Nalini Ranjan Singh And Ors. vs The State Of Bihar And Ors. on 15 November, 1976

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76
Patna High Court
Nalini Ranjan Singh And Ors. vs The State Of Bihar And Ors. on 15 November, 1976
Equivalent citations: AIR 1977 Pat 171
Author: S Jha
Bench: S P Singh, S Jha


JUDGMENT

S.K. Jha, J.

1. In these two applications under Articles 226 and 227 of the Constitution of India are involved some common questions arising out of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962), hereinafter referred to as the parent Act, and the amendments made therein by virtue of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1972 (Bihar Act I of 1973) hereinafter referred to as the amending Act. Hence, this common judgment. Before setting out of the points raised at the Bar and the questions involved, it is worthwhile to state the facts relating to each of the two applications separately.

C. W. J. C. 1040/74

2. Petitioner No. 1, Nalini Ranjan
Singh, is the husband of petitioner No. 2,
Shrimati Usharani Singh, and the father
of petitioner No. 3, Padmanabh alias
Chetan, a minor. Petitioner No. 1 had a
number of co-sharers all descending from
his father Rukmini Raman Singh. In 1956
petitioner No. 1 instituted title suit 45 of
1956 in the Court of 1st Munsif, Sitamarhi,
for declaration of title and recovery of
possession with mesne profits in respect
of some lands allotted to him as a result
of partition in the joint family against
his father Rukmini Raman Singh. On
the 28th of June, 1956 a compromise de
cree was passed by which a previous
partition amongst the co-sharers and
petitioner No. 1 as also his father Ruk
mini Raman Singh was recognised and
affirmed. On the 6th of September, 1962
petitioner No. 1 made a gift of 42.671/2 acres
of land to his wife, petitioner No. 2, by a
registered deed and her name was duly
mutated in the revenue records of the
State. She hag been paying rent to the
State as also agricultural income-tax as
sessed from time to time. On the 31st
of March, 1966 petitioner No. 1 transfer
red 57.391/2 acres of land to petitioner No 3
by a private partition in the family of
the petitioners. Petitioner No. 3 was
thereafter duly mutated and rent is being
paid on his behalf to the revenue autho
rities of the State. Upto the 22nd of
June, 1968 by some registered sale deeds
petitioner No. 1 sold 9.35 acres of land to
different persons and 1.03 acre of land
was acquired by the State Government
for seed multiplication. After the exclusion of the aforesaid lands, petitioner
No. 1 was left with 52.931/2 acres including
culturable land and orchards. On the 3rd of October, 1970 the Deputy Collector, Sitamarhi, respondent No. 3, issued a notice (Annexure 1} to petitioner No. 1, which was received by him on the 17th of October, 1970, requiring him to submit a return by the 27th of October, 1970 with regard to the lands held by him. Petitioner No. 1 prayed extension of time which was granted and within the time extended he duly submitted a return in ceiling case 7 of 1970-71.

After due enquiries and on a consideration of all the facts and circumstances including the affidavits filed on behalf of petitioner No. 1, final order in the case was passed on the 29th of April, 1971, a copy whereof has been marked Annexure 2. That order is a rather long one and the operative portion thereof runs thus–

“On examination of the whole case I find that this land-holder holds only 52.93£ acres in his own possession as separate L. H. The break up is also within the permissible limit under the existing provisions of the Act. I don’t find cogent reasons to disbelieve the affidavits sworn and the contents therein. The proceeding is, therefore, dropped. Write to the Sub-Registrar, Sitamarhi, to delete his name from the list of land-holders holding excess land. Let separate records be started in the name of Srimati Usha Rani Singh and Chetan as said earlier and inform the Sub-Registrar.”

After this order was passed, petitioner No. 1 sold some lands with the permission of the Consolidation Officer since consolidation proceedings were going on. Then came the amending Act the landmarks of which I shall advert to later at a more appropriate place. Suffice it to say here by the amending Act the definition of ‘land-holder’ in Section 2 (g) of the parent Act was changed and definitions of ‘family’ and ‘minor child’ were inserted by Ss. 2 (ee) and 2 (eee) respectively. The permissible ceiling area prescribed under the parent Act was reduced by the amending Act by amendment of Ss. 4 and 5. It is also worthwhile to mention here that, although the amending Act was brought on the Statute Book much later, it was laid down in Section 1 (2) thereof that it shall be deemed to have come into force with effect from the 9th of September 1970. It may also be mentioned in the passing that the ceiling area was further reduced by Bihar Act IX of 1973 the provisions of which, however, are not relevant for the purpose of deciding these cases. After
the passing of the amending Act, a notice dated 22-7-1973 was issued by the Collector, Sitamarhi, respondent No. 2, under Section 8 (1) of the parent Act as emended by the amending Act, in ceiling case 7 of 1973-74, to submit a return in form L. C. 2 within 30 days of the receipt of the notice, failing which the provisions of Section 8 (2) were to be invoked. A copy of that notice hag been marked Annexure 3. On the 19th of October 1973 petitioner No. 1 submitted a return (Annexure 5) along with a petition (Annexure 4) stating therein that the matter had already been decided in earlier ceiling case 7 of 1970-71 which has become final by the order dated the 29th of April, 1971 aforementioned and also that with the permission of the Consolidation Officer certain lands have been disposed of by petitioner No. 1. Respondent No. 2, however, rejected all the submissions of petitioner No. 1 as also the correctness of the return by two orders dated the 30th of October, 1973 and the 9th of April, 1974 which are incorporated in his order sheet market Annexure 6. On the 7th of May, 1974 petitioner No. 1 filed a petition before respondent No. 2 praying to stay further proceedings in ceiling case 7 of 1973-74 so as to enable him to agitate the matter higher up against the impugned orders (Annexure 6) and stay was granted till the 17th of May, 1974. Certain certified copies of the orders were not available to petitioner No. 1 and he applied for extension of time. On the 17th of May, 1974 the prayer was rejected (vide Annexure 8) and respondent No. 2 directed the draft of notification to be published in consequence whereof draft publication was made on 23-5-1974 (Annexure 9) and a copy of the same was served on petitioner No. 1 on 27-5-1974. On the 26th of June, 1974 petitioner No. 1 submitted an objection petition against the draft publication which was heard by respondent No. 2 on the 3rd of July, 1974 on which date the objections were rejected and final order was passed by respondent No. 2 directing final publication (Annexure 11). On these facts the petitioners challenge the legality and validity of the orders ag incorporated in Annexures 6, 8 and 11 aforementioned and the draft publication as contained in Annexure 9 and for issuance of an appropriate writ quashing the aforesaid orders and the draft publication.

