RAM CHANDRA SINGH (DEAD) THROUGH LEGAL HEIRSversusSTATE OF U.P. AND OTHERS

     RAM CHANDRA SINGH (DEAD) THROUGH LEGAL HEIRS
A
                          v.
              STATE OF U.P. AND OTHERS

                               AUGUST 30, 1990

B               [K.N. SAIKIA AND S.C. AGRAWAL, JJ.)

        U. P. Imposition of Ceiling on Land Holdings Act 1960--
    Amended by Act of 1972 ( 18 of 1973) further amended by U.P. Act 2 of
    1975-Sections 5, 6, 8, 10, I I-Ceiling area determination of.

          The 1960 Act makes provision for imposition of Ceiling on Land
c   holdings and for determination of surplus land. It was amended by U.P.
    Act 18 of 1973 to lower the ceiling limit and to make provisions with
    regard to transfers of land in anticipation of the imposition of ceiling.
    This Act came into force on June 8, 1973. Further amendments were
    made in the Act by U.P. Act 2of1975 inserting Explanation I & E~pla­
D   nation II after sub-section (I) of section 5 as substituted by 1973 Act and
    given effect retrospectively i.e. from June 8, 1973.

          A notice under sectionl0(2) of Act was issued to the appellant and
    he filed objections submitting that Chhiddu Singh, his father, had
    executed a registered gift deed dated October 13, 1971 in respect of plot
E   No. 111 measuring 63 Bighas, 12 Biswas and 17 Dhur in favour of
    ap(lellant's mother. appellant's wife and two sons of the appellant.
    Chhiddu Singh died on April 28, 1973. Accordingly the said gifted land
    was not inherited by the appellant and it could not be treated as part of
    his holding for the purpose of imposition of ceiling. The prescribed
    authority overruled the objections, included the said land as part of the
F   holding of the appellant and declared the surplus land of the appellant       ,
    to the extent of 49 Bighas and 17 Biswas.

          The appellant filed an appeal to the First Additional Civil Judge.
    It was allowed partly and the surplus land was reduced to 42 Bighas 13
    Biswas and 6 Dhur. The appellant thereafter filed a writ petition in the
G   High Coo.rt which was dismissed. Feeling aggrieved the appellant filed
    this appeal after obtaining special leave to appeal.

          The appellant urged before this Court ·that amendments intro-
    duced by the 1973 Act are not retrospective in nature and are operative
    only from June 8, 1973, that the surplus land has to be determined as on
H   June 8, 1973, the date of coming into force of 1973 Act, and that the

                                        118
                           R.C. SINGH v. STATE OF U.P.                      119

     land gifted by the appellant's father' on October 13, 1971 could not be        A
     included in the holding of the appellant as he was not the tenure holder
     of the said land on the death of his father on April 28, 1973.

           Dismissing the appeal, the Court,

           HELD: The 1973 Act postulates that ceiling area of a tenure              8
     holder has to be determined in accordance with the provisions con-
     tained in sec. 5 of the Act. While determining the ceiling area, the
     surplus land held in excess of ceiling area, which is to be acquired by the
     State, has also to be determined. [123H; 124A]

           For determining ceiling area sub-section (6) of section 5 provides
     that any transfer of land, which but for the transfer would have been
                                                                                    c
     declared surplus land under the Act if made after January 24, 1971
     shall be ignored and not taken into account but transfers falling within
     the ambit of clauses (a) and (b) of the proviso to sub-sec. (6) are,
     excludiid, and such transfers even though made after January 24, 1971;
     have to be taken into account. [1248]

           In the instant case, the gift was made aud executed on October 13,
     1971 and it was a transfer of land and as it was made after January 24,
     1971 the transfer of land was in respect of land which would have been
     declared surplus land under the Act. This transfer did not fall within
     the ambit of clauses (a) and (b) of the proviso to sub•section (6) of          E
     section 5. Thus such gift was liable to be ignored for the purpose of
     determining the ceiling area applicable to the appellant. Sub-section (6)
     of section 5 does not speak of a transfer by the tenure holder but it
'-   speaks (/f any transfer of land made after January i4, 1971. So the conten-
     tion of the appellant that gift was made by his father and not by him as
     tenure holder and he did not inherit the same on the death of his father       F
     is untenable, since sub-section (6) of section 5 is applicable to a transfer
     even made by the predecessors-in-interest of the tenure holder whose
     ceiling area is to he determined and ;;.ho inherited the la~d prior to .lune
     8, 1973. The land which was transfered vide gift' deed dated October 13,
     1971 was land which but for the said transfer would have been declared
     surplus land under the Act. [124C-H; 125A]                                     G

           Thus, once the gift is ignored it is to be treated to have continued
     to vest iri the appellant's father and after his death the appellant
     inherited the same and as such was part of the holdings of the appellant
     on June 8, 1973 and has to be taken into consideration for determining
     the surplus land held by the appellant. [1258]                                     H
A
     120              SUPREME COURT REPORTS          [1990] Supp. 1 S.C.R.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5653
                                                                                 -
    . of 1983. • '.

