Hardas Singh vs State of U.P. and Others

V.K. Shukla, J.—Petitioner has approached this Court questioning the validity of order dated 18.02.1986 passed by the Prescribed Authority in proceedings under U.P. Imposition of Ceiling on Land Holdings Act, 1960 and the order of its affirmance in appeal vide order dated 26.09.1988 passed by Additional Commissioner, Jhansi Division, Jhansi.

Brief background of the case is that Petitioner was served with a notice on 18.06.1984 u/s 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960. Said notice proposed an area of 67.45 acres of irrigated land to be declared as surplus. Petitioner filed objection on 25.09.1984 before the Prescribed Authority, inter alia, on the ground that he had inherited the land which was ancestral and sir khudkast and his four sons, Shiv Mohan, Amar Singh, Balbir Singh and Braj Mohan Singh were born before abolition of Zamindari, as such his four sons and the Petitioner himself, were having 1/5th share each, and each one of them was tenure holder in his own independent right, as such notice ought to have been given to each one, as each one of them had been in possession of respective share and cultivating the land. Further plea was taken that entire land was un-irrigated in the relevant year and there was no land to be declared surplus. Petitioner claims to have examined himself before the Prescribed Authority. Apart from it, Jagroop Singh, Ramdhani and Lotan Singh also appeared before the Prescribed Authority and all of them supported the case of the Petitioner that the Petitioner was having ancestral sir khudkast holding and all his four sons were born before abolition of zamindari and each one of them was having 1/5th share. Petitioner also filed certified copy of the extract of family register, which was issued u/s 109 of the U.P. Panchayat Raj Act, 1947. Petitioner also filed extract of khatauni of 1378-79 Fasli, Jot Akar Patra and CH Forms 41 and 45 to show and substantiate that the land in question was un-irrigated land with single crop. Petitioner has stated that in the said proceedings statement of Shiv Bhajan Lekhpal was recorded. In respect of three sons of Petitioner, he had stated that they were born before abolition of zamindari and in regard to youngest son, he expressed his ignorance. The record keeper of the Revenue Record Room was also examined. Petitioner has stated that Braj Mohan and Supervisor Kanungo were also examined. The Prescribed authority dismissed the objection by order dated 18.02.1986. Appeal preferred by the Petitioner against the said order had also been dismissed on 04.01.1988. Aggrieved Petitioner instituted writ petition No. 3312 of 1988 before this Court. Said writ petition was allowed by this Court on 04.08.1988 and the matter was remanded back with following observations:

To my mind it was incumbent upon the appellate authority to have recorded a categorical finding whether the sons of the tenure holder were born on the date immediately preceding the date of vesting contemplated by the provisions of U.P. Zamindari and land Reforms Act. A perusal of the impugned judgment indicates that the appellate authority has not approached the problem from correct angle and has patently erred in not answering the contentions raised on behalf of the Petitioner in this regard.

As regards question of irrigated land and unirrigated land, it was incumbent upon the appellate authority to have considered the claim of the Petitioner strictly in the light of the provisions of Section 4-A of the U.P. Imposition of Ceiling on Land Holdings Act (Act No. 1 of 1961). Since the appellate authority has failed to consider the question of irrigated and unirrigated land held by the Petitioner specifically in accordance with the provisions of law laid down in Section 4-A of the aforesaid Act, I think that the impugned judgment suffers from patent error of law and deserves to be quashed.

For the foregoing discussion, this writ petition succeeds and is allowed and the judgment of the appellate authority dated 4.1.1988 is hereby quashed and the appellate authority I s directed to re-examine the claim of the Petitioner strictly in accordance with law as well as in the light of the observations made above.

Parties are directed to bear their costs.

After the aforesaid order had been passed, the appellate authority reconsidered the matter and again dismissed the appeal on 26.09.1988. At this juncture, present writ petition was filed.

Pleadings interse parties have been exchanged, and thereafter, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri V.K. S. Chaudhary, Senior Advocate, assisted by Sri Kunal Ravi Singh, Advocate, assailed the validity of the proceedings on following grounds:

(i) U.P. Imposition of Ceiling on Land Holdings Act, 1961 had been enforced with effect from 08.06.1973, and in the present case notice u/s 10(2) of the said Act had been given in 1984, as such entire proceedings in question are bad in the eyes of law for not taking action within the reasonable time, as such entire proceedings are liable to be quashed;

(ii) The Appellate Authority has totally misdirected itself on this aspect of the matter by holding that Pariwar Register had not been proved and the evidence on record substantiated that only two sons were entitled to 11 Bighas and the other sons were born after abolition of zamindari, ignoring evidence available on record;

(iii) Totally misconceived notion has been drawn by Appellate Authority while determining the question of irrigated/unirrigated land and as such the orders impugned are liable to be quashed.

