DAITARI NAIK Vs. TAHASILDAR CUM REVENUE OFFICER

JUDGEMENT

(1.) Both these writ applications arise out of a common revisional order and involve common question of fact and law and were therefore heard together and are being disposed of by this common judgment. The determination of ceiling in a ceiling surplus proceeding under the Orissa Land Reforms Act by the statutory authorities is under challenge in these writ applications.

(2.) ONE Nrupa Naik had five sons. Jagabandhu, Radhamohan, Bada Duryodhan, Sana Duryodhan and Arjuna. Jagabandhu the eldest son had predeceased Nrupa Naik and Nrupa Naik also died prior to the commencement of the Ceiling Chapter under the Orissa Land Reforms Act (hereinafter referred to as 'the Act'). Jagabandhu's branch is represented by his son Daitari (petitioner No. 1). Radhamohan's branch is represented by his son Jadumani (petitioner No. 2). Bada Duryodttan's branch is represented by his son Chinmaya (petitioner No. 3), Sana Duryodhan's branch is represented by his son Pranakrishna (petitioner No. 4) and Arjun is opp. party No. 5 in OJC 169/91 and petitioner in OJC 217/91. The Revenue Officer initiated a suo mow ceiling' proceeding under Section 42 of the Act against the four petitioners . Arjun treating them to be the members of the joint family. The petitioner filed their objection, alleging that five sons of Narupa who were major and married by the appointed date, had been separated since the year 1964 and, therefore, they could not constitute a family The Revenue officer rejected the said objections and came to the conclusion that there had been no partition in the family and, therefore, the five branches were to be treated as the members of one family and as such, were entitled to one ceiling unit. This order of the Revenue Officer is dated 26 -11 -1988. Against the aforesaid order the petitioners carried an appeal which was registered as OLR Appeal No. 9/89. The appellate authority by his judgment dated 8 -8 -1989 set aside the order of the Revenue Officer and remanded the matter to him for fresh disposal after consultation with the local committee to find out whether there had been any separation in the family as major married sons prior to the appointed date. After the matter went back on remand, the Revenue Officer re -disposed of the ceiling proceeding by order dated 5 -4 -1:90. annexed as Annexure coming to the conclusion that the land -holders constituted one family as they were recorded jointly in 1978 -7d. The aforesaid order of the Revenue Officer under Annexure -1 was assailed in appeal and the petitioners tiled OLR Appeal No. 2/90 and opp. party No. 5 filed OLR Appeal No. 3/90. Both these appeals ware dismissed by the appellate authority by order dated 6 -10 -1990 as per Annexures - 2/a and 2/b. Two revision cases were preferred against the same, one at the instance of the petitioners which was registered as OLR Revision Case No. 17/90 and the other by oop. party No. 5 which was registered as OLR Revision Case No. 19/90. The revisional authority came to the conclusion that neither Nrupa nor his wife were alive oh the appointed date but all the same five branches could be treated to be a body of individuals and as such, a person under Section 37(,a) and, there - fore, were entitled to an area of ten standard acres, that is, one ceiling unit. The orders of the Revisional authority which have been annexed as Annexure -3/a and 3/b are being challenged in the two writ applications.

