JUDGEMENT
R.M.Sahai, J. -
(1.) THE fate of this petition turns on the construction of the proviso to sub-section (4) of section 6 of the Act. Admittedly petitioner is a co-operative society formed in 1952 of members who did not own any agricultural land. By an order dated 29-11-1952 Collector of Rampur allotted 250 acres of land to the petitioner to enable its members to establish themselves in agriculture. THE name of the society was entered in the revenue extract and is continuing since then. After the enforcement of U. P. Imposition of Ceiling on Land Holdings Act, Secretary of the society received a notice u/s 10 (2) that 228.98 acres held by the society was surplus. One of the objections raised by the petitioner was that the society comprises of 21 members and the share of each member should be calculated in accordance with section 5(4) of the Act while determining ceiling area. It has been found by the appellate authority that the petitioner was a society within the meaning of section 77 (b) of the U. P. Co-operative Societies Act. It has further been found that the shares in the society were held by the members equally. But on an interpretation of the proviso, added to subsection (4) by Act No. 2 of 75 with retrospective effect, he -held that the petitioner was not entitled to any relief: "5. (4) Where any holding is held by a firm of co-operative society or association of persons (whether incorporated or not, but not including a public company), its members (whether called partners, share-holders or by any other name) shall, for purposes of this Act, be deemed to hold that holding in proportion to their respective shares in that firm, co-operative society or other society or association of persons: Provided that where a person immediately before his admission to the firm co-operative society or association of persons, held no land or an area of land less than the area proportionate to his aforesaid shares than he shall be deemed to hold no share, or as the case may be, only the lesser area in that holding, and the entire or the remaining area of the holding, as the case may be, shall be deemed to be held by the remaining members in proportion to their respective shares in the firm, co-operative society, or other society or as association of persons." Sub-section (4) of the Act applies to co-operative societies whether they are formed by pooling of land by members as contemplated in section 77 (i) (a) or by forming a society and purchasing land and obtaining lease etc. as contemplated in Sec. 77 (b) of the Co-operative Society Act. THE calculation in subsection (4) is land in proportion to share. By the proviso the share was related back to the time of admission as a member of the society. And if it was found that at the time of admission a member hold no land or an area less than the area proportionate to his share than the share of the person who hold no land shall be taken as nill and in the case of a person who hold lessor area his share shall be deemed to be that which held at the time of admission. After calculating share of such members the remaining area shall be calculated according to the share of the remaining members. THE question however is does this method of calculation as given in the proviso apply to petitioner society. THE argument of the State counsel that the words 'held no land' is indicative of the fact that it applies to societies formed under clause (b) of Sec. 77 the time of admission does not carry conviction. If read in isolation it may lead to this result. But the proviso has to be read us a whole. THE words 'held no land' has to be read along with latter part and entire or the remaining area, Read thus it leaves no room for doubt that the proviso applies only to those ' societies whose members held land at the time of admission. THE society where no land is held by any member the latter part cannot apply. THEre is yet another reason to conclude that the proviso does not apply to societies formed under clause (b) of section 77. THE purpose of a proviso is of 'necessity limited in its operation to the ambit of the section which it qualifies. It carves out an exception. In Sales lax Officer, Jabalpur v. Hanuman Prasad (1) it has been held that a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause what is included in it and what the Legislature desires to be excluded.' In the ambit of the principal clause every co-operative society which held any holding is covered. That whether it is a co-operative society covered by clause (a) or (b) of Sec. 77. It is the society that holds the land is not in doubt. THE proviso has taken out of its fold the society where members held any land or no land at the time of admission. If the proviso is applied to even those societies which are covered by clause (b) of Sec. 72 then the entire area of such society shall be declared surplus. This would result in defeating the very objective of sub-section 4. Moreover if the proviso is applied to both the societies it would create anomoly inasmuch as the proviso shall come in conflict with the principal clause. THE excepting clause would destroy the principal clause. It would result in giving by one hand and taking by-another.' THEre is no indication either in the language or the background in which it was enacted which may lead to conclusion that the 'proviso cannot reasonably be construed otherwise than contradicting the main clause.' THE proviso was enacted with retrospective effect, obviously, to scuttle the attempted subterfuge by inflating the membership of the society by kith and kin who either did not hold any land or held very nominal land. THE result is that the writ petition succeeds and is allowed. THE orders of the prescribed authority and Addl. District Judge are quashed. THE parties shall bear their own costs. THE prescribed authority is further directed to recalculate the area of the petitioner in the light of the observation made above.;
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