- (1.) THE above writ appeal has been filed against the order of a learned single judge of this Court dated 15.11.1989 in W.P. No. 8150 of 1981, whereunder, the learned single judge has allowed the writ petition filed by the respondent herein, seeking to quash the order of the 1st appellant made in his proceedings dated 7.5.1981, confirming the final statement published under section 12 of Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, Act 58 of 1961, as amended by Act 17 of 1970 (hereinafter referred to as the Act) by the 2nd appellant in the Tamil Nadu Government Gazette dated 13.8.1980.
(2.) NECESSARY and relevant facts for the purpose of appreciation of the claim projected in this appeal, are, that the respondent/Rajeswari is the wife of one Vivekananda Reddiar and they have four children. The respondent (wife) had in her own right, held and extent of 25.15 ordy. acres, equivalent to 13.06 std. acres of land as stridhana property. The head of the family, Vivekananda Reddiar held 15.19 ordy. acres, equivalent to 8.23 std. acres. proceedings were initiated under the Act to determine the ceiling of land in respect of the family, of which Vivekananda Reddiar was the head. The stand taken by the Authorised Officer, as also the land Commissioner in fixing the ceiling for the family and preparing and publishing the final statement was that in as much as the family consisted of six members and a female member is holding land more than 5 standard acres, she is not to be considered as a member of the family, in view of section 5(4) (b)(i) of the Act and in as much as a maximum extent of 10 standard acres had to be allowed to the family member holding stridhana lands in excess of five standard acres, the remaining extent of 3.06 standard acres, out of the holding of the female member, the respondent herein, has to be declared as surplus. The respondent aggrieved against the orders of the 1st appellant herein, confirming the orders or the 2nd appellant, filed the writ petition. The learned single judge has adverted to a decision of a Division Bench of this Court in V. Govindaswami v. State of Tamil Nadu, 1978 (91) L.W. 615, wherein Ramanujam, J speaking for the Division Bench, presided over by Ramaprasada Rao, C.J., in almost identical facts and similar circumstances, held that it was not correct for the Department to treat the wife's holdings as separate unit and on that footing, after deducting 10 standard acres, which she is entitled to hold as stridhana holder, treated the balance as surplus in her hands and allowed the writ petition, applying the ratio laid down therein. Hence, the above writ appeal. Mr.R.Balasubramaniam, learned Special Government Pleader, while reiterating the stand taken before the learned single judge, contended that the construction placed by the learned single judge, on the relevant and relative scope of section 5(1) (a) 5(1)(b) and 5(4)(b) of the Act, was not correct and having regard to the deeming provision engrafted in section 5(4) (b)(i), the wife cannot be treated as a member of the family and no exception could therefore, be taken to the procedure adopted by the authorities below and the ceiling fixed notifying the excess lands in question. The learned counsel invited our attention to the conclusions arrived at by the learned single judge, as also the Division Bench to substantiate his claim. Per contra, Mr.Sivaji, learned counsel for the respondent, contended that the learned single judge committed no error in applying the principles laid down by the Division Bench and the construction placed by the Division Bench on the relevant scope of the provisions in question, cannot be said to be erroneous, warranting the taking of a different view. We have carefully considered the submissions of the learned counsel appearing on either side. The Division Bench judgment squarely applies to the case on hand. The facts involved for consideration by the earlier Division Bench is almost ad idem to the facts that are placed before us in this case for our consideration. We have not been show by any convincing reasons that the earlier Division Bench is wrong in the interpretation placed by it on the scope of the relevant provisions and in the absence of any effective or substantial reasons obliging us to take a different view from the one taken by the earlier Division Bench. We are unable to persuade ourselves to agree with the contention raised by the learned Special Government Pleader on behalf of the Department. The ceiling area in the case of every person, other than an Institution excepted therein and in case of every family consisting of not more than five members, is 15 standard acres as per section 5(1)(a) of the Act. Clause (b) of Sub-section (1) of Section 5 provides that the ceiling area in the case of every family consisting more than five members, subject to the provisions of sub-section 3(a) to 3(c) (4) and (5) and of Chapter VIII, shall be 15 standard acres for every member of the family in excess of five. The effect of the said provision being made subject to sub-section(5) is that the total extent held or deemed to have been held by any family not with standing any thing contained in sub-section (1) or sub-section (4) shall in no case exceed 30 standard acres. Sub-section 5(4) (b), which really cells for our construction reads as follows: 5. (4)(b) where the extent of stridhana land held under clause (a) by any female member of a family consisting of more than five members (1) is 5 or more than 5 standard acres, she shall not be deemed to be a member of that family for the purpose of clause (b) of sub-section (1); or (ii) is less than 5 standard acres, the additional extent of 5 standard acres allowed under Clause (b) of sub-Section (1) shall be reduced by the same extent as the extent of stridhana land so held; Strong reliance is placed for the Department on Clause (b)(i) of sub-section (4) of section 5, to contend that where the extent of stridhana land held under Clause (a) of sub-section (4) by any family member of a family consisting of more than five members is 5 or more than 5, she shall not be deemed to be a member of the family. We are unable to agree with the stand taken by the appellant as being in conformity with the very provision in Clause (b) (i) of sub-section (4) of section 5. If the said provision has been enacted without the words for the purposes of clause (b) of sub-section (1) atleast there is some justification or scope for contending as to the effect of a deeming provision engrafted in the said clause so as not to treat the female member holding stridhana lands in excess of 5 standard acreas to be not a member of that family generally. The legislature was careful enough to disclose its mind by limiting the scope of the deeming provision in the provision with which we are considered to be only for the purpose of clause (b) of sub-section (1), which provided for the enhanced ceiling area in the case of every family consisting of more than five members entitling to hold an additional five standard acres for every such member of the family is excess of five. Consequently, the effect of the 'deeming' engrafted in clause (b) of sub-section (4) of section 5 is that it is not given to the family of which the female member holding stridhana land in excess of 10 or more standard acres, to claim to be a constituent member of the family to avail of the benefit of additional extent of 5 acres rendered possible to be held for every member of the family in excess of five and not for the purpose of fixing a ceiling on the holding in respect of the family under Clause (a) of sub-section (1) of sec.5 or to treat the female member holding stridhana land as a distinct and separate unit all together with a fixed ceiling area of only 10 standard acres of Stridhana land for her. The fallacy underlying the stand taken for the Department is in the attempt on their part to extent the deeming provision even beyond the specified and avowed purpose of such deeming by the Legislature itself, which in our view, is not permissible for them to do. Consequently, we see no merit in the appeal and it is dismissed. However, there will be no order as to costs in this appeal. ;