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CASE NO.: Appeal (civil)  422-423 of 1997

PETITIONER: Vinod Kumar

RESPONDENT: The Commissioner & Ors.

DATE OF JUDGMENT: 27/04/2004

BENCH: K.G. Balakrishnan & P. V.  Reddi.

JUDGMENT: J U D G M E N T

WITH CIVIL APPEAL NOS. 424-426/1997,  CIVIL APPEAL NOS. 427-429/1997

K.G. BALAKRISHNAN, J.

       These appeals arise out of a common Judgment passed by the Division  Bench of the High Court of Allahabad.  By the impugned Judgment, the Division  Bench disposed of 10 Writ Petitions filed against the order passed by the  Appellate Authority under U.P. Imposition of Ceiling on Land Holdings Act, 1960  (hereinafter  referred to as "Ceiling Act").  The matter relates to the fixation of  ceiling under the provisions of the  Ceiling Act.

       Predecessors-in-interest of Yashvir Singh (Respondent No. 3), Satvir Singh  (Respondent No. 4) and Jagdishpal Singh(Respondent No. 5) in Civil Appeal  Nos.424-429 of 1997 had executed a lease in 1936 in favour of Delhi Cloth &  General Mills(hereinafter referred to as "D.C.M.").  The lease was for a period of  25 years in respect of 375 bighas of land.  When U.P. Zamindari Abolition & Land  Reforms Act, 1950(hereinafter referred to as "Z.A.Act") came into force, a  compensation statement was prepared under Chapter IXA of Z.A. Act and DCM  was held to be ’Adhiwasi’ of this land.  The original land owners, namely,  predecessors-in-interest of R3, R4 and R5 filed objection to this and claimed  ’Bhumidari’ right over the entire land.  Their plea was initially accepted but the  Compensation Officer vide his order dated 3.1.1957 allowed the appeal filed by  DCM and against that appellate Order, the land owners went in appeal before the  Board of Revenue, but their claim was rejected.

       After the commencement of the Ceiling Act, the land covered by the lease  deed was sought to be declared as surplus land in the hands of DCM.  The land-  owners claimed ’Bhumidari’ right over the said land.  Their claim was rejected by  the Prescribed Authority.  They went in appeal and the Appellate Authority held  that DCM had only ’Asami’ right.  These orders were challenged before the High  Court in Writ petitions and the matter was remitted to the lower Appellate Court.   The writ petitions were again filed against the order passed by the Lower  Appellate Court and the matter was decided by the High Court on 28.11.1969.   Against that Judgment, special appeals were filed and it was held by the Division  Bench of the High Court that the predecessors-in-interest of respondent no. 3 , 4  & 5 had got ’Bhumidari’ right over 142 Bighas out of total land which was given on  lease to DCM.  Their claim regarding the rest of the land was rejected.  The land  owners thereafter filed Special Leave Petition before this Court and this Court  remitted the matter to the High Court for fresh decision.  On 23.9.1987, the matter  was decided afresh holding that the predecessors-in-interest of Respondent Nos.  3, 4 & 5 had ’Bhumidari’ right over 142-17-2 = Bighas of land and for the rest of  the land the DCM was declared to have ’Adhiwasi’ and ’Sirdar’ rights.  Against  that decision, the matter was again taken up in  appeal before this  Court by

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Special leave and all the parties to that proceedings ultimately accepted the  position that the Respondent nos. 3, 4 & 5 herein who are the successors-in- interest of the original land owners are entitled to have rights over 72.50 bighas of  disputed land.  An extent of 8-7-0 bighas of land was excluded and 64 bighas of  land was directed to be put in possession of Respondent Nos. 3, 4 & 5 and  Prescribed Authority was directed to determine the surplus land of these  respondents.  The operative portion of the Judgment of this Court is as follows:- "The assertion of the State of Uttar Pradesh that most of the  lands in dispute have been taken over by the State as ceiling  surplus land is not disputed.  On account of the fact that ceiling   surplus had been determined in the hands of the respondent- company and our present order holding that the appellants have  interest in regard to about 64 bighas of land out of the land in  dispute, a fresh determination of the surplus has to be done.  The  appellant should be entitled to be put into possession of the lands  out of 64 bighas which would be within the ceiling limit.  We,  therefore, direct that the competent authority shall proceed to  determine the ceiling surplus under the U.P. Imposition of Ceiling on  Land Holdings Act, 1960 within three months from today and once  that is done, the appellants shall be entitled to restoration of  possession of the area coming within the ceiling limit and the  balance shall vest in the Uttar Pradesh Government.  The  competent authority shall forward a copy of his determination within  two weeks after three months to the Registry of this court."

