M.P. Mehrotra, J. - (1.) THIS petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960.
(2.) IN brief, the facts are these: The Petitioner was issued the usual notice under Section 10(2) of the said Act and he filed the objections. The objections were disposed off by the Prescribed Authority and thereafter the Petitioner went up in appeal to the appellate court below. The State also felt aggrieved with a part of the order of the Prescribed Authority and, therefore, it also went up in appeal to the said court. Both the appeals were disposed off by one common judgment by the appellate court. The appeal of the Petitioner was dismissed but that of the State was partly allowed. Now, the Petitioner has come up in the instant petition and his learned counsel, Shri M.C. Dwivedi, has raised the following submissions before me. Firstly, it is contended that the Prescribed Authority and the appellate court were not justified in upholding the inclusion of the land which was hell by a deity as the tenure -holder. According to para 16 of the petition land in the name of the deity in the village Biragawa Buzurg comprised two khatas and the respective area of each khata has been stated to be 2.28 acres and 3.32 acres. Thus the total land measuring 5.61 acres is stated to be in the name of the deity. The counsel's point is that this land should not have been clubbed with the land of the Petitioner because the deity and the Petitioner are two separate tenure holders holding land in their own separate, individual rights. This contention seems to me to be well -founded. The Prescribed Authority emphasised the point that the Petitioner was the sarbarakar of the deity in question and, therefore, he was in cultivatory possession of the same. The said authority invoked the aid of Section 5 of the said Act for including the land held in the name of the deity in the holding of the Petitioner. The appellate court observed; It is a private temple of which the sole and the exclusive manager is the Appellant himself. He has not shown that the income derived from the land holding in the name of Thakur Ram Janki Ji was being solely utilised for the benefit of the idol. It would thus appear that Thakur Ram Janki Maharaj were only as benamidar of this property and the real tenure -holder is the Appellant himself. In my. opinion, therefore, the finding of the learned Prescribed Authority is quite correct and does not require any interference. It will be seen that the appellate court allowed itself to be impressed by an absolutely new approach to the question. The Prescribed Authority never stated that the idol was a mere benamidar for the Petitioner. The Prescribed Authority clearly stated that the tenure -holder was the idol and the sarbarakar cultivated the land in that capacity. The appellate court was not justified in deviating from the line of the Prescribed Authority and the finding of benamidar was wholly uncalled for. It seems that the appellate court allowed its mind to be influenced by the considerations which have relevance under Section 6(1)(f) where the requirement undoubtedly is that the income of a public religious or charitable trust, wakf or endowment or institution should be wholly utilized for religious or charitable purposes before the land held by such trust, wakf, endowment or institution will be granted exemption under the said provision. The said provision was, therefore, not called for in the instant controversy. Again, it seems that the appellate court took into consideration explanation 1 to Section 5(1) which lays down as under: Explanation 1. In determining the ceiling area applicable to a tenure -holder all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account. In applying the said explanation there should be some basis for holding that a person holds land ostensibly in the name of any other person. Such a finding cannot be sprung at the appellate stage without any basis whatsoever and by way of a surprise. Therefore, the appellate court's finding has to be treated as without jurisdiction and, in any case it is an error apparent on the face of the record. Section 5(5) lays down as under: In respect of any holding held by any private trust, (a) Where the shares of its beneficiaries in the income from such trust are known or determinable, the beneficiaries shall, for the purposes of this Act, be deemed to have the shares in that holding in the same proportions as their respective shares in the income from such trust; (b) In any other case, it shall be governed by Clause (e) of Sub -section (3).
(3.) IN my opinion, this provision clearly shows that a private trust is to be treated as a separate tenure -holder and the land held by such trust should not be clubbed or amalgamated with the land held by the trustee or the manager of the trust in his own individual capacity. 'Tenure -holder' has been defined in Section 3(17) in these words: "tenure -holder" means a person who is the holder of a holding but, (except in Chapter III) does not include (a) a woman whose husband is a tenure -holder; (b) a minor child whose father or mother is a tenure -holder. 'Person' in the aforesaid provision will also include a deity who has always been recognised as a juristic person. Therefore, in my view, Shri Dwivedi is right in contending that the aforesaid area of land should be excluded from the total area of land held by the Petitioner.;