STATE OF H.P.& ORS. Vs. ASHWANI KUMAR & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 6015 of 2009, Judgment Date: Nov 26, 2015
We make it clear that to maintain certainty in the judicial decision,
we have to restrain from interfering with the decision of the High Court
which has stood for a long period on the principle of stare decisis.
However, the said principle will be applicable where the meaning of the
Statute is ambiguous and capable of more interpretation than one. In the
instant case, the provision of the Act/Statute is very clear and,
therefore, principle of stare decisis is of no help to the respondents.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6015 OF 2009
State of Himachal Pradesh and others Appellant(s)
versus
Ashwani Kumar and others Respondent(s)
J U D G M E N T
M.Y. Eqbal, J.:
This appeal by special leave is directed against judgment dated
7.5.2007 passed by the Division Bench of the High Court of Himachal
Pradesh, whereby the writ petition preferred by the respondents was allowed
and the orders passed by the Revenue Authorities were quashed, holding that
every landowner of the family of one Dev Raj was entitled for a separate
unit.
2. The facts in nutshell are that Dev Raj, predecessor-in-interest of
the respondents herein, was holding land measuring 2400 kanals 9 marlas in
village Kalroohi and Mubarikpur as owner. He was issued notice in form C-V
in which area measuring 1767 Kanals 9 Marlas was proposed to be declared as
surplus under the Himachal Pradesh Ceiling on Land Holdings Act, 1972.
Instead of filing objection, the landowner filed a writ petition in which
High Court directed that the determination of surplus area be made by the
Collector. On 22.7.1976, the Collector, Una District passed an order
holding that the land owned by wife of late Dev Raj namely, Smt. Kala Devi,
and Yash Pal, Dharam Pal, Ram Pal sons of Dev Raj be excluded from the
holding of landowner Dev Raj and all the members of the family holding land
continue to enjoy rights therein to the extent of the determined
permissible area. Thereafter, while deciding reference in revision, the
Financial Commissioner, Himachal Pradesh remanded the case to the Collector
for decision afresh in accordance with law after affording due opportunity
to the respondents. After remand, the Collector Land Ceiling, Una passed
order holding that Dev Raj and that of his family with Ram Paul being adult
son on the appointed day i.e.24.1.1971, the landowner is entitled for two
units of land as permissible area.
3. In appeal against the aforesaid order, the Divisional Commissioner,
Kangra Division, on 30.3.1986, held that the provisions of Section 4(6) are
very explicit under which the total land held by the family members has to
be considered. In revision, the Financial Commissioner (Appeals) upheld
the order of the Divisional Commissioner. Thereafter, successor-in-
interest of Dev Raj filed writ petition before the High Court of Himachal
Pradesh challenging the orders passed by the Revenue Authorities.
4. Before the High Court, respondents pleaded that the writ petitioners
in their own right are individual landowners before the appointed day under
the Act. Their individual land holdings cannot be clubbed together for
determining permissible area under Section 4 of the Act and such
petitioners are entitled to one unit individually under the Act. The
individual holding of all petitioners except writ petitioner no.1 is far
below permissible area. Therefore, while determining their permissible
area, the surplus area out of the land holding of writ petitioner no.1 only
is to be excluded, the others do not have any surplus area as their
individual holding is within the permissible limits of the Act. It was
argued before the High Court that the order dated 22.7.1976 passed by the
District Collector but other orders passed subsequent to that order are not
in accordance with the Act. It has been urged that in sub-section (4) of
Section 4 adult son of a landowner is entitled to a separate unit up to the
extent permissible to a ‘family’ under sub-section (1) and (2) but once
adult son himself is a landowner in his own right, then he is entitled to
hold permissible area under the Act in his individual capacity and he
cannot be confined to have separate unit up to the extent permissible to a
family.
5. Per contra, State of Himachal Pradesh heavily relied upon sub-section
(6) of Section 4 of the Act and contended that writ petitioners nos.2 to 5
are members of the family of writ petitioner no.1, and therefore, their
holding individually together with the land held by all of them shall be
taken into account for the purposes of calculating the permissible area.