Pursuant to the direction of this Court, the prescribed authority passed an  order on 11.10.1990 and held that 14 bighas out of 64 bighas of land are to be  treated as surplus land in the hands of Respondent Nos. 3, 4 & 5.  An appeal was  filed against the order of the Prescribed Authority and the Appellate Authority held  that only an extent of 2-2-10. 1/3 bighas of land could be treated as surplus land  in the hands of Jagdishpal Singh (R5).

       Against this Order, the State of Uttar Pradesh filed three Writ petitions.   Two other persons, namely, Omvati and Shastri Sankari Avas Samiti Ltd. had also  filed two separate writ petitions.  The surplus lands taken over by the Government  were allotted to some persons.  They too filed writ petitions challenging the order  of the Appellate Authority.  Certain lands were given to Meerut Development  Authority.  As the Appellate Authority had modified the order of the Prescribed  Authority by reducing surplus area of the land, the Meerut Development Authority  also filed three writ petitions and by the impugned Judgment, all these writ  petitions were disposed of holding that the finding of the Appellate Authority was  correct.  That decision is challenged before us.

       We heard Shri Subodh Markandeya, learned senior Counsel for the  appellant and Shri Ranjit Kumar, learned senior Counsel for the Meerut  Development Authority and also Counsel for the appellant in Civil Appeal Nos.  422-423/1997.  The learned Counsel for the State of U.P. contended that the  Appellate Authority seriously erred in fixing the ceiling area of Respondent Nos. 3,  4 & 5.  According to the learned Counsel, the Ceiling Act came  into force on  8.6.1973 and the determination of the ceiling should have been made with  reference to the date of the commencement of the Act.  It was argued that the  finding of  Appellate Authority and the High Court that 23.11.1989, i.e., the  date of  Judgment of this Court is the relevant date for determination of the ceiling of these  respondents  is faulty and erroneous.  It was  contended that the determination of  the ceiling limit in respect of these respondents was an ongoing process and there  was no applicability of Section 29 of the Ceiling Act.  The gist of the argument  of  the learned Counsel for the State was that all determinations of ceiling have to be  done only with reference to 8.6.1973, i.e., the commencement of the Ceiling Act  and not any other date.  This argument was supported by the Counsel who  appeared for the Meerut Development Authority and also the appellants in Civil  Appeal No. 422-23/1997.   

The Counsel for the Respondent Nos. 3, 4 & 5, on the other hand,  contended that these respondents were not holding the land in question and  their  rights in respect of this land were finally crystallized by the decision of this Court

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on 23.11.1989 and  by that Judgment alone, this Court directed the authorities to  hand over the possession of the land to these respondents and from that date  onwards,  64 bighas of land could be treated as lands having been in the account  of these respondents.  Therefore, the determination of the ceiling of land  applicable to these respondents was rightly done with reference to the date  23.11.1989.         Some of the provisions contained in the U.P. Imposition of Ceiling and  Land Holdings Act, 1960 are relevant to be noted.  Under Section 3(9) of the  Ceiling Act, ’holding’ is defined as follows:- "       ’holding’ means the land or lands held by a person as a  bhumidar, 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 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 the sub- lease is co-extensive with the period of the lease".

       Section 5 (1) and the Explanation I and II are also relevant:- 5.   Imposition of Ceiling \026 (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 through-out Uttar Pradesh, any land in excess of the  ceiling area applicable to him.

[Explanation I.  \026 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. \026 [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 hold the land and that it is so  held by him ostensibly in the name of the second mentioned  person.]

       Section 29 and Section 30 are as follows:

29.     Subsequent declaration of further land as surplus land .  \026 Where after the date of enforcement of the Uttar Pradesh  Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, -

(a)     Any land has come to be held by a tenure-holder  under a decree or order of any court, or as a result of  succession or transfer, or by prescription in  consequence of adverse possession, and such land  together with the land already held by him exceeds  the ceiling area applicable to him; or

(b)     any unirrigated land becomes irrigated land as a  result of irrigation from a State irrigation work or any  grove-land loses its character as grove-land or any  land exempted under this Act ceases to fall under  any of the categories exempted,

the ceiling area shall be liable to be redetermined [and accordingly  the provisions of this Act, except Section 16, shall mutatis mutandis  apply.

