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PETITIONER: SHRI PREM BALLABH BELWAL

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       24/07/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 SCALE  (5)564

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      Substitution allowed.      Respondent Nos.4  and 5 are ordered to be transposed as appellants.      This appeal  by special  leave arises from the judgment of the  Allahabad High Court made on January 4, 1979 in CMWP No.2960/77.  The   admitted  position   is  that  the  first appellant as  tenure-holder under the provisions of the U.P. Imposition of  Ceiling on  Land Holdings Act, 1960 (Act 1 of 1961) (for  short, the  ‘Act’) held  bhumiswami lands  of an extent of  182 acres  in Ram  Nagar and  Nainital Tehsils of Nainital District and in tehsil Ranikhet of Almore district. In addition,  his wife Smt. Basanti Devi held 127 bighas (24 acres) of  agricultural land in the village Sanwalde, Tehsil Ram Nagar.  After the  Act had  come into force, the tenure- holder was  enjoined to  file his  return under Section 5 in Chapter II  of the  Act. When  the land held by his wife was sought to  be included  in the holding of the appellant, his wife filed  objection stating  that she was in possession of the land  as Sirtan  of the agricultural land which is later termed as  ‘Asami’ right;  she had  no title to the property and was  liable to  be ejected  any time and, therefore, the land could  not be  included in  the holding  of the tenure- holder. The  claim was  rejected by the Tribunals and in the writ petition,  the learned  Judge, while  holding that Smt. Basanti Devi  is not  a holder within the meaning of Section 3(9) of the Act and not a "tenure-holder" within the meaning of Section  3(17) of  the Act,  came to  the conclusion that being a member of the "family" defined under Section 3(7) of the Act, she was holding the land of 24 acres. Consequently, the land  was required  to be included in the holding of the tenure-holder, namely, the appellant.      Shri Satish  Chandra, learned  senior counsel  for  the appellant, sought  to draw a distinction between holding and occupation of  the land.  Section 3(21) of the Act envisages

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that the  expressions  not  defined  in  the  Act  would  be construed to  be the  appropriate expressions  as defined in the U.P. Zamindari Abolition and Land Reforms Act, 1950 (for short, ‘Abolition  Act’). Section 3(14) of the Abolition Act defines ‘land’  to include  land held and the land occupied. The Act  envisages imposition  of ceiling  in respect of the land held  by a tenure-holder. The occupation thereby, which would envisage  some semblance  of title  to  the  property, alone would  be included  in the holding of a tenure-holder. Since Basanti  Devi was  not holding land as a tenure-holder but was  in precarious occupation and enjoyment of the land, the same  cannot be  included in  the holding of the tenure- holder   It is true that Section 3(14) of the Abolition Act, while defining  the land,  made a  distinction between  land invested with title and land in occupation and enjoyment for the purpose  of the Abolition Act. The Ceiling Act envisages land held by the tenure-holder for the purpose of imposition of the  ceiling. The  object of  the Act  is that no tenure- holder should hold and remain in possession and enjoyment of agricultural land  in excess  of ceiling  limit. The  family must not  hold in  excess thereof. It would be seen that the distinction sought  to be  made in the Abolition Act read in isolation of  the Ceiling  Act does indicate that there is a difference between  the person  having title to the property and person  remaining in  occupation and  enjoyment of  land governed under  the provisions  of the  Abolition  Act.  The assami under  the Abolition  Act does  not appear to get any absolute right  except as envisaged in the Abolition Act and is liable  to ejectment  on fulfillment  of  the  conditions envisaged in  the relevant  provisions of  the Act.  The Act defines ‘family’  under Section  3(7) to include the tenure- holder, his  wife, if she happens to be a tenure-holder, her husband,  the  spouse,  the  minor  daughters,  sons  except married daughters.  The tenure-holder  himself/herself is  a holder,  will   be  treated   to  be   a  tenure-holder  and computation of  the ceiling would be done in accordance with law. If  the tenure-holder  happens to  be a  member of  the family, though  the  wife  has  property  of  her  own,  the intendment of  the Act appears to that the lands held by the tenure-holder,  the   wife/husband  in  the  name  of  minor children but  not married  daughters, all are to be included in the  holding of  the tenure-holder. After excluding 7-1/2 hectares of the land as the ceiling determined under Section 5 and after permissible computation, the rest of the land is to be declared as surplus land.      It is  not in  dispute that  Smt. Basanti  Devi died on 9.2.1979 pending  ceiling proceedings.  It is also stated in paragraph 2 or the SLP that the respondent Nos.4 and 5, sons succeeded to  her estate  In other words, they have held the land  after   her  demise   as   successors.   Under   these circumstances, in  determining as  to what was the incidence of her  holding 24  acres, it  would be suffice to hold that her lands passed on to her sons. It is but necessarily to be concluded that  she had  held the  land as  assami  and  the tenure-holder held  the land of his wife. Total land held by him is  182+24 acres,  i.e., 206  acres. it  is sought to be offered that  the tenure-holder is prepared to surrender the land held  by his  wife  and  that,  therefore,  the  excess bhumiswami land  held by  the tenure-holder may not be taken to be  in his possession. we would make it clear that in the event of  the appellant’s  surrendering the 24 acres of land held by  Smt. Basanti Devi, necessarily the same land cannot be included  in  the  holding  of  the  husband,  the  first appellant  -  tenure-holder.  In  the  event  of  their  not surrendering  the   land,  the   ceiling   authority   shall

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necessarily compute  the  entire  land  in  the  holding  of tenure-holder and the surplus land accordingly be determined and  the   procedure  prescribed  for  surrender  should  be followed and  action taken  according  to  law  within  four months from the date of receipt of the order of this Court.      The appeal  is accordingly  dismissed  with  the  above observations. No costs.