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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: JAT LAXMANJI TALASJI

DATE OF JUDGMENT19/02/1988

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) SINGH, K.N. (J) OJHA, N.D. (J)

CITATION:  1988 AIR  825            1988 SCR  (2)1068  1988 SCC  (2) 341        JT 1988 (1)   382  1988 SCALE  (1)350

ACT:      Gujarat Agricultural  Land Ceiling  Act, 1960:s. 6(3B)- Benefit of  enlargement  of  ceiling  area-Availability  of- Family  consisting  of  more  than  five  members  including members of specified category-Computation of ceiling area.

HEADNOTE: %      Section 6(3B)  of the Gujarat Agricultural Land Ceiling Act of  1960 entitles a family, consisting of more than five members  comprising  a  person  and  other  members  of  the categories mentioned  therein, viz.(i) minor son, (ii) widow of pre-deceased  son, (iii)  minor son or unmarried daughter of a  pre-deceased son,  where his or her mother is dead, to hold land  in excess  of the  ceiling area  to the extent of one-fifth of  such area  for each  member in excess of five, provided the  total area  does not  exceed twice the ceiling area. The ceiling area prescribed was 45 acres.      The family  of the  respondent landholder  consisted of nine members  including himself,  his  mother,  wife,  three minor sons  and three  minor daughters.  The holding  of the family consisted of 60 acres and 4 gunthas.      The Revenue  Tribunal held  that the landholder was not entitled to  the benefit  of s.6(3B) of the Act. In counting the members  of the  family, it  excluded from consideration the mother  and three  minor daughters  of the landholder on the view  that the applicant and his wife would count as one unit and  his minor sons would count as four units and ruled that there  were only  five members  in the  family for  the purpose of  counting the unit, notwithstanding the fact that the family  consisted of  nine members and also comprised of other members belonging to the specified category.      In the  writ petition,  the High  Court held  that  the landholder’s family  consisted of  nine members  inasmuch as his mother  and his  wife as  also his  minor daughters were members of his family.      In the  appeal to  this Court  it was contended for the appellant-State that in applying the test whether or not the family consisted of five 1069

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members regard  must be  had only  to the  members of family belonging to  the specified  category, namely minor sons, in so far  as the  composition of  the family of the landholder was concerned,  so to say, that the landholder, his wife and his three  minor sons  were the  only five  members  of  the family for the purpose of s. 6(3B) of the Act.      Dismissing the appeal, ^      HELD: 1.1  Two tests must be satisfied cumulatively for being eligible  to claim  the benefit  of s.  6(3B)  of  the Gujarat Agricultural Land Ceiling Act, 1960: (1) the size of the family  should exceed  five,  (2)  it  must  consist  of members one  or more  of whom  belong to one or other of the specified categories.  All the  ingredients of  s. 6(3B) are satisfied in the instant case.[1074G]      1.2 The expression "family" has not been defined in the Act. The  Court has,  therefore, to  go by  the  concept  by family as  it is  commonly understood,  meaning, a  group of persons consisting  of parents  and their  offsprings living together in  one household. In that view, that family of the landholder consisted of eight members including himself, his wife, three minor sons and three minor daughters. The family of the  landholder thus  consists of more than five members. The family  also includes  persons of  one of  the specified categories viz., the minor sons. [1074A-C, E-F]      2. It  cannot be  said that  in ascertaining whether or not the  precondition is  satisfied only  the members of the specified category  should be taken into account. For, to do so would  be to kill the letter as well as the spirit of the benevolent provisions  aimed at  relieving the  distress  of family members subject to one or other of the socio-economic handicaps. [1075D-E; 1071C-D]      3. Computation  of the  extent of  the additional  land must be  made by  applying the formula embodied in s. 6(3B). On a  true interpretation  of the  provision "each member in excess of  five" must  of logical necessity mean each "such" member of  the specified  handicapped  category  viz.  three minor sons.  Under the  circumstances, for each minor son in excess of  the five members, the holder was entitled to one- fifth of  the ceiling  area  in  excess  of  the  prescribed ceiling. That  is to  say he  was entitled to three-fifth of the prescribed  ceiling area over and above the ceiling area provided the  total retainable holding of the family did not exceed twice  the ceiling  area. The  holding of  the family consisted  of   60  acres   and  4  gunthas.  And  making  a computation on the aforesaid basis 1070 having regard  to the  fact that  the ceiling  area  was  45 acres, the  family would  be entitled to additional 27 acres (45/5=9x3=27). Thus  he would  be entitled  to hold 72 acres (45+27=72) whereas  the holding  of the respondent consisted of only  60 acres.  Therefore, the holding of the family was not in  excess of  the prescribed ceiling as computed in the aforesaid manner. [1075F-G; 1076B-C]      Nathekhan  v.  Mamlatdar,  Vadgam,  G.L.R.  25(3)  1473 approved.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 681 of 1985.      From the  Judgment and  Order dated 24.8.84 of the High Court of Gujarat in S.C.A. No. 1286/1980.      T.V.  Mehta,  M.N.  Shroff  and  K.M.M.  Khan  for  the

