JUDGMENT
Krishna Murari, J.
1. The petitioners 23 in numbers claim to be members of a Farming Co-operative Society known as Bitraula Co-operative Farming Krishi Society Limited duly registered under U.P. Cooperative Societies Act. The said society was founded in 1959. After its formation the society applied for mutation of its name in the revenue record. The Sub Divisional Officer vide order date 1.4.1960 directed to expunge the name of the individual tenure holders, who had pooled their lands in the society and recorded the same in the name of society. Apart from the land pooled by the members, the society subsequently purchased certain area of land out of its own fund.
2. On the enforcement of U.P. Imposition of Ceiling on Land Holdings Act being Act No. 1 of 1961 (hereinafter referred to as the old Act), a notice under Section 10 (2) was issued in the name of the petitioner No. 1. The entire land recorded in the name of the society was clubbed with his holdings on the ground that the same is being ostensibly held by him. The notice was contested by the petitioner No. 1 by filing objection. The prescribed authority vide order dated 6.5.1964 held that petitioner No. 1 does not hold any land in excess of the ceiling limit and discharged the notice, a categorical finding was recorded by the prescribed authority in following words;
“From the perusal of the records before me it is evident that land in dispute were formally recorded in the exclusive names of certain other persons, not being relation to the objector as tenant in chief and afterwards the same were expunged from their names in favour of Bitraula Sahkari Samiti limited vide order of Sub Divisional Officer dated 22.3.1060/1.4.1961. There is no record to show that these lands in question have been wholly or partly in possession of the objector, Sri Shiv Mahendra Kumar Singh. The contention of the objector has got no concern with these lands, has also been duly proved by the overwhelming oral evidence. In view of the circumstances, the objector Sri Shiv Mahendra Kumar Singh cannot be deemed to have held these lands ostensibly in name of other persons”.
3. The old act came to be amended by U.P. Act No. 18 of 1973 and further by U.P. Act 12 OF 1975 which came into force in 1976. Again fresh notice was issued to the petitioner No. 1. The notice again included the holdings of the petitioner No. 2 to 23 which was recorded in the name of society as well as land of other persons who were members of the society. After deduction of the permissible ceiling area an area of 27.91 acres in terms of irrigated land was proposed to be declared surplus in the hand of the petitioner No. 1. Along with the notice under Section 10(2) of the Act, notices in Form No. 3-AA of the Forms prescribed under the Rules, framed under the Act, were also issued in the name of Cooperative Society and certain other persons on the ground that land recorded in their names is being ostensibly held by the petitioner No. 1. The notice was contested by the petitioner No. 1. Apart from other, one of the grounds taken in the objection was that the land standing in the name of co-operative society has wrongly clubbed with his holdings and the finding recorded in the earlier ceiling proceedings under the old act will operate as res-judicata. This objection of the petitioner No. 1 did not find favour with the prescribed authority and certain area was declared surplus. Feeling aggrieved, the petitioner No. 1 filed appeal. Other persons who were issued notices in Farm 3 AA also filed appeal. The Appellate authority vide order dated 17.8.1977 allowed the same and remanded the case back to the prescribed authority. After remand the prescribed authority again decided the dispute vide order dated 3.1.1980. While, accepting some of the grounds raised in the objection, the ground that land held by other persons who had pooled the same in the society could not be clubbed with his holdings, again did not find favour with the prescribed authority. The prescribed authority held that the finding recorded in the earlier ceiling proceedings under the old act that petitioner No. 1 cannot be held to hold land standing in the name of society ostensibly will not operate as res-judicata in the instant proceedings. Again two appeals were filed; one by petitioner No. 1 and other by the society and 12 other persons who were issued notices in Form 3 AA. The appellate authority also rejected the contention that finding recorded in the earlier ceiling proceedings under the old act shall operate as resjudicata. However, it remanded the case back to the prescribed authority to consider the question whether the co-operative society is genuine or not after issuing notices to all the members of the society in compliance of Rule-8.
4. This appellate order was challenged by petitioner No. 1 before this court by filing the writ petition No. 10225/1980 which came to be decided on 30.9.1981.
