Nawab Syed
Murtaza Ali Khan Vs. Prescribed Authority, Rampur & Ors [2003] Insc 380 (18 August 2003)
Shivaraj
V. Patil & D.M. Dharmadhikari
WITH
WRIT PETITION (C) NO. 804 OF 1996 Shivaraj V. Patil, J.
Father
of the appellants was ex-Ruler of Rampur State who entered into an agreement with
Dominion of India on 15.5.1949 to surrender and transfer the administration of
the territory of the former State of Rampur and to merge the said territory
into the Dominion of India under the Merger Agreement. Article 4 of the said
Agreement, to the extent relevant, reads:- "Article 4 – The Nawab shall be
entitled to FULL OWNERSHIP, use and enjoyment of all private properties (as
distinct from State properties) belonging to him on the date of this
agreement." On the same day, Ministry of States, Government of India wrote
a letter to him which was to be treated as part of the Merger Agreement. Clause
(xviii) reads:- "(Xviii) - No land or building being your Highness's
private property shall be requisitioned or acquired without your consent and
without paying full compensation." On 15.5.1949 itself, the Ministry of
States, Government of India, wrote a letter to the Nawab containing a list of
moveable and immoveable properties which would be the private properties of the
Ruler for the purpose of Article 4 of the Merger Agreement. Item 6 in the list
pertained to agricultural lands covering an area of 1073 acres stated to have
been transferred by the State to the Ruler for farming purposes free of rent.
Under
Section 4(i) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act,
1950, State Government issued a notification on 30.6.1952 vesting all the
estates in the State which did not include estates in Rampur State. On 30.6.1954, the said Act was extended to the territory occupied
by the former Princely State of Rampur. Thereafter on 1.7.1954, State
Government of Uttar Pradesh issued a notification under Section 4(i) of the
Uttar Pradesh Zamindari Abolition & Land Reforms Act vesting all lands
(estates) situated in the territory occupied by the former princely State of Rampur
except the private lands belonging to the ex-Ruler of Rampur.
The
State Legislature of Uttar Pradesh passed the Uttar Pradesh Imposition of
Ceiling on Land Holdings Act, 1960 (for short `the Act'). The said Act was
amended from time to time.
The
relevant Sections as existed in 1977-78 when the said Act was sought to be
applied to the appellants read as under:- "3(9) - `Holding' means the land
or lands held by a person as a Bhumidar, Sirdar, Asami, 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." "3(16) - "Surplus land" means land held by a
TENURE HOLDER in exercise of the Ceiling area applicable to him, and includes
any buildings, well and trees existing thereon." "3(17) -
"Tenure-holder" means a person who is the holder of a holding, but
except in Chapter III does not include:- (a) a woman whose husband is a
tenure-holder;
(b) a
minor child whose father or mother is a tenure-holder." "3(21) - The
words and expressions not defined in this Act but used in Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950, shall have the meanings assigned to them
in that Act." "Section 5. Imposition of ceiling – (1) 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 ceiling area
applicable to him.
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 ostensibly in the name of any other person,
shall be taken into account.
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 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 hold the land and that it is so held by him
ostensibly in the name of the second mentioned person."
"Section
6 - Exemption of certain land from the imposition of ceiling –
(1)
Notwithstanding anything contained in this Act, land falling in any of the
categories mentioned below shall not be taken into consideration for the
purposes of determining the ceiling area applicable to, and the surplus land
of, tenure-holder namely; -
(a)
land used for an industrial purpose (that is to say, for purposes of
manufacture, preservation, shortage or processing of goods), and in respect of
which a declaration under Section 143 of the Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950, subsists;
(b) land
occupied by a residential house;
(c) land
used as a cremation ground or as a grave-yard, but excluding cultivated land;
(d) land
used for tea, coffee or rubber plantations, and to the extent prescribed, land
required for purposes ancillary thereto and for development of such
plantations;
(e) land
held from before January
24, 1971 for purposes
of a stud farm to the extent prescribed;
(f)
land held from before the first day of May, 1959, by or under a public,
religious or charitable waqf, trust, endowment, or institution the income from
which is wholly utilized for religious or charitable purposes, and not being a waqf,
trust or endowment of which the beneficiaries wholly or partly are settlers or
members of his family or his descendants;
(g) land
held from before June
8, 1973, by a Goshala
of a public nature, registered under the Uttar Pradesh Goshala Adhiniyam, 1964,
to the extent prescribed;
(h)
[Omitted] Explanation - Nothing in clause (f) of sub- section (1) shall apply
in relation to a Goshala referred to in clause (g) of that sub- section."
Section 6 prior to the amendment reads:- "6. Exemption of certain land
from the imposition of ceiling – Notwithstanding anything contained in this
Act, land falling in any of the categories mentioned below shall not be taken
into consideration for the purposes of determining the ceiling area applicable
to, and the surplus land of, a tenure holder – (i) to (xiii)..........................
