judgement:
Civil Appeal No. 853 of 1981.
Appeal by special leave from the judgment and order dated 4.11.1980 of the Madhya Pradesh High Court in Case Misc.
Petition No. 167 of 1980.
Shiv Dayal, P.S. Das Gupta and J.B. Dadachanji for the Appellant.
Gopal Subramaniam and S.A. Shroff for the Respondents.
The Judgment of the Court was delivered by VARADARAJAN, J.
This appeal by special leave is directed against the judgment of K.K. Dube, J. of the Madhya Pradesh High Court in Writ Petition No. 167 of 1980, with whom the learned Chief Justice of that High Court had agreed on a difference of opinion between the learned Judge and A. R. Navkar, J.
The petition filed under Article 226 of the Constitution was for the issue of a writ, order or direction for the writ petitioner 's admission into one of the medical colleges in Madhya Pradesh for the M.B.B.S. course, commencing in the academic year 1979 80.
After hearing the learned counsel for the parties we allowed the appeal by a brief order on 14.1.1982 without any order as to costs, on account of the urgency of the matter, reserving our reasons to be given later, and directed the respondents to admit the appellant to the M.B.B.S course for the academic year 1981 82 for which admissions are admittedly going on even now.
We are presently giving reasons.
The Government of Madhya Pradesh, Public Health and Family Welfare Department, have framed Rules on 17.4.1979 for 188 admission into the Medical, Dentistry and Ayurvedic Colleges in the State.
In this appeal we are not concerned with the Dentistry and Ayurvedic Colleges.
There are six Medical Colleges in the State of Madhya Pradesh affiliated to different universities.
There are 720 seats for admission into the first year course in those six colleges.
Rule 5(1) of the aforesaid Rules, hereinafter refer to as the Rules, lays down that no candidate shall be admitted to the M.B.B.S. course unless he has passed the B.Sc.
Part I (three years degree course Medical Group) examination of the recognised universities of the State with Physics, Chemistry, Biology (Zoology and Botany) or any examination of any other university or board recognised as equivalent thereto with practical tests in each subject provided the candidate has passed in each of those subjects in theory and practical separately.
Under rule 6 of the Rules no candidate shall be admitted to the medical college unless he completes the age of 17 years on the 31st December of the year of admission to the college.
Rule 1(3) provides for the pre medical examination being held every year for selection of candidates for admission to the medical colleges in the State and says that all admissions to those colleges have to be made only from the merit list prepared on the basis of the result of that examination except in the case of seats placed at the disposal of the Government of India or other States.
Under Rule 7 certain number of seats have to be reserved for specific categories of candidates passing the pre medical examination as below : 1.
Fifteen percent shall be reserved for women candidates; 2.
Fifteen percent shall be reserved for each of the categories of Scheduled Caste and Scheduled Tribes candidates; 3.
Seats not exceeding 3 percent may be reserved for children of military personnel who have to produce the necessary certificates.
Apart from those reservations, under Rule 8 seats not exceeding 3 per cent are reserved for nominees of the Government of India and three seats are reserved for candidates nominated by the Government of Jammu and Kashmir in consideration of three seats reserved in the medical colleges in that State for candidates of the State of Madhya Pradesh.
189 Under Rule 20, selection of candidates from amongst those who had appeared and qualified in the written examination shall be made strictly on merit as disclosed by the total number of marks obtained by a candidate in the pre medical examination.
The qualifying marks for admission shall be 50 per cent in the aggregate and 33 percent in each of the subjects.
For Scheduled Castes and Scheduled Tribes candidates the minimum qualifying marks shall be 45 per cent in aggregate and 30 per cent in each of the subject.
In case the required number of candidate for admission are not available according to the above percentage of qualifying marks the Board conducting the pre medical examination under Rule 2 shall have power to lower the marks up to S per cent in the aggregate for all categories of candidates.
If even with the relaxation granted by the Board, as above, required number of candidates in the categories of Scheduled Castes and Scheduled Tribes are not available for admission the Government has power to grant special relaxation in the maximum qualifying marks to the extent considered necessary.
Under Rule 9, in case sufficient number of candidates do not qualify for admission under any reserved category and any seats remain vacant, such vacant seals shall be fined by preparing a combined merit list of all the remaining categories of candidates on the waiting list and the candidates shall be admitted according to merit in the list so prepared.
It is not necessary to refer to any of the other rules for the purpose of this appeal.
Indisputably, the appellant belongs to the third category of seats reserved under Rule 7 as he is a son of a military personnel settled in Madhya Pradesh.
Sons and daughters of military personnel of Madhya Pradesh are entitled to 21 seats in all out of 720 seats available in the six medical colleges in the State.
As per the minimum number of qualifying marks prescribed in Rule 20, namely, 50 per cent in the aggregate and 33 per cent in each of the subjects, children of military personnel secured only 8 seats, and 13 seats in that category remained vacant and all other categories secured only 361 seats and 338 seats of those categories remained vacant.
The appellant did not qualify for admission on the basis of the marks specified in Rule 20 for the academic year 1979 80.
Then the Board applied Note (1) to Rule 20 which provides for lowering the minimum qualifying marks upto 5 per cent in the aggregate for all categories of candidates.
After that was done 6 more candidates 190 belonging to the category of sons and daughters of military personnel and 274 more candidates belonging to all other categories secured admission and 7 seats belonging to the category of children of military personnel and 64 seats of all other categories remained vacant.
Even then the appellant could not secure admission as he had secured only 43.6 per cent of marks in the aggregate and 33 per cent in each of the subjects in the pre medical examination and in the merit list prepared according to rule 9 he ranked 74 and only 71 candidates in that list could be admitted on the basis of merit.
Then the Madhya Pradesh Government issued an executive notification dated 10 March, 1980 regarding relaxation of qualifying marks for the purpose of admission to the medical colleges.
That notification is to the effect that for the year 1979 80 candidates who have obtained at least 43 per cent of marks in the aggregate in the pre medical examination shall be admitted to the medical colleges in the unfilled seats on the basis of merit according to the rules.
ordinarily, the appellant who had secured 43.6 per cent of marks in the aggregate in the pre medical examination and another candidate in the category of children of military personnel should have got admission after the lowering of the minimum qualifying marks to 43 per cent in the aggregate, leaving 5 seats in that category still vacant.
But Rule 9 was applied and a combined list of all the remaining categories on the waiting list was prepared and the candidates were admitted according to merit in the list so prepared and consequently the appellant who belongs to the category of children of military personnel and had secured 43.6 percent of marks in the aggregate in the pre medical examination could not secure admission.
These facts are not in dispute.
The appellant filed a writ petition for the aforesaid relief contending that as minimum qualifying marks have been reduced by the Notification dated 10 3.1980 to 43 percent in the aggregate and as he had secured 43.6 percent marks he should have been given admission in the category to which he belongs.
The writ petition was at first heard by K. K. Dube and A.R. Navkar, JJ.
A.R. Navkar, J, who decided in favour of the appellant, had observed in his judgment thus: "The reduction of percentage of marks for admission by the Government on 10.3.1980 (Annexure II) clearly shows that the candidates who got 43 per cent of marks 191 will be eligible for admission.
There is no dispute that the petitioner got 43.6 per cent of marks in the pre medical examination.
Therefore, applying this order of reduction of qualifying marks (Annexure II), I am of the opinion that the right of the petitioner for admission in the medical college cannot be defeated by resorting to Rule 9 of the Rules.
As mentioned above, Rule 9 of the Rules, in my opinion, is a mandatory one.
