Full Judgment Text
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CASE NO.:
Appeal (civil) 1712 of 1997
PETITIONER:
Nawab Syed Murtaza Ali Khan (Dead) By L.Rs.
RESPONDENT:
Vs.
Prescribed Authority, Rampur and Ors.
DATE OF JUDGMENT: 18/08/2003
BENCH:
Shivaraj V. Patil & D.M. Dharmadhikari
JUDGMENT:
J U D G M E N T
W I T H
WRIT PETITION (C) NO. 804 OF 1996
Shivaraj V. Patil, J.
Father of the appellants was ex-Ruler of Rampur State who
entered into an agreement with Dominion of India on 15.5.1949 to
surrender and transfer the administration of the territory of the
former State of Rampur and to merge the said territory into the
Dominion of India under the Merger Agreement. Article 4 of the
said Agreement, to the extent relevant, reads:-
"Article 4 â\200\223
The Nawab shall be entitled to FULL OWNERSHIP,
use and enjoyment of all private properties (as
distinct from State properties) belonging to
him on the date of this agreement."
On the same day, Ministry of States, Government of India
wrote a letter to him which was to be treated as part of the
Merger Agreement. Clause (xviii) reads:-
"(Xviii) -
No land or building being your Highness’s
private property shall be requisitioned or
acquired without your consent and without
paying full compensation."
On 15.5.1949 itself, the Ministry of States, Government of
India, wrote a letter to the Nawab containing a list of moveable
and immoveable properties which would be the private properties
of the Ruler for the purpose of Article 4 of the Merger
Agreement. Item 6 in the list pertained to agricultural lands
covering an area of 1073 acres stated to have been transferred by
the State to the Ruler for farming purposes free of rent.
Under Section 4(i) of the Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950, State Government issued a
notification on 30.6.1952 vesting all the estates in the State
which did not include estates in Rampur State. On 30.6.1954, the
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said Act was extended to the territory occupied by the former
Princely State of Rampur. Thereafter on 1.7.1954, State
Government of Uttar Pradesh issued a notification under Section
4(i) of the Uttar Pradesh Zamindari Abolition & Land Reforms Act
vesting all lands (estates) situated in the territory occupied by
the former princely State of Rampur except the private lands
belonging to the ex-Ruler of Rampur.
The State Legislature of Uttar Pradesh passed the Uttar
Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (for
short ‘the Act’). The said Act was amended from time to time.
The relevant Sections as existed in 1977-78 when the said Act was
sought to be applied to the appellants read as under:-
"3(9) - ‘Holding’ means the land or lands held
by a person as a Bhumidar, Sirdar, Asami, Gaon
Sabha or an Asami mentioned in Section 11 of
the Uttar Pradesh Zamindari Abolition and Land
Reforms Act, 1950, or, as a tenant under the
U.P. 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 the sub-lease is co-extensive with
the period of the lease."
"3(16) - "Surplus land" means land held by a
TENURE HOLDER in exercise of the Ceiling area
applicable to him, and includes any buildings,
well and trees existing thereon."
"3(17) - "Tenure-holder" means a person
who is the holder of a holding, but except in
Chapter III does not include:-
(a) a woman whose husband is a tenure-holder;
(b) a minor child whose father or mother is a
tenure-holder."
"3(21) - The words and expressions not defined
in this Act but used in Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950, shall
have the meanings assigned to them in that
Act."
"Section 5. Imposition of ceiling â\200\223
(1) On and from the commencement of the
Uttar Pradesh Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972, no tenure-
holder shall be entitled to hold in the
aggregate throughout Uttar Pradesh, any land in
excess of 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 ostensibly in the name of any other person,
shall be taken into account.
Explanation II â\200\223 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
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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 hold the land and that it
is so held by him ostensibly in the name of the
second mentioned person."
