SWAMIDIN Vs. STATE OF U P

JUDGEMENT

(1.) B. Dikshit, J. A notice to petitioner under Section 29 (b) of U. P. Imposition of Ceiling on Land Holdings Act, 1960 (in short Act') has given rise to this writ petition.

(2.) THE facts relevant for the purpose of present writ petition are that as the petitioner held land more than ceiling area after enforcement of U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 a notice was issued to him under Section 10 (2) of the Act wherein it was stated that the petitioner was pos sessed of 3. 31 Hectares of irrigated land beyond his ceiling limit. THE petitioner contested the notice. One of the questions which arose for consideration before Prescribed Authority at that stage was in respect of number of members in the family of petitioner for determining his ceiling area. THE State claimed that Smt. Halki was not wife of petitioner, whereas petitioner's case was that he being wife of the petitioner was to be counted in family of petitioner. By its order dated 25-1-75 the Prescribed Authority accepted the case of petitioner to the effect that Smt. Halki was the wife of petitioner and without going into other questions considering that there were seven members in the family of petitioner, held petitioner entitled to hold 11. 30 Hectares land whereas the petitioner's total holding was only 10. 61 Hectares. Being aggrieved, the State filed an appeal. THE District Judge, Banda as appellate Court held Smt. Halki to be wife of petitioner and dismissed the appeal by order dated 22-11- 75. After amendment of the Act in the year 1976 a fresh notice was issued to the petitioner wherein 50- 10-5 Bigha land of petitioner was declared surplus. Being beyond the ceiling limit of petitioner, by the Prescribed Authority by order dated 4-12-1976 against which an appeal was preferred by petitioner. THE appellate court by order dated 18-2-77 allowed the appeal and set aside the order passed by Prescribed Authority. THE result of it was that no land of petitioner was declared surplus in proceedings under Section 10 (2) of the Act which became final. THE present proceeding has arisen on the basis of a notice dated 23-11-1982 issued under Section 29 (b) as according to State certain land of petitioner became irrigated as a result of irrigation from State Irrigation Works. THE petitioner contested notice by filing objection on 24-1-1988. He claimed that one of his wife, Smt. Sumitra, had died and rest of the members of family, who were there during determination of notice under Section 10 (2) and the appeal therefrom were alive. He further claimed that his daughters who were members of his family, namely, Sudama and Ramkali have been married and have gone out of the family but Km. Kalpatia and Km. Hira, who were born after decision in earlier ceiling proceedings, were therefor the purpose of being counted as members of his family. Certain other pleas were also raised. THE objection of petitioner was rejected by Prescribed Authority by order dated 30-4-86 whereby he declared 87 Bigha 9 Biswa as surplus. THE Prescribed Authority while determining the ceiling area of petitioner held that Smt. Halki was not married to petitioner and she was not his wife and, therefore, she and her children cannot be considered to be family members of petitioner. THE Prescribed Authority considered the family of petitioner with reference to 8-6-1973, the date on which Amending Act of 1972 was enforced. He decided other questions also against the petitioner. Aggrieved from the order passed by Prescribed Authority the petitioner filed an appeal which was dismissed by Additional Commissioner, Jhansi Division, Jhansi. THE appellate court determined the number of members in the family of petitioner with reference to 8-6-1973 and after ignoring the sale-deeds executed on 31-10-77 by petitioner in favour of Sriram and Kunwar Lal and after repelling the contention of petitioner that Smt. Halki was his wife, dismissed the appeal. Aggrieved, the petitioner has come in this petition.

(3.) THE learned standing counsel for the State has argued that Section 29 has been made applicable mutatis mutandis to the proceedings for redetermination ac cording to provisions of the Act and as Section 12 dealing with determination of surplus land provides for filing of objection under Section 10 (2), it is that date which would be relevant. I am not inclined to accept the contention raised. THE learned counsel for petitioner has argued that the words "mutatis mutandis" mean that the relevant provisions are to be applied with necessary changes and necessary alterations. In respect of use of words "mutatis mutandis", according to words and phrases permanent edition, it mean - "with necessary changes in detail to conform to a single vital change". THE words "mutatis mutandis" also come for consideration before Hon'ble Supreme Court in the case of Ashok Service Center v. State of Orissa, 1983 (2) SCC 82, wherein while dealing with the said words the Hon'ble Supreme Court has observed : "before considering that provisions of the principal Act should be read as part of the Act, we have to understand the meaning of the expression 'mutatis mutandis'. Earl Jowitt's Tne Dictionary of English Law (1959) defines 'mutatis mutandis' as 'with the necessary changes in points of detail, Black's Law Dictionary (Revised 4th Edn, 1968) defines ''mutatis mutandis' as "with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices and the like Housman v. Waterhouse". In Bouvier's Law Dictionary (3rd Revision, Vol. II), the expression 'mutatis mutandis' is defined as "the necessary changes. This is a phrase of fre quent practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices and the like". Extension of an earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary, for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act. " From the above it is apparent that the words "mutatis mutandis" used in statute means that the application of provisions will be with necessary changes and it cannot be adopted as if it is to be read as it is.