State of U. P. v. District Judge, Rampur — 1980 DIGILAW 706 (ALL)

ORDER M.P. Mehrotra, J. -This petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. 2. The facts in brief, are these. The opposite party No. 3 Doaba Co-operative Farming Society, was issued the notice under Section 10 (2) of the Act. The States case was that the said tenure-holder held 100 acres of land in its name and it was entitled to retain only 18.02 acres as the ceiling area. The rest of the land was, therefore, liable to be declared as surplus. The opposite party No. 3 filed objections and the same were decided by the Prescribed Authority who held that 82.56 acres of land was liable to be declared as surplus and was so declared. Thereafter, an appeal was filed by the said opposite party No. 3 and the appellate court found as under:- "In my opinion, the record shows that five members who were members at the time of acquisition continued to be members of the Society even now and one member is son of the original member Malva Ram. He had inherited rights of Malva Ram and so would also be deemed to be in place of the original member. We have to hold that six persons are members of the Society, who were members at the time of formation of the Society. These members will be deemed for the purpose of this Act to hold equal share in the land held by the Society, and the members who were admitted subsequently will be deemed to have no share in view of the proviso to sub-section 4. This observation does not in fact govern the actual rights of the members, but is only fiction introduced by the provisions of law. There are affidavits that the members do not hold separate land other than the land which is part of the holding of the Society and if we hold that there are six members, it would mean that the Society is entitled to retain more area than it has. Six members normally, even if whole area is treated as irrigated, would be entitled to hold 108.34 acres. In view of above, there is no surplus with the Society. Six members normally, even if whole area is treated as irrigated, would be entitled to hold 108.34 acres. In view of above, there is no surplus with the Society. I may also observe that in cases of Society considering the provisions, the notice has to be given to the members individually and the case of individuals has to be decided." 3. Now, the State has come up in the instant petition and in support thereof, the learned Standing Counsel contended that on a correct interpretation of Section 5 (4) and its proviso, it should be held that none of the aforesaid six members should be deemed to hold any share in the aforesaid holding of the opposite party No. 3 as none of the said six members has been shown to have held any land on,the date when he was admitted as a member of the Society. Learned Standing Counsel contended that in such a case where by virtue of the proviso none of the members is deemed to hold any share in the holding of the Co-operative Society, then the main sub-section. namely, Section 5 (4) will not be applicable but the case will be governed by sub-section (3) (e) of Section 5 of the Act. In other words, according to the learned Standing Counsel, it should have been held in the instant case that the opposite party No. 3 was entitled to retain 7.30 acres of irrigated land as the ceiling area and the rest of the holding of the opposite party was liable to be declared as surplus. Learned Standing Counsel contended that it was not possible to hold in the same breath that the proviso is applicable and at the same time not applicable. According to his contention, if on the basis of the proviso it is held that a member has no share in the holding, then it is not possible to say that on the basis of the main sub-section (4) of Section 5, he should be deemed to hold some portion of the holding on the basis of his share in the co-operative society. In this connection a reference has been made to the decision of a learned single Judge reported in Bahai Farming Co-operative Society v. State of U. P. (1978 All LR 815): (1978 All LJ 548). In this connection a reference has been made to the decision of a learned single Judge reported in Bahai Farming Co-operative Society v. State of U. P. (1978 All LR 815): (1978 All LJ 548). The learned Standing Counsel has contested the correctness of the interpretation which has been placed by the said learned Judge on sub-section (4) of Section 5 and its proviso. 4. In view of the said submission of the learned Standing Counsel, I felt that the controversy raised was important enough to be decided by a larger Bench and, therefore, I formulated certain questions and directed that the Hon'ble Chief Justice may refer the same to a larger Bench. The larger Bench, to which the said questions were referred, passed the following order on April 10, 1980. "Mr. Zaidi learned counsel appearing as an amicus curiae at our instance on behalf of respondent No. 3 has submitted that in view of the averments contained in the supplementary affidavit filed on behalf of the State, the questions referred by the learned single Judge do not arise. After hearing learned counsel, we feel that the matter should go back 10 the learned single Judge for reconsideration. Mr. Zaidi has been requested by us to make himself available when the case is listed before the learned single Judge. Let the papers be laid before the learned single Judge. Mr. Zaidis name may be printed in the cause list as counsel for the respondent." 