It says, if any seats remain vacant, such vacant seats shall be filled in by preparing a combined merit list of all the remaining categories of candidates on waiting list.
This was not done when the percentage of marks for admission was reduced from 50 per cent to 45 per cent for all categories.
Therefore, in my opinion, it cannot be done to defeat the right of the petitioner. `I am of the opinion that the present petitioner cannot be denied his right of admission to the medical college if he is otherwise eligible to get admission.
Denial of admission to him by purporting to act on the strength of Rule 9 of the Rules, in my opinion, will not be justified and will amount to denial to him the protection given to him by Article 14 of the Constitution.
The result, therefore, is that the petition deserves to be allowed. " But K.K. Dube, J. who took the opposite view has, after extracting notification dated 10.3.1980, observed in his judgment thus : "The reduced qualifying marks limit is only for filling up the vacant seats and the notification does not seek to amend Rule 20 or substitute 43 per cent for 50 per cent marks in the aggregate as minimum qualifying marks limit laid down under Rule 20.
Indeed, the notification does not state that the reduced qualifying marks limit is in substitution of the one provided in Rule 20.
That being the position, Rule 9 would necessarily operate, and it is for selecting from amongst the candidates for the number of seats remaining vacant by operation of Rule 9.
The petitioner 's contention would have some substance if Rule 9 was not there.
The effect of Rule 9 is to wipe out the reservation for admission to any of the reserved categories.
The main idea is that the best candidates be given admission to the medical colleges.
The reservation is for the purpose of securing a concession and must operate in a like manner 192 as provided in the Rules.
The reservation is not absolute, and, therefore, when the minimum qualifying marks were reduced to 43 per cent it was only for filling up the vacant seats as obtained by operation of Rule 9 of the Rules, according to the merit in the combined merit list.
We are unable to agree with the contention that the reduction in the eligibility to 43 per cent in the Government notification dated March 10, 1980 could be availed of by the petitioner and other similar candidates for filling up the 7 vacant seats in the reserved quota of the children of military personnel".
The learned Chief Justice before whom the matter came up on account of the difference of opinion between the two learned Judges who originally heard the writ petition, as mentioned above, while agreeing with K.K. Dube, J, has observed in his judgment thus : "When even on reduction of qualifying marks under Note (i) the required number of candidates do not qualify for admission under any reserved category and seats remain vacant, Rule 9 begins to apply and as directed by that Rule "such vacant seats shall be filled in by preparing a combined merit list of all the remaining categories of candidates in the waiting list and the candidates shall be admitted according to the merit in the list so prepared".
At this stage there is no further scope for reservation.
In other words, the reservation comes to an end after the required number of candidates in a reserved category do not become available on reduction of qualifying marks in the aggregate by the Board in exercise of its power under Note (i) to Rule 20.
It is generally expected that there would be a long waiting list of qualified candidates in the general category who would be available for filling in the seats transferred from a reserve category to general category.
In 1979, however, it so happened that there were vacancies in the general category, that is, there were not sufficient number of qualified candidates who could have exhausted the general category under Rule 9.
It is at this stage that the Government issued the order dated 10th March, 1980.
It is in the interpretation and application of this order that difference of opinion has arisen.
The 193 Order has not been issued under the Rules.
It is an independent order.
The order does not expressly refer to any reservation.
The order directs selection of candidates for vacant seats on the basis of merit from those who had secured aggregate marks up to 43 per cent.
The order was passed at a stage when the reserved categories had come to an end under Rule 20 read with Rule 9 as sufficient number of candidates were not available.
In my opinion, therefore, Dube, J. was right in holding that the order dated 10th March, 1980 did not bring back the reservation and selection had to be made on the basis of a combined merit list for all the vacant seats irrespective of whether they originally belong to any reserved category. .
There is yet another important factor to be taken notice of.
Not only the vacancies in the reserved category of children of military personnel but there were also vacancies in the category of women to be filled in on the basis of a combined merit list and no reservation was at all allowed in working out the order of 10th March, 1980.
The way in which this order was applied by the Board had apparently the approval of the Government and no other candidate excepting the petitioner has come forward to challenge its application.
As already pointed out, the order is not a statutory order.
It is an order passed by the State Government in the exercise of its executive power.
The Government 's approval of the manner in which the Board has applied the order goes to show that that was the intention of the Government in passing the order.
Although the approval of the Government of a particular mode of application of an order is not decisive of its meaning and it is for the Court to decide the correct meaning, still when the meaning of an order which is purely executive is in doubt the way in which it has been applied by all concerned is a relevant factor to be taken into account in deciding its true meaning.
The uniform application of the order by the Board with apparent approval of the Government for filling in all the vacant seats, goes a long way to show that the Government intended that the order should be applied by preparing a common merit list without continuing the reservations.
In these circumstances, even if the interpretation put forward by the learned counsel for 194 the petitioner and accepted by Navkar, J. can be accepted as a possible interpretation of the order, it would not be right for me to hold that it conveys the true meaning" We are inclined to agree with the conclusion reached by A.R. Navkar, J., though for different reasons.
The matter is simple.
Under Rule 20, the minimum number of marks prescribed for admission into the Medical Colleges in the State is 50 per cent in the aggregate and 33 per cent in each of the subjects.
On that basis, out of the total of 720 seats available in all the six medical colleges in the State only 8 out of 21 of the category of sons and daughters of military personnel, and only 361 out of 699 available for all other categories could be and were admitted in the academic year 1979 80.
Rule 9, which has been relied upon by the respondents as well as by K. K. Dube, J. and the Chief Justice says that in case sufficient number of candidates do not qualify for admission under any reserved category, barring, of course, the category of Scheduled Castes and Scheduled Tribes candidates, and any seats remain vacant, such vacant seats shall be filled by preparing a combined merit list of all the remaining categories of candidates on the waiting list and the candidates shall be admitted according to merit in the list so prepared.
But that Rule was not applied by the respondents and could not be applied under the circumstances of the case when 338 seats in all other categories and 13 seats of the category of sons and daughters of military personnel could not be filled in 1979 80 on the basis of the said minimum number of qualifying marks, namely, 50 per cent in the aggregate and 33 per cent in each of the subjects.
Then Note (1) to Rule 20 providing for lowering of the qualifying marks upto 5 per cent in the aggregate for all categories was applied.
Even then 64 seats of all other categories and 7 seats of the category of sons and daughters of military personnel could not be filled and remained vacant.
Then the Government by an executive order issued the notification dated 10th March, 1980 reducing the minimum qualifying marks to 43 per cent in the aggregate, and it is only at this stage Rule 9 was applied with the result that in the category of sons and daughters of military personnel only 2 more candidates could secure admission and 7 seats of that category had to be filled by other categories.
We are of the opinion that since the minimum qualifying marks were reduced to 43 per cent by an executive order without any provision therefor in the statutory rules, Rule 9 of the statutory rules could not be applied at that stage, and that the appellant who had secured 195 43.6 per cent of marks in the aggregate should have been admitted in the category to which he belongs.
We think that the difference between 45 per cent in the aggregate, to which the minimum qualifying marks were reduced under Note (1) to Rule 20 and 43.6 per cent of marks in the aggregate secured by the appellant is so little that it could not be a valid or sufficient reason for giving a go bye, on the ground of merit, to the reservation provided for in Rule 7 of the Rules.
The appellant deserves to be admitted even for this reason.
In these circumstances we are unable to agree with the view taken by K.K. Dube, J. and the Chief Justice, and we agree with the conclusion reached by A.R. Navkar, J.
The appeal is accordingly allowed without any order as to costs.
