SHEO CHANDRA PATHAK Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) BY this writ petition an order of the Prescribed Authority and the appellate order passed by the Civil Judge, Etawah, declaring some land of the petitioners to be surplus under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) are sought to be quashed. Three points have been raised by counsel for the petitioners in support of his writ petition. Firstly it has been urged that five sale-deeds executed by Sheo Chandra Pathak, petitioner (since deceased) (hereinafter referred to as Sheo Chandra Pathak) on various dates after 24th January, 1971, have erroneously been ignored while determining the petitioner's ceiling area. In my opinion there is no substance in this submission. All these sale-deeds having been executed after 24th January, 1971, had to be ignored in view of sub-section (6) of Section 5 of the Act unless it was established that they had been executed in good faith and for adequate consideration. Four of these sale-deeds had been ignored even by the Prescribed Authority on the finding that Sheo Chandra Pathak had failed to establish that they had been executed in good faith and for adequate consideration. In respect of the fifth sale-deed, however, the Prescribed Authority came to the conclusion that it had been executed in good faith and for adequate consideration. Against the order of the Prescribed Authority one appeal was filed by the State of U. P. against that part of the finding of the Prescribed Authority whereby it had held one of the sale-deeds to be executed in good -faith and for adequate consideration. Another appeal was filed by Sheo Chandra Pathak declaring his land to be surplus. The appeal filed by Sheo Chandra Pathak was dismissed whereas the appeal filed by the State of U. P. was allowed by the Civil Judge. The Civil Judge held that all the five sale-deeds deserved to be ignored inasmuch as Sheo Chandra Pathak had failed to establish that they had been executed in good faith and for adequate consideration. In coming to this conclusion the Civil Judge has relied on various circumstances and in my opinion the order of the Civil Judge does not surfer from any such error in recording this finding which may justify inerference under Article 226 of the Constitution. The second submission made by counsel for the petitioners was that plot no. 492 constituted grove land and the Prescribed Authority and the Civil Judge have committed a manifest error of law in taking a contrary view. I find myself unable to agree with this submission either. On the basis of the material on record the Prescribed Authority held that an area of '82 acre out of the whole area of plot no. 492 only constituted grove land and treated that such area as grove land in determining the ceiling area of Sheo Chandra Pathak. The Civil Judge has agreed with this finding of the Prescribed Authority and has come to the conclusion that there was no convincing evidence on record to show that the remaining area also constituted grove land. In this connection the Civil Judge has also emphasised on the circumstance that the remaining area was cultivated and actually two crops were grown over it. In view of the findings recorded by the Prescribed Authority and the Civil Judge it cannot be held that the entire area of plot no. 492 constituted grove land. Lastly it was urged that a portion of plot no. 109 had been acquired temporarily under the Land Acquisition Act and that much area should have been excluded from consideration while determining the ceiling area of Sheo Chandra Pathak. Reliance in support of this submission has been placed on Section 5(2) of the Act. For purposes of appreciating this submission it is necessary to keep in mind not only Section 5(2) of the Act but also Section 5(1) thereof. These two sub-sections, except Explanation I and Explanation II of sub-section (1) which are relevant for considering the plea raised by counsel for the petitioners read:- "Imposition of Ceiling:- (1) On and from the commecement 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 ceiling area applicable to him. (2) Nothing in sub-section (1) shall apply to land held by the following classes of persons, namely;- (a) the Central Government, the State Government or any local authority or a Government Company or a Corporation; (b) a University; (c) an intermediate or degree college imparting education in agriculture or a post-graduate college; (d) a banking company or a co-operative bank or a co-operative land development bank; (e) the Bhoodan Yagna Committee constituted under the U. P. Bhoodan Yagna Act, 1952. It was urged that the portion of plot no. 109 which was temporarily acquired would be deemed to be held by the State Government within the meaning of clause (a) of Section 5(2) of the Act and consequently this should not have been taken into consideration while determining the ceiling area of Sheo Chandra Pathak under Section 5(1) of the Act. I find it difficult to accept this submission. In view of Section 5(1) of the Act no tenure-holder is entitled to hold in aggregate throughout Uttar Pradesh any land in excess of the ceiling area applicable