H.N Seth, J.:— By his order dated 29-3-1978, a learned single Judge of this Court referred following questions of law for opinion to a larger Bench:—
1. When a tenure-holder dies after 8th June, 1973, and before the publication of notice under section 9 of the U.P Imposition of Ceiling on Land Holdings Act what should be the date for determining the surplus area of a tenure-holder for the purposes of determining the surplus area in view of Rule 19 of the Act?
2. Whether Rule 19 read with its sub-clauses (2-4) are within the powers of rule making authority or they are against the provisions of sections 9 and 10 of the Act which speak about the tenure-holder i.e the real and living tenure-holder on the date when the notice is to be issued?
3. Can determination of surplus area of a tenure-holder who is dead on the date of notification under section 9 of the U.P Imposition of Ceiling on Land Holdings Act be made ignoring the right of the heirs of the deceased tenure-holder on that date?
4. If the notice under: section 9 has been issued when the tenure-holder was no more in this world can notice under section 10(2) of the U.P Imposition of Ceiling on Land Holdings Act be issued without publishing general notice calling upon the heirs of the tenure-holder to submit the statement contemplated by law under section 9 of the Act?
5. If the recorded tenure-holder dies soon after the publication of general notice in the official gazette (e.g before the expiry of 30 days), is it necessary for the Prescribed Authority to re-issue notices under section 9(1) and (2) of the Act to tenure-holder to comply with the provisions of the Act?
2. Before dealing with the questions referred to us, it will, we think, be convenient to notice few salient features of the U.P Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) as amended from time to time. The Act which was passed inter alia to provide for acquisition of land for its equitable distribution and to make the surplus land available for distribution amongst landless agricultural labourers, was enforced in whole of U.P with effect from 8th June, 1965. Section 5 of the Act lays down that on and from the commencement of the Act no tenure-holder was to be entitled to hold in the aggregate throughout the State of U.P any land in excess of ceiling area applicable to him. The Act then went on to state the extent of ceiling area applicable to tenure-holders as also the principles for computing the same-whereas the mechanism, for determining the ceiling area applicable to a tenure-holder and the surplus land if any held by him on the date of coming into force of the Act, was laid down in sections 9 to 12 of the Act, that for determining the ceiling area and the surplus land which a tenure-holder happened to hold after the date of commencement of the Act was laid down in sections 29 and 30 of the Act. Sections 14 and 15 of the Act provided the procedure for acquisition of land declared as surplus and in Chapter IV of the Act provision was made for disposal and settlement of surplus land. Section 44 of the Act enabled the State Government to make rules for carrying out the purposes of the Act including those specified in sub-section (2) thereof. Subsequently the State Legislature enacted an Act entitled Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, U.P Act XVIII of 1973, which was enforced with effect from 8th June, 1973, whereby it made substantial changes in regard to principles that had to be adopted in computing the ceiling area applicable to tenure-holders. Section 5 as substituted by the aforesaid amendment Act provided that on and after the date on which the amendment Act came into force, no tenure-holder was to be entitled to hold in aggregate, throughout U.P any land in excess of the ceiling area applicable to him. The amendment Act also introduced a new sub-section (2), section 9 of the Act making the mechanism provided in section 9(1) of the Act for determination of surplus land applicable also with reference to the date of coming into force of the Amendment Act i.e, 8th June, 1973. It further provided that the procedure mentioned in sections 29 and 30 of the Act was to be followed in relation to tenure-holders who came to hold land in excess of ceiling area applicable to them after 8th of June, 1973.
3. It will thus be seen that U.P Imposition of Ceiling on Land Holidings Act is an enactment which compels the tenure-holders to part with surplus land held by them and is in that sense and exproprietory legislation. Normally such enactments as has also b;en done by the Imposition of Ceiling on Land Holdings Act, make provision specifying the persons who are, as also the property and the circumstances in which it is, to be brought within the purview of the Act. Such enactments also lay down the procedure that has to be adopted for acquiring the specified property. It is now well settled that expropriatory enactments should be strictly construed and interpreted in a way that may be beneficial to the subject. However, the presumption that the exproprietory statutes are to be strictly construed does not apply to its procedural part which has to be interpreted in such a way so as to make the procedure provided in the enactment for acquisition of property effective, vide Gur Sahai v. I.T Commissioner . ALR. 1963 S.C 1062 1064.. Accordingly, the provisions contained in the U.P Imposition of Ceiling on Land Holdings Act which specify the persons who are, as also the circumstances in which their land holding is to be brought within the purview of the Act will have to be strictly construed, but those relating to the procedure to be followed for declaring of a particular land holding as surplus and for its acquisition will have to be interpreted in a way so as to make those provisions really effective.
