Swamidin vs State of U.P. and Others

B. Dikshit, J.—A notice to Petitioner u/s 29 (b) of U.P. Imposition of Celling on Land Holdings Act, 1960 (in short ''Act'') has given rise to this writ petition.

The facts relevant for the purpose of present Writ Petition are that as the Petitioner held land more than celling area after enforcement of U.P. Imposition of Celling on Land Holdings (Amendment) Act, 1972, a notice was issued to him u/s 10 (2) of the Act wherein it was stated that the Petitioner was possessed of 3.31 Hectare of irrigated land beyond his ceiling limit. The Petitioner contested the notice. One of the questions which arose for consideration before Prescribed Authority at that stage was in respect of number of members in the family of Petitioner for determining his ceiling area. The State claimed that Smt. Halki was not wife of Petitioner, whereas Petitioner''s case was that she being wife of the Petitioner was to be counted in family of Petitioner. By its order dated 25.1.75, the Prescribed Authority accepted the case of Petitioner to the effect that Smt. Halki was wife of Petitioner and without going into other questions, considering that there were seven members in the family of Petitioner, held Petitioner entitled to hold 11.30 Hectare land whereas the Petitioner''s total holding was only 10.61 Hectare. Being aggrieved, the State filed an appeal. The District Judge, Banda as appellate Court held Smt. Halki to be wife of Petitioner and dismissed the appeal by order dated 22.11.75. After amendment of the Act in the year 1976, a fresh notice was issued to the Petitioner wherein 50-16-5 Bigha land of Petitioner was declared surplus, being beyond the ceiling limit of Petitioner, by the Prescribed Authority by order dated 4.12.1976 against which an appeal was preferred by Petitioner. The appellate court by order dated 18.2.77 allowed the appeal and set aside the order passed by Prescribed Authority. The result of it was that no land of Petitioner was declared surplus in proceedings u/s 10 (2) of the Act, which became final. The present proceeding has arisen on the basis of a notice dated 28.11.1982 issued u/s 29 (b) as according to State certain land of Petitioner became irrigated as a result of irrigation from State Irrigation Works. The Petitioner contested notice by filing objection on 24.1.1983. He claimed that one of his wife, Smt. Sumitra, had died and rest of the members of family, who were there during deteimination of notice u/s 10 (2) and the appeal therefrom were alive. He further claimed that his daughters who were members of his family, namely, Sudama and Ramkali have been married and have gone out of the family but Km. Kalpatia and Km. Hira, who were born after decision in earlier ceiling proceedings, were there for the purpose of being counted as members of his family. Certain other pleas were also raised. The objection of Petitioner was rejected by Prescribed Authority by order dated 30.4.86 whereby he declared 87 Bigha 9 Biswa as surplus. The Prescribed Authority while determining the ceiling area of Petitioner held that Smt. Halki was not married to Petitioner and she was not his wife and, therefore, she and her children cannot be considered to be family members of Petitioner. The Prescribed Authority considered the family of Petitioner with reference to 8.6.1973, the date on which amending Act of 1972 was enforced. He decided other questions also against the Petitioner. Aggrieved from the order passed by Prescribed Authority, the Petitioner filed an appeal which was dismissed by Additional Commissioner, Jhansi Division, Jhansi. The appellate Court determined the number of members in the family of Petitioner with reference to 8.6.1973 and after ignoring the sale deeds executed on 31.10.77 by Petitioner in favour of Sriram and Kunwar Lal and after repelling the contention of Petitioner that Smt. Halki was his wife, dismissed the appeal. Aggrieved, the Petitioner has come in this petition.

