PETITIONER:
STATE OF BIHAR
Vs.
RESPONDENT:
SHRI K.M. ZUBERI & ORS.
DATE OF JUDGMENT: 09/02/1996
BENCH:
G.B. PATTANAIK (J)
RAMASWAMY, K.
AHMAD SAGHIR S. (J)
CITATION:
1996 AIR 1496 JT 1996 (2) 368
1996 SCALE (2)182
ACT
HEADNOTE
JUDGMENT
JUDGMENT PATTANAIK,J.
This appeal by the State of Bihar raises the question whether major sons of a family governed by Mohammedan law are entitled to a separate unit while determining the ceiling area of a ceiling surplus holder? In the ceiling fixation case of a land holder Aftab Ahmed, the Member, Board of Revenue came to the conclusion that an adult son of a land holder governed by Mohammedan law would be entitled to a separate unit since an adult son of a land holder governed by the Mitakshara School of Hindu Law is entitled to the same. The State of Bihar challenged the said decision in Patna High Court by filing a Writ Petition and when the matter came up before a Division Bench, in view of the significance of the matter the Division Bench referred the matter to a larger Bench and the case was heard by five judges of the Court. The majority view was expressed by Chief Justice Sandhawalia, as he then was, and the minority views were those of Justice H.L.Agrawal, as he then was, and Justice L.M. Sharma, as he then was. Three questions were formulated by the Court, those questions being:
"1. Whether the personal law
applicable to the family has to be
taken into consideration for the
determination of its holding under
the Bihar Land Reforms (Fixation of
ceiling Area and Acquisition of
Surplus Land) Act, 1961. despite
the insertion of clause (ee) and
Explanation II thereto in section 2
of the said Act?
2. If the major sons of a family
governed by the Mitakshara School
of Hindu Law are entitled to a
separate unit under the said Act
then would a major son of a family
governed by Mohammadan Law be
debarred therefrom?
3. Whether the Fuli Bench in Amamul
Hasan Choudhary vs, State of Bihar
& Others (1982 BBCJ 208) lays down
the law correctly on the aforesaid
points?
The short facts are that the land holder Aftab Ahmed was shown to be holding 50.02 acres in the draft statement. The said land-holder filed an objection claiming that he is entitled to one additional unit for his adult son. This was rejected by the Additional Sub-divisional Officer. He determined 11.12 acres to be the surplus. The land holder appealed to the Collector but the appeal was dismissed for default. The land holder carried the matter in revision to the Board of Revenue. The Member, Board of Revenue took into consideration the Amendments to the Bihar Land Reforms (Fixation of Ceiling area and Acquisition of Surplus land) Act, 1961 (Bihar Act 22 of 1962) (hereinafter referred to as ’The Act’) made under Act 1 of 73 and Act 72 of 76 and came to the conclusion that personal law of the land holder is not required to be taken into consideration for determination of the holdings. He further held that since the adult son of a land holder governed by the Mitakshara Law is entitled to a separate unit the decision should be identical with regard to the land holder governed by Mohammedan law. Accordingly he allowed the revision and called upon the authorities to re-determine the ceiling. The State of Bihar being aggrieved by the same filed Writ Petition in the Patna High Court. The learned Chief Justice who spoke for the majority on an analysis of the different provisions of the Act as well as the tracing history of the legislation and the amendments made thereto came to the conclusion that in the ceiling law the statutory "family" as defined in the Act has wholly submerged the ceiling of the land holder and such concept of ’family" is entirely secular in character and has universal application irrespective of religion, faith or the personal law applicable to individual members. He further held that despite definition of the statutory "family" and its secular nature excluding personal laws, to still bring in the concept of the Mohammedan family or Christian family or Mitakshara family for the purposes of the act, is basically fallacious and would run against the gamut of ceiling legislation. The learned Chief Justice accordingly answered the question no.1 in the following words:
"It is held that the personal law
applicable to the family is not to
be taken into confederation for the
determination of its holding under
the Bihar land reforms (Fixation of
ceiling Area and Acquisition of
Surplus Land)Act 1961. "
So far as second question is concerned the learned Chief Justice answered as follows:-
"The answer to question no. 2 is
rendered in the negative and it
held that if the major sons of a
family governed by the Mitakshara
school of Hindu laws are entitled
to a separate unit under the Act
then the major sons of a family
governed by Mohammedan Law are
entitled to the same." As a necessary consequence the third question was answered in the negative and the decision of the Court in Imamul Hasan Choudhary vs. State of Bihar and otherwise overruled.
