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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: CIVIL JUDGE, NAINITAL & ORS.

DATE OF JUDGMENT05/11/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) DUTT, M.M. (J)

CITATION:  1987 AIR   16            1987 SCR  (1)  99  1986 SCC  (4) 558        JT 1986   774  1986 SCALE  (2)714

ACT:     Uttar  Pradesh Imposition of Ceilings on  Land  Holdings Act 1960/ Uttar Pradesh Imposition of Ceiling on Land  Hold- ing Rules, 1961: Sections 5, 9 & 10/rule 19-- ’surplus  Land ’-Determination  of--Principle applicable--Is date on  which ceiling is imposed by statute.

HEADNOTE:     Section 5 of the Uttar Pradesh Imposition of Ceiling  on Land  Holdings Act, 1960 provided that on and from the  com- mencement of the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, which came into force on 8.6.1973, no tenure-holder  would  he entitled to hold in  the  aggregate throughout Uttar Pradesh, any land in excess of the ’ceiling area’, as defined in Sub-s.(2) ors.3 of the Act.     Since Smt. Anma Begum, the tenure-holder was holding  in the aggregate land in excess of the ceiling area, she became liable to surrender the surplus land. Pursuant to a  general notice issued under s.9 to all tenure-Imlders, holding  land in  excess of the ceiling area, she did not file any  state- ment before the Prescribed Authority- After the  publication of the general notice but before she could he served with  a notice under s.10(2) she died. The Prescribed Authority  not knowing  of her death issued a notice under s.10(2)  calling upon  her  to show cause why the statement prepared  by  him under s. 10(1) should not he taken as correct. The father of respondent No. 4, one of the .heirs, filed objections  which were  over-ruled, and it was declared that Smt. Arena  Begum was holding 17.37 hectares of land as surplus land.     The District Judge holding that since the  tenure-holder was  dead by the time the notice under s. 10(2) was  issued, the order of the Prescribed Authority passed against a  dead person  could not be allowed to stand, allowed  the  appeal, set aside the order of the Prescribed Authority and remanded the case.      Fresh  notices under s.10(2) were issued to the  heirs. Respondent  No. 3 contended that she held only 91.12  bighas of land as her onefourth share and that 12 acres of land had been  transferred through registered sale deed far  adequate consideration and in good faith and 100

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the land to that extent should be excluded from the  holding while  determining the surplus land and that the  determina- tion of the surplus land should be made on the basis of  the share held by each of them as an individual tenure-holder.     The Prescribed Authority held that there was no  surplus land  that  could be claimed from the  holding  in  question since  none  of the heirs of deceased tenure-holder  was  in possession of the land in excess of the ceiling area.     The appeal by the State Government against the order  of the  Prescribed Authority was dismissed by the  Civil  Judge holding  that  Smt.  Anma Begum could not be  treated  as  a tenure-holder  after her death, and that since none  of  the heirs  of Amna Begum was holding the land in excess  of  the ceiling  area they were not liable to surrender any  surplus land.     The  petition under Article 226 filed by the State  Gov- ernment was dismissed holding that the State Government  was not  entitled to question the correctness of the  orders  of the Prescribed Authority and the Civil Judge as the order of remand  of the case passed by the District Judge had  become final. Allowing the Appeal,     HELD: 1. The orders passed by the High Court, the  Civil Judge  and  the Prescribed Authority are set aside  and  the case  is  remanded  to the Prescribed  Authority  for  fresh disposal. [107D]     2.  The reason given by the High Court for holding  that the contentions urged on behalf of the State Government were barred by the rule of res judicata is wholly untenable since the District Judge while remanding the case had nut recorded any finding on the merits of the contentions of the parties. He  had  set  aside the order of  the  Prescribed  Authority passed  earlier only on the ground that a  proceeding  which had been commenced against a dead person was a nullity.  He, however,  remanded the case to the Prescribed Authority  for fresh disposal in accordance with law after issuing  notices to the heirs of Smt. Amna Begum whom he wrongly described as tenure-holders so far as her estate was concerned. The  High Court was, therefore, wrong in dismissing the writ  petition on that ground. [104D-105A] 3.  Smt.  Amna  Begum was alive on 8.6.1973  on  which  date ceiling 101 on the holdings in the State of Uttar Pradesh was imposed by s.5  of the Act. Smt. Amna Begum became liable to  surrender the  surplus  land  in excess of what she  could  retain  in accordance  with that section. Merely because she  had  died before the issue of the notice under s.10(2) of the Act  the liability to surrender the surplus land would not come to an end. [105C]     4. Rule 19 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Rules, 1961 framed under the Act provides that where  a  tenure-holder dies before the publication  of  the general  notice under s.9 of the Act, such publication  shah be  deemed to apply to the executor, administrator or  other legal  representatives  and  the  Prescribed  Authority  may proceed  to  determine the ceiling area  applicable  to  the deceased  person as if such executor administrator of  other legal  representatives were the tenure-holder- It also  pro- vides  that where a tenure-holder dies before he  is  served with  a  notice under sub-s. (2) of s. 10 of  the  Act,  the Prescribed Authority may serve such notice on his  executor, administrator or other legal representatives and may proceed to  determine  the ceiling area applicable to  the  deceased person  as  if such executor, administrator or  other  legal

