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Nirmalabai and ors. Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 2071 of 1977
Judge
Reported inAIR1985Bom260
ActsMaharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 3(2), 10(1) and 491
AppellantNirmalabai and ors.
RespondentState of Maharashtra
Appellant AdvocateS.N. Kherdekar, Adv.
Respondent AdvocateM.A. Garud, Asst. Govt. Pleader
Excerpt:
a) it was adjudged that the husband and the wife are treated as a 'family unit' within the meaning of section 4(1) of the maharashtra agricultural lands (ceiling on holdings) act, 1961. ; b) the case discussed over the determination of ceiling area of family unit- it was held that the transfer of land made by registered sale deed of 1.12.1971 was hit by provisions of section 10(1) of the maharashtra agricultural lands (ceiling on holdings) act, 1961 and such land could be included in determining ceiling area of family unit. ; c) the case discussed over the determination of surplus land- a father after he filed the return gave parcel of land to his major sons by way of will- it was held that the will could not be taken into consideration while determining surplus land in view of section.....order1. the judgments in this writ petition and some other writ petitions were kept reserved to await the decision of the division bench of this court on a reference made by the learned single judge of this court (padhye, j. as then was) in special civil appln. no. 1514 of 1977) in regard to the ration of the decision of another learned single judge of this court (v.s. deshpande, j. as he then was) in narayanibai v. state of maharashtra, 1976 mah lj 865. the division bench has now answered the reference in the above special civil application by its judgment dated 17-9-1984. i am, therefore, delivering the judgment in this case in the light of the aforesaid judgment to which i will refer while considering the ration of the decision in narayanibai case upon which heavy reliance is placed in.....
Judgment:
ORDER

1. The judgments in this writ petition and some other writ petitions were kept reserved to await the decision of the Division Bench of this Court on a reference made by the learned single Judge of this Court (Padhye, J. as then was) in Special Civil Appln. No. 1514 of 1977) in regard to the ration of the decision of another learned single judge of this Court (V.S. Deshpande, J. as he then was) in Narayanibai v. State of Maharashtra, 1976 Mah LJ 865. The Division Bench has now answered the reference in the above special civil application by its judgment dated 17-9-1984. I am, therefore, delivering the judgment in this case in the light of the aforesaid judgment to which I will refer while considering the ration of the decision in Narayanibai case upon which heavy reliance is placed in this petition on behalf of the petitioners.

2. In this writ petition, the petitioners impugn the orders under the Maharashtra Agricultural Lands (Ceiling and Holdings) Act, 1961 ( for short 'Ceiling Act'), determining the surplus land of the family unit consisting of one Motilal Mohabal and his wife Nirmalabai, the petitioner No. 1 in the Petition. The landholder Motilal filed a return under Section 12 of the Ceiling Act showing 95.90 acres of land being held by him and his wife Smt. Nirmalabai as on 26-9-1970. The land separately held by Motilal and his wife was as under :

Motilal held 48.47 acres and his wife held 47.43 acres. After filing, the return motilal died on 26-2-1976.

2A. The learned counsel for the petitioners Shir. S.N. Kherdekar, Advocate, has raised the following contentions in this petition :

(i) The provisions of the Ceiling Act infringe several fundamental rights of the petitioner and is, therefore liable to be struck down ;

(ii) No family unit exists in the instant case as defined in the Explanation to section 4(1) of the Ceiling Act since there are no minor sons to constitute the family unit, as contemplated by clause (a) of the said Explanation.

(iii) The landholder Motilal transferred 10 acres of land from S.No. 135/2 bya registered sale deed on 1-12-1971, which is not hit by Section 10(1)(a) of the Ceiling Act ;

(iv) The will dated 22-1-1972 executed by Motilal bequeathing certain lands in favour of his major sons and his wife Nirmalabai is not a 'transfer' within the meaning of Section 10 of the Ceiling Act.

The Petitioners by filing an application for amendment dated 25-8-1983, at the time of hearing have also sought to raise certain additional grounds.

3. As regards the first contention regarding constitutionality of the Ceiling Act on the ground that it infringes several fundamental rights of the petitioners, the said contention need not detain me any more because it stands concluded by the decision of the Supreme Court in Wamanroa v. Union of India, : AIR1981SC271 . The said constitutional challenge, therefore, fails and is rejected.