C. W. J. C. 1564/75

3. There are seven petitioners in “this case. Petitioner No. 1 Harinandan Yadav is the husband of petitioner No. 7 Shri-mati Sharda Devi. Their son Santan Kumar alias Vijoy Kumar Yadav is petitioner No. 2 and petitioners 3 to 5 Shri-mati Shyam Kumari, Shrimati Krishna Kumari and Shrimati Ratan Kumari are the married daughters of petitioner No. 1, Petitioner No. 6 Roshan Kumar is the daughter of petitioner No. 4, i. e., the daughter’s daughter of petitioner No. 1. In 1961′ petitioner No. 1 filed partition suit 29 of 1961 in the Court of the Subordinate Judge, Madhipura, against this co-sharers. On 9-7-1973 a compromise decree was passed. Out of the share allotted to petitioner No. 1, he made a gift of a portion to petitioner No. 6 by registered deed. He also gifted 10 acres of land to a high school at Hardi. About 8 acres of land were further gifted by petitioner No. 1 to his two daughters by registered deeds. These transfers, it is alleged, were made in consonance with the provisions of Section 5 of the parent Act. It is furtrer alleged that petitioner No, 7 got 29 acres of land as stridhan from her father-in-law. It was looked after by, and was under the management of, petitioner No. 1 but petitioner No. 7 is said to have always enjoyed the usufructs thereof. All the co-sharers recognised, her stridhan property by specifically mentioning it in Schedule 3 of the compromise decree of the partition suit aforementioned. A notice under Section 8 of the parent Act was issued to petitioner No. 1 to submit a return by the Deputy Collector Incharge Land Reforms, Supaul, respondent No. 3. A return was duly submitted by petitioner No. 1 claiming that he held no land in excess of the ceiling area. Respondent No. 3 continued the proceeding in ceiling case 679 of T973-74 and on the report of the Anchal Adhikari. Tribeniganj, respondent No. 4, he, by his order dated 14-5-1975 (Annexure 1), held that petitioner No. 1 held land to the extent of 26.25 acres belonging to Classes II, III and IV. It was further held that petitioner No. 1 was entitled to only one unit. By conversion of the different classes of lands in accordance with the provisions of Section 4 of the parent Act as amended by the amending Act, Petitioner No. 1 was held entitled to 19.27 acres only and he was further held as having been in possession of 106.78 acres in excess of the ceiling area. Petitioner NO 1 was directed to surrender the excess land. The aforesaid order has been marked Annexure 1 as stated above. On 16-6-1975 order of final publication under Section 11 of the parent Act, which had undergone no change despite the amending Act, was passed a copy whereof has been marked Annexure 2. The grievance of the petitioners is that petitioners 2 to 5 are entitled to hold different units of ceiling areas separately on his or her own right and, therefore, allotment of only one unit was bad and that the classification of land made in Annexure 1 was arbitrary. It has further been alleged that petitioners 3 to 7 were not served with any notice at any stage although separate Jamabandi were running in the names of petitioners 3, 5, 6 and 7. A prayer has accordingly been made for issuance of an appropriate writ quashing Annexures 1 and 2 aforesaid and directing the respondents to forbear from enforcing the provisions of the amending Act as also Bihar Act IX of 1973.

4. On these facts the following points were raised by the learned Counsel for the petitioners of the two cases:

1. Both the parent Act and the amending Act are ultra vires as they contain provisions which are in contravention of the fundamental provisions of the general or customary Hindu Law particularly relating to Stridhan and maintenance and the minor sons right of unobstructed heritage on the basis of sapindaship or offering oblations.

2. The concept of family as known to the Mitakshara School of Hindu Law has been destroyed by the artificial definition introduced by the amending Act resulting in discrimination. The provisions of the parent Act as amended by the amending Act must, therefore, be so construed as to harmonise the artificial definition of ‘family’ in Section 2 (ee) with the well-settled notions of joint family in the Mitakshara School of Hindu Law, otherwise the Acts will be rendered unconstitutional being discriminatory in nature.

3 (a) Whatever may have been the position with regard to the rights and privileges of a daughter under the General Hindu Law earlier, after the coming into force of the Constitution of India even under the general Hindu Law a daughter is as much a member of the joint Hindu family as a son entitled to the same rights and privileges in the joint family property. For, if that be not so then it will be contrary to the provisions of Article 15 of the Constitution. Therefore, the definition of ‘family’ in Section 2 (ee) must be so construed as to embrance a major daughter who ought to be held entitled to claim a separate unit for herself like any major son.

(b) In any event, if the provisions of the parent Act as amended by the amending Act be held to exclude the major daughter as claiming a separate unit for herself then the Act itself will be in contravention of Article 15 of the Constitution liable to be struck down.

