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REPORTABLE Corrected

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6015 OF 2009

State of Himachal Pradesh and others Appellant(s)

versus

Ashwani Kumar and others                            Respondent(s)

J U D G M E N T

M.Y. Eqbal, J.:

This appeal by special leave is directed against judgment  

dated  7.5.2007  passed  by  the  Division  Bench  of  the  High  

Court  of  Himachal  Pradesh,  whereby  the  writ  petition  

preferred  by  the  respondents  was  allowed  and  the  orders  

passed by the Revenue Authorities were quashed, holding that  

every landowner of the family of one Dev Raj was entitled for a  

separate unit.

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2. The facts in nutshell  are that Dev Raj,  predecessor-in-

interest  of  the  respondents  herein,  was  holding  land  

measuring  2400  kanals  9  marlas  in  village  Kalroohi  and  

Mubarikpur as owner.  He was issued notice in form C-V in  

which area measuring 1767 Kanals 9 Marlas was proposed to  

be declared as surplus under the Himachal Pradesh Ceiling on  

Land  Holdings  Act,  1972.   Instead  of  filing  objection,  the  

landowner filed a writ petition in which High Court directed  

that  the  determination  of  surplus  area  be  made  by  the  

Collector.  On 22.7.1976, the Collector, Una District passed an  

order  holding  that  the  land  owned  by  wife  of  late  Dev  Raj  

namely, Smt. Kala Devi, and Yash Pal, Dharam Pal, Ram Pal  

sons of Dev Raj be excluded from the holding of  landowner  

Dev  Raj  and  all  the  members  of  the  family  holding  land  

continue to enjoy rights therein to the extent of the determined  

permissible  area.   Thereafter,  while  deciding  reference  in  

revision,  the  Financial  Commissioner,  Himachal  Pradesh  

remanded  the  case  to  the  Collector  for  decision  afresh  in  

accordance  with  law  after  affording  due  opportunity  to  the  

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respondents.  After remand, the Collector Land Ceiling, Una  

passed order holding that Dev Raj and that of his family with  

Ram Paul being adult son on the appointed day i.e.24.1.1971,  

the landowner is entitled for two units of land as permissible  

area.

3. In  appeal  against  the  aforesaid  order,  the  Divisional  

Commissioner, Kangra Division, on 30.3.1986, held that the  

provisions of  Section 4(6)  are  very explicit  under  which the  

total land held by the family members has to be considered.  

In revision, the Financial Commissioner (Appeals) upheld the  

order of the Divisional Commissioner.  Thereafter, successor-

in-interest of Dev Raj filed writ petition before the High Court  

of  Himachal  Pradesh  challenging  the  orders  passed  by  the  

Revenue Authorities.  

4. Before the High Court, respondents pleaded that the writ  

petitioners in their own right are individual landowners before  

the  appointed  day  under  the  Act.   Their  individual  land  

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holdings  cannot  be  clubbed  together  for  determining  

permissible  area  under  Section  4  of  the  Act  and  such  

petitioners are entitled to one unit individually under the Act.  

The individual holding of all petitioners except writ petitioner  

no.1  is  far  below  permissible  area.   Therefore,  while  

determining their permissible area, the surplus area out of the  

land holding of writ petitioner no.1 only is to be excluded, the  

others  do  not  have  any  surplus  area  as  their  individual  

holding  is  within  the  permissible  limits  of  the  Act.   It  was  

argued before the High Court that the order dated 22.7.1976  

passed  by  the  District  Collector  but  other  orders  passed  

subsequent to that order are not in accordance with the Act.  

It has been urged that in sub-section (4) of Section 4 adult son  

of a landowner is entitled to a separate unit up to the extent  

permissible to a ‘family’ under sub-section (1) and (2) but once  

adult son himself is a landowner in his own right, then he is  

entitled  to  hold  permissible  area  under  the  Act  in  his  

individual  capacity  and  he  cannot  be  confined  to  have  

separate unit up to the extent permissible to a family.

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5. Per contra, State of Himachal Pradesh heavily relied upon  

sub-section (6) of Section 4 of the Act and contended that writ  

petitioners  nos.2  to  5  are  members  of  the  family  of  writ  

petitioner  no.1,  and  therefore,  their  holding  individually  

together with the land held by all of them shall be taken into  

account for the purposes of calculating the permissible area.

