Shiv Nath Singh vs State of U.P. and Others

K.C. Agarwal, J.—This writ petition is directed against the judgment of the IInd Additional District Judge, Rampur dated 3rd July, 1975 affirming the judgment of the Prescribed Authority dated 31-3-1975 declaring 11.86 acres irrigated land as surplus.

In response to the notice served under Sub-section (2) of Section 10 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "the Act"), the Petitioner filed an objection claiming, inter-alia, that the Petitioner had an adult son on the 8th June, 1973 and, therefore, he was entitled to 2 hectares of additional land under Clause (a) of Sub-section (3) of Section 5 of the Act. The case of the Petitioner was contested by the State on the ground that as the said son of the Petitioner died on 12th March, 1974, therefore, the Petitioner was not entitled to 2 hectares of additional land.

The first question that is required to be decided in this connection is about the right of the Petitioner to get two additional hectares of land. It is indisputable that U.P. Act No. 118 of 1973 came into force on the 8th June, 1973. It is with effect from this date that the ceiling area was reduced to 7.30 hectares. Therefore, the rights and liabilities of a tenure holder have to be decided with reference to the aforesaid date. Section 5(3)(a) provides that in the case of a tenure-holder having a family of not more than five members, 7.30 hectares of irrigated land plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregates to two hectares, for each of his adult sons, subject to a maximum of six hectares if such additional land shall be given to him. Admittedly, the son of the Petitioner was alive on the 8th Jane, 1973. Hence the Petitioner was entitled to get two hectares additional irrigated land for the said son. There is, however, no controversy on this point, The controversy raised was that as the son of the Petitioner died subsequently on 11th March, 1974, the Petitioner''s ceiling area was since liable to be re-determined in accordance with Section 29 and as a result of the said re-determination the two additional hectares land would have been taken away, therefore, there was no question of giving two additional hectares of land to him. Reliance was placed on Section 29 of the Act. The relevant portion of Section 29 may be quoted below:

Where after the date of enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972-

(a) any land has come to be held by a tenure-holder under a decree or order of any court, or as a result of succession or transfer or by prescription in consequence of adverse possession, and such tend together with the land already held by him exceed the ceiling area applicable to him; or

(b) the ceiling area shall be liable to be re-determined and accordingly any land held by hint in excess of ceiling area so re-determined shall be liable to be treated as surplus land.

It appears from the reading of Section 29 of the Act that by this enactment the imposition of ceiling is a continues process and that the authorities have to ensure that at no point of time a tenure holder has in his possession more area than the prescribed under the Act, Section 29, however, would apply only when certain contingencies mentioned therein were fulfilled, the same being that if a tenure-holder after his ceiling area is determined gets some property under:

(i) a judgment, decree or order of any court;

(ii) succession or transfer;

(iii) or by prescription in consequence of adverse possession;

Then the same would be liable to be re-determined, in the instant case the view taken by the authorities below was that since two additional hectares of land, which bad to be given to the Petitioner due to his having an adult son, would be deemed to have been received by the Petitioner on succession on his son''s death. The view taken by the authorities below does not appear to be correct. It may be noted that when under Clause (a) of Section 5(3) of the Act additional land is given to a tenure-holder due to the circumstances mentioned therein, the additional land does not become the property of either the minor children or that of the adult sons. The property continues to be that of the tenure-holder. The same is given to him to enable to run the expenses of the family. Accordingly of a son for whose benefit the additional land is received by a tenure holder dies subsequently, the property is not inherited by the tenure-holder as there is no such question. The question of inheritance arises only when the property belongs to some body else and thereafter the same is received on death of that person. If the property already is that of the tenure-holder and certain changes take place in his family due to marriage or death or some other reason, the same would not be deemed to be received by the tenure-holder on succession or transfer, Accordingly the view taken by the authorities below that the Petitioner was not entitled to two hectares additional land as the same would have been taken away from him u/s 29 of the Act appears to be erroneous.

No other point arises for decision in this writ petition.

In the result, the writ petition succeeds and is allowed. The judgments of the Prescribed Authority as well as that of the Second Additional District Judge Rampur dated 3-7-1975 are quashed, and It Is held that the Petitioner was entitled to have two additional hectares of irrigated land. The case shall now go back to the Prescribed Authority for redetermining the ceiling area of the Petitioner, in accordance with law and in the light of the observations made in this judgment. The Petitioner shall be entitled to his costs.