As already directed the appellant shall be admitted to the M.B.B.S. course for the academic year 1981 82 in the category mentioned in Rule 7 (3) (c) of the Rules.
S.R. Appeal allowed.

summary/full:
There are six medical colleges in Madhya Pradesh.
Admission to the first year of M.B.B.S. Course is on the basis of the qualifying examination.
There were 720 seats in those six colleges in the year 1979 80.
Under Rule 7 reservations are made for certain categories.
One such is for the sons and daughters of military personnel of Madhya Pradesh and 21 seats in all were reserved for that category.
Under Rule 20, the qualifying marks to be obtained by Candidates other than Scheduled Castes and Scheduled Tribes, shall be 50 per cent in the aggregate and 33 per cent in each of the subjects.
In case the required number of candidates for admission are not available, according to the above percentage of qualifying marks, the Board conducting the pre medical examinations under Rule 2 shall have power to lower the marks up to 5 per cent in the aggregate for all categories of candidates.
Under Rule 9, in case sufficient number of candidates do not qualify for admission under any reserved category and any seats remain vacant, such vacant seats shall be filled by preparing a combined merit list of all the remaining categories of candidates on the waiting list and the candidates shall be admitted according to merit in the list so prepared.
The appellant who was a son of a military personnel got only 43.6 per cent of marks in the aggregate, and he could not get a seat under the reserved category even after the marks were lowered to 45 per cent under Note 1 to Rule 20 by the Board.
Even after that was done, 7 seats remained vacant out of 21 seats reserved for the sons and daughters of military personnel.
On 10 3 1980, the Government by an executive order reduced the minimum aggregate to 43 per cent.
The Board, prepared a combined list under Rule 9 and applying the minimum of 43 per cent granted admission, as per that list, and refused admission to the appellant.
The question arose whether the selection should be based on the combined list prepared under Rule 9 or on taking 43 per cont as the qualifying marks in the aggregate.
187 Allowing the appeal by special leave, the Court, ^ HELD: Since the minimum qualifying marks were reduced to 43 per cent by an executive order without any provision therefor in the statutory rules, Rule 9 of the statutory rules could not be applied at that stage, and the appellant who had secured 43.6 per cent of marks in the aggregate should have been admitted in the category to which he belonged The difference between 45 per cent in the aggregate, to which the minimum qualifying marks were reduced under Note (1) to Rule 20 and 43.6 per cent of marks in the aggregate secured by the appellant is so little that it could not be a valid or sufficient reason for giving a go bye, on the ground of merit, to the reservation provided for in Rule 7 of the Rules.
[194 G H, 195 A B]


judgement:
Civil Appeal No. 478 of 1982 Appeal by special leave from the Judgment and Order dated the 3rd August, 1981 of the Allahabad High Court in Civil Misc.
Writ No. 7869 of 1981.
S.N. Singh for the Appellants.
G.N. Dikshit and Shoba Dikshit for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
The District Co operative Federation (Zila Sahakari Federation), Basti ( 'Federation ' for short) is a co operative society registered under the U.P.
Co operative Societies Act, 1965 ( 'Act ' for short).
As provided by section 29 of the Act, the management of the Federation vests in a committee designated as Committee of Management.
The committee consists of 10 elected members and 1 nominated member.
As the term of the Committee was drawing to a close, programme for election of the new committee of management was announced as required by Part VI of the U.P. Co operative Societies Rules, 1968 ( 'Rules ' for short).
Pursuant to 209 this programme poll was held on September 11, 1978.
It is not made clear to us when the counting of the votes commenced, though rule 444(1) provides that counting of the votes will take place immediately after the close of the poll except when postponed in a given set of circumstances.
Sub rule (4) of rule 444 provides that Election Officer shall announce the result of election as soon as the counting is completed indicating the number of votes secured by each candidate.
It appears that one Shri Kashi Nath whose name did not appear in the voter 's list and who, on account of the omission, could not contest the election filed Civil Suit No. 291 of 1978 in the Court of Munsif, Basti on September 9, 1978 and asked for and obtained ad interim ex parte injunction restraining the defendants in the suit from conducting the election of Board of Directors (Committee of Management), President, Vice President and the delegates of District Co operative Federation, Basti and/or announcing the result of election.
Defendants Nos.
1 to 4 in the suit appeared and contested the application for interim injunction.
The learned Munsif after hearing both sides confirmed the injunction in the following terms: "6 C. is allowed and the defendants No. 1 to 4 are directed not to conduct the election and not to declare the result, if any, of Board of Directors of District Co operative Federation, Basti, till disposal of the suit".
This order was made on September 21, 1978.
It appears that by the time the suit was filed and ex parte ad interim injunction obtained, the poll was already held but by the injunction, the defendants in the suit were prohibited from declaring the result and accordingly the result was not declared.
It now appears that the result was declared on January 28,1980, and the election of the Chairman and the Vice Chairman took place on January 29, 1980.
Appellant No. 1 was elected as Chairman.
The term of the members of the Committee of Management as provided by rule 445 as amended on June 30, 1981, is three co operative years including the year of election.
The Registrar of Co operative Societies pursuant to the amended rule 445 issued a teleprinter message to various authorities indicating that the term of the committee of management has expired and administrator should be appointed as provided by sub section (4) (b) of section 29 of the Act.
Pursuant to this teleprinter message, the Deputy Registrar, Co operative Societies, Gorakhpur made an order on July 1, 1981, that the term of the members of the committee of management of the Federation has expired on June 210 30, 1981, and proceeded to appoint an administrator.
The appellants questioned the validity and legality of the order of the Deputy Registrar in Writ Petition No. 7869 of 1981 filed in the High Court of Judicature at Allahabad.
The High Court was of the opinion that even though under rule 445 the term of the office of the elected members of the committee of management of co operative society is three co operative years including the co operative year of their election, once the poll is held and even though the result of the election is not announced, the term would commence from the date of the poll and therefore the decision of the Deputy Registrar that the term expired on June 30, 1981, is correct.
The High Court accordingly dismissed the writ petition.
Hence this appeal by special leave limited to one point only, namely, the commencement and completion of the term of office of the members of the committee of management of the second appellant.
Section 29(1) provides that the management of every co operative society shall vest in a committee of management constituted in accordance with the Act, the rules and the bye laws.
Sub section (2) provides that the term of the elected members of the committee of management shall be such as may be provided in the rules or the bye laws of the society.
Rule 445(1) provides that except as otherwise provided in rules 406, 433, 434 and 435 the term of the office of the elected members of the committee of management of a co operative society shall be three co operative years including the co operative year of their election.
Explanation appended to this Rule clarifies how the period of three co operative years is to be computed.
In substance the explanation clarifies that: "For the purpose of determination on the term of a elected member the co operative year during which the elections are held shall count as full year irrespective of the period left after such election in that co operative year".
There is a proviso to this explanation which is immaterial.
The expression 'co operative year ' is defined in section 2(i) of the Act to mean the year commencing on the 1st day of July and ending on the 30th day of June next following.
Part VI of the Rules sets out procedure for holding the election.
Election of members of committee of management of a co operative society has to be held in accordance with the provisions of the Act and rules and the District Magistrate of the district in which the 211 headquarter of the society is situated, shall take steps to organise the election under the superintendence, direction and control of the Registrar [see rule 439 (1)].
Sub rule (1) of rule 439 provides that the election in a co operative society or societies or a class or classes of co operative societies shall be held on such due date or dates as the Registrar may be order fix and the District Magistrate concerned shall on such dates being so fixed appoint by order one or more Election Officers or different Election Officers for different class or classes of society or for different areas for this purpose.
