HAFIZ SHAFAT ALI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) A notice under Section 10 (2) of U. P. Im position of Ceiling on Land Holdings Act (hereinafter referred to as 'the Act') was served on the petitioner. He filed an objection. His main contention was that the land was being used for brick-kiln purpose and as such was not a holding within the meaning under the U. P. Imposition of Ceiling on Land Holdings Act hence could not be dealt with by the ceiling authorities. In the alternative he claimed exemption under Section 6(1) (a) of the Act as the land was being used for industrial purpose and a declaration under Section 143 of the U. P. Zamindari Abolition and Land Reforms Act was made in his favour. The objection of the petitioner was rejected on the ground that the declaration was subsequent to the date of enforcement of the Act. He went in appeal but the appeal was also dismissed. Aggrieved, the petitioner has come to this Court under Article 226 of the Constitution. The first question raised by the learned counsel for the petitioner in the present writ petition is that the authorities below have not decided the basic question whether the land used for the purpose of brick- kiln could be a 'holding' within the purview of U. P. Imposition of Ceiling on Land Holdings Act or not. This question was specifically raised before the authorities below but they did not decide the same. It is apparent from the judgments of the authorities that the petitioner raised a plea that the land is being used for brick-kiln purpose and as such was not a 'holding' within the meaning of Section 3 (9) of the Act and could not be dealt with by the ceiling authorities. This question was not at all dealt with by the authorities below. In order to appreciate that controversy, definition of 'holding' given under Section 3(9) of the Act is very much useful which reads as follows : " 'holding' means the land or lands held by a person as bhumidhar, sirdar, asami of Oaon 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 U. P. Tenancy Act, 1939, other than a sub-tenant, or as a Government lessee, or as a sub-lessee of a Government lessee, where the period of the sub-lease is co-extensive with the period of the lease :" The aforesaid definition clearly shows that a person must be a bhumidhar, sirdar, asami of Gaon Sabha or an asami mentioned under Section 11 of the U. P. Zamindari Abolition and Land Reforms Act or as a tenant under the U. P. Tenancy Act, 'Land' has been denned under Section 3 (4) of the U. P. Zamindari Abolition and Land Reforms Act which reads as follows: " 'Land', except in (Sections 109, 143 and 144 and Chapter VII) means land held or occupied for purposes connected with agriculture, horti culture, or animal husbandry which includes pisciculture and poultry farming." The aforesaid two definitions clearly show that unless the land falls with in the aforesaid definitions the ceiling authorities have no jurisdiction to deal with the matter. It has been held by the Division Bench of this Court in Triloki Nath v. RamGopal and others 1974 R. D. 5, while dealing with the question whether the consolidation Courts have jurisdiction to decide title between the parties in respect of the land used for the purpose of manufacturing bricks, that the land used for the purpose of making brick which was unconnected with the agriculture could not be covered under the definition of 'land' hence the Consolidation Courts had no jurisdiction to adjudicate rights of the parties in respect of that claim. It has also been held by this Court in Jhandoo v. State of U. P. and others 1977 (3) A.L.R. 418, the land is being used as abadi, the same will not fall within the definition of 'holding' and cannot be dealt with by the ceiling authorities. The aforesaid decisions clearly lay down that if it is established that the land to be dealt with by the ceiling authorities does not fall within the definition of 'holding' then the ceiling authorities have no jurisdiction to deal with that land. In the present case the petitioner raised a specific plea. He alleged that he purchased the land in the year 1960 for the purpose of using it as brick-kiln. He further stated that he is using the said land for the purpose of brick-kiln. The petitioner has filed copies of Khasra extracts and of the revenue records ranging from 1377F to 138IF which clearly show that the land is entered as brick-kiln. The petitioner has also alleged that a report was submitted by the Naib Tahsildar before the Prescribed Authority which also established that the land was being used for the purpose of brick kiln. If that is the position and if the material evidence establishes that the land was being used as brick-kiln not only after but from before the date of vesting, then the petitioner cannot become tenure-holder of that land. Even if the petitioner is using the land for the purpose of brick-kiln whether it will fall within the definition of 'holding' or not was required to be determined by the authorities below. As this crucial question which goes into the root of the matter was not decided by the authorities below, it is necessary that the case be sent back to the appellate authority for redetermination. If it is held that the petitioner is not a tenure-holder of this land then it would not be open to the ceiling authorities to deal with the said land. As the case is being sent back to determine jurisdictional question, it is desirable that the other contentions raised by the petitioner may also be considered by the appellate authority. The appellate authority did not grant exemption to the petitioner under Section 6 (I) (a) of the Act on the ground that the declara tion under Section 143 of U. P. Zamiidari Abolition and Land Reforms Act was not in existence on 8-6-1973. The appellate authority will re- examine this question in the light of provisions of Section 6 (1) (a) and will decide whether the exemption is necessary on the date of enforcement of the Act or not. The result is, that this writ petition is allowed and the judgment of the appellate authority is quashed. The case is sent back to the appellate autho rity for deciding the appeal afresh in accordance with law. In the circums tances of the case, the parties shall bear their own costs. The stay order shall stand discharged.