STATE OF U P Vs. DHAN SINGH

JUDGEMENT

(1.) DHAN Singh res pondent No. 1, was the tenure-holder of a large area of land. A notice under Sec tion 10 of the U. P. Imposition of Ceiling on Land Holdings Act, 1960, was served upon him. He filed objections claiming that his family consisted of seven members. He also claimed certain exemptions. By the time the objections came to be decided his family had increased to nine members and he claim ed that the ceiling area should be calculated on the basis of nine members in his family. The Prescribed Authority accepted his con tention and calculated the ceiling area at 64 acres, but in calculating the surplus area the Prescribed Authority committed some error. Dhan Singh preferred an appeal for correct ing the error in the calculation of the surplus area. In the appeal it was urged on behalf of the State Government that the child born subsequent to the coming into force of the Act could not be taken into account in cal culating the members of the family. This contention was accepted by the Appellate Authority and it held that on the date the Act came into force, which is the relevant date, the family consisted of only seven members and was, therefore, entitled to a ceiling area of 56 acres only. It further held that the surplus area calculated on this basis came to something more than what had been declared by the Prescribed Authority and, therefore, Dhan Singh was not really aggrieved by the order of the Prescribed Au thority. It, accordingly dismissed the appeal. Thereupon a writ petition was filed before this Court.

(2.) IT appears that out of the two chil dren born after the coming into force of the Act, one was a son who was in embryo on the date the Act came into force. It was urged before the learned Single Judge that this son should be deemed to have been in existence on the date the Act came into force and should be taken into account in deter mining the family. The learned Single Judge accepted this contention and held that a child in the womb was a child in existence on the date the Act came into force. He, accordingly, held that the family consisted of eight members and was entitled to a ceil ing area of 64 acres. On this basis the sur plus area was found to have been wrongly calculated and the learned Single Judge re manded the case to the Appellate Authority for correction of the mistake. The State Government has now preferred this appeal against the judgment of the learned Single Judge.

(3.) HOW the ceiling area is to be cal culated is set down in Section 4 of the Act. The relevant part of sub- section (2) of Sec tion 4 with which we are concerned reads thus:-