4. The second contention of the petitioners that there is no family unit as contemplated by the Explanation to Section 4(1) of the Ceiling Act in the instant case is merely to be stated to be rejected. The argument is that in clause (a) of the Explanation to Section 4(1) of the Ceiling Act, the expression 'if any' governs the last clause only viz. 'minor unmarried daughters' and, therefore, reading the word 'and' conjunctively, there must be a person, his spouse (or more than one spouse) and their minor sons existing to constitute a family unit within the meaning of clause (a) of Explanation to Section 4(1) of the Act, which admittedly applies in the instant case.

5. Reliance is placed for the above contention upon the decision of this Court in State of Maharashtra v. Anubai Keshaorao, 1982 Mah LJ 74. The above decision of this Court relates to the construction of clause (b) in the Explanation to Section 4(1) of the Ceiling Act. Contrasting it with clause (a) of the Explanation to Section 4(1) of the Ceiling Act, this Court held that the word 'and ' in clause (b) must be read conjunctively and it is not therefore enough that there are surviving spouse or spouses but there must be in existence minor sons and minor unmarried daughters to constitute a family unit as contemplated by the aforesaid clause since the expression 'if any' which occurs in clause (a) is not present in clause (b) of the Explanation. This Court in terms held that the construction of clause (a) of the Explanation to Section 4(1) is different from its clause (b) and the person and his spouse can constitute a family unit under clause (a). The above view on clause (a) of the Explanation to Section 4(1) is also supported by the latest decision of the Supreme Court in State of Maharashtra v. Vysendra, : [1983]3SCR1 in which the husband and the wife are treated as a 'family unit' within the meaning of the aforesaid provision under the Ceiling Act. The contention that the said Motilal and his wife did not constitute by themselves a family unit, is, therefore, rejected.

6. The third question which is the most important question raised on merits in the instant petition is whether the transfer of 10 acres of land from S.No. 135/2 by a registered sale deed dated 1-12-1971 made by the land holder Motilal is hit by Section 10(1)(a) of the Ceiling Act or not. Before going into this question, it is necessary to refer to certain relevant Amending Act, which introduced in the original Ceiling Act the important amendments in regard to the lowering of Ceiling limit and also regard to the other relevant and connected matters.

7. It is by the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1972, which is Act No. 21 of 1975 (for short the Amending Act,. 1972) that the important amendments were introduced in the original Ceiling Act relating to lowering of the Ceiling limit and the creation of the concept of the 'family unit' for the purpose of determining the ceiling a limit upon the agricultural land held by it. In fact, Chapters II and III of the original Ceiling Act were completely replaced by the Amending Act, 1972. It is at this stage pertinent to notice that on 26-9-1970, there was a meeting of the Chief Ministers of all the States in Delhi, in which it was decided to lower the ceiling limit under the Ceiling Laws of the States. It is Pursuant to this decision of the Chief Ministers that the Bill for the Amending Act, 1972 (Bill No. LVI of 1972) was introduced in the State Assembly in 1972 for amending the original Ceiling Act. The artificial concept of the family unit was introduced to plug the loopholes in the old Ceiling Act under which to save the land from being declared as surplus, artificial transfers were effected in the name of the near relations such as the spouses, the minor sons and/or minor unmarried daughters.

8. However, the above Bill introducing the Amending Act, 1972 remained pending in the Assembly for along time and the Act, which emerged as Act No. 21 of 1975 was actually passed and assented to by the president of India on 7-8-1975. Still, the Act did not come into force immediately because by Section 1(2) of the Amending Act, 1972 it was necessary for the State Government to issue a notification in the official Gazette to bring it into force. Accordingly, the State Government issued a notification on 19-9-1975 under Section 1(2) of the Amending Act, 1972, bringing it into force with effect from that date. The Ceiling limit was lowered to 54 acres by the Amending Act, 1972. However the important provision from our point of view in the Amending Act, 1972 is the introduction of the concept of 'family unit' through the new section 4 introduced by the above Act, because under Section 3 of the above Act, a Ceiling limit was imposed upon the 'holding' of the 'family unit' which was defined in the Explanation to Section 4(1) of the above Act.

9. At this stage, it is material to notice that there was in the original Amending Act, 1972 (Act No. 21 of 1975) a proviso to Section 4(1) by which any separate land held and possessed by any person before 26-9-1970 was not to be include in the holding of the family unit. Section 4(1) with its provisions as it then exists in the Amending Act, 1972 is reproduced below for ready reference ;

'4. Land held by family unit - (1) All land held by each member of a family unit whether jointly or separately shall for the purpose of determining the ceiling area of the family unit, be deemed to be held by the family unit. ;

Provided that, if any person, who is member of a family unit holds land which is possessed separately before the 26th day of September 1970, as a result of acquisition by testamentary disposition or devolution on death or by operation of law or is acquired as a result of a transfer or partition effected prior to the 26th day of September 1970, then for determining the surplus land in any holding which is in excess of the ceiling area on or before the commencement date, such land shall not be deemed to be held by the family unit'.

