Supreme Court of India
ARVIND KUMARversusSTATE OF U.P. & ORS.
- Citation
- 2016 INSC 579
- Decided
- 8 August 2016
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
The appeal is allowed because the appeal had abated under Section 31(2) of the 1976 Amendment Act, rendering the appellate authority without jurisdiction.
Summary
The appellants, legal heirs of a tenure‑holder, challenged an order dated 13‑Jan‑1975 that declared 51.29 acres of their land surplus under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960. An appeal against that order was filed and later dismissed, but the appellants argued that the appeal had abated under Section 31(2) of the 1976 Amendment Act. The Court examined whether the two pre‑conditions for Section 31(2) – an order determining surplus land before 17‑Jan‑1975 and a mandatory re‑determination under Section 9 of the 1974 Amendment Act – were satisfied. It held that the 1974 provision does not grant discretion; the prescribed authority was required to re‑determine the surplus land, which it never did, making the appeal deemed to have abated on 10‑Oct‑1975. Consequently, the appellate authority lacked jurisdiction to hear the appeal, and the order of the Additional Commissioner was set aside. The appeal was allowed with no order as to costs.
Issues considered
- Whether Section 31(2) of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1976 applies to the appeal filed before 10 October 1975.
- Whether the two pre‑conditions for the operation of Section 31(2) – an order determining surplus land before 17 January 1975 and a requirement to re‑determine under Section 9 of the 1974 Amendment Act – are met.
- Whether Section 9 of the 1974 Amendment Act confers discretion on the prescribed authority or imposes a mandatory duty to re‑determine surplus land.
- Whether the issuance (or non‑issuance) of a notice under Section 9(2) of the 1972 Amendment Act affects the abatement of the appeal.
- Whether the appellate authority had jurisdiction to hear the appeal despite the alleged abatement.
Legislation cited
- Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960s. 10, s. 11, s. 12, s. 13, s. 14, s. 19, s. 21, s. 3, s. 30, s. 4, s. 5, s. 6, s. 7, s. 8, s. 9
- Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972s. 19, s. 3, s. 4
- Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1974s. 1, s. 4, s. 9
- Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1976s. 31(2), s. 31(3), s. 31(4)
Subjects
land ceilingsurplus landabatement of proceedingsstatutory interpretationre‑determinationappellate jurisdictionUttar Pradesh land law
Judgment
[2016] 9 S.C.R. 712
A ARVIND KUMAR
v.
STATE OF U.P. & ORS.
(Civil Appeal No.7165 of2016)
B AUGUST 08, 2016
[DIPAK MISRA AND R.F. NARIMAN, J.J.]
U.P. Imposition of Ceiling on Land Holdings (Amendment)
Act, 1976 - s.31(2) - Abatement of ceiling proceedings - Notice
uls. 10(2) of the 1960 Act (the Principal Act) served on tenure-
c holder for proposing to declare the land in question as surplus
land - Objections filed by appellants (legal heirs of tenure-holder)
- Mean11'hile, Prescribed Authority under the Act passed order dated
13.1.1975 declaring the entire land ll'hich was the subject matter
of notice, as surplus - Appeal against tliis order dismissed on
D 13.12.87 - Writ petition by appellants also dismissed - Plea of
appellants tliat on a correct construction of s.31, 1976 Amendment
Act the entire proceedings had abated and hence, the appellate
authority had no jurisdiction to pass order dated I 3.12. 87 - Held:
There are two pre-requisites for application of s. 31 (2) which provides
for abatement of appeal against order determining surplus land-
E
First, there should be an order determining the surplus land under
the Principal Act before 17.1.1975, second, 11'ilh regard to such
surplus land the prescribr!d authority was required to re-determine
surplus land u/s. 9, 1974 Amendment Act - Clearly, the order
determining the surplus land in the present case was made four
F days before 17.1.1975, tints the first pre-requisite was met - Second
pre-requisite was also 111e1t as the prescribed authority was required
to re-determine surplus land uls. 9, 1974 Amendment Act but that
was never done as tl1ere was no order re-determining surplus land
- Language of s.31 (2) also makes it clear that e1•ery appeal preferred
against such orders and pending immediately before 10.10.1975
G
shall be deemed to have abated on the said date and thus the appeal
in the present case having been filed prior to 10.10.1975, stood
abated on the said date - U.P. Imposition of Ceiling on Land Holdings
Act, 1960 - U.P. Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972 - s.19 - U:P. Imposition of Ceiling on Land
H Holdings (Amendment) Act, 1974 - s.9 .
712
ARVJND KUMAR v. STATE OF U.P. & ORS. 713
U.P. Imposition of Ceiling 011 Land Holdings (A111end111ent) A
Act, 1974 - s.9 - Requirement to redetermine surplus land - No
discretion vested in prescribed authority - Held: Such requirement
is not discretionary as the ve1'.V expression "may at any time within
a period of two years ... "·occurring in s.9. 1974 Amendment Act
also occurs in s.31(3), 1976 Amendment Act and thus on a correct
B
reading of the .5ub.-section, the presaibed authority, in every case,
is required to re-determine surplus land if an order determining
surplus land was made prior to.10.10.1975 .
. Allowing the appeal, the Court
HELD: 1.1 The original statutory scheme of the U.P. c
Imposition of Ceiling on Land Holdings Act, 1960 (the Principal
Act) which spoke of surplus "fair quality land" was substituted in
its entirety by a completely new and different scheme by the
Amendment Act of 1972 read with the Amendment Act of 1974.