          From the Judgment and Order dated 31.8.1979 of the Allahabad
     High Court in Misc. Writ Petition No. 4994 of 1975

B          E .C. Agarwal for the Appellant.

           Manoj Swarup and Ashok K. Srivastava for the Respondent.
              I•                                                                 ,~
           The Judgment ohhe Court was delivered by
              I

c          s.c.· AGRAWAL, J. This appeal by special leave is directed
    against the judgment of the High Court of Judicature at Allahabad
    dated August 31, 1979 in Civil Misc. Writ Petition No. 4994 of 1975
    filed by the appellant. The said writ petition related to proceedings for
    determination of surplus land under the U .P. Imposition of Ceiling on
    Land Holdings Act. 1960 (hereinafter referred to as 'the Act').
D                 I
            The Act has been enacted by the U. P. State legislature to pro-
     vide for the imposition of ceiling on land holdings in Uttar pradesh and
     certain other matters connected therewith. In Section 4 of the Act
     provision is made for calculation of ceiling area. Section 5 provides for
     imposition of ceiling on existing holdings. Sections 6 to 8 provide for
E    exemption of certain lands from the imposition of ceiling. Section 9
     provides for issue of a general notice by the Prescribed Authority
     calling upon every tenure holder holding land in excess of the ceiling
     area to submit to him a statement in respect of all his holdings. Section
     10 lays down that in every case where a tenure holder fails to submit a      ,.
     statement or submits an incorrect statement the Prescribed Authority
F    shall, after making such enquiry as he may consider necessary cause to
     be prepared a statement indicating the _plot or plots proposed to be
     declared as surplus land and thereupon cause to be served on every
     such tenure holder a notice together with a copy of the statement thus
     prepared calling upc'in him to show cause, within a period specified in
     the notice. why the statement be not taken as correct. Section 11
G    provides for determination of surplus land by the Prescribed Authority
     in cases where no objecton is filed within the period specified in the
     notice, issued under Section 10. Section 12 provides for determination



H
     of surplus land by the Prescribed Authority in cases where an objec-
     ti on has been filed. Section 13 makes provision for appeal against the
     order passed by the Prescribed Authority under Section 11 or Section
     12.
                                                                                 ..   -
             R.C. SINGH v. STATE OF U.P. [AGRAWAL, J.l               121

      In 1972 it was decided to lower the ceiling limit and to make
further provisions with regard to transfers in anticipation of the impo:    A
sition of ceiling. The U.P. State legislature enacted the U.P. Imposi-
tion of Ceiling on Land Holdings (Amendment) Act, 1972, U .P. Act
18 of 1973 (hereinafter referred to as 'the 1973 Act') which came into
force on June 8, 1973. By the 1973 Act Sections 3 to 8 were substituted
and other amendments were made in the Act. Certain further amend-           B
ments were made in the Act by the U.P. Act 2 of 1975. Among the
amendments introduced by Ihe Amendment Act of 1975 was.insertion
of Explanation I and Explanation II after sub-section (I) of Section 5
as substituted by the 1973 Act. U .P. Act 2 .of 1975 was'brought into
force with effect from June 8, 1973. ·

       A notice under Section 10(2) of the Act was issued to the appc-      c
lant and he filed objections wherein it was submitted that Chhiddu
Singh, the father of the appellant, had executed a registered gift deed
dated October 13, 1971 in respect of Plot No. 111 measuring 63
Bighas, 12 Biswas and 17 Dhur in favour of his wife, Smt. Roshan
Kumari, Smt. Premwati, wife of the appellant, and Virendera Bahadur         D
Singh and Tej Vir Singh, sons of the appellant. It ws also stated that
Chhiddu Singh died on April 28, 1973. The submission of the appellant
was that the said land which was gifted by his father Chhiddu Singh
was not inherited by the appellant and it could not be treated as part of
the holding of the appellant for the purpose of imposition of ceiling.
The Prescribed Authority overruled the said objection of the appellant      E
and ignoring. the gift made by Chhiddu Singh, included the said land as
part of the holding of the appellant and declared the surplus land of
the appellant to the extent of 49 Bighas and 17 Biswas. The appellant
filed_an appeal which was partly allowed by the First Additional Civil
Judge, Aligarh, by his judgment dated January 31, 1975, whereby the
area of surplus land was reduced to 42 Bighas, 13 Biswas and 6 Dhur.        F
The appellant filed a writ petition in the High Court which was dismis-
sed by the High Court by.judgment dated August 31, 1979. Feeling
aggrieved by the said judgment of the High Court the appellant has
filed this appeal after obtaining special leave to appeal.

