Shelat, J. - (1.) The appellants are members of a Hindu undivided family of which the first appellant is the Karta. Prior to August 21, 1956 the family owned 64.35 standard acres of land in village Kurali, District Patiala. The land stood in the revenue records in the name of the first appellant. On December 23, 1957, the first appellant transferred 26 standard acres to one Babu Singh by a registered deed. According to them, they had planted an orchard in 10 acres of land. Their contention was that the said 26 standard acres and the said 10 standard acres could not be taken into account while ascertaining surplus land under the Pepsu Tenancy and Agricultural Lands Act, 13 of 1955. Both these claims were rejected by the authorities. By his order dated January 20, 1961, respondent No. 3 declared 34.35 standard acres out of the said 64.35 standard acres as surplus land. The appeal filed by the appellants against the said order was rejected. They then filed a revision application before respondent No. 1. While that was pending they filed a writ petition in the High Court. During the pendency of that writ petition, the Punjab legislature passed the Amendment Act, 16 of 1962 inserting S. 32-KK in the principal Act. The learned Single Judge, who heard the writ petition, held (1) that the finding that the appellants had not planted the said orchard within the statutory period was one of fact and could not be challenged in the writ petition and (2) that the said transfer of 26 standard acres was hit by S. 32-FF and therefore was rightly ignored while ascertaining the surplus land. The main contention urged before the High Court, however, was that each of the three appellants who constituted the said family was entitled to retain 30 standard acres, that as the total holding was only 64.35 standard acres, there was no surplus land liable to be acquired under the Act and, therefore, the order declaring 34.35 standard acres as surplus land was illegal. The High Court following its earlier decision in Bhagat vs. State of Punjab, ILR (l963) 1 Punj 500 dismissed the writ petition. A Letters Patent Appeal against that judgment was dismissed in limine. The present appeal by certificate is directed against the dismissal of the said writ petition.
(2.) Mr. Mani's contentions were:(1) that under Hindu Law every coparcener in a Hindu undivided family acquires right in the property of such coparcenery on birth and is entitled to a right of joint possession and enjoyment of its entire property, that S. 32-KK deprives such a coparcener of his rights of property in that that it takes away the rights of the descendants of the landowner to claim for themselves the permissible area and vest them in the head of the family alone so that there is not only an infringement of the right to hold property under Article 19 (1) (f) but also discrimination in favour of the head of the family infringing thereby Article 14; (2) that the effect of S. 32-KK is that where an undivided family is possessed of land, instead of each of the descendants getting a ceiling area of 30 standard acres, the head of the family alone gets 30 standard acres and therefore the section is violative of Article 31; (3) that the section, being applicable only to Hindu undivided families, infringes Article 15 (1) inasmuch as it discriminates by reason only of religion such families as against other undivided families in Punjab amongst communities other than Hindus and (4) that the section cannot be said to be legislation whose object is agrarian reform and, therefore, is not protected by Article 31-A.
(3.) Section 32-KK, the validity of which is impeached in this appeal, reads as follows:- "Notwithstanding anything contained in this Act or in any other law for the time being in force:- (a) where, immediately before the commencement of this Act, a landowner and his descendants constitute a Hindu undivided family, the land owned by such family shall, for the purposes of this Act, be deemed to be the land of that landowner and no descendant shall, as member of such family, be entitled to claim that in respect of his share of such land he is a landowner in his own right." The section first lays down a fiction and then its result. The fiction is that where a landowner and his descendants form a Hindu undivided family,-the land owned by such a family shall be deemed to be the land of that landowner. The fiction so enacted is limited only for the purposes of the Act. The result of the fiction again for the purposes of the Act is that no descendants shall, as a member of such family, be entitled to claim that in respect of his share of such land he is a landowner in his own right. There is no doubt that the section has a direct adverse effect on the rights of the descendants of a landowner. It treats such a family as one unit equating the landowner and his descendants with an individual landowner depriving by such equation the descendant of the right to hold a ceiling area for himself. Prima facie, such a provision would infringe Article 19 (1) (f) and Article 31 and would be hit by Article 13. Article 31-A, however, provides that notwithstanding anything contained in Article 13, no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Arts. 14, 19 or 31. If, therefore, S. 32-KK falls within the scope of Article 31-A, it is obviously protected thereunder and the validity of the section is placed beyond any challenge on the ground of its infringing any of the rights under Articles 14, 19 or 31.;