Sub rule (3) provides that the Election Officer shall perform all such functions as are enjoined upon him by the Rules or as may be incidental to or necessary for the discharge of his duties.
Rule 444 provides that the counting of votes will take place immediately after the closing of the poll and in case it is not possible to count votes immediately after the close of the poll, the ballot boxes shall be sealed by the Election Officer and kept in the safe custody in the nearest police station.
Sub rule (4) of rule 444 provides that the Election Officer shall announce the result of election as soon as the counting is completed indicating the number of votes secured by each candidate.
Sub rule (6) provides that the Election Officer shall display a list of elected candidates on the notice board of the society and also at such public places as he may deem fit.
Sub rule (7) provides that a copy of the list prepared under sub rule (6) shall be sent to the District Assistant Registrar concerned or the officer authorised under sub rule (2) of rule 440 and also to Secretary/Managing Director of the Society concerned.
Having noticed the conspectus of the provisions bearing on the topic 'election to a co operative society ', the principal point canvassed in this petition may be examined.
According to the appellant even though the poll was held on September 11, 1978, the result, as required by rule 444(4), was declared for the first time on January 28, 1980, the term of three co operative years of the elected members of the co operative society will expire on June 30, 1982.
On the other hand, according to the respondents, as the poll was held on September 11, 1978, the term of three co operative years including the co operative year of the election has expired on 30th June, 1981 and therefore the order appointing the administrator was legal and valid.
The question that emerges on rival contentions is as to from what date the term of the elected members of the committee of 212 management shall commence.
The period of three years as amplified by the Explanation to rule 445(1) is to be reckoned not from the date of the election but the term shall be three co operative years including the co operative year of the election.
The co operative year, as pointed out earlier, commences on July 1 and ends on June 30 of the next succeeding year.
Therefore, if the term commences from the date of poll which happened to be September 11, 1978, the whole of co operative year commencing from July 1, 1978 would have to be taken into reckoning for computing the term of three years and, therefore, three years would expire on June 30, 1981.
The question, however, is whether mere holding of the poll constitutes election of the members of committee of management or the result being declared after the counting has been completed and notified in the manner prescribed by sub rules (6) and (7) of rule 444 would provide the starting point for a terminus quo for the term of office to commence.
If the term was to commence on the declaration of the result of election, in this case admittedly the result was declared on January 28, 1980, that date would fall within the co operative year from July 1, 1979 to June 30, 1980, and the term of three co operative years would expire on June 30, 1982.
At one stage, Mr. Dixit, learned counsel for the respondents stated that there is no stage like declaration of result when the election of the members of the committee of management of a co operative society is held.
Sub rule (4) of rule 4444 clearly indicates to the contrary and it casts an obligation on the Election Officer to announce the result of election as soon as the counting is complete and he is also under a duty to indicate the number of votes secured by each candidate.
His duty does not end there.
He has to display a list of elected candidates on the notice board of the society and also at such public places as he may deem fit.
He is also under an obligation to send a copy of the list prepared under sub rule (6) to the District Assistant Registrar concerned.
it is, therefore, not possible to accept the submission that there is nothing like a stage of announcement of the result of election when election is held for electing members of the committee of management of a co operative society.
In fact, the various stages of election are clearly demarcated in the rules.
If the poll has become necessary and is held the unavoidable and inescapable stage of counting of votes and the next stage of announcement of result and subsequently publicising the result are part and parcel and necessary adjuncts of conducting poll.
If the rules provide for all the three stages it is difficult to accept the submission that by merely 213 holding of the poll, the process of election can be said to have been completed and the term of members who had contested would commence from the time of holding the election.
That is what the High Court holds.
Says the High Court: "that the elections since were held on 11.9.78, mere act of not declaring the result on account of any order issued by the Court or a stay order granted by it which was subsequently vacated could not be taken as if the term of the committee of the management has not commenced".
The High Court, at another stage, observed that the postponement of declaration of the result did not justify the holding of the view that elections had not been held in September 1978.
Taken to the logical end, the judgment of the High Court would imply that elected and non elected members both who participated in the poll would have their term as members commence since the poll is held.
Could this be the intendment of rule 445(1) ? This approach betrays lack of knowledge of the democratic process of election.
When the number of the members to be elected to the committee of management is fixed and candidates in excess of the fixed number are desirous of seeking office, the democratic process postulates holding of elections.
Mere holding of poll which means recording of votes without anything more would be inconsequential.
It is the counting of votes and the consequent declaration of result showing who amongst the contesting candidates has secured highest number of votes or large number of votes which would determine who has become eligible for office by the democratic process.
Therefore, recording of votes is a preliminary stage, the counting of votes and declaration of result are integral and inseparable part of process of holding and completing the process of election.
No election process can be said to be complete unless the votes are recorded, they are counted and those who have secured highest number of votes are declared elected and the result is publicised, as required by the relevant provision.
Rule 445(1) provides that the term of office of the elected members of a committee of management of a co operative society shall be three co operative years including the co operative year of their election.
This provision indicates the terminus quo for commencement of the term, viz., that the term of office of the elected members would be three co operative years including the year of their election.
Election means process of being elected and the term of office is of the elected member, not of contesting member.
When candidates offer themselves for election, they are 214 called candidates and unless elected the term of such candidates would not commence.
Their term would commence when etected.
The expression 'year of their election ' even on literal and grammatical construction would mean the year in which the member concerned whose term is in dispute, is declared elected meaning thereby he became eligible for office and entitled to enter office as a member.
Apart from literal construction, the completed process of election comprehends nomination, recording of votes, counting of votes and declaration of result and publicising and notifying the result.
There ends the process of election.
Recording of votes is a mere stage in the process of election.
Even when votes are recorded, the candidates contesting the poll do not acquire the status of members of committee of management.
That status is acquired on being declared elected.
And unless that status is acquired the term of office as member cannot begin to run.
Therefore, the expression 'co operative year of their election year ', upon true construction can only mean the year in which the member is declared elected and not the year in which he contested the poll.
Turning to the facts of this case, undoubtedly the poll was held on September 11, 1978, but in view of the injunction granted by the learned Munsif the respondents were restrained from declaring the result.
In the counter affidavit filed on behalf of the respondents in the High Court, the fact that the result was declared on January 28, 1980, is admitted.
The relevant portion reads as under: "4.
That the election of the committee of management of the Federation was held on 11.9.78 and not on 28.1.80 as alleged in the writ petition: In fact, the election was actually held on 11.9.78, but the declaration of the result of election stayed in pursuance of the order of learned Munsif, Basti, in Suit No. 291 of 1978 (Kashi Nath Tripathi vs D.M., Basti).
Consequent upon the order of the learned Munsif, the election officer also passed similar order on 11.9.78 on which date the election was held.
The result was subsequently declared on 28.1.80".
It is thus an admitted position that even though the poll was held on September 11, 1978, on account of the injunction granted by the Court, the result was declared on January 28, 1980.
On the very next day, i.e. January 29, 1980, first appellant was elected as Chairman of the Federation.
Once it is admitted that the result was declared on January 28, 1980, the term of the members of the committee of the management would commence from the co 215 operative year July 1, 1979, ending with June 30, 1980, and including this year the term would be of three years.
Therefore, obviously the term would expire on June 30, 1982.
Mr. Dixit, however, urged that where for any reason whatsoever, election of the elected members of the committee of management has not taken place or could not take place before the expiry of the term of elected members, the committee of management shall, notwithstanding anything to the contrary in the Act or the Rules or the bye laws of the society, cease to exist on the expiry of the said term.
In support of this submission he relied upon sub section (4) (a) and (b) of section 29.