'Transfer' means transfer by act of parties whether by sale, gift, mortgage with possession, exchange, lease or any other disposition made inter vivos, and includes transfer made under decree or order of a Court, Tribunal or Authority, and 'partition' has the same meaning as in Section 11.

Explanation. - A 'family unit' means -

(a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any, or

(b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters ; or

(c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses'.

10. The next relevant amendment is by the Amending Act No. 47 of 1975 by which the Amending Act 1972, was amended. The said Amending Act No. 47 of 1975 was assented to by the President on 19-9-1975. This Amending Act No. 47 of 1975 also required a notification of the State Government for being into force. However, the said notification was issued by the State Government immediately on 20-9-1975 to bring the said Amending Act No. 47 of 1975 into force from the said date. It is worthwhile to notice that by this Amending Act No. 47 of 1975, the proviso to section 4(1) of the Ceiling Act which was introduced by the Amending Act 1972,coming into force actually on 19-9-1975, was deleted. In other words, the proviso to Section 4(1) has its life only for one day.

11. Another Amending Act which needs to be noticed is the Amending Act No. 2 of 1976, which replaced the Ordinance No. 17 of 1975. By this Amending Act No. 2 of 1976, Section 2(6)(a) introduced originally by the Amending Act, 1972, was substitute. By the Amending Act, 1972, the commencement date was defined in Section 2 (6)(a) to mean the date on which the Amending Act, 1972, came into force. At this stage, it must be made clear that the expression 'Amending Act, 1972' is also defined in Section 2(3A) to mean the 'Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amending Act, 1972' i.e. the Amending Act No. 21 of 1975. By the aforesaid Amending Act 2 of 1976,the 'commencement date' was changed from the date of enforcement of the Amending Act 1972 to 2-10-1975 by amending the definition of the expression 'commencement date'. The objects and reasons of the Amending Act No. 2 show that the commencement date is changed to grant sufficient time to the land holders to file their returns.

12. Section 3(1) of the Ceiling Act enacts a prohibition against any person or any family unit on holding land after the commencement date i.e. 2-10-1975 in excess of the ceiling area as determined in the manner provided in the said Act, Section 3(2) of the Ceiling Act provides that all land held by a person, or as the case may be, a deemed to be surplus land which shall be dealt with under the Ceiling Act in the manner provided for surplus land. Section 4 defines holding of the 'family unit' Section 5 deals with the ceiling areas. The ceiling area relevant for our purpose as prescribed in the Ceiling Act is 54 acres. Section 8 of the Ceiling Act enacts a prohibition against the right of the person or as the case may be the right of the members of the family unit holding land in excess of the ceiling area to transfer after the commencement date any land until the land in excess of the ceiling area is determined. Section 9 enacts a similar prohibition but in respect of the acquisition of land after the commencement date.

13. Section 10(1), which is material for the purpose of the contention raised in this petition provides that in calculating the ceiling area which any person or any family unit is entitled to hold, any land transferred by such person or any member of such family unit in the manner referred to in clause (a) and 9b) thereof, has to be taken into consideration and the land exceeding the ceiling area so calculated is deemed to be in excess of the ceiling area for that holding notwithstanding that the land remaining with hik or with the family unit may not in fact be in excess of the ceiling area. Clause (b) of Section 10(1) relates to transfers of land in contravention of Section 8. Clause (a) of Section 10(1), with which this petition concerned, covers transfers between the period from 26-9-1970 to the commencement date i.e. 2-10-1975 made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972. It is further provided in Section 10(1) that all transfers made after 26-9-1970 but before the commencement date shall be deemed (unless contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972. A presumption is thus created about the transfers being in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, with the result that the burden is shifted upon the persons or the members of the family unit concerned to prove that the transfers made by them are not made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972.

14. The learned counsel for the petitioner has urged before me relying upon the decision of this Court in Narayanibasi's case 1976 Mah LJ 865) cited supra, that since Motilalji held land actually below the ceiling limit on the date the transfer was made, the transfer in question made by him on 1-12-1971 was not hit by Section 10(1)(a) of the Ceiling Act. In reply it is urged on behalf of the State that the ratio of the decision in Narayanibai's case is not applicable in the case where there was in existence a family unit on the commencement date i.e. 2-10-1975. To appreciate the rival contentions, it would be necessary to consider the facts in Narayanibai's case and the decision thereon by this Court.