6. The Division Bench of the High Court allowed the writ petition and
quashed the orders passed by the Revenue Authorities directing the
Collector Land Ceiling, Una to determine the permissible area of original
writ petitioners nos.1 to 5 individually in the light of the observations
made in the impugned judgment. The High Court observed thus:
“23. In Annexure P-11 it has come that petitioner No.1 Dev Raj has four
sons who are all major and reside separately from their father. As against
this evidence, the respondents have not proved that the petitioners No.2 to
5 have acquired any land through petitioner No.1 before the appointed date
24.1.1971. The simple case of the respondents is that since petitioners
No.2 to 5 are family members of petitioner No.1, therefore, their
individual holding is to be counted for determination of permissible area
of all family members as a unit and, therefore, all of them collectively
are entitled to only two units. This argument of the respondents has no
force; firstly, petitioner No.2 is the wife and petitioners No.2 to 5 are
adult sons of petitioner No.1. Family has been defined as husband, wife and
their minor children or anyone or more of them. The petitioner No.2 being
the wife of petitioner No.1 is entitled to be treated as an individual
person for the purposes of determining the permissible area available to
her as held in Raj Kumar Rajinder Singh’s case (supra). The petitioners
nos.3 to 5 are not family members of petitioner no.1 as per definition of
family and otherwise also their individual land holding cannot be counted
under sub-section (6) of Section 4 for determination of permissible area
along with petitioner no.1. Even if petitioners nos.3 to 5 on the
appointed date were minors still their individual holdings cannot be
counted for determining the permissible area of petitioner no.1 Dev Raj.
The permissible area of all petitioners is to be determined under Section 4
separately under the Act. The authorities have erred in reviewing the
order dated 22.7.1976 Annexure P-11 by applying Mehar Ali’s case decided by
respondent no.2.”
7. Challenging the decision of the High Court, the State of Himachal
Pradesh and its revenue authorities have preferred instant appeal by
special leave raising question of law whether in view of the provisions of
the Himachal Pradesh Ceiling on Land Holdings Act, 1972, a family of
husband, wife, one adult son and three minor children, though everybody was
holding the land on 24th day of January, 1971, could hold more than two
units of permissible area?
8. Mr. Satyanaryan Singh, learned Sr. AAG appearing for the State of
U.P., assailed the impugned judgment passed by the High Court mainly on the
ground that the provisions of the Himachal Pradesh Ceiling on Land Holdings
Act, 1972 (for short, “the Act”) has been interpreted in such a way that it
has swayed away the very object of the ceiling law. According to the
learned counsel, the original writ petitioner Dev Raj and his wife were
having 4 sons; one major and 3 minors on the appointed day when the Ceiling
Act came into force i.e. 24.01.1971. According to the learned counsel, the
High Court has not correctly interpreted Section 4 of the Act and the
definition of terms, “landowner”, “permissible area”, “person”, “separate
unit” and “surplus area”. Learned counsel further submitted that the High
Court has erred in law in holding that the earlier judgment in Raj Kumar
Rajinder Singh’s case, the Court has recorded a finding in paragraph 19 of
the judgment when as a matter of fact that was the submission made by the
counsels in that case. Mr. Satyanarayan further submitted that it is an
admitted case of both the parties that on 24th January 1971 the landowner
Dev Raj was having a family comprising of his wife, one adult son and 3
minor sons. By correctly interpreting the provisions of the Act, it cannot
be held that all the members of the family shall hold land separately and
their holdings cannot be counted for determining the permissible area.
9. Per contra, Mr. Anil Sachthey, learned counsel for the respondent,
fully relied on the decision of the Full Bench of the Himachal Pradesh High
Court in Raj Kumar Rajinder’s case (AIR 1976 HP 82(FB). Learned counsel
submitted that the Full Bench considered the provisions of the Act and held
that additional area is added on the fiction that so much more land out of
the land holding is required as a provision in the hands of the land holder
in respect of an adult son.
