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PETITIONER: RAGHUBAR DAYAL (DEAD)

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT02/05/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 SCC  Supl.  (3)  20 1995 SCALE  (3)688

ACT:

HEADNOTE:

JUDGMENT: THE 2ND DAY OF MAY,1995 Present:                    Hon’ble Mr. Justice K. Ramaswamy                    Hon’ble Mr. Justice B. L. Hansaria Mr. S. N. Singh, Adv. for the appe-llant Mr. R. B. Misra, Adv. for the Respondents.                             ORDER The following Order of the Court was delivered:                  IN THE SUPREME COURT OF INDIA                  CIVIL APPELLATE JURISDICTION                   CIVIL APPEAL NO.3012-14/79 RAGHUBAR DAYAL (DEAD)                       ...APPELLANT VERSUS STATE OF U.P. AND OTHERS                    ...RESPONDENTS                            ORDER      Substitution allowed.      These  three  appeals  are  disposed  of  by  a  common judgment since they arise from the common judgment delivered by the  High Court of Allahabad in W.P. No.3763/79 and batch dated July  4,  1979.  The  facts  in  C.A.  No.3012/79  are sufficient for disposal of the appeals. On July 11, 1956, he Government had  granted to  the appellant certain parcels of land for settling down colonies thereon and to cultivate the land on  improved methods  of cultivation,  subject  to  the terms and  conditions contained  in the grant made under the Government Grants  Act, 1895.  Under  s.10(2)  of  the  U.P. Imposition of  Ceiling on Land Holdings Act, 1960 (for short ’the Act’),  notice was  issued on  October 20,  1974 by the prescribed authority  calling upon  him to submit the return for determination  of  the  ceiling  area.  The  appellant’s objections raised  on December  4, 1975 were rejected by the Prescribed Authority  by proceedings dated February 28, 1975 holding that  the appellant  held 94  Bighas  16  Biswas  of surplus land  and was called upon to surrender the same. The appellant carried  the matter  in appeal  to  the  appellate authority and the Civil Judge by judgment dated June 2, 1976

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dismissed the  appeal. In  the  writ  petitions,  as  stated earlier,  the   High  Court  confirmed  the  orders  of  the authorities under the Act.      Shri  Raj   Kumar  Gupta,   learned  counsel   for  the appellant, contended  that when the grant was made under the Government Grants  Act, by operation of s.2 and s.3 thereof, the lands  covered under  the Grant  Act stood excluded from the operation  of the Act. The competent Authority under the Act has,  therefore, no  jurisdiction or  power to issue the notice and  also determining  the surplus  land calling upon the appellant  to surrender  the excess land. Alternatively, it is  contended that  the appellant is required to file the return under  s.9. Section 6(h) was deleted by Amendment Act on  January  14,  1975.  Therefore,  the  notice  issued  in October, 1974  is without  jurisdiction and  a  nullity.  No fresh notice was issued to the appellant under s.9 after the deletion of  the exemption  clause referred  to therein. The computation of  the surplus  land is, therefore, illegal. In support thereof,  he placed reliance on the judgment of this Court in  Malkhan Singh & Ors. vs. The State of U.P. & Ors., 1976 (2) SCC 268.      The first  question is  whether the  lands held  by the appellant are  excluded from the purview of the Act. Section 3(d) of  the Act  defines holding  meaning the land or lands held by a person as a bhumidhar, Sirdar, Asami of Gaon Samaj or an asami mentioned in s.11 of the Uttar Pradesh Zamindari Abolition & 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,  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. A reading of it clearly indicates  that the  land held as a tenant under the U.P. Tenancy  Act, other  than the lands as 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  is covered  by the  Act. The contention of  the appellant is that the Government grant is not a lease and that, therefore, s.3(d) is inapplicable.      We find no force in the contention. The preamble to the grant clearly  mentioned  that  the  land  was  granted  for cultivation to  make the  improved  methods  of  cultivation within the meaning of s.3(8) of the U.P. Tenancy Act XVII of 1939. The  grant was  subject to  the terms  and  conditions mentioned therein. The conditions, inter alia, were that the appellant  has  to  pay  annual  lease  amount  and  has  to personally cultivate  the land  as enumerated  in Clause (1) (a). The  grantee shall  commence the cultivation within the prescribed period  mentioned in  Clause  (b)  and  he  shall permanently reside  in the  colonies as  mentioned in Clause (c). Clause (2) mentions that the grantee shall use the land for the  purpose of cultivation only and purposes incidental thereto and  for no  other purposes.  The grantee  shall not part with  the possession of the land. In other words, he is prohibited to  sub-lease the  land. Clause  (4) mentions its impartibility. Clause  (5) prohibits subletting, transfer or otherwise alienate  the land. Clause (5) say that the lessee shall pay  the rent  and if  he fails,  the defaulted amount would be  treated as arrears of land revenue and recoverable from him. Clause (6) mentions that he shall be at liberty at any time to surrender the land to the Government. Clause (7) gives power  to the  Government to  determine the  lease  in which  case   the  lessee  shall  not  be  entitled  to  any compensation for  any improvements as he might have made for the benefit  of the  land, for  any building,  or structures erected by him thereon.