4. In order to answer the question referred to us we will have to first determine, in the light of aforementioned principles, the persons whose holdings are intended by the Act to be property within its purview.
5. The learned Chief Standing Counsel appearing for the State urged that in view of the provisions contained in section 5 of the Act which lays down that on and from the commencement of the ceiling on Land Holdings Amendment Act, 1972, no tenure holder shall be entitled to hold any land in excess of ceiling area applicable to him. It is apparent that the Legislature intended that all tenure-holders who on 8th June, 1973, held land in excess of ceiling area applicable to them as also their land holdings were being brought within the purview of the Act. According to him, all such tenure-holders were deprived of all title and interest in the land held by them in excess of the ceiling area applicable to them (surplus land, which in due course was to be taken over by the State). As the tenure-holders were not entitled to the surplus land held by them on 8the June, 1973, the same could not, in the event of their death be inherited by their heirs. It is the land held by a tenure-holder which fell within the limits of the ceiling area applicable to him, that alone could be inherited by his heirs. In case the land inherited by a tenure-holder after 8th of June, 1973, together with the land already held by him, happened to exceed the ceiling area applicable to him, the surplus land held by him could, as provided in sections 29 and 30 of the Act be got redetermined and thereafter acquired by the State. According to the learned Standing Counsel merely because a tenure-holder who came within the purview of the Act dies, it did not mean either that he was on 8th June, 1973, entitled to hold land in excess of ceiling area applicable to him or that he could continue to hold the same thereafter. The legislative intentment being clear, the holding of such tenure-holder despite his death after 8th of June, 1973, continued to be within the purview of the Act.
6. It is true that section 5 of the Act contains a declaration by the Legislature that on and from the commencement of the U.P Imposition of Ceiling on Laud Holdings Amendment Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout the State land in excess of ceiling area applicable to him. But, the provision made by the Legislature for effectuating the aforesaid declaration is to be found in other sections of the Act. Section 9(2) of the Act as it stands after the amendment made by U.P Act XVIII of 1973 reads thus:—
“As soon as may be after the enforcement of the U.P Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, the prescribed authority shall by general notice call upon every tenure-holder holding land in excess of 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)… … … … … …”
7. This sub-section enjoins upon the Prescribed Authority to issue a general notice calling upon the tenure-holders holding land in excess of ceiling area applicable to them on 8th June, 1973, to submit a statement of their holdings. Section 10 of the Act then lays down:—
“Where a tenure-holder fails to submit a statement or submits an incomplete and incorrect statement required to be submitted under section 9, the Prescribed Authority shall, after making such enquiry as he may consider necessary by himself or by any person subordinate to him cause to be prepared a statement containing such particulars as may be prescribed.”
8. Sub-section (2) of section 10 lays down that after preparing the statement mentioned above, the Prescribed Authority shall cause to be served upon the tenure-holder in such manner as may be prescribed a notice together with a copy of the statement prepared by it calling upon him to show cause within the period specified in the notice why the statement prepared under section 10(1) be not taken as correct. Thereafter a declaration as provided in sections 11 and 12 in respect of surplus land held by the tenure-holder is made and the surplus land is ultimately acquired for being distributed to others under section 14 of the Act. A close scrutiny of the aforesaid provisions clearly indicates that even though section 5 of the Act contains declaration that on or after 8th June, 1973, no tenure-holder is to be entitled to hold land in excess of the ceiling area applicable to him, sections 9 to 12 make it absolutely clear that it is the holding only of such tenure-holders who on 8th of June, 1973, held land in excess of ceiling area applicable to them and who had been called upon by means of a general notice issued under section 9(1)/9(2) to submit a statement of their holding, which could be declared as surplus. These sections do not contemplate a declaration in respect of land holding belonging to a tenure-holder who has not been, or could not be called upon to submit a statement of his holding under section 9(1)/9(2) of the Act as surplus or for its being subsequently acquired under section 14 of the Act. In a case where a tenure-holder who on 8th June, 1973, held land in excess of ceiling area applicable to him dies before issue of a general notice under section 9(2) of the Act, it is clear that he could no more be called upon to submit a statement of his holding as contemplated by section 9(2) of the Act and consequently in his case, no question of following the procedure for determination of ceiling area applicable to him on that date, under sections 10-12 of the Act arises. The Legislature has not provided any other method for determination of the surplus land of such a tenure-holder, as on 8th of June, 1973. Consequently there is no escape from the position that a tenure-holder who dies after the 8th of June, 1973, but before the issue of general notice under section 9(2) of the Act does not fall within the purview of the U.P Imposition of Ceiling on Land Holdings Act.