10. Mr. Sachthey, then submitted that in any event it is a settled
proposition of law that where a decision is allowed to stand or followed
for a considerable length of time then the Court is reluctant to interfere
on the principle of stare decisis. In this connection, learned counsel
relied upon the decisions of this Court in the case of Gajnan and Others
vs. Seth Brindaban; (1970) 2 SCC 360 and Raj Narain Pandey and Others vs.
Sant Prasad Tewari and Others; (1973) 2 SCC 35.
11. At this stage, we think it proper to go through the relevant
provisions of the Act. Section 3 defines the word “family” and “person” as
under:-
“3(e) “family” means husband, wife and their minor children or any one or
more of them;
xxxx
3(n) “person” means the landowner, tenant and mortgagee with possession,
and includes a company, a family, an association or other body of
individuals, whether incorporated or not, and any institution capable of
holding property;”
12. Perusal of the aforesaid definitions makes it clear that the words
“family” and “person” mean the landowner etc. in the Act. Section 4 of the
Act reads as under:-
“Section 4: Permissible area
(1) The permissible area of a landowner or a tenant or a mortgagee with
possession or partly in one capacity or partly in another of person or a
family consisting of husband, wife and upto three minor children shall be
in respect of-
(a) land under assured irrigation capable of growing two crops in a year-
10 acres.
(b) land under assured irrigation capable of growing one crop in a year- 15
acres.
(c) land of classes other than described in clauses (a) and (b) above
including land under orchards-30 acres.
(2) The permissible area for the purposes of clause (c) of sub-section (1)
for the districts of Kinnaur and Lahaul and Spiti, Tehsil Pangi and Sub-
Tehsil Bharmaur of Chamba district, area of Chhota Bhangal and Bara Bhangal
of Baijnath Kanungo Circle of Tehsil Palampur of Kangra district, and area
of Dodra Kowar Patwar Circle of Rohru Tehsil and Pandrabis Pargana of
Rampur Tehsil of Shimla district shall be 70 acres.
(3) The permissible area of a family under sub-section (1) shall be
increased by one-fifth of the permissible area under sub-sections (1) and
(2) for each additional minor member of a family subject to the condition
that the aggregate permissible area shall not exceed twice the permissible
area of family under sub-sections(1) and (2).
(4) Every adult son of a person shall be treated as a separate unit and he
shall be entitled to the land upto the extent permissible to a family under
sub-sections (1) and (2) subject to the condition that the aggregate land
of the family and that of the separate units put together shall not exceed
twice the area permissible under the said sub-sections:
Provided that where the separate unit owns any land, the same shall be
taken into account for calculating the permissible area for that unit.
(5) If a person holds land of two or more categories described in clauses
(a), (b) and (c) of sub-section (1) and sub-section (2) of this section
then the permissible area shall be determined on the following basis:-
(i) in the areas mentioned in sub-section (2) of this section, one acre of
land mentioned in clause (a) of sub-section (1) shall count as one and a
half acres of land mentioned in clause (b) of sub-section (1) and seven
acres of land mentioned in clause (c) of sub-section (1);
(ii) in the areas other than the areas mentioned in sub-section (2) of this
section, one acre of land mentioned in clause (a) of sub-section (1) shall
count as one and a half acres of land mentioned in clause (b) of sub-
section (1), and three acres of land mentioned in clause (c) of sub-section
(1):
Provided that on the basis of ratio prescribed in clauses (i) and (ii), the
permissible area shall be converted into the category of land mentioned in
sub-section (2) and in clause (c) of sub-section (1) as the case may be,
and the total area so converted shall not exceed 70 acres in case of clause
(i) and 30 acres in case of clause (ii).
(6) Where a person is a member of the family, the land held by such person
together with the land held by all the members of the family shall be taken
into account for the purpose of calculating the permissible area.”
