Supreme Court of India
The State Of Uttar Pradesh vs Suresh Chandra Tewari on 17 December, 2024
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
1
2024 INSC 989 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
(@ SPECIAL LEAVE PETITION (CIVIL) NO.20021 OF 2022)
STATE OF UTTAR PRADESH & ANR. …APPELLANT(S)
Versus
SURESH CHANDRA TEWARI & ORS. …RESPONDENT(S)
JUDGMENT
SUDHANSHU DHULIA, J.
1. Leave granted.
2. Vide The Uttar Pradesh Imposition of Ceiling on Land Holdings
Act, 1960 in the State of Uttar Pradesh the land over and above
a certain limit was to be declared surplus and was then to vest
with the State. The Uttar Pradesh Imposition of Ceiling on Land
Holdings Act, 1960 as well as the earlier Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1950 were enacted
Signature Not Verified
Digitally signed by
Nirmala Negi
Date: 2024.12.17
16:50:25 IST
Reason:
in the State of U.P. immediately after the independence of the
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Country with this purpose. We must not forget that one of the
main commitments of the leaders during the freedom struggle
was that the wide disparity and inequality in distribution of land
will be changed for the better and abolition of Zamindari and
placing a ceiling on land, would be a step towards this goal
towards the redistribution of land, based on the principles of
equity and justice. Since land was in List II i.e., the State List
under the Seventh Schedule of the Constitution of India, these
legislations regarding land reforms were to be made by the
States, and this was done not just in U.P. but throughout the
country.
Consequently, different States brought about the legislations
in their Sates, all aimed at land reforms and redistribution of
land where one of the principal elements was putting a surplus
on the land holding, the declaration of the surplus land and
redistribution of this surplus land to those who were landless
and marginalised farmers. The Uttar Pradesh Imposition of
Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the
‘Act of 1960’) and the purpose of its enactment has to be seen in
this context.
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3. Out of the various provisions in the 1960 Act, Section 9 and
Section 10 are important here for our purposes, which are as
under :-
“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
the 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 the
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 50 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
4notice, 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. ]
[ (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
proceedings 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-holder’s 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.]
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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 2[Section 6] and the plot — 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 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”
Since the respondents did not submit a statement in terms of
Section 9, the Prescribed Authority prepared a statement taking
into consideration the entire land of the tenure holder and then
a notice was issued under Section 10(2) of the Act of 1960 to the
main recorded land owner i.e., Shri Hari Shankar Tiwari on
16.03.1974 by the Prescribed Authority as to why from his large
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land holding a portion be not declared as surplus. Late Shri Hari
Shankar Tiwari (father of the present respondent no.1) filed his
objections wherein he stated that there has been a family
settlement which was arrived at between the parties way back in
the year 1967 and according to this family settlement, shares of
all the family members have already been determined. Moreover,
this settlement has also been reduced to writing way back in the
year 1969 and in the year 1970 one of the sons of Late Shri Hari
Shankar Tiwari had also instituted a suit in the Court of Civil
Judge, Junior Division in respect of non-agricultural properties,
which were also then included in the memorandum of family
settlement. The said suit was decreed on 02.11.1970 and on the
basis of family settlement and memorandum dated 09.11.1969,
the land has been divided and share of each family member is
demarcated. A suit was also filed on 30.01.1971 for permanent
injunction for restraining Late Shri Hari Shankar Tiwari (father
of the respondent no.1) from interfering in the agricultural lands
on the basis of the family settlement. The suit was decreed on
09.08.1971. In other words, what was projected through family
settlement and court cases was that now each family member
has a separate share duly demarcated and therefore all of this
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cannot be clubbed and taken as the holding of only one tenure
holder i.e. Hari Shankar Tiwari for the purpose of declaration of
surplus land.
The Prescribed Authority, however, after hearing all the
objections came to the conclusion that the family settlement
cannot be relied upon and passed an order in the year 1974
declaring 37 Bigha 5 Biswa and 17.8 Biswansi on Late Hari
Shankar Tiwari (father of the respondent no.1) as surplus under
the provisions of the Act of 1960.
