Nawab Syed Murtaza Ali Khan (dead) by Lrs. vs Prescribed Authority, Rampur and Ors.

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.