Apart from the aforesaid points common to both the writ applications, three points have been further raised in relation to C. W. J. C. 1040/74, namely,

4. The relevant date on which a person hag to be found a minor or a major for the purposes of the parent Act as amended is the date of the determination of the question with reference to the probable date of the notification under Section 15 (1) of the parent Act and not the 9th of September, 1970 when the amending Act came into force,

5. Section 13 of the amending Act precludes the reopening of a case initiated under the parent Act and concluded under the provisions thereof.

6. In any event, on the facts and in the circumstances as mentioned above initiation of any fresh proceeding was barred by the principles of res judicata.

5. I first propose to deal with points 1 to 3 which are common to both the cases before directing my attention to the last three points in relation to C, W. J. C, 1040/74.

6. To appreciate the contentions raised by Mr. Kailash Roy, learned Counsel for the petitioners, with regard to the first three points, some features of the parent Act as also the amending Act have to be noticed. Before the amending Act was brought in, Section 5 (1) (i) read as follows:–

  "It shall  not be lawful for  any person to   hold,    except   as   otherwise   provided under this  Act,  land   in   excess   of   the ceiling area".  
 

 Section 5   (3)  (i) laid down--

“Where the number of persons, not being land-holder, entitled under their personal law to be maintained by land-holder and dependent upon him, exceeds four, such land-holder may hold in addition to the area specified in Sub-sections (1) and (2), land not exceeding one-fifth of the ceiling area for every such number exceeding four:

Provided that in no case shall the aggregate of the land held by him exceed two times the ceiling area.”

and Section 2 (g) defined land-holder thus–

” ‘land-holder’ means a person who holds land as a raiyat or as under-raiyat and includes a mortgagee of land with possession;

Explanation (i). A member of an undivided Hindu family having or being entitled to a share in land shall be deemed to be a land-holder for the purposes of this Act as if there had been partition in the family immediately before the commencement of this Act,

(ii) In this clause, the word ‘person’ includes any company, institution, trust, association or body of individuals whether incorporated or not.”

After the amending Act was brought on the Statute Book, the following relevant amendments were made. Section 5 (1) (i) reads as follows:–

“It shall not be lawful for any family to hold, except as otherwise provided under this Act, land in excess of the ceiling area.

Explanation– All lands owned or held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be owned or held by the family.”

and Section 5 (3) (i) now reads as follows:–

“Where the number of members in a family exceeds five, the family may hold in addition to the area specified in Sub-sections (1) and (2) land not exceeding one-tenth of the ceiling area for that class of land for every such additional member:

Provided that in no case shall the aggregate of the land held by the family exceed one and a half times the ceiling area.”

As a necessary corollary to the change brought about in Sub-section (1) fi) of Section 5 ‘family’ had to be defined and it was accordingly so done by inserting in the present Act Section 2 (ee) which reads as follows :–

” ‘family’ means and includes a person, his or her spouse and minor children.

Explanation– In this clause the word ‘person’ includes any company, institution, trust, association, or body of individuals whether incorporated or not.”

Clause (eee) was further inserted in Section 2 which defines ‘minor child’ in these terms–

” ‘minor child’ means a person (male or female) who has not completed eighteen years of age.”

The definition of ‘land-holder’ in Section 2 (g) also under-went a change. Section 2 (g) of the parent Act has been substituted in these terms by the amending Act–

” ‘Land-Holder’ means a family, as defined in Clause (ee) holding land as raiyat or as under-raiyat and includes a mortgagee of land in possession”.

7. It will be seen from, the aforesaid provisions that before the amending Act a land-holder was any person holding land as a raiyat or as an under-raiyat including a mortgagee of land with possession and every member of an undivided Hindu family entitled to a share in land was deemed to be a land-holder on a fictional partition in such family immediately before the commencement of the parent Act and the unit for purposes of ceiling was any person falling within the definition of land-holder in Section 2 (g). The effect of the amending Act is that the unit for the purpose of ceiling has to be determined with reference to a family as defined in Section 2 (ee) read with Section 2 (eee) which was holding land as raiyat or under-raiyat including a mortgagee in possession. Explanation (i) to Section 2 (g) in the parent Act, which brought in a fictional partition amongst the members of an undivided Hindu family, was deleted and an explanation to Sub-section (1) (i) of Section 5 was added, the effect of which is that all lands, which are owned or held individually or jointly by the members of a family as defined, are to be deemed to be owned or held by the family itself. Consequentially, it follows that before the amendment each member of the joint Hindu family entitled to a share in land on partition was treated as a unit for the purpose of fixation of the ceiling area; a minor child in the joint Hindu family entitled to a share on partition, albeit fictional, was, therefore, also treated as a separate unit. With regard to persons who were not entitled to a share on partition in the undivided Hindu family but were entitled to be maintained by, and were dependent upon, any person so entitled to hold, provisions had been made in Section 5 (3) (i) to the effect that where such persons entitled to be maintained by, and dependent upon, a land-holder exceeded four, for every member exceeding four a land-holder would hold in addition to the ceiling area land not exceeding one-fifth of the ceiling area subject to a maximum of two times the ceiling area. After the amendment, no minor child in a joint Hindu family, any of whose parent is alive, is entitled to be treated as unit for the purpose of fixation of the ceiling area, even though it would have been entitled to a share in the joint family property on a partition. And, the family is
merely permitted, in case the number of members thereof exceeds five, to hold additional one-tenth of the ceiling area for every such additional member subject to a maximum of one and a half times the ceiling area irrespective of the number of such additional members. These are the basic features upon which submissions were made with regard to points 1 to 3.