Both of these Acts, with certain minor exceptions, came into force
on the same date, namely, 8.6.1973. l<'or Section 9 of the 1974 D
Amendment Act to apply, an order has to be made determining
surplus land in relation to a tenure-holder before the
commencment of the Amendment Act. By Section 1(2), "this
Section" and Section 9 both came into force at once i.e. on
17.1.1975. The ex1H·ession "this Section" refers to Sectioill(l) E
which in tum refers to the Act as the U.P Imposition of Ceiling
on Land Holdings (Amendment) Act, 1974. This being the case,
it is clear that the Act commenced only on 17.1.1975, even though
a number of Sections shall be deemed to have come into force
retrospectively i.e. on 8.6.1973. The order passed by the
Prescribed Authority being on 13.1.1975, the first condition of F
Section 9 is met, namely, that this order was passed before
17.1.1975. [Para 12][732-P, G-11; 733-A-C]
1.2 The very expression "may at any time within a period
of two years ... " occurring in Section 9, U.P. Imposition of Ceiling
on Land Holdings (Amendment) Act, 1974 also occurs in Section G
31(3) of the 1976, Amendment Act. This sub-section makes it
clear that the expression "may" goes along with the words "at
any time within a period of two years ... " as it is clear that on a
correct reading of the sub-Section, the prescribed authority was,
1-1
714 SUPREME COURT REPORTS [2016} 9 S.C.R.
A in every case, to re-determine surplus land if an order determining
surplus land had been made before the 10th day of October, 1975.
The idea is that a period of two years is given to re-determine
surplus land in accordance with the Principal Act as amended by
the 1974 Amendment Act. This being the case, it is clear that no
discretion is vested in the prescribed authority to re-determine
B
surplus land. Surplus land has, in all cases, to be re-determined,
as a completely different and new scheme applicable to all lands
has replaced the existing scheme. [Para 12][733-C-F]
2.1 Under Section 31(2), the transitory provision contained
in the 1976 (Amendment) Act, 1976, clearly, the order determining
c
the surplus land in the present case had been made four days
before 17.1.1975 and thus the first condition or pre-requisite for
the application of Section 31 is met. The second pre-requisite is
also met for the simple reason that Section 9 of the 1974 Act,
which forms part of the same legislative scheme as the 1972
D Amendment Act, would apply for the reason that an order
determining surplus land had been made prior to commencement
of the said Act, namely, 17.1.1975, (which happens to be the same
as the first pre-requisite for the application of Section 31(2) of
the Amendment Act of 1976). This being the case, the language
of Section 31(2) makes it clear that every appeal preferred against
E
such orders and pending immediately before the 10th day of
October, 1975, shall be deemed to have abated on the said date.
On facts, the appeal had been filed prior to this date. [Para
14)(734-A-D]
2.2 Thus, it was necessary for the prescribed authority to
F
re-determine surplus land under Section 31(3) in accordance with
the Principal Act as amended by the 1976 Act. This never having
been done on facts in the present case, it is clear that the appeal
filed in 1975 has abated and could not therefore have been heard
by the Additional Commissioner, Agra on merits. This being so,
0 the judgment and order passed by the Commissioner dated
13.1.1975 is without jurisdiction. [Para 15](734-D, E-F]
State of Uttar Pradesh v. Mithilesh Kumari & Others
1987 (Supp.) SCC 21 : Mansoor Ali Khan & Others v.
State of U.P. & Others (1992) 1 SCC 737 : 1991 (2)
H
ARVIND KUMAR v. STATE OF U.P. & ORS. 715
Suppl. SCR 159 - referred to. A
Case Law Reference
1987 (Supp.) sec 21 referred to Para 10
1991 (2) Suppl. SCR 159 referred to Para 10
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7165 of B
2016.
From the Judgment and Order dated 06.08.2007 of the High Court
of Judicature at Allahabad in Civil Misc. Writ Petition No. 24142 of
1987.
Chander Uday Singh, Sr. Adv., Bimal Roy Jad, Naresh Kumar, c
Advs. for the Appellant.
M. R. Shamshad, T. N'.Singh, Vikas, K. Singh, Umang Tripathi,
Vi nay Garg, Tanmay Agarwal, San deep Singh, Ms. Deepam Garg, Advs.
for the Respondents.
The Judgment of the Cou11 was delivered by D
R.F. NARIMAN, J. 1. The present case involves the Court going
through a dense jungle which consists of the U.P. Imposition of Ceiling
on Land Holdings Act, 1960 [hereinafter referred to as "the principal
Act"] and three Amendment Acts made thereto. With the help oflearned
counsel for both the sides, we have waded through the various Sections E
and sub-sections of these Acts, only for the purpose of having to decide
one basic question: as to whether ceiling proceedings in respect of the
land in question have lapsed owing to Section 31 of the 1976 Amendment
Act.
2. The brief facts necessary to decide the present case are as·
F
follows. A notice under Section 10(2) of the principal Act, was served
upon the tenure-holder, one Kamla Devi, to file objections against a
proposal to declare 51.29 acres as surplus land. Pursuant to the said
notice, objections were filed by the late Kam la Devi as also by appellants
I to 3, her legal heirs. According to the appellants, on a correct
construction of the Act, there was no surplus land. Meanwhile, the G
Prescribed Authority under the Act passed an order dated 13.1.1975 by
which order the entire land that was the subject nrntter of the notice,
was declared surplus. An appeal filed against the Prescribed Authority's
order met with the same fate and was dismissed on 13.12.1987. It is
important to note that an argument was raised that the proceedings had
H
716 SUPREME COURT REPORTS (2016] 9 S.C.R.
A abated, which argument was answered by the Appellate Authority by
saying that no fresh notice had been issued under Section 9(2) of the
Amendment Act and as this was so, the proceedings had not abated. A
writ petition that was filed in 1987 was ultimately disposed of on 6.8.2007
where, by the judgment under appeal, the writ petition was dismissed.
Several points were argued with which we are not at present concerned.
B
The argument on abatement met the same fate as the judgment by the
appellate authority.