9. Learned Standing Counsel urged that in view of these provisions contained in section 5 of the Act, whether or not notice under section 9(2) of the Act is issued to a tenure-holder, his title to the land held by him in excess of ceiling area applicable to him ceases and that in the circumstances no question of the surplus land held by him on 8th June, 1973, being inherited by his heir arises. In the circumstances the provisions contained in the Act should be so construed as to enable the determination of surplus land held by such tenure-holders on 8th June, 1973.
10. It is true that section 5 of the Act lays down that on and from commencement of the U.P Imposition of Ceiling on Land Holdings Amendment Act, 1972, no tenure-holder shall be entitled to hold in the aggregate any land in excess of ceiling area applicable to him. It may also be accepted that under section 9 of the Act a tenure-holder is called upon to submit a statement of his holding with a view to determine land held by him in excess of the ceiling area applicable to him on 8th June, 1973. Any doubt in this regard is completely set at rest by forms no. CLH 2, and CLH 3 prescribed for the purpose. Aceording to form CLH 2 a tenure-holder while submitting a statement of holding has to give the following declaration:—
“I solemnly affirm and verify to the best of my knowledge that the information given by me in this Form and Annexure hereto attached is correct and complete and that I have included therein:
(a) all land holding held by me in my own name or in the name of my family members on 8th of June, 1973, within the State of U.P … … … … … … … … … … … … … …
11. Likewise Form CLH 3 also shows that in the statement prepared by Prescribed Authority under section 10 of the Act, the area held by the tenure-holder and the members of his family as also the ceiling area applicable to them and the surplus land held by them as on 8th June, 1973, is to be mentioned. In the context it can also not be doubted that declaration of surplus land under sections 11 and 12 of the Act has also to be made in respect of the land held by tenure-holder on 8th June, 1973. It, however, does not mean that title of the tenure-holder in the surplus land also ceases with effect from 8th June, 1973. After a declaration is made with regard to the surplus land held by a tenure-holder on 8th June, 1973, section 14(1) of the Act as it stood prior to its amendment in the year 1976, required the same to be notified in the official Gazette and sub-section (2) of section 14 then laid down that as from the beginning of the date of notification under sub-section (1) all such surplus land was to stand transferred to and vest in the State free from encumbrances and all right, title and interest of all persons in such land was to stand extinguished with effect from such date. It means that notwithstanding the provisions contained in sections 5 to 12 of the Act, where under a tenure-holder becomes disentitled to hold land in excess of ceiling area applicable to him on 8th June, 1973, his title to the surplus land continues to be effective till the notification for acquisition of surplus land is issued under section 14(1) of the Act. Accordingly in case the tenure-holder dies before his title is extinguished under sub-section (2) of section 14 of the Act, his interest in the land would, in accordance with the relevant law of succession, devolve upon his heirs. In the circumstances the provision contained in section 5 of the Act disentitling a tenure-holder from holding surplus land with effect from 8th June, 1973, cannot be interpreted as meaning that the tenure-holder loses title to the surplus land with effect from that date and the very foundation of learned Standing Counsel's argument for giving some sort of compulsive interpretation to the provision of the Act disappears, and the same cannot be accepted. The amendment in section 14 of the Act, made in the year 1976 also does not alter the position inasmuch as sub-section (3) of the newly substituted section 14 of the Act also lays down that where the Collector has taken possession of any surplus land or has gathered any crop or fruits under sub-section (1) or sub-section (2) such land or crop or fruits of trees shall with effect from the date of his taking possession stand transferred to and vest in the State Government free from all encumbrances and right, title and interest in any such land shall with effect from such date stand extinguished.
