ORDER (Parthasarathi Mitra, F.C.(A)) - A predecessor of mine had decided Revision Petition No. 227/95 on 12.7.2006. However the petitioners were not satisfied and had approached the Hon’ble High Court of H.P. in CWP No. 1029/06 titled Ravinder Singh v. State of Himachal Pradesh and others. The Hon’ble High Court vide orders dated 7.11.2008 had directed as under :- “The petitioner had relied upon the case titled Kashmir Singh v. Smt. Balwant Devi and others, 1992(1) S.L.J. 718 in support of his case before the learned Financial Commissioner. However, the learned Financial Commissioner has relied upon the order rendered in Revenue Petition No. 5 of 1991, decided on 7.11.1991 titled The State of Himachal Pradesh v. Shri Brijender Singh, reported in 1992 PLJ 153 : 1992(1) Cur.L.J. 707. It is not disputed by the parties against the order dated 7.11.1991, writ petition bearing No. 96./92 was filed before this Court. The writ petition was allowed by this Court on 23.6.1997. The respondent-State had preferred Special Leave Petition before the Hon’ble Supreme Court on 22.4.2004 (State of H.P. and others v. Rajkumar Brijender Singh and others, 2004(10) Supreme Court Cases 585 : 2004(Suppl.) Cur.L.J. (H.P.) S.C. 114. Since the learned Financial Commissioner has taken into consideration the case The State of Himachal Pradesh v. Shri Brijender Singh while deciding the revision petition, which has been set aside by the Hon’ble Supreme Court, as noticed earlier, it is a fit case where the matter is required to be remanded back to the learned Financial Commissioner (Appeals) to the Government of Himachal Pradesh, Shimla to decide the it afresh between the parties on the basis of the order passed by the learned Financial Commissioner (Appeals) in Kashmir Singh v. Smt. Balwant Devi and others, reported in 1992(1) SLJ 718. The learned Financial Commissioner is directed to decide the matter within three months from today. The parties are directed to make themselves available before the learned Financial Commissioner (Appeals), Shimla on 19.11.2008.” According the matter came up. The records of the courts below were therefore requisitioned and counsel for the parties were heard. 2. Briefly the facts of the case are that the Land Ceiling Collector, Una sub-division had vide an order dated 14.1.1975 decided the case of Shri Bachittar Singh, father of the present petitioners under the H.P. Ceiling on Land Holding Act, 1972. The records of the courts below were therefore requisitioned and counsel for the parties were heard. 2. Briefly the facts of the case are that the Land Ceiling Collector, Una sub-division had vide an order dated 14.1.1975 decided the case of Shri Bachittar Singh, father of the present petitioners under the H.P. Ceiling on Land Holding Act, 1972. Dissatisfied, Shri Bachittar Singh had filed an application for review of the said order which was however rejected. Later on the Collector took up the matter again suo moto and sought the permission of the Commissioner, Kangra Division to review the earlier orders on the ground that more land belonging to the family had been reported and therefore the case had to be reviewed for calculating the permissible area. Upon receipt of permission, the Collector decided the matter afresh vide orders dated 20.11.1980 but his orders were set aside by the Commissioner vide orders dated 29.6.1982. Shri Bachittar Singh had filed an appeal against the Commissioner’s orders and a predecessor of mine decided the same on 6.11.1987 setting aside the Commissioner’s orders and remanded the matter back to the Collector for decision afresh. The Collector thereafter decided the matter on 19.2.1992 keeping in view the observation of that predecessor of mine that “....more area should have been declared as surplus by giving two units to Shri Bachittar Singh as provided under Section 4(4) of the Act ibid.” 3. The abovesaid Shri Bachittar Singh filed an appeal against the Collector’s 1992 order before the Commissioner, which was however dismissed in 1994. The learned Commissioner had held that the Collector could not have deviated from the abovesaid observations of the predecessor of mine and therefore, the Collector had correctly fixed the ceiling on landholding by allowing two units to Shri Bachittar Singh. The learned Commissioner also held that Shri Bachittar Singh was estopped from contending that gair mumkin land had been wrongly recorded as barani because the character of land on the appointed day under the Act is relevant and the nature of the land on appointed day could not determined on a subsequent date. 4. Aggrieved by this order, the present petitioners, who are the successors in interest of Shri Bachittar Singh, came in appeal before this Court in Revision Petition No. 227 of 1995. My learned predecessor had dismissed the revision on 12.7.2006 finding it to be devoid of merits. 4. Aggrieved by this order, the present petitioners, who are the successors in interest of Shri Bachittar Singh, came in appeal before this Court in Revision Petition No. 227 of 1995. My learned predecessor had dismissed the revision on 12.7.2006 finding it to be devoid of merits. This led to the aforesaid CWP in the Hon’ble High Court of H.P. as per whose orders this matter is being decided afresh. 