5. The question for determination in the said writ petition was framed by this court in the following words.
6. The controversy is to what extent the finding which are recorded in the earlier ceiling proceedings incorporated in the order, dated 6.5.1964, of prescribed authority will operate as binding in subsequent proceedings. The prescribed Authority and the appellate authority were of the view that in view of Section 38-B of the Act earlier finding are not binding”.
7. After considering the contention of the parties and the law on the subject the court observed as follows,
“In my opinion the contention is correct. So far as the question of ostensibility of owner ship is concerned there has been no change in the law by the various amendment effected. Therefore, in so far as such plots are concerned, as were sought to be included in the holding of tenure holder, in the earlier ceiling proceedings, which were ultimately excluded by the prescribed authority by his order dated 6.5.1964 from his holding after allowing his objection in that behalf, shall not be liable to be included in the holding of the petitioner in subsequent ceiling proceedings from which the instant petition has been arisen”.
8. The said writ petition filed by the petitioner No. 1 was allowed and remand order of the appellate authority was modified to that extent. Thus the question of ostensible ownership of the land standing in the name of the society came to be finally decided by this court and it was held that said land cannot be clubbed with the holding of the petitioner No. 1. However, the effect of introduction of Section 5 (4) in the Act and deletion of Section 6 (XV) was left open by the court to be considered by the prescribed authority.
9. After the aforesaid decision of this court the matter again came up before the prescribed authority and notice under Section 10 (2) of the Act was issued to all the petitioners. All of them filed separate objections which were registered as case No. 27 to 48. The prescribed authority decided all the cases separately on various dates, The case of the petitioner No. 1 was decided vide order dated 31.7.1982 and it was held as follows;
(i) 27.07 acres land in terms of irrigated land was declared surplus with the petitioner No. 1.
(ii) The Co-operative society was held- to be a genuine society.
(iii) The land purchased by the Co-operative society out of its own fund was directed to be distributed amongst the members of the society according to Section-5 (4) of the Act.
10. With regard to the petitioner No. 2 to 23, in some cases notices were confirmed, in some cases certain benefits claimed by them were extended and accordingly ceiling area was determined while in some cases notices were discharged.
11. Feeling aggrieved State of U.P. filed 23 appeals which came to be decided by the appellate authority by a common judgment dated 31.3.1984 which has been impugned in the present writ petition. The appellate authority remand the case back to the prescribed authority for re-adjudication after deciding the following issues afresh.
(i) The genuineness of the Co-operative society.
(ii) To distribute 10.60 acres of land belonging to society amongst its members according to the value of the share and to work out the total holdings of each member after including the area so worked out and determine the ceiling area thereafter.
(iii) To consider the effect of the newly added Section 5 (4) of the Act and deletion of Section 6 (XV).
(iv) Whether land transferred by Smt. Pitambari Raj Laxmi to some of the members of the co-operative society was irrigated or unirrigated.
12. The appellate authority further directed that the prescribed authority may allow all or any of the parties to adduce fresh evidence both oral or documentary.
13. Sri Anil Sharma, learned counsel for the petitioner has made following submissions;
i) After the judgment of this court in writ petition No. 10225/81 notice under Section 10 (2) of the act was issued to all the petitioners treating them as individual tenure holders in their own independent rights and accordingly the prescribed authority determined the ceiling area. Once the members were treated as independent tenure holders, there was no occasion for the appellate authority to remand the case back to consider the genuineness of the Co-operative society. It has further been urged that after examining the material brought on record the prescribed authority recorded a categorical finding that the society is a genuine society and is managing the land pooled by its members. The appellate authority without considering the said material has wrongly and illegally set aside the finding and remanded the issue back.
ii) The prescribed authority had already directed that land purchased by the society out of its own fund may be distributed amongst the members of the society according to Section 5 (4) of the Act and to determine the ceiling area of the members after including the same in their holdings. There was no necessity to remand the case back for re-adjudication of this issue.
iii) The cases in which notices were confirmed by the prescribed authority have been wrongly and illegally remanded by the appellate authority even though the appeals filed by the State in such cases were not maintainable as State cannot be said to be aggrieved by the judgment of the prescribed authority confirming the notices.
iv) The appellate authority while remanding the matter back wrongly and illegally directed the prescribed authority to permit the parties to adduce fresh evidence as no remand can be made to fill up the lacuna in the case. Learned Standing Counsel has urged that in the facts and circumstances the remand order was fully justified and no interference is called for in the impugned judgment by this court. I have considered the arguments advanced by the learned counsel for the parties and perused the record.