15. It can be seen from the facts in Narayanibai's case 1976 Mah LJ 865 that on the commencement date i.e. 2-10-1975, no family unit was in existence as Narayanibai's husband had already died. Narayanibai was the holder of 55 acres 24 gunthas of land on 26-9-1970. Out of it, 4 acres 39 gs. Were not pot Kharab land. On 10-11-1971, she sold 25 acres and 10 gs. From her aforesaid holding. Her husband, who was alive at that time, died thereafter on 10-1-1975. However, under his will dated 15-2-1975, Narayanibai received 35 acres and 4 gs of land belonging to him. She was thus a surplus holder under Section 3 of the Ceiling Act as amended by the Amending Act, 1972 on the commencement date i.e. 2-10-1975 as she held in all 65 acres and 18 gs. Of land after excluding the land sold by her on 10-11-1971 and adding the land which she got under the will. Of the 65 acres 18gs. Of land, 8 acres 22 gs. Of land was pot Kharab and therefore on the commencement date she was the holder of 57 acres and 36 gs. Of land. However, the Ceiling Authorities ignored the sale made by her on 10-11-1971 and after adding the land sold by her held that she was the holder of land to the extend of 77 acres and 15 gs. And accordingly they determined her surplus land as 23 acres and 15 gs. By their impugned orders.

16. In the above set of facts, the learned counsel for the Narayanibai urged that since Narayanibai held land below the ceiling limit of 54 acres on the date of transfer on 10-11-1971 effected by her, the said transfer was not within the mischief of Section 10(1) of the Ceiling Act. In reply to the said contention, it was urged on behalf of the State that since the husband of Narayanibai was alive on the date of transfer and also held the land on that date, the total land belonging to husband and wife was in excess of the ceiling limit. The submission was that both of them being alive, both together must be deemed to have held that lands as members of the family unit, on 10-11-1971. Rejecting the said contention on behalf of the State, in para 5 of the report the leaned Judge in Narayanibai's case 1976 Mah LJ 865 held that the expression 'family unit' is referable to the family unit which existed on or after 2-10-1975 i.e. the commencement dated and not group of persons like the petitioner and her deceased husband, who could be said to have constituted the family unit, as defined under S. 4(1) on the date of transfer but prior to 2-10-1975. The following observations in para 5 of the report are relevant and are reproduced below :

'It is obvious that when Section 10 seeks to invalidate transfer by person or a member of a family unit even to a limited extend, if only refers to a member of the family unit which is prohibited from holding land in excess of the ceiling are and Section 3 of the Act and 'any person or a member of a family unit' can only have reference in the context to holders as such persons or family units who are in existence on the commencement date, namely 2-10-1975.'

17. It is thus clear that in Narayanibai's case, 1976 Mah LJ 865 there was no family unit in existence on 2-10-1975 because the husband of Narayanibai had already died and the ceiling limit was determined on the basis of the land held by her individually on 2-10-1975 or on the date of filing the return thereafter. The question whether in a case where there was in existence a family unit on 2-10-1975, Section 10(1) would apply if any of the members of the family unit held land less than the ceiling limit on the date of transfer was not before the learned single Judge in that case. As held by the division bench of this court in para 10 of the judgment in Special Civil Appln. No. 1514 of 1977, cited supra, the decision must be read in the background of the essential facts and the ratio decidendi in Narayanibai's case cannot apply to a case where there was in existence a family unit on 2-10-1975 as also held by the Division Bench in the Judgment cited supra. In the instant family unit, consisting of Motilalji and his wife of the commencement date i.e. 2-10-1975 and, therefore, the ration of the decision in Narayanibai's case is not applicable to the facts in the instant case.

18. However, the argument advanced is that since Motilalji, the husband of the petitioner held land below the ceiling limit on 26-9-1970, the provisions of Section 10(1) are not attracted in this case. The submission is that the Amending Act 1972 before it was amended by the Act No. 47 of 1975, contained a proviso to Section 4(1) by which any land held separately by any member of a family unit before 26-9-1970 could not be clubbed in determining the land held by the family unit as provided in Section 4(1). As already stated, the said proviso was deleted by the Act No. 47 of 1975, which came into force a day later on 20-9-1975. Thus, Section 4(1) as it stood on 2-10-1975 did not contain the aforesaid proviso under which any land held separately by any member of the family unit before 26-9-1970 was not liable to be clubbed in determining the land held by the family unit. It is this Section 4(1) whose proviso was deleted by Act No. 47 of 1975 which would be applicable on or after 2-10-1975 to determine in the instant case the ceiling area of the family unit under Section 3 read with Section 10(1) of the Ceiling Act. It is not in dispute that if the land held by Motilalji and his wife is clubbed together, it would be in excess of the ceiling limit of 54 acres.