to him on and from the commencement of the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972. In my opinion sub-section (2) of Section 5 contains an exception. Just as Section 5(1) applies to a tenure-holder, Section 5(2) also applies to a tenure-holder only. If any of the persons enumerated in clauses (a) to (e) of Section 5(2) of the Act is a tenure-holder and is holding land in excess of the ceiling area as a tenure-holder on the relevant date mentioned in Section 5(1) of the Act nothing in sub-section (1) shall apply to the land held by such person. Tenure-holder" has been defined in Section 3(17) of the Act. According o the said definition "tenure-holder" means a person who is the holder of a holding, but (except in Chapter III) does not include (a) woman whose husband is a tenure-holder, (b) a minor child whose father or mother is a tenure-holder. "Holding" has been defined in Section 3(9) of the Act. It means the land or lands held by a person as a bhumidhar, sirdar, asami of Gaon Sabha or an asami'tnentioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or as a tenant under the U. P. Tenancy Act, 1939 other than a sub-tenant, or as a Government leases. Or as a sub-lease of a Government leases, where the period of the sub-lease is co-extensive with the period of the lease. Sheo Chandra Pathak was admittedly the tenure-holder of the entire plot no. 109. If Sheo Chandra Pathak was a tenure-holder on the relevant date contemplated by Section 5(1) of the Act of the entire plot no. 109, the area of the whole plot will be taken into consideration for purposes of determining his ceiling area. It is only if it can be held that the right of Sheo Chandra Pathak as tenure-holder had extinguished on the relevant date in respect of any portion of the said plot then that portion certainly cannot be taken into consideration while determining his ceiling area. The question which, therefore, arises for consideration is whether, on account of the temporary acquisition of a portion, of plot no. 109, it can be said that the rights of the petitioner in respect of that portion stood extinguished on the relevant date or not. It is not clear whether the petitioner was trie bhumidhar or sirdar of plot no. 109. However, it is not relevant for purposes of determining the question raised. The contingencies in which the interest of a bhumidhar or a sirdar gets extinguished are contained in Sections 189 and 190 of the U. P. Zamindari Abolition aqd Land Reforms Act, Clause (b) of Section 189 and clause (d) of Section 190 contemplate extinguishment of rights when the land comprised in the holding has been acquired under any law for the time being in force relating to acquisition of land. The crucial question which, therefore, arises for consideration is whether a temporary acquisition under the Land Acquisition Act will fall within the two clauses aforesaid or not. In my opinion apparently this would not fall within these two clause. Indeed the Land Acquisition Act does not speak of temporary acquisition of land. The provision under which possession over the petitioner's land in respect of which the submission under consideration has been made by counsel for the petitioners was taken by the State Government was Section 35 of the Land Acquisition Act. This section is in Part VI of this Land Acquisition Act which deals with temporary occupation of the land. It reads:- "35. (1) Subject to the provisions of Part VII of this Act, whenever it appears to the appropriate Government that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a Company, the appropriate Government may direct the Collector to procure the occupation and use of the same for such term as it shall think fit, not exceeding three years from the commencement of such occupation. (2) The Collector shall thereupon give notice in writing to the persons interested in such land of the purpose for which the same is needed, and shall, for the occupation and use thereof for such term as" aforesaid, and for the materials (if any) to be taken therefrom, pay to them such compensation, either in a gross sum of money, or by monthly or other periodical payments, as shall be agreed upon in writing between him and such persons respectively. (3) In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector shall refer such difference to the decision of the Court. When the Government temporarily occupies the land of a tenure-holder under Section 35 of the Act it cannot be said that the said land has been acquired by the Government. The tenure-holder continues to be the tenure-holder of the said land. He only remains out of possession for the period during which the land is temporarily occupied by the Government, and is said compensation for being so kept out of possession. He, however, as already pointed out, continues to be the tenure-holder. In this view of the matter notwithstanding the temporary occupation of the land by the Government under Section 35 of the aforesaid Act, Sheo Chandra Pathak continued to be the tenure-holder thereof for purpose of determination of the ceiling area under Section 5(1) of the Act. Counsel for the petitioners urged that the word 'held' as used in Section 5(2) of the Act contemplated only lawful possession. He placed reliance on Budhan Singh v. Bali Bux(A. I. R. 1970 S. C. 1880. 