14. In order to appreciate the first argument advanced by the learned counsel for the petitioner, it is necessary to consider the provision of the Act relating to land held by the Co-operative society. Under the unamended act by virtue of Section 6 (XV) the land held by a co-operative society was exempted from imposition of ceiling and was not liable to be taken into consideration while determining the ceiling area of a tenure holder. However, by amending Act 18 of 1973 Section ‘6’ substituted by a new Section ‘6’ and the said exemption was withdrawn. By the same amending act Section 5 which provided for imposition of ceiling was also amended. Section 5 (4) relevant for the purpose of the present case reads as under;
(4)- Where any holding is held by a firm or Cooperative society or other society or association of persons (whether incorporated or not, but not including a public company) its members (whether called for partners, share-holders or by any other name) shall, for purposes of this Act, be deemed to hold that holding in proportion to their respective shares in that firm, co-operative society or other society or association of persons”. Subsequently, by the U.P. Act No. 2 of 1975 a proviso was added to Section 5 (4) which reads as under;
“Provided that where a person immediately before his admission to the firm, cooperative society or other society or association of persons, held no land or an area of land less than the area proportionate to his aforesaid share then he shall be deemed to hold no share, or as the case may be, only the lesser area in that holding, and the entire or the remaining area of the holding, as the case may be, shall be deemed to be held by the remaining members in proportion to their respective shares in the firm, co-operative society, or other society or association of persons”.
15. The question of ostensible ownership of petitioner No. 1 of the land standing in the name of society came to be finally adjudicated by this court in writ petition No. 10225/81 and it was held that the same cannot be clubbed with the holdings of petitioner No. 1. The judgment of this court is dated 30.9.81. By that time amendments made in Section 5 and Section 6 of the act were already enforced and for this reason the effect of those amendments were left open by this court to be considered by the prescribed authority. It was observed by this court in following words;
“I am not going to certain other question which may arise on account of the change which was brought about in reference to earlier law relating to a co-operative society in view of Section 5 (4) of the present act and deletion of Section 6 (XV) of the unamended act”.
16. The effect of the judgment of this court was that the land standing in the name of a society was not liable to be clubbed with the holding of the petitioner No. 1 but the ceiling area was to be determined in accordance with the amended Provision.
17. A bare reading of Section 5 (4) brought on the statute by amending act 18 of 1973 and proviso added by U.P. Act No. 2 of 1975 goes to show that all the members of a co-operative society irrespective of the date of their joining the society shall be deemed to hold the holding standing in the name of the society in proportionate to their respective shares in the society. Thus according to main Sub-section (4) the holding of a society is held by each member on 8.6.1973 in proportion to his share in the society. The proviso lays down an exception that if a member before his admission to the co-operative society did not hold any land then he shall not be deemed to hold any land in the society. The proviso further lays down that if such a member before 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 main Sub-section 4, then such members shall be deemed to hold the lesser area in the total holding held by the society. The remaining area shall be deemed to be held by the remaining members in proportionate to their respective shares in the society as provided by main part of Sub-section (4).
18. The date of admission to the membership of the society is relevant only for the purpose of finding out the extent of his holding at the time of admission as a member of the society. However, otherwise, it is not at all relevant as to when he was admitted as member of the society nor is it relevant whether he joined the society as a original member or at a subsequent point of time. What is relevant who were the member of the society on the relevant date. 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 extent of such land will have to be taken into consideration in terms of proviso. If such a member holds more land then proportionate to his share in the society at the time of his admission then he shall be deemed to hold land on the basis as laid down in the main part of Sub-section (4) i.e. on the basis of his share in the society and the larger extent of the land actually held by him will be disregarded. However, if such a member is found to hold no land at the time of his admission to the membership of the society then he shall not be deemed to hold any land in the holdings of the society. If at time of his admission he has lesser area of land then the area worked out on the basis of share in the society then he will be deemed to hold the lesser area and not the area, which is worked out on the basis of his share in the co-operative society.
