Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1388 (ALL)

Asharfi Lal v. Iii A. D. J.

2024-05-23

SARAL SRIVASTAVA

body2024
JUDGMENT : SARAL SRIVASTAVA, J. 1. Heard Sri B.B. Jauhari, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. The petitioner by means of the present writ petition has assailed the order dated 23.11.1983 passed by the Prescribed Authority (Ceiling), Tehsil Puwaya, District Shahjahanpur by which he has declared 4.63 acre surplus land held by the petitioner, and also the order dated 16.01.1984 passed by the Additional District Judge, Shahjahanpur dismissing the Misc. Civil Appeal No. 141 of 1983 preferred by the petitioner under Section 13 of The Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the 'Act, 1960). 3. The facts, in brief, are that the petitioner was issued a notice on 02.06.1983 under Section 10 (2) of the Act, 1960 on the ground that the petitioner had 22.65 acres of irrigation land whereas, under the Act 1960, he could retain only 18.02-acre land, thus, the petitioner was having 4.63-acre excess land, therefore, why the excess land of 4.63 acres held by the petitioner be not declared as surplus land. 4. The petitioner submitted a reply contending inter-alia that the notice was issued to the petitioner under Section 10 (2) of the Act, 1960 on 02.06.1983, and on the date of the notice, the family of the petitioner consisted of the petitioner, namely, Asharfi Lal, his wife, three daughters and two sons. His further case was that his one daughter was married on the date of notice, therefore, after excluding the married daughter, there are six family members still in the family of the petitioner, therefore, in view of Section 5 (3) (b) of the Act, 1960, the petitioner is entitled to retain two hectares extra land. Thus, the petitioner has no excess land. 5. The Ceiling Authority repelled the aforesaid contention by holding that the family members of the tenure holder shall be considered on the date of introduction of the amending act i.e. 08.06.1973 and not on the date of the notice under Section 10(2) of the Act, 1960, and since in the present case, one son and daughter of the petitioner were born in the year 1975 and 1979 respectively after coming into force the amending act, therefore, on the date of amending act, there were only four family members in the family of the petitioner, therefore, the petitioner had 4.63 acres excess land. Besides the above, the other issues framed by the Prescribed Authority were decided against the petitioner. 6. The petitioner preferred an appeal under Section 13 of the Act, 1960 challenging the order of the Prescribed Authority. The appellate authority noted that the only contention advanced by the petitioner was whether the family members of the tenure holders as provided in Section 3 (7) of the Act, 1960 shall be considered on the date of introduction of amending act or the date of issuance of the notice. 7. The appellate authority after considering the scheme of the Act held that if Section 5(3) (b) of the Act is read along with Section 5(1) of the Act, 1960, it is manifest that the family member of the tenure holder is to be seen on the date of introduction of the amending act i.e. 08.06.1973, and since in the case in hand, the petitioner on the date of introduction of the amending act had only four family members as one daughter and son were born to the petitioner after the introduction of the amending act, therefore, the petitioner is not entitled to the benefit of Section 5(3) (b) of the Act, 1960. Accordingly, the appellate authority did not find any merit in the submission of the petitioner and rejected the appeal. 8. Challenging the aforesaid orders, learned counsel for the petitioner has contended that it is not in dispute in the present case that the notice under Section 10(2) of the Act, 1960 had been issued on 02.06.1983. It is also not in dispute that one son and one daughter of the petitioner were born in the year 1975 and 1979 respectively i.e. before the issuance of notice under Section 10(2) of the Act, 1960. It is submitted that on the date of issuance of notice, there are six family members in the family of the petitioner, and thus, the petitioner is entitled to the benefit of Section 5(3) (b) of the Act, 1960, therefore, he is entitled to retain two hectares extra land besides the land which a tenure holder can retain after incorporation of amending act. 9. 9. It is contended that the appellate authority has taken an erroneous view in the matter in concluding that the date of introduction of the amending act is the cut-off date on which the family members in the family of the tenure holder are to be counted. He submits that if family members exceed five and a family member is minor, even then the benefit of retention of two hectares of extra land cannot be denied to the petitioner inasmuch as the Act does not specify that only a major family member if the number of family members exceeds five is entitled to retain two-hectare extra land besides the land which he is entitled to retain under the Act. In support of his argument, he has placed reliance upon the judgment of this Court in the cases of Brij Narain Tewari Vs. State of Uttar Pradesh and Others, 1979 (5) ALR 451 and Ram Chandra Vs. State of Uttar Pradesh and Others, 2020 (4) ADJ 535 (LB). 10. Per contra, learned Standing Counsel submits that the number of family members on the date of introduction of the amending act shall be taken into consideration to determine the family members and not the date of issuance of notice. It is submitted that in such view of the fact, the Appellate Authority has rightly rejected the appeal of the petitioner, and since the finding returned by the appellate authority is based upon proper appreciation of law, therefore, this Court may not exercise its power under Article 226 of the Constitution of India to interfere with the order passed by the appellate authority as well as prescribed authority. 