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PETITIONER: DIBYASINGH MALANA

       Vs.

RESPONDENT: STATE OF ORISSA & ORS.

DATE OF JUDGMENT19/04/1989

BENCH: OJHA, N.D. (J) BENCH: OJHA, N.D. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1989 AIR 1737            1989 SCR  (2) 604  1989 SCC  Supl.  (2) 312 JT 1989 (2)   210  1989 SCALE  (1)1069

ACT:     Orissa  Land Reforms Act,  1960: Section  37(b):  ’fami- ly’Definition  of--’Major married son’ whether  entitled  to benefit of statute.

HEADNOTE:     Proceedings were initiated in 1974 under the Orissa Land Reforms  Act,  1960 for declaration of surplus land  of  the appellants. The appellants filed objections asserting, inter alia, that in view of the partition in their families in the year 1965 the land in the ancestral properties which fell in their share could not be clubbed with those of their father. This  contention was not accepted on the definition  of  the term "family" contained in section 37(b) of the Act. Such of the  major married sons who as such had separated by  parti- tion before the 26th day of September, 1970, as contemplated by the definition of the term "family", were allotted  sepa- rate  ceiling units but so far as the appellants  were  con- cerned,  their shares were clubbed with those of  their  fa- ther.  The  appellants, having failed to get relief  in  the appeals  and  revisions filed by them under the  Act,  chal- lenged the orders passed by the various authorities in  writ petitions  before the High Court of Orissa which  were  dis- missed, relying on its earlier Full Bench decision in Nitya- nanda Guru v. State of Orissa, (A.I.R. 1983 Orissa 54).     Before this Court it was contended that (1) the  protec- tion  under Article 31(C) would not be available to  section 37(b) of the Act and it would be hit by Article 14 unless it was  established  that it had nexus with the policy  of  the State  towards securing any of the principles laid  down  in Part  IV of the Constitution; (2) section 37(b) of  the  Act had to be read in such a manner as to exclude the land which had  fallen to the share of the appellants even though  they did not fail within the category of a major married son"  as contemplated by the definition of the term "family" in  that section,  by adding the word "or" between the words  "major" and  "married", (3) the words "as such" qualify  only  "son" and not "major married son" and are meant to distinguish son from brother or uncle, etc. Dismissing the appeals, it was, 605

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   HELD:  (1) The Act aims at agrarian reform  and  Section 37(b) has a clear nexus with the policy of the State towards securing  the  principle laid down in Article 39(b)  of  the Constitution occurring in Part IV thereof. [607E-F]     Tumati Venkaish etc. v. State of Andhra Pradesh,  [1980] 3 SCR 1143; Seth Nand Lal & Anr. v. State of Haryana, [1980] 3 SCR 1181 and Waman Rao & Ors. v. Union of India, [1981]  2 SCR 1 referred to.     (2)  It is difficult to take recourse to  the  suggested mode of interpretation of section 37(b), i.e., by adding the word "or" between the words "major" and "married" in view of its plain language. [608C-D]     (3)  On  a plain reading of the definition of  the  term "family" in section 37(b) of the Act, the said definition as it  stands is neither meaningless nor of  doubtful  meaning. [608F]      British  India  General Insurance Co. Ltd.  v.  Captain Itbar Singh Ors., [1960] 1 SCR 168 referred to.     (4)  Keeping in view the agrarian reform which was  con- templated  by  the Act and particularly  the  provisions  of Chapter IV relating to ceiling and disposal of surplus  land which were calculated to distribute the surplus land of  big tenure holders among the overwhelming havenots of the State. the Legislature in its wisdom gave an artificial meaning  to the term "family". [608F-G]     (5) The main provision containing the definition of  the term  ’family’ is to be found in the first part  of  section 37(b), namely "family in relation to an individual means the individual,  the husband or wife as the case may be of  such individual  and their children whether major or minor".  The latter part of section 37(b), namely "but does not include a major married son who as such had separated by partition  or otherwise  before the 26th day of September 1970", does  not on  the face of its contain a matter which may in  substance be treated as a fresh enactment adding something to the main provision  but  is apparently and  unequivocally  a  proviso containing an exception. This admits of no doubt in view  of the words "but does not include". [608G-H; 609A-B]     Commissioner  of Income Tax, Mysore v. The lndo  Mercan- tile Bank Limited, [1959] Supp. 2 SCR 256 referred to. (6)  Given its proper meaning, the words "as such" can  only be 606 interpreted  to mean that it is only such son who would  get the benefit of the exception who had separated by  partition or  otherwise  before  the 26th day of  September,  1970  as "major married son". [609F]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2436  to 2438 of 1989.     From the Judgment and Orders dated 7.4.83 and 2.5.  1986 of the Orissa High Court in O.J.C. Nos. 108 and 109 of  1986 and 6 of 1984 respectively.               T.U.  Mehta, Gobind Das and Vinoo  Bhagat  for               the Appellants.               G.L. Sanghi, R.K. Mehta and A.K. Panda for the               Respondents.               The Judgment of the Court was delivered by               OJHA, J. Special leave granted.     These  three appeals raise a common question  about  the interpretation of the term "family" in Section 37(b) of  the Orissa  Land Reforms Act, 1960 (hereinafter referred  to  as