19. The above view taken by me finds support from the decision of the Supreme Court in State of Maharashtra v. Vysasendra, : [1983]3SCR1 rendered on Section 4(1) of the Ceiling Act. Briefly, the facts in this case are that there was a family unit of the husband and wife in the said case. The return filed by the husband under Section 12 showed certain lands held by his wife as per separate property, the total holding of both clubbed together exceeded the ceiling area. Before the Additional Commissioner, Aurangabad, in the proceedings initiated suo motu, it was contended by the husband that an area of 17 acres and 27 gs. Which was sold by his wife after the notified date was wrongly included in the family unit on the basis that the sale was mala fide and was not supported necessity. The Additional Commissioner, Aurangabad remanded the case for fresh inquiry into the question as to whether the sale of land effected by the respondent's wife after the notified date was supported by legal necessity. In the writ petition in the High Court, it was alleged that the land sold by the wife was a separate property and the scope of the remand could not be to enquire into the question as to whether it was her separate property or not. The contention was accepted by the High Court.

20. In the above case, in the Supreme Court, reliance was placed upon the provisions of Section 4 of the Ceiling Act to show that even the separate property including land which is transferred by the wife is covered thereunder as the land of the family unit. The relevant observations of the Supreme Court in para 6 of the report at page 633 are reproduced below :

' It is clear from these provisions that all land held by each member of the family unit, whether jointly or separately, is to be deemed to be held by the family unit, for the purpose of the determining the ceiling are which the family unit may retain ................ The circumstances that the land held by a constituent member of the family unit is separate property or sridhan property is a matter of no consequence whatsoever for the purpose of determining the ceiling are which the family unit can retain. The respondent, his wife and their minor sons and minor unmarried daughters, if any, are all constituent members of the family unit and all the lands held by them have to be pooled together for the purpose of determining the ceiling area which is permissible to the family unit. The nature or character of their interest in the land held by them is irrelevant for computing the ceiling area which the family unit may retain. The High Court was, therefore, in error in directing the Tribunal to inquire into the question as to whether the land which stood in the name of the respondents's wife and which was sold by her was her personal or separate property. Assuming it was so, it is still liable to be aggregated with the land held by the respondent.'

21. It is clear from the aforesaid decision of the Supreme Court that the land which is transferred by the respondent's wife after the notified date out of her alleged separate property has to be aggregated with the land held by the respondents in view of Section 4 of the Ceiling Act to determine the total holding of the family unit as pointed out in Section 4 of the Act, which as per Section 3(1) of the Act is necessary to be taken into consideration to find out whether the family unit after the commencement date i.e. after 2-10-9-1975 holds land in excess of the ceiling area. In view of this judgement, the land transferred by Motilal by the registered sale deed dated 1-12-1971 has to be included in the total holdings of the family unit for the purpose of determining the surplus land under the Act.

22. Reliance is, however, placed on behalf of the petitioners upon the decision of Padhye J. (as he then was) in Shrawan v. State of Maharashtra in Writ Petn. No. 2914 of 1976 decided on 25-8-1981. The view taken in the said decision is no more a good law in view of the decision of the Division Bench of this Court in the aforesaid Writ Petition No. 1514 of 1977. In para 15 of the judgment, the Division Bench, while considering the ration of the decision in Shrawan's case held that the ratio of Narayanibai's case 1976 Mah LJ 865 has not been correctly understood in the aforesaid decision. It is pointed out by the Division Bench in the above para that Narayanibai's case is not applicable in a case in which there is a family unit in existence on 2-10-1975. The Division Bench also held that in Narayanibai's case it is not held that any land separately possessed by a member of a family unit on 26-9-1970 could not be deemed to be held by the family unit for determining the surplus land as wrongly held in Shrawan's case relying upon Narayanibai's case in which in para 5 the learned Judge observed that Section 10 contemplates the family unit not as in Section 4(1) as provided by Act No. 47 of 1975 after deleting proviso to the said section but as in the original Amending Act 1972 prior to the deletion of the proviso to Section 4(1). It was also held by the Division Bench in the decision cited supra that the reference in para 5 of the decision in Narayanibai's case to the proviso to Section 4(1) as it appeared in the Amending Act 1972 and the further observation therein that it was only when the proviso was deleted by Act No. 47 of 1975 that the land covered by the proviso became liable to be included into the word 'family unit' were mere recitals of fact and were not the basis of the decision in Narayanibai's case. There is, therefore, no merit in the contention raised on behalf of the petitioner that the land held by Motilalji prior to 26-9-1970 could not be clubbed in the holding of the family unit in view of the proviso in the Amending Act, 1972 as is existed prior to deletion of the proviso to Section 4(1) and that considering, therefore, his separate holding which was below the ceiling limit, the sale effected by him on 1-12-1971 should be excluded from his total holding in view of the decision in Narayanibai's case. The said contention, therefore, is rejected.