8. From the foregoing analysis of the relevant statutory provisions, it, is quite clear that the Act as amended has laid down an artificial definition of ‘family’. There can also be no doubt with regard to the well-settled principle that if the various statutory provisions are capable of more than one interpretation, one eading to an absurdity or unconstitutionally of an Act and the other capable of harmonio, us construction in a manner consistent with the general, customary or personal law, which does not attract any contravention of any constitutional provision then the harmonious rule of construction is to be followed. It is equally well settled that where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences for in that case the words of the Statute speak the intention of the Legislature. What the Legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact either in express words or by reasonable or necessary implication. The language of the Acts of Legislature — more especially modern Acts — must neither be extended beyond its natural and proper limits in order to supply omissions or defects nor strained to meet the justice of an individual case (c.f. Craies on Statute Law, 5th Edition, page 68). In the instant cases, the statutory provisions aforementioned are capable of no ambiguity, and Section 3 of the parent Act clearly lays down that–

“The provisions of this Act shall have the effect, notwithstanding anything contrary contained in any other law, custom, usage or agreement, for the time being in force or in any decree or order of any court: Provided that nothing contained in this Act shall be deemed to have any effect on the provisions of the Bihar Bhoodan Yagna Act, 1954 (Bihar Act XXII of 1954).”

As a matter of fact, the points with regard to the parent Act being unconstitutional on the very grounds as traversed in these cases at the Bar were raised in the case of Mahabir Prasad v. The State of Bihar, 1975 BBCJ 701 = (AIR 1976 Pat 256) and a Bench of this Court expressly overruled these objections. In that case, it was expressly held that the parent Act was consistent with the directive principles of State policy and even the amending Act was not inconsistent with that part of the Constitution. The provisions of the amending Act must be considered along with the parent Act and cannot be treated in isolation. It was further held that neither the parent Act nor the amending Act was ultra vires. As a matter of fact, learned Counsel for the petitioners with all his ingenuity wanted us to refer these cases to a larger Bench for a reconsideration of the Bench decision in Mahabir Prasad’s case. I, however, do not feel persuaded to take a view different from that taken in that case. There can be no doubt that the Acts in question are directed towards a policy of the State with a view to securing the ownership and control of the material resources of the community for the purpose of their distribution to best subserve the common good and to ensure that the operation of economic system does not result in concentration of wealth and means of production to the common detriment, as envisaged by Clauses (b) and (c) of Article 39 of the Constitution. The Acts are legislative measures towards agrarian reform. As a matter of fact, the Supreme Court in the case of Inder Singh v. State of Punjab, (AIR 1967 SC 1776), while dealing with Section 32-KK as inserted by Punjab Act XVI of 1962 in the Pepsu Tenancy and Agricultural Lands Act. 1955, which are in pari materia with the present Act, held that the fixing of ceiling on lands and provisions relating to it would form part of and constitute agrarian reform and, therefore, such provisions would have the protection of Article 31-A.

In this connection I am tempted to borrow the language of Mahajan, J.. (as he then was), dealing with the Bihar Land Reforms Act (Act 30 of 1950) and other State Acts in the case of State of Bihar v. Sri Kameshwar Singh, (AIR 1952 SC 252) at p. 274–

“Now it is obvious that concentration of big blocks of land in the hands of a few individuals is contrary to the principles on which the Constitution of India is based. The purpose of the acquisition contemplated by the impugned Act therefore is to do away with the concentration of big blocks of land and means of production in the hands of a few individuals and to so distribute the ownership and control of the material resources which come in the hands of the State as to subserve the common good as best as possible. In other words, shortly put, the purpose behind the Act is to bring about a reform in the land distribution system of Bihar for the general benefit of the community as advised. The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence and it is not possible for this Court to say that there was no public purpose behind the acquisition contemplated by the impugned statute. The purpose of the statute certainly is in accordance with the letter and spirit of the Constitution of India.”

That being so, it cannot be said that it was not within the legislative competence of the Legislature to have enacted both the parent and the amending Acts, and the mere fact that in some respects the statutory provisions may override the provisions, of the general or customary Hindu law will not make them suffer from any constitutional inhibitions regarding the equality and property clauses in Part III of the Constitution. I fully agree with the view expressed in Mahabir Prasad’s case that the parent Act as amended does conform to the directive principles of State policy only more so as they have been admittedly included in the 9th Schedule of the Constitution. I must, therefore, overrule the contentions raised with regard to the first two points.

8-A. That then brings us to the third point argued by Mr. Kailash Roy with some amount of vehemence. Learned Counsel contended in the first place that after the commencement of the Constitution the general or customary Hindu Law must be deemed to have equated the rights of a son and a daughter in a Hindu undivided family so as to avoid the infraction of Article 15 of the Constitution. Learned Counsel for the petitioners invited our attention to para. 259 at p. 318 of Mayne on Hindu Law and Usage, 11th Edn. I do not find anything in that paragraph which can, in any way, be said to support the contention of the learned Counsel. While it is true that under the Mitakshara School of Hindu Law every coparcener has an interest in the co-parcenary property from birth or even since when he has been begotten, it is not correct to say that a daughter is a member of the coparcenary having any right in praesenti even in respect of her father’s self-acquired property. Even the daughter is merely entitled to a share in her parent’s property on partition on his or her death. The essence of a coparcenary under the Mitakshara Law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. A coparcener’s interest is a fluctuating one capable of being enlarged by deaths and liable to be deminished by births of coparceners in the family. It is only on partition that a coparcener becomes entitled to a definite share. No female can be coparcener under a Mitakshara law. A coparcener’s acquisition of right by birth and devolution by survivorship in the coparcenary property are the invariable concomitants of a Mitakshara coparcenary. Even Section 6 of the Hindu Succession Act, 1956 recognises this with an exception in, the shape of proviso thereto read with the explanation. The section reads thus–

“When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such a female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be under this Act and not by survivorship.

Explanation 1–For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not

Explanation 2–Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein”.

