted by the 1973 Act.
U.P. Act 2 of 1975 was brought into force with effect from
June 8, 1973.
A notice under Section 10(2) of the Act was issued to
the appellant and he filed objections wherein it was submit-
ted that Chhiddu Singh. the father of the appellant, had
executed a registered gift deed dated October 13, 1971 in
respect of Plot No. 111 measuring 63 Bighas, 12 Biswas and
17 Dhur in favour of his wife, Smt. Roshan Kumari, Smt.
Premwati, wife of the appellant, and Virendera Bahadur Singh
and Tej Vir Singh, sons of the appellant. It was also stated
that Chhiddu Singh died on April 28, 1973. The submission of
the appellant was that the said land which was gifted by his
father Chhiddu Singh was not inherited by the appellant and
it could not be treated as part of the holding of the appel-
lant for the purpose of imposition of ceiling. The Pre-
scribed Authority overruled the said objection of the appel-
lant and ignoring the gift made by Chhiddu Singh, included
the said land as part of the holding of the appellant and
declared the surplus land of the appellant to the extent of
49 Bighas and 17 Biswas. The appellant filed an appeal which
was partly allowed by the First Additional Civil Judge.
Aligarh, by his judgment dated January 31. 1975, whereby the
area of surplus land was reduced to 42 Bighas, 13 Biswas and
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6 Dhur. The appellant filed a writ petition in the High
Court which was dismissed by the High Court by judgment
dated August 31, 1979. Feeling aggrieved by the said judg-
ment of the High Court the appellant has filed this appeal
after obtaining special leave to appeal.
The expression ’holding’ is defined in clause (9) of
Section 3 as under:
"(9) ’holding’ means the land or lands held by a person as a
bhumidhar, sirdar, asami of Gaon Sabha or an asami mentioned
in Section 11 of the Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950, or as a tenant
122
under the UP. Tenancy Act, 1939, other than a sub-tenant, or
as a Government lessee or as a sub-lessee of a Government
lessee, where the period of sub-lease is co-extensive with
the period of the lease;"
The expression ’tenure-holder’ is defined in clause (17)
of Section 3 as under:
"(17) ’tenure-holder’ means a person who is the holder of a
holding, but does not include--
(a) a woman whose husband is a tenure-holder;
(b) a minor child whose father or mother is a tenure-
holder."
The relevant provisions of Section 5 are:
"5 Imposition of ceiling----(1) On and from the commencement
of the Uttar Pradesh Imposition of Ceiling of Land Holdings
(Amendment) Act, 1972, no tenure-holder shall be entitled to
hold in the aggregate throughout Uttar Pradesh, any land in
excess of the ceiling area applicable to him.
Explanation I--In determining the ceiling area applicable to
a tenure-holder, all land held by him in his own right,
whether in his own name, or ostensible in the name of any
other person, shall be taken into account.
Explanation II--(If on or before January 24, 1971, any land
was held by a person who continues to be in its actual
cultivatory possession and the name of any other person is
entered in the annual register after the said date) either
in addition to or to the exclusion of the former and whether
on the basis of a deed of transfer or licence 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 held the land
and that it is so held by him ostensibly in the name of the
second mentioned person."
"(6) In determining the ceiling area applicable to a tenure-
123
holder, any transfer of land made after the twenty-fourth
day of January, 1971, which but for the transfer would have
been declared surplus land under this Act, shall be ignored
and not taken into account;
Provided that nothing in this sub-section shall apply
(a) a transfer in favour of any person (including Govern-
ment) referred to in sub-section (2);
(b) a transfer proved to the satisfaction of the prescribed
authority to be in good faith and for adequate consideration
and under an irrevocable instrument not being a benami
transaction or for the immediate or deferred benefit of the
tenure-holder or other members of his family.
Explanation--The burden of proving that a case falls within
clause (b) of the proviso shall rest with the part.x,’
claiming its benefit."
Shri Agarwal has urged that the amendments that were
introduced in the Act by U.P. Act 18 of 1973 are not retro-
spective in nature and that the said amendments are opera-
tive with effect from June 1973, and that surplus land has
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to be determined with reference to June 8, 1973, the date of
coming into force of the 1973 Act. The submission of Shri
Agarwal is that on June 8. 1973 the land covered by Plot No.
111 measuring 63 Bighas, 12 Biswas and 17 Dhur could not be
included in the holding of the appellant and the appellant
was not the tenure-holder in respect of the said land. Shri
Agarwal has contended that in view of the gift deed dated
October 13, 1971, executed by Chhiddu Singh, the father of
the appellant, the land covered by the gift deed had vested
in the donees and the appellant did not inherit the said
land on the death of Chhiddu Singh on 28th April, 1973.