They may be extracted: "29.
Committee of management: x x x x (4) (a) Where, for any reason whatsoever the election of the elected members of the committee of management has not taken place or could not take place before expiry of the term of elected members, the committee of management shall, notwithstanding anything to the contrary in this Act or the rules, or the bye laws of the Society, cease to exist on the expiry of such term.
(b) On or as soon as may be after the expiry of such term, the Registrar shall appoint an Administrator for the management of the affairs of the society until the reconstitution of the Committee of Management in accordance with the provisions of this Act, the rules and the bye laws of the society, and the Registrar shall have power to change the Administrator from time to time: Provided that so long as no Administrator is appointed under this sub section, the Secretary or the Managing Director, as the case may be, of the society shall be in charge only of the current duties of the committee of management.
Explanation Where results of the election of members of the Committee of Management have not been or could not be declared, for any reason whatsoever, before the expiry of the term of the elected members of the outgoing commit 216 tee, it shall be deemed that the election of the elected members of the committee has not taken place within the meaning of this sub section".
Sub section 4(a) would not be attracted at all in the facts of this case because when the term of the members of the former committee of management expired, poll was held on September 11, 1978.
Once poll was held as a part of the programme of the election it must progress to the statutory end of declaration of result.
Unless the term begins to run it cannot come to an end.
Sub section (4) (a) caters to a situation where the term of the members of a committee of management has begun and the election could not be held before the expiry of the term then, notwithstanding that no election has been held the term of the members of the former committee would come to an end and the committee of management would cease to exist on expiry of said term.
Sub section (4) (b) would only by be attracted if the term expires as contemplated by sub section (4) (a).
If the term expires and the old managing committee whose term has expired ceases to exist and the election has not been held or could not be held to elect a new committee of management then in the interregnum the Registrar has the power to appoint an administrator for the management of the affairs of the society.
In the fact situation as we have in the present case, sub section (4) (a) and (b) are not attracted and, therefore, the provision therein contained would not assist the respondent in any manner.
As the term of the committee of management would commence from the co operative year from July 1979 to June 1980, the same would expire on June 30, 1982.
On this reckoning the Registrar could not have issued teleprinter message declaring that the term has come to an end on June 30, 1981.
If the term had not expired, the administrator could not be appointed as contemplated by sub section (4) (b) of section 29.
Therefore, the order of the Deputy Registrar of the Co operative Societies, Gorakhpur Division dated July 1, 1981, appointing administrator is without jurisdiction and is clearly illegal and invalid and must be quashed and set aside.
Mr. Dixit lastly urged that even on the view this Court would take, the term of the committee of management would expire on June 30, 1982, and therefore, hardly a period of four months remains and the Court should not, therefore, disturb the administrator.
This submission does not commend to us because the Government by executive fiat cannot reduce the term of office statutorily fixed.
Further, the elections to panchayats, co operative societies and 217 smaller local bodies provide an apotheosis or a training ground for success of our larger experiment of parliamentary democracy.
Election process is sacrosanct.
Members elected must be permitted to discharge their functions as chosen representatives of the electorate for the statutory terms.
Such a drastic power of removing elected representatives before the expiry of term and substituting non elected persons must receive strict and narrow interpretation at the hands of the courts.
If allowed to foster it would be the negation of the democratic process and would engulf the whole fabric of democratic institutions which we are trying to build up.
Therefore, even though the term would expire roughly after four months, we would be perfectly justified in removing the administrator and re instating the elected representatives.
Accordingly, this appeal is allowed and the judgment of the High Court is set aside.
A writ in the nature of mandamus is issued quashing the impugned order dated July 1, 1981, of the Deputy Registrar, Co operative Societies, Gorakhpur Division, Gorakhpur.
It is declared that the term of the committee of management of District Co operative Federation Limited, Basti, and the 1st appellant Chairman has not expired and the elected members continue to occupy the office.
The administrator is hereby directed to hand over the charge forthwith to the Chairman of the Committee of Management.
There will be no order as to costs.
H.L.C. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The management of a cooperative society registered under the U.P. Cooperative Societies Act vests in a committee constituted in accordance with the provisions of the Act and the Rules made thereunder.
The term of elected members of a committee, according to section 29(2) read with r. 445(1) is three 'Cooperative years ' including the cooperative year in which they are elected. 'Cooperative year ' means the year commencing on the 1st day of July and ending on the 30th day of June next following.
Fresh members are to be elected before the expiry of the term of existing elected members failing which an administrator can be appointed by the Deputy Registrar, Cooperative Societies to manage the affairs of the cooperative society till the reconstitution of the committee.
In this case the term of the cooperative society in question was drawing to a close and the poll to elect fresh members was held on September 11, 1978.
The result of the poll could not be declared immediately owing to an injunction issued by a court in a suit filed by a voter whose name had not appeared in the electoral roll.
The result was, however, declared ultimately on January 28, 1980, and appellant No. 1 was elected Chairman of the committee on January 29, 1980.
By an order dated July 1, 1981, made under section 29(4) (b), the Deputy Registrar, Cooperative Societies appointed an administrator to manage the affairs of the society on the ground that the term of members of the Committee had expired on June 30, 1981.
The appellants challenged the validity of the order under article 226.
The High Court upheld the impugned order and dismissed the petition on the ground that once the poll was held and even though the result of the election was not announced, the term would commence from the date of the poll.
The appellants submitted that even though the poll was held on September 11, 1978, the result having been declared for the first time on January 28, 1980, the term of three cooperative years of the elected members would expire on June 30, 1982.
Allowing the appeal, ^ HELD: 1.
(a) Election means the process of being elected and the term of office is of elected members.
The term of office as member cannot begin to run unless the status of being a member is acquired on being declared elected.
208 The result of the election having been declared on January 28, 1980, the term of members commenced from the cooperative year beginning on July 1, 1979 and ending with June 30, 1980 and since their term was three cooperative years including the year of election, it would expire on June 30, 1982.
The order appointing the administrator was, therefore illegal.
[213 H, 214 H, 215 A, 216 F G] (b) The provision of section 29(4) (b) was not attracted as the process of election had begun with the holding of the poll before the expiry of the term and, once the poll was held as a part of the programme of election, it had to progress to the statutory end of declaration of result.
[216 B E] 2.
The various stages of election were clearly demarcated in the Rules.
Mere holding of poll, which means recording of votes, without anything more would be inconsequential.
It is the counting of votes and the consequent declaration of result which would determine who has become eligible for office by the democratic process.
No election process can be said to be complete unless the votes are recorded and counted and the result of the election declared and publicised.
[212 G H, 213 E G] 3.
The election process is sacrosanct and members elected must be permitted to discharge their functions as chosen representatives of the electorate for the statutorily prescribed term and therefore the plea that the administrator should not be disturbed as only four months would remain for the expiry of the term cannot be countenanced.
The drastic power of removing elected representatives before the expiry of their term must receive strict and narrow interpretation.
[217 A C]


judgement:
Civil Appeal No. 1667 of 1981.
Appeal by special leave from the judgment and order dated the 30th July, 1980 of the Bombay High Court in Special Civil Application No. 1931 of 1975.
U.R. Lalit and Mrs. Jayshree Wad for the Appellants.
Naunit Lal for Respondents Nos. 1 to 4.
R.N. Poddar for Respondent No.5.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal by special leave is directed against the judgment and order dated July 30, 1980 of the High Court of Judicature at Bombay in Special Civil Application No. 1931 of 1975.
