# Asharfi Lal v. Iii A.D.J. & Ors. Opp. Parties

- **Citation:** (2024) 5 ILRA 1204
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-23
- **Case number:** Writ-C No. 4268 of 1984
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asharfi-lal-v-iii-a-d-j-ors-opp-parties-52022
- **Pages:** 6

## Headnote

A. Civil Law - Uttar Pradesh Imposition
of Ceiling on Land Holdings Act, 1960 -
Section
5(3)(b)
-
No
Distinction
between
Minor
and
Major
Family
Members
for
Additional
Land
Entitlement - A tenure holder with up to
five family members can retain 7.30
hectares of irrigated land - In addition,
for each family member exceeding five,
and for each adult son, the tenure
holder
can
retain
two
additional
hectares of irrigated land, subject to a
maximum of six hectares - Section
5(3)(b) does not differentiate between
major and minor members of the family
- term "family," as defined in Section
3(7),
includes
the
tenure
holder's
spouse,
minor
sons,
and
minor
daughters - Therefore, even if a family
member is a minor, they are entitled to
two additional hectares of land if the
family size exceeds five (Paras 16, 17).

B. Civil Law - Uttar Pradesh Imposition of
Ceiling on Land Holdings Act, 1960, Section
10(2) - The number of family members is to
be considered on the date of the notice
under Section 10(2) of the Act, 1960, and
not on the date of the introduction of the
amending Act (Para 19).

Allowed. (E-5)
5 All. Asharfi Lal Vs. Iii A.D.J. & Ors.
1205
List of Cases cited:

## Text

1204 INDIAN LAW REPORTS ALLAHABAD SERIES
iii) it has resorted to invoke the
provisions which are repealed; and
iv) when an order has been passed
in total violation of the principles of nature
justice."

12. In Para 30 of the aforesaid
judgment, the Apex Court has however
clarified that the High Court will not
entertain a petition under Article 226 of the
Constitution of India, if an effective
alternative remedy is available to the
aggrieved person or the statute under which
the action complained of has been taken
itself contains a mechanism for redressal of
grievance. Paragraph 30 of the aforesaid
decision is quoted hereunder:-

"30. It has however been clarified
that the High Court will not entertain a
petition
under
Article
226
of
the
Constitution of India if an effective
alternative remedy is available to the
aggrieved person or the statute under which
the action complained of has been taken
itself contains a mechanism for redressal of
grievance."

13. In the opinion of the Court, the
present case does not fall in any of the
exceptions as carved out by the Apex Court
in Paragraph 29. Observation made in Para
30, however, is binding.

14. In view of the above, since the
petitioner has an effective alternate remedy
of assailing the order dated 30.11.2023
passed in Appeal No. 257 of 2022 under
Section 24 (4) of the U.P. Revenue Code,
2006, the Court is not inclined to entertain
the writ petition. It is accordingly dismissed
on the ground of alternate remedy .
----------
(2024) 5 ILRA 1204
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2024

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-C No. 4268 of 1984

Asharfi Lal ...Petitioner
Versus
Iii A.D.J. & Ors. ...Opp. Parties

Counsel for the Petitioner:
L.K. Davey, Bhanu Bhushan Jauhari, R.C. Shukla,
Rishi Bhushan Jauhari

Counsel for the Opp. Parties:
S.C.

A. Civil Law - Uttar Pradesh Imposition
of Ceiling on Land Holdings Act, 1960 -
Section
5(3)(b)
-
No
Distinction
between
Minor
and
Major
Family
Members
for
Additional
Land
Entitlement - A tenure holder with up to
five family members can retain 7.30
hectares of irrigated land - In addition,
for each family member exceeding five,
and for each adult son, the tenure
holder
can
retain
two
additional
hectares of irrigated land, subject to a
maximum of six hectares - Section
5(3)(b) does not differentiate between
major and minor members of the family
- term "family," as defined in Section
3(7),
includes
the
tenure
holder's
spouse,
minor
sons,
and
minor
daughters - Therefore, even if a family
member is a minor, they are entitled to
two additional hectares of land if the
family size exceeds five (Paras 16, 17).

B. Civil Law - Uttar Pradesh Imposition of
Ceiling on Land Holdings Act, 1960, Section
10(2) - The number of family members is to
be considered on the date of the notice
under Section 10(2) of the Act, 1960, and
not on the date of the introduction of the
amending Act (Para 19).