6. The Division Bench of the High Court allowed the writ  

petition  and  quashed  the  orders  passed  by  the  Revenue  

Authorities  directing  the  Collector  Land  Ceiling,  Una  to  

determine  the  permissible  area  of  original  writ  petitioners  

nos.1 to 5 individually in the light of the observations made in  

the impugned judgment.  The High Court observed thus:

“23. In  Annexure  P-11  it  has  come  that  petitioner  No.1  Dev  Raj  has  four  sons  who are  all  major  and  reside  separately  from their  father.   As  against  this  evidence,  the  respondents  have  not  proved  that  the  petitioners No.2 to 5 have acquired any land through  petitioner No.1 before the appointed date 24.1.1971.  The  simple  case  of  the  respondents  is  that  since  petitioners No.2 to 5 are family members of petitioner  No.1,  therefore,  their  individual  holding  is  to  be  counted  for  determination  of  permissible  area  of  all  family members as a unit and, therefore, all of them  collectively  are  entitled  to  only  two  units.   This  

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argument  of  the  respondents  has  no  force;  firstly,  petitioner No.2 is the wife and petitioners No.2 to 5 are  adult sons of petitioner No.1. Family has been defined  as husband, wife and their minor children or anyone  or more of them.  The petitioner No.2 being the wife of  petitioner  No.1  is  entitled  to  be  treated  as  an  individual person for the purposes of determining the  permissible area available to her as held in Raj Kumar  Rajinder Singh’s case (supra).  The petitioners nos.3 to  5  are  not  family  members  of  petitioner  no.1  as  per  definition of family and otherwise also their individual  land holding cannot be counted under sub-section (6)  of  Section  4  for  determination  of  permissible  area  along with petitioner no.1.  Even if petitioners nos.3 to  5  on  the  appointed  date  were  minors  still  their  individual holdings cannot be counted for determining  the permissible area of petitioner no.1 Dev Raj.  The  permissible area of all petitioners is to be determined  under  Section  4  separately  under  the  Act.   The  authorities  have  erred  in  reviewing  the  order  dated  22.7.1976 Annexure P-11 by applying Mehar Ali’s case  decided by respondent no.2.”

7. Challenging the decision of the High Court, the State of  

Himachal Pradesh and its revenue authorities have preferred  

instant appeal by special leave raising question of law whether  

in view of the provisions of the Himachal Pradesh Ceiling on  

Land Holdings Act, 1972, a family of husband, wife, one adult  

son and three minor children, though everybody was holding  

the land on 24th day of January, 1971, could hold more than  

two units of permissible area?

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8. Mr. Suryanarayana Singh, learned Sr. AAG appearing for  

the State of H.P., assailed the impugned judgment passed by  

the High Court mainly on the ground that the provisions of the  

Himachal  Pradesh  Ceiling  on  Land  Holdings  Act,  1972  (for  

short, “the Act”) has been interpreted in such a way that it has  

swayed away the very object of the ceiling law.  According to  

the learned counsel, the original writ petitioner Dev Raj and  

his wife were having 4 sons; one major and 3 minors on the  

appointed  day  when  the  Ceiling  Act  came  into  force  i.e.  

24.01.1971.  According to the learned counsel, the High Court  

has  not  correctly  interpreted  Section  4  of  the  Act  and  the  

definition of terms, “landowner”, “permissible area”, “person”,  

“separate unit” and “surplus area”.  Learned counsel further  

submitted that the High Court has erred in law in holding that  

the earlier judgment in Raj Kumar Rajinder Singh’s case, the  

Court has recorded a finding in paragraph 19 of the judgment  

when as a matter of fact that was the submission made by the  

counsels in that case.  Mr. Suryanarayana further submitted  

that  it  is an admitted case of  both the parties that on 24th  

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January  1971  the  landowner  Dev  Raj  was  having  a  family  

comprising of his wife, one adult son and 3 minor sons.  By  

correctly interpreting the provisions of  the Act,  it  cannot be  

held  that  all  the  members  of  the  family  shall  hold  land  

separately  and  their  holdings  cannot  be  counted  for  

determining the permissible area.   

9. Per  contra,  Mr.  Anil  Sachthey,  learned counsel  for  the  

respondent, fully relied on the decision of the Full Bench of  

the  Himachal  Pradesh High  Court  in  Raj  Kumar  Rajinder’s  

case (AIR 1976 HP 82(FB).  Learned counsel submitted that  

the Full Bench considered the provisions of the Act and held  

that additional area is added on the fiction that so much more  

land out of the land holding is required as a provision in the  

hands of the land holder in respect of an adult son.

10. Mr. Sachthey, then submitted that in any event it is a  

settled proposition of law that where a decision is allowed to  

stand or followed for a considerable length of time then the  

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Court is reluctant to interfere  on the principle of stare decisis.  