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30.     Determination of surplus land regarding future acquisition. \026

(1)     Where  any land has become liable to be treated as surplus  land under Section 29, the tenure-holder shall within such  period as may be prescribed submit, a statement to the  Prescribed Authority in the form and in the manner laid down  under Section 9 indicating in the statement the plot or plots  which he would like to retain as a part of his ceiling area.

2(a)Where the statement submitted under sub-section (1) is  accepted by the Prescribed Authority, it shall proceed to  determine the surplus land accordingly.

(b)     Where a tenure-holder fails to submit a statement required to  be submitted under sub-section (1) or submits an incomplete  or incorrect statement, the Prescribed Authority shall proceed  in the manner laid down under Section 10. (c)     The provisions of this Act in respect of declaration,  acquisition, disposal and settlement of surplus land, shall,  shall mutatis mutandis, apply to surplus land covered by this  section.

The Ceiling Act came into force on 8.6.1973.  As per the scheme of the  Act, the ceiling area is to be determined with reference to the date of the  commencement of the Act.  In determining the ceiling area of a person, this date  is relevant and no tenure-holder shall be entitled to hold the aggregate land in  excess of the ceiling area prescribed under the Act.  Tenure-holder is defined  under Section 3(17) of the Act to mean "a person who Is the holder of a holding,  but (except in Chapter III) does not include\005. (a)     a woman whose husband is a tenure-holder; (b)     a minor child whose father or mother is a tenure-holder."

Provision has been made in the Act for re-determination of the ceiling area  in case there is any future acquisition by the tenure-holder.  The future acquisition  can be in different forms and Section 29 of the Ceiling Act further provides that if  any land has come to be held by a tenure-holder pursuant to a decree or order of  any Court, or as a result of succession or transfer, or by prescription in  consequences of adverse possession,  the tenure-holder has to file a further  declaration if the aggregate land held by him exceeds the ceiling area applicable  to him.  So also, if there is any change in the character of the land, such as, if any  unirrigated land becomes irrigated land, then also he has to file fresh declaration  as it would affect the aggregate ceiling area prescribed under the law. The Act  envisages that no tenure-holder shall be allowed to be in possession of land in  excess of the ceiling area at any point of time.  If there is any further acquisition,  inclusive of that acquisition, the total area shall not exceed the maximum ceiling  area prescribed under the Act.  The definition of ’holding’ given under Section 3(9)  of the Act says that the ’holding’ means the land or lands held by a person as a  bhumidar, sirdar, asami of gaon Sabha or asami mentioned in Section 11 of the  Zamindari Abolition and Land Reforms Act, 1950, or as a tenant under the U.P.  Tenancy Act but it does not include a sub-tenant or a Government lessee, or a  sub-lessee of a Government lessee,  where the period of sub-lease is co- extensive with the period of the lease.  

The question of interpretation of the term ’holding’ under the Z.A. Act came  up for consideration before this Court in Bhudan Singh and Another Vs. Nabi  Bux and Another 1969(2) SCC 481.  In that case, the respondents were Ryots  under the appellants and the father of the respondents had a small building in a  property obtained from the appellants.  After the death of the father of the  respondents,  they put up some buildings on that site for residential purposes.   During the communal disturbances in 1947, the respondents left the village and  came back in 1949 when the conditions improved.  After coming back, they found  that the appellants had occupied that suit property after putting up a cow-shed on  the site in which their residential buildings stood.  The appellants refused to  deliver possession of the suit property and the respondents instituted a suit for

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possession of the same on January 9, 1951.  On January 26, 1951, the U.P.  Zamindari Abolition and Land Reforms Act, 1950 came into force wherein it was  prescribed that , on the commencement of the Act, all Estates shall vest in the  State.  The respondents contended that they were lawfully holding the buildings  and the site till 1947 and they never gave up the possession of the buildings  voluntarily and that in law they continued to be in possession of the building.  The  appellants’ entry in the suit was an unlawful act.  While interpretating the word  ’hold’, it was held that the scheme of the Act  is to abolish all estates and vest the  property in the State, but at the same time certain rights were conferred on  persons in possession of lands or buildings.  It is reasonable to assume that the  persons who were within the contemplation of the Act are those who were in  possession of lands or buildings on the basis of some legal title.  It was further  held :  "Bearing in mind the purpose with which the legislation was enacted, the  scheme of the Act and the language in Section 9, we are of the opinion that the  world ’held’ in Section 9 means "lawfully held".