This section makes it clear that this Act does not interfere with the special rights of those who are members of a Mitakshara coparcenary except to the extent, that it ensures the female heirs and the daughter’s son specified in Class I of the Schedule a share in the interest of a co-parcenary in the event of his death by introducing the concept of a fictional partition immediately before his death and the carving out of his aliquot share in the coparcenary property as on that date. It cannot, however, be said that a female fheir or a male claiming through her specified, in Class I of the Schedule has any acquisition of right in the coparcenary by birth. She has no right in praesenti and by virtue of the proviso to Section 6 aforesaid she can claim only on the peath of the coparcener whose heir she claims to be. Although a daughter can be member of a joint or Hindu undivided family, she cannot be given a status of a coparcener in a coparcenary even after ‘the commencement of the Constitution of India, and that by itself cannot be said to attract the constitutional inhibitions contained in Article 15. Article 15 (1) reads as follows:–

“The. State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

Clause (1) of this Article can apply only where the discrimination against a citizen is solely based on the ground of sex, religion, race, etc. If there can be found any rationale behind any general or customary law making such a discrimination between a male and a female in favour of the male based not solely on the ground of sex, then such a law cannot come within the sweep of Article 15. There are various factors which sanction that, while a son may be a member of a coparcenary, a daughter may not. Some of such factors are the offering of oblations after the death of the father, the pious obligation attaching to a son to discharge his father’s debts, the changing of gotra of a daughter when, she is married from one of her father to that of her husband and well-nigh severing in many vital respects her connections with the father’s family and joining that of her husband So that a daughter on marriage ceases to he a member of her father’s family and becomes a member of her husband’s family: these, inter alia, do afford sufficient rationale to sanction the discrimination between a son and a daughter. It cannot, therefore, be said that with the enforcement of the Constitution the daughters acquired the status of a coparcener in a coparcenary ipso jure.

Learned counsel relied upon two decisions of the Supreme Court in this regard, namely, the case of Inder Singh, (AIR 1967 SC 1776) (supra) and Surjit Lal Chhabda v. The Commissioner of Income-tax, £1976) 3 SCC 142 = (AIR 1976 SC 109). In the case of Surjit Lal Chhabda (supra) which was one under the Income-tax Act it was held that a single male, his wife and unmarried daughter constituted a Hindu undivided family. In the case of Inder Singh, (AIR 1967 SC 1776) (supra) in para. 8 at p. 1779 it was observed as follows:–

“The section (Section 32-KK) does not effect any change in the rights of the descendants as members of a Hindu undivided family or the relationship of the family inter se except to the extent of depriving the descendants of their right to claim the ceiling area for each of them. The contention as to the validity of Section 32-KK, therefore, must fail.”

Relying upon the aforesaid observation, learned Counsel argued that a daughter being a member of a Hindu family, her interest in the joint family property should be held to be the same as that of a son. In the case of Surjit Lal Chhabda the Supreme Court was not dealing with a coparcenary merely joint or Hindu undivided family within the meaning of the Income-tax Act, and in the case of Inder Singh the observations extracted above must be read in the context of the argument which had been advanced in that case. It was contended in that case that under Hindu law every coparcener in a Hindu undivided family acquires right in the property of such coparcenary on birth and is entitled to a right of joint possession and enjoyment of its entire property and that Section 32-KK of the Punjab Act deprived such a coparcener of his rights of property in that it takes away rights of the descendants of the land owner to claim for themselves the permissible area. It is clear that the term Hindu undivided family, as used by the Supreme Court is in the sense of coparcenary. I must, therefore, overrule the contention of learned counsel for the petitioners that after the commencement of the Constitution, under the Mitakshara School of Hindu Law a daughter becomes a coparcener along with a son and that she has any interest in the coparcenary property by birth nor, for that matter, it is such a situation which brings that part of the customary law within the field forbidden by Article 15 (b).

9. As a necessary corollary, therefore, it follows that the very same reasons which, I have held, justify the discrimination between a son and a daughter in a coparcenary apply with force to any attack on the validity of the impugned Act as being violative of Article 15 (1). Without detaining myself any further on this part of case, I may merely state that I fully agree with the view of a Full Bench of the Punjab and Haryana High Court in the case of Sucha Singih Bajwa v. The State of Punjab, (AIR 1974 Punj & Har 162), where the Punjab Land Reforms Act (10 of 1973) an Act in pari materia with our Acts, was being considered and was held not to be violative of Article 15 of the Constitution. There is thus no merit in the third point also.

10. That then, leads us to the next question as to what would be the relevant date for the purpose of determining the minority or majority of a child. Section 2 (eee), as already quoted above, defines minor child as male or female who has not completed the age of 18 years. It was contended by learned counsel for the petitioners that this completion of 18 years of age should be determined with reference to the probable date of notification under Section 15 (1) of the parent Act. On the contrary, it was contended by learned Counsel for the respondents that the date of such majority should be held to be the 9th of September, 1970 when the amending Act came into force. As a matter of fact, this very Bench in the case of Ganga Das v. The State of Bihar, (1976 BBCJ 409) had held that at any rate the relevant date for determining the minority or majority cannot be earlier than the date on which the notice under Section 6 (3) of the Act as amended is published. It has been rightly argued in these cases by the learned Counsel for the petitioners that in the above mentioned decision the question as to whether a person can be said to have attained majority under the amended Act at any stage later than the publication of the notice tinder Section 6 (3) was not gone into. Nonetheless after giving the matter my anxious consideration and for the reasons to be given hereinafter, I am of the view that the date with reference to which a person can be said to he either a minor or a major must be the date on which the notice under Section 6 (3) of the amending Act is published. Section 6 after amendment reads as follows:–

“(1) As soon as may be after the commencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1’972, the State Government shall cause to be published a notice in the manner laid down in Sub-section (3) calling upon all the land holders of the state who hold land in excess of the ceiling area, anywhere in state to submit to the collector of the district Where they ordinarily reside, within thirty days of the date specified in the notice, & return containing the following particulars, namely–

(i) the total area and description of land held by the land holder anywhere in the state;

(ii) if the land holder is a raiyat, the names and description of his under-raiyats and the description of land held by them under him anywhere in the State;

(iii) the petitioners of legal proceedings, if any in respect of the land held by the land holder pending on the date of submission of the return;

(iv) encumbrances on the land, if any with their full particulars; and

(v) any other particulars that may be prescribed provided that the collector may, on an application made by the land holder extend the period specified in such notice for submission of the return by a period not exceeding thirty days.