Allowed. (E-5)
5 All. Asharfi Lal Vs. Iii A.D.J. & Ors.
1205
List of Cases cited:

1. Brij Narain Tewari Vs St. of U. P. & ors., 1979
(5) ALR 451

2. Ram Chandra Vs St. of U.P. & ors., 2020 (4)
ADJ 535 (LB).

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri B.B. Jauhari, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. The petitioner by means of the
present writ petition has assailed the order
dated 23.11.1983 passed by the Prescribed
Authority (Ceiling), Tehsil Puwaya, District
Shahjahanpur by which he has declared 4.63
acre surplus land held by the petitioner, and
also the order dated 16.01.1984 passed by
the Additional District Judge, Shahjahanpur
dismissing the Misc. Civil Appeal No.141 of
1983 preferred by the petitioner under
Section 13 of The Uttar Pradesh Imposition
of Ceiling on Land Holdings Act, 1960
(hereinafter referred to as the 'Act, 1960).

3. The facts, in brief, are that the
petitioner was issued a notice on 02.06.1983
under Section 10 (2) of the Act, 1960 on the
ground that the petitioner had 22.65 acres of
irrigation land whereas, under the Act 1960,
he could retain only 18.02-acre land, thus,
the petitioner was having 4.63-acre excess
land, therefore, why the excess land of 4.63
acres held by the petitioner be not declared
as surplus land.

4. The petitioner submitted a reply
contending inter-alia that the notice was
issued to the petitioner under Section 10 (2)
of the Act, 1960 on 02.06.1983, and on the
date of the notice, the family of the
petitioner consisted of the petitioner,
namely, Asharfi Lal, his wife, three
daughters and two sons. His further case was
that his one daughter was married on the
date of notice, therefore, after excluding the
married daughter, there are six family
members still in the family of the petitioner,
therefore, in view of Section 5 (3) (b) of the
Act, 1960, the petitioner is entitled to retain
two hectares extra land. Thus, the petitioner
has no excess land.

5. The Ceiling Authority repelled
the aforesaid contention by holding that the
family members of the tenure holder shall be
considered on the date of introduction of the
amending act i.e. 08.06.1973 and not on the
date of the notice under Section 10(2) of the
Act, 1960, and since in the present case, one
son and daughter of the petitioner were born
in the year 1975 and 1979 respectively after
coming into force the amending act,
therefore, on the date of amending act, there
were only four family members in the family
of the petitioner, therefore, the petitioner had
4.63 acres excess land. Besides the above,
the other issues framed by the Prescribed
Authority
were
decided
against
the
petitioner.

6. The petitioner preferred an
appeal under Section 13 of the Act, 1960
challenging the order of the Prescribed
Authority. The appellate authority noted that
the only contention advanced by the
petitioner was whether the family members
of the tenure holders as provided in Section
3 (7) of the Act, 1960 shall be considered on
the date of introduction of amending act or
the date of issuance of the notice.

7. The appellate authority after
considering the scheme of the Act held that
if Section 5(3) (b) of the Act is read along
with Section 5(1) of the Act, 1960, it is
manifest that the family member of the
tenure holder is to be seen on the date of
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
introduction of the amending act i.e.
08.06.1973, and since in the case in hand,
the petitioner on the date of introduction of
the amending act had only four family
members as one daughter and son were born
to the petitioner after the introduction of the
amending act, therefore, the petitioner is not
entitled to the benefit of Section 5(3) (b) of
the Act, 1960. Accordingly, the appellate
authority did not find any merit in the
submission of the petitioner and rejected the
appeal.

8. Challenging the aforesaid orders,
learned counsel for the petitioner has
contended that it is not in dispute in the
present case that the notice under Section
10(2) of the Act, 1960 had been issued on
02.06.1983. It is also not in dispute that one
son and one daughter of the petitioner were
born in the year 1975 and 1979 respectively
i.e. before the issuance of notice under
Section 10(2) of the Act, 1960. It is
submitted that on the date of issuance of
notice, there are six family members in the
family of the petitioner, and thus, the
petitioner is entitled to the benefit of Section
5(3) (b) of the Act, 1960, therefore, he is
entitled to retain two hectares extra land
besides the land which a tenure holder can
retain after incorporation of amending act.

9. It is contended that the appellate
authority has taken an erroneous view in the
matter in concluding that the date of
introduction of the amending act is the cutoff date on which the family members in the
family of the tenure holder are to be counted.
He submits that if family members exceed
five and a family member is minor, even
then the benefit of retention of two hectares
of extra land cannot be denied to the
petitioner inasmuch as the Act does not
specify that only a major family member if
the number of family members exceeds five
is entitled to retain two-hectare extra land
besides the land which he is entitled to retain
under the Act. In support of his argument, he
has placed reliance upon the judgement of
this Court in the cases of Brij Narain Tewari
Vs. State of Uttar Pradesh and others 1979
(5) ALR 451 & Ram Chandra Vs. State of
U.P. and Others 2020 (4) ADJ 535 (LB).