The question for consideration in this appeal is whether the proceedings commenced with the filing of a return by a person holding on the appointed day land in excess of the ceiling area prescribed by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as the 'Act ') would become infructuous and would have to be dropped if such person dies before a notification containing the declaration regarding sur 223 plus land held by him is published in the Official Gazette under section 21 of the Act and possession of such surplus land is taken over by the authorities concerned.
An extent of land measuring 21 A, 28 G, bearing Survey No. 34 situated in village Manori, Taluka Rahuri of Ahmednagar district in the State of Maharashtra belonged to respondents 1 to 4 but was in the possession of their tenant by name Bhikoba on the date of the commencement of the Act, i.e. January 26, 1962, which was the appointed day as defined by section 2(4) of the Act.
The Act was passed for the purpose of imposing a maximum limit (or ceiling) on the holding of agricultural land in the State of Maharashtra; to provide for the acquisition and distribution of land held in excess of such ceiling; and for matters connected with the purposes aforesaid.
Section 2(16) of the Act defined the expression "land" as land which was used or capable of being used for purposes of agriculture and included the sites of farm buildings on, or appurtenant to such land and land on which grass grows naturally.
Chapter II of the Act contained the provisions (Sections 3 to 7) prescribing the ceiling on holding of land, Chapter III contained the provisions (Sections 8 to 11) imposing restriction on alienation and acquisitions of land and laying down the consequences of contraventions of those provisions, Chapter IV contained provisions (Sections 12 to 21) for determining the extent of surplus land, Chapter V contained provisions (Sections 22 to 26) for determination of compensation payable to expropriated persons and Chapter VI which included (Sections 27 to 29) dealt with the mode of distribution of surplus land amongst those who were landless and who otherwise deserved to be granted land.
These and the other provisions in the Act were enacted with the object of providing for the more equitable distribution of agricultural land amongst the peasantry in the State of Maharashtra.
It may be mentioned here that Chapters II and III of the Act came to be substituted by new Chapters II and III by section 4 of the Maharashtra Act 21 of 1975.
Section 5 of the said Act, however, read as follows: "5.
Notwithstanding the substitution of the Chapters II and III by section 4 of this Act all proceedings pending immediately before the commencement date in any court or tribunal or before any authority for the purpose of 224 determining the ceiling area in respect of any holdings and the surplus land in such holdings in pursuance of the provisions in the original Chapters II and III shall be continued and disposed of by or under the principal Act, as if that Act had not been amended by the Amending Act, 1972; and the amount of compensation for such surplus land acquired by the State Government under sub section (4), or as the case may be, sub section (5), of section 21 shall be at the rate provided in the principal Act as unamended by this Act.
After the ceiling area is determined and the area delimited as surplus land is declared finally under section 21 of the principal Act, then, subject as aforesaid, the provisions of the principal Act as amended by this Act shall apply to such holding and land declared as surplus land.
" There was a further modification made in the new Chapters II and III by the Maharashtra Act 47 of 1975.
In view of the saving clause contained in section 5 of the Maharashtra Act 21 of 1975 reproduced above this case has to be decided in accordance with the provisions contained in Chapters II and III as they stood before their substitution since the proceedings with which we are concerned had already commenced and were pending immediately before the commencement of the said Amending Act.
Hence reference will be made hereafter to the provisions contained in Chapters II and III as they stood before their substitution.
Section 3 of the Act as it was originally enacted read as follows: "3.
In order to provide for the more equitable distribution of agricultural land amongst the peasantry of the State of Maharashtra (and in particular, to provide that land less persons are given land for personal cultivation), on the commencement of this Act, there shall be imposed to the extent, and in the manner hereinafter provided, a maximum limit (or ceiling) on the holding of agricultural land throughout the State.
" Section 4 of the Act prohibited holding of land by any person in excess of the ceiling area and declared that subject to the pro 225 visions of the Act, all land held by a person in excess of the ceiling area should be deemed to be surplus land and dealt with in the manner provided by the Act.
Sections 5 to 7 of the Act laid down the principles for the computation of the ceiling area in various cases.
As required by section 12 of the Act as it stood at the commencement of the Act Bhikoba, the tenant concerned in this case, filed before the Special Deputy Collector (especially empowered by the State Government to exercise the powers and perform the functions of the Collector under the Act) a return in the prescribed form furnishing particulars of land including the extent of 21 A, 28 G. bearing Survey No. 34 referred to above in his possession on the appointed day.
After recording the statement of Bhikoba and considering all the other relevant material before him the Special Deputy Collector found that Bhikoba was in possession of surplus land to the extent of 132 A. 1 G. and he made an order accordingly on March 27, 1965.
Against that order Bhikoba filed an appeal and the appellate authority by its order dated April 13, 1966 partly allowed the appeal and remanded the matter with some directions.
Thereafter Bhikoba died on January 31, 1969.
On June 27, 1969, the Special Deputy Collector after hearing the legal representatives of Bhikoba held that Bhikoba was a surplus holder of land to the extent of 16 A. and 26 G. Against that order Daulatram, Triambak, Dattatraya and Madhukar, the four sons of Bhikoba who are shown as the legal representatives (a to d) in this case filed an appeal before the Maharashtra Revenue Tribunal.
That appeal was dismissed on November 4, 1970 on the ground that it was a premature one as the holders had not yet exercised their choice under section 16(2) of the Act and a declaration under section 21 had not yet been made.
Thereafter a notice was issued to the heirs of Bhikoba under section 16 of the Act to exercise their choice in respect of land to be retained by them out of Bhikoba 's holding to the extent of the ceiling area.
The heirs of Bhikoba filed objections to the said notice on November 23, 1971 pleading inter alia that a holder of land in excess of the ceiling prescribed by the Act would be divested of his title to the surplus land only when its possession was taken from him after the publication of the notification under section 21 of the Act and since such notification had not yet been published and possession of surplus land had not been taken, Bhikoba continued to be the owner of the entire land (including the extent determined as surplus land) till his death and 226 that as inheritance could not remain in abeyance, his heirs at law became entitled to the entire land.
They contended that if a fresh determination was then made there would be no surplus land at all in their hands, which had to be surrendered.
They, therefore, prayed that the proceedings which were commenced with the return filed by Bhikoba should be dropped as they had become infructuous.
The Special Deputy Collector accepted the plea of the heirs of Bhikoba and dropped further proceedings as prayed for by them by his order dated March 13, 1973.
The respondents 1 to 4 who would have become entitled to claim relief under the Act at the time when the distribution of surplus land held by Bhikoba was taken up for consideration preferred an appeal against the order of the Special Deputy Collector dropping the proceedings as mentioned above before the Maharashtra Revenue Tribunal.
The Tribunal by its judgment dated January 31, 1975 dismissed the appeal following the decision of the High Court of Bombay (Nagpur Bench) in Dadarao Kashiram vs The State of Maharashtra(1).
Aggrieved by the decision of the Tribunal, respondents 1 to 4 filed a petition under Article 227 of the Constitution in Special Civil Application No. 1931 of 1975 before the High Court of Bombay.
That petition was allowed by the High Court by its judgment dated July 30, 1980 by which the order of the Tribunal was set aside and the matter was remanded to the Special Deputy Collector to continue the proceedings commenced on the basis of the return filed by Bhikoba in the presence of his legal representatives to determine the surplus land held by Bhikoba as on the appointed day and to dispose of the same in accordance with law.
This appeal by special leave is filed against the aforesaid judgment of the High Court.
There is no merit in the first contention urged in support of the above appeal viz. that respondents 1 to 4 had no locus standi to file an appeal against the order of the Special Deputy Collector dated March 13, 1973 dropping the proceedings which commenced with the return filed by Bhikoba.
