- (1.) B. Dikshit, J. A notice to petitioner under Section 29 (b) of U. P. Imposition of Ceiling on Land Holdings Act, 1960 (in short Act') has given rise to this writ petition.
(2.) THE facts relevant for the purpose of present writ petition are that as the petitioner held land more than ceiling area after enforcement of U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 a notice was issued to him under Section 10 (2) of the Act wherein it was stated that the petitioner was pos sessed of 3. 31 Hectares of irrigated land beyond his ceiling limit. THE petitioner contested the notice. One of the questions which arose for consideration before Prescribed Authority at that stage was in respect of number of members in the family of petitioner for determining his ceiling area. THE State claimed that Smt. Halki was not wife of petitioner, whereas petitioner's case was that he being wife of the petitioner was to be counted in family of petitioner. By its order dated 25-1-75 the Prescribed Authority accepted the case of petitioner to the effect that Smt. Halki was the wife of petitioner and without going into other questions considering that there were seven members in the family of petitioner, held petitioner entitled to hold 11. 30 Hectares land whereas the petitioner's total holding was only 10. 61 Hectares. Being aggrieved, the State filed an appeal. THE District Judge, Banda as appellate Court held Smt. Halki to be wife of petitioner and dismissed the appeal by order dated 22-11- 75. After amendment of the Act in the year 1976 a fresh notice was issued to the petitioner wherein 50- 10-5 Bigha land of petitioner was declared surplus. Being beyond the ceiling limit of petitioner, by the Prescribed Authority by order dated 4-12-1976 against which an appeal was preferred by petitioner. THE appellate court by order dated 18-2-77 allowed the appeal and set aside the order passed by Prescribed Authority. THE result of it was that no land of petitioner was declared surplus in proceedings under Section 10 (2) of the Act which became final. THE present proceeding has arisen on the basis of a notice dated 23-11-1982 issued under Section 29 (b) as according to State certain land of petitioner became irrigated as a result of irrigation from State Irrigation Works. THE petitioner contested notice by filing objection on 24-1-1988. He claimed that one of his wife, Smt. Sumitra, had died and rest of the members of family, who were there during determination of notice under Section 10 (2) and the appeal therefrom were alive. He further claimed that his daughters who were members of his family, namely, Sudama and Ramkali have been married and have gone out of the family but Km. Kalpatia and Km. Hira, who were born after decision in earlier ceiling proceedings, were therefor the purpose of being counted as members of his family. Certain other pleas were also raised. THE objection of petitioner was rejected by Prescribed Authority by order dated 30-4-86 whereby he declared 87 Bigha 9 Biswa as surplus. THE Prescribed Authority while determining the ceiling area of petitioner held that Smt. Halki was not married to petitioner and she was not his wife and, therefore, she and her children cannot be considered to be family members of petitioner. THE Prescribed Authority considered the family of petitioner with reference to 8-6-1973, the date on which Amending Act of 1972 was enforced. He decided other questions also against the petitioner. Aggrieved from the order passed by Prescribed Authority the petitioner filed an appeal which was dismissed by Additional Commissioner, Jhansi Division, Jhansi. THE appellate court determined the number of members in the family of petitioner with reference to 8-6-1973 and after ignoring the sale-deeds executed on 31-10-77 by petitioner in favour of Sriram and Kunwar Lal and after repelling the contention of petitioner that Smt. Halki was his wife, dismissed the appeal. Aggrieved, the petitioner has come in this petition. The learned counsel for petitioner argued that the determination Of ceiling area under Section 29 (b) of the Act has to be with reference to the date on which the petitioner's land became irrigated and not with reference to 8-6-73, when amending Act of 1972 was enforced. He further argued that it was not open for the ceiling authorities, while determining ceiling area of petitioner, to reopen the ques tion as to whether Smt. Halki was wife of petitioner as the same stood finally ad judicated upon in an earlier ceiling proceedings initiated on a notice under Section 10 (2) of the act and the plea is barred by principles of res judicata. The judgment relied upon by learned counsel for petitioner is that of Prescribed Authority dated 25-1-75 which was confirmed in appeal by the District Judge, Banda by order dated 22-11-75. For the said reason he claimed that the plea that Smt. Halki was not wife of petitioner cannot be reopened in present proceeding for adjudication and Smt. Halki is to be considered in the family of petitioner as petitioner's wife and her children as petitioner's children. It has been further argued that the petitioner was entitled for consideration of his two daughters, namely, Km. Kalpatia and Km. Hira, who were born subsequent to earlier ceiling proceedings and were unmarried, as member of his family while considering the members of the family of petitioner for redetermination of ceiling area under Section 29 (b ). It has also been argued that ceiling authorities were not right in ignoring sale-deeds dated 31-10-77 ex ecuted in favour of Sriram and Kunwar Lal. The learned standing counsel disputed the contention raised on behalf of petitioner and argued that while determining ceiling area in pursuance of notice under Section 29 (b) the relevant date is 8-6-73 as even under Section 29 of the Act. Section 10 applies mutatis mutandis. He fur ther argued that it is on the basis of evidence that finding of fact has been recorded by ceiling authorities that Smt. Halki was not wife of petitioner and, as such, the plea was not barred by res judicata. He further argued that as the determination of ceiling area is with reference to 8-6-73. , i. e. the date of enforcement of Amending Act of. 1972, the children born after that date cannot be taken into consideration for determining the family of petitioner. It has also been argued that the sale-deeds dated 31-10-77 executed in favour of Sriram and Kunwar Lal are void in view of Section 5 (8) of the Act. The first question which arise for consideration is that on a notice under Section 29 (b) of the Act whether determination of ceiling area is to be done with reference to the date of enforcement of Amending Act of 1972 i. e. 8-6-73 or it is the date on which an unirrigated land becomes irrigated as a result of irrigation from State Irrigation Works. Section 29 of the Act reads as follows : "29. Subsequent declaration of further land as surplus land.