STATE OF UTTAR PRADESH Vs. CIVIL JUDGE NAINITAL

JUDGEMENT

(1.) Smt. Amna Begum was a resident of Rehpura viilage, Tehsil Kichha, District Nainital in the State of Uttar Pradesh. She owned a fairly large extent of agricultural land. On 8-6-1973 the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 came into force. Section 5 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as 'the Act') provided that on and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 no tenure-holder would be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him or her. The expression 'ceiling area' is defined in sub-section (2) of section 3 of the Act as the area of land not being exempted under the Act, determined as such in accordance with the provisions of section 5 thereof. Since Smt. Amna Begum, the tenure-holder, was holding in the aggregate in the State of Uttar Pradesh land in excess of the ceiling area applicable to her, she became liable to surrender the surplus land, i.e., the land held by her in excess of the ceiling area, applicable to her, in favour of the Government under the Act. A general notice was issued under section 9 of the Act to all tenure-holders holding land in excess of the ceiling area for submission of statements in respect thereof. She did not file any statement before the Prescribed Authority as provided by section 9 of the Act. After the publication of the said general notice but before she could be served with a notice under section 10(2) of the Act to submit her statement, Smt. Amna Begum died. The Prescribed Authority who had no knowledge of the death of Smt. Amna Begum. however, issued a notice addressed to her under section 10(2) of the Act calling upon her to show cause within the period specified in the notice why the statement prepared by him under section 10(1) of the Act should not be taken as correct. The said notice could not, no doubt, be served on her, but one Fazal Ahmad, the father of Shams Ahmad - respondent No. 4, who was one of the heirs of Smt. Amna Begum filed objections before the Prescribed Authority to the notice issued under section 10(2) of the Act. The Prescribed Authority overruled the said objections and declared that Smt. Amna Begum was holding 17.37 hectares of land as surplus land by his order dated November 29, 1975. Aggrieved by that order Fazal Ahmad, since deceased. and Shams Ahmad, son of Fazal Ahmad filed an appeal in Ceiling Appeal No. 541 of 1975 before the Ditrict Judge, Nainital. That appeal was allowed on February 14, 1977. The order against which the appeal had been filed was set aside and the case was remanded to the Prescribed Authority to issue fresh notice to the tenure-holders concerned, if necessary. The reason given in the order passed by the District Judge, Nainital for allowing the appeal was that the tenure-holder, Smt. Amna Begum was dead by the time the notice under section 10(2) of the Act was issued and the order of the Prescribed Authority passed against a dead person could not be allowed to stand. The learned District Judge did not record any other finding on the merits of the case. After remand the case was enquired into by the Prescribed Authority. In that proceeding fresh notices under section 10(2) of the Act was issued to the heirs of Smt. Amna Begum. Smt. Sharifan Begum, respondent No. 3, one of the heirs of Smt. Amna Begum appeared before the Prescribed Authority and contended inter alia that she held only 91.12 bighas of land in village Rehpura, as her one-fourth share in the estate of Smt. Amna Begum along with the other heirs of Smt. Amna Begum. She also pleaded that 12 acres of land had been transferred in favour of Daulat Ram and Prem Nath through registered sale deed for adequate consideration, the transfer was in good faith and, therefore, the said extent of land should be excluded from the holding while determining the surplus land. She further contended that the determination of the surplus land should be made on the basis of the share held by each of the heirs of Smt. Amna Begum treating each of them as an individual tenure-holder entitled to land equal to one ceiling area in the estate of Smt. Amna Begum as she had died prior to the service of the notice. The Prescribed Authority accepted the contentions urged on behalf of the heirs of Smt. Amna Begum and found that there was no surplus land that could be claimed from the holding in question since none of the heirs of Smt. Amna Begum was in possession of the land in excess of the ceiling area. Against the order of the Prescribed Authority, the State Government filed an appeal before the Civil Judge, Nainital in Civil Appeal No. 32 of 1981. The learned Civil Judge dismissed the appeal holding that Smt. Amna Begum could not be treated as a tenure-holder after her death and that after her death each of the heirs of Smt. Amna Begum should be treated as an independent tenure-holder entitled to one unit of ceiling area for purposes of determination of the surplus land. He agreed with the Prescribed Authority that since none of the heirs of Smt. Amna Begum was holding the land in excess of the ceiling area, they were not liable to surrender any surplus land. The learned Civil Judge also held that the contention urged on behalf of the State Government that Smt. Amna Begum who was alive on 8-6-1973 which was the relevant date for determining the surplus land should be treated as the tenure-holder could not be maintained because the said contention was barred by res judicata on account of the decision of the District Judge, Nainital in Ceiling Appeal No. 541 of 1975, under which the case had been remanded earlier to the Prescribed Authority for fresh disposal. The appeal filed by the State Government was, therefore, dismissed. Aggrieved by the decision of the learned Civil Judge, Nainital, the State Government filed a writ petition before the High Court. That writ petition was dismissed by the learned Judge, who heard it by his order dated August 30, 1982. The only reason given by the learned Judge, who heard the writ petition, for dismissing it was that the State Government was not entitled to question the correctness of the orders of the Prescribed Authority and the Civil Judge as the order of remand of the case passed by the District Judge had become final and the contentions of the State Government were barred by the rule of res judicata. This appeal by special leave is filed against the order of the High Court dismissing the writ petition.

(2.) At the outset it should be stated that the reason given by the High Court for holding that the contentions urged on behalf of the State Government were barred by the rule of res judicata is wholly untenable since the learned District Judge, who disposed of the appeal on 14-2-1977 had not recorded any finding on the merits of the contentions of the parties. He had set aside the order of the Prescribed Authority passed earlier only on the ground that a proceeding which had been commenced against a dead person was a nullity. He, however, remanded the case to the Prescribed Authority for fresh disposal in accordance with law after issuing notices to the heirs of Smt. Amna Begum whom he wrongly described as tenure-holders so far as the estate of Smt. Amna Begum was concerned. The High Court was, therefore, wrong in dismissing the writ petition on that ground. As regards the contention urged on behalf of respondents Nos. 3 to 5 Smt. Sahrifan Begum, Shams Ahamad and Smt. Ahmadi Begum who were the heirs of Smt. Amna Begum, namely, that for purposes of computation of the surplus land in their hands the relevant date that should be taken into consideration is the date on which such computation was made and not the date on which the ceiling was imposed by section 5 of the Act it has to be stated that the orders of the Prescribed Authority and the Civil Judge passed after the order of remand are wholly erroneous.

(3.) Smt. Amna Begum was alive on 8-6-1973 on which date the ceiling on the holdings in the State of Uttar Pradesh was imposed by section 5 of the Act. Smt. Amna Begum became liable to surrender the surplus land in her hands in excess of what she could retain in accordance with that section. Merely because she had died before the issue of the notice under section 10(2) of the Act her liability to surrender the surplus land would not come to an end. Rule 19 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Rules, 1961 framed under the Act provides that where a tenure-holder dies before the publication of the general notice under section 9 of the Act, such publication shall be deemed to apply to the executor, administrator or other legal representatives and the Prescribed Authority may proceed to determine the ceiling area applicable to the deceased person as if such executor, administrator, or other legal representatives were the tenure-holder. It also provides that where a tenure-holder dies before he is served with a notice under sub-section (2) of section 10 of the Act, the Prescribed Authority may serve such notice on his executor, administrator or other legal representatives and may proceed to determine the ceiling area applicable to the deceased person as if such executor, administrator, or other legal representatives were the tenure-holder.