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    Thus it  could be  seen that  though it is a grant made under the  Government Grants Act, it is in substance a lease of agricultural  land  granted  by  the  Government  to  the appellant for cultivation subject to the covenants contained thereunder, some  of which have been mentioned hereinbefore. Section 105 of the Transfer of Property Act defines lease as transfer of  right to  enjoy immovable  property made  for a certain time,  express  or  implied  or  in  perpetuity,  in consideration of  a price  paid or promised, or of money etc to the transferor by the transferee who accepts the transfer on such  terms. The  grant is  in substance, therefore, is a lease of  the agricultural  land for personal cultivation on improved methods  of cultivation  during the  period of  the substance of  the lease  for  consideration,  terminable  on notice by  either side.  Accordingly,  the  appellant  is  a holder of agricultural lands within the meaning of s.3(d) of the Act.      Even otherwise,  we find that the Government Grants Act itself prescribed  the applicability of the Act to the lands covered by  the grant. The proviso to sub-section (3) of s.3 reads thus:           "Provided  that  nothing  in  this  section  shall      prevent, or deemed ever to have prevented the effect of      any enactment  relating to the acquisition of property,      land  reforms   or  the   imposition  of   ceiling   on      agricultural lands i.e. U.P. Act 13 of 1960."      That was  inserted with  retrospective effect. Thus, it could be seen even if the present is construed as a grant of the agricultural  lands under  the Government Grants Act, by operation of  the proviso  to sub-s.  (3) of s.3 of the Act, the Act is clearly applied for the purpose of computation of the ceiling  area of the agricultural lands. It would appear that the  Government  Grants  Act  intended  that  even  the grantee under that Act shall not be in excess of the ceiling area prescribed  under the  Act. Thereby,  the lessee of the Government land,  though had  a grant  under  the  Govenment Grants Act, cannot claim to have been outside the purview of the Act.      So, we  hold that  the view  taken by  the  authorities below and  the High  Court is perfectly right and legal. The decisions cited  by the  learned counsel are inapplicable to the facts  in this case. In Byramjee Jeejeebhoy (P) Ltd. vs. State of  Maharashtra, 1964  (2) SCR  737 this Court held at page 747  that the grant could not be regarded as a lease as it contemplated a demise or transfer of a right to enjoy the land for a term or in perpetuity in consideration of a price paid or  promised or services or other things of value to be rendered periodically  or  on  specified  occasions  to  the transferor. In that case, since the grant was without any of the convenants,  it was  held that  it was not a lease but a grant. But,  as seen,  the grant  herein itself specifically enumerates the  covenants noted  above and a reading thereof clearly indicates  that it  was in substance a lease, though the grant was made under the Government Grants Act.      The ratio  in State  of U.P.  vs. Zahoor Ahmad, 1974(1) SCR 344  also has  no application to the facts in this case. Therein, the  provisions of the Transfer of Property Act was sought to  be applied  to the  grant. By operation of s.3 of the  Government   Grants  Act,   the  applicability  of  the provisions of  the Transfer  of Property Act stands excluded and, therefore, it was held that that Act has no application to grant  made under the Government Grants Act. Equally, the case of  Bihari Lal Express Newspapers (P) Ltd. vs. Union of India, 1986  (1) SCC 132 has no application as its ratio was to the same effect.

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    With regard  to the  need  to  issue  fresh  notice  as required under s.9, we are of the considered view that there is no  force in  the contention.  It is true that s.6(h) was deleted by  way of  an Amendment  Act made in January, 1975, but it  was made  effective from 1973. Notice under s.10 (2) was issued  to the  appellant by the Prescribed Authority on October 20,  1974 and,  as such, after the Amendment Act had become effective.  Further, on  the facts  in this case, the compliance  is  one  of  substance  rather  than  form.  The appellant voluntarily  failed to  file the return, so he was called upon  to file  the return  under s.10(2)  of the Act. Whether the return is voluntarily filed or not, makes little difference,  when   the  authority   has  jurisdiction   and determined the  ceiling area. It is seen that by the date of the determination  of the  ceiling land,  the amendment  had come into  force. Therefore,  the  exemption  granted  under s.6(h) stood  deleted. In  consequence, the acts done by the authorities in  determining the ceiling area and declaration of surplus land was within their power and jurisdiction.      The ratio  in Malkhan Singh’s, 1976 (2) SCC 268, has no application to  the facts  in this  case. In  that case  the facts were  that the  tenure holder  having had  excess land failed to  submit the  statement in  respect of  his holding under the  U.P. Imposition  of Ceiling on Land Holdings Act, 1960  within   the  time   prescribed.   Consequently,   the Prescribed  Authority  issued  the  notice  determining  the surplus land.  In response,  the  tenure  holder  filed  the objections. One  of the pleas was that there were 14 members in  his   family   including   his   sons,   grandsons   and granddaughters and  all of  them were  joint in home, hearth and estate, and that consequently, there was no surplus area with him.  Therefore, second  notice was necessary to enable to file  a separate  return claiming appropriate computation of holding.  So the  ratio is  inapplicable to  the facts in this case.      It is  next contended  that under  s.133-A of  the U.P. Zamindari Abolition  & Land  Reforms Act,  1950,  the  lease covered under the Act was treated to be Government lease and the appellants  were entitled to hold the same in accordance with the terms and conditions of the lease relating thereto. It is contended that this Act was extended to Nainital after 1.7.1969 and,  therefore, the notice issued is also illegal. We find  no force in the contention. In this case, since the lease  itself  was  granted  by  the  Government  under  the Government Grants Act, s.133-A has no application.      The appeals  are  accordingly  dismissed.  But  in  the circumstances without costs.