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 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 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 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-
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 subsection 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.
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 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 constitutionality 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.
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.