It is no doubt true that at the first instance the land which is declared as surplus land in the hands of any person would vest in the State Government.
But the said land has to be distributed in accordance with the provisions contained in Chapter VI of the Act.
Any person who is entitled to 227 grant of land under any of the provisions of the Act may question any order which would have the effect of reducing the extent of total surplus land in any village.
Respondents 1 to 4 were the former landlords of the land bearing Survey No. 34 which formed part of the holding of Bhikoba.
They cannot, therefore, be characterised as just strangers to these proceedings.
It cannot, therefore, be said that respondents 1 to 4 had no locus standi to file an appeal before the Maharashtra Revenue Tribunal and then a petition under Article 227 of the Constitution before the High Court.
This contention is, therefore, rejected.
The next contention of the appellants is based on the judgment of the High Court of Bombay in Dadarao Kashiram 's case (supra).
It is no doubt true that the said decision supports the contention of the appellants that the proceedings initiated by a return filed by a holder of land would be come infructuous on his death if it takes place before a notification is issued under section 21 of the Act.
The said decision was rendered by the High Court relying upon the decision of the Bombay High Court in Commissioner of Income Tax vs Ellis C. Reid(1) and the decision of this Court in its Commissioner of Income Tax, Bombay City vs Amarchand N. Shroff(2) by the heirs & legal representatives both of which arose under the Indian Income tax Act, 1922.
We do not have provisions corresponding to the Indian Income tax Act, 1922 in the Act.
It is very hazardous to decide cases in which proprietary rights arise for determination on the basis of decisions rendered under taxation laws which have their own peculiarities.
The Act is not one levying tax on the income during the previous year or previous years or of a period other then the previous year in the hands of an assessee but a law imposing a ceiling on the holding of a person or a family as on a specified date.
The Act has to be construed in accordance with its scheme and object which, as stated earlier, is equitable distribution of land amongst the landless by taking over surplus land in the hands of those who held land in excess of the ceiling limit on the appointed day, or those who would acquire subsequently land in excess of the ceiling or those who own lands which exceed the ceiling limit by reason of their conversion into a different class.
In order to achieve that object, the Legislature enacted sections 3 and 4 of the Act declaring that no person could on or after the appointed day hold land in excess of the ceiling area and compelling every person acquiring or coming into possession of any 228 land in excess of the ceiling area on or after the appointed day to file a return before the Collector furnishing particulars of all land held by him.
Section 18 of the Act requires the Collector to hold an enquiry into the several matters set out therein including the total area of land held by a person on the appointed day.
Sections 19 and 20 of the Act provide for the restoration of land to a land lord in certain cases.
Section 21 provides that, as soon as may be, after the Collector has considered the matters referred to in section 18 and the questions, if any, under sub section (3) of section 20, he shall make a declaration stating therein his decision on (a) the total area of land which the person (who has filed a return) is entitled to hold as the ceiling area, (b) the total area and particulars of land which is in excess of the ceiling area, (c) the name of the person to whom possession of land is to be restored under section 19, and area and particulars of such land, (d) the area, description and full particulars of the land which is delimited as surplus land and (e) the area and particulars of land which is to be forfeited to the State Government under sub section (3) of section 10 or under the provisions of sub section (3) of section 13 of the Act.
After a declaration under sub section (1) of section 21 is made, as stated above, the Collector has to notify in the prescribed form in the Official Gazette the area, description and full particulars of the land which is delimited as surplus land, and also of the land which is to be forfeited to the State Government.
Any declaration made under section 21 of the Act is subject to the decision of the Maharashtra Revenue Tribunal in appeal and subject to any decision that may be made in such appeal, the Collector is empowered to take possession of the surplus land and with effect from the date of taking over possession, such surplus land vests in the State Government.
A close reading of the aforesaid provisions of the Act shows that the determination of the extent of surplus land of a holder has to be made as on the appointed day.
If any person has at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area, such person should file a return within the prescribed period from the appointed day furnishing to each of the Collectors within whose jurisdiction any land in his holding is situated, in the form prescribed containing the particulars of all land held by him.
If any person acquires, holds or comes into possession of any land including any exempted land in excess of the ceiling area on or after the appointed day, such 229 person has to furnish a return as stated above within the prescribed period from the date of taking possession of any land in excess of the ceiling area.
If any person whose land is converted into another class of land in the circumstances described in section 11 A (formerly numbered as section (11) thereby causing his holding to exceed the ceiling area then such person has to file a return as mentioned above within the prescribed period from the date of such conversion (such date being a date to be notified in the Official Gazette by the State Government in respect of any area).
It is obvious from the foregoing requirements prescribed under section 12 of the Act that the crucial date with reference to which the extent of the surplus land held by a person is to be determined is the appointed day in the case of persons holding land in excess of the ceiling area at any time after the fourth day of August, 1959 but before the appointed day and in the case of those acquiring, holding or coming into possession of such excess land on or after the appointed day, the day on which they acquire possession of any land in excess of the ceiling area.
In the case of those who are affected by section 11 A of the Act, the crucial date is the date of conversion.
If a person is found to be in possession of land in excess of the ceiling area at any time after the fourth date of August, 1959 but before the appointed day, he incurs the liability to surrender any surplus land as on the appointed day on the appointed day itself even though the actual extent of such surplus land is determined on a subsequent date.
Similarly those who acquire land in excess of the ceiling area on or after the appointed day would become liable to surrender surplus land on the date of taking possession of any land in excess of the ceiling area.
A person whose case falls under section 11 A of the Act becomes liable to surrender any surplus land in his possession as on the date of conversion of land into irrigable land.
This liability to surrender surplus land would not in any way come to an end by reason of the death of such holder before the actual extent of surplus land is determined and notified under section 21 of the Act.
It is no doubt true that section 21 of the Act states that the title of the holder in the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land is published in the Official Gazette.
But the liability to surrender the surplus land, however, relates back to the appointed day in the case of those who fall under section 12(1)(a) of the Act, to the date of taking possession 230 of any land in excess of the ceiling area in the case of those who come under section 12(1)(b) of the Act and to the date of conversion of land into a different class in the case of those who come under section 12(2) of the Act.
Any other construction would make the Act unworkable and the determination of the extent of surplus land of a holder ambulatory and indefinite.
It is significant that section 8 of the Act prohibits transfer or partition of any land held by a person holding land in excess of the ceiling area on or after the appointed day until the land in excess of the ceiling is determined under the Act.
Section 10 provides that if any person after the 4th day of August, 1959 but before the appointed day transferred or partitioned any land in anticipation of or in order to avoid or defeat the objects of the Act or any land is transferred or partitioned in contravention of provisions of section 8 then in calculating the ceiling area which that person is entitled to hold the area so transferred or partitioned should be taken into consideration and land exceeding the ceiling area so calculated should be deemed to be in excess of the ceiling area for that holding notwithstanding the land remaining with him may not in fact be in excess of the ceiling area.
The expression 'holding ' used in sections 3, 5, 6 and 10 shows that the statute treats a holding as a unit for purposes of determination of surplus land which can be acquired from such holding.
Section 2(14) which defines the expression to hold land ' as 'to be lawfully in actual possession of land as owner or tenant ' requires that the expression 'holding ' should be construed accordingly.
Section 3 of the Act expressly imposes a limit on the holding of agricultural land on the commencement of the Act.
The extent of surplus land which the Government can acquire under the Act from a holder cannot therefore be made to depend upon the date on which a declaration indicating the extent of surplus land is notified in the Official Gazette under section 21 and the date on which such surplus land is taken possession of.