In State of  U.P. Vs District  Judge and Others 1997(1) SCC 496, a  person executed an agreement for sale of certain properties.  He contended that  the property covered by this agreement for sale is to be excluded from his holding.   According to him, he had already parted possession of the property in favour of  the person who executed this agreement.    His plea was rejected by this Court  and it was held that a conjoint reading of Sections 5(1), 3(17) and 3(9) clearly   indicates that if a person holds the land as bhumidar, sirdar or asami, amongst  others, as laid down by the said provision then such land will be liable to be  included in computing ceiling of his holding under Section 5(1).  This Court  observed thus:

"It is difficult to appreciate how the term "holding held by a tenure- holder" should be confined only to such lands which are possessed  by him as owner and would exclude such lands which are owned  by him but which are not in his physical possession.  Section 5(1)  nowhere contemplates that the lands must also be physically  possessed by him before he could be said to have held such lands  even though he was the full owner thereof."  

It was held in case of agreement of sale that no title passes from the  transferor of possession to the transferee thereof and such an agreement itself  creates no interest in land and unless there was a registered document of sale in  favour of the proposed transferee, the title of the lands would not get divested  from the vendor and would remain in his ownership and therefore, it formed part  and parcel of his holding.

In the instant case, the predecessor-in-interests of R3, R4 and R5 had  executed a lease deed in favour of DCM in respect of entire 375 bighas of land in  1936.  DCM claimed ’Adhiwasi’ right and the predecessor-in-interest of these  respondents claimed ’Bhumidari’ right over this property.  After prolonged  litigation, the High Court decided on 23.9.1987 that the predecessors-in-interest of  R3, R4 and R5 had got ’Bhumidari’ right over 142/17/2 =  bighas of land and for  the rest of the land, DCM was declared to have ’Adhiwasi’ and ’Sirdar’ rights.  This  decision of the High Court was challenged by Respondent Nos. 3, 4 & 5 and  ultimately this Court held on 23.11.1989 that they were entitled to have further  right over 72 bighas more of the disputed land.  Excluding 8/7/0 bighas of land in  possession of  allottees, this Court directed that 64 bighas of land should be put in  possession of Respondent nos. 3, 4 & 5.  This Court also directed for re- determination of the surplus land of these respondents.  The rights of Respondent  nos. 3, 4 & 5 over 64 bighas of land were crystallized only after the decision of this  Court.  Till such time, these respondents had been claiming right over the property  of 64 bighas of land but the State was opposing their plea.  It is also pertinent to  note that the State all along contended that this was the property having  ’Adhiwasi’ right for the DCM.  It is also important to note that DCM was held to be  holding this land including the 64 bighas of land and excess area was taken away  from them under the provisions of the Ceiling Act.  Only by virtue of the Judgment  dated 23.11.1989, Respondent nos. 3, 4 & 5 acquired right over this property.   Therefore, the question for consideration is,  whether the decision of this Court  dated 23.11.1989 could be construed as a decree or order by which the tenure-

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holders, namely, Respondent nos. 3, 4 & 5 acquired right over this property.

The plea of the appellants is that, right from the beginning, these  respondents were claiming right over this property, therefore, it must be held that  they were holding this land.  Admittedly, these respondents were not in  possession of this land.  They got right to possession of this land by virtue of the  Judgment of this Court dated 23.11.1989.  It is only  thereafter it can be said that  the tenure-holder began to ’hold’ the land.  As pointed out by the High Court, the  land-holders became tenure-holders of the land of 64 bighas only on and from  23.11.1989 on which date they got title coupled with the right to get possession by  virtue of the order of this Court.    Till such time, all authorities including High  Court held that Respondent nos. 3, 4 & 5 were not entitled to have any right over  this property.  Therefore, applying Section 29 of the Act, the re-determination of  the ceiling area is to be done with reference to the date of the Judgment of this  Court, i.e. 23.11.1989. We find no reason to disagree with the decision of the  Division bench in this regard.  The appeal is without any merits and is liable to be  dismissed.  The other set of appeals are filed by Meerut Development Authority  who had been allotted this land by the State for development.  As the land comes  within the ceiling area, the same will have to  be returned to the Respondent nos.  3, 4 & 5.  The High Court has passed appropriate orders and we do not find any  reason to interfere with the same.

The appeals filed by the allottees of land are also without any merits.  Their  allotments were cancelled for various reasons.  They were not entitled to get  allotment of these lands and the reasons are elaborately given in the Judgment of  the Division Bench.  Some of the allottees were employed and they did not come  within the preferential category.  

       All the appeals are without any merits and they are dismissed.