Page 1 REPORTABLE

Corrected

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.

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Page 2 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

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Page 3 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

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Page 4 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.

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Page 5 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

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Page 6 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 24

th

day of January, 1971, could hold more than

two units of permissible area?

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Page 7 8.Mr. Suryanarayana Singh, learned Sr. AAG appearing for

the State of H.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. Suryanarayana further submitted

that it is an admitted case of both the parties that on 24

th

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Page 8 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

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Page 9 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

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Page 10 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)

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Page 11 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

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Page 12 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

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Page 13 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.

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Page 14 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:

(1)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

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Page 15 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.

(2)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.

(3)If such person fails to furnish the declaration, the

provisions of (Section 9) shall apply.

(4)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.

15

Page 16 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

16

Page 17 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.

17

Page 18 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

18

Page 19 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.

19

Page 20 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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