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PETITIONER: RAM CHANDRA SINOH (DEAD) THROUGH LEGAL HEIRS

       Vs.

RESPONDENT: STATE OF U.P. AND OTHERS

DATE OF JUDGMENT30/08/1990

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) SAIKIA, K.N. (J)

CITATION:  1990 AIR 2186            1990 SCR  Supl. (1) 118  1990 SCC  (4) 546        JT 1991 (1)    68  1990 SCALE  (2)380

ACT:     U.P.  Imposition  of Ceiling on Land Holdings  Act  1960 Amended by Act of 1972 (18 of 1973) further amended by  U.P. Act 2 of 1975--Sections 5, 6, 8, 10, II--Ceiling area deter- mination of.

HEADNOTE:     The  1960 Act makes provision for imposition of  Ceiling on  Land holdings and for determination of surplus land.  It was  amended  by U.P. Act 18 of 1973 to  lower  the  ceiling limit  and  to make provisions with regard to  transfers  of land in anticipation of the imposition of ceiling. This  Act came  into  force on June 8, 1973. Further  amendments  were made in the Act by U.P. Act 2 of 1975 inserting  Explanation I  &  Explanation II after sub-section (1) of section  5  as substituted  by  1973 Act and given  effect  retrospectively i.e. from June 8, 1973.     A  notice  under section10(2) of Act was issued  to  the appellant  and he filed objections submitting  that  Chhiddu Singh, his father, had executed a registered gift deed dated October  13,  1971 in respect of plot No. 111  measuring  63 Bighas,  12  Biswas  and 17 Dhur in  favour  of  appellant’s mother.  appellant’s  wife and two sons  of  the  appellant. Chhiddu  Singh died on April 28, 1973. Accordingly the  said gifted land was not inherited by the appellant and it  could not  be  treated as part of his holding for the  purpose  of imposition  of ceiling. The prescribed  authority  overruled the objections, included the said land as part of the  hold- ing  of the appellant and declared the surplus land  of  the appellant to the extent of 49 Bighas and 17 Biswas.     The  appellant filed an appeal to the  First  Additional Civil Judge. It was allowed partly and the surplus land  was reduced  to  42 Bighas 13 Biswas and 6 Dhur.  The  appellant thereafter filed a writ petition in the High Court which was dismissed. Feeling aggrieved the appellant filed this appeal after obtaining special leave to appeal.     The  appellant urged before this  Court-that  amendments introduced  by the 1973 Act are not retrospective in  nature and  are operative only from June 8, 1973, that the  surplus land  has to be determined as on June 8, 1973, the  date  of coming into force of 1973 Act, and that the

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119 land  gifted by the appellant’s father on October  13,  1971 could not be included in the holding of the appellant as  he was  not the tenure holder of the said land on the death  of his father on April 28, 1973. Dismissing the appeal, the Court,     HELD:  The  1973 Act postulates that ceiling area  of  a tenure  holder has to be determined in accordance  with  the provisions contained in sec. 5 of the Act. While determining the ceiling area, the surplus land held in excess of ceiling area,  which is to be acquired by the State, has also to  be determined. [123H; 124A]     For determining ceiling area sub-section (6) of  section 5  provides  that any transfer of land, which  but  for  the transfer would have been declared surplus land under the Act if  made  after January 24, 1971 shall be  ignored  and  not taken into account but transfers falling within the ambit of clauses  (a)  and (b) of the proviso to  sub-sec.  (6)  are, excluded, and such transfers even though made after  January 24, 1971, have to be taken into account. [124B]     In  the instant case, the gift was made and executed  on October 13, 1971 and it was a transfer of land and as it was made  after  January 24, 1971 the transfer of  land  was  in respect of land which would have been declared surplus  land under  the Act. This transfer did not fall within the  ambit of clauses (a) and (b) of the proviso to sub-section (6)  of section  5. Thus such gift was liable to be ignored for  the purpose  of determining the ceiling area applicable  to  the appellant. Sub-section (6) of section 5 does not speak of  a transfer by the tenure holder but it speaks of any  transfer of  land made after January 24, 1971. So the  contention  of the  appellant that gift was made by his father and  not  by him as tenure holder and he did not inherit the same on  the death  of his father is untenable, since sub-section (6)  of section  5  is  applicable to a transfer even  made  by  the predecessors-in-interest of the tenure holder whose  ceiling area is to be determined and who inherited the land prior to June 8, 1973. The land which was transferred vide gift  deed dated  October  13,  1971 was land which but  for  the  said transfer  would  have been declared surplus land  under  the Act. [124C-H; 125A]     Thus,  once the gift is ignored it is to be  treated  to have  continued to vest in the appellant’s father and  after his  death the appellant inherited the same and as such  was part  of the holdings of the appellant on June 8,  1973  and has  to  be  taken into consideration  for  determining  the surplus land held by the appellant. [125B] 120