Aggarwal, J. did not agree with the answer given to the second question by the learned Chief Justice and then adverting to the provisions of the Mitakshara law and how a minor male child of a Mitakshara coparcenery acquires interest in the property by his birth and is entitled to a share and how the position of a Mohammedan son is entirely different came to the conclusion that the earlier decision of the Patna High Court in Imamul Hasan Choudhary’s case has laid down the law correctly and, therefore, the adult son of a Mohammedan land holder would not be entitled to separate unit. Sharma J, also differed from the majority view expressed by the Chief justice and agreed with the conclusion of Agrawal, J. but on different ground. The learned Judge held that a land holder whether an individual or a family within the meaning of the Act belonging to any religion, faith or group cannot claim additional land for his ceiling area on the ground of a major son. In other words according to Sharma J, the Act no where conferred an additional unit on the major son of a land holder belonging to Mitakshara School of Law, and if he gets a separate unit it is on account of his own.
Mr. Pramod Swarup, learned counsel appearing for the appellant, contended that under the Act there is no provision which confers additional unit in case of a land holder governed by Mitakshara School of Hindu Law on the adult son and, therefore, the majority view expressed by Chief Justice is vitiated on account of such erroneous approach and the ultimate conclusion that the adult son of a Mohammedan land-holder would be entitled to additional unit is unsustainable in law. Mr. Raju Ramachandran, learned counsel appearing for the respondents, on the other hand, contended that if the adult son of a land holder governed by Mitakshara School of Hindu Law is entitled to an additional unit there is no justification in denying the same to the adult son of a land holder governed by the Mohammedan law and therefore, the majority view is wholly justified. It is to be noted that so far as the answer to the first question is concerned, there is no dispute between the parties and, in our view rightly since the statutory definition of "family" in Section 2 (ee) does not conceive of any personal law applicable to the said family and, therefore, no personal law can be taken into consideration for determination of the ceiling surplus with the land holder under the Act. In order to rest the correctness of the majority view, so far as the second question is concerned, it would be appropriate for us to examine the relevant provisions of the Act. Section 2 (aaa) defines "ceiling area" to mean the area of land fixed under Section 4 as the ceiling area. "Family" in Section 2 (ee) is defined thus:
"2(ee) ’Family’ means and includes
a person, his or her spouse and
minor childres;
Explanation I. In this clause
the word "person" includes any
company, institution, trust,
association. or body of individuals
whether incorporated or not.
Explanation II The personal
law shall not be relevant or be
taken into consideration in
determining the composition of the
family for the purposes of the Act"
"Land holder" has been defined
in Section 2(g) thus:-
"2(g) ’land holder’ means a
family as defined in clause (ee)
holding land as raiyat or as under-
raiyat or a mortgagee of land in
possession or holding land
permanently settled by Government
or lessee of land not resumable by
Government".
"Raiyat" has been defined in
Section 2(k) thus:
"Raiyat" means primarily a
person who has acquired a right to
hold land for the purpose of
cultivating it by himself, or by
members of his family or by hired
servants or with aid of partners,
and includes also the successors-in
interestor persons who have
acquired such a right and includes,
in the district of Santhal
Parganas, a village headman in
respect of his private land, if any
but does not include in the area to
which the Chotanagpur Tenancy Act,
1908 (Ben. Act VI of 1908) applies,
a Mundari Khunt-Katidar or a
bhuihar".
Section 3 of the Act gives the provisions of the Act an overriding effect over all other law in force. Section 4 fixes the ceiling area. The said Act is quoted below in extenso:
"4. Fixation of ceiling area
of land. On the appointed day, the
following shall be the ceiling area
land for one family consisting of
not more than five members for the
purposes of this Act.
(a) Fifteen acres, that is,
equivalent to 6.0705 hectares of
land irrigated or capable of being
irrigated by flow irrigation work
or tube-wells or lift irrigation
which are constructed, maintained,
improved or controlled by the
Central or the State Government or
by a body corporate constituted
under any law and which provide or
are capable of providing water for
more than one season (hereinafter
referred to as class I land)
Explanation.-- A land shall not be
regarded as Class I land unless it
is capable of growing at least two
crops in a year; or
(b) eighteen acres, equivalent
to 7.2846 hectares of land
irrigated by such private lift
irrigation or private tube-well as
are operated by electric or diesel
power, and provide or are capable
of providing water for more than
one season (hereinafter referred
to as class I land ;
Explanation.-- Private lift
irrigation or private tube-wells
means those which are not
constructed, maintained, improved
or controlled by the Central or the
State Government or by a body
corporate constituted under any
law; or
(c) twenty-five acres,
equivalent to 10.1175 hectares of
land, irrigated or capable of being
irrigated by works which provide or
are capable of providing water for
only one season (hereinafter
referred to as class III land);
(d) thirty acres, equivalent
to 12.141 hectares of land other
than those referred to in clauses
(a)(b)(c)(e) and (f) or land which
is an orchard or used for any other
horticultural purpose (hereinafter
referred to as class IV land); or
(e) thirty-seven and a half
acres, equivalent to 15.368
hectares of Diara land, or Chaur
(hereinafter referred to class V
land); or
(f) forty-five acres
equivalent to 18.211 hectares of
hilly, sandy, forest land, even
land perennially submerged under
water or other kind of land none of
which yields paddy, rabi or cash
crops (hereinafter referred to as
class VI land)"
Section 5 puts an embargo for any ’family’ to hold land in excess of the ceiling area except provided under the Act.