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the  Act). According to clause (a) of Section 37 of the  Act the term "person" includes inter alia family. Clause (b)  of Section 37 being the clause under consideration may usefully be reproduced. It reads:               "(b)  "family" in relation to  an  individual,               means the individual, the husband or wife,  as               the case may be, of such individual and  their               children, whether major or minor, but does not               include  a major married son who as  such  had               separated by partition or otherwise before the               26th day of September, 1970."     According  to  the  appellants in  these  three  appeals partition in their respective families had been taken  place in  the year 1965. The Act except Chapters III and  IV  came into force on Ist October, 1965. Chapter IV of the Act which contains the provisions relating to ceiling and disposal  of surplus land came into force on 7th January, 1972. Suo  motu proceedings  under Section 42 of the Act for declaration  of surplus  land and consequential purposes were  initiated  in the  year 1974. Objections were filed asserting  inter  alia that in view of the partition in the families of the  appel- lants in the year 1965 the land in the ancestral  properties which fell in the share of the appellants could not be club- 607 bed  with those of their father. This  contention,  however, was  not  accepted on the definition of  the  term  "family" contained  in  Section 37(b) of the Act. Such of  the  major married  sons who as such had separated by partition  before the  26th  day  of September, 1970 as  contemplated  by  the definition  of  the  term "family"  were  allotted  separate ceiling  units  but so far as the appellants  are  concerned their  shares  were clubbed with those of their  father  and only  one ceiling unit was allotted as contemplated  by  the relevant provision of the Act.     The  appellants having failed to get relief in  the  ap- peals  and revisions filed by them under the Act  challenged the  orders passed by the various authorities under the  Act in  writ petitions before the .High Court of  Orissa.  These writ  petitions were dismissed relying on the decision of  a Full  Bench  of that Court in Nityananda Guru  v.  State  of Orissa and others, A.1.R. 1983 Orissa Page 54 (F.B.). It  is these orders of the High Court which have been challenged in these appeals. The validity of Section 37(b) of the Act does not appear to have been challenged before the High Court nor has  it been seriously challenged even before us  except  by making a faint submission that even if by virtue of the said provision being incorporated in the 9th Schedule, it may  be immune from challenge in view of Article 3lB of the  Consti- tution, the protection under Article 31C would not be avail- able  to it and it would be hit by Article 14 unless it  was established  that it had nexus with the policy of the  State towards securing any of the principles laid down in Part  IV of the Constitution. This submission even if it is permitted to be raised for the first time in this Court has  obviously no substance in view of the undisputed position that the Act aims  at agrarian reform and the provisions with  regard  to declaration  of surplus land and its distribution among  the have-nots  namely  landless persons is  apparently  to  give effect  to  the  policy of the State  towards  securing  the principle  laid  down in Article 39(b) of  the  Constitution occurring  in Part IV thereof and Section 37(b) has a  clear nexus with that policy. The aforesaid submission has, there- fore, no substance.     At  this place it may also be pointed out that  validity of  analogous provisions dealing with laws  for  declaration