3. Before adverting to the submissions oflearned counsel for both
parties, it is first important to put the horse before the cart. A brief survey
of the principal Act as well as the three Amendment Acts must now be
c undertaken.
·L The 1960 Act is an Act to provide for the imposition of ceiling
on land holdings in the State ofUttar Pradesh. Under the principal Act,
the ceiling area of a tenure-holder was said to be 40 acres of"fair quality
land", and where the tenure-holder has a family consisting of more than
D 5 members, to the ceiling area of such tenure-holder is to be added 8
acres of fair quality land for every additional member of the family,
subject to a maximum of24 acres. "Fair quality land" was defined in
the principal Act as meaning land, the hereditary rate of which is above
Rs.6/- per acre under the Act. A general notice was to be given to
E tenure-holders holding land in excess of the ceiling area so that they
could submit a statement in respect thereof. A quasi-judicial determination
is then to be made of surplus land, where objections are filed and the
prescribed authority, after affording the parties a reasonable opportunity
of being heard, and of producing evidence, is then to decide their
objections after recording reasons, and then determine the extent of
F surplus land. An appeal is provided to the District Judge whose decision
is then made final and conclusive. The prescribed authority is then to
notify in the Official Gazette the surplus land so determined. On the
date of such notification, such surplus land shall vest in the State free
from all encumbrances, and on/from that date, all right, title and interest
G of all persons in such land shall stand extinguished. The principal Act
then contains machinery for distribution of surplus land inter alia to
cooperative societies oflandless agricultural labourers. Compensation
is given by the principal Act for vesting of surplus land of land-holders.
With this prefaratory note, it is important now to set out the relevant
Sections of the aforesaid Act.
H
ARVIND KUMAR v. STATE OF U.P. & ORS. 717
[R.F. NARIMAN, J.]
"Section 3. Definitions. In this Act, unless there is A
anything repugnant in the subject of context-
(b) "Fair Quality Land" means land the hereditary rate
whereof is above rupees six per acre;
Section 4. Ceiling area.
B
(1) Subject to the provisions of this Act, the ceiling area
applicable to a tenure-holder shall be calculated after taking
into account all the land in any holding in the state held by
him, in his own right, whether in his own name or ostensibly
in the name of any person.
c
(2) (a) The ceiling area of a tenure-holder shall be forty
acres of Fair Quality Land.
(b) Where the tenure-hold!:!!' has, or consists of, a family
having more than five members, the ceiling area of such
tenure-holder shall be the area mentioned in clause (a)
D
together with eight acres of Fair Quality Land for every
additional member of the family subject to a maximum of
twenty-four such acres:
Provided that, if at any time, the family comes to consist
of n·ot more than five members, all land held by the tenure-
E
holder in excess of the ceiling area under clause (a), shall
become liable to be treated as surplus land.
Explanation - In calculating the ceiling area under this
sub-section in respect of land other than Fair Quality Land,
one and one-half acre of such land, the hereditary rate
whereof is above rupees four per acre, but does not exceed
F
rupees six per acre. and two acres of such land the
hereditary rate whereof is rupees four or less per acre, will
be deemed to be equal to one acre of Fair Quality Land.
Section 5. Imposition of ceiling on existing land
holdings.- G
(1) As and from the date of enforcement of this Act. no
tenure-holder shall, except as otherwise provided by this
Act, be entitled to hold an area in excess of the ceiling area
applicable to him, anything contained in any other law,
H
718 SUPREME COURT REPORTS [2016] 9 S.C.R.
A custom, or usage for the time being in force, or agreement,
to the contrary notwithstanding.
(2) In determining the ceiling area applicable to a tenure-
holder at the commencement of this Act, any transfer or
partition of land made after the twentieth day of August,
8 1959, which,-·but for the transfer or partition, would have
been declared surplus land under the provisions of th is Act,
shall be ignored and not taken into account.
(3) The provisions of sub-section (2) shall have no application
to-
c (a) a transfer in favour of the State Government;
(b) a partition under the U.P. Consolidation ofHoldings Act,
1953,or
(c) a partition of the holding ofa Joint Hindu Family made
by a suit or proceeding pending on twentieth day ofAugust,
D
1959.
Section 9. General notice to tenure-holders holding
land in excess of ceiling area for submission of
statement in respect thereof.- As soon as may be, after
the date of enforcement of this Act, the Prescribed Authority
E
shall, by general notice, published in the Official Gazette,
call upon every tenure-holder holding land in excess of the
ceiling area applicable to him on the date of enforcement
of this Act, to submit to him within 30 days of the date of
publication of the notice, a statement in respect of all his
F holdings in such form and.giving such particulars as may be
prescribed. The statement shall also indicate the plot or
plots for which he claims exemption and also those which
he would like to retain as part of the ceiling area applicable
to him under the provisions of this Act.
G Section 12. Determination of the surplus land by the
Prescribed Authority where an objection is filed. -
(I) Where an objection has been filed under sub-section
(2) of section 10 or under sub-section (2) of Section 11, or
because of any appellate order under Section 13, the
Prescribed Authority shall, after affording the parties
H
· ARVIND KUMAR v. STATE OF U.P. & ORS. 719
[R.F. NARIMAN, J.]
reasonable opportunity of being heard and of producing A
·evidence, decide the objections after recording his reasons,
and determine the surplus land.
(2) Subject to any appellate order under Section 13, the
order of the Prescribed Authority under sub-section ( 1) shall
be final and conclusive and be not questioned in any court B
of law.
Section 13. Appeals -( l) Any part)' aggrieved by an order
under sub-section (2) of Section I l or Section 12, may, within
thirty days of the date of the order, prefer an appeal to the
District Judge within whose jurisdiction the land or any part c
thereof is situate.
(2) The District Judge shall dispose of the appeal as
expeditiously as possible and his decision thereon shall be
final and conclusive and be not questioned in any court of
I~ D
(3) Where an appeal is preferred under this section, the
District Judge may stay enforcement of the order appealed
against for such time and on such conditions as may be
considered just and proper.