4. Against the said order of the year 1974, an appeal was filed by
Late Shri Hari Shankar Tiwari before the District Judge Hardoi,
which was partly allowed by reducing the surplus land of late
Hari Shankar Tiwari to 33 bigha 8 biswa and 14.8 biswansi and
the file was sent back to the Prescribed Authority by an order
dated 24.09.1975. What weighed in with the District Judge,
Hardoi was the fact that even though the land had been
partitioned vide a Decree dated 09.08.1971 passed by the Ld.
Munsiff, Hardoi, the partition was liable to be ignored and not
taken into account for the purposes of imposition of ceiling in
view of Explanation I to sub-section 7 of Section 5 of the 1960
Act, which reads as under:
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[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 the ceiling area applicable to him.
………………………………………………………
………………………………………………………
(7) In determining the ceiling area applicable
to a tenure-holder, any partition of land
made after the twenty-fourth day of January,
1971 which but for the partition would have
been declared surplus land under this Act
shall be ignored and not taken into account:
Provided that nothing in this sub-section
shall apply to
(a) [ * * * * ]
(b) a partition of a holding made in a suit or
a proceeding pending on the said date :
Provided further that notwithstanding
anything contained in the preceding proviso,
the prescribed authority, if it is of opinion
that by collusion between the tenure-holder
and any other party to the partition, such
other party has been given a share which he
was no entitled to, or a larger share than he
was entitled to, may ignore such partition.
[Explanation I- If a suit is instituted after
the said date for declaration that a
partition of land has taken place on or
before the said date, then such
declaration shall be ignored and not be
taken into account, and it shall be deemed
that no partition has taken place on or
before the said date.]
(emphasis provided)
9The institution of the Suit by Late Hari Shankar Tiwari was on
30.01.1971 i.e. after the cut-off date of 24.01.1971. This would
mean that in spite of the decree dated 09.08.1971, it is to be
deemed that no partition took place at all, in terms of sub-section
(7) of Section 5, read with the proviso and the explanation.
Upon remand, again by the order of the Prescribed Authority,
the land was declared as surplus. Against the declaration of this
surplus land, a writ petition was filed before the High Court of
Judicature at Allahabad, which was dismissed by the High Court
on 07.08.1978. The High Court reiterated the finding of the
District Judge that since the partition suit was instituted after
the cut-off date of 24.01.1971, the decree dated 09.08.1971 is
liable to be ignored. Against the judgment of the High Court, the
father of the respondent no.1 Late Shri Hari Shankar Tiwari
preferred a Special Leave Petition before this Court which was
subsequently dismissed as withdrawn. In other words, in the
first round of litigation the respondents had lost from all courts
including this Court (albeit by withdrawal of petition), and thus
claim based on family settlement, etc. stood rejected, and these
orders had attained a finality.
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Late Shri Hari Shankar Tiwari (father of the respondent no.1)
in fact gave his option on 23.07.1981 before the Prescribed
Authority which was accepted by the Prescribed Authority and
33 Biswa 8 Bigha and 14.8 Biswansi was declared as a surplus
area out of plot no.1353.
5. Meanwhile, not satisfied with the dismissal of the case right up
to the Apex Court, an innovative ploy was devised, which is
nothing short of an abuse of the process and has thus reached
now to this Court. The present respondent no.1 (son of Late Hari
Shankar Tiwari) moved an application on 23.04.1981 under
Section 11 of the Act of 1960 stating that they were joint holders
of the land and they were not given any notice by the Prescribed
Authority. It was said that the order passed by the Prescribed
Authority in 1974 should be recalled, however, this objection of
the respondent no.1 was rejected by the Prescribed Authority
vide its order dated 14.09.1981. The said order dated
14.09.1981 was challenged by the respondent no.1 in an Appeal
which was pending before the IVth Additional District Judge
Hardoi and vide order dated 16.11.1981 the IVth Additional
District Judge Hardoi accepted the appeal and set aside the order
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of the Prescribed Authority and remanded the matter back to the
Prescribed Authority.