     The expression 'holding' is defined in clause (9) of Section 3 as      G
under:

            "(9) 'holding' means the land or lands held by a person as a
            bhumidhar. sirdar, ·asami of Gaon Sabha or an asan1i
            mentioned .in Section 11 of the Uttar Pradesh Zamindari
            Abolition and .Land Reforms Act, 1950, or as a tenant           H
    122         SUPREME COURT REPORTS                 [1990] Supp. 1 S.C.R.

                under the UP. Tenancy Act, 1939, other than a sub-tenant.
A
                or as a Government lessee or as a sub-lessee of a Govern-
                ment lessee, where the period of sub-lease is co-extensive
                with the period of the lease;"

          The expression 'tenure-holder' is defined in clause ( 17) of See-
n   tion 3 as under:

                "( 17) 'tenure-holder' means a person who is the holder of
                a holding, but does not include-

                (a) a woman 'whose husband is a tenure-holder;
c               (b) a minor child whose father or mother is a tenure-
                holder."

          The relevant provisions of Section 5 are:

D              "5 Imposition of ceiling-(1) On and from the commence-
               ment of the Uttar Pradesh Imposition of Ceiling of 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 area applicable to
               him.
E
               Explanation I-In determining the ceiling area applicable
               to a tenure-holder, all land held by him in his own right,
               whether in his own name, or ostensible in the name of any
               other person, shall be taken into account.

F              Explanation II-(If on or before January 24, 1971, any land
               was held by a person who continues to be in its actual
               cultivatory possession and the name of any other person is
               entered in the annual register after the said date) either in
               addition to or to the exclusion of the former and whether
               on the basis of a deed of transfer or licence or on the basis
G              of a decree, it shall be presumed, unless the contrary is
               proved to the satisfaction of the prescribed authority, that
               the first mentioned person continues to held the land and
               that it is so held by him ostensibly in the name of the second
               mentioned person."
                                                                                •·
H              "(6) In determining the ceiling area applicable to a tenure-
-                R.C. SINGH v. STATE OF U.P. [AGRAWAL, J.]


               holder, any transfer of land made after the twenty-fourth
                                                                           123


                                                                                 A
               day of January, 1971, which but for the transfer would have
               been declared surplus land under this Act, shall be ignored
               and not taken into account;

               Provided that nothing in this sub-section shall apply to-
                                                                                 B
               (a) a transfer in favour of any person (including Govern-
               ment) referred to in sub-section (2);


-              (b) a transfer proved to the satisfaction of the prescribed
               authority to be in good faith and for adequate considera-
               tion and under an irrevocable instrument not being a be-
               nami transaction or for the immediate or deferred benefit         c
               of the tenure-holder or other members of his family.

               Explanation-The burden of proving that a case falls
               within clause (b) of the proviso shall rest with the party
               claiming its benefit."                                            D

          Shri Agarwal has urged that the amendments that were intro-
    duced in the Act by U.P. Act 18 of 1973 are not retrospective in nature
    and that the said amendments are operative with effect from June 8.
    1973, and that surplus land has· to be determined with reference to
    June 8, 1973, the date of coming into force of the 1973 Act. The             E
    submission of Shri Agarwal is that on June 8, 1973 the land coYered by
    Plot No. 111 measuring 63 Bighas, 12 Biswas and 17 Dhur could not be
    included in the holding of the appellant and the appellant was not the
    tenure-holder in respect of the said land. Shri Agarwal has contended
    that in view of the gift deed dated October 13, 1971, executed by
    Chhiddu Singh, the fatherof the appellant, the land covered by the gift      F
    deed had vested in the donees and the appellant did not inherit the said
    land on the death of Chhiddu Singh on 28th April, 1973. Laying stress
    on the definition of expression 'holding' contained in clause (9) of
    Section 3 and the expression 'tenure-holder' contained in clause ( 17)
    of Section 3, Shri-Agarwal has submitted that on June 8, 1973 the
    land that was gifted by Chhiddu Singh was not held by the appellant          G
    and it was not part of appellant's holding and the appellant was not the
'   tenure-holder in respect of the same.