Section 14. Acquisition of surplus land. - ( l) The E
Prescribed Authority shall -
(i) in case, where the order passed under sub-section ( l) of
Section l l has become final; or
(ii) in case, where no appeal has been preferred under
Section 13, after the expiry of the period of limitation
F
provided therefor; or
(iii) in case, where an appeal has been preferred under
Section 13, after its decision;
notify in the Official Gazette the surplus land determined G.
under Sections 11, 12 or 13, as the case may be.
(2) As from the beginning of the date of the notification
under sub-section (I); all such surplus land shall stand
transferred to .and vest, except as hereinafter provided, in
H
720 SUPREME COURT REPORTS (2016] 9 S.C.R.
A the State, free from all encumbrances. and all rights, title
and interests of all persons in such land shall, with effect
from such date, stand extinguished.
(3) On the publication of the notification under sub-section
(I), any person claiming interest as a tenure-holder or a
B lessee in possession from the tenure-holder, in the surplus
land in respect of which the notification has been published,
may, within thirty days thereof, file an objection before the
Prescribed Authority indicating the extent of his interest in
such land.
c (4) The Prescribed Authority shall, for reasons to be
recorded in writing, dispose of the objections after affording
to the objector, the tenure-holder concerned and the State
Government, reasonable opportunity of being heard and of
producing evidence.
D (5) Any person aggrieved by an order under sub-section
(4) may, within thirty days of the date of the order, prefer
an appeal to the District Judge in whose jurisdiction the
land or any part thereof is situate. The order of the District
Judge shall be final and conclusive and be not questioned in
E any Court of law.
(6) In disposing of an objection of an appeal under this
section, the Prescribed Authority or the District Judge, as
the case may be, shall accept any decision of a court of
competent jurisdiction in respect of the rights of the parties.
F
(7) No person, other than a tenure-holder or a Jessee of the
tenure-holder whose right, title or interest in the surplus
land has been recognized under the provisions hereinbefore
contained, shall for purposes of this Act, be considered to
have any right, title or interest in the surplus land.
G
(8) The Collector may, at any time, after the publication of
the notification under sub-section (I) and subject to any
order passed under sub-sections (4) and (5) take possession
of the surplus land and may for that purpose use such force
as may be necessary.
H
ARVIND KUMAR v. STATE OF U.P. & ORS. 721
[R.F. NARIMAN, J.]
Section 27. Settlement of surplus land. A
(I) The State Government shall settle out of the surplus
land in a village in which no land is available for coinmunity
purposes or in which the land as available is less than 15
acres with the Gaon Samaj of the village so however that
the total land in the village available for community purposes B
after such settlement does not exceed I 5 acres. The land
so settled with the Gaon Samaj shall be used for planting
trees, growing fodder or for such other community purposes,
as may be prescribed.
(2) Subject to the provisions of sub-section (I), where any c
surplus land had immediately preceding the date of vesting
in the State under this Act, been held by a member of a co-
operative society, such land may, if the society so desires,
be settled by the State Government with the society.
(3) Any surplus Land remaining unsettled under the D
provisions of the preceding sub-sections may be settled by
the State Government:
(a) lfthe remaining land is less than 15 acres in the village,
with a co-operative society of such tenure-holders, at least
three-fourths of whom are holders of less than 3 1 8 acres E
of land each; and
(b) Ifthe remaining land is more than 15 acres in the village,
with a co-operative society oflandless agricultural labourers
so however that the total land al lotted to such society, under
this clause, if equally divided between all the members would
F
give to each one not more than 3 1 8 acres of land.
(4) Any surplus land remaining after settlement under clause
(b) of sub- section (3) may be settled by the State
Government with any co-operative society no member
whereof prior to such settlement holds more than 3 1 8 acres
G
ofland in his own right."
5. By an Amendment Act of 1972, being U.P. Act 18 of 1973,
which came into force on 8.6.1973, a wholesale substitution of various
Sections of the principal Act was carried out. This is for the simple
reason that the erstwhile scheme of determining surplus "fair quality
H
722 SUPREME COURT REPORTS [2016] 9 S.C.R.
A land" was rtow substituted by a scheme which detennined surplus irrigated
land. Even the ceiling limit of such land was changed to 7.3 hectares of
irrigated land, plus a maximum of 6 hectares of additional land depending
upon the size of the family. A new Section l 3A was inserted conferring
a power ofreview to the appellate authority under the Act. The transitory
provision contained in Section 19 of the 1972 Amendment Act then
B
provided for abatement of proceedings that were pending at the time of
commencement of the Amendment Act, with a saving of proceedings
that had already become final under the principal Act.
6. The relevant provisions of the U.P. Imposition of Ceiling on
Land Holdings (Amendment) Act, 1972 are set out hereunder:-
c
"Section 3. Substitution of new sections for sections
3, 4, 5, 6, 7 and 8 of U.P. Act I of 1961. For sections 3,
4, 5, 6, 7 and 8 of the U.P. Imposition of Ceiling on Land
Holdings Act, 1960, hereinafter referred to as the principal
Act, the following sections shall be substituted, namely:-
D
"
4. Determination of area for purposes of ceiling and
exemptions. For purposes of determining the ceiling area
under section 5 or any exemption under section 6-
E (i) Subject to the provisions of clause (ii), one and one-half
hectares of unirrigated land or two and a half hectares
of grove-land or two and a half hectares of usar land
shall count as one hectare of irrigated land;
(ii) two and a half hectares of any unirrigated land, in the
F following areas, namely-
(a) Bundelkhand;
(b) trans-Jamuna portions ofAllahabad, Etawah, Mathura
and Agra districts;
G ( c) cis-Jamuna po1tions ofAllahabad, Fatehpur, Kanpur,
Etawah, Mathura and Agra districts up to 16 kilometers
from the deep stream of the Jamuna;
(d) the portion of Mirzapur district south of Kaimur
Range;
H
ARVIND KUMAR v. STATE OF U.P. & ORS. 723
[R.F. NARIMAN, J.]
