M. C. Desai, J. - (1.) This is a, petition for certiorari to quash orders passed by the opposite-parties, assessing the petitioner to a certain amount of tax for the Fasli year 1365 under the U.P. Large Land Holdings Tax Act, (No. XXXI of 1957). Sec. 3 of the Act which is the charging section, provides that a tax called the "Holding Tax" shall be charged, levied and paid for each agricultural year on the annual value of each land holding exceeding thirty acres. "Land holding" is defined in Section 4 to mean "the aggregate of all land held or occupied on the first day of July each year by a land-holder, whether in his own name or in the name of any member of his family"; this definition is subject to the proviso that "the land held or occupied by a member of the family of the land-holder, shall not form part of the holding of such land-holder, if the same is managed and cultivated separately." The explanation to the proviso shows that a family includes sons and grandsons. "Annual value" of a land holding means, vide Section 5, an amount equal to the rent payable for the land or lands included therein multiplied by a certain multiple. "Land-holder" is defined in Sec. 2(16) and the petitioner is admittedly a land-holder. The procedure for assessment of holding tax is described in Chap. III. The Sub-Divisional Officer is the assessing authority. Sec. 7 requires a general notice to be given in each agricultural year requiring every land-holder liable to pay holding tax to furnish to the assessing authority a return within a certain time. A special notice may be served on any landholder who, in the opinion of the assessing authority, is liable to the payment of holding tax requiring him to furnish within a certain time a return. If the return filed by a land-holder is accepted by the assessing authority as correct and complete, he determines the annual valuation of the land holding and assesses the holding tax chargeable thereon under Section 8, Sub-Sec. (1); if he has reason to believe that the return is incorrect or incomplete, he should require the land-holder to produce evidence in support of the return and, after considering such evidence as he may produce, determine the annual valuation of the land holding and assess the holding tax chargeable thereon under sub-sec. (3). An appeal from an assessment order is provided in Section 11 to the Commissioner and a revision from the Commissioner's order is provided in Section 12 to the Board of Revenue. Any order passed by the Board of Revenue under Section 12 is final.
(2.) The petitioner is a landholder in several villages, including villages Naya Gaon, Habibpur, Condarao and Baghauli. In 1956 he separated from his sons through a family arrangement and the sons started living, and carrying on business and cultivation, separately from him. Previous to this partition the name of the petitioner was recorded in the village records over all the land and on July 20, 1956, his sons applied for entry of their names in respect of land belonging to these four villages, which, they claimed, had fallen to their shares under the partition and was in their own cultivation. These applications were pending on 1-7-57, the date on which Fasli year 1365, commenced. The applications were allowed on various dates, such as 15-4-58, 7-6-58 and 4-7-58 and the names of the sons were recorded over the lands in place of the petitioner.
(3.) The assessing authority, namely, the Sub-Divisional Officer, served upon the petitioner a notice under Sec. 7(2) of the Act, along with a copy of a provisional valuation statement, for the assessment year 1365 Fasli. In reply the petitioner filed a return showing the total valuation of his land at Rs. 3,900 and odd and that of his sons at Rs. 16,000 and odd against the valuation of Rs. 21,000 and odd shown in the provisional valuation statement by the assessing authority. He claimed exemption of Rs. 17,000 and odd under rule 5 of the Rules framed by Government under the Act on the ground that the entries in the records were incorrect and that the land was in possession of other persons. He also claimed that the land in possession of his sons, who had separated from him in all respects, should not be shown as his land for the purpose of assessment and that the land occupied by residential buildings should be exempted. In pursuance to a notice served upon him under Sec. 8(2) he produced evidence, oral and documentary. After considering it the assessing authority held him liable for all the land that stood recorded in his name on 1-7-57, even though it had been given to his sons under the partition and they were separate from him in cultivation and residence. He exempted from the assessment the land covered by residential buildings and the land in the possession of his sons and standing recorded in their names on 1-7-57. He refused to give him the benefit of R. 5 on account of alleged wrong entries in the records on the ground that his case was not covered by R. 5. In the result he assessed the valuation of his landholding at Rs. 13,000 and odd and assessed the holding tax on it. The Commissioner dismissed the petitioner's appeal from this assessment order, taking his stand on the fact that his name stood recorded over the land of the four villages on 1-7-57. As regards the land, which was supposed to be in adverse possession of other persons, who were recorded as Qabiz in respect of it, the Commissioner held that, since they were recorded as Qabiz after 1-7-57, the land could not be excluded from the landholding of the petitioner. A second appeal was dismissed by the Board of Revenue simply on the ground that it had decided previously in a certain case that "land held or occupied ........by" within the meaning of Section 4 means "land which stands recorded in the name of." By this petition the petitioner wants the orders of the assessing authority, the Commissioner and the Board of Revenue to be quashed by a certiorary on the ground of an apparent error of law. The petition is contested by the opposite parties.;