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and  distribution  of surplus land framed by the  States  of Andhra  Pradesh,  Haryana and Maharashtra has  already  been upheld  by this Court after rejecting challenges to them  on various  grounds  in Tumati Venkaish etc. etc. v.  State  of Andhra  Pradesh, [1980] 3 SCR 1143; Seth Nand Lal & Anr.  v. State  of Haryana & Ors., [1980] 3 SCR 1181 and Waman Rao  & Ors. etc. etc. v. Union of India and Ors., [1981] 2 SCR 1. 608     The  main attack against the judgment of the Full  Bench of  the  Orissa High Court in the case  of  Nityananda  Guru (supra)  relying  on which the writ petition  filed  by  the appellants were dismissed by the High COurt has been on  the ground  that  partition in the respective  families  of  the appellants  in the year 1965 having been  accepted,  Section 37(b)  of  the  Act had to be read in such a  manner  as  to exclude the land which had fallen to the share of the appel- lants  even though they did not fall within the category  of "a major married son who as such had separated by  partition or  otherwise  before the 26th day of  September,  1970"  as contemplated  by the definition of the term "family" in  the said  section.  It  was urged that  this  purpose  could  be achieved  by adding the word "or" between the words  "major" and "married". According to learned counsel if that is  done the term "individual" would not include a major son who  had separated  by  partition before the 26th day  of  September, 1970 even if he had not married prior to that date. We  find it difficult to take recourse to this mode of interpretation of  Section 37(b) in view of its plain language. 1n  British India General Insurance Co., Ltd. v. Captain Itbar Singh and Others,  [1960] 1 SCR 168 sub-section (2) of Section  96  of the Motor Vehicles Act, 1939 was sought to be interpreted by the  learned  Solicitor General in a manner  which  involved addition  of certain words. The submission was repelled  and it was held:               "The  learned Solicitor General concedes  this               and  says  that the only word that has  to  be               added  is  the  word  "also"  after  the  word               "grounds".  But even this the rules of  inter-               pretation  do not permit us to do  unless  the               section  as  it stands is  meaningless  or  of               doubtful meaning, neither of which we think it               is."     On a plain reading of the definition of the term  "fami- ly" in Section 37(b) of the Act we are of the view that  the said  definition as it stands is neither meaningless nor  of doubtful meaning. In this connection, it may be pointed  out that  keeping in view the agrarian reform which was  contem- plated by the Act and particularly the provisions of Chapter IV  relating to ceiling and disposal of surplus  land  which were calculated to distribute the surplus land of big tenure holders  among the overwhelming have-nots of the  State  the Legislature in its wisdom gave an artificial meaning to  the term "family". The main provision containing the  definition of  the  term is to be found in the first  part  of  Section 37(b) namely "family in relating to an individual means  the individual,  the husband or wife as the case may be of  such individual  and their children whether major or minor.  "The later part of Section 609 37(b)  namely "but does not include a major married son  who as  such had separated by partition or otherwise before  the 26th  day  of September, 1970" does not on the  face  of  it contain  a  matter which may in substance be  treated  as  a fresh  enactment adding something to the main provision  but is  apparently  and unequivocally a  proviso  containing  an