13. By reading the plain language of Section 4, it provides that the
landowner may be a family, capable of holding property, consisting of
husband, wife and three minor children. As per sub-section (1) of Section
4, the permissible area which a family consisting of husband, wife and up
to three minor children shall be to the extent provided therein. It is,
therefore, manifest that under Section 4(1) of the Act, the family is
limited in terms of number of minor children, though in the definition
clause, i.e. under Section 3(e), “family” is not limited in terms of minor
children. The family, therefore, will be taken as an individual unit for
the purpose of determining the permissible area under the Act. Sub-section
(4) of Section 4, however, makes it clear that every adult son shall be
treated as a separate unit and he shall be entitled to the land up to the
extent permissible to a family under sub-sections (1) and (2) subject to
the condition that the aggregate land of the family and that of the
separate units put together shall not exceed twice the area permissible
under the said sub-section. Sub-section (6) of Section 4 further makes it
clear that where a person is a member of the family, the land held by such
person together with the land held by all the members of the family shall
be taken into account for the purpose of calculating the permissible area.
14. In other words, by reading the entire provisions of Section 4,
particularly sub-section (6) of Section 4, it is made clear that even if
the respondents were holding property in their respective individual
capacity as a person, land held by them will be taken into account for the
purpose of calculating the permissible area. The provision in its clear
term provides one kind of an exception in case of an adult son of a person.
In that case such adult son will be treated as a separate unit and he is
entitled to have separate unit of permissible area up to the extent of the
permissible area of a family subject to the condition that the aggregate
land of the family and that of a separate unit put together shall not
exceed twice the area permissible. If we read sub-section (4) minutely, it
comes out that in the first part the legislature used the word “separate
unit” but in the later part the legislatures have used the word “separate
units” as plural. The opening words of sub-section (4) of Section 4,
starts with “every adult son of a person” meaning thereby even if a person
has more than one adult son, all will be treated as separate unit
individually but subject to the condition that aggregate land of the family
and that of the separate units put together shall not exceed twice the area
permissible under the said sub-section.
15. Section 6 of the Act reads as under:-
“6. Ceiling of land: - Notwithstanding anything to the contrary contained
in any law, custom, usage or agreement, no person shall be entitled to hold
whether as a landowner or a tenant or a mortgagee with possession or partly
in one capacity and partly in another, the land within the State of
Himachal Pradesh exceeding the permissible area on or after the appointed
day.”
16. Another important provision is Section 17, which deals with the case
of future acquisition of land by inheritance or otherwise in excess of
permissible area or increase in such area as a result of operation of this
Act. Section 17 reads as under:-
“Section 17: Future acquisition of land by inheritance or otherwise in
excess of permissible area or increase in such area as a result of
operation of this Act:
Subject to the provisions of section 15, if after the commencement of this
Act, any person, whether as landowner or tenant, acquires by inheritance or
by bequest or gift from a person to whom he is an heir of any land, or any
person has acquired by transfer, exchange, lease, agreement or settlement
any land, or if, after such commencement, any person acquires in any other
manner any land, which, with or without the lands already owned or held by
him, exceeds in the aggregate the permissible area or any person whose land
exceeds the permissible area as a result of the operation of any provision
of this Act, then he shall, within the period prescribed, furnish to the
Collector, a return in the prescribed form and manner giving the
particulars of all lands and selecting the land not exceeding in the
aggregate the permissible area which he desires to retain, and if the land
of such person is situate in more than one patwar circle, he shall also
furnish a declaration required by section 9.
If he fails to furnish the return and select his land within the prescribed
period, then the Collector may in respect of him obtain the information
required to be shown in the return through such agency as he may deem fit
and select the land for him in the manner specified in sub-section (1) of
section 8.
If such person fails to furnish the declaration, the provisions of (Section
9) shall apply.
The excess land of such person shall be at the disposal of the State
Government for utilization as surplus area under section 15 or for such
other purpose as the State Government may by notification direct.
Explanation:- In the case of family, the return may be furnished by any
adult member of the family and in the case of the sole minor by his
guardian:
Provided that the Collector shall, before determining the surplus
area, give to all the members of the family an opportunity of being heard.”
17. The aforesaid provision makes it clear that when any
person/landowner acquires or succeeds land which is in excess of
permissible area after the commencement of the Act, such land holder has to
file separate return to the Collector as per Rule 16 of the Himachal
Pradesh Ceiling on Land Holdings Rules, 1972.
