NAWAB SYED MURTAZA ALI KHAN (DEAD) BY LRS.versusPRESCRIBED AUTHORITY, RAMPUR AND ORS.

A            NA WAB SYED MURTAZA ALI KHAN (DEAD) BY LRS.
                                           v.
                 PRESCRIBED AUTHORITY, RAMPUR AND ORS.

                                  AUGUST 18, 2003

B            [SHIVARAJV. PATILANDD.M. DHARMADHIKARI,JJ.]


           Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960-
    Sections 3,5,6 and 6(xiv)-Land held by ex-Ruler-Exemption from imposition
C   of ceiling by virtue of Section 6(xiv)-Act amended from time to time-Repeal
    of Section 6(xiv) by the Amendment Act-Omission of exemption of private
    properties ofex-Ruler in categories of exemption under Section 6-Effect of-
    Held: Lands were ruler's private properties and he was not a tenure holder-
    Mere omission of exemption by private properties of ex-Ruler in categories
    of exemption after amendment cannot take effect and operation of Section 5
D   dealing with imposition of ceiling-Thus, having regard to Sections 3, 5 and
    6, Section 5 not applicable to land held by ex-Ruler-Order of High Court
    holding provisions of the Act applicable to the lands held by the ex-Ruler
    set aside and matter remitted to High Courl for fresh consideration-Uttar
    Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972.

E          Appellants' father-ex-Ruler of Rampur State entered into merger
    agreement with Dominion oflndia. He was entitled to full ownership, use and
    enjoyment of all private properties (as distinct from State properties)
    belonging to him on the date of agreement. A letter containing list of movable
    and immovable properties, which would be private properties of the Ruler was
F   given. It included agricultural lands covering an area of 1073 acres which
    was transferred by the State to the ruler for farming purposes free of rent.
    Thereafter, notifications were issued under the Zamindari Abolition Act and
    all the estates were vested in the State except private lands belonging to the
    ex-Ruler Rampur. In 1960, Uttar Pradesh Imposition of Ceiling on Land
    Holdings Act was passed. By virtue of Section 6(xiv) lands held by the erstwhile
G   Ruler of merged State were exempted from imposition of ceiling. The said
    section was repealed by the Uttar Pradesh Imposition of Ceiling on Land
    Holdings (Amendment) Act, 1972. Prescribed authority issued notice to the
    appellants' father that exemption clause under Section 6(xiv) of the Act having
    been repealed the ceiling Act has become applicable to the lands held by him.
    He filed objections which were rejected. Subsequent appeal was also dismis~ed.
H                                         666
            NAWAB SYED MURTAZA ALI KHAN v. PRESCRIBED AUTHORITY              667

Thereafter, writpetition was filed. During pendency, appellant's father died        A
and the appellants were brought on record as legal representatives. High Court
also dismissed the writ petition. It held that since Section 6(xiv) of the Act
had been repealed, appellants were not entitled to claim exemption of the
provisions of the Act. Hence the present appeal.

       Appellants contended that the lands in question were private properties
                                                                                    B
of ex-Ruler of Rampur State as evident from Merger Agreement coupled with
collateral letters and the notification issued under the Zamindari Abolition
Act; thaftheir father was not a tenure holder and was the absolute owner of
the agricultural lands; that having regard to the definitions contained in
Section 3 of the Act of"holding", "tenure holder" and "surplus land", Section       C
5 of the Act is not applicable to the lands held by the appellants merely because
exemption under clause 6(xiv) was repealed; and that the Prescribed Authority
as well as the Appellate Authority focused their attention on the exemption
clause without considering the applicability or otherwise of Section 5 in regard
to ceiling on holding.
                                                                                    D
      Respondents-authority contended that the definitions given in Section
3 must be understood and interpreted in the context of the scheme of the Act;
that 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      E
consciously took away the exemption given earlier; and that 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.

      Allowing the appeal, the Court
                                                                                    F
      HELD: 1.1Section6 of the Uttar Pradesh Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972, 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          G
operation of Section 5 dealing with imposition of ceiling and the other
provisions of the Act There may be cases where an ex-Ruler possessed private
lands as absolute owner as against tenure holder or may be holding lands
partly as tenure holder or partly as absolute holder of the private property.
Such cases are to be examined in the light of definitions contained in Section      H
    668                     SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A 3 and provisions contained in Section 5 read with Section 6. [676-A·C)
           1.2. High Court did not consider whether the provisions of the Act
    applied to appellants's land. Notification was issued under the Zamindari
    Abolition Act which vested estates in the State but did not include estate!> in
    Rampur State. Thus the lands in question were the private properties of the
B   ex-Ruler ofRampur, and whereas High Court erred in stating that the lands
    were not private properties of the ex-Ruler and also that the ex-Ruler was a
    tenure holder merely looking to the use of the words 'free of rent'. High Court
    should have examined, whether Section 5 of the Act could be applied in relation
    to the private lands held by the ex-Ruler in proper perspective having due
C   regard. to the definitions "holding", "tenure holder" and "surplus land"
    contained in Section·3, provisions i11: section 5 and section·6 of the Act. Thus,
    the order of High Court is·set aside and matter is remanded to High Court
    for fresh consideration: [675~F-H; 676-E]

