PETITIONER:
DARSHAN PRASHAD AND ANR.
Vs.
RESPONDENT:
CIVIL JUDGE II, GORAKHPUR AND ORS.
DATE OF JUDGMENT13/03/1992
BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
RAMASWAMY, K.
CITATION:
1992 AIR 967 1992 SCR (2) 265
1992 SCC Supl. (2) 87 JT 1992 (2) 213
1992 SCALE (1)660
ACT:
U.P. Imposition of Ceiling on Land Holdings Act,
1960/U.P. Act No. 20 of 1976:
Ss. 3(7), 5(3), 10(2), 38-A, 38-B-Agricultural lands-
Ceiling-Determination of-Land held by wife as separate
tenure-holder, living separately without obtaining a decree
for judicial separation-Whether can be included in the land
of husband while determining ceiling area: Family-Whether
includes wife living separately without obtaining judicial
separation.
Issuance of fresh notice under s.10(2) after
enforcement of U.P. Act No. 20 of 1976-Validity of-Whether
decision in earlier proceedings operates as res judicate.
Words and Phrases:
'Family', 'judicial separation', 'judicially separated
wife'-Meaning of.
HEADNOTE:
A notice under s.10(2) of the U.P. Imposition of
Ceiling on Land Holdings Act, 1960, as amended by the U.P.
Act No. 20 of 1976, was issued to the appellant; and his
objections thereto were dismissed by the Prescribed
Authority. Thereupon two appeals were filed before the
appellate authority-one by the appellant and another by his
wife claiming herself to be the judicially separated wife.
It was stated that she was living separately and the
appellant gave her certain lands for maintenance in respect
of which she obtained a decree of injunction restraining the
appellant-husband from interfering with her possession; and
her ownership with respect thereto was recognised in
consolidation proceeding as well as in the earlier ceiling
proceedings.
Both the appeals were dismissed by the appellate
authority and the writ petitions thereupon filed by the
appellants were also dismissed by the High Court.
266
In appeal to this Court it was contended by the
appellants that (1) the lands of the wife, who was living
separately, could not be clubbed with the lands of the
husband even though a judicial separation may not have taken
place; and (2) the notice issued under s.10(2) was illegal
and without jurisdiction inasmuch as ceiling area in respect
of the appellants had been determined before coming into
force of Amendment Act No. 20 of 1976 and the order passed
in the earlier ceiling proceedings would operate as res
judicata.
Dismissing the appeals, this Court,
HELD : 1. In view of the provision of s.5(3) of the
U.P. Imposition of Ceiling on Land Holdings Act, 1960, while
determining ceiling area of the land belonging to a person,
the land even if owned or possessed by his wife in her own
right as a separate tenure-holder is not allowed to be
excluded and would have to be included in the land of the
husband treating the wife as a member of his family. The
only exception has been made in the case of a judicially
separated wife. The term 'judicially separated' wife
occurring in s.3(7) of the Ceiling Act, 1960 cannot be given
a meaning to include a wife merely living separately from
her husband but having not obtained a decree for judicial
separation, which was necessary under the provisions of the
Hindu Marriage Act, 1955. After obtaining such a decree
alone it could be recognised as judicial separation.
[.pp.270E-G; 271B]
2.1 The provisions of s.38-A of the U.P. Imposition of
Ceiling on Land Holdings Act, 1960 and s.30(3) of U.P. Act
No.20 of 1976 authorise the Prescribed Authority to issue
fresh notice under s.10(2), within a period of two years
from the date of any order passed in earlier ceiling
proceedings requiring the tenure holder to furnish such
particulars by an affidavit in respect of the land held by
him and members of his family as may be prescribed and
considered necessary for enforcement of the provisions of
the Ceiling Act. Section 38-B of Ceiling Act, 1960 clearly
provides that any finding or decision given before the
commencement of these provisions will not operate as a bar
for the retrial of such proceeding or issue in accordance
with the provisions of the Act as amended from time to time.
[pp.268F-G; 269B]
2.2 The High Court was right in holding that if an
earlier judgment is said to operate as res-judicata in the
subsequent proceedings, then all the necessary facts
including pleadings of the earlier litigation, must be
267
placed in the subsequent proceeding; and that the earlier
notice under Section 10(2) issued to the tenure-holder along
with the statement prepared in Form No.3 were neither placed
before the Ceiling authorities in subsequent proceedings nor
such material was produced even before the High Court in
order to enable it to decide whether the second notice could
be said to be illegal. [pp. 268-G-H; p.269A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2838-
39 of 1980.
