REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7165 of 2016
ARVIND KUMAR …APPELLANT
VERSUS
STATE OF U.P. & ORS. …RESPONDENTS
J U D G M E N T
R.F. Nariman, J.
1. The present case involves the Court going through a dense jungle
which consists of the U.P. Imposition of Ceiling on Land Holdings Act,
1960 [hereinafter referred to as “the principal Act”] and three
Amendment Acts made thereto. With the help of learned counsel for both
the sides, we have waded through the various Sections and sub-sections
of these Acts, only for the purpose of having to decide one basic
question: as to whether ceiling proceedings in respect of the land in
question have lapsed owing to Section 31 of the 1976 Amendment Act.
2. The brief facts necessary to decide the present case are as
follows. A notice under Section 10(2) of the principal Act, was
served upon the tenure-holder, one Kamla Devi, to file objections
against a proposal to declare 51.29 acres as surplus land. Pursuant
to the said notice, objections were filed by the late Kamla Devi as
also by appellants 1 to 3, her legal heirs. According to the
appellants, on a correct construction of the Act, there was no surplus
land. Meanwhile, the Prescribed Authority under the Act passed an
order dated 13.1.1975 by which order the entire land that was the
subject matter of the notice, was declared surplus. An appeal filed
against the Prescribed Authority’s order met with the same fate and
was dismissed on 13.12.1987. It is important to note that an argument
was raised that the proceedings had abated, which argument was
answered by the Appellate Authority by saying that no fresh notice had
been issued under Section 9(2) of the Amendment Act and as this was
so, the proceedings had not abated. A writ petition that was filed in
1987 was ultimately disposed of on 6.8.2007 where, by the judgment
under appeal, the writ petition was dismissed. Several points were
argued with which we are not at present concerned. The argument on
abatement met the same fate as the judgment by the appellate
authority.
3. Before adverting to the submissions of learned counsel for both
parties, it is first important to put the horse before the cart. A
brief survey of the principal Act as well as the three Amendment Acts
must now be undertaken.
4. The 1960 Act is an Act to provide for the imposition of ceiling
on land holdings in the State of Uttar Pradesh. Under the principal
Act, the ceiling area of a tenure-holder was said to be 40 acres of
“fair quality land”, and where the tenure-holder has a family
consisting of more than 5 members, to the ceiling area of such tenure-
holder is to be added 8 acres of fair quality land for every
additional member of the family, subject to a maximum of 24 acres.
“Fair quality land” was defined in the principal Act as meaning land,
the hereditary rate of which is above Rs.6/- per acre under the Act.
A general notice was to be given to tenure-holders holding land in
excess of the ceiling area so that they could submit a statement in
respect thereof. A quasi-judicial determination is then to be made of
surplus land, where objections are filed and the prescribed authority,
after affording the parties a reasonable opportunity of being heard,
and of producing evidence, is then to decide their objections after
recording reasons, and then determine the extent of surplus land. An
appeal is provided to the District Judge whose decision is then made
final and conclusive. The prescribed authority is then to notify in
the Official Gazette the surplus land so determined. On the date of
such notification, such surplus land shall vest in the State free from
all encumbrances, and on/from that date, all right, title and interest
of all persons in such land shall stand extinguished. The principal
Act then contains machinery for distribution of surplus land inter
alia to cooperative societies of landless agricultural labourers.
Compensation is given by the principal Act for vesting of surplus land
of land-holders. With this prefaratory note, it is important now to
set out the relevant Sections of the aforesaid Act.
“Section 3. Definitions. In this Act, unless there is anything
repugnant in the subject of context –
(b) “Fair Quality Land” means land the hereditary rate whereof
is above rupees six per acre;
Section 4. Ceiling area.
1) Subject to the provisions of this Act, the ceiling area
applicable to a tenure-holder shall be calculated after taking
into account all the land in any holding in the state held by
him, in his own right, whether in his own name or ostensibly in
the name of any person.
2) (a) The ceiling area of a tenure-holder shall be forty acres of
Fair Quality Land.
(b) Where the tenure-holder has, or consists of, a
family having more than five members, the ceiling area of such
tenure-holder shall be the area mentioned in clause (a) together
with eight acres of Fair Quality Land for every additional
member of the family subject to a maximum of twenty-four such
acres:
Provided that, if at any time, the family comes to consist
of not more than five members, all land held by the tenure-
holder in excess of the ceiling area under clause (a), shall
become liable to be treated as surplus land.
Explanation – In calculating the ceiling area under this
sub-section in respect of land other than Fair Quality Land, one
and one-half acre of such land, the hereditary rate whereof is
above rupees four per acre, but does not exceed rupees six per
acre, and two acres of such land the hereditary rate whereof is
rupees four or less per acre, will be deemed to be equal to one
acre of Fair Quality Land.
Section 5. Imposition of ceiling on existing land holdings.-
1) As and from the date of enforcement of this Act, no tenure-
holder shall, except as otherwise provided by this Act, be
entitled to hold an area in excess of the ceiling area
applicable to him, anything contained in any other law, custom,
or usage for the time being in force, or agreement, to the
contrary notwithstanding.
2) In determining the ceiling area applicable to a tenure-holder at
the commencement of this Act, any transfer or partition of land
made after the twentieth day of August, 1959, which, but for the
transfer or partition, would have been declared surplus land
under the provisions of this Act, shall be ignored and not taken
into account.
3) The provisions of sub-section (2) shall have no application to
–
(a) a transfer in favour of the State Government ;
(b) a partition under the U.P. Consolidation of Holdings Act,
1953, or
(c) a partition of the holding of a Joint Hindu Family made by a
suit or proceeding pending on twentieth day of August, 1959.
Section 9. General notice to tenure-holders holding land in
excess of ceiling area for submission of statement in respect
thereof.– As soon as may be, after the date of enforcement of
this Act, the Prescribed Authority shall, by general notice,
published in the Official Gazette, call upon every tenure-holder
holding land in excess of the ceiling area applicable to him on
the date of enforcement of this Act, to submit to him within 30
days of the date of publication of the notice, a statement in
respect of all his holdings in such form and giving such
particulars as may be prescribed. The statement shall also
indicate the plot or plots for which he claims exemption and
also those which he would like to retain as part of the ceiling
area applicable to him under the provisions of this Act.
Section 12. Determination of the surplus land by the Prescribed
Authority where an objection is filed. – (1) Where an objection
has been filed under sub-section (2) of section 10 or under sub-
section (2) of Section 11, or because of any appellate order
under Section 13, the Prescribed Authority shall, after
affording the parties reasonable opportunity of being heard and
of producing evidence, decide the objections after recording his
reasons, and determine the surplus land.
(2) Subject to any appellate order under Section 13, the order
of the Prescribed Authority under sub-section (1) shall be final
and conclusive and be not questioned in any court of law.
Section 13. Appeals – (1) Any party aggrieved by an order under
sub-section (2) of Section 11 or Section 12, may, within thirty
days of the date of the order, prefer an appeal to the District
Judge within whose jurisdiction the land or any part thereof is
situate.
(2) The District Judge shall dispose of the appeal as
expeditiously as possible and his decision thereon shall be
final and conclusive and be not questioned in any court of law.
(3) Where an appeal is preferred under this section, the
District Judge may stay enforcement of the order appealed
against for such time and on such conditions as may be
considered just and proper.
Section 14. Acquisition of surplus land. – (1) The Prescribed
Authority shall –
(i) in case, where the order passed under sub-section (1) of
Section 11 has become final; or
(ii) in case, where no appeal has been preferred under Section
13, after the expiry of the period of limitation provided
therefor; or
(iii) in case, where an appeal has been preferred under Section
13, after its decision;
notify in the Official Gazette the surplus land determined under
Sections 11, 12 or 13, as the case may be.
(2) As from the beginning of the date of the notification
under sub-section (1), all such surplus land shall stand
transferred to and vest, except as hereinafter provided, in the
State, free from all encumbrances and all rights, title and
interests of all persons in such land shall, with effect from
such date, stand extinguished.
(3) On the publication of the notification under sub-section
(1), any person claiming interest as a tenure-holder or a lessee
in possession from the tenure-holder, in the surplus land in
respect of which the notification has been published, may,
within thirty days thereof, file an objection before the
Prescribed Authority indicating the extent of his interest in
such land.