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representatives were the tenureholders. [105D-F]     5. The principle applicable to the determination of  the surplus  land  under the land reform laws in  the  hands  of person  holding  land is the date on which  the  ceiling  is imposed. [105G]     6.  ’The surplus land in the case of a person  who  held land in excess of the ceiling area on the appointed day  had to  he determined as an the appointed day even  though  such person  might have died before the actual extent of  surplus land was determined -,tad notified. The persons on whom  his holding  devolved on his death would be liable to  surrender the surplus land as on the appointed day because the liabil- ity  attached to the holding of the deceased would not  come to an end on his death. [I06E-F]      Raghunath Laxman Wani v.State of Maharashtra, [1971]  3 S.C.C.  391 at page 397 & Bhikoba Shankar Dhumal  (dead)  by Lrs.  and  Others v. Mohan Lal Punchand Tathed  and  Others, [1982] 1 S.C.C680, followed.      7.  For the purpose of deciding the surplus land  which is  liable to be surrendered from and out of the  estate  of Smt. Arena Begum, the relevant date that might be taken into account  is 8.6.1973 on which date the ceiling  on  holdings was  imposed and she became liable to surrender the  surplus land.  Her hews or legal representatives together are  enti- tled 102 to retain out of her estate only an extent of land equal  to the  area which she could have retained in her  hands  after the imposition of ceiling on land holdings and are liable to surrender the surplus land. [107B-C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3947  of 1986     From  the  Judgment  and Order dated  30.8.1982  of  the Allahabad  High Court in Civil Misc. Writ Petition No.  5105 of 1982.     Pramod Swarup, R. Singh Rana and Ashok K. Srivastava for the Appellant.     G.N.  Dixit, M.K. Dua, Aman Vachher and S.K.  Mehta  for the Respondents. The Judgment of the Court was delivered by     VENKATARAMIAH,  J.  Smt. Amna Begum was  a  resident  of Rehpura  Village,  Tehsil Kichha, District Nainital  in  the State  of Uttar Pradesh. She owned a fairly large extent  of agricultural land. On 8.6.1973 the Uttar Pradesh  Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 came  into force. Section 5 of the Uttar Pradesh Imposition of  Ceiling on Land Holdings Act, 1960 (hereinafter referred to as  ’the Act’)  provided  that on and from the  commencement  of  the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amend- ment)  Act, 1972 no tenure-holder would be entitled to  hold in  the  aggregate  throughout Uttar Pradesh,  any  land  in excess  of  the ceiling area applicable in him or  her.  The expression  ’ceiling area’ is defined in sub-section (2)  of section 3 of the Act as the area of land not being  exempted under  the  Act, determined as such in accordance  with  the provisions of section 5 thereof Since Smt. Arena Begum,  the tenure-holder, was holding in the aggregate in the State  of Uttar Pradesh land in excess of the ceiling area  applicable to  her,  she became liable to surrender the  surplus  land, i.e.,  the land held by her in excess of the  ceiling  area. applicable  to  her, in favour of the Government  under  the