(e) Tappa Upraudh and Tappa Chaurasi (Balai Pahar) A
ofTahsil Sadar in Mirzapur district;
(f) the portion ofTahsil Robertsganj, in Mirzapur district
which lies north ofKaimur Range;
(g) Pargana Sakteshgarh and the villages mentioned Jn
lists 'A' and 'B' of Schedule VI to the Uttar Pradesh B
Zamindari Abolition and Land RefonnsAct, 1950, in hilly
patties of Parganas Ahraura and Bhagat ofTahsil Chunar
in Mirzapur district; and
(h) the area comprised in the former Ta Iuka ofNaugarh
or Tahsil Chakia in Varanasi district; c
(i) hilly and Bhabar area of Kumaun and Garhwal
Divisions and Jaunsar Bawar Pargana of Dehra Dun
district;
shall count as one hect~re of irrigated land. D
5. Imposition of ceiling.
(!)On and from the commencement 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 the ceiling E
area applicable to hirri.
xx
(3) Subject to the provisions of sub-sections (4), (5) and
(6), the ceiling area for purposes of sub-section (I) shall
be- F
(a) In the case of a tenure-holder having a family of not
more than five members, 7.30 hectares of irrigated land
(including land held by other members of his family), plus
two additional hectares of irrigated land or such additional
land which together with the land held by him aggregates G
to two hectares, for each of his adult sons, who are either
not themselves tenure-holders or who hold less than two
hectares or irrigated land, subject to a maximum of six
hectares of such additional land;
H
724 SUPREME COURT REPORTS (2016] 9 S.C.R.
A (b) In the case of a tenure-holder having family of more
than five members, 7.30 hectares of irrigated land (including
land held by other members of his family), besides, each of
the members exceeding five and for each of his adult sons
who are not themselves tenure-holders or who hold less
than two hectares of irrigated land, two additional hectares
B
of irrigated land or such additional land which together with
the land held by such adult son aggregates to two hectares,
subject to a maximum, of six hectares of such additional
land.
Explanation-The expression 'adult son' in clause (a) and
c (b) includes an adult son who is dead and had left surviving
behind him minor sons or minor daughters (other than
married daughters) who are not themselves tenure-holders
or who hold land less than two hectares of irrigated land;
(c) In the case of a tenure-holder being a degree college
D imparting education in agriculture, 20 hectares of irrigated
land;
(d) In the case of a tenure-holder being an intermediate
college imparting education in agriculture, 12 hectares of
irrigated land;
E
(e) In the case of any other tenure-holder, 7.30 hectares of
irrigated land.
Explanation -any transfer or partition ofland which is liable
to be ignored under sub-sections (6) and (7) sh al I be ignored
F
also-
(p) for purposes of determining whether an adult son of a
tenure-holder is himself a tenure-holder within the meaning
of clause (a);
(q) for purposes of service of notice under section 9."
G Section 4. Amendment of Section 9.
Section 9, of the principal Act, shall be re-numbered as
sub-section (I) thereof, and after sub-section (I) as so re-
numbered, the following sub-section shall be insened,
namely-
H
ARVIND KUMAR v. STATE OF U.P. & ORS. 725
[R.F. NARIMAN, J.]
"(2) As soon as may be after the enforcement of the Uttar A
Pradesh Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972, the prescribed authority shall, by
like general notice, call upon every tenure-holder holding
land in excess of the ceiling area applicable to him on the
enforcement of the said Act, to submit to him within 30
B
days of publication of such notice, a statement referred to
in sub-section (I).
(3) Where the tenure-holder's wife holds any land which is
liable to be aggrieved with the land held by the tenure-holder
for purposes of determining of the ceiling areas, the tenure-
holder shall, along with his statement referred to in sub- c
section (I) also file the consent of his wife to the choice in
respect of the plot or plots which they would like to retain
as part of the ceiling areas applicable to them and where
his wife's consent is not so obtained, the prescribed authority
shall cause the notice under sub-section (2) of section I 0 to D
be served on her separately."
Section 7. Insertion of new Section 13-A.
After Section 13 of the principal Act, the following section
shall be inserted, namely:-
E
13-A. Re-determination of surplus land in certain cases.
(I) The prescribed authority may, at any time, within a period
of two years from the date of the notification under sub-
section (1) of section 14, rectify any mistake apparent on
the face of the record: F
Provided that no such rectification which has the effect of
increasing the surplus land shall be made, unless the
prescribed authority has given a notice to the tenure-holder
of its intention to do so and has given him a reasonable
opportunity of being heard.
G
(2) The provisions of sections 10, 11, 12, 12-A, 13, 14and
1S shall mutatis mutandis apply in relation to any pl'Oceed ing
under sub-section ( 1), and for purposes of application of
section I0, the notice under the proviso to sub-section ( 1),
shall be deemed to be a notice under section 9."
H
726 SUPREME COURT REPORTS [2016) 9 S.C.R.
A Section 19. Transitory provisions.
(I) All proceedings for the determination of surplus land
under section 9, section 10, section 11, section 12, section
13 or section 30 of the principal Act, pending before any
court or authority at the time of the commencement of this
B Act, shall abate and the prescribed authority shall start the
proceedings for determination of the ceiling area under that
Act afresh by issue of a notice under sub-section (2) of
section 9 of that Act as inserted by this Act:
Provided that the ceiling area in such cases shall be
C determined in the following manner:-
(a) Firstly, the ceiling area_shall be determined in accordance
with the principal Act, as it stood before its amendment by
this Act;
D (b) Thereafter, the ceiling area shall be re-determined in
accordance with the provisions of the principal Act as
amended by this Act.