          We find no merit in this contention. The Act postulates that the
    ceiling area of a tenure-holder has to be determined in accordance
    with the provisions contained in Section 5. Alongwith such determina-        H
A
    124          SUPREME COURT REPORTS                [1990] Supp. 1 S.C.R.

    tion of ceiling area there has to be determination of the surplus land
                                                                                  -
    held in excess of the ceiling area which is to be acquired by the State.
    For the purpose of determination of the ceiling area provision has
    been made in sub-section (6) of Section 5 that any transfer of land.
    which but for the transfer would have been declared surplus land
    under the Act. if made after January 24, 1971, shall be ignored and not
B   taken into account. Transfers falling within the ambit of clauses (a)
    and (b) of the proviso to sub-section (6) are, however, excluded and
    such transfers even though made after January 24, 1971 have to be
    taken into account.

          The gift made under the gift deed dated October 13. 1971
    executed by Chhiddu Singh was a transfer of land. It was made after
c   January 24, 1971. It was in respect of land which but for the transfer
    would have been declared surpius land under the Act. The said trans-
    fer did not fall within the ambit of clauses (a) and (b) of the proviso to
    sub-section ( 6) of Section 5. In view of sub-section ( 6) of Section 5 the
    said gift was. therefore, liable to be ignored for the purpose of
D   determining the ceiling area applicable to the appellant.

           Shri Agarwal has urged that sub-section (6) of Section 5 cannot
    be applied. to the present case inasmuch as it postulates a transfer by
    the tenure-holder whose ceiling area is to be determined under the Act
    and that in the present ease the gift was· not ;,,ade by the appellant but
E   by his father and. therefore, the said gift cannot be ignored on the
    basis of the provisions of Sub-section (6) of Section 5. We are unable
    to agree. Sub-section (6) of Section 5 does not speak of a transfer by
    I he tenure-holder. It speaks of any transfer of land made after .January
    24, 1971 which but for the transfer would have been declared surplus
    land under the Act. It is not the requirement of sub-section (6) of
F   Section 5 that the transfer should be by the tenure-holder whose ceiling
    area is to be determined. 'vVe cannot read this rcquiren1ent in it.\\ hilc
    construing sub-section (6) of Section 5 it has to be borne in mind that
    this provision has been made with the object of preventing evasion of
    the ceiling law by owners of large holdings making transfers in antici-
    pation of the imposition of the lower limit on tlie ceiling area. Such a
                                                                                  .
                                                                                  J

G   provision must be so interpreted as to curb the mischief and advance
    the remedy. A construction which will cut down the scope of this
    provision cannot be adopted. In our opinion, therefore. sub-section
    ( 6) of Section 5 is applicable to a transfer made by the predecessor-in-
    intcrcst of the tenure-holder whose ceiling area is to be determined in
    cases where such predecessor died before June 8. 1973 and the tenure-
H   holder whose ceiling area is to be determined inherited the lands of
                    R.C. SINGH v. STATE OF U.P. {AGRAWAL, J.]               125

     such predecessor prior to June 8, 1973. In the instant case the land          A
     which was transferred by Chhiddu Singh under gift deed dated
     October 13, 1971 was land which but for the said transfer would have
     been declared surplus under the Act.

           Once the gift made by Chhiddu Singh is ignored the land so
     gifted should be treated to have continued to vest in Chhiddu Singh .at
     the time of his death on April 28, 1973 and on the death of Chhiddu
     Singh the appellant inherited the same. The said land has to be treated
     as part of the holding of the appellant on June s·, 1973 and he was the
     tenure-holder in respect of the same on that date. The said land was
     required to be taken into consideration for determining the surplus
-·   land held by him.                                                             c
            Shri Agarwal has relied upon the decision of this Court in Arjan
      Singh and Another v. The State of Punjab and Others, [1969] 2 S.C.R.
      347. This case turns on the interpretation of the expression 'this Act' in
      Section 7 of the Pepsu Tenancy and Agricultural Lands (Amendment
      and Validation) Act, 1962 whereby Section 32KK was introduced in
      the Pepsu Tenancy and Agricultural Lands Act, 1955 with effect from
      October 30, 1956. By Section 32KK it was provided that land owned
      by a Hindu undivided family would be deemed to be land of one land
      owner and partition of land owned by such a family shall be deemed to
      be a disposition of land for the purposes of Section 32FF and the
      question was whether a partition effected by a registered partition          E
      deed dated September 6, 1956 was covered by the· said provision It
      would have be!'n so covered if the expression 'this Act' was construed
     ·to mean the principal Act of 1955. This Court, however, held that in
      view of the various provisions contllined in the Amendment Act of
      1962 the expression 'this Act' meant the Amendment Act of 1962 and
      not the principal Act. This decision, therefore, turns on the interpreta-    F
      tion of the particular provision of the Amendment Act of 1962 and it
      has no bearing on the present case.

          We, therefore, find no merit in the appeal and it is accordingly
     dismissed. No order as to costs.
                                                                                   G
     S.Bali                                                 Appeal dismissed.