Sheo Chandra Pathak vs State of U.P. and Others

N.D. Ojha, J.—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 this 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 deter-mining 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 suffer from any such error in recording this finding which may justify interference 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 much 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 the 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:

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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 u/s 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 to 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 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.

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 the 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 and 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 clauses. Indeed the Land Acquisition Act does not speak of 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 clauses. Indeed the Land Acquisition Act does not speak on 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 Mate Government was Section 35 of the Land Acquisition Act. This Section is in Fart VI of the Land Acquisition Act which deals with temporary occupation of the land. It reads;

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When the Government temporarily occupies the land of a tenure-holder u/s 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 paid 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 u/s 35 of the aforesaid Act, Sheo Chandra Pathak continued to be the tenure-holder thereof for purpose of determination of the ceiling area u/s 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. Nabi Bux AIR 1970 SC 1880, where it was held that the word ''held'' as used in Section 9 of the U.P. Zamindari Abolition & Land Reforms Act means "lawfully held". In that case the question which came 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 licencee cannot be said to be unlawful but a licencee has no title in the land. As already pointed out above Section 5(2) also contemplates 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 u/s 5(1) of the Act is accepted it is likely to lead to anamolous results. In view of Section 157 of the U.P. Zamindari Abolition & 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 celling 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 u/s 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 u/s 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) of Section 5(2) can be tenure-holders. Even the Central Government or 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 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 u/s 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.