99), where it was held that the word 'held' as used in Section 9 of the U. P. Zamindari Abolition and Land Reforms Act means "lawfully held". In that case the question which come up for consideration was whether the land in possession of a trespasser could be treated as land 'held' within the meaning of section 9 and it was held that a trespasser was not entitled to get the benefit of Section 9. It was, however, not held in that case that a person whose possession may be lawful would invariably have some sort of a title in the land. The possession of a licence cannot be said to be unlawful but a licence has no title in the land. As already pointed out above Section 5(2) also contemplated only a tenure-holder. A person simply because he may be in lawful possession will not necessarily become a tenure-holder. Further the term "tenure-holder" stands defined in the Act and in view of this definition too a person simply because he may be in lawful possession of some land cannot be treated to be its tenure-holder. If the submission made by counsel for the petitioners that any land which may be in lawful possession of any of the persons enumerated in clauses (a) to (e) of Section 5 would be immune from consideration under Section 5(1) of the Act is accepted it is likely to lead to anomalous results. In view of Section 157 of the U. P. Zamindari Abolition and Land Reforms Act disabled tenure-holders are entitled to let out their land. Take a case where a disabled tenure-holder may have let out his land to one of the persons mentioned in clauses (a) to (e) of sub-section (2) of Section 5 and such land alone or together with the land which may still be in possession of the disabled tenure-holder is in excess of the ceiling area. If the submission made by counsel for the petitioners is accepted the disabled tenure-holder will not be deemed to be holding the said land on the relevant date for purpose of determination of his ceiling area under Section 5(1) of the Act. Such an interpretation of Section 5(2) is not only not possible on the language of the section but is likely to defeat in a large measure the very purpose of the Act. I accordingly find it difficult to accept the argument that if the land of a tenure-holder is in lawful possession of any of the persons enumerated in clauses (a) to (e) of Section 5(2) of the Act such land -cannot be taken into consideration while determining the ceiling area of the tenure-holder. I may further point out in this connection that the mere fact that the tenure-holder may not be in actual possession of the land on the relevant date is not material for his being the tenure-holder on the said date. Suppose on the relevant date a trespasser is in possession of some land of which A is the tenure-holder and the trespasser has not acquired sirdari rights by virtue of his possession before the said date. A would still be the tenure-holder of such land for purposes of determination of ceiling area under Section 5(1) of the Act even though he may not have been in possession over the land on the relevant date. It has not been disputed by counsel for the petitioner that the persons mentioned in clauses (b) to (c) or Section 5(2) can be tenure-holders. Even the Central Government of a local authority or a government company or a corporation mentioned in clause (a) can also be a tenure-holder, for if any of them purchases land belonging to a bhumidhar they would be bhumidhars of the land and thus tenure-holders thereof. Even if the area of the land held by any of these persons as a tenure-holder is in excess of the ceiling area contemplated by Section 5(1) of the Act the provisions of the said sub-section will not apply in view of sub-section (2) of section 5. It was urged that a State Government cannot possibly be a tenure-holder because in it vests the paramount title of all the land of which a person can be a tenure-holder. The argument seems to be plausible but since in the instant case no land is sought to be declared surplus which may be held by the State Government as a tenure-holder, I do not wish to express any opinion on the question as to whether the State Government can or cannot be a tenure-holder. Suffice, it to point out that even if the State Government cannot be a tenure-holder it in no way follows that the other persons mentioned in Section 5(2) also cannot be tenure-holders. In that event the inclusion of the State Government in Section 5(2) may turn out to be unnecessary but I am not expressing any opinion on this point. In view of the foregoing discussion it cannot be said that the Civil Judge committed any manifest error of law in taking the view that Sheo Chandra Pathak was, for purposes of determining his ceiling area to be treated as the tenure-holder even of that portion of plot no. 109 of which the State Government was in temporary occupation under Section 35 of the Land Acquisition Act. No other point has been pressed. In the result the writ petition fails and is dismissed but there will be no order as to costs.