10. Per contra, learned Standing
Counsel submits that the number of family
members on the date of introduction of the
amending
act
shall
be
taken
into
consideration to determine the family
members and not the date of issuance of
notice. It is submitted that in such view of
the fact, the Appellate Authority has rightly
rejected the appeal of the petitioner, and
since the finding returned by the appellate
authority is based upon proper appreciation
of law, therefore, this Court may not
exercise its power under Article 226 of the
Constitution of India to interfere with the
order passed by the appellate authority as
well as prescribed authority.

11. I have considered the rival
submissions advanced by learned counsel
for the parties.

12. The facts as emanates from the
record are that the petitioner was issued a
notice under Section 10(2) of the Act, 1960
on 02.06.1983 calling upon him to show
cause as to why 4.6 acres of land be not
declared as surplus as his total holding is
22.65 acre, out of which he can retain only
18.02 acres irrigation land.

13. The petitioner submitted a reply
to the said notice. In the reply, it is stated by
the petitioner that on the date of issuance of
notice under Section 10 (2) of the Act, 1960,
there were six members in the family of the
petitioner, therefore, in view of the
5 All. Asharfi Lal Vs. Iii A.D.J. & Ors.
1207
definition of "family" provided in Section 3
(7) of the Act read with Section 5 (3) (b) of
the Act, 1960, the petitioner is entitled to
retain two hectares extra land.

14. The Prescribed Authority did
not find any merit in the submission of the
petitioner and declared 4.06 acres of land as
surplus land. The appeal preferred by the
petitioner was also dismissed by the
appellate authority holding that the number
of family members to avail benefit of
Section 5(3) (b) of the Act, 1960 is to be seen
on the date of introduction of the amending
act and not on the date of issuance of notice.

15. The first question which arises
for consideration in the present case is
whether the Act lays any distinction between
the minor and major while extending the
benefit of Section 5(3) (b) of the Act, 1960
entitling a tenure holder to retain two
hectares extra land if the family members of
the tenure holder exceeds five in numbers.
In this respect, it would be relevant to
reproduce Section 5 (3) (b) of the Act, 1960
which reads as under:-.

"[subject to the provisions of subsection (4), (5), (6) and (7)] the ceiling area
for purposes of sub-section (1) shall be -
(b) in the case of a tenure-holder
having family of more than five members,
7.30 hectares of irrigated land (including
land held by other members of his family),
besides, each of the members exceeding five
and for each of his adult sons who are not
themselves tenure-holders or who hold less
than two hectares of irrigated land, two
additional hectares of irrigated land or such
additional land which together with the land
held by such adult son aggregates to two
hectares, subject to a maximum of six
hectares of such additional land;
Explanation. - The expression 'adult
son' in clauses (a) and (b) includes an adult
son who is dead and has left surviving
behind him minor sons or minor daughters
(other than married daughters) who are not
themselves tenure-holders or who hold land
less than two hectares of irrigated land."

16. A reading of Section 5 (3) (b) of
the Act, 1960 discloses that a tenure holder
up to five members can retain 7.30 hectares
of irrigated land. The aforesaid Section
further specifies that besides the above, each
of the members exceeding five and for each
of his adult sons who are not themselves
tenure holders or who hold less than two
hectares of irrigated land, the tenure holder
can retain two additional hectares of
irrigated land subject to maximum six
hectares of land. Reading of Section 5 (3) (b)
of the Act, 1960 does not suggest that it
differentiates
or
contemplates
any
distinction between the major and minor
members of the family. The term 'family' has
been defined in Section 3 (7) of the Act,
1960 which reads as under:

"family" in relation to a tenureholder, 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)."

17. In such view of the fact, even if
a member of the family is minor, he is
entitled to retain two hectares of additional
land, if the family member of a tenure holder
exceeds five. The aforesaid view is
supported by a Coordinate Bench of this
Court in the case of Brij Narain Tewari
(supra). The relevant extract of the said
judgement of Brij Narain Tewari (supra) is
reproduced herein-below:-
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
"The aforesaid provision clearly
shows that if there are major sons in the
family of a tenure holder, the tenure holder
is entitled for additional land provided the
major sons are themselves not tenure
holders. Similarly, it also provides that even
if there are no major sons, if the strength of
members of the family is more than 5 then
the tenure holder is entitled for additional
land of two hectares for each member of the
family. It is not in dispute in the present case
that the string the of members of the family
of the petitioner was eight after excluding
the two major sons who were themselves
held to be the tenure holders by the appellate
authority. If strength of the members of the
family was eight, it cannot be disputed that
the petitioner was entitled for additional
land of six hectares. The Prescribed
Authority rightly granted this additional
land, but the appellate authority erroneously
upset that order. The reason for refusing to
grant six hectares of land by the appellate
authority is manifestly erroneous. Once it
was established that the daughters aged
three and five years were members of the
family, it was not at all necessary to
establish that they were not married. It is
really very strange that the daughters of
three and five years of age cannot be
presumed to be unmarried. The State did not
set up any such case, that they were married.
The presumption drawn by the appellate
authority that in the absence of evidence to
establish that the two daughters were not
married they have to be presumed to be
married is wholly erroneous. Neither under
the Hindu Law nor under the Child
Marriage Restraint Act is permissible to
marry a daughter of three to five years old.
If anybody would have claimed that they
were married, the burden lay upon him to
establish that fact. When State of U. P. did
not dispute this fact nor did it lead any
evidence to that effect, the appellate
authority was not right to draw such an
inference.
The result, is, that this writ petition
is allowed and both the judgments of the
appellate authority (IV Additional District
Judge, Deoria) dated 26-7-1975 and 2-21976, so far as they relate to the additional
six hectares land, are hereby quashed. The
Prescribed
Authority
is
directed
to
recalculate to the surplus area after
granting six hectares a land in addition as
granted by the Prescribed Authority on
account of the additional members of the
family
of
the
petitioner.
In
these
circumstances of the case, the parties shall
bear their own costs. The stay order shall
stand discharged.