23. The petitioners have challenged the finding of the ceiling authorities in regard to the transfer of 10 acres of land only on the ground that the said transfer is valid because Motilalji held land below the ceiling area on the date of transfer. No other ground is raised to challenge the said finding. Therefore, once it is held that the said transfer is within the mischief of Section 10(1)(a) of the Act, the presumption that it is made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, operates since no effort is made to dislodge the same in the instant case. As a result, it must be held that the transfer of 10 acres of land from S. No. 135/2 made by Motilalji by the registered sale deed dated 1-12-1971 is hit by the provisions of Section 10(1) and the learned Ceiling Authorities were right in including the said area in determining the ceiling are of the family unit consisting of Motilalji and his wife Narayanibai,, the petitioner No. 1 in the instant case.

24. The next contention raised on behalf of the petitioners is that since Motilalji died in 26-2-1976, after the filing of the return and had made will giving parcel of land to his major sons, the same cannot to taken into consideration while determining the surplus land. The answer to this contention raised by the petitioner is given the Section 3(2) of the Ceiling Act, in which it is provided that in determining the surplus land from the holding of any person, or as the case may be of a family unit, the fact that the person or the member of the family unit has died on after the commencement date or any date subsequent to the date on which the holding exceeds the ceiling area but before the declaration of surplus land is made in respect of that holding shall be ignored ; and accordingly the surplus land shall be determined as if that person, or as the case may be, the member of a family unit had not died. In view of the clear provision of Section 3(2) the will made, if any, by Motilalji in favour of his major sons has no relevance in determining the surplus land belonging to the family unit in the instant case. The above contention on behalf of the petitioners, therefore, fails and it rejected. Even prior to this provision in Section 3(2) which was introduced by the Amending Act 1972, the view taken by the Supreme Court in regard to the old Ceiling Act 1972 is that the death of the surplus holder after the filing of the return would have no effect whatsoever on the extent of the surplus land to be declared under the said Act 9See Bhikoba Shankar Dhumal (dead) by LRs v. Mohanlal Punamchand, : [1982]3SCR218

25. At the time of hearing of the writ petition on 25-8-1983, the petitioners had moved an application for amendment in which the petitioners wanted to raise two grounds. One ground related to the challenge to the constitutionality of the Act on the ground that in infringes Article 300-A of the Constitution of India. The second ground related o the decision of the S.L.D.T. being without jurisdiction on the ground that the Chairman of the S.L.D.T alone decided the case without waiting for half an hour for the members to come, as required by proviso to Section 2(a)(s) of the Ceiling Act. After perusal of the original record, it was found that one member was present and had signed the decision. This ground raised, by way of an amendment, therefore, did not survive and was not pressed.

26. As regards the proposed amendment, regarding the challenge on the basis of Article 300-A of the Constitution, it has to be noted that Article 300-A was introduced in the 1978. It is thus part of the Constitution since then. It was open to the petitioners, therefore, to include at the time of hearing of this petition after six years from the date of its filing that the petitioners seek to raise this challenge. The proposed amendment is obviously intended to delay these proceedings. In these circumstances, in may writ jurisdiction. I do not consider it just and proper to allow the petitioners to raise this ground at this very late stage. Hence the application for amendment filed on 25-8-1983 is rejected. Even otherwise, Article 300-A is of no assistance in the facts of this case because it was not in existence even at the time when the appeal was decided in this case on 6-9-1977.

27. In the result, the writ petition fails and is dismissed Rule is discharged. There will, however, be no order as to costs of the instant petition.

28. Petition dismissed.


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