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Appellant.      S.H.  Sheth,   Vimal  Dave   and  S.C.  Patel  for  the Respondents.      The Judgment of the Court was delivered by      THAKKAR,  J.   In  the   course  of   an  exercise   in interpretation of  a provision,  Section  6(3B)  of  Gujarat Agricultural  Land   Ceiling  Act   of  1960  complains  the appellant-state, the  High Court has misinterpreted the said provision  which  had  been  correctly  interpreted  by  the Tribunal Gujarat Revenue Tribunal. The debate in the present appeal has  centred on  this plea the meritlessness of which will become evident presently.      The  provision   in  question  viz,  Section  6(3B)  is embodied in  Chapter III  of the Ceiling Act which bears the caption "Fixation  of Ceiling on Holding Land, Determination of Surplus  Land and  Acquisition  thereof".  The  concerned provision in  so far as material to the problem posed by the present appeal deserves to be quoted:           "6(3B)    Where a family or a joint family                     consists of more than five members                     comprising a person and other members                     belonging to all or any of the following                     categories, namely:           (i)  minor son,           (ii) widow of a pre-deceased son, 1071           (iii)     minor son  or unmarried  daughter  of  a                     pre-deceased  son,   where  his  or  her                     mother is dead,           such family  shall be  entitled to  hold  land  in           excess of  the ceiling  area to the extent of one-           fifth of  the ceiling  area  for  each  member  in           excess of  five, so however that the total holding           of the  family does  not exceed  twice the ceiling           area; and  in such  a case,  in  relation  to  the           holding of  such family, such area shall be deemed           to be the ceiling area:           Provided x x x x x x"      The philosophy  of this  provision stares  one  in  the eyes. When  a family  is both  large  and  comprises  (which expression is  employed in  the sense  of includes, Collins’ dictionary defines  comprise as ..... to include ... amongst it members  who are  subject to  one or  other of the socio- economic handicaps,  fairness demands  that such  family  is permitted to retain some more land than other families which are not  so  handicapped.  The  very  nature  of  the  three categories which  are specified  (minors, widow  of  a  pre- deceased  son,   minor  son   or  unmarried  daughter  of  a predeceased son  who has  lost both  parents)  conveys  this message of  plight. Understandable  it is,  that for  such a family  which  has  to  carry  the  burden  of  misery,  the community acting  through the  legislature has a soft corner and pours  milk  of  human  kindness  into  this  benevolent provision aimed  at relieving  their distress  to an extent. Such  is   the  design.   Two  tests   must   be   satisfied commulatively for being eligible to claim the benefit:      (1)  The size  of the  family (No.  of  members  should           exceed 5)      (2)  It must  consist of  members one  or more  of whom           belong  to   one  or   other  of   the   specified           handicapped categories. Now  the   factual  backdrop   in  which   the  problem   of interpretation has  surfaced needs  to be traced. The family of  the   respondent  landholder   consisted  of  9  members including himself.  (The land-holder,  his mother, his wife,