18. Now, coming to the question
whether the family members are to be seen
on the date of introduction of the amending
act in the Ceiling Act or on the date of
issuance of notice, the aforesaid question
has also been answered by the Coordinate
Bench of this Court in the case of Ram
Chandra (supra). Paragraphs nos. 38, 39 &
40 of the judgement of Ram Chandra
(supra) are reproduced herein-below:-

38. A careful perusal of the
aforesaid provision clearly shows that if the
member in the family exceeds five, the tenure
holder is entitled for additional land
provided that none of such member is a
tenure holder in his/her own right. Similarly,
it also provides that even if there are no
adult sons, but if the strength of the members
of the family is more than five, then the
tenure holder is entitled to additional land
of 2 hectares for each member of the family
subject to a maximum of 6 hectares of
additional land. It is not in dispute in the
present case that the strength of family
members of the petitioner was Eight at the
time when notice was issued to him on
5 All. Kasturi Devi Sheetalaya Pvt. Ltd. & Anr. Vs. The Presiding Officer Debt Recovery
 Tribunal & Anr.
1209
2.11.2000. The petitioner brought
on record the High School pass Certificates
of his three daughters and three sons.
However, the Prescribed Authority and the
Appellate Authority refused to grant benefit
of additional land for each member of the
family in addition to the five members as the
petitioner did not produce relevant extract
of the Family Register and on 8.6.1973 none
of the petitioner's children was born. The
logic applied by the Prescribed Authority
and
the
Appellate
Authority
is
incomprehensible.
According
to
the
respondents, the date of determination of
family members has been taken as 8th June
1973, but the date of determination of
ceiling area has been taken as the date when
the Prescribed Authority was deciding the
case.
39. In my considered opinion even
though the petitioner's family consisted of
only two members i.e. himself and his wife
on 8th June 1973, at the time of issuance of
notice under Section 9, on 2.11.2000, all of
his six children had been born. Three of his
daughters were married but there were at
least three sons who were living with him.
None of them has been shown to be an
independent tenure holder having more than
2 hectares of land by the State respondents,
in their Counter-affidavit. For the purpose
of determination of ceiling area the
petitioner was entitled to 2 additional
hectares for at least one of his sons namely
Shyam Srivastava who was major at the
time.
40. Though this Court is not
convinced with the argument of the learned
counsel for the petitioner regarding the
applicability of the cut-off date of 8.6.1973
for determining ceiling area on the basis of
Section 29 of the Act and holds that the
petitioner was independent tenure holder of
eight plots of land ad-measuring 8.546
hectares
in
villages
Magrapur
and
Baddupur in Tehsil Shahbad District Hardoi
which in irrigated terms came out to be
7.968 hectares; the failure of the learned
Court below to take into account the number
of members of the petitioner's family while
determining the permissible limit of land to
be left with the petitioner cannot be
countenanced.

19. In such view of the fact, the
reason assigned by the appellate authority
that the number of family members is to be
seen on the date of introduction of the
amending act and not on the date of notice
under Section 10 (2) of the Act, 1960 is
erroneous and cannot be sustained in law,
and is accordingly set aside.

20. Thus, for the reasons given
above, the order dated 23.11.1983 passed by
the Prescribed Authority (Ceiling), Tehsil
Puwaya, District Shahjahanpur and the
order dated 16.01.1984 passed by the
Additional District Judge, Shahjahanpur are
hereby set aside.

21. Consequently, the writ petition
is allowed with no order as to costs.
----------
(2024) 5 ILRA 1209
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-C No. 18388 of 2024

Kasturi Devi Sheetalaya Pvt. Ltd. & Anr.
 ...Petitioners
Versus
The
Presiding
Officer
Debt
Recovery
Tribunal & Anr. ...Opp. Parties

Counsel for the Petitioners: