M/S Super
Cassettes Industries Limited Vs. State of U.P.& ANR. [2009] INSC 1599 (17
September 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3058 OF
2008 M/s. Super Cassettes Industries Ltd. ...Appellant Versus State of Uttar
Pradesh & Anr. ...Respondents WITH CIVIL APPEAL NO. 3085 OF 2008 CIVIL
APPEAL NO. 3068 OF 2008 CIVIL APPEAL NO. 3089 OF 2008 CIVIL APPEAL NO. 3165 OF
2008 CIVIL APPEAL NO. 3086 OF 2008 CIVIL APPEAL NO. 3082 OF 2008 CIVIL APPEAL
NO. 3066 OF 2008 CIVIL APPEAL NO. 3071 OF 2008 CIVIL APPEAL NO. 3197 OF 2008
JUDGEMENT R.M. Lodha, J.
1.
This batch of ten appeals by special leave raises identical issues
and emanates from a common order passed by the Additional Commissioner
(Administration) Meerut Division, Meerut and, therefore, all these appeals were
heard together and are being disposed of by a common judgment.
2.
It is not necessary to refer to the facts of each appeal as
narration of facts in Civil Appeal No. 3058 of 2008 would suffice for deciding
the controversy raised in this group of appeals.
3.
On January 24, 2002, the Additional Collector (Finance/Revenue)
(for short, `Prescribed Authority'), Gautambudh Nagar issued a notice under
Section 9(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (for
short, `Act, 1960') calling upon the appellants to file details of the land
held by them in Ceiling Land Holding Form No. 2 (for short, `CLH Form-2') along
with enclosures within a period of thirty days from the date of notice.
4.
Pursuant to the aforesaid notice under Section 9(2), the
appellants submitted its reply on February 21, 2002 raising diverse objections,
inter alia; (1) that notice under Section 9(2) could only be issued to a
tenure-holder who holds agricultural land and not to one who does not hold
agricultural land; (ii) that in the form annexed with the notice, the land of
the objectors has been wrongly shown as irrigated. As a matter of fact, the
subject land was purchased by the appellants through separate 2 sale deeds
dated March 3, 1987; March 10, 1987 and April 20, 1987; which was already
recorded as `abadi' land at the time of purchase; (iii) that the residential
quarters for the labour as well as industries exist over the land, and; (iv)
that the land held by them is not covered by any of the provisions of the Act,
1960. In the statement submitted by the appellant in C.L.H.
Form-2,
it was stated under every column `not applicable'.
5.
On May 23, 2002, the Prescribed Authority called upon the
appellants to submit the details of each khata holders separately along with
the chart.
6.
On June 4, 2002, the appellants, pursuant to the order dated May
23, 2002, submitted the details of the holding in the chart form indicating the
nature of land as `industrial' and `abadi'.
7.
The Prescribed Authority vide his order dated December 17, 2003
cancelled the notice holding that the provisions of Section 9(2) of the Act,
1960 are applicable only in respect of the khatedars who hold agricultural land
in use more than the prescribed area whereas the objectors' land is entered 3
as industrial/abadi. He ordered that necessary endorsement to the said effect
be made in the revenue record.
8.
Not satisfied with the order dated December 17, 2003 passed by the
Prescribed Authority, the State of Uttar Pradesh through Collector, Gautambudh
Nagar preferred appeal under Section 13 of the Act, 1960 before the
Commissioner, Meerut Division, Meerut. Nine other appeals also came to be filed
against the identical orders of the Prescribed Authority.
9.
The appellants raised preliminary objection about the
maintainability of the appeals as, according to them, the orders passed by the
Prescribed Authority were not appealable.
10.
The Additional Commissioner (Administration), Meerut Division
(Appellate Authority) took up all the ten appeals together and, after hearing
the parties, by his order dated October 29, 2004 overruled the preliminary
objection raised by the present appellants regarding the maintainability of
appeals and held that the appeals lay from the orders passed by the Prescribed
Authority.
11.
The appellants challenged the order of the Additional
Commissioner, Meerut Division, Meerut by filing writ petitions before the High
Court.
12.
The Single Judge heard the parties and vide judgment and order
dated May 24, 2007 held that the view of the Appellate Authority in holding the
appeals maintainable warranted no interference. Hence, these appeals by special
leave.
13.
The question as to whether the appeals preferred by the State of
Uttar Pradesh through Collector under Section 13 of the Act, 1960 aggrieved by
the orders passed by the Prescribed Authority are maintainable or not has to be
considered and decided in the light of the statutory provisions contained in
the Act, 1960; rules framed thereunder and the nature of the order dated
December 17, 2003. It is, therefore, appropriate that we refer to the statutory
provisions first.
14.
Act, 1960 was enacted to provide for the imposition of ceiling on
land holdings in Uttar Pradesh and other matters 5 connected therewith; the
main objective of the Act, 1960 being to provide for more equitable distribution
of land by making the same available to the extent possible to landless
agricultural labourers and to provide for cultivation on cooperative basis and
to conserve part of the available resources in land so as to increase the
production and preserve stock of food-grains against lean years.
15.
Section 3(2) defines `ceiling area' that means the area of land
not being land exempted under the Act, determined as such in accordance with
the provisions of Section 5.
`Holding'
under Section 3(9) means the land or lands held by a person as a bhumidar,
sirdar, asami of 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.
6
`Prescribed authority' under Section 3(13) means such officer not below the
rank of an Assistant Collector of the first class as may be empowered by the
State Government, by notification in the Gazette, to perform the functions of
prescribed authority under this Act for such area or areas as may be specified
in that behalf.
`Surplus
land' under Section 3(16) means land held by a tenure-holder in excess of the
ceiling area applicable to him, and includes any buildings, wells and trees
existing thereon.
`Tenure-holder'
under Section 3(17) 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.
16.
Section 5 imposes ceiling on land holdings from the appointed date
and further mandates that no tenure-holder shall be entitled to hold in the
aggregate any land in excess of ceiling area applicable to him throughout Uttar
Pradesh.
17.
Section 6 makes a provision for exemption of certain land from the
imposition of ceiling as set out therein.
18.
Section 9 mandates the prescribed authority to issue general
notice to tenure-holders holding land in excess of ceiling area for submission
of statement in respect thereof. It reads thus :
"9.
General notice to tenure-holders holding land in excess of ceiling area for
submission of statement in respect thereof.--[1] As soon as may be, after the
date of enforcement of this Act, the Prescribed Authority 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 this notice, a statement in respect of all his 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
provisions of this Act.
[(2) As
soon as may be after the enforcement of the Uttar 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 days of publication of such notice a statement referred to in
sub- section (1):
[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
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 (1)
or any information pertaining thereto.];
8 [(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 proceeding under this Act is
pending on October 10, 1975 shall, within thirty days from the said date
furnish to the Prescribed Authority a statement containing particulars of all
land-- (a) held by him and the members of his family on January 24, 1971;
(b)
acquired or disposed of by him or by members of his family between January 24,
1971 and October 10, 1975.]
3. Where
the tenure-holders' wife holds any land which is liable to be aggregated with
the land held by the tenure- holder for purposes of determination of the
ceiling area, the tenure-holder shall, along with his statement referred to in
sub-section (1), 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 area
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 10
to be served on her separately.]"
19.
Sections 10, 11, 12 and 13 which have bearing in this case read as
follows :
"10.
Notice to tenure-holders failing to submit a statement or submitting an
incomplete or incorrect statement.--(1) In every case where a tenure-holder
fails to submit a statement or submits an incomplete or incorrect statement,
required to be submitted under Section 9, the Prescribed Authority shall, after
making such enquiry as he may consider necessary either by himself or by any
person subordinate to him, cause to be prepared a statement containing such
particulars as may be prescribed.
The
statement shall in particular indicate the land, if any, exempted [under
Section 6] and the plot or plots proposed to be declared as surplus land.
(2) The
Prescribed Authority shall thereupon cause to be served upon every such tenure-holder
in such manner as may be prescribed, a notice together with a copy 9 of the
statement prepared under sub-section (1) calling upon him to show cause within
a period specified in the notice, why the statement be not taken as correct.
The period specified shall not be less than ten days from the date of service
of the notice.
11.
Determination of surplus land where no objection is filed. -(1) Where the
statement submitted by a tenure-holder in pursuance of the notice published
under Section 9, is accepted by the Prescribed Authority or whether the
statement prepared by the Prescribed Authority under Section 10 is not disputed
within the specified period, the Prescribed Authority shall accordingly
determine the surplus land of the tenure-holder.
(2) The
Prescribed Authority shall, on application made within thirty days from the
date of the order under sub- section (1) by a tenure-holder aggrieved by such
order passed in his absence and on sufficient cause being shown for his
absence, set aside the order and allow such tenure- holder to file objection
against the statement prepared under Section 10 and proceed to decide the same
in accordance with the provisions of Section 12.
(3)
Subject to the provisions of sub-section (2) and Section 13, the order of the
Prescribed Authority shall be final and conclusive and be not questioned in any
court of law.
12.
Determination of the surplus land by the Prescribed Authority where an
objection is filed.--(1) 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 reasonable opportunity of being heard and of producing
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 of law.
13. Appeals--(1)
Any party aggrieved by an order under sub-section (2) of Section 11 or Section
12, may, 10 within thirty days of the date of the order, prefer an appeal to
the [Commissioner] within whose jurisdiction the land or any part thereof is
situate.
(2) The
[Commissioner] 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 law.
(3) Where
an appeal is preferred under this section, the [Commissioner] may stay enforcement
of the order appealed against for such time and on such conditions as may be
considered just and proper:
[Provided
that the enforcement of the order appealed against shall not be stayed in
respect of that part of the land the surplus character of which was either not
disputed in an objection under sub-section (2) of Section 10 or under sub-
section (2) of Section 11 or is not disputed in the appeal and any stay order
passed under this sub-section before twenty- eighth day of September, 1970, shall,
on an application being made in that behalf to the appellate Court by the State
Government, be modified by that court accordingly.
Explanation
-For the purposes of this proviso any dispute respecting regularity, validity
or legality of a notice under Section 9 or Section 10 or of the proceedings
before the prescribed authority shall not, by itself, be deemed to be a dispute
respecting the surplus character of land.]
20.
Section 29 makes a provision for subsequent declaration of further
land and surplus land and Section 30 provides for determination of surplus land
regarding future acquisition. These provisions are :
"29.
Subsequent declaration of further land as surplus land.--Where after the date
of enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972-- 11 (a) any land has come to be held by a tenure-holder
under a decree or order of any court, or as a result of succession or transfer,
or by prescription in consequence of adverse possession, and such land together
with the land already held by him exceeds the ceiling area applicable to him;
or (b) any unirrigated land becomes irrigated land as a result of irrigation
from a State irrigation work or any grove-land loses its character as
grove-land or any land exempted under this Act ceases to fall under any of the
categories exempted-- the ceiling area shall be liable to be re-determined [and
accordingly the provisions of this Act, except Section 16, shall mutatis
mutandis apply]
30.
Determination of surplus land regarding future acquisition.--(1) Where any land
has become liable to be treated as surplus land [* * *] under Section 29, the
tenure-holder shall, within such period as may be prescribed, submit a
statement to the Prescribed Authority in the form and in the manner laid down
under Section 9 indicating in the statement the plot or plots which he would
like to retain as a part of his ceiling area.
(2) (a)
Where the statement submitted under sub- section (1) is accepted by the
Prescribed Authority, it shall proceed to determine the surplus land
accordingly.
(b) Where
a tenure-holder fails to submit a statement required to be submitted under
sub-section (1) or submits an incomplete or incorrect statement the Prescribed
Authority shall proceed in the manner laid down under Section 10.
(c) The
provisions of this Act in respect of declaration, acquisition, disposal and
settlement of surplus land, shall, mutatis mutandis, apply to surplus land
covered by this section."
21.
In exercise of the powers conferred under Act, 1960 rules have
been framed called Uttar Pradesh Imposition on 12 Ceiling of Land Holdings
Rules, 1961 (for short `Rules, 1961').
Rule 6
provides that the general notice to be published in pursuance of Section 9 and
the statement required to be submitted thereunder by every tenure-holder
holding land in excess of the ceiling area applicable to him in the State shall
be in CLH Forms - 1 and 2 respectively.
22.
Rule 8 reads thus :
"8.
As soon as may be, after the expiry of thirty days from the date of publication
of the general notice in C.L.H. Form 1 in the official Gazette, the Prescribed
Authority shall cause to be served upon every tenure-holder, who has failed to
submit the statement in C.L.H. Form 2 or has submitted an incomplete or
incorrect statement, a notice in C.L.H. Form 4 together with a copy of the
statement in C.L.H. Form 3, prepared under Rule 6 calling upon him to show cause
within a period of fifteen days from the date of service of the notice why the
aforesaid statement be not taken as correct :
Provided
that where the statement in C.L.H. Form 3 also includes land ostensibly held in
the name of any other person, the prescribed authority shall cause to be served
upon such other person a notice in C.L.H. Form 4 together with a copy of the
statement in C.L.H. Form 3 calling upon him to show cause within a period of
fifteen days from the date of service of the notice why the aforesaid statement
be not taken as correct :
Provided
further that in the case of a tenure-holder who is a member of the Armed Forces
(Military, Naval or Air Force) of the Union of India, the period within which
he will be called upon to show cause why the statement in C.L.H.
Form 3 be
not taken as correct, shall be ninety days from the date of service (of the
notice in C.L.H. Form 4.]"
23.
Rule 12 provides that objections filed under Sections 10 and 11
shall be entered in Misalband Register in C.L.H. Form-5. The various forms are
appended to Rules, 1961.
24.
In D.N. Taneja v. Bhajan Lal1, a three-Judge Bench of this Court
observed that the question whether there is right of appeal or not will have to
be considered on an interpretation of the provision of the statute and not on
the ground of propriety or any other consideration. In V.C. Shukla v. State
through C.B.I.2, this Court while dealing with the submission that right of
appeal should be liberally construed referred to the observations of Crawford :
The Construction of Statutes, ".....
Moreover,
statutes pertaining to the right of appeal should be given a liberal
construction in favour of the right, since they are remedial. Accordingly, the
right will not be restricted or denied unless such a construction is
unavoidable" and held:
"There
can be no dispute regarding the correctness of the proposition mentioned in the
statement extracted above, but here as the right of appeal is expressly
excluded by providing that no appeal shall lie against an interlocutory order,
it is not possible for us to stretch the language of the 1 (1988) 3 SCC 26 2
1980 suppl SCC 92 14 section to give a right of appeal when no such right has
been conferred. Even the statement extracted above clearly says that "the
right will not be restricted unless such a construction is unavoidable".
In the instant case, in view of non-obstante clause, Section 11(1) of the Act
cannot be construed to contain a right of appeal even against an interlocutory
order and, therefore, the present clause falls within the last part of the
statement of the Crawford, extracted above".
25.
It is well known that right of appeal is not a natural or inherent
right. It cannot be assumed to exist unless expressly provided for by statute.
Being a creature of statute, remedy of appeal must be legitimately traceable to
the statutory provisions. It is true that mere omission or error in quoting the
provisions would not affect the maintainability of appeal, if otherwise, the
order impugned is amenable to appeal.
26.
In the light of the legal position noticed above, we may now turn
to the nature of the order dated December 17, 2003 passed by the prescribed
authority which admittedly is the culmination of the proceedings pursuant to
the notice issued to the appellants under Section 9(2) of the Act, 1960.
27.
Pertinently, by a notice issued to the appellants on January 24,
2002 under Section 9(2) of the Act, 1960 that they 15 were called upon to
submit the details of the land in excess of the ceiling limits. In response
thereto, the appellants filed objections bringing to the notice of the
Prescribed Authority that the land purchased by them was already recorded as
`abadi/industrial' land under the provisions of U.P. Zamindari Abolition and
Land Reforms Act, 1950 (for short `Act, 1950').
The
appellants, thus, submitted that the land held by them was not covered by the
Act, 1960. They submitted a statement in C.L.H. Form-2 stating under each
column, `not applicable'. The Prescribed Authority accepted the objections of
the appellants and cancelled the notice issued to them under Section 9(2). In
the circumstances, the order dated December 17, 2003 cannot be said to be an
order under Section 11(1). The question is : is that order an order under
Section 12 read with Section 11(2)? Or, in other words, whether the objections
filed by the appellants on February 21, 2002 and the subsequent statement in
the form of chart pursuant to the order dated May 23, 2002 are objections under
Section 10(2) of the Act, 1960?
28.
The scheme of the statutory provisions contained in Sections 9,
10, 11 and 12 is that once the Prescribed Authority 16 issues general notice to
tenure-holders or specific notice to a tenure-holder holding land in excess of
ceiling area for submission of statement in respect thereof, a tenure-holder is
required to file statement within the time prescribed in the notice. Where a
tenure-holder fails to submit a statement or he submits a statement which is
incomplete or incorrect, the Prescribed Authority, after making necessary
enquiry either by himself or by a subordinate officer, cause a statement
prepared in C.L.H Form-3 indicating therein the particulars of the land
exempted under Section 6 and the land proposed to be declared as surplus. The
Prescribed Authority, under Section 10(2) then serves upon such tenure-holder a
notice in C.L.H.
From-4
together with the copy of statement prepared in C.L.H.
Form-3
calling upon him to show cause why such statement prepared in C.L.H. Form 3 be
not taken as correct. The provision contemplates tenure-holder to be given at
least 10 days from the date of service of notice for his response. The
tenure-holder may either accept such statement or file objections thereto. If
he accepts that statement, the Prescribed Authority determines the surplus
land. Such 17 order is an order under Section 11(1). If the tenure-holder files
objections to such statement, the Prescribed Authority then proceeds to
determine the surplus land under Section 12.
In the
present case, the exercise contemplated under Section 10(1) and (2) has not at
all been done by the Prescribed Authority. Neither any statement under C.L.H.
Form 3 has been prepared under Section 10(1) nor any notice under Section 10(2)
along with such statement has been served upon the appellants. The notice dated
January 24, 2002 is a notice under Section 9(2) simplicitor and not a notice
under Section 10(2) at all.
29.
Section 12 contemplates proceedings pursuant to a notice to the
tenure-holder under sub-Section (2) of Section 10 or sub-Section (2) of Section
11 or because of any appellate order under Section 13 and then determination of
the surplus land by the Prescribed Authority after objections have been filed
by the tenure-holder to such notice. There has been no notice issued to the appellants
by the Prescribed Authority under sub-Section (2) of Section 10 nor any notice
came to be issued to the appellants under sub-Section (2) of Section 11.
18 The
matter was also not taken up by the Prescribed Authority because of any
appellate order under Section 13. The appellants filed their objections to the
notice under Section 9(2). In the circumstances, therefore, the order dated
December 17, 2003 cannot be held to be an order under Section 12. It is neither
an order under Section 11(2) nor an order under Section 12 but plainly an order
canceling notice issued under Section 9(2) after objections were filed by the
appellants.
30.
Significantly in the matters of future acquisition, the procedure
as provided in sections 9 to 12 has to be followed as well.
31.
Section 13 provides a right of appeal to a party aggrieved by an
order under sub-Section (2) of Section 11 or Section 12 and no other. In other
words, any order passed by the Prescribed Authority other than the order
under-Section (2) of Section 11 or Section 12 is not appealable. From any
reckoning, the order dated December 17, 2003 is neither an order under
sub-Section (2) of Section 11 nor an order under Section 12. Act 1960 does not
make the order of the 19 Prescribed Authority canceling the notice issued under
Section 9(2) amenable to appeal. Such order does not fall within the ambit of
Section 13. The position is no different for the orders passed by the
prescribed authority in other nine matters.
32.
The High Court held that appeals were maintainable because notice
under Section 9(2) is akin to a notice under Section 10 and if the matter is
disputed by either party and the Prescribed Authority adjudicates the dispute
either in favour of State or tenure-holder, the order falls under Section 11(2)
and, therefore, appealable under Section 13. The reasoning of the High Court is
fallacious for more than one reason. In the first place, it is not correct to
say that notice under Section 9(2) is akin to a notice under Section 10 of the
Act. In the next place, Section 10 applies where pursuant to the notice under
Section 9, the tenure-holder fails to submit a statement or submits any
incomplete or incorrect statement and the Prescribed Authority causes a
statement prepared in the prescribed form (C.L.H.Form-3) and then issues a
notice upon such tenure- holder together with a copy of statement so prepared
in C.L.H.
Form-3 to
show cause why that statement be not taken as correct. We have already noticed
that in the present case, the exercise required under Section 10(1) and (2) has
not at all been done by the Prescribed Authority. In the circumstances, the
orders passed by the Prescribed Authority neither fall under Section 11(2) nor
Section 12 of the Act, 1960.
33.
For the foregoing reasons, these appeals must succeed and are
allowed. The impugned judgment of the High Court as well as that of the
Additional Commissioner are set aside. It is, however, clarified that it will
be open to the Respondent No. 1 to assail the legality and correctness of the
order passed by the Prescribed Authority in appropriate proceedings as may be
advised and in that event the period from the date of the filing appeals by the
Respondent No. 1 before the Additional Commissioner, Meerut Division, Meerut
until date shall not come in their way in pursuing such remedy.
Parties
will bear their own costs.
........................J (Tarun Chatterjee)
........................J (R. M. Lodha)
New Delhi
September 17, 2009.
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