5. In this regard the learned Counsel for both sides were heard on 23.1.2009 at Una. Learned Counsel for the petitions began his arguments by going through the important provisions of the H.P.Ceilings on Land Holdings Act, 1972. He stated that the Act had fixed the ‘appointed day’ as 24.1.1971. Further under Section 3(e), the definition of ‘family’ has been given while the definition of ‘land owners’ has been given in sub-clause (g). Further in sub-clause (q), the meaning of the term ‘separate unit’ has been given which means an adult son or in case of his death his widow and children, if any. Learned Counsel pointed out that Section 4 of the Act lays down the method of calculating the permissible area; sub-clause (3) thereof lays down how the permissible area of a family shall increase by one-fifth for each additional minor member of a family beyond three minor children but the aggregate permissible area shall not exceed two times the permissible area under Section 4(1). Learned Counsel next drew attention to Section 4(4) which provides that every adult son of a person shall be treated as a ‘separate unit’ and he shall be entitled to the land upto the extent permissible under sub-sections (1) and (2) of Section 4 subject to the condition that the aggregate land of the family and that of separate units put together shall not exceed twice the permissible area of the family. Learned counsel drew particular attention to the proviso to this sub-section which provides that where such a separate unit owns any land, the same shall be taken into account for calculating the permissible area of that unit. In other words, each adult son owing land will not only be treated as a separate unit but the land such adult son owns will be taken into account for calculating the permissible area of his unit and not clubbed with his father’s unit. In other words, each adult son owing land will not only be treated as a separate unit but the land such adult son owns will be taken into account for calculating the permissible area of his unit and not clubbed with his father’s unit. Thus the land of the adult sons cannot be included in the unit of their father if they are independently holding land. 6. Learned Counsel further drew attention para 6 of the then Financial Commissioner Shri S.S. Sidhu’s decision in Kashmir Singh v. Smt. Balwant Devi and others. According to learned Counsel, the main point to be noted here was that once the sons hold land separately on their own prior to the appointed day, then they have to be treated separately and cannot be clubbed with the father. Learned Counsel further stated that the decision in the Kashmir Singh v. Smt. Balwant Devi case had been upheld by the Hon’ble High Court whereas the decision in the Raj Kumar Brijender Singh and others case had not been upheld whereupon the State of Himachal Pradesh had even gone in appeal in the Hon’ble Supreme Court but the Apex Court had rejected the appeal. Learned Counsel submitted that the matter may be remanded back to the Collector to recalculate the ceiling case of the petitioners. 7. Learned District Attorney (Revenue) representing the respondent stated that the order of the Hon’ble High Court is that the matter be decided afresh on the basis of the orders of the Financial Commissioner (Appeals) in the Kashmir Singh v. Smt. Balwant Devi and others case. Learned Counsel however felt that the facts of the present case are quite different from those of the Kashmir Singh case. According to learned Counsel, in the Kashmir Singh case, Shri Agya Ram had died on 21.7.1977 after which his estate was inherited by his sons. This was before the enforcement of the Land Ceiling Act and all heirs had become independent/separate owners before the appointed day. Thus the law laid down in the Kashmir Singh case is not applicable to the present case. Learned Counsel also felt that the decision taken by my predecessor on 12.7.2006 in respect of the present petitioners is correct and there is no reason to change the same. 8. Thus the law laid down in the Kashmir Singh case is not applicable to the present case. Learned Counsel also felt that the decision taken by my predecessor on 12.7.2006 in respect of the present petitioners is correct and there is no reason to change the same. 8. In rebuttal, learned Counsel for the petitioners stated that the sons of Shri Bachittar Singh had also become independents owners of land before the appointed day. They may have become owners by way of gift but this does not take away their independence or separateness as owners. 9. As stated above, the Hon’ble High Court has directed that the matter between the parties be decided afresh “......on the basis of the order passed by the learned Financial Commissioner (Appeals) in Kashmir Singh v. Smt. Balwant Devi and others.....”. Accordingly the said decision was perused. It was noted that the Financial Commissioner had in that case held that “...but each of them had held land separately in their own much prior to the `appointed day’. It becomes abundantly clear from the record that each of the respondents including Smt. Balwant Devi had either separate holdings and each of the respondents was a separate unit and a separate family. The holdings of the respondents by no stretch of imagination can be clubbed when it has been asserted that they were living separately......” 10. The provisions of the H.P. Ceiling on Land Holdings Act were also perused. Section 4 of the Act reads as under :- “4. Permissible area. The holdings of the respondents by no stretch of imagination can be clubbed when it has been asserted that they were living separately......” 