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his three  minor sons  and his  three minor  daughters). The question  which   arose  was  whether  the  land-holder  was entitled to the benefit of Section 6(3B) which provides that where a  family or  a joint  family consists  of more than 5 members comprising  a person  and other persons belonging to all or any of the specified categories, such family shall be entitled to  hold land  in excess of the ceiling area to the extent of  1/5 of  the ceiling  area for  each member of the specified 1072 category in  excess of  five, subject  to the rider that the total holding  of the  family  does  not  exceed  twice  the ceiling area.  The Tribunal took the view that Section 6(3B) was not  attracted to  the  case  of  the  said  land-holder notwithstanding the  fact that  his family  consisted  of  9 members and  also comprised  of other  members belonging  to specified category  (i) (minor  son). The  view taken by the Tribunal is  reflected in  the following  passage  extracted from its order dated January 24, 1978 which gave rise to the Writ Petition in the High Court which in turn has given rise to the present appeal by special leave:           "As regards  the other  contention  of  Shri  R.K.           Panchal, it  may be  observed that for the purpose           of section 6(3B) family of the applicant consisted           of not  more than  five members  eventhough  as  a           matter of  fact there  are  nine  members  in  his           family because  the applicant  and his  wife  will           count as one unit and his minor sons will count as           four units for the purpose of section 6(3B) of the           Act, and  thus there  are only five members in the           family for  the  purpose  of  counting  the  unit.           Therefore, the family is not entitled to hold more           than 45 acres of land on the ground that there are           nine members  in the family as argued by Shri R.K.           Panchal. In  this view of the matter, the findings           of the  Mamlatdar  and  confirmed  by  the  Deputy           Collector do not deserve to be interfered with."      Upon the jurisdiction of the High Court, under Articles 226/227 of the Constitution of India being invoked, the High Court reversed the Tribunal. Because, the reasoning unfolded in  the   aforesaid  passage   was  inconsistent   with  the exposition of  law made  by the  High Court  in its  earlier pronouncement. Reliance  was placed  on Nathekhan’s  Gujarat Law Reporter  Vol. XXV  (3) p. 1473 (Nathekhan v. Mamlatdar, Vadgam) case wherein Ahmadi, J. had earlier taken a contrary view. Says Ahmadi, J.           "With respect the Tribunal’s thinking is confused,           Sub-section (3B)  of Sec.  6 merely lays down that           where a  family consists of more than five members           comprising a  person  and  other  members  of  the           categories mentioned  therein, namely,  (i)  minor           son, (ii) widow of a pre-deceased son, (iii) Minor           son or  unmarried daughter  of a pre-deceased son,           where his or her mother is dead, such family shall           be entitled  to hold land in excess of the ceiling           area to  the extent  of one-fifth  of the  ceiling           area for each member in 1073           excess of  five provided  the total holding of the           family does  not exceed  twice the ceiling area. A           bare perusal  of this  sub-section makes  it clear           that in  order to  avail two  conditions  must  be           satisfied, namely,  (i) the  family should consist           of more  than five members and (ii) it should have           amongst it  the categories of members mentioned in

