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PETITIONER: GOPAL SINGH

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT15/04/1988

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) VENKATACHALLIAH, M.N. (J)

CITATION:  1988 AIR 1194            1988 SCR  (3) 540  1988 SCC  (2) 532        JT 1988 (2)    90  1988 SCALE  (1)706

ACT:      Uttar Pradesh  Imposition of  Ceiling on  Land Holdings Act, 1960:  Section 3(7)  and 5(6)- Determination of Ceiling area-Computation of land holding-Landholder-Transfer of land by registered  gift deed  to invalid daughter-Whether extent of such  transferred land  to be reckoned in computing total extent of land holding.      Constitution of  India, 1950: Articles 14, 31A, 31B and Schedule IX-U. P. Imposition of Ceiling on Land Holdings Act 1960, Sections 3(7) and 5(6)- Constitutional validity of.

HEADNOTE:      In response  to a  notice issued under Section 10(2) of the Uttar  Pradesh Imposition  of Ceiling  on Land  Holdings Act, 1960,  the appellant  contended  that  he  was  not  in possession of  23.61 acres  of surplus  agricultural land as set out  in the  said notice,  and that  the authorities had failed to  notice that  he had  transferred by  means  of  a registered deed  of gift  dated January 7, 1972 an extent of 12.35 acres  of land  to his  invalid daughter  who remained unmarried inspite of being 30 years old because she was born a crippled child, and that the lands were part of Abadi and, therefore, stood  excluded from  the operation  of the  said Ceiling Act.      The Prescribed  Authority  as  well  as  the  Appellate Authority  did   not  find   favour   with   the   aforesaid contentions, and  held that  the  appellant  had  failed  to establish that  the  transfer  of  land  in  favour  of  his daughter was  made in  good faith,  and was not intended for the immediate or deferred benefit of the appellant and other members of his family, and furthermore the transfer appeared to be a device to defeat the provisions of the Act.      Being  aggrieved  with  the  order  of  the  Prescribed Authority, that  was affirmed by the Appellate Authority the appellant approached  the High Court by way of Writ Petition to quash the said orders. The High Court, however, dismissed the Writ Petition.      In the  appeal to this Court it was contended on behalf of the 541 appellant: ( 1 ) though the registered deed of gift had been

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executed after  the prescribed  date viz.  January 21, 1971, the  transfer   was  in   pursuance  of  an  earlier  family arrangement to  provide maintenance for the invalid daughter and, therefore,  the transfer  falls outside  the purview of Section 5(6)  of the  Act; (2) if the transfer attracted the operation of Section 5(6) and did not constitute an excepted transfer under  Clause (b)  of the  proviso to Section 5(6), then Section 5(6) should be held ultra vires Article 31-A of the Constitution;  (3)  the  Ceiling  Act  is  violative  of Article 14  of the  Constitution in  that  it  discriminates between  major   unmarried  daughter   and  minor  unmarried daughter by  excluding the  former from  the  definition  of family’ under Section 3(7) of the Act.      Dismissing the Appeal, ^      HELD: 1(i)  From the  definition of ’family’ in Section 3(7) it  can be  seen that  a major  daughter  of  a  tenure holder, even if she is unmarried. is undoubtedly not treated as a member of the family. [544D]      (ii) The  Legislature has provided by section 5(6) that any extent  of land  transferred after 24.1.197l has also to be included  in the  total extent  of holding  of the tenure holder for  the purposes of calculation of the ceiling area, unless the  transfer falls  within the  category of excepted transfers under clauses (a) or (b) of the proviso. [544E]      In the  instant case,  the finding  of  the  Prescribed Authority and  the  Appellate  Authority,  which  has  found acceptance with  the High Court, is a finding of fact and as such its  correctness cannot be canvassed in an appeal under Article  136   of  the  Constitution.  Even  otherwise,  the appellant had  failed to  prove that  there was  an  earlier family arrangement  and if  there was one, to explain why he had delayed the execution of gift till after the Ceiling Act came into  force, especially  when the  purported gift would only result  in himself  and his sons being in possession of the land and enjoying the income therefrom. [544F-G]      2. There  is, no  scope for  the appellant to raise any contention that  section 5(6)  is ultra  vires Article 31-A. Its constitutionality  cannot be  assailed by  reason of the immunity enacted in Article 31-B. [545A,B]      3.  The   provisions  of   the  Ceiling   Act  do   not discriminate between  man and  woman qua  man and  woman but merely  organise   a  scheme   where   life’s   realism   is legislatively pragmatised. [545E]      D.G. Mahajan  v. Maharashtra,  [1977]  2  SCR  790  and Ambika 542 Prasad v. U.P. State, [1980] 3 SCR 1159, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1331 of 1978.      From the  Judgment and  order dated  31.3.1977  of  the Allahabad High Court in C.M. Writ No. 72 of 1777.      Arvind Kumar,  K.B. Chatterjee,  R.K. Mathur  and  Mrs. Laxmi Arvind for the Appellant.      Prithvi  Raj   and  Ashok   K.   Srivastava   for   the Respondents.      The Judgment of the Court was delivered by      NATARAJAN, J.  This appeal  by special leave arises out of and is directed against the dismissal of Civil Misc. Writ No. 72/77  filed by  the appellant  by  the  High  Court  of Allahabad by  judgment and  order dated 31.3.1977. The facts