19. After decision of this court in writ petition No. 10225/81 fresh notice under Section 10 (2) of the act was issued to the members of the society who filed their objections separately and accordingly their ceiling area was determined by the prescribed authority. A perusal of the judgments of the prescribed authority go to show that surplus area of the members have been determined treating them to be independent tenure holders and the land as their independent holdings. The prescribed authority has completely overlooked the provision of Section 5 (4) inasmuch as no finding has been recorded as to how many members were in the society on the relevant date, how much land was held by each members on the date when he was admitted as a member of the society. The effect of proviso of Section-4 has also not at all been considered by the prescribed authority. The prescribed authority has also failed to distribute the area of land purchased by the society after its formation in accordance with the provision of the main part of Sub-Section (4) before determination of ceiling area.
20. The appellate authority rightly set aside the finding of the prescribed authority on this issue and remand the case back for afresh adjudication in accordance with the provisions of Section 5 (4) of the Act.
21. In view of the aforesaid discussions the arguments advanced by the learned counsel for the petitioner that once notice under Section 10 (2) of the act was issued treating the members as individual tenure holders and the ceiling area was determined, there was no justification to remand the matter back to re-determine their ceiling area as members of the society, is misconceived and liable to be rejected.
22. However, in so far as Second limb of the first argument regarding the genuineness of the co-operative society is concerned the prescribed authority after considering the entire evidence brought on record came to the conclusion that co-operative society is a genuine society. A perusal of the judgment of the prescribed authority indicates that the said finding is based on proper appraisal of the evidence on record. The prescribed authority has also placed reliance on judgment rendered by Civil Judge in Suit No. 76 of 1976 filed by the co-operative society for injunction wherein a issue whether the plaintiff is a fictitious co-operative society was decided in negative and the suit was decreed. The said decree was affirmed in appeal and the State of U.P. was also a party to the said proceedings. The appellate authority without considering materials which formed the basis of finding of the prescribed authority set aside the same and remanded the case back to the prescribed authority to re-adjudicate the issue.
23. In my view, since findings of the prescribed authority are based on proper appreciation of evidence, there was no good ground for setting aside the same by the appellate authority. The finding of the prescribed authority on the question of genuineness of the cooperative society is confirmed and that of the appellate authority remanding the case back to the prescribed authority for re-adjudication is set aside.
24. The second argument advanced on behalf of the petitioner also does not holds good and is liable to be rejected. As already pointed out earlier the prescribed authority in its judgment dated 31.7.1982 pertaining to petitioner No. 1 though held that an area 10.60 acres of land purchased by the society has to be distributed among the members in accordance with Section 5 (4) of the Act but actually failed to do so while determining the ceiling area of the other petitioners. Thus the appellate authority rightly remanded the matter back to the prescribed authority with the direction to distribute the said area amongst the members of the co-operative society in accordance with Section 5 (4) of the Act and re-determine the ceiling area accordingly.
25. The third contention of the learned counsel for the petitioner also not liable to be accepted. Since, prescribed authority had failed to follow the provision of Section 5 (4) of the Act its judgment even in cases where notices were confirmed were not liable to be sustained and have rightly been set aside. Such cases have rightly been remanded back to be re-considered along with the case of other members of the society in accordance with the provision of Section 5 (4) of the Act.
26. In so far as last submission advanced by the learned counsel for the petitioner is concerned, it is correct that normally, no remand should be made permitting parties to adduce fresh evidence so as to fill the lacuna in their cases. However, in the present case, there appears to be no material on record such as the number of members of co-operative society and their respective share therein, the extent of land held by each member on the date of his admission etc, required for effective determination of the ceiling area of the members of the society in the light of provisions of Section 5 (4) of the Act. Since, an effective adjudication is not possible in the absence of the materials required to be considered under Section 5 (4) of the Act, in my opinion, it is one of the exceptional cases where parties should be permitted to adduce further evidence after remand. Thus the appellate authority rightly directed the prescribed authority to allow the parties to adduce further evidence.
27. In view of the aforesaid discussions this writ petition stands allowed in part, the impugned judgment of appellate authority dated 31.3.1984, filed annexure-55 to the writ petition shall stands modified to the extent and the manner indicated above. The prescribed authority shall re-determine the ceiling area in accordance with law and strictly in view of the provisions of Section 5 (4) of the Act and in the light of observations made herein above in this judgment. The finding of the prescribed authority regarding genuineness of the society stands confirmed.
28. In the facts and circumstances of the case, there shall be no order as to costs.