Countering the said submissions, learned standing counsel, on the other hand, contended that rightful view has been taken in the matter and no interference should be made.

U.P. Imposition of Ceiling on Land Holdings Act, 1961 is an Act to provide for imposition of ceiling on land holdings in U.P. and certain other matters connected therewith. Said Act has been introduced in the background that it was felt necessary in the interest of community to ensure increase of agricultural production and to provide land to landless agricultural labourers and for other public purposes to sub-serve common good and for equitable distribution of land.

The principle applicable to the determination of the surplus land under the land reform laws in the hands of persons holding land on the date on which the ceiling has been imposed has been explained by the Apex Court in the case of Raghunath Laxman Wani and Others Vs. The State of Maharashtra and Others, as follows:

The scheme of the Act seems to be to determine the ceiling area of each person (including a family) with reference to the appointed day. The policy of the Act appears to be that on and after the appointed day no person in the State should be permitted to hold any land in excess of the ceiling area as determined under the Act and that ceiling area would be that which is determined as on the appointed day. Therefore, if there is family consisting of persons exceeding five in number on January 26, 1962, the ceiling area for that family would be the basic ceiling area plus 1/6th thereof per member in excess of the number five. The ceiling area so fixed would not be liable to fluctuations with the subsequent increase or decrease in the number of its members, for, there is, apart from the explicit language of Sections 3 and 4, no provision in the Act providing for re-determination of the ceiling area of a family on variations in the number of its members. The argument that every addition or reduction in the number of the members of a family requires re-determination of the ceiling area of such a family would mean an almost perpetual fixation and re-fixation in the ceiling area by the revenue authorities, a state of affairs hardly to have been contemplated by the legislature.

The principle enunciated in the above decision has been followed by Apex Court in the case of Bhikoba Shankar Dhumal (Dead) by Lrs. and Others Vs. Mohan Lal Punchand Tathed and Others, by taking the view that the surplus land of a person who held land in excess of the ceiling area on the appointed day has to be determined in reference to the appointed day even though such person might have died before the actual extent of surplus land was determined and notified and that the persons on whom his holding devolved on his death would be liable to surrender the surplus land because the liability attached to the holding of the deceased would not come to an end on his death.

The above two decisions have been rendered in cases arising under the provisions of Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, the principles set out therein have been held to be applicable to the cases where there s imposition of ceiling on land held by land holders by land ceiling laws with effect from a specified date. Same view thereafter has been taken by Apex Court in the case of State of U.P. Vs. Civil Judge, Nainital and Others, that whatever surplus land was liable to be surrendered by the tenure holder has to be determined as on June 8, 1973 and taken possession under the Act even though the tenure holder might have died after June 8, 1973 and before such ascertainment. View to the similar effect has again been reiterated by Apex Court while considering the provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960 in the case of State of U.P. v. New Central Jute Mils Company Ltd. 2003 (1) SCC 531.

Once purpose of providing imposition on ceiling on land holding has been highlighted that its primary purpose is to secure the interest of the community, to ensure increase of agricultural production and to provide land to landless labourers and also for equitable distribution of land, can, in such a circumstances, on the ground that proceedings have been undertaken after more than 10 years, entire proceedings based on the same, be quashed. Section 2 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 provides that the State Government may by notification in the official gazette apply the provisions of this Act subject to such exceptions or modifications, not affecting the substance, as the circumstances of the case may require. Section 3 deals with definition clause and therein Section 3(2) deals with "ceiling area" as an area of land not being land exempted under this Act, determined as such in accordance with the provisions of Section 5. Section 3(7) deals with "family" in relation to a tenure holder, means himself or herself and his wife or husband, as the case may be , minor sons and minor daughters. Section 3(9) deals with ''holding'' as land or land held by a person as bhumidhar, sirdar, assami of Gaon Sabha or an assami mentioned in Section 11 of the U.P. Zamindari Abolition and Land Reforms Act or as a tenant under the U.P. Tenancy Act, 1939. Section 3(11) deals with irrigated land and Section 3 (16) deals with "surplus land". Section 3 (17) deals with "tenure holder". Section 4 of the Act deals with determination of area for purposes ceiling and exemptions. Section 4A deals with determination of irrigated land. Section 5 falling in Chapter II of the Act clearly provides that on and from the commencement of the U. P. Laws (extension to Territories Transferred from Bihar) Act, 1976 no tenure holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of ceiling area applicable to him. Thereafter various provisions have been provided for determination of ceiling area applicable to tenure holders and the land held by him in his own right, whether in his own name, or ostensibly in the name of any other person. Sub-section (3) of Section 5 of the Act gives ceiling area for the purposes of the Act. Section 6 deals with exemption of certain land from the imposition of ceiling. Section 9 deals with general notice to tenure holders holding land in excess of the ceiling area for submission of statement in respect thereof. Section 11 deals with determination of surplus land where no objection is filed. Section 12A deals with extent of choice. Section 13 deals with appeals. Section 13A deals with re-determination of surplus land in certain cases. Section 14 deals with acquisition of surplus land. Section 29 deals with subsequent declaration of further land as surplus land. Section 30 deals with determination of surplus land regarding future acquisition.

