K.N. Goyal, J. - (1.) THE tenure holder petitioner has raised the following points against an order of determination of surplus land passed against him under the U.P. Imposition of Ceiling on Land Holdings Act. It has been contended in paragraph 3 of the writ petition that the plot No. 196 has wrongly been treated as irrigated. This contention is misconceived, inasmuch as the order of the Prescribed Authority clearly shows that this plot has been treated as unirrigated.
(2.) IT has then been contended that an area of 0.59 acre was covered by a fish tank and the same should have not been treated as surplus land for the purposes of ceiling limit. The appellate authority has rightly held that under Section 3(14) of the U.P. Zamindari Abolition and land Reforms Act, any land used for pisciculture is also "land" held by the tenure holder. Another like contention raised was about 0.50 acre of land which was alleged to be covered by a farm road. It was found that the so called farm road was not used by members of the public. Moreover as held by Hon'ble R.M. Sahai J. in Triveni Engineering Works Ltd. and another v. Government of U.P. and others, 1978 A.L.J. 744, para 8, the definition of land has to be construed for the purposes of the U.P. Imposition of Ceiling on Land Holdings Act harmoniously with the categories of exemption set out in Section 6 of the Act. Accordingly, having regard to the fact that any land used for purposes of a farm road is not exempt under that Section, and land revenue is payable therefor, the same must be treated as "land" for the purposes of the Act.
(3.) THE last point, which is substantial, is however, to the effect that some allowance should have been given for the daughter of the petitioner who was born on 20 -9 -1973. The ceiling authorities have held that the child being born on a date subsequent to the relevant date (8 -6 -1973) could not be taken info account. The child born in September, 1973, should however have been conceived several months before 8 -6 -1973. It has been held by Hon'ble Satish Chandra J., as he then was, in Ohan Singh v. State of U.P., 1967 A.L.J. 802, that a child in a mother's womb is deemed to be born on the date of conception for the purposes also of the U.P. Imposition of Ceiling on Land Holdings Act. The same view has subsequently been expressed in the context of Maharashtra ceiling legislation in Kundlik Tukarama Fantangale v. State of Maharashtra : A.I.R. 1977 Bombay 83 in which another earlier ruling of the same High Court was followed. I respectfully agree with these decisions and hold accordingly that the ceiling authorities were bound to consider a child conceived before the relevant date namely 8 -6 -1973, as a "member of the tenure -holder's family" on 8 -6 -1973. Accordingly, this writ petition is allowed in part. The finding of the prescribed authority contained in its judgment dated 31 -1 -1975, and that of the appellate authority contained in its judgment dated 9 -5 -1977 (Annexures 2 and 3 respectively to the writ petition) to the effect that the female child conceived before 8 -6 -1973 shall not be included in the family of the tenure holder for the purposes of Section 3(7) of the Act is hereby quashed. The rest of the findings of the prescribed authority as affirmed by the appellate authority shall remain undisturbed. The prescribed authority shall determine the ceiling area in accordance with law and in the light of the observations, made in this judgment. No order is made as to costs.;