IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WPMS NO. 5873 OF 2001 Jamaluddin & Others. ………….Petitioner. Versus State of U.P. and others. ………………Respondents. Mr. Ahrar Baig, Advocate holding the brief of Sri Siddharth Sah, learned counsel for the petitioners. Mr. H.M. Raturi, learned Standing Counsel with by Mr. Sudhir Kumar, Brief Holder for the State. None appears for rest of the respondent(s). With WPMS No. 488 of 2007 Hardev Singh …………………..Petitioner. Versus I Additional District Judge, Nainital and others. …….Respondents. Mr. Lok Pal Singh, learned counsel for the petitioner. Mr. H.M. Raturi, learned Standing Counsel, assisted by Mr. Sudhir Kumar, Brief Holder for the State. None appears for rest of the respondent(s). 20th August, 2008 Hon’ble P.C.Verma, J These two writ petitions raise a common question of law to be decided, therefore, are being disposed of by one and common judgment. 2. Petitioners in both the writ petitions are sub-lessees of the lease-holder. The lease was granted by the State Government to the Original Lease Holder under [the] Government Grants Act, 1895 (Act 15 of 1895). The lease rights were to be governed by the terms and conditions mentioned in the lease. Relevant portion of the lease granted to the lessee, which is on record as Annexure No. 2 to the Supplementary Affidavit filed in Writ Petition No. 488 of 2007, reads as under: 2 “9. The lessee agrees in the event of his transferring other than by inheritance the leased land or portion thereof to either pay to the Secretary of State twenty five percent of the price realized by him by the transfer of lease rights or to relinquish to the Secretary of State 1/4 of the area proposed to be transferred. The Deputy Commissioner shall have the power to choose either alternative. Any further transfer by the lessee or his transferree shall be subject to a similar payment of 1/4 of the cost price or a similar reqlinquishment of 1/4 of the land proposed to be transferred. This clause shall not apply to leases made by the lessee when subletting land in the ordinary course of agriculture.” 3. Original notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as ‘the Act’) was issued to the Original Tenure Holder and the land surplus sublet to these sublessees / petitioners were declared surplus in the proceedings initiated against the lease holder, who was treated to be tenure-holder within the definition of Section 3 (9) of the Act. 4. In these writ petitions, common question raised is that the petitioners being sublessees of Government lease holder, were independent tenure holder as it was their holding within the meaning of Sub-section (9) of Section 3 of the Act. Sub section (9) of Section 3 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 reads as under: “(9). ‘holding’ means the land of lands held by a person as a bhumidhar, sirdar, asami of Gaon Sabha or an asami intioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or as a tenant under the U.P. Tenancy Act, 1939, other than a sub-tenant, or as a 3 Government, lessee, or as a sub-lessee of a Government lessee, where the period of the sub- lease is co-extensive with the period of the lease;” 5. A sub-lessee will be a tenure holder. The question arises for determination as to whether sub lease granted in favour of the petitioners was a valid lease or not. As mentioned in original lease granted to the original lease holder that the rights of the original lease holder shall be governed by the terms and conditions mentioned in the lease, as to whether the original lease holder has a right to sublet it or not. 6. The prescribed authority while passing the order in Suit No. 51/239 (in writ Petition No. 5873 of 2001 (MS)) as well as in Suit No. 51, 236 of 1974-75 (in Writ Petition No. 488 of 2007 (MS)) has referred Clause 9 of the lease agreement. 7. A perusal of Clause (9) of the lease agreement as quoted above shows that the original lease holder can transfer the lease rights, but there is specific condition in Clause (9) of the lease agreement that this ground shall not apply to lease made by the original lessee while subletting land in the ordinary course of agriculture, therefore, the original lease-holder has no right to sub-let the agricultural land. As held by the Apex Court in Escort Farms Ltd. Vs. Commissioner, Kumaon Division, Nainital, U.P. & Ltd. (2004) 4 Supreme Court Cases 281 that the rights of the lessee are governed by the terms and conditions of the lease and sub-lessees of any other case were also not treated to be independent tenure holder as there being a special clause in the same lease deed, the controversy involved is squarely covered by the said case. 4 8. In view of the aforesaid case law, the controversy in writ petitions stands decided. As per the prohibitory clause contained in Clause (9) of lease agreement, the sub-leases related to the agricultural land in favour of the petitioners / sublessees was void, therefore, they cannot be treated as independent tenure holder, thus, the judgments of the prescribed authority as well as appellate Court do not call for any interference. No other point was pressed. 9. Accordingly, writ petitions are dismissed. No order as to costs. (P.C.Verma, J.) 20.8.2008 Rathour`