(2) If the land holder is minor or a person of unsound mind the return required under Sub-section (I) shall be submitted by his guardian.

(3) The substance of the notice shall be published in the official Gazette in not less than three issues of at least two newspapers having circulation in the State of Bihar.

(4) Where the land holder or the guardian mentioned in Sub-section (2) as the case may be fails to submit the return required under Sub-section (1) without sufficient cause, the collector may, after giving him a reasonable opportunity of being heard and adducing evidence, impose a fine which may extend to five hundred rupees.”

It will be seen from the provisions quoted above that it is mandatory to issue a notice in the manner laid down in Sub-section (3) to all the land holders of the State holding land in excess of ceiling area to submit a return containing the particulars mentioned in Section 6 (1). So long as a notice is not issued and published in accordance with the provisions of Section 6, it is not necessary for any land holder, even if he ‘holds land in excess of ceiling area, to submit a return. Therefore, by no stretch of imagination, it can be said that Irrespective of the issuance and publication of notice under Section 6 the date relevant for the purpose of determining the majority would be the date of the commencement of the amending Act, namely, 9-9-1970. If a land-holder has to submit any return after the issuance and publication of notice under Section 6 then, to say the least, he is not expected that existed (sic) on a date prior to the publication of such notice. Section speaks of a fact whereas the commencement of the amending Act is a sweep persons (sic) who were minor before the publication of notice under Section 6. It however, remains to be seen as to whether there is any substance in the contention of the learned Counsel for the petitioners that such date should be the probable date of notification under Section 15 (1). Learned Counsel for the petitioners invited our attention to Sub-sections (1), (2), (3) of Section 15 of the parent Act as it stood before the amending Act came into force. It reads thus–

“(1) Subject to the provisions of Sub-section (5) the State Government shall, after the final publication of the statement under Sub-section (1) of Section 11, acquire the surplus land by publishing in the official Gazette a notification to the effect that such land is required for a public purpose and such publication shall be conclusive evidence of the notice of the acquisition to the person or persons concerned.

(2) On publication of the notification under Sub-section (1), the land specified in the notification shall, subject to the provisions of this Act, be deemed to have been acquired for the purposes of this Act and vested in the state free from all encumbrances with effect from the date of commencement of this Act and all right, title and interest of all persons claiming interest therein shall, with effect from that date, be deemed to have been extinguished.

(3) On the publication of the notification under Sub-section (1) any person claiming interest in the land specified in the notification, may within sixty days of such publication, file a claim before the Collector.”

After the amendment Sub-section (1) remained as it was in the parent Act whereas Sub-sections (2) and (3) were substituted by the following:–

“(2) On the publication of the notification under Sub-section (1), the land specified in the notification shall, subject to the provisions of this Act, be deemed to have been acquired for the purpose of this Act and vested in the state free from all encumbrances with effect from the date of the notification and all right, title and interest of all persons claiming interest therein shall with effect from that date, be deemed to have been extinguished.

(3) On the publication of the notification under Sub-section (1) any person claiming interest in the land specified in the notification may, within thirty days of such publication, file a claim before the Collector.”

It was argued, therefore, that whereas under the parent Act on the publication of notification under Sub-section (1) the surplus land vested in the state free from all encumbrances with effect from the date of the commencement of the parent Act, under the amending Act the vesting takes place with effect from the date of the notification and not with reference to the date of commencement of the amending Act. It was accordingly urged that so long as the vesting of the surplus land into state does not take place, the interest of a land holder is not wiped out. As a necessary corollary, if a minor has attained majority by the date of publication of the notification under Section 15 (1), he can still lay a claim for a separate unit for himself. This argument is fallacious. The relevant date must be the date on which a notice is published in the gazette under Section 6, on the publication of which he is to file a return containing the necessary particulars. If such a return is filed, it must contain the same age of different members constituting a family as also of such person who, though not included in the ‘family’, is entitled by virtue of this own right to be treated as a separate unit and thereby become a family by himself. Once a return is submitted consequent upon the publication of notice under Section 6 and a person is shown as a minor being included in the term ‘family’ as defined then it will be absurd to suggest that at any subsequent stage the very same person on attaining majority may be permitted to claim a unit for himself. If the argument of learned counsel for the petitioners be accepted, a return will have to be filed in pursuance of Section 6 notice in a particular manner showing a person as a minor and yet it will be open to claim a unit for that minor in a return to be submitted in pursuance of a notice under Section 8 (1) as amended which made it incumbent for land holder who held land in excess of the ceiling area,
who has not submitted a return “within the period specified or extended under Section 6 to submit a return within 30 days of the service of the notice under Section 8 (1). It is not expected that a person if called upon to furnish a return toy virtue of the public notice under Section 6, will furnish a return which would not tally with the return to be filed in pursuance of a notice under Section 8 (1). The only reasonable approach to the question at hand is the earliest point of time at which a land holder is called upon to submit a return in which he has to specify the number of members in” the family as defined. Once a person has been shown as a minor in such a return as is now to be done, it will not be open to the very same person, while proceedings under the parent Act as amended are going on, to claim a unit for himself on the ground that he has attained majority since the date of filing the return in pursuance of the notice under Section 6. Any other view will be inconsistent with the well settled principle of harmonious construction of different statutory provisions. The age for the purpose, of determining minority or majority cannot in one case be with reference to publication of the notice under Section 6, yet another in the case of a return to be filed under Section 8, yet a third one when the proceeding has come to a point of tune for exercise of option to select land under Section 9 and yet another at the stage of filing of objection about draft statement under Section 10 (3) of the Act and so on till the date of publication of the notice under Section 15 (1). Such a construction will lead to absurdity. I, therefore, hold that the date on which a person is to be treated as a major or a minor is the date of publication of notice under Section 6 of the parent Act as amended and no other date. It may be true that the surplus land vests in the state on and from the date of ‘publication of notice under Section 15 (1), but that does not mean that the units to be held by ‘persons belonging to a family will fluctuate at every stage from the date of publication of notice under Section 6 upto the date of publication of notice under Section 15. There is thus no manner of doubt that the date on which notice under Section 6 is published is the crucial date for deter-mining whether a person is a minor or a major the subsequent attainment of majority by any person will not entitle him to claim a separate unit for himself subsequently.

