Dayal Vs. State of U.P. & Ors  INSC 253 (2 May 1995)
K. Ramaswamy, K. Hansaria B.L. (J)
1995 SCC Supl. (3) 20 1995 SCALE (3)688
2ND DAY OF MAY,1995 Present:
Mr. Justice K. Ramaswamy Hon'ble Mr. Justice B. L. Hansaria Mr. S. N. Singh,
Adv. for the appe-llant Mr. R. B. Misra, Adv. for the Respondents.
following Order of the Court was delivered:
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3012-14/79
RAGHUBAR DAYAL (DEAD) ...APPELLANT VERSUS Substitution allowed.
three appeals are disposed of by a common judgment since they arise from the
common judgment delivered by the High Court of Allahabad in W.P. No.3763/79 and
batch dated July 4,
1979. The facts in
C.A. No.3012/79 are sufficient for disposal of the appeals. On July 11, 1956, he Government had granted to the
appellant certain parcels of land for settling down colonies thereon and to
cultivate the land on improved methods of cultivation, subject to the terms and
conditions contained in the grant made under the Government Grants Act, 1895.
Under s.10(2) of the U.P.
of Ceiling on Land Holdings Act, 1960 (for short 'the Act'), notice was issued
on October 20, 1974 by the prescribed authority calling
upon him to submit the return for determination of the ceiling area. The
appellant's objections raised on December 4, 1975 were rejected by the Prescribed Authority by proceedings
dated February 28, 1975 holding that the appellant held 94 Bighas
16 Biswas of surplus land and was called upon to surrender the same. The
appellant carried the matter in appeal to the appellate authority and the Civil
Judge by judgment dated June
2, 1976 dismissed the
appeal. In the writ petitions, as stated earlier, the High Court confirmed the
orders of the authorities under the Act.
Kumar Gupta, learned counsel for the appellant, contended that when the grant
was made under the Government Grants Act, by operation of s.2 and s.3 thereof,
the lands covered under the Grant Act stood excluded from the operation of the
Act. The competent Authority under the Act has, therefore, no jurisdiction or
power to issue the notice and also determining the surplus land calling upon
the appellant to surrender the excess land. Alternatively, it is contended that
the appellant is required to file the return under s.9. Section 6(h) was
deleted by Amendment Act on January 14, 1975.
Therefore, the notice issued in October, 1974 is without jurisdiction and a
nullity. No fresh notice was issued to the appellant under s.9 after the
deletion of the exemption clause referred to therein. The computation of the
surplus land is, therefore, illegal. In support thereof, he placed reliance on
the judgment of this Court in Malkhan Singh & Ors. vs. The State of U.P. & Ors., 1976 (2) SCC 268.
first question is whether the lands held by the appellant are excluded from the
purview of the Act. Section 3(d) of the Act defines holding meaning the land or
lands held by a person as a bhumidhar, Sirdar, Asami of Gaon Samaj or an asami
mentioned in s.11 of the Uttar Pradesh Zamindari Abolition & 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, 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. A reading of it clearly indicates that the land held
as a tenant under the U.P. Tenancy Act, other than the lands as 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 is covered
by the Act. The contention of the appellant is that the Government grant is not
a lease and that, therefore, s.3(d) is inapplicable.
find no force in the contention. The preamble to the grant clearly mentioned
that the land was granted for cultivation to make the improved methods of
cultivation within the meaning of s.3(8) of the U.P. Tenancy Act XVII of 1939.
The grant was subject to the terms and conditions mentioned therein. The
conditions, inter alia, were that the appellant has to pay annual lease amount
and has to personally cultivate the land as enumerated in Clause (1) (a). The
grantee shall commence the cultivation within the prescribed period mentioned
in Clause (b) and he shall permanently reside in the colonies as mentioned in
Clause (c). Clause (2) mentions that the grantee shall use the land for the
purpose of cultivation only and purposes incidental thereto and for no other
purposes. The grantee shall not part with the possession of the land. In other
words, he is prohibited to sub-lease the land. Clause (4) mentions its
impartibility. Clause (5) prohibits subletting, transfer or otherwise alienate
the land. Clause (5) say that the lessee shall pay the rent and if he fails,
the defaulted amount would be treated as arrears of land revenue and
recoverable from him. Clause (6) mentions that he shall be at liberty at any
time to surrender the land to the Government. Clause (7) gives power to the
Government to determine the lease in which case the lessee shall not be
entitled to any compensation for any improvements as he might have made for the
benefit of the land, for any building, or structures erected by him thereon.
it could be seen that though it is a grant made under the Government Grants
Act, it is in substance a lease of agricultural land granted by the Government
to the appellant for cultivation subject to the covenants contained there under,
some of which have been mentioned hereinbefore.