From the Judgment dated 11.5.1979 of the Allahabad High
Court in Writ Petition Nos. 2764 & 2856 of 1977.
B.R.L. Iyengar, B. Barua and R.D. Upadhyay for the
Appellants.
Anil Kumar Gupta and A.K. Srivastava for the
respondents.
The Judgment of the Court was delivered by
KASLIWAL , J. These two appeal by grant of Special
Leave are directed against the judgment of the Allahabad
High Court dated 11.5.1979. A notice under Section 10(2) of
the U.P. Imposition of Ceiling on Land Holdings Act, 1960
(hereinafter referred to as the ‘Ceiling Act, 1960’) as
amended by Act No. 20 of 1976 was issued to the appellant
Darshan Prashad. The appellant filed objections, but the
same were dismissed by the prescribed authority by order
dated 28.5.1976. Thereafter two appeals were filed one by
Darshan Prashad and the other by Smt. Saraswati Devi
claiming to be the judicially separated wife of Darshan
Prashad. Both appeals were dismissed by the Civil Judge No.
II, Gorakhpur Darshan Prashad then filed Writ Petition
No.2764 of 1977 and Smt. Saraswati Devi Writ petition No.
2856 of 1977 challenging the order of the Civil Judge. The
High Court dismissed both the Writ Petitions by order dated
11.5.1979. Being aggrieved by the findings of the prescribed
authority and the High Court, the appellants have now filed
the present appeals.
The first contention raised by Learned Counsel for the
appellants was that notice issued under Section 10(2) wa
illegal and without jurisdiction. It was contended that in
the earlier ceiling proceedings 0.87 acres of land was
declared surplus under the provisions of the Ceiling Act,
1960 before coming into force of the Amendment Act, No.20 of
1976 and the order passed in the earlier ceiling proceedings
would operate as res
268
judicata. It was submitted that there was no change in the
law to justify issuing of fresh notice
We do not find any force in this contention. The
Amendment Act No. 20 of 1976 inserted two Sections 38-A and
38-B in the Principal Act of 1960. Sections 38-A and 38-B
are reproduced as under :-
“38-A. Power to call for particulars of land from
tenure-holders. (1) Where the prescribed authority
or the appellate court considers it necessary for
the enforcement of the provisions of this Act, it
may, at any stage of the proceedings under this
Act, require any tenure-holder to furnish such
particulars by affidavit in respect of the land
held by him and members of his family as may be
prescribed.
(2) The particulars of land filed under sub-section
(1) may be taken into consideration in determining
the surplus land of such tenure-holder.
38-B Bar against res judicata – No finding or
decision given before the commencement of this
section in any proceeding or on any issue
(including any order, decree or judgment) by any
court, tribunal or authority in respect of any
mater governed by this Act, shall bar the retrial
such proceeding or issue under this Act, in
accordance with the provisions of this Act as
amended from time to time.”
The above provisions clearly show that the prescribed
authority was given power to required any tenure-holder to
furnish such particulars, by affidavit in respect of the
land held by him and members of his family as may be
prescribed which may be considered necessary for the
enforcement of the provisions of the Ceiling Act. It is
clearly provided under Section 38-B inserted by the Amending
Act as mentioned above that any finding or decision given
before the commencement of this Section will not operate as
a bar for the retrial of such proceeding or issue in
accordance with the provisions of the Act as amended from
time to time. The appellants had raised a similar objection
before the High Court, but the same was rejected on the
ground that if an earlier judgment is said to operate as res
judicata in the subsequent proceedings, then all the
necessary facts including pleadings of the earlier
litigation must be placed in the subsequent
269
proceedings. The High Court further observed that in the
instant case, the earlier notice under Section 10(2) which
was issued to the tenure-holder along with the statement
prepared in Form No. 3 were not placed before the Ceiling
authorities in subsequent proceedings. It was further held
that even in the Writ Petition no such material was placed
in order to enable the Court to decide whether the second
notice could be said to be illegal. Section 30(3) of the
U.P. Act No. 20 of 1976 clearly provided that the prescribed
authority was authorised to issue fresh notice within a
period of two years from the date of any order passed in
earlier ceiling proceedings. We are in agreement with the
view taken by the High Court. Learned counsel for the
appellants was unable to show that in the facts and
circumstances of the case, the notice issued under Section
10(2) of the present proceedings was in any manner illegal
or without jurisdiction.