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         the three  sub-clauses. If  the  family  does  not           consist of  more than five members but has amongst           it any  of the members mentioned in the three sub-           clauses, it will not be entitled to the benefit of           enlargement of  the ceiling  area. Therefore,  the           benefit of  enlargement of  the ceiling  area will           ensure to  only that family where the total number           of members  is more than five and amongst them are           members  belonging  to  the  categories  mentioned           therein. However,  there is  nothing in  the  sub-           section wherefrom  it can  be  inferred  that  the           wife, widowed  mother and  unmarried daughters are           intended to  be excluded  from the family, that is           group or  unit  constituting  the  family.  I  am,           therefore of  the opinion that all the authorities           including the Tribunal were wrong in coming to the           conclusion that  the aforesaid  female members  of           the family  had to  be excluded for the purpose of           determining the size of the family."      We fully concur with this view. The reasons are not far to seek.      It is not in dispute that the family of the land-holder consisted of  9 members  if the  heads of the members of the family are  counted. The  first  condition  required  to  be satisfied in  order to  attract Section  6(3B) is  that  the family must  consist of  more than 5 members. The debate has centred round  the question  as to  how the  number  of  the members  constituting  the  family  should  be  counted.  In counting the members of the family the Tribunal has excluded from consideration  the mother and the three minor daughters of the  land holder. Excluding these four persons the family consisted of 5 members. In that event Section 6(3B) will not be attracted because one of the conditions precedent for the applicability of  the provision  is  that  the  family  must consist of  more than 5 members. The High Court on the other hand has  upheld the  contention of the land holder that his family in fact consisted of 9 members inasmuch as his mother and his wife as also his minor daughters were members of his family. The Tribunal in terms observed that:           "for the  purpose of  Section 6(3B)  family of the           applicant consisted  of not  more than  5  members           eventhough as a 1074           matter of fact there are 9 members in his family."      This reasoning  is obviously fallacious. The expression ’family’ has  not been defined in the Act. One has therefore to go by the concept of family as it is commonly understood, taking  into   account  the   dictionary  meaning   of   the expression. Collins English Dictionary defines family as:           "a primary  social group consisting of parents and           their offspring,  the principal  function of which           is provision for its members."           "a group  of persons  related by  blood;  a  group           descended from a common ancestor."           "all  the   persons   living   together   in   one           household."      Having regard  to this  definition  it  can  be  safely concluded that  the land-holder,  his wife and his offspring consisting of  three minor  sons and  three minor  daughters would certainly  constitute a  family even  if the mother of the land  holder is excluded from consideration. Thus in any view the  family of  the land  holder consisted of 8 members including himself,  his wife,  three minor  sons  and  three minor daughters. The Tribunal was therefore clearly in error in taking  the view  that the  family consisted  of not more

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than 5  members. Learned  counsel for  the appellant however contended that  in applying  the test  whether  or  not  the family consisted of 5 members regard must be had only to the members of  the family  belonging to  the specified category namely minor sons in so far as the composition of the family of the  land holder  in the  present case  is concerned.  In other words the contention is that the land holder, his wife and his  three minor  sons are  the only five persons of the family for  the purposes  of Section  6(3B). In  our opinion there is  no warrant  for  reading  Section  6(3B)  in  this artificial and truncated manner. On a plain reading, Section 6(3B) is  attracted where  a family  consists of more than 5 members "comprising  a person and other members belonging to all or  any one  of the  following categories viz. (i) minor son ....." In the present case the family of the land holder consists of  more than  5 members.  The family also includes persons of  one of  the specified  categories viz. the minor sons.  Thus,  all  the  ingredients  of  Section  6(3B)  are satisfied. In  order to  claim benefit  of Section 6(3B) the test which  must be  satisfied is  a two  fold test.  First, whether the  claimant’s family  consists of  more than  five persons. In  the present  case the answer to this test is in the affirmative. 1075 The second test that is required to be answered in favour of the person  who claims  the benefit of Section 6(3B) is that such family  must also  comprise of one individual and other members besides himself who must belong to all or any of the three specified  categories. This  test is  also answered in favour  of  the  respondent  inasmuch  as  the  family  does comprise of the respondent and other members and from out of the other  members, three  belong to  one of  the  specified categories viz. ’minor son’. In otherwords access to Section 6(3B) is  barred by  two doors. In order to secure entry the family must  consist of  more than  5 persons.  If there are more than  5 persons  including the land holder himself, the first door  will be  opened and  the  land  holder  will  be entitled to have an access provided the second door does not bar his  entry inside  the beneficial  area. The second door will also  be opened provided that some of the other members meaning thereby  members other  than individual  land holder belong to  one of  the three  categories  specified  in  the section. The second door would be opened provided he has got minor sons. Admittedly, the respondent has three minor sons. Therefore both  the doors  which bar  the access of the land holder to  the benevolent  provisions are  opened. It is not possible to  accede to  the submission  that in ascertaining whether or  not the  pre-condition  is  satisfied  only  the members of  the specified  category  should  be  taken  into account. For,  to do  so would be to kill the letter as well as the  spirit of  the concerned provision. We are therefore not prepared  to uphold the plea of the appellant-state that the High  Court has  not correctly  interpreted the relevant provision in the case giving rise to the present appeal.      Under the  circumstances the  appeal deserves  to fail. But before  we conclude  we must  set aright  an inadvertent error made  by the  High Court  in making computation of the extent of  the additional  land  which  the  respondent  was entitled to  hold in excess of the prescribed ceiling in the context of section 6(3B). Computation in this behalf must be made by  applying the formula embodied in Section 6(3B) viz. that the  family shall be entitled to hold land in excess of the ceiling  area to the extent of "one fifth of the ceiling area for each member in excess of five" subject to the rider that the  total area does not exceed twice the ceiling area.