6. Now on this remand, the Prescribed Authority again issued a
notice under Section 10(2) of the Act of 1960 to all the
respondents and therefore, passed an order dated 23.09.1985
holding that prior to cut off date, entire land shown in the notice
belonged to Late Shri Hari Shankar Tiwari which had been
partitioned through a private party settlement reduced to writing
and through this family settlement the entire joint family,
agricultural and non-agricultural land and property was divided
by metes and bounds and since then each of the members of the
erstwhile joint family have got their share separated, they ought
to have been given a separate notice, which has not been given,
as each of them were in exclusive possession of the property.
7. Against the above order of the Prescribed Authority, the State
filed an Appeal under Section 13 of the Act of 1960 before the
District Judge, Hardoi and due to the subsequent amendment in
the Act of 1960, the Appeal was transferred to the Court of
Additional Commissioner (Judicial), Lucknow Division, Lucknow
for decision in Appeal. The Additional Commissioner (Judicial),
Lucknow Division, Lucknow passed an order on 18.10.1994
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holding that once the matter had been settled and had attained
finality, it should not have been raked up again. The entire case
of the respondents rests on a family settlement which has been
disbelieved in the earlier round of litigation. This finding as we
know was upheld right up to Supreme Court, or at least till the
High Court, as we have seen the petition was withdrawn in the
Supreme Court in the first round of litigation. In other words, the
matter had attained finality. No benefit ought to have been given
of this family settlement and therefore the appeal of the State
was allowed. The order of the Prescribed Authority declaring the
land to be surplus was upheld. Against this Order, respondent
filed a Writ Petition before the High Court which has been
allowed vide impugned order dated 21.02.2022 on the ground
that after the family partition separate notice ought to have been
given to each of the tenure holder and since it has not been given,
the entire procedure initiated by the Prescribed Authority are
vitiated and the High Court thus has set aside the order dated
18.10.1994 of the Additional Commissioner (Judicial), Lucknow
Division, Lucknow.
8. According to us, the learned Single Judge of the High Court has
not appreciated either the position of law or the facts in the case
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as were required. Once the entire objection of Late Shri Hari
Shankar Tiwari regarding the family settlement, etc. were
rejected not only by all the authorities, but also by the High Court
and then ultimately by this Court, where the Special Leave
Petition itself was withdrawn, there was absolutely no occasion
for starting a fresh round of litigation which were nothing less
than a ruse and an abuse of the process of law, apart from being
barred by Res Judicata.
9. We are not surprised therefore that the order of the Additional
Commissioner (Judicial), Lucknow Division, Lucknow in its order
dated 18.10.1994 while allowing the appeal of the State had
made a stringent comment on the Prescribed Authority, who
ought not to have passed an order on 23.09.1985. The Additional
Commissioner (Judicial) in his order has said that “this decision
by the sub-ordinate court also raises question on the integrity of
the learned Prescribed Authority”.
10. In fact, we totally agree with the views of the Additional
Commissioner that the entire mischief has been done by the
Prescribed Authority in this matter, who should not have
interfered in this matter. Now it is too late in the day to issue a
notice for an order which was passed in the year 1985 by the
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Prescribed Authority, though this is indeed a case where a
departmental enquiry should have been instituted against the
concerned officer.
11. Be that as it may, the appeal is allowed and the order of the High
Court dated 21.02.2022 is set aside.
12. The District Magistrate, Hardoi is directed to immediately take
possession of the surplus land as declared surplus (33 Biswa 8
Bigha and 14.8 Biswansi) and let the same be distributed to the
landless or in accordance with law and process which is now to
be followed in such cases.
……………….………………….J.
[SUDHANSHU DHULIA]
..……..………………………….J.
[AHSANUDDIN AMANULLAH]
New Delhi.
December 17, 2024.