Nature of the proceeding thus clearly shows that same are mandatory in character, inasmuch as, no tenure holder is entitled to hold agricultural land in excess of ceiling area applicable to him. Once as per provisions of this Act surplus land has been determined, then the same has to be distributed amongst the landless agricultural labourers. Looking into the object of the Act, in the facts of the case, it cannot be said that the ceiling proceedings are bad. Section 9 talks of general notice to the tenure holders, which has to be published in official gazette calling upon every tenure holder holding land in excess of the ceiling area applicable to him on the date of enforcement of this Act to submit to him within 30 days of the date of publication of notice, a statement in respect of all his holdings in such form and giving such particulars as may be prescribed. In the present case, the Petitioner has not at all come up with the case that at what point of time general notice has been issued u/s 9 and further pursuant to general notice so published he had submitted his objection. As far as proceedings u/s 10 (2) of the Act are concerned, the same have to be undertaken by the Prescribed Authority when tenure holder fails to submit statement or submits incorrect statement after thirty days from the date of publication of general notice, giving tenure holder fifteen days time for showing cause, as to why the said statement be not taken as correct, in terms of Rule 8 of 1961 Rules. On the ground of delay proceedings are liable to be quashed, has not at all been pleaded in the body of writ petition, and even material particulars on the said score are lacking and missing, as even date of general notice u/s 9 of the Act has not at all been disclosed. Not only this, even in the earlier round of litigation before this Court, such an issue of delay had never been raised, and on precise issue matter had been remitted back. In such a situation and in this background looking into the fact that there has been no pleading in the writ petition on this score, present Ceiling proceedings cannot be non-suited on the ground of delay.

In the case of S.B. Gurbaksh Singh Vs. Union of India (UOI) and Others, Appellants were assessed to sales tax by Sales Tax Officer in the 1955-56 by order dated 23.11.1959. The Assistant commissioner on 11.02.1960 held the assessment for the first two quarters as time barred and ordered reassessment for 3rd and 4th quarters and quashed the assessment order passed on 21.03.1960. The Commissioner acting under revisional power u/s 20 (3) of the Sales Tax Act revised the appellate order of Assistant Commissioner and held that no part of assessment was time barred. Hon''ble Apex Court in such circumstances held that Commissioner while exercising revisional power cannot over step the period of limitation of three years provided u/s 11 of the Sales Tax Act. This judgment in no way helps the Petitioner.

In the case of Ibrahimpatnam Taluk Vyavasaya Collie Sangham Vs. K. Suresh Reddy and Others, under Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, the proceedings had been finalized after taking objections in the year 1973,and thereafter exercising suo motu power of Section 50-B of the said Act proceedings were reopened. In such circumstances the view taken was that further more as a legitimate explanation of rectification of state of things which have continued over a period of time should have settled.

In the case of State of H.P. and Others Vs. Rajkumar Brijender Singh and Others, , under the provisions of H.P. Ceiling on Land Holdings Act, 1972, ceiling proceedings were finalized in January, 1976 determining surplus area of land which the Respondent was entitled to hold within the permissible limits under 1972 Act. Against the said order State filed appeal; said appeal was withdrawn in March, 1976 and after 15 years, authority u/s 20 (3) of the Act was sought to be exercised, and then view was taken suo motu power cannot be exercised after such long period.