The learned counsel for Petitioner argued that the determination of ceiling area u/s 29 (b) of the Act has to be with reference to the date on which the Petitioner''s land became irrigated and not with reference to 8.6.73, when amending Act of 1972 was enforced. He further argued that it was not open for the celling authorities, while determining ceiling area of Petitioner, to reopen the question as to whether Smt. Halki was wife of Petitioner as the same stood finally adjudicated upon in an earlier ceiling proceedings initiated on a notice u/s 10 (2) of the Act and the plea is barred by principles of res-judicata. The judgment relied upon by learned counsel for Petitioner is that of Prescribed Authority dated 25.1.75 which was confirmed in appeal by the District Judge, Banda by order dated 22.11.75. For said reason, he claimed that the plea that Smt. Halki was not wife of Petitioner cannot be reopened in present proceeding for adjudication and Smt. Halki is to be considered in the family of Petitioner as Petitioner''s wife and her children as Petitioner''s children. It has been further argued that the Petitioner was entitled for consideration of his two daughters, namely, Km. Kalpatia and Km. Hira, who were born subsequent to earlier ceiling proceedings and were unmarried, as member of his family while considering the members of the family of Petitioner for redetermination of ceiling area u/s 29 (b). It has also been argued that ceiling authorities were not right in ignoring sale deeds dated 31.10.77 executed in favour of Sriram and Kunwar Lal. The learned standing counsel disputed the contention raised on behalf of Petitioner and argued that while determining ceiling area in pursuance of notice u/s 29 (b), the relevant date is 8.6.73 as even u/s 29 of the Act, Section 10 applies mutatis mutandis. He further argued that it is on the basis of evidence that finding of fact has been recorded by ceiling authorities that Smt. Halki was not wife of Petitioner and, as such, the plea was not barred by res judicata. He further argued that as the determination of ceiling area is with reference to 8.6.73., i.e., the date of enforcement of Amending Act of 1972, the children born after that date cannot be taken into consideration for determining the family of Petitioner. It has also been argued that the sale deeds 31-10-77 executed in favour of Sriram and Kunwar Lal are void in view of Section 5 (8) of the Act.

The first question which arise for consideration is that on a notice u/s 29 (b) of the Act whether determination of ceiling area is to be done with reference to the date of enforcement of Amending Act of 1972, i.e., 8.6.73 or it is the date on which an unirrigated land becomes irrigated as a result of irrigation from State Irrigation Works. Section 29 of the Act reads as follows:

Subsequent declaration of further land as surplus land.---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 land together with the land already held by him exceeds the ceiling area applicable to him; or

(b) any unirrigated land becomes irrigated laid as a result of irrigation from a State irrigation work or any grove-land loses its., character as grove-land or any land exempted under this Act ceased to fall under any of the categories exempted,

the ceiling area shall be liable to be re-determined and accordingly the provisions of this Act, except Section 16, shall mutatis mutandis apply.

The very first sentence of this Section confers power for re-determination of ceiling area where after the date of enforcement of amending Act, any unirrigated land becomes irrigated as a result of irrigation from State Irrigation Work. This, however, excludes the possibility of determination of ceiling area with reference to the date when amending Act came into force. The language of said Section is very clear which permits re-determination with reference to a date after enforcement of amending Act. This rules out the possibility of ceiling area being determined with reference to the date of enforcement of amending Act. The only date which can be taken into consideration for re-determining the ceiling area u/s 29 (b) can be the date on which an unirrigated land becomes irrigated as a result of irrigation from State Irrigation Works and it is on fulfilment of this condition alone that the Jurisdiction gets conferred on the authority concerned to redetermine the ceiling area. It is a condition precedent for invoking the power for re-determination if Petitioner holds land beyond ceiling limit.

The learned standing counsel for the State has argued that Section 29 has been made applicable mutatis mutandis to the proceedings for redetermination according to provisions of the Act and as Section 12 dealing with determination of surplus land provides for filing of objection u/s 10 (2), it is that date which would be relevant. I am not inclined to accept the contention raised. The learned counsel for Petitioner has argued that the words ''mutatis mutandis'' mean that the relevant provisions are to be applied with necessary changes and necessary alterations. In respect of use of words mutatis mutandis'', according to Words & Phrases permanent edition, it mean--" with necessary changes in detail to conform to a single vital change". The words "mutatis mutandis" also came for consideration before Hon''ble Supreme Court in the case of Ashok Service center and Others Vs. State of Orissa, wherein, while dealing with the said words, the Hon''ble Supreme Court has observed:

Before considering what provisions of the principal Act should be read as part of the Act, we have to understand the meaning of the expression ''mutatis mutandis''. Earl Jowitt''s The Dictionary of English Law (1959) defines ''mutatis mutandis'' as with the necessary changes in points of detail''. Black''s Law Dictionary (Revised 4th Edn., 1968) defines ''mutatis mutandis'' as "with the necessary changes in points of detail, meaning that matters or things are generally, the same, but to be altered when necessary as to names, offices and the like. Housman v. Waterhouse". In Bouuier''s Law Dictionary (3rd Revision, Vol. II), the expression ''mutatis mutandis'' is defined as ''The necessary changes. This is a phrase of frequent practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices and the like". Extension of an earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary, for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act.

From as above it is apparent that the words "mutatis mutanais" used in statute means that the application of provisions will be with necessary changes and it cannot be adopted as if it is to be read as it is.