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It needs  to be  clarified that  on a true interpretation of the provision  "each member  in  excess  of  five"  must  of logical necessity  mean each  ’such’ member of the specified handicapped category.  In the  present  case  there  were  3 members in  the family  and it comprised of three members of the  specified   category  viz.  3  minor  sons.  Under  the circumstances for  each minor  son in  excess  of  the  five members the holder was entitled to 1/5th of the ceiling area in excess of the pre- 1076 scribed ceiling.  That is to say he was entitled to 3/5th of the prescribed  ceiling over  and  above  the  ceiling  area subject to  the rider  that the  total retainable holding of the family  did not  exceed twice  the  ceiling  area.  This aspect was  lost sight  of by  the High  Court in making the computation. Of  course in  the ultimate result in the facts of the  present case  nothing turns  on it as in any view of the matter  the extent  of  the  land  held  by  the  family computed on  this basis  would not  exceed twice the ceiling area. The  holding of the family consisted of 60 acres and 4 gunthas. And  making a  computation on  the aforesaid  basis having regard  to the  fact that  the ceiling  area  was  45 acres, the  family would  be entitled to additional 27 acres (45/5=9x3=27). Thus  he would  be entitled  to hold 72 acres (45+27=72) whereas  the holding  of respondent  consisted of only 60  acres. Therefore  the holding of the family was not in excess  of the  prescribed ceiling  as  computed  in  the aforesaid manner. While the High Court in terms followed its earlier decision  in Nathekhan’s  case (supra) it overlooked the  ratio   of  the  decision  in  this  behalf.  What  was overlooked was  the ratio reflected in the passage from para 6 of  the decision  extracted hereinbelow which is in accord with formula indicated by us:           "...... There were two minor sons in the family of           Nathekhan and  one minor  son  in  the  family  of           Majamkhan. Since  the family  unit of each brother           exceeded five  in number  so far  as Nathekhan  is           concerned, he  was entitled to hold land in excess           of the  ceiling area to the extent of two-fifth of           the ceiling  area and Majamkhan with one minor son           was entitled to hold land in excess of the ceiling           area to the extent of one-fifth thereof. Since the           excess land  in the  case of each brother was of 4           acres and  38.5 gunthas  being less than even one-           fifth of  the ceiling  area, it  could not be held           that  their   holding  exceeded   the  permissible           ceiling."      We are  therefore  of  the  opinion  that  this  appeal deserves to  fail subject  to the clarification in regard to the true  position as regards computation of the permissible extent of  land which  can be held in the context of section 6(3B) of  the Act.  The appeal  is disposed  of accordingly. There will be no order regarding costs. P.S.S.                                     Appeal dismissed. 1077