12. The position of a tenure-holder who dies between the dates of coming into force of the U.P Act XVIII of 1973, and before the issue of notice calling upon tenure-holders to file a statement of their holdings, therefore, is that such tenure-holder did not, at any stage, come within the purview of section 9(2) of the U.P Imposition of Ceiling on Land Holdings Act (we are not considering the effect of section 9(1) of the Act) and his interest in all his holdings including that in the surplus land if any, devolves upon his heirs who succeed to it. Persons succeeding to the interest of the deceased tenure-holder may or may not have been tenure-holder who on 8th June, 1973, held land in excess of the ceiling area applicable to him. If he was such a tenure-holder who on 8th June, 1973, held land in excess of ceiling area applicable to him his case would be covered by sections 9 to 12 of the Act and the surplus land held by him on 8th June, 1973, will have to be declared and acquired. Since the land to which he succeeds came to be held by him after 8th June, 1973, the same cannot be taken into consideration while determining his surplus land under sections 9 to 12 of the Act. However, as because of succession he, after 8th June, 1973, again comes to hold land in excess of ceiling area applicable to him, redetermination of the surplus land held by him on the date on which he succeeded to the property and for its acquisition; after taking into consideration the land inherited by him, has in the manner provided in sections 29 and 30 of the Act again to take place.
13. If, on the other hand, the person succeeding was either not a tenure-holder or was a tenure-holder not holding land in excess of ceiling area applicable to him on 8th June, 1973, no question of taking any proceedings for declaration of surplus land held by him, on 8th June, 1973, and for acquisition of the same arises. In such a case if as a result of inheritance land already held by him together with the land to which he succeeds exceeds to the ceiling area applicable to him the surplus land as held by him on the date of inheritance will have to be declared and thereafter acquired as provided in sections 29 and 30 of the Act.
14. Position of a tenure-holder who held land in excess of ceiling area applicable to him on the date when U.P Imposition of Ceiling on Land Holdings Amendment Act, 1972, came into force and who died after the general notice under section 9(2) of the Act had been issued, is, however, slightly different. In his case as soon as the general notice under section 9(2) of the Act was issued, the land held by him in excess of ceiling area applicable to him as on 8th June, 1973, came within the purview of the Act and notwithstanding any subsequent event, the surplus land held by him on 8th June, 1973, was to be acquired by the State. Once a tenure-holder had been called upon to submit a statement of his holding and he failed to submit the same for any reason whatsoever, the provisions contained in sections 10 to 12 of the Act which deal with procedure for declaration of surplus land and for its acquisition became applicable. In this regard these provisions have to be interpreted in a manner so as to make them effective and meaningful. Section 10(1) of the Act lays down that the Prescribed Authority has to after making such enqury as it deemed fit, prepare a statement containing such particulars as may be prescribed, which undoubtedly include a statement of the land belonging to a tenure-holder which is sought to be declared as surplus. The Prescribed Authority does not lose jurisdiction to make the enquiry mentioned in the sub-section merely because the tenure-holder who was called upon to submit a statement of his holding subsequently dies. Section 10(2) of the Act then requires the Prescribed Authority to serve or cause to be served upon every tenure-holder in such manner as may be prescribed, a notice together with a copy of the statement prepared under section 10(1) of the Act calling upon him to show cause as to why the statement be not taken as correct. This section clearly enables the State Government to prescribe by Rules the manner in which a notice regarding statement prepared by the Prescribed Authority under section 10(2) of the Act has to be served upon the “tenure-holder”. Interpreting the expression the ‘tenure-holder’ as used in section 10(2) of the Act in the light of the principle enunciated in the case of Gur Sahai v. I.T Commissioner (supra) we are of opinion that the expression covers not only the tenure-holder who had been called upon to submit a statement of his holding under section 9(1) of the Act, but also the tenure-holder who eventually is going to be affected by the proceeding and whose holding is as a result of the proceedings going to be acquired. We are of opinion that such is a case where a tenure-holder dies after publication of general notice, under section 9(2) of the Act. The Act does contemplate that notice under section 10(2) may be served upon his heirs. The relevant portion of the Rule 19 of the Rules framed under section 44 of the Act reads thus:—
“(2) Where a tenure-holder dies before the publication of the general notice under section 9, such publication shall be deemed to apply to his executor, administrator, or other legal representatives and the Prescribed Authority may proceed to determine the ceiling area applicable to the deceased person as if such executor, administrator, or other legal representatives were the tenure-holder.
