- (1.)These two appeals are directed against the judgment of a learned single judge of the Allahabad High Court, Lucknow bench, by grant of certificate from the said judgment. The two appeals are filed by the ceiling surplus tenure holder and his wife and one of the dispute was whether there has been a divorce between them as early as in the year 1969.
(2.)After coming into force of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as 'the Act') before the prescribed authority, the tenure holder took a stand that the land recorded in the name of his wife who has already been divorced since 1969 cannot be clubbed. The wife also took a similar stand. Section 3 (7) of the Act defines the expression 'family' in relation to a tenure holder to mean himself or herself and his wife or her husband as the case may be, (other than a judicially separated wife or husband) , minor sons and minor daughters (other than married daughters). Since the prescribed authority was required to determine the ceiling surplus in the hand of the tenure holder, one of the questions for consideration was whether in fact there has been a divorce between the tenure holder and his wife as claimed by them or it was merely a subterfuge to get over the rigours of the provisions of the Ceiling Act. On the basis of materials produced before it, the prescribed authority came to the conclusion that in fact there had been no divorce and the parties adopted divorce attempts for escaping the ceiling law. The said prescribed authority also came to the conclusion that there was no other document excepting the family register kept with the pradhan, where the wife and the husband have been entered separately. In fact the prescribed authority gave due weight to the family register which had been kept with the rural development officer who was the competent authority to issue the family register. Having come to the aforesaid conclusion, the prescribed authority concluded that the land standing in the name of Khatoon Nisa, wife of rahmatullah, the tenure holder, has to be : clubbed with the holding of the tenure holder and his wife as claimed by them or it was merely a subterfuge to get over the rigours of the provisions of the Ceiling Act. On the basis of materials produced before it, the prescribed authority came to the conclusion that in fact there had been no divorce and the parties adopted divorce attempts for escaping the ceiling law. The said prescribed authority also came to the conclusion that there was no other document excepting the family register kept with the pradhan, where the wife and the husband have been entered separately. In fact the prescribed authority gave due weight to the family register which had been kept with the rural development officer who was the competent authority to issue the family register. Having come to the aforesaid conclusion, the prescribed authority concluded that the land standing in the name of Khatoon Nisa, wife of rahmatullah, the tenure holder, has to be : clubbed with the holding of the tenure holder, inasmuch as they come within the definition of the 'family' under section 3 (7) of the Act.
(3.)Being aggrieved by the aforesaid order of the prescribed authority, both Sh. Rahmatullah and his wife, Smt. Khatoon nisa, preferred appeals under section 13 of the Act and the appellate authority affirmed the conclusion arrived at by the prescribed authority and came to the conclusion that there has been no error committed by the prescribed authority in treating the appellant being members of the same family for the purpose of the provisions of the Act. The two appeals thus having been dismissed, the matter was carried to the High Court under Article 226 of the Constitution. The learned judge of the High Court, without being guided by the parameters for exercise of power under Article 226 against an order of an inferior tribunal, went on to examine the issue as to whether there can be a divorce under the Muslim law by uttering three times the word 'talaq' in one sitting and having elaborately delved into the same came to the conclusion that such 'talaq' is unconstitutional and cannot be sustained. Having thus came to the aforesaid conclusion, the court affirmed the conclusion of the prescribed authority under the Ceiling act in the. matter of determination of the surplus land in the hands of the tenure holder. The court having granted certificate against the judgment the appeals came to be filed.