In this connection, learned counsel relied upon the decisions  

of  this  Court  in  the  case  of  Gajnan and Others  vs.  Seth  

Brindaban; (1970) 2 SCC 360 and Raj Narain Pandey and  

Others vs. Sant Prasad Tewari and Others; (1973) 2 SCC  

35.  

11. At  this  stage,  we  think  it  proper  to  go  through  the  

relevant  provisions  of  the  Act.   Section  3  defines  the  word  

“family” and “person” as under:-

“3(e)  “family”  means  husband,  wife  and their  minor  children or any one or more of them;

xxxx 3(n)  “person”  means  the  landowner, tenant  and  mortgagee with possession,  and includes     a company,  a family, an association or other body of individuals,  whether  incorporated  or  not,  and  any  institution  capable of holding property;”

12. Perusal  of  the aforesaid definitions makes it  clear that  

the words “family” and “person” mean the landowner etc. in  

the Act.  Section 4 of the Act reads as under:-

“Section 4: Permissible area (1) The permissible area of a landowner or a tenant or  a mortgagee with possession or partly in one capacity  or partly in another of person or a family consisting of  

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husband, wife and upto three minor children shall be  in respect of-

(a)  land  under  assured  irrigation  capable  of  growing two crops in a year- 10 acres. (b)  land  under  assured  irrigation  capable  of  growing one crop in a year- 15 acres. (c)  land  of  classes  other  than  described  in  clauses (a) and (b)  above including land under  orchards-30 acres.

(2) The permissible area for the purposes of clause (c)  of  sub-section  (1)  for  the  districts  of  Kinnaur  and  Lahaul  and  Spiti,  Tehsil  Pangi  and  Sub-Tehsil  Bharmaur of Chamba district, area of Chhota Bhangal  and Bara Bhangal of Baijnath Kanungo Circle of Tehsil  Palampur of Kangra district, and area of Dodra Kowar  Patwar Circle of Rohru Tehsil and Pandrabis Pargana  of Rampur Tehsil of Shimla district shall be 70 acres. (3) The permissible area of a family under sub-section  (1)  shall be increased by one-fifth of the permissible  area under sub-sections (1) and (2) for each additional  minor member of a family subject to the condition that  the aggregate permissible area shall not exceed twice  the  permissible  area  of  family  under  sub-sections(1)  and (2). (4) Every adult son of a person shall be treated as a  separate unit and he shall be entitled to the land upto  the extent permissible to a family under sub-sections  (1) and (2) subject to the condition that the aggregate  land of the family and that of the separate units put  together  shall  not  exceed twice  the area permissible  under the said sub-sections:

Provided that where the separate unit owns any  land, the same shall be taken into account for  calculating the permissible area for that unit.

(5)  If  a person holds land of  two or more categories  described in clauses (a), (b) and (c) of sub-section (1)  and sub-section (2) of this section then the permissible  area shall be determined on the following basis:-

(i) in the areas mentioned in sub-section (2) of  this  section,  one  acre  of  land  mentioned  in  clause (a) of sub-section (1) shall count as one  and a half acres of land mentioned in clause (b)  

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of  sub-section  (1)  and  seven  acres  of  land  mentioned in clause (c) of sub-section (1);  (ii) in the areas other than the areas mentioned  in  sub-section  (2)  of  this  section,  one  acre  of  land mentioned in clause (a) of sub-section (1)  shall  count  as  one  and  a  half  acres  of  land  mentioned in clause (b) of sub-section (1),  and  three  acres of  land mentioned in clause  (c)  of  sub-section (1):

Provided  that  on  the  basis  of  ratio  prescribed  in  clauses  (i)  and  (ii),  the  permissible  area  shall  be  converted  into  the  category  of  land  mentioned  in  sub- section (2) and in clause (c) of sub-section  (1) as the case may be, and the total area  so converted shall not exceed 70 acres in  case of clause (i) and 30 acres in case of  clause (ii).

(6) Where a person is a member of the family, the land  held by such person together with the land held by all  the members of the family shall be taken into account  for the purpose of calculating the permissible area.”

13. By reading the plain language of Section 4, it provides  

that  the  landowner  may  be  a  family,  capable  of  holding  

property,  consisting  of  husband,  wife  and  three  minor  

children.  As per sub-section (1) of Section 4, the permissible  

area which a family  consisting  of  husband,  wife  and up to  

three minor children shall be to the extent provided therein.  It  

is, therefore, manifest that under Section 4(1) of the Act, the  

family is limited in terms of number of minor children, though  

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in the definition clause, i.e. under Section 3(e), “family” is not  

limited in terms of minor children.  The family, therefore, will  

be taken as an individual unit for the purpose of determining  

the permissible area under the Act.  Sub-section (4) of Section  

4, however, makes it clear that every adult son shall be treated  

as a separate unit and he shall be entitled to the land up to  

the extent permissible to a family under sub-sections (1) and  

(2)  subject  to  the  condition  that  the  aggregate  land  of  the  

family and that of the separate units put together shall  not  

exceed twice the area permissible under the said sub-section.  