11. I have considered the rival submissions advanced by learned counsel for the parties. 12. The facts as emanates from the record are that the petitioner was issued a notice under Section 10(2) of the Act, 1960 on 02.06.1983 calling upon him to show cause as to why 4.6 acres of land be not declared as surplus as his total holding is 22.65 acre, out of which he can retain only 18.02 acres irrigation land. 13. The petitioner submitted a reply to the said notice. 13. The petitioner submitted a reply to the said notice. In the reply, it is stated by the petitioner that on the date of issuance of notice under Section 10 (2) of the Act, 1960, there were six members in the family of the petitioner, therefore, in view of the definition of “family” provided in Section 3 (7) of the Act read with Section 5 (3) (b) of the Act, 1960, the petitioner is entitled to retain two hectares extra land. 14. The Prescribed Authority did not find any merit in the submission of the petitioner and declared 4.06 acres of land as surplus land. The appeal preferred by the petitioner was also dismissed by the appellate authority holding that the number of family members to avail benefit of Section 5(3) (b) of the Act, 1960 is to be seen on the date of introduction of the amending act and not on the date of issuance of notice. 15. The first question which arises for consideration in the present case is whether the Act lays any distinction between the minor and major while extending the benefit of Section 5(3) (b) of the Act, 1960 entitling a tenure holder to retain two hectares extra land if the family members of the tenure holder exceeds five in numbers. In this respect, it would be relevant to reproduce Section 5 (3) (b) of the Act, 1960 which reads as under: “subject to the provisions of sub-section (4), (5), (6) and (7), the ceiling area for purposes of subsection (1) shall be: (b) in the case of a tenure-holder having family of more than five members, 7.30 hectares of irrigated land (including land held by other members of his family), besides, each of the members exceeding five and for each of his adult sons who are not themselves tenure-holders or who hold less than two hectares of irrigated land, two additional hectares of irrigated land or such additional land which together with the land held by such adult son aggregates to two hectares, subject to a maximum of six hectares of such additional land. Explanation - The expression 'adult son' in clauses (a) and (b) includes an adult son who is dead and has left surviving behind him minor sons or minor daughters (other than married daughters) who are not themselves tenure-holders or who hold land less than two hectares of irrigated land.” 16. Explanation - The expression 'adult son' in clauses (a) and (b) includes an adult son who is dead and has left surviving behind him minor sons or minor daughters (other than married daughters) who are not themselves tenure-holders or who hold land less than two hectares of irrigated land.” 16. A reading of Section 5 (3) (b) of the Act, 1960 discloses that a tenure holder up to five members can retain 7.30 hectares of irrigated land. The aforesaid Section further specifies that besides the above, each of the members exceeding five and for each of his adult sons who are not themselves tenure holders or who hold less than two hectares of irrigated land, the tenure holder can retain two additional hectares of irrigated land subject to maximum six hectares of land. Reading of Section 5 (3) (b) of the Act, 1960 does not suggest that it differentiates or contemplates any distinction between the major and minor members of the family. The term 'family' has been defined in Section 3 (7) of the Act, 1960 which reads as under: “family” in relation to a tenure-holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters).” 17. In such view of the fact, even if a member of the family is minor, he is entitled to retain two hectares of additional land, if the family member of a tenure holder exceeds five. The aforesaid view is supported by a Coordinate Bench of this Court in the case of Brij Narain Tewari (supra). The relevant extract of the said judgment of Brij Narain Tewari (supra) is reproduced herein-below: “The aforesaid provision clearly shows that if there are major sons in the family of a tenure holder, the tenure holder is entitled for additional land provided the major sons are themselves not tenure holders. Similarly, it also provides that even if there are no major sons, if the strength of members of the family is more than 5 then the tenure holder is entitled for additional land of two hectares for each member of the family. Similarly, it also provides that even if there are no major sons, if the strength of members of the family is more than 5 then the tenure holder is entitled for additional land of two hectares for each member of the family. It is not in dispute in the present case that the string the of members of the family of the petitioner was eight after excluding the two major sons who were themselves held to be the tenure holders by the appellate authority. If strength of the members of the family was eight, it cannot be disputed that the petitioner was entitled for additional land of six hectares. The Prescribed Authority rightly granted this additional land, but the appellate authority erroneously upset that order. The reason for refusing to grant six hectares of land by the appellate authority is manifestly erroneous. Once it was established that the daughters aged three and five years were members of the family, it