(4) The Prescribed Authority shall, for reasons to be recorded
in writing, dispose of the objections after affording to the
objector, the tenure-holder concerned and the State Government,
reasonable opportunity of being heard and of producing evidence.
(5) Any person aggrieved by an order under sub-section (4)
may, within thirty days of the date of the order, prefer an
appeal to the District Judge in whose jurisdiction the land or
any part thereof is situate. The order of the District Judge
shall be final and conclusive and be not questioned in any Court
of law.
(6) In disposing of an objection of an appeal under this
section, the Prescribed Authority or the District Judge, as the
case may be, shall accept any decision of a court of competent
jurisdiction in respect of the rights of the parties.
(7) No person, other than a tenure-holder or a lessee of the
tenure-holder whose right, title or interest in the surplus land
has been recognized under the provisions hereinbefore contained,
shall for purposes of this Act, be considered to have any right,
title or interest in the surplus land.
(8) The Collector may, at any time, after the publication of
the notification under sub-section (1) and subject to any order
passed under sub-sections (4) and (5) take possession of the
surplus land and may for that purpose use such force as may be
necessary.
Section 27. Settlement of surplus land.
1) The State Government shall settle out of the surplus land in a
village in which no land is available for community purposes or
in which the land as available is less than 15 acres with the
Gaon Samaj of the village so however that the total land in the
village available for community purposes after such settlement
does not exceed 15 acres. The land so settled with the Gaon
Samaj shall be used for planting trees, growing fodder or for
such other community purposes, as may be prescribed.
(2) Subject to the provisions of sub-section (1), where any
surplus land had immediately preceding the date of vesting in
the State under this Act, been held by a member of a co-
operative society, such land may, if the society so desires, be
settled by the State Government with the society.
(3) Any surplus Land remaining unsettled under the provisions
of the preceding sub-sections may be settled by the State
Government:
(a) If the remaining land is less than 15 acres in the village, with
a co-operative society of such tenure-holders, at least three-
fourths of whom are holders of less than 3? acres of land
each; and
(b) If the remaining land is more than 15 acres in the village, with
a co-operative society of landless agricultural labourers so
however that the total land allotted to such society, under this
clause, if equally divided between all the members would give to
each one not more than 3? acres of land.
(4) Any surplus land remaining after settlement under clause
(b) of sub- section (3) may be settled by the State Government
with any co-operative society no member whereof prior to such
settlement holds more than 3? acres of land in his own right.”
5. By an Amendment Act of 1972, being U.P. Act 18 of 1973, which
came into force on 8.6.1973, a wholesale substitution of various
Sections of the principal Act was carried out. This is for the simple
reason that the erstwhile scheme of determining surplus “fair quality
land” was now substituted by a scheme which determined surplus
irrigated land. Even the ceiling limit of such land was changed to
7.3 hectares of irrigated land, plus a maximum of 6 hectares of
additional land depending upon the size of the family. A new Section
13A was inserted conferring a power of review to the appellate
authority under the Act. The transitory provision contained in Section
19 of the 1972 Amendment Act then provided for abatement of
proceedings that were pending at the time of commencement of the
Amendment Act, with a saving of proceedings that had already become
final under the principal Act.
6. The relevant provisions of the U.P. Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972 are set out hereunder:-
“Section 3. Substitution of new sections for sections 3, 4, 5,
6, 7 and 8 of U.P. Act I of 1961. For sections 3, 4, 5, 6, 7 and
8 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960,
hereinafter referred to as the principal Act, the following
sections shall be substituted, namely:-
“…
4. Determination of area for purposes of ceiling and exemptions.
For purposes of determining the ceiling area under section 5 or
any exemption under section 6—
i) Subject to the provisions of clause (ii), one and one-half
hectares of unirrigated land or two and a half hectares of
grove-land or two and a half hectares of usar land shall
count as one hectare of irrigated land;
ii) two and a half hectares of any unirrigated land, in the
following areas, namely-
a) Bundelkhand;
b) trans-Jamuna portions of Allahabad, Etawah, Mathura and
Agra districts;
c) cis-Jamuna portions of Allahabad, Fatehpur, Kanpur,
Etawah, Mathura and Agra districts up to 16 kilometers
from the deep stream of the Jamuna;
d) the portion of Mirzapur district south of Kaimur Range;
e) Tappa Upraudh and Tappa Chaurasi (Balai Pahar) of Tahsil
Sadar in Mirzapur district;
f) the portion of Tahsil Robertsganj, in Mirzapur district
which lies north of Kaimur Range;
g) Pargana Sakteshgarh and the villages mentioned in lists
‘A’ and ‘B’ of Schedule VI to the Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1950, in hilly
patties of Parganas Ahraura and Bhagat of Tahsil Chunar
in Mirzapur district; and
h) the area comprised in the former Taluka of Naugarh or
Tahsil Chakia in Varanasi district;
i) hilly and Bhabar area of Kumaun and Garhwal Divisions
and Jaunsar Bawar Pargana of Dehra Dun district;
shall count as one hectare of irrigated land.
5. Imposition of ceiling.
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, throughout
Uttar Pradesh, any Land in excess of the ceiling area
applicable to him.
xx
(3) Subject to the provisions of sub-sections (4), (5) and (6),
the ceiling area for purposes of sub-section (1) shall be –
a) In the case of a tenure-holder having a family of not more than
five members, 7.30 hectares of irrigated land (including land
held by other members of his family), plus two additional
hectares of irrigated land or such additional land which
together with the land held by him aggregates to two hectares,
for each of his adult sons, who are either not themselves tenure-
holders or who hold less than two hectares or irrigated land,
subject to a maximum of six hectares of such additional land;
b) In the case of a tenure-holder having family of more than five
members, 7.30 hectares of irrigated land (including land held by
other members of his family), besides, each of the members
exceeding five and for each of his adult sons who are not
themselves tenure-holders or who hold less than two hectares of
irrigated land, two additional hectares of irrigated land or
such additional land which together with the land held by such
adult son aggregates to two hectares, subject to a maximum, of
six hectares of such additional land.
Explanation – The expression ‘adult son’ in clause (a) and (b)
includes an adult son who is dead and had left surviving behind
him minor sons or minor daughters (other than married daughters)
who are not themselves tenure-holders or who hold land less than
two hectares of irrigated land;
c) In the case of a tenure-holder being a degree college imparting
education in agriculture, 20 hectares of irrigated land;
d) In the case of a tenure-holder being an intermediate college
imparting education in agriculture, 12 hectares of irrigated
land;
e) In the case of any other tenure-holder, 7.30 hectares of
irrigated land.
Explanation – any transfer or partition of land which is liable
to be ignored under sub-sections (6) and (7) shall be ignored
also-
(p) for purposes of determining whether an adult son of a
tenure-holder is himself a tenure-holder within the meaning of
clause (a);
(q) for purposes of service of notice under section 9.”
Section 4. Amendment of Section 9.
Section 9, of the principal Act, shall be re-numbered as sub-
section (1) thereof, and after sub-section (1) as so re-
numbered, the following sub-section shall be inserted, namely –
“(2) As soon as may be after the enforcement of the Uttar
Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act,
1972, the prescribed authority shall, by like general notice,
call upon every tenure-holder holding land in excess of the
ceiling area applicable to him on the enforcement of the said
Act, to submit to him within 30 days of publication of such
notice, a statement referred to in sub-section (1).
(3) Where the tenure-holder’s wife holds any land which is
liable to be aggrieved with the land held by the tenure-holder
for purposes of determining of the ceiling areas, the tenure-
holder shall, along with his statement referred to in sub-
section (1) also file the consent of his wife to the choice in
respect of the plot or plots which they would like to retain as
part of the ceiling areas applicable to them and where his
wife’s consent is not so obtained, the prescribed authority
shall cause the notice under sub-section (2) of section 10 to be
served on her separately.”
Section 7. Insertion of new Section 13-A.
After Section 13 of the principal Act, the following section
shall be inserted, namely:-
13-A. Re-determination of surplus land in certain cases.
1) The prescribed authority may, at any time, within a period of
two years from the date of the notification under sub-section
(1) of section 14, rectify any mistake apparent on the face of
the record:
Provided that no such rectification which has the effect of
increasing the surplus land shall be made, unless the prescribed
authority has given a notice to the tenure-holder of its
intention to do so and has given him a reasonable opportunity of
being heard.