Sub-section (6)  of Section 4 further makes it clear that where  

a person is a member of  the family,  the land held by such  

person together with the land held by all the members of the  

family  shall  be  taken  into  account  for  the  purpose  of  

calculating the permissible area.

14. In  other  words,  by  reading  the  entire  provisions  of  

Section 4, particularly sub-section (6) of Section 4, it is made  

clear  that  even if  the  respondents  were holding  property  in  

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their respective individual capacity as a person, land held by  

them will be taken into account for the purpose of calculating  

the permissible area.  The provision in its clear term provides  

one kind of an exception in case of an adult son of a person.  

In that case such adult son will be treated as a separate unit  

and he is entitled to have separate unit of permissible area up  

to the extent of the permissible area of a family subject to the  

condition that the aggregate land of the family and that of a  

separate  unit  put  together  shall  not  exceed  twice  the  area  

permissible.  If we read sub-section (4) minutely, it comes out  

that in the first part the legislature used the word  “separate  

unit” but in the later part the legislatures have used the word  

“separate units” as plural.  The opening words of sub-section  

(4)  of  Section  4,  starts  with  “every  adult  son  of  a  person”  

meaning thereby even if  a person has more than one adult  

son,  all  will  be  treated  as  separate  unit  individually  but  

subject to the condition that aggregate land of the family and  

that of the separate units put together shall not exceed twice  

the area permissible under the said sub-section.

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15.  Section 6 of the Act reads as under:-

“6. Ceiling of land: - Notwithstanding anything to the  contrary  contained  in  any  law,  custom,  usage  or  agreement, no person shall be entitled to hold whether  as  a  landowner  or  a  tenant  or  a  mortgagee  with  possession  or  partly  in  one  capacity  and  partly  in  another,  the  land  within  the  State  of  Himachal  Pradesh exceeding the permissible area on or after the  appointed day.”

16. Another important provision is Section 17, which deals  

with the case of future acquisition of land by inheritance or  

otherwise in excess of  permissible area or  increase in such  

area as a result of operation of this Act.  Section 17 reads as  

under:-

“Section 17: Future acquisition of land by inheritance or  otherwise in excess of permissible area or increase in such  area as a result of operation of this Act:

(1) Subject  to  the  provisions  of  section  15,  if  after  the  commencement  of  this  Act,  any  person,  whether  as  landowner  or  tenant,  acquires  by  inheritance  or  by  bequest or gift from a person to whom he is an heir of  any  land,  or  any  person  has  acquired  by  transfer,  exchange, lease, agreement or settlement any land, or  if, after such commencement, any person acquires in  any other manner any land, which, with or without the  lands already owned or held by him, exceeds in the  aggregate the permissible  area or  any person whose  land exceeds the permissible area as a result of the  operation of any provision of this Act, then he shall,  within the period prescribed, furnish to the Collector,  a return in the prescribed form and manner giving the  

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particulars  of  all  lands  and  selecting  the  land  not  exceeding in the aggregate the permissible area which  he desires to retain, and if the land of such person is  situate in more than one patwar circle, he shall also  furnish a declaration required by section 9.

(2) If  he  fails  to  furnish the return and select  his  land  within the prescribed period, then the Collector may in  respect of him obtain the information required to be  shown in the return through such agency as he may  deem fit  and select  the land for  him in the manner  specified in sub-section (1) of section 8.

(3) If  such  person  fails  to  furnish  the  declaration,  the  provisions of (Section 9) shall apply.

(4) The excess land of such person shall be at the disposal  of the State Government for utilization as surplus area  under  section  15  or  for  such  other  purpose  as  the  State Government may by notification direct.

Explanation:-  In the case of family, the return  may be furnished by any adult member of the  family and in the case of the sole minor by his  guardian:

Provided  that  the  Collector  shall,  before  determining  the  surplus  area,  give  to  all  the  members of the family an opportunity of being  heard.”

17. The aforesaid provision makes it  clear that   when any  

person/landowner  acquires  or  succeeds  land  which  is  in  

excess of permissible area after the commencement of the Act,  

such land holder has to file separate return to the Collector as  

per Rule 16 of the Himachal Pradesh Ceiling on Land Holdings  

Rules, 1972.