          Rani Ratnaprova Devi and Ors. v. The State of Orissa and Ors. AIR
D   [1964) SC 1195, referred to.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1712of1997.

         From the Judgment and Order dated 30.4.96 oftheAllahabad High Court
    inC.M.W.P. No. 6831 ofl980.
E
                                         WITH

          W.P. (C) No. 804of1996.

         Bhava Dutt Sharma, Ranbir Yadav, Atul Kumar and Ajay Kumar for the
F   Appellants.

         Dinesh Dwivedi, K. Mishra, Manoj R. Sinha, Manoj Kr. Mishra and M.C.
    Dhingra for the Respondents.

          The Judgment of the Court was delivered by
G         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. Article4 of the said Agreement, to the extent relevant,
H   reads:-
         NAWAB SYEDMURTAZAALI KHAN v. PRESCRJBEDAUTHORITY[PA TIL,J.)           669
         "Article 4-                                                                  A
            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     B
    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       C
            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     D
    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    E
    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 I. 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          F
    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       G
    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,         H
    670                   SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A         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
B         exercise of the Ceiling area applicable to him, and includes any·           c
          buildings, weil 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:-

c         (a) a woman whose husband is a tenure-holder;

          (b) a minor child whose father or mother is a tenure-holder."
                                                                                      ._
          "3(2 I) - The words and expressions not defined in this Act but used        ,.\",
          in Uttar Pra_desh Zamindari Abolition and Land Reforms Act, 1950,
          shall have the meanings assigned to them in that Act."
D
          "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,
E         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      r-
          or ostensibly in the name of any other person, shall be taken into
          account.
F
          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
                                                                                      -
                                                                                      i
                                                                                      ~

          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
G         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-
H
NAWAB SYED MURTAZA ALI KHAN v. PRESCRIBED AUTHORITY [PATIL, J.]     671
(I) Notwithstanding anything contained in this Act, land falling in any    A
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 B
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      C
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     D
to the extent prescribed;

(t) 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       E
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         F
extent prescribed;

(h) [Omitted]

Explanation - Nothing in clause (t) of sub-section (I) shall apply in
relation to a Goshala referred to in clause (g) of that sub-section."
                                                                           G
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    H
    672                             SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A           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
B           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
C   were initiated by issuing notice under Section I 0 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
D   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 Authoiity. 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,
E   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
F   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
G were private properties of ex-Ruler ofRampur 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
H Section 3 of the Act of "holding', "tenure holder" and "surplus land", Section
        NA WAB SYED MURTAZA ALI KHAN v. PRESCRIBED AUTHORITY [PATIL, J.)      673

5 of the Act is not applicable to the lands held by the appellants and merely        A
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             B
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                 C
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; ifthe private properties of the Ruler were not covered      D
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.
                                                                                     E
       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             F
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.    G
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         H
    674                    SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A 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 o;ie 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
B   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
C   meaning of Section 3 of the Act; therefore, he was a tenure holder under the
    Act. This Court in Rani Ratnaprova Devi and ors v. The State of Orissa and
    ors., [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
D          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
E          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
F   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
G   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
H          and get the same declared ultra vires. If that has not been done then
         NAWABSYEDMURTAZAALIKHAN v. PRESCRIBEDAUTHORITY[PATIL,J.]            675

        the Ceiling Act has full force."                                            A
       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         B
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           C
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      D
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 Jetter annexed to the Merger Agreement. It failed to
consider the use of the words 'free of rent' having regard to the contextual        E
facts and in the light of the decision of this Court aforementioned.
Unfortunately, the High Court did not even consider the relevant provis:ons
of the Act bearing on the controversy.

       Section 5 of the Act deals with imposition of ceiling. It declares that on   F
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 (;ave
been examined by the High Court in proper perspective having due regard to          G
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            H
    676                    SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A 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
B   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
C   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
D   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
E   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.
F                                                                Appeal allowed.
    NJ.