2) The provisions of sections 10, 11, 12, 12-A, 13, 14 and 15 shall
mutatis mutandis apply in relation to any proceeding under sub-
section (1), and for purposes of application of section 10, the
notice under the proviso to sub-section (1), shall be deemed to
be a notice under section 9.”
Section 19. Transitory provisions.
1) All proceedings for the determination of surplus land under
section 9, section 10, section 11, section 12, section 13 or
section 30 of the principal Act, pending before any court or
authority at the time of the commencement of this Act, shall
abate and the prescribed authority shall start the proceedings
for determination of the ceiling area under that Act afresh by
issue of a notice under sub-section (2) of section 9 of that Act
as inserted by this Act:
Provided that the ceiling area in such cases shall be determined
in the following manner:-
a) Firstly, the ceiling area shall be determined in accordance with
the principal Act, as it stood before its amendment by this Act;
b) Thereafter, the ceiling area shall be re-determined in
accordance with the provisions of the principal Act as amended
by this Act.
2) Notwithstanding, anything in sub-section (1), any proceeding
under section 14 or under Chapter III or Chapter IV of the
principal Act, in respect of any tenure-holder in relation to
whom the surplus land has been determined finally before the
commencement of this Act, may be continued and concluded in
accordance with the provisions of the principal Act, without
prejudice to the applicability of the provisions of sub-section
(2) of section 9 and section 13-A of that Act, as inserted by
this Act, in respect of such land.”
7. On 17.1.1975, the U.P. Imposition of Ceiling on Land Holdings
(Amendment) Act, 1974, being U.P. Act No.2 of 1975, came into force.
Interestingly, certain changes were made to the new legislative scheme
contained in the 1972 Amendment. This Act, except for Sections 1 and 9, was
brought into force with effect from 8.6.1973, which, as we have already
seen, was the date of coming into force of the 1972 Amendment Act. This
1974 Amendment Act only added to the new substituted scheme the concept of
“single crop land”. The relevant provisions of this Act are set out
hereinbelow:-
“Section 1. Short title and commencement.
1) This Act may be called the Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment) Act, 1974.
2) This Section and section 9 shall come into force at once, and
the remaining sections shall be deemed to have come into
force on June 8, 1973.
Section 4. Amendment of Section 4.
In section 4 of the principal Act, in clause (ii)
a) For the words “two and half hectares of any unirrigated land”,
the words “one and one-half hectares of single crop land or two
and a half hectares of any other un-irrigated land”, shall be
substituted;
b) At the end the following Explanation shall be inserted, namely :-
“Explanation – For the purposes of clause (ii), the expression
‘single crop land’ means any un-irrigated land capable of
producing only one crop in an agricultural year, in consequence
of assured irrigation from any State Irrigation Work or private
irrigation work.”
Section 9. Transitory Provision.
Where an order determining the surplus land in relation to a
tenure-holder has been made under the principal Act, before the
commencement of this Act, the prescribed authority may, at any
time within a period of two years from the commencement of this
Act, re-determine the surplus land in accordance with the
principal Act as amended by this Act.”
8. An Ordinance, which further amended the principal Act, came into
force on the 10th day of October, 1975. After the said Ordinance lapsed,
the third Amendment Act of 1976 was brought into force, being U.P. Act 20
of 1976, but with effect from the date of the Ordinance, namely,
10.10.1975. In this Amendment, various other changes were made with which
we are not directly concerned, except that the fate of this appeal hinges
on the correct construction of the transitory provision of this Act,
namely, Section 31. The relevant Sections of this Amendment Act are set
out hereunder:-
“Section 1. Short title and commencement.
1) This Act may be called the Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment) Act, 1976.
2) It shall be deemed to have come into force on October 10,
1975.
Section 8. Amendment of section 9.
In section 9 of the principal Act,-
a) In sub-section (2), the following proviso thereto shall be
inserted namely:-
“Provided that at any time after October 10, 1975, the
Prescribed Authority may by notice, call upon any tenure-
holder holding land in excess of the ceiling area applicable
to him on the said date, to submit to him within thirty days
from the date of service of such notice a statement referred
to in sub-section (1) or any information pertaining
thereto.”;
b) after sub-section (2) the following sub-section shall be
inserted namely:-
“(2-A) Every tenure-holder holding land in excess of the
ceiling area on January 24, 1971, or at any time thereafter
who has not submitted the statement referred to in sub-
section (2) and in respect of whom no proceeding under this
Act is pending on October 10, 1975 shall, within thirty days
from the said date furnish to the Prescribed Authority a
statement containing particulars of all Land—
a) held by him and the members of his family on January 24,
1971;
b) acquired or disposed of by him or by members of his family
between January 24, 1971 and October 10, 1975.”
Section 11. Amendment of section 14.
In section 14 of the principal Act-
a) for sub-section (2), the following sub-section shall be
substituted, namely:-
“(2) As from the beginning of the date of the notification
under sub-section (1), all such surplus land shall stand
transferred to and vest in the State Government free from all
encumbrances and all rights, title and interests of all
persons in such land shall, with effect from such date, stand
extinguished:
Provided that the encumbrances, if any, shall be attached to
the amount payable under section 17 in substitution for the
surplus land.”;
b) sub-section (3), (4), (5), (6) and (7) shall be omitted;
c) for sub-section (8), the following sub-section shall be
substituted, namely:-
“(8) The Collector may at any time after the publication of
the notification under sub-section (1) take possession of the
surplus land and also of any ungathered crop or fruits of
tree not being crops or fruits to which sub-section (1) of
section 15 applies, after evicting the tenure-holder or any
other person found in occupation of such land, and may, for
that purpose, use or cause to be used such force as may be
necessary:
Provided that a tenure-holder may, at any time
voluntarily deliver possession to the Collector over the
whole or any part of the land held by him which has been or
is likely to be declared surplus under and in accordance with
the provisions of this Act, and thereupon the provisions of
sub-section (2) shall apply to such land as they apply to any
surplus land specified in a notification under sub-section
(1).”
Section 31. Transitory Provisions.
1) All proceedings under sub-section (3) to (7) of section 14 of
the principal Act, as it stood immediately before the
commencement of the Uttar Pradesh Imposition of Ceiling on
Land Holdings (Amendment) Ordinance, 1976, pending before any
Court or authority immediately before the date of such
commencement shall be deemed to have abated on such date.
2) Where an order determining the surplus land in relation to a
tenure-holder has been made under the principal Act before
January 17, 1975 and the Prescribed Authority is required to
re-determine the surplus land under section 9 of the Uttar
Pradesh Imposition of Ceiling on Land Holdings (Amendment)
Act, 1974, then notwithstanding anything contained in sub-
section (2) of section 19 of the Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment) Act, 1972, every appeal
under section 13 of the principal Act or other proceedings in
relation to such appeal, preferred against the said order,
and pending immediately before the tenth day of October,
1975, shall be deemed to have abated on the said date.
3) Where an order determining surplus land in relation to a
tenure-holder has been made under the principal Act before
the tenth day of October, 1975, the Prescribed Authority (as
defined in the principal Act) may, at any time within a
period of two years from the said date, re-determine the
surplus land in accordance with the principal Act as amended
by this Act, whether or not any appeal was filed against such
order and notwithstanding any appeal (whether pending or
decided) against the original order of determination of
surplus land.
4) The provisions of section 13 of the principal Act shall
mutatis mutandis apply to every order re-determining surplus
land under sub-section (3) of this section or section 9 of
the Uttar Pradesh Imposition of Ceiling on Land Holdings
(Amendment) Act, 1974:
Provided that the period of thirty days shall, in the case of
an appeal against the order referred to in section 9 of the
Uttar Pradesh Imposition of Ceiling or Land Holdings
(Amendment) Act, 1974, be computed from the date of such
order or October 10, 1975, whichever is later.
5) The provisions of section 13-A of the principal Act shall
mutatis mutandis apply to every re-determination of surplus
land under the section or under section 9 of the Uttar
Pradesh Imposition of Ceiling on Land Holdings (Amendment)
Act, 1974.
6) Where any Assessment Roll has become final under sub-section
(4) of section 21 before the sixteenth day of February, 1976,
this same shall not be reopened, notwithstanding any
amendment made in Chapter III of the principal Act read with
the Schedule thereof by this Act.”