18. The High Court passed the impugned order based on the decision of the
Full Bench of the High Court in Rajkumar Rajindra Singh vs. Union of India,
ILR 1976 HP 453. The Division Bench of the High Court quoted some of the
paragraphs of Full Bench decision. In order to appreciate the impugned
order, we shall quote paragraphs nos. 17, 18 and 19 of the impugned
judgment as under:-
“17. In Rajkumar Rajinder Singh’s case (supra), Full Bench of this Court
in Paragraph-8 has held as under:-
“………….It is the permissible area in the case of a person or a family. And
it is the permissible area in respect of the landholding of such person or
family. It is the landholding of such person or family alone which forms
the subject-matter of Section 4, and the several sub-sections lay down the
principles for the mathematical computation of the permissible area in
respect of such land-holding. Section 4 is not concerned with the
landholding of any other person or family nor with the transfer of the
rights of one landholder in favour of another.
18. In Paragraph 24, the Full Bench has held that no doubt that sub-
section (6) of Section 4 contemplates where a person is a member of family,
the land held by such family together with the land held by all the members
of the family shall be taken into account for the purposes of calculating
the permissible area, that question can arise only in relation to a family,
the provision is concerned only with the mathematical computation of the
permissible area.
19. In paragraph- 19, the Full Bench has held:-
The petitioners say that while a husband and the children have the right to
hold land a wife has been deprived of such right. There is nothing in
the Act which can lead to that conclusion. A family, consisting of husband,
wife and children has been recognised as a unit for the determination of
the permissible area, and the land holding of the family as such is treated
for that purpose. If a wife holds land separately in her own right, she is
entitled to be treated as an individual person for the purposes of
determining the permissible area available to her.”
19. From perusal of the aforementioned paragraphs of the Full Bench
judgment, it appears that the High Court has completely departed from the
plain language used in Section 4 of the said Act. The High Court has
committed serious error of law in holding that if a wife holds land
separately in her own right, she is entitled to be treated as an individual
person for the purpose of determining the permissible area available to
her. We are of the definite opinion that the Full Bench has not rightly
interpreted the provisions of the Act.
20. The submission made by learned counsel appearing for the respondents
that the impugned judgment needs no interference on the principle of stare
decisis cannot be accepted. The decision relied upon by the respondents
in the case of Gajnan (supra), this Court held that to maintain certainty
in the judicial decision the court should refrain from interfering with
such decision which stood for a long period. However, this Court has
clearly laid down that this principle will be applicable “where the meaning
of a statute is ambiguous and capable of more interpretations than one”.
21. This Court in Indra Sawhney and others vs. Union of India and others,
etc. AIR (1993) SC 477, in paragraph 26-A of the Judgment, considered the
principle of stare decisis and observed that in the law certainty,
consistency and continuity are highly desirable features. Where a decision
has stood the test of time and has never been doubted, we have respected it
unless, of course, there are compelling and strong reasons to depart from
it.
22. We make it clear that to maintain certainty in the judicial decision,
we have to restrain from interfering with the decision of the High Court
which has stood for a long period on the principle of stare decisis.
However, the said principle will be applicable where the meaning of the
Statute is ambiguous and capable of more interpretation than one. In the
instant case, the provision of the Act/Statute is very clear and,
therefore, principle of stare decisis is of no help to the respondents.
23. Apart from that it appears that the instant case arose out of certain
proceedings initiated as far back as in 1974, and travelled up to this
Court. The Full Bench judgment came only in the year 1976 and, therefore,
in our considered opinion, the doctrine of stare decisis should not apply
in the facts of the present case.
24. Considering the entire facts of the case and the relevant provisions
of the Act, we are of the definite opinion that the impugned judgment
passed by the High Court is contrary to law, facts on record, and the
findings recorded therein cannot be sustained.
25. We, therefore, allow this appeal and set aside the judgment passed by
the High Court.
…………………………….J.
(M.Y. Eqbal)
…………………………….J.
(C. Nagappan)
New Delhi
November 26, 2015
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