M.C.Desai, C.J. - (1.) This a petition for certiorari for the quashing of an assessment order under the U.P. Large Land Holdings Tax Act, 1957 passed against the petitioner. Under Section 3 the tax is to be paid for an agricultural year on the annual value of every land holding. "Land holding" means, according to Section 4, "the aggregate of all land held or occupied on the first day of July each year by a land holder, whether in his own name or in the name of any member of his family." "Land Holder" means an intermediary, where the land is in his personal cultivation or is held as Sir, Khudkasht, or grove and any other person who holds or occupies land otherwise than as an asami, sub-tenant, a tenant of sir, or a sirdar.
(2.) The petitioner is undoubtedly a land-holder because he holds or occupies some land otherwise than as an asami, a sub-tenant, a tenant of sir or a sirdar. In this petition we are concerned with the assessment of tax for 1366 F. commencing on 1.7.1958. The petitioner's land holding, therefore meant the aggregate of all land held or occupied on 1.7.1958 by him whether in his own name or in the name of his wife who was a member of his family. The petitioner's wife inherited certain land from her mother Smt. Mahraj Kunwar who was its proprietor. As proprietor Mahraj Kunwar paid land revenue exceeding Rs. 250/-. She was a widow, i.e. a disabled land holder referred to in Section 157(1) of the U.P. Zamindari Abolition and Land Reforms Act. She sublet a large area of her sir land to various persons. The U.P. Zamindari abolition and Land Reforms Act came into force on 1.7.1952 while she was alive. Since she paid more than Rs. 250/- land revenue the tenants of her sir did not become asamis and they undoubtedly became adhivasis with effect from 1.7.1952 under Section 20(a)(i). The entries in the papers, however, were not made correctly; she was recorded bhumidhar and the tenants of her sir, as asamis. She died in February, 1957 and her land was inherited by the petitioner's wife. In the assessment year she came to be recorded as bhumidhar and the tenants of sir, as asamis. She also realised rent from them. Even if her mother had admitted bhumidhari rights under Section 18 over the sir land which we let to the tenants, they came to an end under Section 240-A of U.P. Zamindari Abolition and Land Reforms Act before her death. Consequently she did not posses bhumidhari rights over the sir land in possession of tenant and they were sirdars. They acquired adhivasi rights on 1.7.1952 and the adhivasi rights ripened into sirdari rights. The assessing authority included in the petitioner's holding the sir land and his order was upheld on appeal. The question is whether he could do so and my answer is 'no'.
(3.) The petitioner's wife was left with no right over the land in dispute; the tenants had acquired sirdari rights over it. She was not in possession of it; it was in the possession of the sirdars. Consequently, it could not be said that she held or occupied the land during the assessment year. I do not think she could be said to have held it merely because she realised its rent from the tenants without any right. If she did not hold or occupy it her husband, the petitioner, still less held or occupied it. Under Section 4 no land not held or occupied by a land holder is to be included in his land holding. If he holds or occupies land in his own name there is no difficulty and it is to be included in his land holding. If he holds or occupies land in the name of a member of his family and not his own, Section 4 lays down that it would still be included in his land holding; it is to be noted that the land must be held or occupied by him. No land that is not held or occupied by a land holder can be included in his land holding even though it is held or occupied by a member of his family. Section 4 does not lay down that land held or occupied by a land holder or by a member of his family is to be included in his land holding. Therefore, even if the petitioner's wife held or occupied land it could not be said that it was held or occupied by him and could not be included in his land holding. The assessing authority proceeded on the facts that the wife is still recorded as bhumidhar and that the tenants are still recorded as asamis who are not liable to pay any tax and pay rent to her; these facts prove only that at the worst she holds or occupies the land but this would not bring it within the land holding of the petitioner. It has not been found that the land is held or occupied by the petitioner; he does not realise rent from the tenants and, of course, his name is not entered over it. So long as it is not held or occupied by him it cannot be included in his land holding and the assessing authority acted without jurisdiction in doing so.;