9. Given this thicket of statutory law made by the legislature of U.P.,
we have heard learned counsel on either side. Shri C.U. Singh, learned
senior advocate appearing on behalf of the appellants, has made several
submissions before us, but ultimately submitted that on a correct
construction of Section 31, the entire proceedings had abated, and that
therefore the appellate authority which passed an order dated 13.12.1987
had no jurisdiction to do so. He argued that a conjoint reading of Sections
31(2) and 31(3) would show that as all the requisite conditions of these
sub-sections had been fulfilled, the appeal preferred under section 13 of
the principal Act which was pending before the 10th day of October, 1975
shall be deemed to have abated on the said date. As no re-determination of
surplus land was made in accordance with the principal Act as amended by
the 1976 Amendment Act, according to learned counsel, the period of two
years having gone long ago and no re-determination having been made, the
surplus land that is said to have been determined by the prescribed
authority no longer has any legal sanctity. He made a faint argument that
under Section 19 of the 1972 amendment, proceedings had lapsed in any case,
but we were not inclined to accept that argument inasmuch as a general
notice under Section 9 of the Amendment Act had been given to the tenure-
holder which notice was not replied to by the said tenure-holder. This
being the case, Section 19 of the 1972 Act obviously cannot apply.
10. Learned senior counsel also cited before us two judgments of this
Court being State of Uttar Pradesh v. Mithilesh Kumari & Others, 1987
(supp.) SCC 21, and Mansoor Ali Khan & Others v. State of U.P. & Others,
(1992) 1 SCC 737. However, since these judgments have no direct
application to the facts of the present case, we do not consider it
necessary to deal with them.
11. Shri Garg, on the other hand, vehemently argued on behalf of the
State of U.P. that the conditions under Section 31(2) not having been met,
the said Section is inapplicable, and that being the case, the appellate
authority correctly went ahead and heard the matter on merits and dismissed
the appeal. His principal argument is that there are two conditions
precedent to the applicability of Section 31(2) of the 1976 Amendment Act.
First, there should be an order determining the surplus land which is made
under the principal Act before 17.1.1975; and second, the prescribed
authority must be required to re-determine surplus land under Section 9 of
the 1974 Amendment Act. In his submission the second pre-requisite is not
met on the facts of the present case. This, he argued, is because Section 9
of the 1974 Amendment Act gave a discretion to the prescribed authority who
“may re-determine surplus land” in accordance with the amendment made by
the 1972 Amendment. According to learned counsel, the occasion for re-
determination of surplus land on the present facts did not arise, as on
facts there is little or no un-irrigated land that needs to be converted
into irrigated land as per the formula contained in Section 4 of the 1972
Act, and that therefore the determination made in accordance with the 1972
Amendment Act, which was in fact made by the order dated 13.1.1975 would
lead to the conclusion that that order would stand and does not need to be
revisited.
12. The argument of learned counsel for the State, therefore, leads us to
analyze the four Acts in question a little closely. One thing becomes
clear at the outset: that the original statutory scheme of 1960 which spoke
of surplus “fair quality land” was substituted in its entirety by a
completely new and different scheme by the Amendment Act of 1972 read with
the Amendment Act of 1974. Both of these Acts, as has been noticed above,
with certain minor exceptions, came into force on the same date, namely,
8.6.1973. The new statutory scheme would necessarily involve “fair quality
land” being substituted by “irrigated land”, the ceiling area in the two
cases also being entirely different. This being the case, it is important
to now construe Section 9 of the 1974 Amendment Act in this backdrop. Be
it noted that Section 9 itself comes into force only on 19.1.1975. For
Section 9 to apply, an order has to be made determining surplus land in
relation to a tenure-holder before the commencement of the Amendment Act.
By Section 1(2), “this Section” and Section 9 both come into force at once
i.e. on 17.1.1975. The expression “this Section” refers to Section 1(1)
which in turn refers to the Act as the U.P. Imposition of Ceiling on Land
Holdings (Amendment) Act, 1974. This being the case, it is clear that the
Act has commenced only on 17.1.1975, even though a number of Sections shall
be deemed to have come into force retrospectively i.e. on 8.6.1973. The
order passed by the prescribed authority being on 13.1.1975, the first
condition of Section 9 is met, namely, that this order has been passed
before 17.1.1975. It is the second part of the Section on which a lot of
the debate featured. According to learned counsel for the State a
discretion is vested in the prescribed authority by use of the expression
“may”. We may hasten to add that the very expression “may at any time
within a period of two years…” also occurs in Section 31(3) of the U.P.
Imposition of Ceiling on Land Holdings (Amendment) Act, 1976. This sub-
section makes it clear that the expression “may” goes along with the words
“at any time within a period of two years…” as it is clear that on a
correct reading of the sub-Section, the prescribed authority has, in every
case, to re-determine surplus land if an order determining surplus land has
been made before the 10th day of October, 1975. The idea is that a period
of two years is given to re-determine surplus land in accordance with the
principal Act as amended by the U.P. Imposition of Ceiling on Land Holdings
(Amendment) Act, 1974. This being the case, it is clear that no discretion
is vested in the prescribed authority to re-determine surplus land.
Surplus land has, in all cases, to be re-determined, as a completely
different and new scheme applicable to all lands has replaced the existing
scheme. The only exception is where, prior to 8.6.1973, a determination of
surplus land has been made finally, that is, an appeal has been disposed of
under Section 13.
13. The matter may be looked at from a slightly different angle. Section
19 of the 1972 Amendment Act, which is a transitory provision, provides for
abatement of proceedings that are pending on the commencement of the said
Act. We have already indicated that the pending proceedings of 1967 had to
start afresh on the issue of a general notice under Section 9(2) as
inserted by the Amendment Act of 1972, which was in fact done. Thus, the
13.1.1975 order is a consequence of section 19(1) of the Act. Section
19(2) on facts has no application for the simple reason that surplus land
had not in this case been determined finally before commencement of the
1972 Act – that is, an appeal had not been decided under Section 13 of the
principal Act prior to this date.
14. This brings us then to the transitory provision contained in the U.P.
Imposition of Ceiling on Land Holdings (Amendment) Act, 1976. Under
Section 31(2), clearly, the order determining the surplus land in the
present case had been made four days before 17.1.1975 and thus the first
condition or pre-requisite for the application of the Section is met. The
second pre-requisite is also met for the simple reason that Section 9 of
the 1974 Act, which forms part of the same legislative scheme as the 1972
Amendment Act, would apply for the reason that an order determining surplus
land had been made prior to commencement of the said Act, namely,
17.1.1975, (which happens to be the same as the first pre-requisite for the
application of Section 31(2) of the Amendment Act of 1976). This being the
case, the language of Section 31(2) makes it clear that every appeal
preferred against such orders and pending immediately before the 10th day
of October, 1975, shall be deemed to have abated on the said date. On
facts, we are informed that an appeal had been filed prior to this date.
15. This being the case, it was necessary for the prescribed authority to
re-determine surplus land under Section 31(3) in accordance with the
principal Act as amended by the 1976 Act, for which purpose, the provisions
of section 13 of the principal Act shall apply mutatis mutandis to every
order re-determining surplus land under sub-section 3 of this Section or
Section 9 of the 1974 Amendment Act – (vide Section 31(4) of the 1976
Amendment Act). This never having been done on facts in the present case,
it is clear that the appeal filed in 1975 has abated and could not
therefore have been heard by the Additional Commissioner, Agra on merits.
This being so, the judgment and order passed by the Commissioner dated
13.12.1975 is without jurisdiction.
16. It only remains to consider the reasoning of the appellate authority
and the High Court. Both the appellate authority and the High Court were
of the view that no fresh notice had been issued under Section 9(2) of the
U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972. It has
been pointed out to us, on facts, that in fact such a notice had been
issued on 24.11.1975. Despite this, the appellate authority and the High
Court, in their anxiety to decide against abatement, have wrongly held no
such notice was proved to have been issued. Be that as it may, it is clear
that abatement under Section 31 does not depend upon the issuance or non-
issuance of any notice under Section 9(2) as amended. This being the case,
the finding of fact of non-issuance of notice itself being a non-issue, it
is unnecessary for us to pursue the same. It is only necessary to reiterate
that no fresh exercise under the 1976 Amendment Act was undertaken by the
prescribed authority as is required by section 31(3) of the 1976 Amendment
Act. This being the case, the impugned judgment of the High Court has
necessarily to be set aside. The appeal is, therefore, allowed with no
order as to costs.
……………………J.
(Dipak Misra)
……………………J.