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Act. A general notice was issued under section 9 of the  Act to all tenure-holders holding land in excess of the  ceiling area  for submission of statements in respect  thereof.  She did  not file any statement before the Prescribed  Authority as  provided by section 9 of the Act. After the  publication of  the said general notice but before she could  be  served with  a notice under section 10(2) of the Act to submit  her statement, Smt. Arena Begum died. The Prescribed Authority 103 who  had  no  knowledge of the. death of  Smt.  Amna  Begum, however,  issued  a notice addressed to  her  under  section 10(2)  of the Act calling upon her to show cause within  the period specified in the notice why the statement prepared by him  under section 10(1) of the Act should not be  taken  as correct.  The said notice could not, no doubt, be served  on her,  but  one Fazai Ahmad, the father of  Shams  Ahmad--re- spondent No. 4, who was one of the heirs of Smt. Amna  Begum filed  objections  before the Prescribed  Authority  to  the notice issued under section 10(2) of the Act. The Prescribed Authority  overruled the said objections and  declared  that Smt.  Amna Begum was holding 17.37 hectares of land as  sur- plus land by his order dated November 29, 1975. Aggrieved by that order Fazal Ahmad, since deceased, and Shams Ahmad, son of Fazal Ahmad filed on appeal in Ceiling Appeal No. 541  of 1975  before the District Judge, Nainital. That  appeal  was allowed  on February 14, 1977. The order against  which  the appeal had been filed was set aside and the case was remand- ed to the Prescribed Authority to issue fresh notice to  the tenure-holders concerned, if necessary. The reason given  in the order passed by the District Judge, Nainital for  allow- ing  the appeal was that the tenure-holder, Smt. Amna  Begum was  dead by the time the notice under section 10(2) of  the Act  was  issued and the order of the  Prescribed  Authority passed against a dead person could not be allowed to  stand. The learned District Judge did not record any other  finding on  the  merits of the case. After remand the case  was  en- quired into by the Prescribed Authority. In that  proceeding fresh  notices under section 10(2) of the Act was issued  to the heirs of Smt. Amna Begum. Smt. Sharifan Begum.  respond- ent  No.  3, one of the heirs of Smt.  Amna  Begum  appeared before  the  Prescribed Authority and contended  inter  alia that she held only 91.12 bighas of land in village  Rehpura, as  her  one-fourth share in the estate of Smt.  Amna  Begum along  with  the other heirs of Smt. Amna  Begum.  She  also pleaded that 12 acres of land had been transferred in favour of Daulat Ram and Prem Nath through registered sale-deed for adequate consideration, the transfer was in good faith  and, therefore,  the said extent of land should be excluded  from the holding while determining the surplus land. She  further contended that the determination of the surplus land  should be made on the basis of the share held by each of the  heirs of  Smt. Amna Begum treating each of them as  an  individual tenure-holder entitled to land equal to one ceiling area  in the  estate of Smt. Amna Begum as she had died prior to  the service of the notice. The Prescribed Authority accepted the contentions urged on behalf of the heirs of Smt. Amna  Begum and  found  that  there was no surplus land  that  could  be claimed from the holding in question since none of the heirs of Smt. Amna 104 Begum was in possession of the land in excess of the ceiling area.  Against  the order of the Prescribed  Authority,  the State  Government  filed an appeal before the  Civil  Judge, Nainital  in Civil Appeal No. 32 of 1981. The learned  Civil Judge  dismissed  the appeal holding that  Smt.  Amna  Begum

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could not be treated as a tenure-holder after her death  and that  after her death each of the heirs of Smt.  Amna  Begum should  be treated as an independent tenure-holder  entitled to one unit of ceiling area for purposes of determination of the  surplus land. He agreed with the  Prescribed  Authority that since none of the heirs of Smt. Amna Begum was  holding the land in excess of the ceiling area, they were not liable to surrender any surplus land. The learned Civil Judge  also held  that the contention urged on behalf of the State  Gov- ernment that Smt. Amna Begum who was alive on 8.6.1973 which was  the  relevant  date for determining  the  surplus  land should  be treated as the tenure-holder could not  be  main- tained because the said contention was barred by res judica- ta on account of the decision of the District Judge,  Naini- tal in Ceiling Appeal No. 541 of 1975, under which the  case had  been remanded earlier to the Prescribed  Authority  for fresh  disposal.  The appeal filed by the  State  Government was, therefore, dismissed. Aggrieved by the decision of  the learned Civil Judge, Nainital, the State Government filed  a writ petition before the High Court. That writ petition  was dismissed  by the learned Judge, who heard it by  his  order dated August 30, 1982. The only reason given by the  learned Judge,  who heard the writ petition, for dismissing  it  was that  the State Government was not entitled to question  the correctness  of the orders of the Prescribed  Authority  and the Civil Judge as the order of remand of the case passed by the  District Judge had become final and the contentions  of the State Government were barred by the rule of res  judica- ta. This appeal by special leave is filed against the  order of the High Court dismissing the writ petition.     At the outset it should be stated that the reason  given by the High Court for holding that the contentions urged  on behalf  of the State Government were barred by the  rule  of res-judicata is wholly untenable since the learned  District Judge,  who  disposed  of the appeal on  14.2.1977  had  not recorded any finding on the merits of the contentions of the parties.  He had set aside the order of the  Prescribed  Au- thority passed earlier only on the ground that a  proceeding which had been commenced against a dead person was a  nulli- ty. He, however, remanded the case to the Prescribed Author- ity for fresh disposal in accordance with law after  issuing notices  to  the heirs of Smt. Amna Begum  whom  he  wrongly described as tenure-holders solar as the estate of Smt. Amna Begum was concerned. The High Court was, 105 therefore,  wrong  in dismissing the writ petition  on  that ground.  As  regards the contention urged on behalf  of  re- spondent  Nos. 3 to 5-Smt. Sharifan Begum, Shams  Ahmad  and Smt.  Ahmadi  Begum who were the heirs of Smt.  Amna  Begum, namely, that for purposes of computation of the surplus land in  their hands the relevant date that should be taken  into consideration is the date on which such computation was made and not the date on which the ceiling was imposed by section 5  of  the Act it has to be stated that the  orders  of  the Prescribed  Authority and the Civil Judge passed  after  the order of remand are wholly erroneous.     Smt. Arena Begum was alive on 8.6.1973 on which date the ceiling  on the holdings in the State of Uttar  Pradesh  was imposed  by  section 5 of the Act. Smt.  Amna  Begum  became liable to surrender the surplus land in her hands in  excess of  what she could retain in accordance with  that  section. Merely  because she had died before the issue of the  notice under  section 10(2) of the Act her liability  to  surrender the  surplus land would not come to an end. Rule 19  of  the Uttar Pradesh Imposition of Ceiling on Land Holdings  Rules,