(2) Notwithstanding, anything in sub-section (I), any
proceeding under section 14 or under Chapter III or Chapter
E IV of the principal Act, in respect of any tenure-holder in
relation to whom the surplus land has been determined finally
before the commencement of this Act, may be continued
and concluded in .accordance with the provisions of the
principal Act, without prejudice to the applicability of the
provisions of sub-section (2) of section 9 and section 13-A
F of that Act, as inserted by this Act, in respect of such land."
7. On 17.1.1975, the U.P. Imposition of Ceiling on Land Holdings
(Amendment) Act, 1974, being U.P. Act No.2 ofl 975, came into force .
.Interestingly, certain changes were made to the new legislative schem~
contained in the 1972 Amendment. This Act, except for Sections 1 and
G 9, was brought into force with effect from 8.6.1973, which, as we have
already seen, was the date of coming into force of the 1972 Amendment
Act. This 1974 Amendment Act only added to the new substituted
scheme the concept of "single crop land". The relevant provisions of
this Act are se~ uut hereinbelow:-
H
ARVIND KUMAR v. STATE OF U.P. & ORS. 727
[R.F. NARIMAN, J.]
"Section 1. Short title and commencement. A
(I) This Act may be called the Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment) Act, 1974.
(2)This Section and section 9 shall come into force at once,
and the remaining sections shall be deemed to have come
into force on June 8, 1973. B
Section 4. Amendment of Section 4.
In section 4 of the principal Act, in clause (ii)
(a) For the words "two and ha If hectares ofany unirrigated
land", the words "one and one-half hectares of single crop C
land or two and a half hectares of any other un-irrigated
land", shall be substituted;
(b) At the end the following Explanation shall be inserted,
namely:~
D
"Explanation - For the purposes of clause (ii), the expression
'single crop land' means any un-irrigated land capable of
producing only one crop in an agricultural year, in
consequence of assured irrigation from any State Irrigation
Work or private irrigation work."
Section 9. Transitory Provision. E
Where an order determining the surplus land in relation to a
tenure-holder has been made under the principal Act, before
the commencement of this Act, the prescribed authority
may, at any time within a period of two years from the
commencement of this Act, re-determine the surplus land F
in accordance with the principal Act as amended by this
Act."
8. An Ordinance, which further amended the principal Act, came
into force on the 10th day of October, 1975. After the said Ordinance
lapsed, the third Amendment Act of 1976 was brought into force, being G
U.P. Act 20of197Q, but with effect from the date of the Ordinance,
namely, I 0.10.1975. In this Amendment, various other changes were
made with which we are not directly concerned, except that the fate of
this appeal hinges on the correct construction of the transitory provision
H
728 SUPREME COURT REPORTS [2016] 9 S.C.R.
A of this Act, namely, Section 31. The relevant Sections of th is Amendment
Act are set out hereunder:-
"Section 1. Short title and commencement.
(I) This Act may be called the Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment) Act, 1976.
B
(2) It shall be deemed to have come into force on October
10, 1975.
Section 8. Amendment of section 9.
In section 9 of the principal Act,·
c (a) In sub-section (2), the following proviso thereto shall be
inserted namely:-
"Provided that at any time after October 10, 1975, the
Prescribed Authority may by notice, call upon any
tenure-holder holding land in excess of the ceiling area
D
applicable to him on the said date, to submit to him within
thirty days from the date of service of such notice a
statement referred to in sub-section (I) or any
information pertaining thereto.";
(b) after sub-section (2) the following sub-section shall be
E inserted namely:-
"(2-A) Every tenure-holder holding land in excess of
the ceiling area on January 24, 1971, or at any time
thereafter who has not submitted the statement referred
to in sub-section (2) and in respect of whom no
F proceeding under this Act is pending on October I0, 1975
shall, within thirty days from the said date furnish to the
Prescribed Authority a statement containing particulars
ofallLand-
(a) held by him and the members of his family on January
G 24, 1971;
(b) acquired or disposed of by him or by members of his
family between January 24, 1971 and October I0,
1975."
H
ARVIND KUMAR v. STATE OF U.P. & ORS. 729
[R.F. NARIMAN, J.]
Section 11. Amendment of section 14. A
In section 14 of the principal Act-
(a) for sub-section (2), the following sub-section shall be
substituted, namely:-
"(2) As from the beginning of the date of the notification B
under sub-section (1 ), all such surplus land shall stand
transferred to and vest in the State Government free
from all encumbrances and all rights, title and interests
of all persons in such land shall, with effect from such
date, stand extinguished:
c
Provided that the encumbrances, if any, shall be attached
to the amount payable under section 17 in substitution
for the surplus land.";
(b) sub-section (3), (4), (5), (6) and (7) shall be omilled;
(c) for sub-section (8), the following sub-section shall be D
substituted, namely:-
"(8) The Collector may at any time after the publication of
the notification under sub-section ( 1) take possession of
the surplus land and also of any ungathered crop or fruits
of tree not being crops or fruits to which sub-section (I) of E
section 15 applies, after evicting the tenure-holder or any
other person found in occupation of such land, and may, for
that purpose, use or cause to be used such force as may be
necessary:
Provided that a tenure-holder may, at any time voluntarily F
deliver possession to the Collector over the whole or any
part of the land held by him which has been or is likely to be
declared surplus under and in accordance with the provisions
of this Act, and thereupon the provisions of sub-section (2)
shall apply to such land as they apply to any surplus land
specified in a notification under sub-section (I)." G
Section 31. Transitory P1·ovisions.
(I) All proceedings under sub-section (3) to (7) of section
14 of the principal Act, as it stood immediately before
H
730 SUPREME COURT REPORTS [2016) 9 S.C.R.
A the commencement of the Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment) Ordinance,
1976, pending before any Court or authority immediately
before the date of such commencement shall be deemed
to have abated on such date.
