Dharma Kunwar v. State of Uttar Pradesh — 1973 DIGILAW 71 (ALL)

JUDGMENT Prem Prakash, J. - This petition under Article 226 of the constitution has been referred by a learned single Judge of this Court to a larger Bench as it raises an important point of law under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (to be hereinafter referred to as the Act). 2. The facts are these : Thakur Bhagwan Dutta Singh, who died on 10th February, 1964, leaving behind him his two widows, the petitioners before us, was possessed of holdings in villages Manjha Khamariya and Bansagaon which became subject to the operation of the Act. The notice under Section 9 of the Act was published on 29th July, 1961, and the Prescribed Authority (opposite party No. 2) determined the surplus area of the holding on 12th January, 1962, which order having not been appealed against by either party, became final under Section 14 of the Act. The total area determined as surplus comprised of plots Nos. 481-M, 483, 485 and 494/465 measuring 9.41 acres in area. The Prescribed Authority also made a notification in the Gazette, under Section 14 of the Act. On 16th June, 1967, the Naib Tahsildar, Tanda, submitted a report to .opposite party No. 1 that in the course of audit and further checking it was revealed that plot No. 135 (3 acres) and plot No. 1404 (9.3 acres) of village Khamariya had escaped from ceiling and in the result of the proposal made by him to take proceeding under Section 29 of the Act, the opposite party No. 2 issued notices to the petitioners on 26th June, 1967, to show cause why the aforesaid plots be not declared as surplus. The petitioner filed objections contending that the Prescribed Authority having once determined the surplus land, could not re-determine it, it not being a case where the land had come in possession of the tenure-holder under a decree or order of any court or as a result of succession or transfer, nor it being a case where the land exempted under Section 6 or 7 of the Act had lost its character so as to cease to fall under any of the categories as mentioned therein. In particular it has been maintained that the Act does not confer a power upon the Prescribed Authority to re-determine the surplus land on the ground that it had escaped ceiling. In particular it has been maintained that the Act does not confer a power upon the Prescribed Authority to re-determine the surplus land on the ground that it had escaped ceiling. The objection of the petitioners did not prevail with opposite party No. 2 and the appeal preferred by them to the District Judge was also dismissed. The Prescribed Authority and the District Judge have taken the view that since Section 37 of the Act confers all the powers and privileges of a civil court upon the Authority holding an enquiry or hearing an objection under the Act, Section 152 of the Code of Civil Procedure could be invoked and in exercise of the aforesaid power the Prescribed Authority could in law rectify the error and include by such rectification the land which had been left to be included in the surplus area. In the opinion of the District Judge, Sections 11 and 12 of the Act did not come in the way of the Prescribed Authority from correcting its own order. In that view, the District Judge has maintained the order of the Prescribed Authority. 3. In answer to the averments made in the petition, the opposite parties Nos. 1 and 2 alleged that plots Nos. 135 and 1404 were omitted due to an inadvertence from being taken into consideration for determining the surplus area of the tenure-holder; and when the mistake was discovered a notice was issued to the petitioners and it was after affording an opportunity of hearing that the mistake was corrected under Section 152 of the Code of Civil Procedure. 4. In order to appreciate the rival contentions of the parties it would be necessary to set out the relevant provisions of the Act : There are two separate proceedings under the Act-one for determining the ceiling area and the other for declaring the surplus land. The determination of the ceiling are and the declaration of the surplus land are simultaneous in as much as the area of the holding in excess of the ceiling area is necessarily the surplus land. Section 5(1) states that no tenure-holder shall except as otherwise provided by the Act be entitled to hold an area in excess of the ceiling area applicable to him. Section 5(1) states that no tenure-holder shall except as otherwise provided by the Act be entitled to hold an area in excess of the ceiling area applicable to him. Sections 6 and 7 enumerate certain lands which are not to be taken into consideration for determining the ceiling area or surplus land of a tenure-holder. Under Section 9 the Prescribed Authority calls upon every tenure-holder holding land in excess of the ceiling area applicable to him on the date of the enforcement of the Act to submit to that Authority within thirty days of the date of the publication of the notice a statement in respect of his holdings in such form and giving such particulars as may be prescribed. If the tenure-holder fails to submit a statement or submits an incomplete or incorrect statement, the Prescribed Authority shall 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 