105 of the Transfer of Property Act defines lease as transfer of right to enjoy
immovable property made for a certain time, express or implied or in
perpetuity, in consideration of a price paid or promised, or of money etc to
the transferor by the transferee who accepts the transfer on such terms. The
grant is in substance, therefore, is a lease of the agricultural land for
personal cultivation on improved methods of cultivation during the period of
the substance of the lease for consideration, terminable on notice by either
side. Accordingly, the appellant is a holder of agricultural lands within the
meaning of s.3(d) of the Act.
otherwise, we find that the Government Grants Act itself prescribed the
applicability of the Act to the lands covered by the grant. The proviso to
sub-section (3) of s.3 reads thus:
that nothing in this section shall prevent, or deemed ever to have prevented
the effect of any enactment relating to the acquisition of property, land
reforms or the imposition of ceiling on agricultural lands i.e. U.P. Act 13 of
1960." That was inserted with retrospective effect. Thus, it could be seen
even if the present is construed as a grant of the agricultural lands under the
Government Grants Act, by operation of the proviso to sub-s. (3) of s.3 of the
Act, the Act is clearly applied for the purpose of computation of the ceiling
area of the agricultural lands. It would appear that the Government Grants Act
intended that even the grantee under that Act shall not be in excess of the
ceiling area prescribed under the Act. Thereby, the lessee of the Government
land, though had a grant under the Govenment Grants Act, cannot claim to have
been outside the purview of the Act.
hold that the view taken by the authorities below and the High Court is
perfectly right and legal. The decisions cited by the learned counsel are
inapplicable to the facts in this case. In Byramjee Jeejeebhoy (P) Ltd. vs.
State of Maharashtra, 1964 (2) SCR 737 this Court held at page 747 that the
grant could not be regarded as a lease as it contemplated a demise or transfer
of a right to enjoy the land for a term or in perpetuity in consideration of a
price paid or promised or services or other things of value to be rendered
periodically or on specified occasions to the transferor. In that case, since
the grant was without any of the convenants, it was held that it was not a
lease but a grant. But, as seen, the grant herein itself specifically enumerates
the covenants noted above and a reading thereof clearly indicates that it was
in substance a lease, though the grant was made under the Government Grants
ratio in State of U.P. vs. Zahoor Ahmad, 1974(1) SCR 344 also has no
application to the facts in this case.
the provisions of the Transfer of Property Act was sought to be applied to the
grant. By operation of s.3 of the Government Grants Act, the applicability of
the provisions of the Transfer of Property Act stands excluded and, therefore,
it was held that that Act has no application to grant made under the Government
Grants Act. Equally, the case of Bihari Lal Express Newspapers (P) Ltd. vs.
Union of India, 1986 (1) SCC 132 has no application as its ratio was to the
regard to the need to issue fresh notice as required under s.9, we are of the
considered view that there is no force in the contention. It is true that s.6(h)
was deleted by way of an Amendment Act made in January, 1975, but it was made
effective from 1973. Notice under s.10 (2) was issued to the appellant by the
Prescribed Authority on October 20, 1974 and, as such, after the Amendment Act
had become effective. Further, on the facts in this case, the compliance is one
of substance rather than form. The appellant voluntarily failed to file the
return, so he was called upon to file the return under s.10(2) of the Act.
the return is voluntarily filed or not, makes little difference, when the
authority has jurisdiction and determined the ceiling area. It is seen that by
the date of the determination of the ceiling land, the amendment had come into
force. Therefore, the exemption granted under s.6(h) stood deleted. In
consequence, the acts done by the authorities in determining the ceiling area
and declaration of surplus land was within their power and jurisdiction.
ratio in Malkhan Singh's, 1976 (2) SCC 268, has no application to the facts in
this case. In that case the facts were that the tenure holder having had excess
land failed to submit the statement in respect of his holding under the U.P.
Imposition of Ceiling on Land Holdings Act, 1960 within the time prescribed.
Consequently, the Prescribed Authority issued the notice determining the
surplus land. In response, the tenure holder filed the objections. One of the
pleas was that there were 14 members in his family including his sons,
grandsons and granddaughters and all of them were joint in home, hearth and
estate, and that consequently, there was no surplus area with him. Therefore,
second notice was necessary to enable to file a separate return claiming
appropriate computation of holding. So the ratio is inapplicable to the facts
in this case.
next contended that under s.133-A of the U.P. Zamindari Abolition & Land
Reforms Act, 1950, the lease covered under the Act was treated to be Government
lease and the appellants were entitled to hold the same in accordance with the
terms and conditions of the lease relating thereto.
contended that this Act was extended to Nainital after 1.7.1969 and, therefore,
the notice issued is also illegal.
find no force in the contention. In this case, since the lease itself was
granted by the Government under the Government Grants Act, s.133-A has no
appeals are accordingly dismissed. But in the circumstances without costs.