- Where after the date of enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972- (a) any land has come to be held by a tenure-holder under a decree or order of any court, or as a result of succession or transfer, or by prescription in consequence of adverse possession, and such land together with the land already held by him exceeds the ceiling area applicable to him ; or (b) any unirrigated land becomes irrigated land as a result of irrigation from a State irrigation work or any grove-land loses its character as grove-land or any land exempted under this Act ceased to fall under any of the categories exempted, the ceiling area shall be table to the re-determined and accordingly the provisions of this Act, except Section 16, shall mutatis mutandis apply. " The very first sentence of this section confers power for redetermination of ceiling area where after the date of enforcement of amending Act any unirrigated land becomes irrigated, as a result of irrigation from State Irrigation Work. This, however, excludes the possibility of determination of ceiling area with reference to the date when amending Act came into force. The language of said section is very clear which permits re-determination with reference to a date after enforcement of amending Act. This rules out the possibility of ceiling area being determined with reference to the date of enforcement of amending Act. The only date which can be taken into consideration for redetermining the ceiling area under Section 29 (b) can be the date on which an unirrigated land becomes irrigated as a result of irrigation from State Irrigation works and it is on fulfilment of this condition alone that the jurisdiction get conferred on the authority concerned to redetermine the ceiling area. It is a condition precedent for invoking the power for redetermination if petitioner holds land beyond ceiling limit.
(3.) THE learned standing counsel for the State has argued that Section 29 has been made applicable mutatis mutandis to the proceedings for redetermination ac cording to provisions of the Act and as Section 12 dealing with determination of surplus land provides for filing of objection under Section 10 (2), it is that date which would be relevant. I am not inclined to accept the contention raised. THE learned counsel for petitioner has argued that the words "mutatis mutandis" mean that the relevant provisions are to be applied with necessary changes and necessary alterations. In respect of use of words "mutatis mutandis", according to words and phrases permanent edition, it mean - "with necessary changes in detail to conform to a single vital change". THE words "mutatis mutandis" also come for consideration before Hon'ble Supreme Court in the case of Ashok Service Center v. State of Orissa, 1983 (2) SCC 82, wherein while dealing with the said words the Hon'ble Supreme Court has observed : "before considering that provisions of the principal Act should be read as part of the Act, we have to understand the meaning of the expression 'mutatis mutandis'. Earl Jowitt's Tne Dictionary of English Law (1959) defines 'mutatis mutandis' as 'with the necessary changes in points of detail, Black's Law Dictionary (Revised 4th Edn, 1968) defines ''mutatis mutandis' as "with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices and the like Housman v. Waterhouse". In Bouvier's Law Dictionary (3rd Revision, Vol. II), the expression 'mutatis mutandis' is defined as "the necessary changes. This is a phrase of fre quent practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices and the like". Extension of an earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary, for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act. " From the above it is apparent that the words "mutatis mutandis" used in statute means that the application of provisions will be with necessary changes and it cannot be adopted as if it is to be read as it is. There is another reason for which I am not inclined to accept the contention of learned. Standing Counsel. The contention of learned Standing Counsel, if accepted, will not be in consonance with the object with which the provision in the Act was enacted. The provision has been enacted as it has been considered that equitable distribution of land is essential and for that purpose ceiling limit has been fixed under Section 5 (3) of the Act. It has been enacted with the object so that no tenure-holder should hold land more than ceiling area prescribed under the statute to avoid concentration of land in few hands. The limit has been fixed for said purpose to which a tenure-holder has been allowed to hold land and not to have beyond that and it is not with an objection that a person be tied up to the same land which he was possessed of on 8-6-1973 when the amending Act was enforced. If deter mination of ceiling area is done with reference to 8-6-73 i. e. the date of en forcement of amending Act then if some one disposes of his land which was within his ceiling limit and purchases some other land, may be for reason to have better land or for shifting from one place to another place, his earlier holding will be tagged with his newly acquired land by ignoring sale-deeds and he will lose all his newly acquired land. This was neither the intention of the Legislature to enact the said provision nor it would be inferred from the pur pose and object with which the legislation has been enacted. It will result in hardship to the tenure holder without there being any object to be achieved. It will be unreasonable if such an interpretation is allowed. Every law is enacted to meet some social problem. The ceiling law has been enacted as there has been concentration or land in few hands and under such circumstan ces to have equitable distribution of land as one of its object. The legislation stands enacted as a solution to said social problem. For said reason also I am not inclined to accept the contention of learned Standing Counsel. It is there fore, held that it is the date on which any unirrigated land becomes irrigated as a result of irrigation from State Irrigation Work, which will be the relevant date for determining ceiling limit and surplus land, if any, with the tenure-holder and, therefore, the ceiling authorities erred in considering that the ceil ing area of the petitioner is to be determined with reference to 8-6-1973.;