"Section 6 - Exemption of certain land from
the imposition of ceiling â\200\223
(1) Notwithstanding anything contained in
this Act, land falling in any of the categories
mentioned below shall not be taken into
consideration for the purposes of determining
the ceiling area applicable to, and the surplus
land of, tenure-holder namely; -
(a) land used for an industrial purpose (that
is to say, for purposes of manufacture,
preservation, shortage or processing of
goods), and in respect of which a
declaration under Section 143 of the
Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950, subsists;
(b) land occupied by a residential house;
(c) land used as a cremation ground or as a
grave-yard, but excluding cultivated
land;
(d) land used for tea, coffee or rubber
plantations, and to the extent
prescribed, land required for purposes
ancillary thereto and for development of
such plantations;
(e) land held from before January 24, 1971
for purposes of a stud farm to the extent
prescribed;
(f) land held from before the first day of
May, 1959, by or under a public,
religious or charitable waqf, trust,
endowment, or institution the income from
which is wholly utilized for religious or
charitable purposes, and not being a
waqf, trust or endowment of which the
beneficiaries wholly or partly are
settlers or members of his family or his
descendants;
(g) land held from before June 8, 1973, by a
Goshala of a public nature, registered
under the Uttar Pradesh Goshala
Adhiniyam, 1964, to the extent
prescribed;
(h) [Omitted]
Explanation - Nothing in clause (f) of sub-
section (1) shall apply in relation to a
Goshala referred to in clause (g) of that sub-
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section."
Section 6 prior to the amendment reads:-
"6. Exemption of certain land from the
imposition of ceiling â\200\223 Notwithstanding
anything contained in this Act, land falling in
any of the categories mentioned below shall not
be taken into consideration for the purposes of
determining the ceiling area applicable to, and
the surplus land of, a tenure holder â\200\223
(i) to (xiii)..........................
(xiv) land held by the Ruler of an erstwhile
merged State which because of the conditions of
the Merger Agreement between him and the
Government of India or the collateral letters
appended thereto cannot be acquired by the
State Government without his concurrence.
(xv) to (xix) ....................."
In the year 1977, proceedings under the Act by the
Prescribed Authority were initiated by issuing notice under
Section 10 of the Act ostensibly on the ground that the exemption
clause under Section 6(xiv) of the Act had been repealed and so
the ceiling Act had become applicable to the lands held by the
father of the appellants. Objections were filed before the
Prescribed Authority contending that the Act was not applicable
and the proceedings should be dropped. The Prescribed Authority
by its order dated 21.10.1978 rejected the objections. The
learned District Judge dismissed the appeal on 21.5.1980 filed by
the father of the appellants challenging the order of the
Prescribed Authority. A writ petition was filed before the High
Court challenging the validity and correctness of the order
passed by the learned District Judge in appeal affirming the
order passed by the Prescribed Authority. During the pendency of
the writ petition, father of the appellants died. Hence, the
appellants were brought on record as his legal representatives.
The High Court dismissed the writ petition on 30.4.1996 taking a
view that the only provision in the Act which could prevent its
applicability to the lands of former Rulers of Princely States in
Uttar Pradesh was the exemption clause contained in Section
6(xiv) of the Act. Since Section 6(xiv) of the Act had been
repealed by U.P. Amending Act No. XVIII of 1973, the appellants
were not entitled to claim exemption of the provisions of the
Act. Under the circumstances, the appellants are in appeal before
this Court calling in question the validity and correctness of
the order passed by the High Court.
The learned counsel for the appellants urged that the lands
in question were private properties of ex-Ruler of Rampur State
as is evident from Merger Agreement coupled with collateral
letters and the notification issued under the Zamindari Abolition
Act; the father of the appellants was not a tenure holder as the
lands were private properties of the Ruler and he was absolute
owner of the agricultural lands; having regard to the definitions
contained in Section 3 of the Act of "holding’, "tenure holder"
and "surplus land", Section 5 of the Act is not applicable to the
lands held by the appellants and merely because exemption under
clause 6(xiv) was repealed, Section 5 of the Act cannot be
applied to the case of the appellants. The learned counsel made
a grievance that the High Court did not consider important
questions of law that arose for consideration in the light of the
provisions of the different Acts having bearing on the decision
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in the case. According to him, Prescribed Authority as well as
the Appellate Authority focused the attention on the exemption
clause without considering the applicability or otherwise of the
main Section 5 in regard to ceiling on holding.