Sections 6 and 7 and the plot or plots proposed to a be declared as surplus land. The Prescribed Authority under sub-section (2) of Section 10 shall then give a notice together with a copy of the statement prepared under sub-section (1) calling upon the tenure-holder why the statement be not taken as correct. Where the statement submitted by the tenure-holder is accepted or where the statement prepared by the Prescribed Authority is not disputed, the Prescribed Authority determines under Section 11 the surplus land of the tenure-holder. Upon an objection made by the tenure-holder the Prescribed Authority on sufficient cause being shown for his absence can set aside the order and allowing the tenure-holder to file objection against the statement prepared under Section 10. After the disposal of the objection and subject to any appellate order under Section 13, the determination of the surplus area by the Prescribed Authority has been Made final and conclusive. Thereafter under Section 14 the Prescribed Authority makes a notification in the official Gazette stating the surplus land determined under he Act and as from the beginning of the date of the notification all surplus land stands transferred to and vests in the State free from all incumbrances and all rights, title and interests of all persons in such land with effect from such date stand extinguished. Every tenure-holder, whose surplus land has vested in the State, is entitled to receive compensation determined in the manner provided in the Schedule to the Act. 5. The ceiling area so determined does not hold good for all time. Section 29 provides that where after the imposition of ceiling any land has come in possession of a tenure-holder under a decree or order of any court or as a result of succession or transfer, other than gift or sale, and such land together with the land already held by him exceeds the ceiling area applicable to him or the whole or any part of the land of a tenure-holder exempted under Section 6 or 7 loses its character so as to fall under any of the categories of exempted land or if the land, on which a grove has been planted, ceases to be grove-land, such land shall be liable to be treated as surplus land. Under ,sub-section (2) of Section 4, if at any time the family comes to consist of not more than five members, all land held by the tenure-holder in excess of the ceiling area is also liable to be treated as surplus land. The re-determination of such surplus land is done in the manner prescribed by Section 30 of the Act. 6. To all these proceedings the State Government is a party. In proposing the ceiling area and the surplus land applicable to a tenure-holder the Prescribed Authority prepares and issues a statement in C. L. H. Form 3 (vide Rule 7 under the Act); against the statement the tenure-holder has the right to file objection under sub-section (2) of Section 10. 7. From the foregoing, it is quite plain that the Act does not expressly provide for re-determination of surplus land in cases where escaped ceiling area subsequently comes to the notice of the Prescribed Authority. In taxation statutes, to illustrate, Section 147 of the Income-Tax Act and Section 21 of the U. P. Sales Tax Act, we have such enabling provisions. From the foregoing, it is quite plain that the Act does not expressly provide for re-determination of surplus land in cases where escaped ceiling area subsequently comes to the notice of the Prescribed Authority. In taxation statutes, to illustrate, Section 147 of the Income-Tax Act and Section 21 of the U. P. Sales Tax Act, we have such enabling provisions. We may note that the Second Proviso to Clause (1) of Article 31A of the Constitution guarantees that it shall not be lawful for the State to acquire any portion of the land under the personal cultivation of a tenure-holder as is within the ceiling limit applicable to him without providing for payment of compensation at a rate which shall not be less than the market value thereof. In consequence of the notification made under Section 14 of the Act the tenure-holder gets rights and interests in the ceiling area which cannot be thus taken away without the authority of law and without payment of compensation. The State Government being a party to the proceedings and the various statements prescribed under Rules 6 and 7 being the basis of the determination of the ceiling area and the declaration of the surplus land, the statements so prepared together with the objection filed by the tenure-holder, if any, constitute the pleadings between the tenure-holder as one party and the State Government on the other, and it is on the basis of this material that the Prescribed Authority is called upon to determine the ceiling and the surplus area. The Act does not provide for any determination of the surplus land in the event of any portion of land not having been included in the statements prepared at various states under the Act. That being so, the contention of the petitioners that the Act does not enable the Prescribed Authority to re-open the determination of surplus land in the case of escaped ceiling area is well founded. Section 29, on the own showing of the respondents, is inapplicable the Prescribed Authority was, therefore, in error in starting proceedings afresh treating them as those under Section 29. 