New Delhi; (R.F. Nariman)
August 8, 2016
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7165 of 2016
ARVIND KUMAR …APPELLANT
VERSUS
STATE OF U.P. & ORS. …RESPONDENTS
J U D G M E N T
R.F. Nariman, J.
1. The present case involves the Court going through a dense jungle
which consists of the U.P. Imposition of Ceiling on Land Holdings Act,
1960 [hereinafter referred to as “the principal Act”] and three
Amendment Acts made thereto. With the help of learned counsel for both
the sides, we have waded through the various Sections and sub-sections
of these Acts, only for the purpose of having to decide one basic
question: as to whether ceiling proceedings in respect of the land in
question have lapsed owing to Section 31 of the 1976 Amendment Act.
2. The brief facts necessary to decide the present case are as
follows. A notice under Section 10(2) of the principal Act, was
served upon the tenure-holder, one Kamla Devi, to file objections
against a proposal to declare 51.29 acres as surplus land. Pursuant
to the said notice, objections were filed by the late Kamla Devi as
also by appellants 1 to 3, her legal heirs. According to the
appellants, on a correct construction of the Act, there was no surplus
land. Meanwhile, the Prescribed Authority under the Act passed an
order dated 13.1.1975 by which order the entire land that was the
subject matter of the notice, was declared surplus. An appeal filed
against the Prescribed Authority’s order met with the same fate and
was dismissed on 13.12.1987. It is important to note that an argument
was raised that the proceedings had abated, which argument was
answered by the Appellate Authority by saying that no fresh notice had
been issued under Section 9(2) of the Amendment Act and as this was
so, the proceedings had not abated. A writ petition that was filed in
1987 was ultimately disposed of on 6.8.2007 where, by the judgment
under appeal, the writ petition was dismissed. Several points were
argued with which we are not at present concerned. The argument on
abatement met the same fate as the judgment by the appellate
authority.
3. Before adverting to the submissions of learned counsel for both
parties, it is first important to put the horse before the cart. A
brief survey of the principal Act as well as the three Amendment Acts
must now be undertaken.
4. The 1960 Act is an Act to provide for the imposition of ceiling
on land holdings in the State of Uttar Pradesh. Under the principal
Act, the ceiling area of a tenure-holder was said to be 40 acres of
“fair quality land”, and where the tenure-holder has a family
consisting of more than 5 members, to the ceiling area of such tenure-
holder is to be added 8 acres of fair quality land for every
additional member of the family, subject to a maximum of 24 acres.
“Fair quality land” was defined in the principal Act as meaning land,
the hereditary rate of which is above Rs.6/- per acre under the Act.
A general notice was to be given to tenure-holders holding land in
excess of the ceiling area so that they could submit a statement in
respect thereof. A quasi-judicial determination is then to be made of
surplus land, where objections are filed and the prescribed authority,
after affording the parties a reasonable opportunity of being heard,
and of producing evidence, is then to decide their objections after
recording reasons, and then determine the extent of surplus land. An
appeal is provided to the District Judge whose decision is then made
final and conclusive. The prescribed authority is then to notify in
the Official Gazette the surplus land so determined. On the date of
such notification, such surplus land shall vest in the State free from
all encumbrances, and on/from that date, all right, title and interest
of all persons in such land shall stand extinguished. The principal
Act then contains machinery for distribution of surplus land inter
alia to cooperative societies of landless agricultural labourers.
Compensation is given by the principal Act for vesting of surplus land
of land-holders. With this prefaratory note, it is important now to
set out the relevant Sections of the aforesaid Act.
“Section 3. Definitions. In this Act, unless there is anything
repugnant in the subject of context –
(b) “Fair Quality Land” means land the hereditary rate whereof
is above rupees six per acre;
Section 4. Ceiling area.
1) Subject to the provisions of this Act, the ceiling area
applicable to a tenure-holder shall be calculated after taking
into account all the land in any holding in the state held by
him, in his own right, whether in his own name or ostensibly in
the name of any person.
2) (a) The ceiling area of a tenure-holder shall be forty acres of
Fair Quality Land.
(b) Where the tenure-holder has, or consists of, a
family having more than five members, the ceiling area of such
tenure-holder shall be the area mentioned in clause (a) together
with eight acres of Fair Quality Land for every additional
member of the family subject to a maximum of twenty-four such
acres:
Provided that, if at any time, the family comes to consist
of not more than five members, all land held by the tenure-
holder in excess of the ceiling area under clause (a), shall
become liable to be treated as surplus land.
Explanation – In calculating the ceiling area under this
sub-section in respect of land other than Fair Quality Land, one
and one-half acre of such land, the hereditary rate whereof is
above rupees four per acre, but does not exceed rupees six per
acre, and two acres of such land the hereditary rate whereof is
rupees four or less per acre, will be deemed to be equal to one
acre of Fair Quality Land.
Section 5. Imposition of ceiling on existing land holdings.-
1) As and from the date of enforcement of this Act, no tenure-
holder shall, except as otherwise provided by this Act, be
entitled to hold an area in excess of the ceiling area
applicable to him, anything contained in any other law, custom,
or usage for the time being in force, or agreement, to the
contrary notwithstanding.
2) In determining the ceiling area applicable to a tenure-holder at
the commencement of this Act, any transfer or partition of land
made after the twentieth day of August, 1959, which, but for the
transfer or partition, would have been declared surplus land
under the provisions of this Act, shall be ignored and not taken
into account.
3) The provisions of sub-section (2) shall have no application to
–
(a) a transfer in favour of the State Government ;
(b) a partition under the U.P. Consolidation of Holdings Act,
1953, or
(c) a partition of the holding of a Joint Hindu Family made by a
suit or proceeding pending on twentieth day of August, 1959.
Section 9. General notice to tenure-holders holding land in
excess of ceiling area for submission of statement in respect
thereof.– As soon as may be, after the date of enforcement of
this Act, the Prescribed Authority shall, by general notice,
published in the Official Gazette, call upon every tenure-holder
holding land in excess of the ceiling area applicable to him on
the date of enforcement of this Act, to submit to him within 30
days of the date of publication of the notice, a statement in
respect of all his holdings in such form and giving such
particulars as may be prescribed. The statement shall also
indicate the plot or plots for which he claims exemption and
also those which he would like to retain as part of the ceiling
area applicable to him under the provisions of this Act.
Section 12. Determination of the surplus land by the Prescribed
Authority where an objection is filed. – (1) Where an objection
has been filed under sub-section (2) of section 10 or under sub-
section (2) of Section 11, or because of any appellate order
under Section 13, the Prescribed Authority shall, after
affording the parties reasonable opportunity of being heard and
of producing evidence, decide the objections after recording his
reasons, and determine the surplus land.
(2) Subject to any appellate order under Section 13, the order
of the Prescribed Authority under sub-section (1) shall be final
and conclusive and be not questioned in any court of law.
Section 13. Appeals – (1) Any party aggrieved by an order under
sub-section (2) of Section 11 or Section 12, may, within thirty
days of the date of the order, prefer an appeal to the District
Judge within whose jurisdiction the land or any part thereof is
situate.
(2) The District Judge shall dispose of the appeal as
expeditiously as possible and his decision thereon shall be
final and conclusive and be not questioned in any court of law.
(3) Where an appeal is preferred under this section, the
District Judge may stay enforcement of the order appealed
against for such time and on such conditions as may be
considered just and proper.
Section 14. Acquisition of surplus land. – (1) The Prescribed
Authority shall –
(i) in case, where the order passed under sub-section (1) of
Section 11 has become final; or
(ii) in case, where no appeal has been preferred under Section
13, after the expiry of the period of limitation provided
therefor; or
(iii) in case, where an appeal has been preferred under Section
13, after its decision;
notify in the Official Gazette the surplus land determined under
Sections 11, 12 or 13, as the case may be.
(2) As from the beginning of the date of the notification
under sub-section (1), all such surplus land shall stand
transferred to and vest, except as hereinafter provided, in the
State, free from all encumbrances and all rights, title and
interests of all persons in such land shall, with effect from
such date, stand extinguished.
(3) On the publication of the notification under sub-section
(1), any person claiming interest as a tenure-holder or a lessee
in possession from the tenure-holder, in the surplus land in
respect of which the notification has been published, may,
within thirty days thereof, file an objection before the
Prescribed Authority indicating the extent of his interest in
such land.