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18. The High Court passed the impugned order based on the  

decision of  the Full  Bench of  the High Court  in  Rajkumar  

Rajindra Singh vs. Union of India, ILR 1976 HP 453. The  

Division  Bench  of  the  High  Court  quoted  some  of  the  

paragraphs of Full Bench decision.  In order to appreciate the  

impugned order, we shall quote paragraphs nos. 17, 18 and  

19 of the impugned judgment as under:-

“17. In Rajkumar Rajinder Singh’s case (supra),  Full Bench of this Court in Paragraph-8 has held  as under:-

“………….It is the permissible area in the case of  a person or a family.  And it  is  the permissible  area in respect of the landholding of such person  or family. It is the landholding of such person or  family  alone which forms the subject-matter  of  Section 4, and the several sub-sections lay down  the principles for the mathematical computation  of the permissible area in respect of such land- holding.  Section  4  is  not  concerned  with  the  landholding  of  any  other  person  or  family  nor  with the transfer of the rights of one landholder  in favour of another.

18. In Paragraph 24, the Full Bench has held  that no doubt that sub-section (6)  of  Section 4  contemplates  where  a  person  is  a  member  of  family, the land held by such family together with  the land held by all the members of the family  shall be taken into account for the purposes of  

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calculating  the  permissible  area,  that  question  can  arise  only  in  relation  to  a  family,  the  provision  is  concerned  only  with  the  mathematical  computation  of  the  permissible  area.

19. In  paragraph-  19,  the  Full  Bench  has  held:- The petitioners say that while a husband and the  children  have  the  right  to  hold land a  wife  has  been deprived of such right. There is nothing in  the Act which  can  lead  to  that  conclusion.  A  family, consisting of husband, wife and children  has  been  recognised  as  a  unit  for  the  determination  of  the  permissible  area,  and  the land holding of the family as such is treated  for that purpose. If a wife holds land separately  in her own right, she is entitled to be treated as  an  individual  person  for  the  purposes  of  determining  the  permissible  area  available  to  her.”

19. From perusal  of  the  aforementioned paragraphs of  the  

Full  Bench  judgment,  it  appears  that  the  High  Court  has  

completely departed from the plain language used in Section 4  

of the said Act.  The High Court has committed serious error of  

law in holding that if a wife holds land separately in her own  

right, she is entitled to be treated as an individual person for  

the purpose of determining the permissible area available to  

her.  We are of the definite opinion that the Full Bench has not  

rightly interpreted the provisions of the Act.

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20. The submission made by learned counsel appearing for  

the  respondents  that  the  impugned  judgment  needs  no  

interference  on  the  principle  of  stare  decisis cannot  be  

accepted.   The decision relied upon by the respondents in the  

case  of  Gajnan  (supra),  this  Court  held  that  to  maintain  

certainty in the judicial decision the court should refrain from  

interfering with such decision which stood for a long period.  

However, this Court has clearly laid down that this principle  

will  be  applicable  “where  the  meaning  of  a  statute  is  

ambiguous and capable of more interpretations than one”.

21. This Court in Indra Sawhney and others vs. Union of  

India and others, etc. AIR (1993) SC 477, in paragraph 26-A  

of the Judgment, considered the principle of stare decisis and  

observed that in the law certainty, consistency and continuity  

are highly desirable features.  Where a decision has stood the  

test of time and has never been doubted, we have respected it  

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unless, of course, there are compelling and strong reasons to  

depart from it.

22. We make it clear that to maintain certainty in the judicial  

decision, we have to restrain from interfering with the decision  

of the High Court which has stood for a long period on the  

principle of  stare decisis.  However, the said principle will be  

applicable where the meaning of the Statute is ambiguous and  

capable of more interpretation than one.  In the instant case,  

the provision of the Act/Statute is very clear and, therefore,  

principle of stare decisis is of no help to the respondents.  

23. Apart from that it appears that the instant case arose out  

of certain proceedings initiated as far back as in 1974, and  

travelled up to this Court.   The Full  Bench judgment came  

only  in  the  year  1976  and,  therefore,  in  our  considered  

opinion, the doctrine of  stare decisis should not apply in the  

facts of the present case.

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24. Considering the entire facts of the case and the relevant  

provisions of the Act, we are of the definite opinion that the  

impugned judgment passed by the High Court is contrary to  

law, facts on record, and the findings recorded therein cannot  

be sustained.  

25. We,  therefore,  allow  this  appeal  and  set  aside  the  

judgment passed by the High Court.  

…………………………….J. (M.Y. Eqbal)

…………………………….J. (C. Nagappan)

New Delhi November 26, 2015  

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