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1961  flamed  under the Act provides that  where  a  tenure- holder  dies  before the publication of the  general  notice under section 9 of the Act, such publication shall be deemed to  apply  to  the executor, administrator  or  other  legal representatives and the Prescribed Authority may proceed  to determine the ceiling area applicable to the deceased person as if such executor, administrator, or other legal represen- tatives were the tenure-holder. It also provides that  where a tenure-holder dies before he is served with a notice under sub-section  (2)  of section 10 of the Act,  the  Prescribed Authority may serve such notice on his executor, administra- tor or other legal representatives and may proceed to deter- mine  the ceiling area applicable to the deceased person  as if such executor, administrator, or other legal  representa- tives were the tenure-holder.      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  is imposed is explained by this Court in Raghunath Laxman  Wani v.  State of Maharashtra, [1971] 3 S.C.C. 391 at  page  397, thus:               "The  scheme of the Act seems to be to  deter-               mine the ceiling area of each person  (includ-               ing 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               106               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  a family consisting of  persons  exceeding               five in number on January 26, 1962, the  ceil-               ing  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 laible 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  the               redetermination  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 redetermination of the ceiling               area  of  such a family would mean  an  almost               perpetual  fixation  and  refixation  in   the               ceiling  area  by the Revenue  authorities,  a               state  of affairs hardly to have been  contem-               plated by the legislature."     The principle enunciated in the above decision has  been followed  by this Court in Bhikoba Shankar Dhumal (dead)  by Lrs.  and Others v. Mohan Lal Punchand Tatbed  and  Others., [1982]  1  S.C.C.  680. In that case it was  held  that  the surplus land in the case of a person who held land in excess of  the ceiling area on the appointed day had to  be  deter- mined as on the appointed day even though such person  might have  died  before  the actual extent of  surplus  land  was determined  and notified. It was further held that the  per- sons  on  whom his holding devolved on his  death  would  be liable to surrender the surplus land as on the appointed day because  the  liability attached to the holding of  the  de- ceased would not come to an end on his death.

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   Although  the  above  decisions are  rendered  in  cases arising under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 the principle set out therein applies to all  cases where there is an imposition of ceiling on  lands held bY land holders by land ceiling laws with effect from a specified  date. In fact rule 19 of the Rules  framed  under the  Act which is referred to above also leads to  the  same view. Whatever surplus land was liable to be surrendered  by a  tenure-holder  has to be determined as  on  8.6.1973  and taken possession under the Act even though the tenure-holder might  have died after 8.6.1973 and before  such  ascertain- ment. We, therefore, do not agree with the view of the Prescribed 107 Authority and the Civil Judge that for purposes of determin- ing the surplus land the share of land in the hands of  each of  the  heirs  of Smt. Amna Begum should be  treated  as  a separate unit for determining the surplus land. We hold that for purposes of deciding the surplus land which is liable to be surendered from out of the estate of Smt. Amna Begum, the relevant date that should be taken into account is  8.6.1973 on  which date the ceiling on holdings was imposed and  Smt. Arena  Begum became liable to surrender the surplus land  in accordance  with  the provisions of the Act.  The  heirs  or legal representatives of Smt. Amna Begum together are  enti- tled to retain out of the estate of Smt. Amna Begum only  an extent  of  land equal to the area which  Smt.  Arena  Begum could  have  retained in her hands after the  imposition  of ceiling  on  land holdings and are liable to  surrender  the surplus land. The High Court failed to consider this  aspect of the question when it disposed of the writ petition.     We,  therefore, set aside the orders passed by the  High Court, by the Civil Judge on 4.12.1981 and by the Prescribed Authority on 16.1.1981 and remand the case to the Prescribed Authority  for fresh disposal in accordance with law and  in the  light  of this judgment. All other questions  are  left open. This appeal is accordingly allowed will be no order as to costs. A.P.J.                                          Appeal   al- lowed. 108