Opposing the submissions made on behalf of the appellants,
the learned counsel for the respondents made submissions
supporting the impugned order. He urged that relevant
definitions given in Section 3 must be understood and interpreted
in the context of the scheme of the Act; when the exemption given
earlier by Section 6(xiv) was repealed and Section 6 as it stood
on the relevant date did not give any exemption to the private
properties of the ex-Ruler, it must be understood that the
legislature consciously took away the exemption given earlier;
if the private properties of the Ruler were not covered by the
Act, there was no reason as to why originally exemption was given
under Section 6(xiv) of the Act.
We have carefully considered the submissions made by the
learned counsel for the parties.
As per Article 4 of the Merger Agreement Nawab of Rampur
was entitled to full ownership, use and enjoyment of all private
properties (as distinct from State properties) belonging to him
on the date of the agreement, i.e., 15.5.1949. Clause XVIII of
the letter annexed to the said agreement of the same date
(Annexure B) states that no land or building being the private
property of ex-Ruler shall be requisitioned or acquired without
his consent and without paying full compensation. On 15.5.1949
itself one more letter (Annexure C) was written to Nawab from
Ministry of States referring to Article 4 of the Merger Agreement
stating that the Government of India agreed that the moveable and
immoveable properties mentioned in the list attached shall be the
private property of ex-Ruler. In the list attached item No. 6
relates to agricultural lands covering an area of 1073 acres,
which were stated to have been transferred by the State to the
Ruler for farming purposes; that was free of rent. Under Section
4(i) of the Uttar Pradesh Zamindari Abolition and Land Reforms
Act, 1950 State Government issued a notification on 30.6.1952
vesting of the estates in the State, which notification did not
include estates in Rampur State. On 30.6.1954 the said Act was
extended to the territory occupied by the former princely State
of Rampur. Further on 1.7.1954 State Government of Uttar Pradesh
issued one more notification under Section 4(i) of the same Act
vesting of the lands (estates) situated in the territory of
former princely State of Rampur except the private lands
belonging to the Ruler of Rampur. Thus, it is clear that the
lands in question were the private properties of the ex-Ruler.
The learned District Judge took a view that since the
agricultural lands covered by item No. 6 in the list referred to
above were given "free of rent", the predecessor of the
appellants was a "Government Lessee" within the meaning of
Section 3 of the Act; therefore, he was a tenure holder under the
Act. This Court in Rani Ratnaprova Devi and others vs. The State
of Orissa and others [AIR 1964 SC 1195], in similar
circumstances, observed: -
"What the Act has purported to do is to
authorize the levy of assessment in respect of
lands which till then had been exempted from
the said levy..... If the Orissa Legislature
has imposed A TAX in the form of assessment of
the PRIVATE LANDS OF THE RULERS, clearly it has
not purported either to deprive the Rulers of
their property or to acquire or requisition the
said property; IT IS A SIMPLE MEASURE
AUTHORISING THE LEVY OF A TAX IN RESPECT OF
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AGRICULTURAL LANDS and, as such, it is entirely
outside the purview of Article 31."
The High Court committed an error in stating that under
Articles 4 to 9 of the Merger Agreement nowhere there was any
mention of any agricultural lands. This was a clear misreading
of the documents. As already stated above, from the letters
written by the Ministry of States, Government of India, on the
date of Merger Agreement itself, referring to the said agreement,
agricultural lands were clearly included in the list at item No.
