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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.