M.P.Mehrotra, J. - (1.) This petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960.
(2.) The facts in brief, are these. The opposite party No. 3 Doaba Co-operative Farming Society, was issued the notice under Section 10 (2) of the Act. The States case was that the said tenure-holder held 100 acres of land in its name and it was entitled to retain only 18.02 acres as the ceiling area. The rest of the land was, therefore, liable to be declared as surplus. The opposite party No. 3 filed objections and the same were decided by the Prescribed Authority who held that 82.56 acres of land was liable to be declared as surplus and was so declared. Thereafter, an appeal was filed by the said opposite party No. 3 and the appellate court found as under:- "In my opinion, the record shows that five members who were members at the time of acquisition continued to be members of the Society even now and one member is son of the original member Malva Ram. He had inherited rights of Malva Ram and so would also be deemed to be in place of the original member. We have to hold that six persons are members of the Society, who were members at the time of formation of the Society. These members will be deemed for the purpose of this Act to hold equal share in the land held by the Society, and the members who were admitted subsequently will be deemed to have no share in view of the proviso to sub-section 4. This observation does not in fact govern the actual rights of the members, but is only fiction introduced by the provisions of law. There are affidavits that the members do not hold separate land other than the land which is part of the holding of the Society and if we hold that there are six members, it would mean that the Society is entitled to retain more area than it has. Six members normally, even if whole area is treated as irrigated, would be entitled to hold 108.34 acres. In view of above, there is no surplus with the Society. I may also observe that in cases of Society considering the provisions, the notice has to be given to the members individually and the case of individuals has to be decided."
(3.) Now, the State has come up in the instant petition and in support thereof, the learned Standing Counsel contended that on a correct interpretation of Section 5 (4) and its proviso, it should be held that none of the aforesaid six members should be deemed to hold any share in the aforesaid holding of the opposite party No. 3 as none of the said six members has been shown to have held any land on,the date when he was admitted as a member of the Society. Learned Standing Counsel contended that in such a case where by virtue of the proviso none of the members is deemed to hold any share in the holding of the Co-operative Society, then the main sub-section. namely, Section 5 (4) will not be applicable but the case will be governed by sub-section (3) (e) of Section 5 of the Act. In other words, according to the learned Standing Counsel, it should have been held in the instant case that the opposite party No. 3 was entitled to retain 7.30 acres of irrigated land as the ceiling area and the rest of the holding of the opposite party was liable to be declared as surplus. Learned Standing Counsel contended that it was not possible to hold in the same breath that the proviso is applicable and at the same time not applicable. According to his contention, if on the basis of the proviso it is held that a member has no share in the holding, then it is not possible to say that on the basis of the main sub-section (4) of Section 5, he should be deemed to hold some portion of the holding on the basis of his share in the co-operative society. In this connection a reference has been made to the decision of a learned single Judge reported in Bahai Farming Co-operative Society v. State of U. P. (1978 All LR 815): (1978 All LJ 548) . The learned Standing Counsel has contested the correctness of the interpretation which has been placed by the said learned Judge on sub-section (4) of Section 5 and its proviso.;