5. Thereafter, the petition was again listed before me and I have heard Sri Zaidi on behalf of the opposite party No. 3 and the learned Standing Counsel on behalf of the petitioner. 6. In the supplementary affidavit of Shri Raj Darshan Singh Rawat, filed on behalf of the State, certain averments made, which are relevant to the present controversy, are reproduced below:- "(i) That the respondent No. 3 was registered as a Co-operative Society on 1-8-1953 as per date on the certificate of registration, with thirty-three original members all of whom contributed on 4-3-1953 a total area of 447 acres to the Society. The thirty-three members whose names are given in the list Annexure-1 to the supplementary affidavit, were admitted as members on 4-6-1953. (ii) That there were only 6 original members left as found by the learned District Judge in appeal out of the thirty-three original members. The thirty-three members whose names are given in the list Annexure-1 to the supplementary affidavit, were admitted as members on 4-6-1953. (ii) That there were only 6 original members left as found by the learned District Judge in appeal out of the thirty-three original members. (iii) That it is not disputed that the six members of the respondent No. 3 who are surviving were original members who had contributed land to make up the total of 447 acres originally." 7. In view of the aforesaid averments, it seems to me that the lower appellate court was wrong in observing : "These members will be deemed for the purpose of this act to hold equal share in the land held by the Society and the members who were admitted subsequently will be deemed to have no share in view of the proviso to sub-section (4)." 8. The interpretation of sub-section (4) of Section 5 and its proviso as done by the lower appellate court is not correct, In brief, sub-section (4) of Section 5 lays down that if any holding is held by a firm or Co-operative Society etc. then its members shall, for the purposes of the Ceiling Act, be deemed to hold that holding in proportion to their respective shares in that firm, co-operative society etc. It is settled law that the relevant date for deciding the controversy is 8th June, 1973 as laid down in sub-section (1) oi Section 5 of the Act. The lower appellate court seems to be of the view that in view of the proviso it is only the number of members who were admitted as such at the time of the formation of the society which would be material. It is clear from the following observation of the lower appellate court:- "We have to hold that six persons are members of the society, who were members at the time of formation of the Society." 9. This interpretation does not seem to be correct. No such distinction has been laid down in sub-section (4) or its proviso between the original members of the Society and the members of the society who joined it subsequent to its formation. This interpretation does not seem to be correct. No such distinction has been laid down in sub-section (4) or its proviso between the original members of the Society and the members of the society who joined it subsequent to its formation. According to the main body of sub-section (4), all members of a Cooperative Society, irrespective of the date when they joined such society, will be deemed to hold the holding of the society in proportion to their respective shares in the society. This is the main provision but the proviso lays down the exception. "While according to the main body of subsection (4), the fiction is that the holding of the Cooperative Society is held by each member on 8th June, 1973 in proportion to his share in the Society, the proviso lays down that if a member before his admission to the membership of the Co-op. Society did not hold any land, then he shall not be deemed to hold any land in the Society. It is further laid down by the proviso that if such a member before his admission to the membership of the Society held an area of land which was less than the area proportionate to his share as worked out on the basis of the main part of sub-sec. (4), then such member shall be deemed to hold the lesser area in the holding held by the Society. The remaining area shall be deemed to be held by the remaining members in proportion to their respective shares in the Co-operative Society as laid down in the main part of sub-section (4 ) 10. The lower appellate court has not recorded any finding as to how many members were there in the Co-operative Society on the relevant date, i. e. 8th June, 1973. It has further not recorded any finding as to how much land was held by each such member on the date when he was admitted as a member of the Society. I should again like to emphasise that the date of admission to the membership of the Society is relevant only for finding out the extent of his holding at the time of admission as a member of the Society but otherwise, it is not at all relevant as to the date when he was admitted as a member of the Society. Whether he joined the Society as an original member or subsequently, is not at all material. If taking into consideration the total extent of the land held by a member at the time of his admission to the membership of the