The judgments which have been cited at the Bar are in reference to revisional power and suo motu power and not at all in reference to original exercise of authority, wherein both the tenure holder as well as the State are under statutory obligations to see and ensure that no tenure holder holds the land in excess of the ceiling area. In the facts of the case, as proceedings in question had been taken on 18.06.1994 and the Petitioner had filed his objection on 25.09.1984 and therein no such objection has been taken, and for reasons already noticed above, then merely on the ground of delay such proceedings cannot be faulted, as such issue No. 1 is decided in negative.

Second issue raised is also being adverted to. In the present case Petitioner''s precise case has been that on the date if abolition of zamindari all his four sons were already born and as such each one of the sons of Petitioner had his own independent right over the disputed land, as it was ancestral Sir and Khudkast of Ram Dayal. Before proceeding to decide this issue, the view point of this Court is being looked into. In the case of Ram Chander and Ors. v. Commissioner & Director of Consolidation, Meerut (1970 RD 283), Division Bench of this Court held as follows:

In our opinion no conflict between the personal law and the provisions of the U.P.Z.A. and L.R. Act is involved in the instant cases. The clear findings of fact recorded by the consolidation authorities and which are binding upon us are: firstly, that the land in dispute is a joint and ancestral Khudkasht land of Nanak and secondly, that the land in dispute came to Nanak from his adoptive father, Hargyan. On the date of vesting Hargyan was already dead. Nanak and his two sons, Ishwar Chand and Ashok Kumar were alive at the time of vesting as they are today. On the date of vesting Ishwar Chand and Ashok Kumar being members of the joint Hindu family and coparcenery consisting of Nanak and themselves had one third share each in the plots in dispute also.

Section 18 of the U.P.Z.A. and L.R. Act, so far as relevant for our purposes, reads:

Settlement of certain lands with intermediaries or cultivators as Bhumidhar,

(1) Subject to the provisions of Sections 10, 15, 16 and 17 all lands -

(a) in possession of or held or deemed to be held by an intermediary as Sir, Khudkasht or an intermediary''s grove, on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary, who shall, subject to the provisions of this Act, be entitled to take or retain possession as a Bhumidhar thereof.

There cannot be any dispute that Ishwar Chand and Ashok Kumar being the sons of Nanak and constituting the joint Hindu family and coparcenery with him were intermediaries of the plots in dispute. Section 3(12) of the U.P.Z.A. and L.R. Act defines ''Intermediary'' as "''In-termediary'' with reference to any estate means a proprietor, under-proprietor, sub-proprietor, thekadar, permanent leassee in Avadh and permanent, tenure-holding of such estate or part thereof.

There cannot be any dispute that Ishwar Chand and Ashok Kumar were also proprietors along with Nanak of the zamindari property and the Khud Kasht land belonging to the joint Hindu family and coparcenery. Inasmuch as the land in dispute belonged to the joint Hindu family, Ishwar Chand and Ashok Kumar were co-sharers in the Khud Kasht also. Inasmuch as they were in-termediaries and co-sharers in the Khud Kasht land in dispute, the same would be deemed to have been settled on them by the State Government under the provisions of Section 18 of the U.P.Z.A. & L.R. Act. The mere circumstances that their names were not recorded in the village records would not deprive them of the rights that they possess in the land in dispute. The normal practice in a case of coparcenery is to record the name of the father alone even though the property is jointly owned by him and his sons.