There is another reason for which I am not inclined to accept the contention of learned Standing Counsel. The contention of learned Standing Counsel, if accepted, will not be in consonance with the object with which the provision in the Act was enacted. The provision has been enacted as it has been considered that equitable distribution of land is essential and for that purpose, ceiling limit has been fixed u/s 5 (3) of the Act. It has been enacted with the object so that no tenure-holder should hold land more than ceiling area prescribed under the statute to avoid concentration of land in few hands. The limit has been fixed for said purpose to which a tenure-holder has been allowed to hold land and not to have beyond that and it is not with an object that a person be tied up to the same land which he was possessed of on 8.6.1973 when the amending Act was enforced. If determination of ceiling area is done with reference to 8.6.73, i.e., the date of enforcement of amending Act then if some one disposes of his land which was within his ceiling limit and purchases some other land, may be for reason to have better land or for shifting from one place to another place, his earlier holding will be tagged with his newly acquired land by ignoring sale-deeds and he will lose all his newly acquired land. This was neither the intention of the Legislature to enact the said provision nor it could be inferred from the purpose and object with which the legislation has been enacted. It will result in hardship to the tenure-holder without there being any object to be achieved. It will be unreasonable if such an interpretation is allowed. Every law is enacted to meet some social problem. The ceiling law has been enacted as there has been concentration of land in few hands and under such circumstances to have equitable distribution of land as one of its object. The legislation stands enacted as a solution to said social problem. For said reason also, I am not inclined to accept the contention of learned Standing Counsel. It is, therefore, held that it is the date on which any unirrigated land becomes irrigated as a result of irrigation from State Irrigation Work, which will be the relevant date for determining ceiling limit and surplus land, if any, with the tenure-holder and, therefore, the ceiling authorities erred in considering that the ceiling area of the Petitioner is to be determined with reference to 8.6.1973.

This takes us to the next argument raised by learned counsel for Petitioner. Admittedly Smt. Halki was held to be wife of Petitioner in earlier ceiling proceedings. The appellate court has proceeded on the assumption that the benefit of Smt. Halki being wife of Petitioner has been given to Petitioner while determining his ceiling area in earlier proceedings with reference to 8.6.73 but it can be re-determined afresh if she is wife of Petitioner. The learned counsel for Petitioner has submitted that in view of finality of judgment in earlier proceedings, the plea is barred by principles of res-judicata and, therefore, it is not open for Respondents to say that Smt. Halki is not wife of Petitioner. It is not necessary for me to express any opinion in this respect as the case has to go back before appellate court where the Petitioner can raise the plea in respect of finality of judgment. So far as number of family members is concerned, as I am of the opinion that the ceiling area has to be determined with reference to the date on which unirrigated land became irrigated, which has given rise to notice u/s 29 (b), the ceiling authorities have to see the family of Petitioner for the purpose of determining ceiling area u/s 5 (3) of the Act as it was on the date when unirrigated land became irrigated. If any member of Petitioner''s family ceased to be a member of his family or some new member have been added to the family then the same has to be considered with reference to the date on which the unirrigated land became irrigated, which has given rise to the notice.

This takes us to the question of validity of sale deeds executed by Petitioner. The appellate court has considered the two sale deeds dated 31.10.77 executed by Petitioner in favour of Sriram and Kunwar Lal to have been executed during the pendency of proceedings for determination of surplus land under the Act, which is not factually correct. The proceedings u/s 10 came to an end after 18.2.77 when the District Judge, as appellate court, allowed the appeal of Petitioner and held that the Petitioner did not have any land which could be declared surplus under the provisions of the Act. The sale deeds have been executed after ceiling proceedings initiated on the basis of notice u/s 10 of the Act were over and became final. The subsequent notice u/s 29 is dated 22.11.82. The appellate court is not right in considering that the transfer took place during continuance of ceiling proceedings. There is nothing in the counter-affidavit to indicate that after disposal of ceiling proceedings in February, 1977, any proceeding were going on nor it is on record that any cause of action for notice u/s 29 (b) has arisen when the sale deeds were executed. As sale deeds were not executed during continuance of any ceiling proceeding, Section 5 (8) is not attracted to the facts of present case. For said reasons the finding of appellate court that the sale deeds are void u/s 5 (8) of the Act is untenable and is set aside. Accordingly, the transfer is held to be valid.

For aforesaid reasons the Writ Petition succeeds and is allowed. The order dated 30.4.86 passed by Prescribed Authority and the order dated 25.11.87 passed by appellate authority (Annexures-5 and 7 to writ petition) are quashed and the appellate court is directed to restore the appeal to its original number and decide it afresh keeping in view the aforesaid observations of this Court.

The Writ Petition is allowed with costs.