was not at all necessary to establish that they were not married. It is really very strange that the daughters of three and five years of age cannot be presumed to be unmarried. The State did not set up any such case, that they were married. The presumption drawn by the appellate authority that in the absence of evidence to establish that the two daughters were not married they have to be presumed to be married is wholly erroneous. Neither under the Hindu Law nor under the Child Marriage Restraint Act is permissible to marry a daughter of three to five years old. If anybody would have claimed that they were married, the burden lay upon him to establish that fact. When State of Uttar Pradesh did not dispute this fact nor did it lead any evidence to that effect, the appellate authority was not right to draw such an inference.” The result, is, that this writ petition is allowed and both the judgments of the appellate authority (IV Additional District Judge, Deoria) dated 26-7-1975 and 2-2-1976, so far as they relate to the additional six hectares land, are hereby quashed. The Prescribed Authority is directed to recalculate to the surplus area after granting six hectares a land in addition as granted by the Prescribed Authority on account of the additional members of the family of the petitioner. The Prescribed Authority is directed to recalculate to the surplus area after granting six hectares a land in addition as granted by the Prescribed Authority on account of the additional members of the family of the petitioner. In these circumstances of the case, the parties shall bear their own costs. The stay order shall stand discharged. 18. Now, coming to the question whether the family members are to be seen on the date of introduction of the amending act in the Ceiling Act or on the date of issuance of notice, the aforesaid question has also been answered by the Coordinate Bench of this Court in the case of Ram Chandra (supra). Paragraphs nos. 38, 39 & 40 of the judgment of Ram Chandra (supra) are reproduced herein-below: 38. A careful perusal of the aforesaid provision clearly shows that if the member in the family exceeds five, the tenure holder is entitled for additional land provided that none of such member is a tenure holder in his/her own right. Similarly, it also provides that even if there are no adult sons, but if the strength of the members of the family is more than five, then the tenure holder is entitled to additional land of 2 hectares for each member of the family subject to a maximum of 6 hectares of additional land. It is not in dispute in the present case that the strength of family members of the petitioner was Eight at the time when notice was issued to him on 2.11.2000. The petitioner brought on record the High School pass Certificates of his three daughters and three sons. However, the Prescribed Authority and the Appellate Authority refused to grant benefit of additional land for each member of the family in addition to the five members as the petitioner did not produce relevant extract of the Family Register and on 8.6.1973 none of the petitioner's children was born. The logic applied by the Prescribed Authority and the Appellate Authority is incomprehensible. According to the respondents, the date of determination of family members has been taken as 8th June 1973, but the date of determination of ceiling area has been taken as the date when the Prescribed Authority was deciding the case. 39. The logic applied by the Prescribed Authority and the Appellate Authority is incomprehensible. According to the respondents, the date of determination of family members has been taken as 8th June 1973, but the date of determination of ceiling area has been taken as the date when the Prescribed Authority was deciding the case. 39. In my considered opinion even though the petitioner's family consisted of only two members i.e. himself and his wife on 8th June 1973, at the time of issuance of notice under Section 9, on 2.11.2000, all of his six children had been born. Three of his daughters were married but there were at least three sons who were living with him. None of them has been shown to be an independent tenure holder having more than 2 hectares of land by the State respondents, in their Counter-affidavit. For the purpose of determination of ceiling area the petitioner was entitled to 2 additional hectares for at least one of his sons namely Shyam Srivastava who was major at the time. 40. Though this Court is not convinced with the argument of the learned counsel for the petitioner regarding the applicability of the cut-off date of 8.6.1973 for determining ceiling area on the basis of Section 29 of the Act and holds that the petitioner was independent tenure holder of eight plots of land ad-measuring 8.546 hectares in villages Magrapur and Baddupur in Tehsil Shahbad District Hardoi which in irrigated terms came out to be 7.968 hectares; the failure of the learned Court below to take into account the number of members of the petitioner's family while determining the permissible limit of land to be left with the petitioner cannot be countenanced. 19. In such view of the fact, the reason assigned by the appellate authority that the number of family members is to be seen on the date of introduction of the amending act and not on the date of notice under Section 10 (2) of the Act, 1960 is erroneous and cannot be sustained in law, and is accordingly set aside. 20. Thus, for the reasons given above, the order dated 23.11.1983 passed by the Prescribed Authority (Ceiling), Tehsil Puwaya, District Shahjahanpur and the order dated 16.01.1984 passed by the Additional District Judge, Shahjahanpur are hereby set aside. 21. Consequently, the writ petition is allowed with no order as to costs.