(4) The Prescribed Authority shall, for reasons to be recorded
in writing, dispose of the objections after affording to the
objector, the tenure-holder concerned and the State Government,
reasonable opportunity of being heard and of producing evidence.
(5) Any person aggrieved by an order under sub-section (4)
may, within thirty days of the date of the order, prefer an
appeal to the District Judge in whose jurisdiction the land or
any part thereof is situate. The order of the District Judge
shall be final and conclusive and be not questioned in any Court
of law.
(6) In disposing of an objection of an appeal under this
section, the Prescribed Authority or the District Judge, as the
case may be, shall accept any decision of a court of competent
jurisdiction in respect of the rights of the parties.
(7) No person, other than a tenure-holder or a lessee of the
tenure-holder whose right, title or interest in the surplus land
has been recognized under the provisions hereinbefore contained,
shall for purposes of this Act, be considered to have any right,
title or interest in the surplus land.
(8) The Collector may, at any time, after the publication of
the notification under sub-section (1) and subject to any order
passed under sub-sections (4) and (5) take possession of the
surplus land and may for that purpose use such force as may be
necessary.
Section 27. Settlement of surplus land.
1) The State Government shall settle out of the surplus land in a
village in which no land is available for community purposes or
in which the land as available is less than 15 acres with the
Gaon Samaj of the village so however that the total land in the
village available for community purposes after such settlement
does not exceed 15 acres. The land so settled with the Gaon
Samaj shall be used for planting trees, growing fodder or for
such other community purposes, as may be prescribed.
(2) Subject to the provisions of sub-section (1), where any
surplus land had immediately preceding the date of vesting in
the State under this Act, been held by a member of a co-
operative society, such land may, if the society so desires, be
settled by the State Government with the society.
(3) Any surplus Land remaining unsettled under the provisions
of the preceding sub-sections may be settled by the State
Government:
(a) If the remaining land is less than 15 acres in the village, with
a co-operative society of such tenure-holders, at least three-
fourths of whom are holders of less than 3? acres of land
each; and
(b) If the remaining land is more than 15 acres in the village, with
a co-operative society of landless agricultural labourers so
however that the total land allotted to such society, under this
clause, if equally divided between all the members would give to
each one not more than 3? acres of land.
(4) Any surplus land remaining after settlement under clause
(b) of sub- section (3) may be settled by the State Government
with any co-operative society no member whereof prior to such
settlement holds more than 3? acres of land in his own right.”
5. By an Amendment Act of 1972, being U.P. Act 18 of 1973, which
came into force on 8.6.1973, a wholesale substitution of various
Sections of the principal Act was carried out. This is for the simple
reason that the erstwhile scheme of determining surplus “fair quality
land” was now substituted by a scheme which determined surplus
irrigated land. Even the ceiling limit of such land was changed to
7.3 hectares of irrigated land, plus a maximum of 6 hectares of
additional land depending upon the size of the family. A new Section
13A was inserted conferring a power of review to the appellate
authority under the Act. The transitory provision contained in Section
19 of the 1972 Amendment Act then provided for abatement of
proceedings that were pending at the time of commencement of the
Amendment Act, with a saving of proceedings that had already become
final under the principal Act.
6. The relevant provisions of the U.P. Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972 are set out hereunder:-
“Section 3. Substitution of new sections for sections 3, 4, 5,
6, 7 and 8 of U.P. Act I of 1961. For sections 3, 4, 5, 6, 7 and
8 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960,
hereinafter referred to as the principal Act, the following
sections shall be substituted, namely:-
“…
4. Determination of area for purposes of ceiling and exemptions.
For purposes of determining the ceiling area under section 5 or
any exemption under section 6—
i) Subject to the provisions of clause (ii), one and one-half
hectares of unirrigated land or two and a half hectares of
grove-land or two and a half hectares of usar land shall
count as one hectare of irrigated land;
ii) two and a half hectares of any unirrigated land, in the
following areas, namely-
a) Bundelkhand;
b) trans-Jamuna portions of Allahabad, Etawah, Mathura and
Agra districts;
c) cis-Jamuna portions of Allahabad, Fatehpur, Kanpur,
Etawah, Mathura and Agra districts up to 16 kilometers
from the deep stream of the Jamuna;
d) the portion of Mirzapur district south of Kaimur Range;
e) Tappa Upraudh and Tappa Chaurasi (Balai Pahar) of Tahsil
Sadar in Mirzapur district;
f) the portion of Tahsil Robertsganj, in Mirzapur district
which lies north of Kaimur Range;
g) Pargana Sakteshgarh and the villages mentioned in lists
‘A’ and ‘B’ of Schedule VI to the Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1950, in hilly
patties of Parganas Ahraura and Bhagat of Tahsil Chunar
in Mirzapur district; and
h) the area comprised in the former Taluka of Naugarh or
Tahsil Chakia in Varanasi district;
i) hilly and Bhabar area of Kumaun and Garhwal Divisions
and Jaunsar Bawar Pargana of Dehra Dun district;
shall count as one hectare of irrigated land.
5. Imposition of ceiling.
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, throughout
Uttar Pradesh, any Land in excess of the ceiling area
applicable to him.
xx
(3) Subject to the provisions of sub-sections (4), (5) and (6),
the ceiling area for purposes of sub-section (1) shall be –
a) In the case of a tenure-holder having a family of not more than
five members, 7.30 hectares of irrigated land (including land
held by other members of his family), plus two additional
hectares of irrigated land or such additional land which
together with the land held by him aggregates to two hectares,
for each of his adult sons, who are either not themselves tenure-
holders or who hold less than two hectares or irrigated land,
subject to a maximum of six hectares of such additional land;
b) In the case of a tenure-holder having family of more than five
members, 7.30 hectares of irrigated land (including land held by
other members of his family), besides, each of the members
exceeding five and for each of his adult sons who are not
themselves tenure-holders or who hold less than two hectares of
irrigated land, two additional hectares of irrigated land or
such additional land which together with the land held by such
adult son aggregates to two hectares, subject to a maximum, of
six hectares of such additional land.
Explanation – The expression ‘adult son’ in clause (a) and (b)
includes an adult son who is dead and had left surviving behind
him minor sons or minor daughters (other than married daughters)
who are not themselves tenure-holders or who hold land less than
two hectares of irrigated land;
c) In the case of a tenure-holder being a degree college imparting
education in agriculture, 20 hectares of irrigated land;
d) In the case of a tenure-holder being an intermediate college
imparting education in agriculture, 12 hectares of irrigated
land;
e) In the case of any other tenure-holder, 7.30 hectares of
irrigated land.
Explanation – any transfer or partition of land which is liable
to be ignored under sub-sections (6) and (7) shall be ignored
also-
(p) for purposes of determining whether an adult son of a
tenure-holder is himself a tenure-holder within the meaning of
clause (a);
(q) for purposes of service of notice under section 9.”
Section 4. Amendment of Section 9.
Section 9, of the principal Act, shall be re-numbered as sub-
section (1) thereof, and after sub-section (1) as so re-
numbered, the following sub-section shall be inserted, namely –
“(2) As soon as may be after the enforcement of the Uttar
Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act,
1972, the prescribed authority shall, by like general notice,
call upon every tenure-holder holding land in excess of the
ceiling area applicable to him on the enforcement of the said
Act, to submit to him within 30 days of publication of such
notice, a statement referred to in sub-section (1).
(3) Where the tenure-holder’s wife holds any land which is
liable to be aggrieved with the land held by the tenure-holder
for purposes of determining of the ceiling areas, the tenure-
holder shall, along with his statement referred to in sub-
section (1) also file the consent of his wife to the choice in
respect of the plot or plots which they would like to retain as
part of the ceiling areas applicable to them and where his
wife’s consent is not so obtained, the prescribed authority
shall cause the notice under sub-section (2) of section 10 to be
served on her separately.”
Section 7. Insertion of new Section 13-A.
After Section 13 of the principal Act, the following section
shall be inserted, namely:-
13-A. Re-determination of surplus land in certain cases.
1) The prescribed authority may, at any time, within a period of
two years from the date of the notification under sub-section
(1) of section 14, rectify any mistake apparent on the face of
the record:
Provided that no such rectification which has the effect of
increasing the surplus land shall be made, unless the prescribed
authority has given a notice to the tenure-holder of its
intention to do so and has given him a reasonable opportunity of
being heard.