Laying stress on the definition of expression holding’
contained in clause (9) of Section 3 and the expression
’tenure-holder’ contained in clause 117) of Section 3, Shri
Agarwal has submitted that on June 8, 1973 the land that was
gifted by Chhiddu Singh was not held by the appellant and it
was not part of appellant’s holding and the appellant was
not the tenure-holder in respect of the same.
find no merit in this contention. The Act postulates
that the ceiling area of a tenure-holder has to be deter-
mined in accordance with the provisions contained in Section
5. Alongwith such determina-
124
tion of ceiling area there has to Be determination of the
surplus land held in excess of the ceiling area which is to
be acquired by the Stale. For the purpose of determination
of the ceiling area provision has been made in sub-section
(6) of Section 5 that any transfer of land, which but for
the transfer would have been declared surplus land under the
Act. if made after January 24, 1971, shall be ignored and
not taken into account. Transfers falling within the ambit
of clauses (a) and (b) of the proviso to sub-section (6)
are. however, excluded and such transfers even though made
after January 24, 1971 have to be taken into account.
The gift made under the gift deed dated October 13, 1971
executed by Chhiddu Singh was a transfer of land. It was
made after January 24, 1971. It was in respect of land which
but for the transfer would have been declared surplus land
under the Act. The said transfer did not fall within the
ambit of clauses (a) and (b) of the proviso to sub-section
(6) of Section 5. In view of sub-section (6) of Section 5
the said gift was, therefore, liable to be ignored for the
purpose of determining the ceiling area applicable to the
appellant.
Shri Agarwal has urged that sub-section (6) of Section 5
cannot be applied to the present case inasmuch as it postu-
lates a transfer by the tenure-holder whose ceiling area is
to be determined under the Act and that in the present case
the gift was not made by the appellant but by his father
and. therefore. the said gift cannot be ignored on the basis
of the provisions of Sub-section (6) of Section 5. We are
unable to agree. Sub-section (6) of Section 5 does not speak
of a transfer by the tenure-holder. It speaks of any trans-
fer of land made after January 24, 1971 which but for the
transfer would have been declared surplus land under the
Act. It is not the requirement of sub-section (6) of Section
5 that the transfer should be by the tenure-holder whose
ceiling area is to be determined.We cannot read this re-
quirement in it. While construing sub-section (6) of Section
5 it has to be borne in mind that this provision has been
made with the object of preventing evasion of the ceiling
law by owners of large holdings making transfers in antici-
pation of the imposition of the lower limit on the ceiling
area, Such a provision must be so interpreted as to curb the
mischief find advance the remedy. A construction which will
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cut down the scope of this provision cannot be adopted. In
our opinion, therefore, sub-section (6) of Section 5 is
applicable to a transfer made by the predecssor-ininterest
of the tenure-holder whose ceiling area is to be determined
in cases where such predecessor died before June 8, 1973 and
the tenure-holder whose ceiling area is to be determined
inherited the lands of
125
such predecessor prior to June 8, 1973. In the instant case
the land which was transferred by Chhiddu Singh under gift
deed dated October 13, 1971 was land which but for the said
transfer would have been declared surplus under the Act.
Once the gift made by Chhiddu Singh is ignored the land
so gifted should be treated to have continued to vest in
Chhiddu Singh at the time of his death on April 28, 1973 and
on the death of Chhiddu Singh the appellant inherited the
same. The said land has to be treated as part of the holding
of the appellant on June 8, 1973 and he was the tenure-
holder in respect of the same on that date. The said land
was required to be taken into consideration for determining
the surplus land held by him.
Shri Agarwal has relied upon the decision of this Court
in Arjan Singh and Another v. The State of Punjab and Oth-
ers, [1969] 2 S.C.R. 347. This case turns on the interpreta-
tion of the expression ’this Act’ in Section 7 of the Pepsu
Tenancy and Agricultural Lands (Amendment and Validation)
Act, 1962 whereby Section 32KK was introduced in the Pepsu
Tenancy and Agricultural Lands Act, 1955 with effect from
October 30, 1956. By Section 32KK it was provided that land
owned by a Hindu undivided family would be deemed to be land
of one land owner and partition of land owned by such a
family shall be deemed to be a disposition of land for the
purposes of Section 32FF and the question was whether a
partition effected by a registered partition deed dated
September 6, 1956 was covered by the said provision. It
would have been so covered if the expression ’this Act’ was
construed to mean the principal Act of 1955. This Court,
however, held that in view of the various provisions con-
tained in the Amendment Act of 1962 the expression ’this
Act’ meant the Amendment Act of 1962 and not the principal
Act. This decision, therefore, turns on the interpretation
of the particular provision of the Amendment Act of 1962 and
it has no bearing on the present case.
We. therefore, find no merit in the appeal and it is
accordingly dismissed. No order as to costs.
S.Bali Appeal dismissed.
126