"5. No person to hold land in
excess of the ceiling area.--(l)(i)
It shall not be lawful for any
family to hold, except 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.
(ii) No land holder holding
land in excess of the ceiling area
shall from the commencement of the
Bihar Land Reforms (Fixation of
Ceiling Area and Acquisition of
Surplus Land) (Amendment) Act, 1972
and till the publication of
notification under Section 15,
transfer any land held by him
except with the previous permission
in writing of the Collector, who
may refuse to give such permission
if he is satisfied for the reasons
to be recorded in writing that the
transfer is proposed to be made
with a mala fide intention of
defeating the object of this Act:
Provided that the transfer of
any land made, with the previous
permission of the Collector, shall
be deemed to have been made from
within the ceiling area admissible
to the land-holder:
Provided also that the
transfer of any land beyond the
ceiling area admissible to the
land-holder shall be deemed to have
been made with the object of
defeating the provisions of the
Act.
(iii) Notwithstanding anything
to the contrary contained in any
judgment. decree or order of any
court or authority, the Collector
shall have power to make enquiries
in respect of any transfer of land
by a land-holder whether by a
registered instrument or otherwise
made after the 22nd day of October
1959 and if he is satisfied that
such transfer was made with the
object of defeating, or in
contravention of the provisions of
this Act or for retaining, benami
or farzi land in excess of the
ceiling area, the Collector may
after giving reasonable notice to
the parties concerned to appear and
be heard, annul such transfer and
thereupon the land shall be deemed
to be held by the transferor for
the purposes of determining the
ceiling area he may hold under this
section.
(iv) Land donated by a land-
holder under the Bihar Bhoodan
Yagna Act, 1954 (Bihar Act XXII of
1954), to the extent it
subsequently vests in the Bhoodan
Yagna Committee under the said Act
before the date of the final
publication of draft statement
under Section 11 of this Act, shall
not be taken into account in
determining the area he may retain
under this section."
Explanation to Section 5(1) connotes that the land owned or held individually by the members of the family or jointly shall be deemed to be held or owned by the ’family’.
Section 6 provides for issuance of the public notice calling upon the land-holders of the State who hold land in excess of the ceiling area to submit a return to the Collector of the District where they originally reside indicating the particulars as mentioned therein.
Section 7 authorizes the Collector to obtain necessary information if a ceiling surplus holder fails to submit return under Section 6 with regard to area held by such surplus holder.
Section 10 is the provision for preparation of a draft statement on the basis of information received from the land-holder.
Section 11 provides for publication of the draft statement after disposing all the claims or objections preferred by the land-holder.
Section 15 confers power on the State Government and the Collector of the District to acquire surplus land in the hands of the surplus holder. We are not concerned with the other provisions of the Act for adjudicating the point in issue.
An analysis of the aforesaid provisions unequivocally indicate that under the Act the ceiling area is required to be determined of a "family" as defined in Section 2(ee) and. therefore, the land-holder of whose ceiling is going to be determined may be either a person. his or her spouse, and minor children. A major child whether belonging to a Hindu family or a Mohammedan or Christian is not conceived of getting an additional unit while determining the ceiling area of a land holder. A major son of a Hindu can get an independent ceiling determined provided he is raiyat within the meaning of Section 2(k) and has become a land-holder within the ambit of Section 2 (g) but not as a successor to the land-holder whose ceiling is being determined on the ground that he has a right in the property by virtue of birth. In other words, under the Act no distinction has been maintained between Hindu, Mohammedan, Christian for determination of the ceiling area in the hands of the landholder. The majority view expressed by Chief Justice as well as by Justice Agrawal approached the problem on incorrect premise as if under the Act the adult son of a land-holder governed by Mitakshara School of Hindu Law has been given an additional unit. Minority view of Justice L.M. Sharma is wholly correct one. The ultimate conclusion, as expressed by the majority judgment, in answering question no. 2 is, therefore, unsustainable in law. In our considered opinion, under the Act while determining the ceiling area in the hands of a land-holder whether governed by Mitakshara law or governed by Mohammedan law no additional unit is given to an adult son of the land-holder and, therefore, the earlier view expressed by Patna High Court in Imamul Hassan Choudhrys ’case reported in 1982 (Vol.30) Bihar Law Journal Reports p.150 lays down law correctly.
This appeal is accordingly allowed. But, in the circumstances, there will no order as to Costs.