It was next contended on behalf of the Learned Counsel
for the Appellants that Smt Saraswati Devi had left the
company of the appellant Darshan Prashad and had started
living with her parents even before the year 1955. The
appellant (Darshan Prashad) had given her agricultural lands
for her maintenance and thereafter married with another
woman. It was submitted that Smt. Saraswati Devi had filed
a suit on 22nd February, 1956 for permanent injunction to
restrain the appellant Darshan Prashad from interfering with
her possession over the lands given to her in lieu of
maintenance. In that suit arbitrators were appointed by the
Court and an award was given in favour of Smt Saraswati Devi
on 5.12.1956. The said award was made a rule of the Court
and a decree was passed on 21.1.1957 in favour of Smt.
Saraswati Devi restraining the appellant by a decree of
permanent injunction from interfering with the possession of
Smt. Saraswati Devi over the lands situated in village
Karmahava Khurd, Tappa Lehara, Pargana Haveli, Gorakhpur.
It was submitted that even in the proceedings taken under
the provisions of Ceiling Act, 1960. Smt. Saraswati Devi was
recognised as owner of land by virtue of the decree dated
21.1.1957, and also in consolidation proceedings which took
place after the coming into force of the Ceiling Act,1960.
Learned Counsel for the appellants also contended that Smt.
Saraswati Devi was also entitled to separate residence and
maintenance from her husband under the provisions of the
Hindu Married Woman’s Right to Separate Residence and
Maintenance Act, 1946. It was thus contended that even
though a judicial separation of Smt. Saraswati Devi may not
have taken place, Smt. Saraswati Devi for all intents and
purposes was judicially separated wife
270
and the agricultural lands in her ownership and possession
long before the coming into force of the Ceiling Act, 1960,
connot be clubbed in the land of the appellant husband for
determining the ceiling area.
We do not find any force in the above contention in
view of the clear provisions of the ceiling Act, 1960.
Section 3(7) defines ‘family’ 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)”
It is clear from the above definition that the wife is
included in the family of her husband other than a
judicially separated wife.
If is important to note that the Hindu Marriage Act,
1955 had come into force on 18th May, 1955. Section 10 of
this Act provided for the judicial separation. Under
Section 10 of the Hindu Marriage Act either party to a
marriage was entitled to present a petition to the District
Court praying for a decree for judicial separation on any of
the grounds specified in sub-section (1) of Section 13 and
in the case of wife also on any of the grounds specified in
sub-section (2) thereof, as grounds of which a petition for
divorce might have been presented. Thus, in order to get a
judicial separation, it was necessary to obtain a decree
under the above provision and then alone it could be
recognised as a judicial separation. The Ceiling Act, 1960
was enacted and brought into operation long after the Hindu
Marriage Act, and as such the legislature was fully aware of
the meaning of judicial separated wife or husband while
using this term in the definition of ‘family’ under Section
3 (7) the Ceiling Act, 1960. It is further important to
note that sub-section (3) of Section 5 of the Ceiling Act,
1960, prescribes, while determining the ceiling area, the
land of ‘adult son/sons’ who were themselves tenure-holders
being excluded, but no such land is allowed to be excluded
in the case of the wife, even though she might be a separate
tenure-holder. Thus, it is abundantly clear from a perusal
of the above provisions that in the case of determining
ceiling area of the land belonging to a person, the land
even if owned or possessed by his wife in her own right
would have to be included in the land of the husband
treating the wife as a member of his family. The only
exception has been made in the case of a judicially
separated wife. It was contended by the Learned Counsel for
the appellants that a wider meaning should be given to the
271
term ‘judicially separated’ wife to include a wife who may
be living separately from her husband and agricultural land
owned or possessed in lieu of her right of maintenance
should be excluded from the ceiling limit of her husband.
It is difficult for us to accept this contention in view of
the clear provisions of the Ceiling Act, 1960 which apart
from being a beneficial act for the landless has used the
term ‘judicially separated’ wife after the coming into force
of the Hindu Marriage Act, 1955. This cannot be given a
meaning to include a wife merely living separately from the
husband, but having not obtained a decree for judicial
separation under the provisions of the Hindu Marriage Act,
1955.
In view of these circumstances, we find no force in
these appeals and the same are dismissed with no order as to
costs.
R.P. Appeals dismissed.
272