B (2) Where an order determining the surplus land in relation
to a tenure-holder has been made under the principal
Act before January 17, 1975 and the Prescribed
Authority is required to re-determine the surplus land
under section 9 of the Uttar Pradesh Imposition of Ceiling
on Land Holdings (Amendment) Act, 1974, then
c notwithstanding anything contained in sub-section (2) of
section 19 of the Uttar Pradesh Imposition of Ceiling on
Land Holdings (Amendment) Act, 1972, every appeal
under section 13 of the principal Act or other proceedings
in relation to such appeal, preferred against the said
D order, and pending immediately before the tenth day of
October, 1975, shall be deemed to have abated on the
said date.
(3) Where an order determining surplus land in relation to a
tenure-holder has been made under the principal Act
E before the tenth day of October, 1975, the Prescribed
Authority (as defined in the principal Act) may, at any
time within a period of two years from the said date, re-
determine the surplus land in accordance with the
principal Act as amended by this Act, whether or not
any appeal was filed against such order and
F notwithstanding any appeal (whether pending or decided)
against the original order of determination of surplus land.
(4) The provisions of section 13 of the principal Act shall
mutatis mutandis apply to every order re-determining
surplus land under sub-section (3) of this section or
G section 9 of the Uttar Pradesh Imposition of Ceiling on
Land Holdings (Amendment) Act, 1974:
Provided that the period ofthi11Y days shall, in the case of
an appeal against the order referred to in section 9 of the
Uttar Pradesh Imposition of Ceiling or Land Holdings
H
ARVIND KUMAR v. STATE OF U.P. & ORS. 731
[R.F. NARIMAN, J.]
(Amendment) Act, 1974, be computed from the date of A
such order or October I 0, 1975, whichever is later.
(5) The provisions of section 13-A of the principal ~ct shall mutatis
mutandis apply to eveiy re-determination of surplus land under
the section or under section 9 of the Uttar Pradesh Imposition
of Ceiling on Land Holdings (Amendment)Act, 1974. B
(6) Where any Assessment Roll has become final under sub-sei.:tion
(4) ofsection 21 before the sixteenth day ofFebruaiy, 1976,
this same shall not be reopened, notwithstanding any
amendment made in Chapter III of the principal Act read with
the Schedule thereof by this Act." c
9. Given this thicket of statutoiy law made by the legislature of
U.P., we have heard learned counsel on either side. Shri C.U. Singh,
learned senior advocate appearing on behalf of the appellants, has made
several submissions before us, but ultimately submitted that on a correct
construction of Section 31, the entire proceedings had abated, and that D
therefore the appellate authority which passed an order dated 13 .12.1987
had no jurisdiction to do so. He argued that a conjoint reading of Sections
· 31(2) and 31(3) would show that as all the requisite conditions of these
sub-sections had been fulfilled, the appeal preferred under section 13 of
the principal Act which was pending before the 10th day of October,
1975 shall be deemed to have abated on the said date. As no re- E
determination of surplus land was made in accordance with the principal
Act as amended by the 1976 Amendment Act, according to learned
counsel, the period of two years having gone long ago and no re-
determination having been made, the surplus land that is said to have
been determined by the prescribed authority no longer has any legal F
sanctity. He made a faint argument that under Section 19 of the 1972
amendment, proceedings had lapseq in any case, but we were not inclined
to accept that argument inasmuch as a general.notice under Section 9 of
the Amendment Act had been given to the tenure-holder which notice
was not replied to by the said tenure-holder. This being the case, Section
19 of the 1972 Act obviously cannot apply. G
I 0. Learned senior counsel also cited before us two judgments of
this G_ourt being State of Uttar Pradesh v. Mithilesh Kumari &
Others, 1987 (supp.) SCC 21, and Mansoor Ali Khan & Others v.
State of U.P. & Others, (1992) I SCC 737. However, since these
H
732 SUPREME COURT REPORTS [2016) 9 S.C.R.
A judgments have no direct application to the facts of the present case, we
do not consider it necessary to deal with them.
11 . Shri Garg, on the other hand, vehemently argued on behalf of
the State ofU.P. thatthe conditions under Section 31(2) not having been
met, the said Section is inapplicable, and that being the case, the appellate
B authority correctly went ahead and heard the matter on merits and
dismissed the appeal. His principal argument is that there are two
conditions precedent to the applicability of Section 31(2) of the 1976
Amendment Act. First, there should be an order determining the surplus
land which is made under the principal Act before 17.1.1975; and second,
the prescribed authority must be required to re-determine surplus land
c under Section 9 of the 1974 Amendment Act. In his submission the second
pre-requisite is not met on the facts of the present case. This, he argued,
is because Section 9 of the 1974 Amendment Act gave a discretion to
the prescribed authority who "may re-determine surplus land" in
accordance with the amendment made by the 1972 Amendment.
D According to learned counsel, the occasion for re-determination of surplus
land on the present facts did not arise, as on facts there is little or noun-
irrigated land that needs to be converted into irrigated land as per the
formula contained in Section 4 of the 1972 Act, and that therefore the
determination made in accordance with the 1972 Amendment Act, which
was in fact made by the order dated 13.1.1975 would lead to the conclusion
E that that order would stand and does not need to be revisited.