JUDGMENT:      CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  5653 1983.     From  the  Judgment  and Order dated  31.8.1979  of  the Allahabad High Court in Misc. Writ Petition No. 4994 of 1975 E.C. Agarwal for the Appellant. Manoj Swarup and Ashok K. Srivastava for the Respondent. The Judgment of the Court was delivered by     S.C. AGRAWAL, J. This appeal by special leave is direct- ed  against the judgment of the High Court of Judicature  at Allahabad dated August 31, 1979 in Civil Misc. Writ Petition No.  4994  of  1975 filed by the appellant.  The  said  writ petition related to proceedings for determination of surplus land  under the U.P. Imposition of Ceiling on Land  Holdings

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Act. 1960 (hereinafter referred to as ’the Act’).     The  Act has been enacted by the U.P. State  legislature to provide for the imposition of ceiling on land holdings in Uttar pradesh and certain other matters connected therewith. In Section 4 of the Act provision is made for calculation of ceiling  area. Section 5 provides for imposition of  ceiling on existing holdings. Sections 6 to 8 provide for  exemption of  certain lands from the imposition of ceiling. Section  9 provides  for  issue of a general notice by  the  Prescribed Authority  calling upon every tenure holder holding land  in excess  of the ceiling area to submit to him a statement  in respect  of all his holdings. Section 10 days down  that  in every case where a tenure holder fails to submit a statement or  submits an incorrect statement the Prescribed  Authority shall.  after making such enquiry as he may consider  neces- sary cause to be prepared a statement indicating the plot or plots proposed to be declared as surplus land and  thereupon cause  to  be served on every such tenure  holder  a  notice together with a copy of the statement thus prepared  calling upon  him  to show cause. within a period specified  in  the notice.  why the statement be not taken as correct.  Section 11  provides for determination of surplus land by  the  Pre- scribed  Authority  in  cases where no  objection  is  filed within  the  period specified in the  notice.  issued  under Section 10. Section 12 provides for determination of surplus land by the Prescribed Authority in cases where an objection has  been  filed.  Section 13  makes  provision  for  appeal against  the order passed by the Prescribed Authority  under Section 11 or Section 12. 121     In 1972 it was decided to lower the ceiling limit and to make further provisions with regard to transfers in  antici- pation of the imposition of ceiling. The U.P. State legisla- ture enacted the U.P. Imposition of Ceiling on Land Holdings (Amendment)  Act,  1972. U.P. Act 18  of  1973  (hereinafter referred to as ’the 1973 Act’) which came into force on June 8,  1973. By the 1973 Act Sections 3 to 8  were  substituted and  other amendments were made in the Act. Certain  further amendments  were made in the Act by the U.P. Act 2 of  1975. Among the amendments introduced by the Amendment Act of 1975 was  insertion  of Explanation I and  Explanation  II  after sub-section (1) of Section 5 as substituted by the 1973 Act. U.P.  Act 2 of 1975 was brought into force with effect  from June 8, 1973.     A  notice under Section 10(2) of the Act was  issued  to the appellant and he filed objections wherein it was submit- ted  that  Chhiddu Singh. the father of the  appellant,  had executed  a registered gift deed dated October 13,  1971  in respect  of Plot No. 111 measuring 63 Bighas, 12 Biswas  and 17  Dhur  in favour of his wife, Smt.  Roshan  Kumari,  Smt. Premwati, wife of the appellant, and Virendera Bahadur Singh and Tej Vir Singh, sons of the appellant. It was also stated that Chhiddu Singh died on April 28, 1973. The submission of the appellant was that the said land which was gifted by his father Chhiddu Singh was not inherited by the appellant  and it could not be treated as part of the holding of the appel- lant  for  the purpose of imposition of  ceiling.  The  Pre- scribed Authority overruled the said objection of the appel- lant  and ignoring the gift made by Chhiddu Singh,  included the  said land as part of the holding of the  appellant  and declared the surplus land of the appellant to the extent  of 49 Bighas and 17 Biswas. The appellant filed an appeal which was  partly  allowed by the First  Additional  Civil  Judge. Aligarh, by his judgment dated January 31. 1975, whereby the area of surplus land was reduced to 42 Bighas, 13 Biswas and