Society, he is found either to hold no land or an area of land, less than the area proportionate to his share in the Society, then in accordance with the proviso either he shall be held to hold no land in the holding of the Society or the lesser area in such holding as the case may be. The averments made in the supplementary affidavit filed on behalf of the State and reproduced above, clearly show that the States case is that at least six original members had contributed lands to the Society at the time of its formation. Tu other words, they held lands at the time when they joined the Society. The extent of such lands held by each such member has not been specified. I should like to emphasise here that it is not material as to what extent of lands were contributed to the Society by such members. What is material, in terms of the proviso, is the extent of land held by each member before he joined the Society. Further, as has been discussed above, the position has to be considered not only in reference to the six original members of the Society but in reference to other members of the Society also who joined the Society subsequent to its formation and who were members of the Society on the relevant date, i.e., on 8th June, 1973. Even if a member joined the Society subsequent to its formation and at the time of his joining the Society he held some land, then the extent of such land will have to be taken into consideration in terms of the proviso. Even if a member joined the Society subsequent to its formation and at the time of his joining the Society he held some land, then the extent of such land will have to be taken into consideration in terms of the proviso. If such a member held more land at the time of his admission to the membership of the Society than will be deemed to be held by him on the basis as laid down in the main part of sub-section (4) of Section 5, i.e., on the basis of his share in the Cooperative Society, then the larger extent of the land actually held by him will be disregarded and he will be deemed to hold land in the society on the basis of his share in the Society as laid down in sub-section (4) of Section 5, but if such a member is found to hold no land at the time of his admission to the membership of the Society, then he will not be deemed to hold any land in the holding of the Society. If at the time of his admission as a member of the Society he held lesser area of land than the area of land as worked out on the basis of his share in the Co-operative Society, then he will be deemed to hold the lesser area and not the area which is worked out or. the basis of his share in the Co-operative Society. As the lower appellate court has misinterpreted Section 5 (4) and its proviso, it has become necessary to quash its judgment and send back the controversy again to be decided by the Prescribed Authority. 11. Accordingly, I allow this petition and quash the judgment of the lower appellate court dated 19-2-1977 (Annexure A-III) and that of the Prescribed Authority dated 24-6-1975 (Annexure A-II). The case is remanded to the Prescribed Authority with a direction that it shall find out as to who were the members of the Co-operative Society on 8th June, 1973 and how much land was held by each such member at the time of his admission to the membership of the Society. The case is remanded to the Prescribed Authority with a direction that it shall find out as to who were the members of the Co-operative Society on 8th June, 1973 and how much land was held by each such member at the time of his admission to the membership of the Society. Thereafter the deemed share of each member in the holding held by the Society shall be calculated on the basis of the respective share of each such member in the Society but as altered in the light of the proviso to sub-section (4) of Section 5. As laid down above, if such member at the time of his admission to the membership of the Society is found to have held a larger area of land then the area worked out on the basis of his share in the Society, then the larger extent of the land held by him at the time of his admission to the membership of the Society, shall be disregarded and he shall be deemed to hold land in proportion to the area held by him in the holding of the Society on the basis of his share in the Society. However, if such member is found to have held no land at the time of his admission to the membership of the Society, then he shall not be deemed to hold any area of the holding of the Society. If he is found to have held lesser area of land than the area which is proportionate to his share in the Society, then such a member shall be deemed to hold the lesser area in the holding of the Society. In this way the Prescribed Authority should determine as to what was the extent of the area deemed to be held by each member of the Society in the holding of the Society on the relevant date, i.e., 8th June, 1973. 12. As has been laid down by K. P. Singh, J. in Model Co-operative Farming Ltd. v. State of U. P. (1978 All LJ 1434), I it will be necessary that each member of the Society as on 8th June, 1973 should also be issued notice separately and then the Prescribed Authority shall decide the case afresh in the light of the aforesaid observations and direction. In the circumstances, there will be no order as to costs.