(xiv) land
held by the Ruler of an erstwhile merged State which because of the conditions
of the Merger Agreement between him and the Government of India or the
collateral letters appended thereto cannot be acquired by the State Government
without his concurrence.
(xv) to
(xix) ....................."
In the
year 1977, proceedings under the Act by the Prescribed Authority were initiated
by issuing notice under Section 10 of the Act ostensibly on the ground that the
exemption clause under Section 6(xiv) of the Act had been repealed and so the
ceiling Act had become applicable to the lands held by the father of the
appellants. Objections were filed before the Prescribed Authority contending
that the Act was not applicable and the proceedings should be dropped. The
Prescribed Authority by its order dated 21.10.1978 rejected the objections. The
learned District Judge dismissed the appeal on 21.5.1980 filed by the father of
the appellants challenging the order of the Prescribed Authority. A writ
petition was filed before the High Court challenging the validity and
correctness of the order passed by the learned District Judge in appeal
affirming the order passed by the Prescribed Authority. During the pendency of
the writ petition, father of the appellants died. Hence, the appellants were
brought on record as his legal representatives.
The
High Court dismissed the writ petition on 30.4.1996 taking a view that the only
provision in the Act which could prevent its applicability to the lands of
former Rulers of Princely States in Uttar Pradesh was the exemption clause
contained in Section 6(xiv) of the Act. Since Section 6(xiv) of the Act had
been repealed by U.P. Amending Act No. XVIII of 1973, the appellants were not
entitled to claim exemption of the provisions of the Act. Under the
circumstances, the appellants are in appeal before this Court calling in
question the validity and correctness of the order passed by the High Court.
The
learned counsel for the appellants urged that the lands in question were
private properties of ex-Ruler of Rampur State as is evident from Merger
Agreement coupled with collateral letters and the notification issued under the
Zamindari Abolition Act; the father of the appellants was not a tenure holder
as the lands were private properties of the Ruler and he was absolute owner of
the agricultural lands; having regard to the definitions contained in Section 3
of the Act of "holding', "tenure holder" and "surplus
land", Section 5 of the Act is not applicable to the lands held by the
appellants and merely because exemption under clause 6(xiv) was repealed,
Section 5 of the Act cannot be applied to the case of the appellants. The
learned counsel made a grievance that the High Court did not consider important
questions of law that arose for consideration in the light of the provisions of
the different Acts having bearing on the decision in the case. According to
him, Prescribed Authority as well as the Appellate Authority focused the
attention on the exemption clause without considering the applicability or
otherwise of the main Section 5 in regard to ceiling on holding.
Opposing
the submissions made on behalf of the appellants, the learned counsel for the
respondents made submissions supporting the impugned order. He urged that
relevant definitions given in Section 3 must be understood and interpreted in
the context of the scheme of the Act; when the exemption given earlier by
Section 6(xiv) was repealed and Section 6 as it stood on the relevant date did
not give any exemption to the private properties of the ex-Ruler, it must be
understood that the legislature consciously took away the exemption given
earlier;
if the
private properties of the Ruler were not covered by the Act, there was no
reason as to why originally exemption was given under Section 6(xiv) of the
Act.
We
have carefully considered the submissions made by the learned counsel for the
parties.
As per
Article 4 of the Merger Agreement Nawab of Rampur was entitled to full
ownership, use and enjoyment of all private properties (as distinct from State
properties) belonging to him on the date of the agreement, i.e., 15.5.1949.
Clause XVIII of the letter annexed to the said agreement of the same date
(Annexure B) states that no land or building being the private property of
ex-Ruler shall be requisitioned or acquired without his consent and without
paying full compensation. On 15.5.1949 itself one more letter (Annexure C) was
written to Nawab from Ministry of States referring to Article 4 of the Merger
Agreement stating that the Government of India agreed that the moveable and
immoveable properties mentioned in the list attached shall be the private
property of ex-Ruler. In the list attached item No. 6 relates to agricultural
lands covering an area of 1073 acres, which were stated to have been
transferred by the State to the Ruler for farming purposes; that was free of
rent. Under Section 4(i) of the Uttar Pradesh Zamindari Abolition and Land
Reforms Act, 1950 State Government issued a notification on 30.6.1952 vesting
of the estates in the State, which notification did not include estates in Rampur State. On 30.6.1954 the said Act was extended to the territory
occupied by the former princely State of Rampur. Further on 1.7.1954 State Government of Uttar Pradesh issued one more notification
under Section 4(i) of the same Act vesting of the lands (estates) situated in
the territory of former princely State of Rampur except the private lands
belonging to the Ruler of Rampur. Thus, it is clear that the lands in question
were the private properties of the ex-Ruler.