6. The High Court also took the view that since the lands were
granted ’free of rent’ it only meant that the Ruler was not
obliged to pay rent; it meant that the rent was chargeable on the
lands held for agricultural purposes but the Ruler got a
permission of the State not to charge the rent from him. The
High Court in the impugned order observed: -
"The argument of the learned standing counsel
is very strong that if the legislature did not
intend to exclude the agricultural land of the
erstwhile ruler the forum was available to
challenge the amendment and get the same
declared ultra vires. If that has not been
done then the Ceiling Act has full force."
It appears that the High Court was of the view that by the
amendment brought to Section 6 exemption, which was available
prior to the amendment under Section 6(xiv), was taken away; the
said amendment having not been challenged as ultra vires the
provisions of the Act applied to the lands of the ex-Ruler. The
Prescribed Authority held that the lands of the ex-Ruler were not
covered by any of the exemptions granted by Section 6 of the Act
as amended and rejected the objections of the appellants that the
provisions of the Act did not apply to the lands. The District
Judge dismissed the appeal of the appellants on the ground that
the lands were granted ’free of rent’ to the ex-Ruler as he was a
tenure holder. The High Court dismissed the writ petition by the
impugned order since the exemption, which was available under
Section 6(xiv) earlier, had been repealed, the provisions of the
Act applied to the lands held by the ex-Ruler.
The High Court, in our view, did not consider the question
that arose for consideration as to whether the provisions of the
Act applied to the lands of the appellants. As already noticed
above, a factual error was committed by the High Court in stating
that the lands were not private properties of the ex-Ruler. It
also committed an error in holding that the ex-Ruler was a tenure
holder merely looking to the use of the words ’free of rent’
mentioned in the item No. 6 of list of the letter annexed to the
Merger Agreement. It failed to consider the use of the words
’free of rent’ having regard to the contextual facts and in the
light of the decision of this Court aforementioned.
Unfortunately, the High Court did not even consider the relevant
provisions of the Act bearing on the controversy.
Section 5 of the Act deals with imposition of ceiling. It
declares that on and from the commencement of the Uttar Pradesh
Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, no
tenure holder shall be entitled to hold in the aggregate
throughout Uttar Pradesh, any land in excess of ceiling area
applicable to him. Whether Section 5 of the Act could be applied
in relation to the private lands in question held by the ex-Ruler
should have been examined by the High Court in proper perspective
having due regard to the definitions "holding", "tenure holder"
and "surplus land" contained in Section 3 of the Act, provisions
contained in Section 5, scope of Section 6 and other relevant
provisions of the Act. The effect of Explanation I to Section 5
of the Act should have been also kept in view. The focus of the
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attention of the High court was confined to the exemptions
granted under Section 6 of the Act without basically considering
the main Section 5 dealing with the imposition of ceiling on the
lands held by the ex-Ruler. Section 6 of the Act speaks of
exemption of certain lands which shall not be taken into
consideration for the purposes of determining the ceiling area
applicable to, and the surplus land of the tenure holder. Mere
omission of exemption of private properties of ex-Ruler in the
categories of exemptions under Section 6 after amendment cannot
take away the effect and operation of Section 5 and the other
provisions of the Act. There may be cases where an ex-Ruler
might have possessed private lands as absolute owner as against
tenure holder or may be holding lands partly as tenure holder or
partly as absolute owner of the private property. Such cases are
to be examined in the light of definitions contained in Section 3
and provisions contained in Section 5 read with Section 6.
Unfortunately, these aspects did not receive deeper and proper
consideration at the hands of the High Court. As already
observed above, the approach of the High Court was truncated when
it considered only the effect of exemption under Section 6 of the
Act on the lands held by the appellants and further the High
Court also committed a factual error in holding that the lands in
question were not at all private properties of the ex-Ruler as
per the Merger Agreement.
In these circumstances, the impugned order cannot be
sustained. Hence, this appeal is allowed, the impugned order is
set aside and the matter is remitted to the High Court for fresh
consideration and disposal of the writ petition in the light of
what is stated above.
In the light of the order passed in Civil Appeal No. 1712
of 1997, no separate order is needed to be passed in Writ
Petition No. 804 of 1996. Accordingly, it is disposed of. No
costs.