12. The argument oflearned counsel for the State, therefore, leads
us to analyze the four Acts in question a little closely. One thing becomes
clear at_ the outset: that the original statutory scheme of 1960 which
spoke of surplus "fair quality land" was substituted in its entirety by a
F completely new and different scheme by the Amendment Act of 1972
read with the Amendment Act of 1974. Both of these Acts, as has been
noticed above, with certain minor exceptions, came into force on the
same date, namely, 8.6.1973. The new statutory scheme would
necessarily involve "fair quality land" being substituted by "irrigated land'',
-G the ceiling area in the two cases also being entirely different. This being
the case, it is importantto now construe Section 9 of the 1974 Amendment
Act in this backdrop. Be it noted that Section 9 itself comes into force
only on 17.1.1975. For Section 9 to apply, an order has to be made
determining surplus land in relation to a tenure-holder before the
commencement of the Amendment Act. By Section 1(2), "this Section"
H
ARVIND KUMAR v. STATE OF U.P. & ORS. 733
[R.F. NARIMAN, J.]
and Section 9 both come into force at once i.e. on 17 .1.1975. The A
expression "this Section" refers to Section 1(1) which in turn refers to
the Act as the U .P. Imposition of Ceiling on Land Holdings (Amendment)
Act, 1974. This being the case, it is clear that the Act has commenced
only on 17 .1.1975, even though a number of Sections shall be deemed to
have come into force retrospectively i.e. on 8.6.1973. The order passed
B
by the prescribed authority being on 13.1.1975, the first condition of
Section 9 is met, namely, that this order has been passed before
17.1.1975. It is the second part of the Section on which a lot of the
debate featured. According to learned counsel for the State a discretion
is vested in the prescribed authority by use of the expression "may".
We may hasten to add that the very expression "may at any time within c
a period of two years ... " also occurs in Section 31(3) of the U.P.
Imposition of Ceiling on Land Holdings (Amendment) Act, 1976. This
sub-section makes it clear that the expression "may" goes along with
the words "at any time within a period of two years ... " as it is clear that
on a correct reading of the sub-Section, the prescribed authority has, in
D
every case, to re-determine surplus land ifan order determining surplus
land has been made before the 1oth day of October, 1975. The idea is
that a period of two years is given to re-determine surplus land in
accordance with the principal Act as amended by the U .P. Imposition of
Ceiling on Land Holdings (Amendment)Act, 1974. This being the case,
it is clear that no discretion is vested in the prescribed authority to re- E
determine surplus land. Surplus land has, in all cases, to be re-determined,
as a completely different and new scheme applicable to all lands has
replaced the existing scheme. The only exception is where, prior to
8.6.1973, a determination of surplus land has been made finally, that is,
an appeal has been disposed of under Section 13.
F
13. The matter may be looked at from a slightly different angle.
Section 19 of the 1972 Amendment Act, which is a transitory provision,
provides for abatement of proceedings that are pending on the
commencement of the said Act. We have already indicated that the
pending proceedings of 1967 had to start afresh on the issue of a general
notice under Section 9(2) as inserted by the Amendment Act of 1972, G
which was in fact done. Thus, the 13.1.1975 order is a consequence of
section 19( I) of the Act. Section 19(2) on facts has no application for
the simple reason that surplus land had not in this case been determined
finally before commencement of the 1972 Act - that is, an appeal had
not been decided under Section 13 of the principal Act prior to this date. H
734 SUPREME COURT REPORTS [2016] 9 S.C.R.
A 14. This brings us then to the transitory provision contained in the
U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1976.
Under Section 31 (2), clearly, the order determining the surplus land in
the present case had been made four days before 17.1.1975 and thus
the first condition or pre-requisite for the application of the Section is
met. The second pre-requisite is also met for the simple reason that
B
Section 9 of the 1974 Act, which forms part of the same legislative
scheme as the 1972 Amendment Act, would apply for the reason that an
order determining surplus land had been made prior to commencement
of the said Act, namely, 17.1.1975, (which happens to be the same as
the first pre-requisite for the application of Section 31 (2) of the
c Amendment Act of 1976). This being the case, the language of Section
31 (2) makes it clear that every appeal preferred against such orders and
pending immediately before the I oth day of October, 1975, shall be
deemed to have abated on the said date. On facts, we are informed
that an appeal had been filed prior to this date.
D 15. This being the case, it was necessary for the prescribed
authority to re-determine surplus land under Section 31 (3) in accordance
with the principal Act as amended by the 1976 Act, for which purpose,
the provisions of section 13 of the principal Act shall apply mutatis
mutandis to every order re-determining surplus land under sub-section
3 of this Section or Section 9 of the 1974 Amendment Act- (vide Section
E 31(4) of the 1976 Amendment Act). This never having been done on
facts in the present case, it is clear that the appeal filed in 1975 has
abated and could not therefore have been heard by the Additional
Commissioner, Agra on merits. This being so, the judgment and order
passed by the Commissioner dated 13 .1.197 5 is without jurisdiction.
F 16. It only remains to consider the reasoning of the appellate
authority and the High Court. Both the appellate authority and the High
Court were of the view that no fresh notice had been issued under S~ction
9(2) of the U .P. Imposition of Ceiling on Land Holdings (Amendment)
Act, 1972. It has been pointed out to us, on facts, that in fact such a·
G notice had been issued on 24.11.1975. Despite this, the appellate authority
and the High Court, in their anxiety to decide against abatement, have
wrongly held no such notice was proved to have been issued. Be that as
it may, it is clear that abatement under Section 31 does not depend upon
the issuance or non-issuance of any notice under Section 9(2) as
amended. This being the case, the finding of fact of non-issuance of
H
ARVIND KUMAR v. STATE OF U.P. & ORS. 735
[R.F. NARIMAN, J.]
notice itself being a non-issue, it is unnecessary for u~ to pursue the A
same. It is only necessary to reiterate that no fresh exercise under the
. 1976 Amendment Act was undertaken by the prescribed authority as is
•' l'l:quired by section 31(3) of the 1976 Amendment Act. This being the
case, the impugned judgment of the High Court has necessarily to be set
aside. The appeal is, therefore, allowed with no order as to costs.
B
Divya Pandey Appeal allowed.
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