(3) Where a tenure-holder dies before he is served with a notice under sub-section (2) of section 10, the Prescribed Authority may serve such notice on his executor, administrator or other legal representatives and may proceed to determine the ceiling area applicable to the deceased person as if such executor, administrator, or other legal representatives were the tenure-holder.
(4) Where a tenure-holder dies after the service of notice in C.L.H Form 4, executor, administrator, or other legal representative shall be allowed 15 days' time from the date of tenure-holder's death to file objections against the statement in C.L.H Form 3. The objections of the executor, administrator, or other legal representatives of the deceased tenure-holder about the option of the land which is to be retained as the ceiling area applicable to a deceased tenure-holder, shall be accepted only if all the legal representatives are agreed about the option.”
15. So far as the sub-rule (2) of Rule 19 is concerned, it enables the Prescribed Authority to determine the ceiling area applicable to a tenure-holder who was dead even before he was called upon by a general notice, under section 9(2) of the Act, to file a statement in respect of his holdings. As already explained the Act does not contemplate determination of ceiling are a applicable to a person who does before a general notice calling upon the tenure-holders to file the statements contemplated by section 9 of the Act, is issued. No rule can be framed which has the affect of transgressing the provisions of the principal Act. sub-rule (2) of Rule 19 of the Act therefore appears to be without authority, so far as the sub-rules (3) and (4) of the Rule 19 are concerned, they deal with a situation where the concerned tenure-holder had been, before his death called upon to submit a statement in respect of his holdings required by section 9 of the Act. In cases where, such tenure-holder has failed for any reason whatsoever, to submit the requisite statement, the Prescribed Authority has been enabled under section 10(1) of the Act to prepare a statement containing the particulars of the property sought to be declared as surplus. As already explained, this section contemplates preparing of a statement even in respect of the holding held by a tenure-holder who dies subsequent to the general notice issued under section 9(2) of the Act and that sub-section (2) of section 10 of the Act clearly envisages that the State Government has to frame rules prescribing the manner in which the notice in respect of such tenure-holder has to be effected. The State Government has, for this purpose, framed a very rational Rule requiring that service of such notice be effected on persons mentioned in sub-rules (3) and (4). These sub-rules are within the rule-making power envisaged by section 44 read with section 10(2) of the Act and are quite valid.
16. In view of the aforesaid discussion, our answers to various questions referred to us for opinion are as follows:—
1. Where a tenure-holder dies after 8th of June, 1973, and before the publication of notice under section 9 of the Act, the Act does not contemplate taking of any proceedings for determining the surplus land of such tenure-holder and as such no question of considering any one as tenure-holder in his place arises. sub-rule (2) of Rule 19 therefore is ultra vires and cannot be relied upon for any purpose.
2. Sub-rules (3) and (4) of Rule 19 are within the powers of rule-making authority and they are not repugnant to the provisions under sections 9 and 10 of the Act.
3. As we are of the opinion that no proceedings for declaring the land of a tenure-holder who is dead on the date of notification under section 9 of the Act, can be taken, question no. 3 does not arise.
4. In view of our opinion that no proceedings under sections 9 and 10 can be taken in respect of holding of a tenure-holder who dies before the publication of general notice under section 9, question no. 4 does not arise.
5. In case, when a recorded tenure-holder dies soon after publication of general notice in the official Gazette, it is not necessary for the Prescribed Authority to reissue a notice under sections 9(1) and 9(2) of the Act. It will be sufficient, if the Presented Authority proceeds to serve the notice on an executor, administrator or other legal representative of the tenure-holder with the statement prepared by him under section 10(2) of the Act in accordance with Rules 19(3) and 19(4) of the Rules framed under the Act.