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are  not   in  controversy   and  the   only  question   for consideration in the appeal is whether the High Court was in error  in   affirming  the  view  taken  by  the  Prescribed Authority and  the Appellate  Authority (the District Judge, Mathura) that  an extent of 12.35 acres, which the appellant claimed to  have transferred  to his daughter, by means of a registered gift  deed, has  also to be reckoned in computing the total  extent of  land in  the appellant’s  holding  for determination of  the ceiling  area in his holding under the Uttar Pradesh  Imposition of  Ceiling on  Land Holdings  Act (hereinafter the Act) 1960.      In response  to a  notice issued under Section 10(2) of the  Act,  the  appellant  contended  that  he  was  not  in possession of  23.61 acres  of surplus  agricultural land as set out in the notice and that the authorities had failed to notice that he had transferred by means of a registered deed of gift  dated 7.1.1972  an extent of 12.35 acres of land to his invalid  daughter Pushpa  Devi  who  remained  unmarried inspite of  being 30  years old  because of her being born a crippled child  and, secondly,  the lands bearing khasra No. 226, 227  and 229  were part  of Abadi and, therefore, stood excluded from  the operation  of the  Ceiling Act.  Both the contentions  did   not  find   favour  with  the  Prescribed Authority as  well as  the Appellate Authority. In so far as the first  contention is  concerned, with which alone we are concerned in this appeal, both the authorities held that the appellant had  failed to establish that the transfer of land in favour of his daughter was made in good faith and was not intended for the immediate or deferred benefit 543 of the  appellant  and  other  members  of  his  family  and furthermore the  transfer appeared  to be a device to defeat the provisions  of the  Act The  appellant filed Civil Misc. Writ No. 72/77 in the High Court for having the order of the Prescribed Authority  as affirmed by the Appellate Authority quashed but  failed to  meet  with  success  and  hence  the present appeal by special leave.      The learned  counsel for  the  appellant  assailed  the finding  rendered  against  the  appellant  as  regards  the purported gift  of land  to his  daughter, on  the following grounds:      (1)  Though  the  registered  deed  of  gift  had  been      executed after  the prescribed  date viz.  21.1.71, the      transfer  was   in  pursuance   of  an  earlier  family      arrangement to  provide  maintenance  for  the  invalid      daughter and, therefore, the transfer falls outside the      purview of Section 5(6) of the Act.      (2)  Alternatively,   if  the  transfer  attracted  the      operation of  Section 5(6)  and did  not constitute  an      excepted transfer  under Clause  (b) of  the proviso to      Section 5(6),  then Section  5(6) should  be held ultra      vires Article 31-A of the Constitution.      (3)  The   Act  is  violative  of  Article  14  of  the      Constitution in  that it  discriminates  between  major      unmarried daughters  and minor  unmarried daughters  by      excluding the  former from  the definition  of ’family’      under Section 3(7) of the Act      Before  examining   the  merits   of  the   above  said contentions, it has to be stated that the Act as well as the amending Acts  viz. Uttar  Pradesh Act  18 of 1973 and Uttar Pradesh Act  2 of  1975 have  been  included  in  the  Ninth Schedule and therefore Section 5(6) is not open to attack on the ground  of constitutional  infirmity by  reason  of  the immunity conferred by Article 31-B. Bearing this position in mind, we  may refer  to the  definition of  Section 3(7) and