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6  Dhur.  The appellant filed a writ petition  in  the  High Court  which  was dismissed by the High  Court  by  judgment dated  August 31, 1979. Feeling aggrieved by the said  judg- ment  of the High Court the appellant has filed this  appeal after obtaining special leave to appeal.     The  expression  ’holding’ is defined in clause  (9)  of Section 3 as under: "(9) ’holding’ means the land or lands held by a person as a bhumidhar, sirdar, asami of Gaon Sabha or an asami mentioned in  Section 11 of the Uttar Pradesh Zamindari Abolition  and Land Reforms Act, 1950, or as a tenant 122 under the UP. 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 sub-lease is co-extensive  with the period of the lease;"     The expression ’tenure-holder’ is defined in clause (17) of Section 3 as under: "(17) ’tenure-holder’ means a person who is the holder of  a holding, but does not include-- (a) a woman whose husband is a tenure-holder; (b)  a  minor  child whose father or  mother  is  a  tenure- holder." The relevant provisions of Section 5 are: "5 Imposition of ceiling----(1) On and from the commencement of the Uttar Pradesh Imposition of Ceiling of Land  Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land  in excess of the 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 ostensible in the name  of  any other person, shall be taken into account. Explanation II--(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 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 held the  land and that it is so held by him ostensibly in the name of  the second mentioned person." "(6) In determining the ceiling area applicable to a tenure- 123 holder,  any transfer of land made after  the  twenty-fourth day of January, 1971, which but for the transfer would  have been declared surplus land under this Act, shall be  ignored and not taken into account; Provided that nothing in this sub-section shall apply (a)  a transfer in favour of any person  (including  Govern- ment) referred to in sub-section (2); (b) a transfer proved to the satisfaction of the  prescribed authority to be in good faith and for adequate consideration and  under  an  irrevocable instrument not  being  a  benami transaction or for the immediate or deferred benefit of  the tenure-holder or other members of his family. Explanation--The burden of proving that a case falls  within clause  (b)  of  the proviso shall rest  with  the  part.x,’ claiming its benefit."     Shri  Agarwal  has urged that the amendments  that  were introduced in the Act by U.P. Act 18 of 1973 are not  retro- spective  in nature and that the said amendments are  opera- tive  with effect from June 1973, and that surplus land  has

