JHANDOO Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS petition raises important questions arising under the provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred as the Act). The petitioner contested the notice issued under section 10 (2) of the Act for redetermination of surplus land and claimed that in Consoli dation proceedings the total area of land held by him was reduced from 37 Bighas 3 Biswas and 15 Biswansis to 29 Bighas 1 Biswa and 1 Biswansi. As such there was no surplus land. In any case notice was bad regarding plot nos. 96 (1 Bigha 4 Biswas) and 594 (2 dighas and 14 Biswas). Plot no. 96 was abadi and was owned by Smt. Swarn Devi (wife of the petitioner) and plot no. 594 was grove. The objection raised on behalf of the petitioner did not find favour either by the Prescribed Authority or the I Additional District Judge. According to Sri G.N. Verma, counsel for the petitioner the Pres cribed Authority committed an error of jurisdiction in determining the ceiling area by taking into consideration the land held by him on 8-6- 1973. He maintains that the area having been reduced the Prescribed Authority should have proceeded on the basis of order passed by Consolidation Courts. He argues if the surplus area of 7 Bighas 10 Biswas and 18 Biswansis is taken from 29 Bighas 1 Biswa and 1 Biswansi, his ceiling area shall be less than that fixed by the Act itself. The answer to the problem raised in the petition shall depend on the question whether order passed by the Consolidation Courts is final regarding the area held by the petitioner. And the date for determina tion of ceiling area is 8-6-1973 or the date when the objection is decided. The learned Standing Counsel has relied on section 38-B of the Act added by Act 20 of 1976 and has urged that finality of any order passed by any Court except the ceiling has been taken away. And, there fore, the order passed in Consolidation proceedings did not have the force of res judicata. He maintains that a combined reading of section 31 and its various sub-clauses read with section 38-B leaves no room for doubt that section 31 permits reopening of all matters decided earlier, by ceiling authorities and section 38-B lifts the bar of conclusiveness of any judgment, finding or issue given by any Court, tribunal or autho rity. Sri Verma on the other hand severely criticised the enactment of this section. According to him, the Legislature instead of accepting the interpretation put by the Supreme Court in Agricultural and Industrial Syndicate Ltd. v. State of U.P. A.I.R. 1974 S.C. 1920, came out in its usual hats, with an amendment which, if the interpretation of Standing counsel is accepted, it creates a situation of uncertainty and chaos. He argued that such legislations do not only obscure the objective for which the Act was enacted but also bring untold misery and hardhsip to the agriculturist class who are all the time living on a State of uncertainty. According to him these retrospective enactments are against the spirit of the Act and are responsible for huge arrears in law Courts and denial of justice. Sri Yudhishthir has however, rightly point out that these are matters of policy with which this Court is not concerned. Section 38-B of the Act reads as follows: "No finding or decision given before the commencement of this section in any proceeding or on any issue (including any order, decree or judgment) by any Court, tribunal or authority in respect of any matter governed by this Act, shall bar retrial of such proceeding or issue under this Act, in accordance with the provisions of this Act as amended from time to time." If the interpretation, as suggested by the Standing Counsel is accepted it may create anomaly. The present case demonstrates it in full measure. The total area held by the petitioner on 8-6-1973, the date after which a tenureholder cannot hold any land in excess of ceiling area, was more than the ceiling area fixed by the Act. But as result of the ceiling recorded by the Consolidation Courts the area has been reduced to such an extent that nothing remains to be declared as surplus land. The finding recorded by the Consolidation Courts is binding on the petitioner. He cannot agitate or challenge in any competent civil or revenue court and urge that the area which has been reduced as a result of Consolidation is incorrect and the original area should be restored to him. The effect of section 38-B on the one hand shall be to destroy the finality of an order passed under the Consolidation of Holdings Act for purposes of determination of ceiling area yet the order remains binding on the petitioner under section 49 of the Consolidation of Holdings Act. Such an anomaly could not have been intended by the Legislature. The argument, therefore, that any finding or issus recorded by any Court can be reopened does not appear to be sound. As pointed out in Civil Misc. Writ No. 734 of 1977 decided on 18-5-1977, Since re ported in 1977 (3) A.L.R. 409 it is the finding recorded in a ceiling case decided before October, 1975, that shall not operate as res-judicata. The question then is whether the Prescribed Authority or the lower appellate court have committed any error of law in determining the ceiling area of the petitioners. Sub-section (2) of section 9, casts a duty on every tenureholder holding land in excess of ceiling applicable to him on the enforcement of U.P. Imposition of Ceiling on Land Hold ings Act (Amendment Act XIX of 1972) to submit within 30 days of publication a statement to the Prescribed Authority as provided in sub section (1) of section 9 of the Act. Incase the petitioner fails to dis charge the legal