(3.) MR . Mishra then contends that the sons of Nrupa cannot constitute a family under Section 37(b) of the Act and therefore, the determination of ceiling surplus made by the authorities treating them to be the members of the family is erroneous. 'Family' as defined in Section 37(b) is an artificial definition and is not the same as a joint Hindu family and, therefore, the sons of Nrupa, Nrupa and his wife having died prior to the commencement of the Ceiling Chapter under the Act, cannot constitute a family under Section 37(b) of the Act But even if they do not constitute a family as defined in Section 37(b) of the Act, the further question that arises for consideration is whether all of them together could be held to be a body of individuals and, therefore, a person, under Section 37(a) of the Act, since the finding is that there hao been no partition/separation amongst the sons of Nrupa. Mr. Mishra vehemently argues that in view of the Bench decision of this Court in 62(1986) CLT 116 : Surandra Prasad Parida v. State of Orissa and Ors.) the conclusion that the brothers constitute a body of individuals is wholly erroneous , and, therefore, must be set aside. At the outset, it may be noticed that in these writ applications the petitioners have not assailed the conclusion of the re -visional forum that the sons of Nrupa constitute a body of individuals and as such, a person under Section 37(a) of the Act. It is too well -settled that a point which had not been taken in the writ petition is not to be ordinarily permitted to be urged at the time of hearing, but since this is a pure question of law arising out of the findings of the tribunal we permitted Mr. Mishra to urge the sons in the interest of justice. The question, therefore, falls for our consideration as to whether sons of Nrupa who are brothers can constitute a body of individuals and, therefore, a person under Section 37(a) of the Act. The Division Bench decision of this Court in 62(1986) CLT 116 no dobt supports Mr. Mishra's contention to a great extent inasmuch as it was held 'xxx where the members of a family as understood in common parlance hold land by inheritance, succession or by acquisition, they cannot be treated as an association or a body of individuals but as a 'family ' or 'families', as the case may be, within the purview of Section 37(b). ' This conclusion has been arrived at on the basis of the ratio of the decision of the Supreme Court in the case of Commissioner of Income Tax v. Lakshmandas Devdas : [1937]5ITR584(Bom) and Commissioner of Income Tax, Bombay North, Kutch and Saurashtra v. Smt. Indira Balkrishna (AIR 1960 SC 1172) the learned Judges also quoted a passage from the judgment of Chinnappa Reddy, J. in M/s. Deoan Wine and. General Stores, Hyderabad v. Commissioner of Income Tax,' Andhra Pradesh 1973 Tax L. R. 196. But while ultimately recording the conclusion they have failed to apply the ratio of the judgment of Chinnappa Reddy, J, . This question was again considered by another Bench decision of this Court in 69(1990) CLT 245 (Mohanlal Kapoor etc. etc. v. State of Orissa represented through the Secretary, Revenue Department, Orissa and Ors. etc. etc) and the learned Judges also took into account the earlier decision of this Court in Surendra Parida's case and in respect of the very observation in Surendra Parida's case on which Mr. Mishra relies it was held : 'In our view, the above observation should not be read as laying down a proposition that members of the family, as is understood in common parlance, cannot form an association or a body of individuals as contemplated under Section 3 (a) of the Act.' The Court indicated the illustrative characteristic features of a body of individuals to be as follows ; '(i) It must be a body capable of holding properties and distributing them for a common purpose, and a common tie. a potential or actual capacity to hold properties would be the minimum requirement; (ii) The dividing line between an 'association of persons' and a 'body of individuals' is that whereas an associations implies a voluntary getting together for a definite purpose, a 'body of inviduals' would be just a body without any common design or intention to get together, but doing something which results is holding property ; (iii) It is a conglomeration of individuals, who happen to have come together with a view to hold property ; and (iv) To constitute a body of individuals 'there must be a conglomeration of individual irrespective of the object which brought them together and of what they do.' The very observation of Chinnappa Reddy, J. in M/s. Oeean Wine and General Store's case which had been quoted in Surendra Parida's case clearly indicates that when a group of persons associate themselves in an income productive activity they become a body of individuals and it must be established that they have combined to engage to such an activity and. that engagement must be an association and that there must be a meeting of minds. In other words, there must be common design to produce income. In a joint Hindu family where there has been no separation and father dies leaving several sons and the sons together cultivate the family property, enjoy the family .property or earn income out of the family property, then even though they cannot constitute a family under the Act but they can be held to have constituted a body of individuals and thereby a person under Section 37(a) of the Act for the purpose of determination of the ceiling. The latter Division Bench decision in Mohan Lai's case rightly distinguished Surendra Parida's case and came to the correct conclusion as to how and when a group of persons can be held to have constituted a body of individuals within the ambit of Section 37(a) of the Act. Mr. P. K. Mishra vehemently argues that since both the decisions are rendered by the Division Bench and they are counter to one another, the matter should be referred to a larger Bench following the law of precedents. But where earlier Division Bench while applying tha ratio of the Supreme Court decision erroneously applied the same to the facts and recorded a conclusion thereon which goes against the ratio of the Supreme Court decision and latter Division Bench rightly clarifies the same it is not necessary for us to refer the matter to a larger Bench. Following the Bench decision of this Court in Mohan Lal's case 69(1990) CLT 243, we are, there - fore, of the view that the sons of late Nrupa could constitute a body of individuals and. therefore, a person under Section 37(a) of the Act for the purpose of determination of ceiling and Mr. Mishra's contention that they cannot constitute a body of individuals is wholly unsustainable.