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Section 5(6)  of the  Act The  relevant provisions  read, as under:                "Section 3(7):  ’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)".                "Section 5(6):  In  determining  the  ceiling           area appli- 544           cable to  a tenure-holder,  any transfer  of  land           made after  the twenty fourth day of January, 1971           which  but   for  the  transfer  would  have  been           declared surplus  land under  this Act,  shall  be           ignored and not taken into account:                Provided that  nothing  in  this  sub-section           shall apply to                (a)  a  transfer  in  favour  of  any  person           (including Government)  referred to in sub-section           (2);                (b) a  transfer proved to the satisfaction of           the prescribed  authority to  be in good faith and           for   adequate    consideration   and   under   an           irrevocable  instrument   not   being   a   benami           transaction or  for immediate  or deferred benefit           of the  tenure holder  or  other  members  of  his           family.      From the definition of family in Section 3(7) it may be seen that  a major  daughter of a tenure holder, even if she is unmarried,  is undoubtedly not treated as a member of the family. As regards Section 5(6) the legislature has provided that any extent of land transferred after 24.1.1971 has also to be  included in the total extent of holding of the tenure holder for  the purposes  of calculation of the ceiling area unless the  transfer falls  within the  category of excepted transfers under clause (a) or (b) of the proviso.      Taking up  the first  contention  of  the  appellant  s counsel, we  find no  merit in it because the finding of the Prescribed Authority  and the Appellate Authority, which has found acceptance  with the  High Court, is a finding of fact and as such its correctness cannot be canvassed in an appeal under Article  136 of  the Constitution Even otherwise we do not see  any error  in  the  impugned  finding  because  the appellant had  failed to  prove that  there was  an  earlier family arrangement  and if  there was one, to explain why he had delayed the execution of the deed of gift till after the Act came  into force,  especially when  the  purported  gift would  only   result  in  himself  and  his  sons  being  in possession of  the land  and enjoying  the income therefrom. That apart,  there is  no scope  for treating  the  gift  as falling outside the purview of Section 5(6) because the sub- section mandates "any transfer of land made after the twenty forth day  of January,  1971", to  be ignored  and not to be taken into  account unless  the transfer stands protected by proviso (a) or (b) of the sub-section. 545      As regards  the second  contention that Section 5(6) is violative of  Article  31-A  of  the  Constitution,  we  may straightaway observe  that the  question is  no  longer  res integra. In  D. G.  Mahajan v. Maharashtra, [1977] 2 SCR 790 at pages 810 to 812 and at page 824 this Court has held that "that Section 5, sub clause 6 of the amended U.P. Imposition of Ceiling  on Land Holdings Act, even if it contravenes the seconds proviso  to clause  1 of  Article 31-A,  a matter on

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which we  do not  wish to  express any  opinion since  it is unnecessary to  do so,  is validated under Article 31-B" and "that Section  5 sub-clause  (6) of  the U  P Imposition  of Ceiling on  Land Holdings  Act is  valid and  its  constitu- tionality cannot  be assailed  by  reason  of  the  immunity enacted in Article 31-B."      In a  later case  Ambika Prasad v. U.P. State, [1980] 3 SCR 1159 the validity of the Act was declared and inter-alia it was held that "the provision in Section 5(6) when read in the light  of the  proviso is  fair and  valid."  There  is, therefore no  scope for the apellant to raise any contention that Section 5(6) is ultra vires Article 31-A.      So far  as the  last contention is concerned, even this question  is   concluded  by  the  pronouncement  in  Ambika Prasad’s case  (supra) and  does not, therefore, survive for consideration. This  Court while  observing that though "the anti-female kink  is patent  in that  the very definition of family  discloses   prejudice  against  the  weaker  sex  by excluding adult  daughter without providing for any addition to the ceiling on their account," has nevertheless held that the provisions do not discriminate between man and woman qua man and  woman but  merely organise  a scheme  where  life’s realism is legislatively pragmatised The relevant portion of the judgment reads as under:           "Section 5(3)  does not  confer any property on an           adult son  nor withdraw any property from an adult           daughter. That  provision shows  a concession to a           tenure-holder who  has propertyless  adult sons by           allowing him  to keep  two more  hectares per such           son. The  propertyless son gets no right to a cent           of land  on this scope but the father is permitted           to keep  some more  of his  own for  feeding  this           extra mouth.  If an unmarried daughter has her own           land, this  legislation does  not deprive  her any           more than a similarly situated unmarried son. Both           are  regarded   as  tenure-holders.  The  singular           grievance of  a  chronic  spinster  vis  a  vis  a           similar bachelor may be that the father is allowed           by s.  5(3) to  hold an extra two hectares only if           the unmarried major is a son. 546           Neither the  daughter nor the son gets any land in           consequence and a normal parent will look after an           unmarried daughter with an equal eye. Legal injury           can arise only if the daughter’s property is taken           way while  the son’s  is retained  or the daughter           gets  no   share  while  the  son  gets  one.  The           legislation has  not done  either. So, no tangible           discrimination  can  be  spun  out.  May  be,  the           legislature could  have allowed  the tenure holder           to keep  another two  hectares of his on the basis           of the  existence of  an unmarried adult daughter.           It may  have grounds  rooted in rural realities to           do so. The Court may sympathise but cannot dictate           that the land holder may keep more land because he           has  adult   unmarried  daughter.  That  would  be           judicial legislation beyond permissible process. "      The  above  pronouncement  of  the  Constitution  Bench concludes the issue regarding the vice of discrimination.      For the  reasons aforesaid,  all the contentions of the apellant fail  and the  appeal  will  stand  dismissed.  The parties  are,  however,  directed  to  pay  and  bear  their respective costs. N.V.K.                                Appeal dismissed. 547

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