obligation placed on him by the provision contained in section 9 the Prescribed Authority is empowered under section 10 of the Act to prepare a statement and call upon a tenure holder to show cause why the statement prepared by him be not accepted as correct. Admit tedly a notice was issued in this case under section 10 as the petitioner did not file any return as required under section 9, The statement is required to be prepared by the Prescribed Authority in C L.H. form 3 and a notice is served on the tenureholder in C.L.H. form 4 C.L.H. form 1 requires every tenureholder to submit a statement regarding the land in excess of the ceiling area applicable to him on 8-6-1973. The Prescribed Authority was, therefore, justified in taking into account the land held by the petitioner on 8-6-1973. But while determining the ceiling area the Prescribed Authority could not ignore that the tenure holder held an area lesser than what was held by him on 8-6-1973. That the area was reduced not due to the petitioner's fault or any voluntary transfer which has to be ignored in accordance with the provisions of the Act. It was done as a matter of law in accordance with the provisions of Consolida tion of Holdings Act, the findings and proceedings of which are binding on the petitioner. What was required to be determined by the Pres cribed Authority was that the petitioner did not hold any land in excess of ceiling area after 8-6-1973. In case as a result of the proceedings under the Consolidation of Holdings Act the area of the petitioner was reduced to such an extent that no surplus land remained with the petitioner, the Prescribed Authority committed an error in declaring the surplus land taking the position as it stood on 8-6-1973. The Prescribed Authority has found that plot No. 594 is not grove. The basis for this finding is two fold, namely, that the trees were planted after 24-1-1971 and the Consolidation records in which the plot is entered as grove were pared after 8-6-1973. Both the reasons given by the Pres cribed Authority are irrelevant. Section 5 of the Act ignores transfers after 24-1-1971 for determining ceiling area. The plaintiff of grove is not a transfer. The entry as grove in Consolidation records should not be ignored merely because it was done after 8-6-1973. Even if by virtue of section 38-B the proceedings under Consolidation of Holdings Act do not operate as res-judicata it does not loses its evidentiary values. The Court below should have recorded a finding on evidence as to the nature of the land. THIS they have failed to do. It is not disputed that plot no. 96 is Abadi of petitioner's wife. As argued by the learned Standing Counsel in view of the definition of tenure holder in section 3 (17) which runs as under: "Tenureholder" means a person who is the holder of a holding but (except in Chapter HI) does not include- (a) A woman whose husband is a tenureholder, (b) A minor child whose father or mother is a tenureholder." the land belonging to wife had to be clubbed with the land of the husband for determining ceiling area. The question however, is whether abadi land held in the name of husband or wife can be considered at all for the purposes of determining the ceiling area. Sub-section (2) of Section 3 of the Act defines ceiling area as under: "Ceiling area means the area of land, not being land exempted under this Act, determined as such in accordance with the provisions of section 5." A perusal of the definition clearly indicates that for purposes of determining ceiling area what has to be considered is the 'land'. It is the land not exempted under the Act which cannot be held by a tenure- holder in excess of ceiling area. And a tenure-holder means a person who is a holder of holding. Holding has been defined in sec tion 3 (9) as under: "Holding means the land or lands held by person as a Bhumidhar, Sirdar Asami of Gaon Sabha or an Asami, mentioned in section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or as a tenant under the UP. Tenancy Act, 1939, other than a sub-tenant, or as a Government lessees or as a sub-lesses of a Govern ment lessee, where the period of the sub-lease is co-extensive with the period of the lease." It embraces in its fold only that the land which is held by Bhumi dhar, Sirdar or Asami. Under the provisions of Zamindari Abolition and Land Reforms Act No. 1 of 1951 no person becomes Bhumidhar Sirdar or Asami of an abadi land. The land which was entered as abadi of the petitioner's wife was, therefore, not in the holding of either the petitioner or his wife. The petitioner cannot be considered to be a tenure-holder of this land. The lower appellate court rejected the claim of the petitioner as there was no residential house on the land. He appears to have considered the petitioner's case in the light of the exemp tion granted to a residential house standing on the land in the light of the definition contained in section 6 (b) of the Act. He completely misunderstood the objection raised on behalf of the petitioner. Clause (b) of sub-section (6) did not apply. It was not a land which formed part of a holding and therefore, the petitioner was not a tenure-holder of the land for the purposes of this Act nor did the petitioner claim any exemption under section 6 (b) of the Act. The existence or non-existence of a building on the abadi land was, therefore, immaterial. In view of what has been stated above this petition is allowed and the orders passed by the opposite parties Nos. 2 & 3 are quashed Respondent No. 3 is directed to decide the objections afresh in the light of the observations made above. The petitioner shall be entitled to its cost.