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exception. This admits of no doubt in view of the words "but does not include". In the Commissioner of Income Tax, Mysore v. The Indo Mercantile Bank Limited, [1959] Supp. 2 SCR 256. it was held:               "Ordinarily  the effect of an excepting  or  a               qualifying  proviso is to carve something  out               of  the  preceding  enactment  or  to  qualify               something  enacted therein which but  for  the               proviso  would  be in it and  such  a  proviso               cannot be construed as enlarging the scope  of               an enactment when it can be fairly and proper-               ly  construed without attributing to  it  that               effect."               (Emphasis supplied)     That  apart the submission made by learned  counsel  for the appellants would also lead to an anomalous situation  if the  word "or" is added between the words "major" and  "mar- ried".  Not only a major unmarried son who had separated  by partition  before the 26th day of September, 1970 would  get excluded  from  the definition of the term "family"  even  a minor married son would get so excluded. The result would be that  even though marriage of a minor son is  prohibited  by law such son would be placed at an advantageous position  to a minor son who was law-abiding and had not married. Further the  submission made by learned counsel for  the  appellants completely  ignores  the words "as such" used in  the  later part of Section 37(b) which contains the exception  referred to  above. Given its proper meaning the words "as such"  can only  be  interpreted to mean that it is only such  son  who would get the benefit of the exception who had separated  by partition  or  otherwise before the 26th day  of  September, 1970 as "major married son".     The  submission by counsel for the appellants  that  the words  "as such" qualify only "son" and not  "major  married son" and are meant to distinguish son from brother or  uncle etc. is misconceived on the plain language of Section  37(b) which  contemplates clubbing of land of spouse and  children only  and not of brother and uncle etc. So, the question  of using the words "as such" to distinguish son from brother or uncle  etc.  does  not arise. Further,  for  accepting  this submission the words "major married" will have to be omitted as superfluous which 610 cannot be done in the garb of interpretation.     Learned counsel for the appellants also urged that a son who had separated by partition or otherwise from his  father was himself an "individual" and if his land was clubbed with that of his father, he will be subjected twice to the provi- sions relating to declaration of surplus land. This  submis- sion  too is equally untenable. Land of such son  alone  who does  not  fall within the exception is to be  clubbed  with that of his father and with regard to land which had been so clubbed  the  son  obviously cannot be  treated  as  another "individual" in his own right for purposes of declaration of surplus  land. Only such son who falls within the  exception will  be liable to be dealt with as an "individual"  in  his own right, as his land has not been clubbed with that of his father. Even on the facts of these appeals nothing has  been brought  to  our  notice to indicate that the  land  of  the appellants  which was clubbed with that of their father  was subjected twice to the provisions relating to declaration of surplus land treating the appellants also as individuals.     It was then urged by learned counsel for the  appellants that  according  to the definition of the term  "family"  as contained  in Section 37(b) of  the Act, land of  a  married

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daughter  is liable to be clubbed twice; firstly, with  that of  her father and secondly, with that of her  husband.  Ac- cording  to him it is against the spirit of the law  dealing with the question of declaration of surplus land. Suffice it to say, so far as this submission is concerned that none  of appellants  in  these appeals is a married daughter  and  as such  we do not find it necessary to go into this  question. We  may also point out that dealing with an  almost  similar submission  with regard to interpretation of Section  123(7) of the Representation of the People Act, 1951 it was held by a  Constitution  Bench of this Court in Rananjaya  Singh  v. Baijnath Singh and others, [1955] S.C.R. Page 671 at 676:               The learned advocate, however, contended  that               such  a  construction  would  be  against  the               spirit of the election laws in that candidates               who have rich friends or relations would  have               an  unfair  advantage over a poor  rival.  The               spirit  of the law may well be an elusive  and               unsafe  guide  and  the  supposed  spirit  can               certainly not be given effect to in opposition               to  the plain language of the sections of  the               Act and the rules made thereunder. If all that               can  be said of these statutory provisions  is               that  construed  according  to  the  ordinary.               grammatical  and  natural  meaning  of   their               language               611               they  work  injustice by  placing  the  poorer               candidates  at a disadvantage the appeal  must               be to Parliament and not to this Court."     In view of the foregoing discussion we are of the  opin- ion that the Full Bench of the Orissa High Court in the case of Nityananda Guru (supra) lays down the correct law.     One more submission has been made by learned counsel for the  appellants  in  the Civil Appeal  arising  out  of  SLP (Civil)  No.  9079 of 1986. It has been urged  that  certain Home-Stead  urban land of the appellants not connected  with agricultural  lying inside Udala Notified Area  Council  has wrongly  been  included as agricultural land  in  the  draft statement. This submission does not appear to have been made either before the High Court or before the authorities under the  Act. In the counter affidavit filed by  the  Additional District  Magistrate (Land Reforms), Mayurbhanj,  Orissa  it has  been stated in reply to paragraphs 21 to 24 of the  SLP that  there  is no Home-Stead land and  no  non-agricultural land belonging to the appellant-land holders in the Notified Area Council of Udala. It has also been stated in  paragraph 3(c)  of the said counter affidavit that no Notification  as contemplated by Section 73(c) of the Orissa Land Reforms Act has  been made by the State Government. It has further  been stated therein that the Urban Land (Ceiling and  Regulation) Act,  1976 has not been made applicable so far to the  Udala Notified Area Council. In this view of the matter it is  not possible  for us to record any finding with regard  to  this submission,  and consequently we express no opinion in  this behalf.     In the result, we find no merit in any of these  appeals and they are accordingly dismissed but in the  circumstances of the case there shall be no order as to costs. R.S.S.                                               Appeals dismissed. 612