Shri Prem
Ballabh Belwal Vs. State of U.P. & Ors [1996] INSC 851 (24 July 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
1996 SCALE (5)564
ACT:
HEAD NOTE:
O R D
E R
Delay
condoned.
Substitution
allowed.
Respondent
Nos.4 and 5 are ordered to be transposed as appellants.
This
appeal by special leave arises from the judgment of the Allahabad High Court
made on January 4, 1979 in CMWP No.2960/77. The admitted
position is that the first appellant as tenure-holder under the provisions of
the U.P.
Imposition
of Ceiling on Land Holdings Act, 1960 (Act 1 of 1961) (for short, the `Act')
held bhumiswami lands of an extent of 182 acres in Ram Nagar and Nainital Tehsils
of Nainital District and in tehsil Ranikhet of Almore district.
In
addition, his wife Smt. Basanti Devi held 127 bighas (24 acres) of agricultural
land in the village Sanwalde, Tehsil Ram Nagar. After the Act had come into
force, the tenure- holder was enjoined to file his return under Section 5 in
Chapter II of the Act. When the land held by his wife was sought to be included
in the holding of the appellant, his wife filed objection stating that she was
in possession of the land as Sirtan of the agricultural land which is later
termed as `Asami' right; she had no title to the property and was liable to be
ejected any time and, therefore, the land could not be included in the holding
of the tenure- holder. The claim was rejected by the Tribunals and in the writ
petition, the learned Judge, while holding that Smt. Basanti Devi is not a
holder within the meaning of Section 3(9) of the Act and not a
"tenure-holder" within the meaning of Section 3(17) of the Act, came
to the conclusion that being a member of the "family" defined under
Section 3(7) of the Act, she was holding the land of 24 acres. Consequently,
the land was required to be included in the holding of the tenure-holder,
namely, the appellant.
Shri Satish
Chandra, learned senior counsel for the appellant, sought to draw a distinction
between holding and occupation of the land. Section 3(21) of the Act envisages
that the expressions not defined in the Act would be construed to be the
appropriate expressions as defined in the U.P. Zamindari Abolition and Land
Reforms Act, 1950 (for short, `Abolition Act'). Section 3(14) of the Abolition Act
defines `land' to include land held and the land occupied.
The
Act envisages imposition of ceiling in respect of the land held by a
tenure-holder. The occupation thereby, which would envisage some semblance of
title to the property, alone would be included in the holding of a
tenure-holder.
Since Basanti
Devi was not holding land as a tenure-holder but was in precarious occupation
and enjoyment of the land, the same cannot be included in the holding of the
tenure- holder It is true that Section 3(14) of the Abolition Act, while
defining the land, made a distinction between land invested with title and land
in occupation and enjoyment for the purpose of the Abolition Act. The Ceiling
Act envisages land held by the tenure-holder for the purpose of imposition of
the ceiling. The object of the Act is that no tenure- holder should hold and
remain in possession and enjoyment of agricultural land in excess of ceiling
limit. The family must not hold in excess thereof. It would be seen that the
distinction sought to be made in the Abolition Act read in isolation of the
Ceiling Act does indicate that there is a difference between the person having
title to the property and person remaining in occupation and enjoyment of land
governed under the provisions of the Abolition Act. The assami under the
Abolition Act does not appear to get any absolute right except as envisaged in
the Abolition Act and is liable to ejectment on fulfillment of the conditions
envisaged in the relevant provisions of the Act. The Act defines `family' under
Section 3(7) to include the tenure- holder, his wife, if she happens to be a
tenure-holder, her husband, the spouse, the minor daughters, sons except
married daughters. The tenure-holder himself/herself is a holder, will be
treated to be a tenure-holder and computation of the ceiling would be done in
accordance with law. If the tenure-holder happens to be a member of the family,
though the wife has property of her own, the intendment of the Act appears to
that the lands held by the tenure-holder, the wife/husband in the name of minor
children but not married daughters, all are to be included in the holding of
the tenure-holder. After excluding 7-1/2 hectares of the land as the ceiling
determined under Section 5 and after permissible computation, the rest of the
land is to be declared as surplus land.
It is
not in dispute that Smt. Basanti Devi died on 9.2.1979 pending ceiling
proceedings. It is also stated in paragraph 2 or the SLP that the respondent
Nos.4 and 5, sons succeeded to her estate In other words, they have held the
land after her demise as successors. Under these circumstances, in determining
as to what was the incidence of her holding 24 acres, it would be suffice to
hold that her lands passed on to her sons. It is but necessarily to be
concluded that she had held the land as assami and the tenure-holder held the
land of his wife. Total land held by him is 182+24 acres, i.e., 206 acres. it
is sought to be offered that the tenure-holder is prepared to surrender the
land held by his wife and that, therefore, the excess bhumiswami land held by
the tenure-holder may not be taken to be in his possession. we would make it
clear that in the event of the appellant's surrendering the 24 acres of land
held by Smt. Basanti Devi, necessarily the same land cannot be included in the
holding of the husband, the first appellant - tenure-holder. In the event of
their not surrendering the land, the ceiling authority shall necessarily
compute the entire land in the holding of tenure-holder and the surplus land
accordingly be determined and the procedure prescribed for surrender should be
followed and action taken according to law within four months from the date of
receipt of the order of this Court.
The
appeal is accordingly dismissed with the above observations. No costs.
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