10. The provisions of the H.P. Ceiling on Land Holdings Act were also perused. Section 4 of the Act reads as under :- “4. Permissible area. - (1) The permissible area of a landowner or a tenant or a mortgagee with possession or partly in one capacity or partly in another of a person on a family consisting of husband, wife and upto three minor children should be in respect of - (a) land under assured irrigation capable of growing two crops in a year 10 acres; (b) land under assured irrigation capable of growing one crop in a year 15 acres; (c) land of classes other than described in clauses (a) and (b) above including land under orchards - 30 acres; (2) The permissible area for the purposes of clause (c) of sub-section (1) for the districts of Kinnaur and Lahaul and Spiti, Tehsil Pangi and Sub-Tehsil Bharmour of Chamba District, areas of Chhota Bhangal and ‘Bara Bhangal of Baijnath, Kanungo Circle of Tehsil Palampur of Kangra district and area of Dodra Kuwar Patwar Circle of Rohru Tehsil and Pandra-bis Pargana of Rampur Tehsil of Shimla district shall be 70 acres. (3) The permissible area of a family under sub-section (1) shall be increased by one-fifth of the permissible area under sub-sections (1) and (2) for each additional minor members of a family subject to the condition that the aggregate pernmsisible area shall not exceed twice the permissible area of a family under sub-sections (1) and (2). (4) Every adult son of a person shall be treated as a separate unit and he shall be entitled to the land upto the extent permissible to a family under sub-sections (1) and (2) subject to the condition that the aggregate land of the family and that of the separate units put together shall not exceed twice the area permissible under the said sub-sections; Provided that where the separate unit owns any land, the same shall be taken into account for calculating the permissible area for that unit.” 11. From the above provision, it is clear that the Act, while laying down how the permissible area of a family is to be calculated, distinguishes an adult son of a family from minor children and lays down how such adult sons are to be treated as separate units. Further the proviso to sub-section (4) makes a distinction between an adult son without any land of his own and one who owns land. In case an adult son owns land of his own, the land owned by him has to be taken into account for calculating the permissible area “for that unit”, meaning thereby that an adult son owing land will not only form a separate unit but also that his landholding will be used to calculate the permissible area of `that’ i.e. his unit. Thus his holdings will not be clubbed with the holdings of his father. This interpretation arises because firstly had it been the intention of the Legislature not to distinguish between an adult son without any land of his own and an adult son with land of his own, then there would be no need for the proviso at all. Secondly, the use of the word `that’ at the end of the proviso indicates that the land owned by an adult son is to be taken into account for calculating the permissible area for his separate unit. Thus adult sons owning land have to be treated differently i.e. separately. Therefore, the land held by an adult son(s) will not come into the calculations in respect of his father and he is to be treated as a separate and independent unit. This is also as per the ratio of the Kashmir Singh v. Balwant Devi case. 12. In the instant case, the petitioners have in their petition of 28.2.1995 very clearly alleged that the Land Ceiling Collector has wrongly and illegally included the separate land holdings of the “major adult sons of Bachittar Singh”. They have in their petition further submitted that the major sons were having land in their names much prior to the enforcement of the Land Ceiling Act. Further, in the order of Collector Land Ceiling, Una dated 20.11.1980, there is reference to it coming to the notice of the Collector that the eldest son of Shri Bachittar Singh “is having 196 kanals of land separately on his name....”. Further, in the order of Collector Land Ceiling, Una dated 20.11.1980, there is reference to it coming to the notice of the Collector that the eldest son of Shri Bachittar Singh “is having 196 kanals of land separately on his name....”. Similarly there are references in the record of the other sons having land in their names. If so, they will have to be dealt with separately under the Ceiling on Land Holdings Act. But all this needs to be carefully checked to reach correct calculations. 13. From the above it transpires that the Commissioner has neither followed the provisions of the law correctly nor appreciated the evidence on record. Similarly the Land Ceiling Collectors have also not correctly followed the provisions of the land and there are differences in the orders of Land Ceiling Collectors passed on different dates. In these circumstances, the revision petition is accepted and the orders of the Commissioner, Kangra Division dated 15.11.1994 in appeal No. 76/93 and the orders of the lower courts are set aside. The matter is further remanded to the Land Ceiling Collector, Una to take further action re-calculating the permissible area in respect of Shri Bachittar Singh and others concerned as per the law. 14. These orders be communicated to the parties and also to the Land Ceiling Collector, Una. Record of the courts below be returned and the case file be consigned to the record room after completion. M.R.B. ———————