2) The provisions of sections 10, 11, 12, 12-A, 13, 14 and 15 shall
mutatis mutandis apply in relation to any proceeding under sub-
section (1), and for purposes of application of section 10, the
notice under the proviso to sub-section (1), shall be deemed to
be a notice under section 9.”
Section 19. Transitory provisions.
1) All proceedings for the determination of surplus land under
section 9, section 10, section 11, section 12, section 13 or
section 30 of the principal Act, pending before any court or
authority at the time of the commencement of this Act, shall
abate and the prescribed authority shall start the proceedings
for determination of the ceiling area under that Act afresh by
issue of a notice under sub-section (2) of section 9 of that Act
as inserted by this Act:
Provided that the ceiling area in such cases shall be determined
in the following manner:-
a) Firstly, the ceiling area shall be determined in accordance with
the principal Act, as it stood before its amendment by this Act;
b) Thereafter, the ceiling area shall be re-determined in
accordance with the provisions of the principal Act as amended
by this Act.
2) Notwithstanding, anything in sub-section (1), any proceeding
under section 14 or under Chapter III or Chapter IV of the
principal Act, in respect of any tenure-holder in relation to
whom the surplus land has been determined finally before the
commencement of this Act, may be continued and concluded in
accordance with the provisions of the principal Act, without
prejudice to the applicability of the provisions of sub-section
(2) of section 9 and section 13-A of that Act, as inserted by
this Act, in respect of such land.”
7. On 17.1.1975, the U.P. Imposition of Ceiling on Land Holdings
(Amendment) Act, 1974, being U.P. Act No.2 of 1975, came into force.
Interestingly, certain changes were made to the new legislative scheme
contained in the 1972 Amendment. This Act, except for Sections 1 and 9, was
brought into force with effect from 8.6.1973, which, as we have already
seen, was the date of coming into force of the 1972 Amendment Act. This
1974 Amendment Act only added to the new substituted scheme the concept of
“single crop land”. The relevant provisions of this Act are set out
hereinbelow:-
“Section 1. Short title and commencement.
1) This Act may be called the Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment) Act, 1974.
2) This Section and section 9 shall come into force at once, and
the remaining sections shall be deemed to have come into
force on June 8, 1973.
Section 4. Amendment of Section 4.
In section 4 of the principal Act, in clause (ii)
a) For the words “two and half hectares of any unirrigated land”,
the words “one and one-half hectares of single crop land or two
and a half hectares of any other un-irrigated land”, shall be
substituted;
b) At the end the following Explanation shall be inserted, namely :-
“Explanation – For the purposes of clause (ii), the expression
‘single crop land’ means any un-irrigated land capable of
producing only one crop in an agricultural year, in consequence
of assured irrigation from any State Irrigation Work or private
irrigation work.”
Section 9. Transitory Provision.
Where an order determining the surplus land in relation to a
tenure-holder has been made under the principal Act, before the
commencement of this Act, the prescribed authority may, at any
time within a period of two years from the commencement of this
Act, re-determine the surplus land in accordance with the
principal Act as amended by this Act.”
8. An Ordinance, which further amended the principal Act, came into
force on the 10th day of October, 1975. After the said Ordinance lapsed,
the third Amendment Act of 1976 was brought into force, being U.P. Act 20
of 1976, but with effect from the date of the Ordinance, namely,
10.10.1975. In this Amendment, various other changes were made with which
we are not directly concerned, except that the fate of this appeal hinges
on the correct construction of the transitory provision of this Act,
namely, Section 31. The relevant Sections of this Amendment Act are set
out hereunder:-
“Section 1. Short title and commencement.
1) This Act may be called the Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment) Act, 1976.
2) It shall be deemed to have come into force on October 10,
1975.
Section 8. Amendment of section 9.
In section 9 of the principal Act,-
a) In sub-section (2), the following proviso thereto shall be
inserted namely:-
“Provided that at any time after October 10, 1975, the
Prescribed Authority may by notice, call upon any tenure-
holder holding land in excess of the ceiling area applicable
to him on the said date, to submit to him within thirty days
from the date of service of such notice a statement referred
to in sub-section (1) or any information pertaining
thereto.”;
b) after sub-section (2) the following sub-section shall be
inserted namely:-
“(2-A) Every tenure-holder holding land in excess of the
ceiling area on January 24, 1971, or at any time thereafter
who has not submitted the statement referred to in sub-
section (2) and in respect of whom no proceeding under this
Act is pending on October 10, 1975 shall, within thirty days
from the said date furnish to the Prescribed Authority a
statement containing particulars of all Land—
a) held by him and the members of his family on January 24,
1971;
b) acquired or disposed of by him or by members of his family
between January 24, 1971 and October 10, 1975.”
Section 11. Amendment of section 14.
In section 14 of the principal Act-
a) for sub-section (2), the following sub-section shall be
substituted, namely:-
“(2) As from the beginning of the date of the notification
under sub-section (1), all such surplus land shall stand
transferred to and vest in the State Government free from all
encumbrances and all rights, title and interests of all
persons in such land shall, with effect from such date, stand
extinguished:
Provided that the encumbrances, if any, shall be attached to
the amount payable under section 17 in substitution for the
surplus land.”;
b) sub-section (3), (4), (5), (6) and (7) shall be omitted;
c) for sub-section (8), the following sub-section shall be
substituted, namely:-
“(8) The Collector may at any time after the publication of
the notification under sub-section (1) take possession of the
surplus land and also of any ungathered crop or fruits of
tree not being crops or fruits to which sub-section (1) of
section 15 applies, after evicting the tenure-holder or any
other person found in occupation of such land, and may, for
that purpose, use or cause to be used such force as may be
necessary:
Provided that a tenure-holder may, at any time
voluntarily deliver possession to the Collector over the
whole or any part of the land held by him which has been or
is likely to be declared surplus under and in accordance with
the provisions of this Act, and thereupon the provisions of
sub-section (2) shall apply to such land as they apply to any
surplus land specified in a notification under sub-section
(1).”
Section 31. Transitory Provisions.
1) All proceedings under sub-section (3) to (7) of section 14 of
the principal Act, as it stood immediately before the
commencement of the Uttar Pradesh Imposition of Ceiling on
Land Holdings (Amendment) Ordinance, 1976, pending before any
Court or authority immediately before the date of such
commencement shall be deemed to have abated on such date.
2) Where an order determining the surplus land in relation to a
tenure-holder has been made under the principal Act before
January 17, 1975 and the Prescribed Authority is required to
re-determine the surplus land under section 9 of the Uttar
Pradesh Imposition of Ceiling on Land Holdings (Amendment)
Act, 1974, then notwithstanding anything contained in sub-
section (2) of section 19 of the Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment) Act, 1972, every appeal
under section 13 of the principal Act or other proceedings in
relation to such appeal, preferred against the said order,
and pending immediately before the tenth day of October,
1975, shall be deemed to have abated on the said date.
3) Where an order determining surplus land in relation to a
tenure-holder has been made under the principal Act before
the tenth day of October, 1975, the Prescribed Authority (as
defined in the principal Act) may, at any time within a
period of two years from the said date, re-determine the
surplus land in accordance with the principal Act as amended
by this Act, whether or not any appeal was filed against such
order and notwithstanding any appeal (whether pending or
decided) against the original order of determination of
surplus land.
4) The provisions of section 13 of the principal Act shall
mutatis mutandis apply to every order re-determining surplus
land under sub-section (3) of this section or section 9 of
the Uttar Pradesh Imposition of Ceiling on Land Holdings
(Amendment) Act, 1974:
Provided that the period of thirty days shall, in the case of
an appeal against the order referred to in section 9 of the
Uttar Pradesh Imposition of Ceiling or Land Holdings
(Amendment) Act, 1974, be computed from the date of such
order or October 10, 1975, whichever is later.
5) The provisions of section 13-A of the principal Act shall
mutatis mutandis apply to every re-determination of surplus
land under the section or under section 9 of the Uttar
Pradesh Imposition of Ceiling on Land Holdings (Amendment)
Act, 1974.
6) Where any Assessment Roll has become final under sub-section
(4) of section 21 before the sixteenth day of February, 1976,
this same shall not be reopened, notwithstanding any
amendment made in Chapter III of the principal Act read with
the Schedule thereof by this Act.”