The
learned District Judge took a view that since the agricultural lands covered by
item No. 6 in the list referred to above were given "free of rent",
the predecessor of the appellants was a "Government Lessee" within
the meaning of Section 3 of the Act; therefore, he was a tenure holder under
the Act. This Court in Rani Ratnaprova Devi and others vs. The State of Orissa
and others [AIR 1964 SC 1195], in similar circumstances, observed: - "What
the Act has purported to do is to authorize the levy of assessment in respect
of lands which till then had been exempted from the said levy..... If the Orissa
Legislature has imposed A TAX in the form of assessment of the PRIVATE LANDS OF
THE RULERS, clearly it has not purported either to deprive the Rulers of their
property or to acquire or requisition the said property; IT IS A SIMPLE MEASURE
AUTHORISING THE LEVY OF A TAX IN RESPECT OF AGRICULTURAL LANDS and, as such, it
is entirely outside the purview of Article 31." The High Court committed
an error in stating that under Articles 4 to 9 of the Merger Agreement nowhere
there was any mention of any agricultural lands. This was a clear misreading of
the documents. As already stated above, from the letters written by the
Ministry of States, Government of India, on the date of Merger Agreement
itself, referring to the said agreement, agricultural lands were clearly
included in the list at item No.
6. The
High Court also took the view that since the lands were granted 'free of rent'
it only meant that the Ruler was not obliged to pay rent; it meant that the
rent was chargeable on the lands held for agricultural purposes but the Ruler
got a permission of the State not to charge the rent from him. The High Court
in the impugned order observed: - "The argument of the learned standing
counsel is very strong that if the legislature did not intend to exclude the
agricultural land of the erstwhile ruler the forum was available to challenge
the amendment and get the same declared ultra vires. If that has not been done
then the Ceiling Act has full force." It appears that the High Court was
of the view that by the amendment brought to Section 6 exemption, which was
available prior to the amendment under Section 6(xiv), was taken away; the said
amendment having not been challenged as ultra vires the provisions of the Act
applied to the lands of the ex-Ruler. The Prescribed Authority held that the
lands of the ex-Ruler were not covered by any of the exemptions granted by
Section 6 of the Act as amended and rejected the objections of the appellants
that the provisions of the Act did not apply to the lands. The District Judge
dismissed the appeal of the appellants on the ground that the lands were
granted 'free of rent' to the ex-Ruler as he was a tenure holder. The High
Court dismissed the writ petition by the impugned order since the exemption,
which was available under Section 6(xiv) earlier, had been repealed, the
provisions of the Act applied to the lands held by the ex-Ruler.
The
High Court, in our view, did not consider the question that arose for
consideration as to whether the provisions of the Act applied to the lands of
the appellants. As already noticed above, a factual error was committed by the
High Court in stating that the lands were not private properties of the
ex-Ruler. It also committed an error in holding that the ex-Ruler was a tenure
holder merely looking to the use of the words 'free of rent' mentioned in the
item No. 6 of list of the letter annexed to the Merger Agreement. It failed to
consider the use of the words 'free of rent' having regard to the contextual
facts and in the light of the decision of this Court aforementioned.
Unfortunately,
the High Court did not even consider the relevant provisions of the Act bearing
on the controversy.
Section
5 of the Act deals with imposition of ceiling. It declares that 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 ceiling area
applicable to him. Whether Section 5 of the Act could be applied in relation to
the private lands in question held by the ex-Ruler should have been examined by
the High Court in proper perspective having due regard to the definitions
"holding", "tenure holder" and "surplus land"
contained in Section 3 of the Act, provisions contained in Section 5, scope of
Section 6 and other relevant provisions of the Act. The effect of Explanation I
to Section 5 of the Act should have been also kept in view. The focus of the
attention of the High court was confined to the exemptions granted under
Section 6 of the Act without basically considering the main Section 5 dealing
with the imposition of ceiling on the lands held by the ex-Ruler. Section 6 of
the Act speaks of exemption of certain lands which shall not be taken into
consideration for the purposes of determining the ceiling area applicable to,
and the surplus land of the tenure holder. Mere omission of exemption of
private properties of ex-Ruler in the categories of exemptions under Section 6
after amendment cannot take away the effect and operation of Section 5 and the
other provisions of the Act. There may be cases where an ex-Ruler might have
possessed private lands as absolute owner as against tenure holder or may be
holding lands partly as tenure holder or partly as absolute owner of the
private property. Such cases are to be examined in the light of definitions
contained in Section 3 and provisions contained in Section 5 read with Section
6.
Unfortunately,
these aspects did not receive deeper and proper consideration at the hands of
the High Court. As already observed above, the approach of the High Court was
truncated when it considered only the effect of exemption under Section 6 of
the Act on the lands held by the appellants and further the High Court also
committed a factual error in holding that the lands in question were not at all
private properties of the ex-Ruler as per the Merger Agreement.
In
these circumstances, the impugned order cannot be sustained. Hence, this appeal
is allowed, the impugned order is set aside and the matter is remitted to the
High Court for fresh consideration and disposal of the writ petition in the
light of what is stated above.
In the
light of the order passed in Civil Appeal No. 1712 of 1997, no separate order
is needed to be passed in Writ Petition No. 804 of 1996. Accordingly, it is
disposed of. No costs.
Back