The question whether sons of Petitioner were born immediately preceding the date of vesting contemplated under the U.P. Zamindari Abolition and Land Reforms Act, is essentially a question of fact and has to be decided on the basis of evidence adduced. A positive finding of fact has to be returned in respect of ancestral Sir and Khudkast land and in respect of rights being claimed qua the aforementioned land to be declared as surplus. Petitioner has been specifically claiming that it was ancestral Sir and Khudkast that his sons had been born before the date of vesting , as such they had their own independent right, though the land was recorded in his name and the land of his sons could not have been clubbed. The appellate forum in the present case has proceeded to mention that ancestral Sir and Khudkast of Petitioner is 33 bigha 1 biswa and thereafter has further proceeded to mention that tenure holder in respect of his claim has filed extract of Pariwar register, which is not legible, as such same is not accepted and further Petitioner has not requested for summoning of original record and summoning of Panchayat Officer, as such same is inadmissible. Thereafter, appellate court has proceeded to consider the evidence of Lekhpal and supervisor kanungo, and has proceeded to mention that both of them have perused School Admission Register, wherein date of birth of Shiv Mohan Singh is 14.09.1993; Amar Singh is 08.07.1950; Balbir Singh is 06.08.1957; Brij Mohan Singh is 12.10.1959. The finding recorded by the Additional Commissioner clearly reflects that the claim set up by the Petitioner has not at all adverted to as Petitioner''s specific claim has been that his sons had never visited any institution; in such a situation and in this background, admission register ought to have been summoned and some one from the institution must have come forward to prove the entries mentioned in the admission register. The Additional Commissioner accepted the aforesaid contents of the admission register to be true by mentioning the statements of Lekhpal and Supervisor Kanungo, and has proceeded to pass order ignoring the evidence led on behalf of the Petitioner, including certified copy of Pariwar register, wherein date of birth recorded was prior to abolition of zamindari. In such a situation and in this background decision making process is faulty on this score and is not being approved of on this score and the same requires reconsideration. Appellate Authority is directed to redetermine the issue of extent of ancestral Sir and Khudkast land of Petitioner and shall also determine the date of birth of sons of Petitioner specially in the context of the fact as to whether they were born before the date of vesting or not as claimed by Petitioner, keeping in view the earlier remand order passed by this Court.

The third issue is in respect of irrigated land. Hon''ble Apex Court in the case of Kallu v. State of U.P. and others, AIR 1990 SC 42, has dealt with the provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1961, keeping in view the provisions as provided for u/s 4A of the Act, which provides for various tests. This Court also in the case of Brij Kishore v. State U.P. and Ors. Writ Petition No. 15650 of 1992,decided on 24.05.2010, has held as follows:

There are total three categories for determination of irrigated land and qua each one of three categories in addition to irrigation facilities which are mentioned an additional finding has to be recorded in respect of two crops. In respect of first criteria in addition to irrigation facilities being available as mentioned additional finding is also required to be recorded that at least two crops has been grown on the said land in any one of the aforesaid years. Qua second criteria provided for alongwith irrigation facilities which became available to any land by a State irrigation work coming into operation subsequent to the enforcement of Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act 1972, there is also requirement of additional finding in respect of the fact that at least two crops has been grown on such land in any agricultural year between the date of such work coming into operation and the date of issue of notice u/s 10. In the third category also finding as to whether land in question is situated within the effective command area of a lift irrigation canal of a State tube-well of a private irrigation work has to be recorded and in addition to the said finding and finding has to be given as to whether class and composition of its soil is such that it is capable of growing at least two crops in an agricultural year, has also to be recorded. Finding on irrigation facility has to be accompanied with finding on two crops as per the criteria prescribed and in the absence of such finding determination cannot be approved of.

On the parameters as set out above, it is clear that various tests which have been provided for have to be seen and for the said purpose khasras of 1378, 1379 and 1380 Fasli have to be taken into account and the said determination has to be made in reference to situation as it existed on 08.06.1973. In the present case, Appellate forum has proceeded to mention that as notice had been given in the year 1984, as such Khasra of the year 1387 Fasli; 1388 Fasli and 1389 Fasli would be seen, and based upon entries made in said Khasra, determination of irrigated land has been made accordingly. Relevant date for calculating land to be surplus has to be the appointed date and Section 29 of the Act would come into where certain land comes to tenure holders by transfer, succession or otherwise and such land together with the land already held by him exceeds ceiling area applicable to him or where unirrigated land becomes irrigated land, the ceiling area has to be re-determined. Determination at the first instance has to be done qua surplus land in reference to appointed date, and re-determination will take place, once pre-requisite terms and conditions of Section 29 are in existence. 08.06.1973 has to be taken as cut of date being the appointed day and in reference to the said date, determination has to be done. Section 4A primarily requires Khasra entries of three years 1378, 1379 and 1380 Fasli to be taken into consideration along with the village map and such other records as may be necessary along with various tests for reaching to the conclusion of irrigated land. Specific reason ought to have been given by the Appellate Authority for ignoring the cut of date and for ignoring the issue at the first instance accordingly. The issue of irrigated land requires reconsideration, in reference to initial proceedings u/s 10 (2) of the Act, keeping in view relevant cut of date, relevant documents to be looked into along with all other relevant considerations as mentioned in Section 4A of the Act.

Consequently, present writ petition is allowed in part. The appellate order dated 26.09.1988 is hereby quashed and set aside. The matter is remanded back to the appellate authority for being decided afresh, in accordance with law, in the light of the observations made above, within four months from the date of receipt of a certified copy of this judgment.