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to be determined with reference to June 8, 1973, the date of coming  into force of the 1973 Act. The submission  of  Shri Agarwal is that on June 8. 1973 the land covered by Plot No. 111 measuring 63 Bighas, 12 Biswas and 17 Dhur could not  be included  in the holding of the appellant and the  appellant was not the tenure-holder in respect of the said land.  Shri Agarwal  has contended that in view of the gift  deed  dated October  13, 1971, executed by Chhiddu Singh, the father  of the appellant, the land covered by the gift deed had  vested in  the  donees and the appellant did not inherit  the  said land  on  the death of Chhiddu Singh on  28th  April,  1973. Laying  stress  on  the definition  of  expression  holding’ contained  in  clause (9) of Section 3  and  the  expression ’tenure-holder’ contained in clause 117) of Section 3,  Shri Agarwal has submitted that on June 8, 1973 the land that was gifted by Chhiddu Singh was not held by the appellant and it was  not part of appellant’s holding and the  appellant  was not the tenure-holder in respect of the same.       find  no merit in this contention. The Act  postulates that  the ceiling area of a tenure-holder has to  be  deter- mined in accordance with the provisions contained in Section 5. Alongwith such determina- 124 tion  of ceiling area there has to Be determination  of  the surplus land held in excess of the ceiling area which is  to be  acquired by the Stale. For the purpose of  determination of  the ceiling area provision has been made in  sub-section (6)  of Section 5 that any transfer of land, which  but  for the transfer would have been declared surplus land under the Act.  if made after January 24, 1971, shall be  ignored  and not  taken into account. Transfers falling within the  ambit of  clauses  (a) and (b) of the proviso to  sub-section  (6) are.  however, excluded and such transfers even though  made after January 24, 1971 have to be taken into account.     The gift made under the gift deed dated October 13, 1971 executed  by  Chhiddu Singh was a transfer of land.  It  was made after January 24, 1971. It was in respect of land which but  for the transfer would have been declared surplus  land under  the  Act. The said transfer did not fall  within  the ambit  of clauses (a) and (b) of the proviso to  sub-section (6)  of Section 5. In view of sub-section (6) of  Section  5 the  said gift was, therefore, liable to be ignored for  the purpose  of determining the ceiling area applicable  to  the appellant.     Shri Agarwal has urged that sub-section (6) of Section 5 cannot be applied to the present case inasmuch as it  postu- lates a transfer by the tenure-holder whose ceiling area  is to be determined under the Act and that in the present  case the  gift  was not made by the appellant but by  his  father and. therefore. the said gift cannot be ignored on the basis of  the provisions of Sub-section (6) of Section 5.  We  are unable to agree. Sub-section (6) of Section 5 does not speak of a transfer by the tenure-holder. It speaks of any  trans- fer  of land made after January 24, 1971 which but  for  the transfer  would  have been declared surplus land  under  the Act. It is not the requirement of sub-section (6) of Section 5  that  the transfer should be by the  tenure-holder  whose ceiling  area  is to be determined.We cannot read  this  re- quirement in it. While construing sub-section (6) of Section 5  it has to be borne in mind that this provision  has  been made  with the object of preventing evasion of  the  ceiling law by owners of large holdings making transfers in  antici- pation  of the imposition of the lower limit on the  ceiling area, Such a provision must be so interpreted as to curb the mischief find advance the remedy. A construction which  will

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cut  down the scope of this provision cannot be adopted.  In our  opinion,  therefore, sub-section (6) of  Section  5  is applicable  to a transfer made by the  predecssor-ininterest of the tenure-holder whose ceiling area is to be  determined in cases where such predecessor died before June 8, 1973 and the  tenure-holder  whose ceiling area is to  be  determined inherited the lands of 125 such predecessor prior to June 8, 1973. In the instant  case the  land which was transferred by Chhiddu Singh under  gift deed dated October 13, 1971 was land which but for the  said transfer would have been declared surplus under the Act.     Once the gift made by Chhiddu Singh is ignored the  land so  gifted  should be treated to have continued to  vest  in Chhiddu Singh at the time of his death on April 28, 1973 and on  the death of Chhiddu Singh the appellant  inherited  the same. The said land has to be treated as part of the holding of  the  appellant on June 8, 1973 and he  was  the  tenure- holder  in respect of the same on that date. The  said  land was required to be taken into consideration for  determining the surplus land held by him.     Shri Agarwal has relied upon the decision of this  Court in  Arjan Singh and Another v. The State of Punjab and  Oth- ers, [1969] 2 S.C.R. 347. This case turns on the interpreta- tion of the expression ’this Act’ in Section 7 of the  Pepsu Tenancy  and Agricultural Lands (Amendment  and  Validation) Act,  1962 whereby Section 32KK was introduced in the  Pepsu Tenancy  and Agricultural Lands Act, 1955 with  effect  from October 30, 1956. By Section 32KK it was provided that  land owned by a Hindu undivided family would be deemed to be land of  one  land owner and partition of land owned  by  such  a family  shall be deemed to be a disposition of land for  the purposes  of  Section 32FF and the question  was  whether  a partition  effected  by a registered  partition  deed  dated September  6,  1956 was covered by the  said  provision.  It would have been so covered if the expression ’this Act’  was construed  to  mean the principal Act of 1955.  This  Court, however,  held that in view of the various  provisions  con- tained  in  the Amendment Act of 1962 the  expression  ’this Act’  meant the Amendment Act of 1962 and not the  principal Act.  This decision, therefore, turns on the  interpretation of the particular provision of the Amendment Act of 1962 and it has no bearing on the present case.     We.  therefore,  find no merit in the appeal and  it  is accordingly dismissed. No order as to costs. S.Bali                                    Appeal dismissed. 126