11. It was next contended that in view of Section 13 (3) of the amending Act
once a proceeding had been initiated and either dropped or otherwise finally decided under the parent Act before the commencement of the amending Act, the matter could not be reopened after the commencement of the amending Act, Section 13 (3) of the amending Act reads thus–

“Nothing in this Act or the amendments effected thereby shall affect or be deemed to affect anything done or any action taken under the provisions of the said Act;

Provided that in case where the land holder has already submitted a return in accordance with the notice issued under Section 6 or Section 8 of the said Act and has exercised the option under Section 9 of the said Act, he shall be given an opportunity to further exercise the option under the said section in view of the provision of this Act within 15 days from the date of service of notice issued by the Collector for this purpose or within such extended period as may be allowed by the Collector.”

It is not possible to uphold the validity of this contention. From a perusal of the relevant statutory provisions, it appears that the Legislature contemplated two classes of cases. One was where a proceeding had been started and concluded under the parent Act and before the commencement of the amending Act, In such a case Section 6 (1) of the parent Act as amended, which has already been quoted above, prescribes that as soon as may be after the commencement of the amending Act a notice has to be published in the manner laid down in Sub-section (3) of Section 6 calling upon all the land-holders of the State who hold land in excess of the ceiling area to submit return. That in its turn, clearly implies that even if a land holder had already been held to be within the limit of the ceiling area as fixed by the amending Act before the commencement of the amending Act then on the publication of a notice under Section 6 as amended, if a land holder holds land in excess of the ceiling area as fixed by the amending Act, he has still to file a return. This class of cases cannot be held to be protected by Sub-section (3) of Section 13 of the amending Act. The other class of cases contemplated by the Legislature is that there the proceeding initiated under the parent Act before the amending Act is continued even after the commencement of the amending Act. In such cases, the proviso to Section 13 (3) has been made
applicable in so far as if a land holder under the parent Act has exercised option under Section 9 thereof then he shall be given a further opportunity to exercise the option in view of the provisions of the amending Act. In support of his contention, learned counsel for the petitioners placed reliance on the decisions of the Supreme Court in the case of Shah Bhoj-raj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra Yograj Sinha, (AIR 1961 SC 1596), Ram Prasad v. State of Punjab, (AIR 1966 SC 1607) and Gurdit Singh V. State of Punjab, (AIR 1974 SC 1791). But the decisions in those cases, in my view, are of no avail to the petitioners in view of the express statutory provisions in the amending Act as pointed out above. There was no provision in the Statutes which were being considered in the three cases relied upon by the learned Counsel for the petitioners akin to Section 6 (1) of the Act as amended which could be invoked in those cases. This point was also raised before a Bench of this Court in the case of Mussomat Radha Devi v. The State of Bihar, (C. W. J. C. 11 of 1975 decided on 4th of August, 1976) (Pat) and I am reinforced in my conclusion by that decision wherein it has been held after noticing the provisions of Section 13 (3) of the amending Act.

“In our opinion, it is not possible to accept the contention, that on account of a decision under the Act before the present amendment, a fresh proceeding cannot be started under the provisions of the present law. The effect of the provisions relied upon by the learned counsel is not to take away the jurisdiction of the authorities to start a proceeding in accordance with the amended provision of law.”

12. The only other point that remains to be seen is whether there is any force in the contention of Mr. Roy that if a proceeding was initiated under the parent Act and continued after the commencement of the amending Act and an order finally passed in favour of the land holder then the initiation of a fresh proceeding under the provisions of the Act as amended would be barred by the principles of res judicata. I think there is sufficient force in this contention. As I have pointed out earlier, it cannot be said that the legislature, while passing the amending Act was not aware of a contingency wherein although a proceeding had been started under the parent Act, it was still being continued after the commencement of the amending Act The proviso to Section 13(3) of the amending Act extracted above as also the provision of Section 16 (1) of the Act as amended is clearly a pointer to the intent of the legislature if the proceeding had been started under the parent Act and concluded before the commencement of the amending Act, the matter could be reopened. Under the provisions of the Act as amended if, however, it was not concluded before the 9th of September, 1970 when the amending Act came into force but was continued thereafter and decided on merits in favour of the land holder holding that he did not hold any land in excess of the ceiling area then it must also be deemed that the decision of the competent authority on merits was under the Act as amended.

Section 1 (2) of the amending Act says that–

“It shall be deemed to have come into force with effect from the 9th September, 1970.”