8. The Prescribed Authority could not ease, in the instant case invoked Section 152 of the Code of Civil Procedure. Section 29, on the own showing of the respondents, is inapplicable the Prescribed Authority was, therefore, in error in starting proceedings afresh treating them as those under Section 29. 8. The Prescribed Authority could not ease, in the instant case invoked Section 152 of the Code of Civil Procedure. It is true that under Section 37 of the Act the Prescribed Authority has all the powers of the civil court as laid down in the Code of Civil Procedure for the trial and disposal of suits relating to immovable property, but Section 152 cannot be availed of to rectify a kind of omission which had occurred in the present case. Section 152 of the Code of Civil Procedure contemplates the rectification of a clerical error or arithmetical mistakes in judgments, decrees or orders and errors arising therein from any accidental slip or omission. We are unable to see how Section 152 gives to the Prescribed Authority jurisdiction to modify the statements issued under Rules 6 and 7, particularly the statements on the basis of which the ceiling and the surplus area was determined. If some land has escaped the ceiling area, it is not a mistake which the section allows to be corrected. It is not a clerical or arithmetical error nor could we say that it is art accidental slip or an omission. We may refer to Shujastmand Khan v. Govind Behari, A.I.R. 1934 Allahabad where a suit was filed for foreclosure in relation to a mortgage. The mortgage was in respect of certain shares in zamindari properties and it was stated after, the decree had been passed that the description of the mortgage property given in the deed was not correct. The lower court allowed oral evidence to be given to show what was the intention of the parties and then directed that the plaint and the preliminary decree should be amended as prayed. This order was, however, reversed on appeal. Young, J. observed: "It is quite clear that the order complained of cannot possibly come within S. 152, Civil P. C. An amendment of this character which completely alters the plaint and the decree and also the deed on which the plaint is based cannot be said to be the correction of a clerical mistake in a judgment. There was indeed no clerical mistake even on the showing of the opposite party. There was indeed no clerical mistake even on the showing of the opposite party. The earlier mortgage deeds were copied faithfully and correctly by the clerk, and that is the ground of their present complaint. S. 152, therefore, not applying, the Court below had no jurisdiction under this section to act in the way it has done". Further, the mistake was not of the Prescribed Authority, but it was a mistakes on the part of persons who had prepared the statements and to such a case Section 152 of the Code of Civil Procedure does not apply (vide L. Kam Chander Sarup v. Mazhar Hussain., A.I.R. 1919 Allahabad 9. Applying the above principles to the facts of this case, we think that the rectification done by the Prescribed Authority was improper. If there had been a mistake in as much as the disputed land escaped the ceiling area, it was a mistake which is fundamental, a mistake which was neither clerical nor accidental, and, therefore, could not be corrected under Section 152 of the Code of Civil Procedure. The rectification of the omission of this kind in the absence of any enabling provision in the Act could not be made, more so when as a necessary consequence of the notification under Section 14 the right title and interest of the tenure-holder in the remaining land left with him, besides the land which has been declared surplus, remains intact and secure to him. In our opinion, it is not permissible in a proceeding under Section 152 of the Code of Civil Procedure to go into disputed questions and re-determine the rights of the parties already adjudicated upon by a competent authority. Rights whether private or public cannot be taken away in the exercise of an inherent power unless the Legislature clearly and distinctly authorises the doing of a thing which is physically inconsistent with the continuance of such vested right. The well settled principle of interpretation is that a statutory provision should be so interpreted as in no respect to interfere with the right or title unless that right or title is taken away per dictum. 10. The well settled principle of interpretation is that a statutory provision should be so interpreted as in no respect to interfere with the right or title unless that right or title is taken away per dictum. 10. Viewed from these aspects, we have come to the conclusion that it was not lawful nor competent for the Prescribed Authority to have revised the surplus land as previously determined by the order dated 29th July, 1961, and Section 37 of the Act cannot be invoked for the correction of such omissions. 11. In the result, the writ petition is allowed and the order of the Prescribed Authority (Annexure 4) and that of the Appellate Authority (Annexure 5) are quashed. Costs of this petition shall be recoverable from opposite party No. 1.