GOPAL SINGHversusSTATE OF U.P. & ORS.

                            GOPAL SINGH
A
                                  v.
                         STATE OF U.P. & ORS.

                              APRIL 15, 1988

B      [S. NATARAJAN AND M.N. VENKATACHALIAH, JJ.]

        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
C reckoned in computing total extent of land holding.                          l"
          Constitution of India, 1950: Articles 14, 3 JA, 3 JB and Schedule
    IX-U.P. Imposition of Ceiling on Land Holdings Act 1960, Sections
    3(7) and 5(6)-Constitutional validity of.

D       In response to a notice issued under Section 10(2) of the Uttar
  Pradesh Imposition of Ceiling on Land Holdings Act, 1960, the appel-
  lant 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
E 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
F   not find favour with the aforesaid contentions, and held that the appel-
    lant 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.
G
         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.

H         In the appeal to this Court it was contended on behalf of the
                                      540
                            GOPAL SINGH v. STATE OF U.P.                       541

       appellant: (I) though the registered deed of gift had been executed after      A
       the prescribed date viz. January 21, 1971, the transfer was in pur-
       suance 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
       (b) oftbe 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
·f-.   former from the definition of family' under Section 3(7) of the Act.

             Dismissing the Appeal,                                                   c
             HELD: l(i) From the definition of 'family' in Sectio& 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. [5440 I

             (ii) The Legislature has pro.vided by section 5(6) that any extent
                                                                                      D
       of land transferred after 24.1.1971 has also to be included in the total
       extent of holding of the tenure holder for the pm·poses of calculation of
       the ceiling area, unless the transfer falls within the category of excepted
       transfers under clauses (a) or (b) of the proviso. [544EI

             In the instant case, the finding of the Prescribed Authority and         E
       the Appellate Authority, which has found acceptance with the High
       Court, is a finding of fact. and as such its correctness cannot be can-
       vassed 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 ifthere 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 resul,t in himself and his sons bein~
       in possession of the land and enjoying the income therefrom. [544F-G I

             2. There is, no scope for the appellant to raise any contention that
                                                                                      F




       section 5(6) is ultra vires Article 31-A. Its constitutionality cannot be
       assailed by reason of the immunity enacted in Article 31-B. ]S4SA, Bl          G

            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. ]S4SEI
                                                                                      H
             D.G. Mahajan v. Maharashtra, 119771 2 SCR 790 and Ambika
    542                   SUPREME COURT REPORTS             [1988] 3 S.C.R.

A   Prasad v. U.P. State, [1980] 3 SCR 1159, referred to.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1331
    of 1978.

         From the Judgment and Order dated 31.3.1977 of the Allahabad
B   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.
c         The Judgment of the Court was delivered by

           NAT ARAJAN, 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
D   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 Appel-
    late 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 comput-
E   ing 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           ~
F 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. l.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
G of Abadi and, therefore, stood excluded from the operation of the
  Ceiling Act. Both the contentions did not find favour with the Pres-
  cribed Authority as well as the Appellate Authority. In so far as the
  first cor.tention 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
H good faith and was not intended for the immediate or deferred benefit
               GOPAL SINGH v. STATE OF U.P. [NATARAJAN, J.[               543

    of the appellant and other members of his family and furthermore !\le
                                                                                 A
    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 Appel-
    late Authority quashed but failed to meet with success and hence the
    present appeal by special leave.
1                                                                                B
          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           c
         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)            D
         should be held ultra vires Article 3 i-A of the Constitu-
         tion.

         (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         E
         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



r
    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 F
    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, G
               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-       H
    544                   SUPREME COURT REPORTS            [1988) 3 S.C.R.

               cable to a tenure-holder, any transfer of land made after
A
               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
B              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
c              consideration and nnder an irrevocable instrument not
               being a benami transaction or for immediate or deferred
               benefit of the tenure holder or other members of his
               family."

D        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
E 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
F Court, is a finding of fact and as such its correctness cannot be canvas-
  sed 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
G 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
H proviso (a) or (b) of the sub-section.
               GOPAL SINGH v. STATE OF U.P. [NATARAJAN, J.[              545

          As regards the second contention that Section 5(6) is violative of
                                                                                A
    Article 31-A of the Constitution, we may straightaway observe that
    the question is no longer res integra. In D.G. Mahajan v. Maharashtra,
    I 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       B
    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, 11980 I 3 SCR 1159      c
    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.
                                                                                D
          So far as the last contention is concerned, even this question is
    concluded by the prononncement 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          E
    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:




r
                "Section 5(3) does not confer any property on an adult son F
                nor withdraw any property from an adult daughter. That
                provision shows a concession to a tenure-holder who has
                properiyless 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 G
                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 bys. 5(3) to hold
                an extra two hectares only if the unmarried major is a son. H
    546                   SUPREME COURT REPORTS             11988) 3 S.C.R.

A              Neither the daughter nor the son gets any land in conse-
               quence 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
B
               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
c              unmarried daughter. That would b~ judicial legislation
               beyond permissible process."

          The above pronouncement of the Constitution Bench concludes
    the issue regarding the vice of discrimination.
D        . 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.




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