It introduces a clear provision with regard to the date from which the amending Act would be operative. And, as was observed by Lord Asquith in the case of East End Dwellings Co. Ltd. v. Finsbury Borougih Council, (1951-2 All ER 587 (HL) = 1952 AC 109) at p. 599:

“If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it… … The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit one’s imagination to boggle when it comes to the inevitable corollaries of that state of affairs.”

This observation has been referred with approval in quite a number of cases by the Supreme Court, to wit State of Bombay v. Pandurang Vinayak, 1953 SCR 773 = (AIR 1953 SC 244); Commr. of Income-tax v. Teja Singh, (AIR 1959 SC 352) and Additional Income-tax Officer v. F. Alfred, (AIR 1962 SC 663 at p. 666). T have already stated at the outset while stating the facts of C. W. J. C. 1040 of 1974, Annexure 2 thereto contains the final order passed by the Collector on the 29th of April 1971 on merits holding that the land holder held land within the permissible limit under the existing provisions of the parent Act. Since the amending Act will be deemed to be in force on that date, the decision, also must be deemed to be
under the provisions of that Act In that view of the matter, the principles of res judicata will certainly bar the initiation of any fresh proceeding. C. W. J. C. 1040 of 1974 has, therefore, to be allowed, on this ground alone.

13. In so far as C. W. J. C. 1564 of 1975 is concerned, a point has been taken in the petition as was also canvassed at the Bar that petitioner No. 2 of that case being a major, he was entitled to hold a separate unit of his own in his own right. No materials, however, are forthcoming nor was anything pointed out to us in course of the hearing to show as to on what particular date petitioner No. 2 attained majority or even as to whether he had attained majority on the date when general notice under Section 6 of the Act as amended was published. It is not possible, therefore, to grant any relief to the petitioners of that case on this score.

14. In view of what has been held above, C. W. J. C. 1040 of 1974 is allowed and the orders as incorporated in Annexures 6, 8 and 11 and the draft publication as contained in Annexure 9 of that petition are hereby quashed. There is no merit in C. W. J. C. 1564 of 1975 and accordingly it is dismissed. In the circumstances of the cases, however, there shall be no order as to costs.

Shambhu Prasad Singh, J.

15. I agree that C. W. J. C. No. 1040 of 1974 be allowed and C. W. J. C. No. 1564 of 1975 be dismissed both without costs. I would like to make certain observations of my own on some questions raised in this case. On other matters, I am entirely in agreement with the reasonings of my learned brother S. K. Jha, J.

16. It is true that the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act as originally enacted or as it stands now after various amendments taken as a whole is consistent with the directive principles of State policy as held by a Bench of this Court in the case of Mahabir Prasad v. State of Bihar, 1975 BBCJ 701 = (AIR 1976 Pat 256) inasmuch as the purpose behind it was to take away lands from affluent persons for distributing them amongst the poorer sections of the society who were either landless or possessed of little land. However, the artificial definition of the ‘family’ as introduced by the amending Act, that is, the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1972, according to me, to some extent helps those who can be
said to be better placed and affect adversely those who are weaker than the former. There can be no doubt that while a major brother, according to the said definition, becomes entitled to be treated as a separate unit, the minor brother is not allowed to be so treated. As between a major and a minor obviously the major one is better placed and minor is weaker than the former, Further in view of the artificial definition of the ‘family’, even minors, who are similarly placed, in certain cases may have to be treated differently; for illustration, if there were two brothers ‘A’ and ‘B’ each having three minor sons and one of them, say ‘A’ as well as his wife are dead, while the three minor sons of his will be treated as a separate unit under the Act for the purpose of determining surplus land, the three minor sons of ‘B’ will not be so treated and they shall have to remain content with their share in one unit of land which is left for their father and them together. Perhaps, the framers of the Act were not conscious at the time of introducing the amendment that the artificial definition of ‘family’ will lead to such unreasonable and inequitable consequences. For these reasons, if the amending Act would not have been included in the 9th schedule of the Constitution and on that ground declared protected under Article 31-B of the Constitution. I might have considered seriously the argument of Sri Kailash Roy that the aforesaid decision in Mahavir Prasad’s case requires reconsideration and the matter should be referred to a larger Bench, However, as the amending Act also is included in the 9th Schedule of the Constitution it is not possible for this Court to go into the question of vires thereof on the ground of infringement of some of the fundamental rights specially during the period of emergency and the Bench decision in Mahabir Prasad’s case appears to have been correctly decided that the vires of the amending Act cannot be challenged as it is included in the 9bh Schedule of the Constitution.

17. Coming now to the argument of Sri Kailash Roy that in view of Section 13 (3) of the Amending Act, once a proceeding had been initiated and either dropped or otherwise finally decided under the present Act before the commencement of amending Act, the matter could not be reopened after the commencement of the amending Act. In my opinion, the words “anything done or any action taken under the provisions of the said Act
(“said Act” means the original Act) do not cover an order passed under the parent Act on the question where a landholder possesses surplus land or not; the aforesaid words mean some such acts of the authorities as issuing a notice or a notification, etc. While dealing with that arguments, my learned brother S.K. Jha J. has also referred to the provisions of Section 6 (1) of the parent Act as it stands after amendment prescribing that as soon as may be after the commencement of the amending Act a notice has to be published in the manner laid down in Sub-section (3) of that section calling upon all the landlords of the State who hold land in excess of the ceiling area to submit return. If the argument advanced by Sri Roy has to be accepted then Section 6 as stands after amendment will almost stand nugatory. A limited meaning shall have to be given to Section 13 (3) of the amending Act so that the amendment introduced in Section 6 (1) by that Act is not rendered useless. Therefore, Section 13 (3) of the amending Act cannot be given a meaning that once a proceeding had been initiated and either dropped or otherwise finally decided under the parent Act, before the commencement of the Amending Act, the matter could not be reopened after the commencement of the Amending Act.

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