9. Given this thicket of statutory law made by the legislature of U.P.,
we have heard learned counsel on either side. Shri C.U. Singh, learned
senior advocate appearing on behalf of the appellants, has made several
submissions before us, but ultimately submitted that on a correct
construction of Section 31, the entire proceedings had abated, and that
therefore the appellate authority which passed an order dated 13.12.1987
had no jurisdiction to do so. He argued that a conjoint reading of Sections
31(2) and 31(3) would show that as all the requisite conditions of these
sub-sections had been fulfilled, the appeal preferred under section 13 of
the principal Act which was pending before the 10th day of October, 1975
shall be deemed to have abated on the said date. As no re-determination of
surplus land was made in accordance with the principal Act as amended by
the 1976 Amendment Act, according to learned counsel, the period of two
years having gone long ago and no re-determination having been made, the
surplus land that is said to have been determined by the prescribed
authority no longer has any legal sanctity. He made a faint argument that
under Section 19 of the 1972 amendment, proceedings had lapsed in any case,
but we were not inclined to accept that argument inasmuch as a general
notice under Section 9 of the Amendment Act had been given to the tenure-
holder which notice was not replied to by the said tenure-holder. This
being the case, Section 19 of the 1972 Act obviously cannot apply.
10. Learned senior counsel also cited before us two judgments of this
Court being State of Uttar Pradesh v. Mithilesh Kumari & Others, 1987
(supp.) SCC 21, and Mansoor Ali Khan & Others v. State of U.P. & Others,
(1992) 1 SCC 737. However, since these judgments have no direct
application to the facts of the present case, we do not consider it
necessary to deal with them.
11. Shri Garg, on the other hand, vehemently argued on behalf of the
State of U.P. that the conditions under Section 31(2) not having been met,
the said Section is inapplicable, and that being the case, the appellate
authority correctly went ahead and heard the matter on merits and dismissed
the appeal. His principal argument is that there are two conditions
precedent to the applicability of Section 31(2) of the 1976 Amendment Act.
First, there should be an order determining the surplus land which is made
under the principal Act before 17.1.1975; and second, the prescribed
authority must be required to re-determine surplus land under Section 9 of
the 1974 Amendment Act. In his submission the second pre-requisite is not
met on the facts of the present case. This, he argued, is because Section 9
of the 1974 Amendment Act gave a discretion to the prescribed authority who
“may re-determine surplus land” in accordance with the amendment made by
the 1972 Amendment. According to learned counsel, the occasion for re-
determination of surplus land on the present facts did not arise, as on
facts there is little or no un-irrigated land that needs to be converted
into irrigated land as per the formula contained in Section 4 of the 1972
Act, and that therefore the determination made in accordance with the 1972
Amendment Act, which was in fact made by the order dated 13.1.1975 would
lead to the conclusion that that order would stand and does not need to be
revisited.
12. The argument of learned counsel for the State, therefore, leads us to
analyze the four Acts in question a little closely. One thing becomes
clear at the outset: that the original statutory scheme of 1960 which spoke
of surplus “fair quality land” was substituted in its entirety by a
completely new and different scheme by the Amendment Act of 1972 read with
the Amendment Act of 1974. Both of these Acts, as has been noticed above,
with certain minor exceptions, came into force on the same date, namely,
8.6.1973. The new statutory scheme would necessarily involve “fair quality
land” being substituted by “irrigated land”, the ceiling area in the two
cases also being entirely different. This being the case, it is important
to now construe Section 9 of the 1974 Amendment Act in this backdrop. Be
it noted that Section 9 itself comes into force only on 19.1.1975. For
Section 9 to apply, an order has to be made determining surplus land in
relation to a tenure-holder before the commencement of the Amendment Act.
By Section 1(2), “this Section” and Section 9 both come into force at once
i.e. on 17.1.1975. The expression “this Section” refers to Section 1(1)
which in turn refers to the Act as the U.P. Imposition of Ceiling on Land
Holdings (Amendment) Act, 1974. This being the case, it is clear that the
Act has commenced only on 17.1.1975, even though a number of Sections shall
be deemed to have come into force retrospectively i.e. on 8.6.1973. The
order passed by the prescribed authority being on 13.1.1975, the first
condition of Section 9 is met, namely, that this order has been passed
before 17.1.1975. It is the second part of the Section on which a lot of
the debate featured. According to learned counsel for the State a
discretion is vested in the prescribed authority by use of the expression
“may”. We may hasten to add that the very expression “may at any time
within a period of two years…” also occurs in Section 31(3) of the U.P.
Imposition of Ceiling on Land Holdings (Amendment) Act, 1976. This sub-
section makes it clear that the expression “may” goes along with the words
“at any time within a period of two years…” as it is clear that on a
correct reading of the sub-Section, the prescribed authority has, in every
case, to re-determine surplus land if an order determining surplus land has
been made before the 10th day of October, 1975. The idea is that a period
of two years is given to re-determine surplus land in accordance with the
principal Act as amended by the U.P. Imposition of Ceiling on Land Holdings
(Amendment) Act, 1974. This being the case, it is clear that no discretion
is vested in the prescribed authority to re-determine surplus land.
Surplus land has, in all cases, to be re-determined, as a completely
different and new scheme applicable to all lands has replaced the existing
scheme. The only exception is where, prior to 8.6.1973, a determination of
surplus land has been made finally, that is, an appeal has been disposed of
under Section 13.
13. The matter may be looked at from a slightly different angle. Section
19 of the 1972 Amendment Act, which is a transitory provision, provides for
abatement of proceedings that are pending on the commencement of the said
Act. We have already indicated that the pending proceedings of 1967 had to
start afresh on the issue of a general notice under Section 9(2) as
inserted by the Amendment Act of 1972, which was in fact done. Thus, the
13.1.1975 order is a consequence of section 19(1) of the Act. Section
19(2) on facts has no application for the simple reason that surplus land
had not in this case been determined finally before commencement of the
1972 Act – that is, an appeal had not been decided under Section 13 of the
principal Act prior to this date.
14. This brings us then to the transitory provision contained in the U.P.
Imposition of Ceiling on Land Holdings (Amendment) Act, 1976. Under
Section 31(2), clearly, the order determining the surplus land in the
present case had been made four days before 17.1.1975 and thus the first
condition or pre-requisite for the application of the Section is met. The
second pre-requisite is also met for the simple reason that Section 9 of
the 1974 Act, which forms part of the same legislative scheme as the 1972
Amendment Act, would apply for the reason that an order determining surplus
land had been made prior to commencement of the said Act, namely,
17.1.1975, (which happens to be the same as the first pre-requisite for the
application of Section 31(2) of the Amendment Act of 1976). This being the
case, the language of Section 31(2) makes it clear that every appeal
preferred against such orders and pending immediately before the 10th day
of October, 1975, shall be deemed to have abated on the said date. On
facts, we are informed that an appeal had been filed prior to this date.
15. This being the case, it was necessary for the prescribed authority to
re-determine surplus land under Section 31(3) in accordance with the
principal Act as amended by the 1976 Act, for which purpose, the provisions
of section 13 of the principal Act shall apply mutatis mutandis to every
order re-determining surplus land under sub-section 3 of this Section or
Section 9 of the 1974 Amendment Act – (vide Section 31(4) of the 1976
Amendment Act). This never having been done on facts in the present case,
it is clear that the appeal filed in 1975 has abated and could not
therefore have been heard by the Additional Commissioner, Agra on merits.
This being so, the judgment and order passed by the Commissioner dated
13.12.1975 is without jurisdiction.
16. It only remains to consider the reasoning of the appellate authority
and the High Court. Both the appellate authority and the High Court were
of the view that no fresh notice had been issued under Section 9(2) of the
U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972. It has
been pointed out to us, on facts, that in fact such a notice had been
issued on 24.11.1975. Despite this, the appellate authority and the High
Court, in their anxiety to decide against abatement, have wrongly held no
such notice was proved to have been issued. Be that as it may, it is clear
that abatement under Section 31 does not depend upon the issuance or non-
issuance of any notice under Section 9(2) as amended. This being the case,
the finding of fact of non-issuance of notice itself being a non-issue, it
is unnecessary for us to pursue the same. It is only necessary to reiterate
that no fresh exercise under the 1976 Amendment Act was undertaken by the
prescribed authority as is required by section 31(3) of the 1976 Amendment
Act. This being the case, the impugned judgment of the High Court has
necessarily to be set aside. The appeal is, therefore, allowed with no
order as to costs.
……………………J.
(Dipak Misra)
……………………J.
New Delhi; (R.F. Nariman)
August 8, 2016