It cannot also be made to depend upon the holder who has incurred the liability on the relevant date being alive on the date on which the declaration is made under section 21 and possession of surplus land is taken.
The acceptance of the contention urged on behalf of the appellant that the proceedings initiated by a return filed by a holder have to be dropped if such holder dies before a declaration is made under section 21 and surplus land is taken possession of would frustrate the very object and purposes of the Act.
231 In Raghunath Laxman Wani & Ors.
vs State of Maharashtra & Ors.
,(1) this Court had to examine the scheme of the Act while considering the question whether in the case of a family, the ceiling area would be liable to fluctuations with the subsequent increase or decrease in number of the family members.
Dealing with that question the Court observed thus: "The scheme of the Act seems to be to determine the ceiling area of each person (including a family) with reference to the appointed day.
The policy of the Act appears to be that on and after the appointed day no person in the State should be permitted to hold any land in excess of the ceiling area as determined under the Act and that ceiling area would be that which is determined as on the appointed day.
Therefore, if there is a family consisting of persons exceeding five in number on January 26, 1962, the ceiling area for that family would be the basic ceiling are a plus 1/6th thereof per member in excess of the number five.
The ceiling area so fixed would not be liable to fluctuations with the subsequent increase or decrease in the number of its members, for, there is, apart from the explicit language of secs.
3 and 4, no provision in the Act providing for the redetermination of the ceiling area of a family on variations in the number of its members.
The argument that every addition or reduction in the number of the members of a family requires redetermination of the ceiling area of such a family would mean an almost perpetual fixation and re fixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contemplated by the legislature.
The argument would also mean that where a surplus area is already determined and allotted to the land less persons such area would have to be taken back and given to a family, the number of whose members subsequently has augmented by fresh births.
" The above view supports our conclusion that the surplus land in the case of a person who at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area has got to be determined as on the appointed day even though such person may 232 die before the actual extent of surplus land is determined and notified under section 21 of the Act.
The persons on whom his 'holding ' devolves on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the deceased would not come to an end on his death.
The heirs of the deceased cannot be permitted to contend to the contrary and allowed to get more land by way of inheritance than what they would have got if the death of the person had taken place after the publication of the notification under section 21.
At this stage it is necessary to refer to another contention of the appellants based on the second paragraph of sub section (2) of section 3 of the new Chapter II of the Act which is substituted in the place of the original Chapter II by the Maharashtra Act 21 of 1975.
The relevant part of the said paragraph reads: "In determining surplus land from the holding of a person, or as the case may be, of a family unit, the fact that the person or any member of the family unit has died (on or after the commencement date or any date subsequent to the date on which the holding exceeds the ceiling area, but before the declaration of surplus land is made in respect of that holding) shall be ignored; and accordingly, the surplus land shall be determined as if that person, or as the case may be, the member of a family unit had not died.
" It is contended that because for the first time the Legislature by introducing the above said paragraph directed that if a person dies after the commencement of the Act but before the declaration of surplus land is made in respect of his holding, the fact of his death should be ignored and the surplus land should be determined as if that person had not died, it should be held that before the introduction of that paragraph the proceedings needed to be dropped on the death of the person taking place before the declaration was made.
It appears to us that the said paragraph was introduced by way of abundant caution to get over the possible objection raised on the basis of the decision in the case of Dadarao Kashiram.
The said paragraph is merely declaratory of what the true legal position had always been even from the commencement of the Act.
The introduction of an express provision to the above effect does not have the effect of altering the true legal position as explained by us above even without the aid of such express provision.
This becomes 233 further clear from the observations found in the decision of this Court in Raghunath Laxman Wani 's case (supra).
It may be noticed that the said paragraph in the new section 3(2) refers to two contingencies (i) the death of a person who was holding land in excess of the ceiling limit and (ii) the death of any member of a family unit owning land in excess of the ceiling on the appointed day.
It provides that the death of the person or the death of a member of the family unit as the case may be should be ignored.
One of the contentions urged before this Court in that case was that the Tribunal was wrong in not taking into consideration the three children born in the family after the appointed day while determining the ceiling area to which the family of the appellants therein was entitled to.
This Court rejected that plea and upheld the decision of the Tribunal observing that "the argument that every addition or reduction in the number of the members of the family requires redetermination of the ceiling area of such a family would mean an almost perpetual fixation and re fixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contemplated by the Legislature".
This conclusion was reached by this Court without the aid of any provision in the Act at the relevant time corresponding to the second paragraph of the new section 3(2) of the Act.
This case was no doubt one relating to a claim based on the birth of three children.
In principle it applies to the case where the number of members of a family decreases on account of death of any of its members, as observed by the Court.
On the same analogy it has to be held that the death of a person after the appointed day also would make no difference so far as the liability of his holding to part with the surplus land is concerned.
Hence it has to be held that the introduction of the second paragraph of the new section 3(2) does not lead to any conclusion different from the one which we have reached in this appeal.
In view of the foregoing, the decision of the High Court of Bombay in Dadarao Kashiram 's case (supra) cannot be considered as a correct one and we, therefore, overrule it.
The High Court was right in the present case in holding that the proceedings commencing with the return filed by Bhikoba could not be dropped merely because he died before a notification was issued under section 21 of the Act.
The proceedings have to be continued and the surplus land in the hands of Bhikoba as on the appointed day should be determined and taken possession of in 234 accordance with law.
The heirs of Bhikoba are entitled to participate in the said proceedings representing the estate of Bhikoba.
They would be entitled as heirs at law only such land that may remain after surrendering the surplus land as may be determined under the Act.
In the result, the appeal fails and is hereby dismissed.
No costs.
S.R. Appeal dismissed.

summary/full:
Bhikoba, the tenant (the predecessor of the appellants), as required by section 12 of the Maharashtra Land Ceiling Act, filed before the Special Deputy Collector a return in the prescribed form furnishing particulars of land including the extent of 21 acres 28 guntas bearing Survey No. 34 in his possession on the appointed day, that is, January 26, 1962.
After recording the statement of Bhikoba and considering all the other relevant material before him, the Special Deputy Collector found that Bhikoba was in possession of surplus land to the extent of 132 acres 1 guntas, as per his order dated March 27, 1965.
The appeal filed by Bhikoba was partly allowed by the appellate authority by its order dated April 13, 1966 and the matter was remanded to the Special Deputy Collector with certain directions.
Thereafter Bhikoba died on January 31, 1969.
On June 27, 1969, the Special Deputy Collector after hearing the legal representatives held that Bhikoba was a surplus holder of land to the extent of 16 acres and 26 guntas.
An appeal against that order filed by the four sons of Bhikoba was dismissed on November 4, 1970 as premature, since the holders had not yet exercised their choice under section 16(2) of the Act and a declaration under section 21 had not yet been made.
When a notice was issued under section 16 of the Act to the heirs of Bhikoba to exercise their choice in respect of the land to be retained by them out of Bhikoba 's holding to the extent of the ceiling area, the heirs of Bhikoba filed objections on November 23, 1971 pleading, inter alia, that a holder of land in excess of the ceiling prescribed by the Act would be divested of his title to the surplus land only when its possession was taken from him after the publication of the notification under section 21 of the Act and since such notification had not yet been published and possession of the surplus land had not been taken, Bhikoba continued to be the owner of the entire land till his death and that as inheritance could not remain in abeyance, his heirs at law became entitled to the 219 entire land and that if a fresh determination was then made there would be no surplus land at all in their hands which had to be surrendered.
The Special Deputy Collector accepted the plea of the heirs of Bhikoba and dropped further proceedings by his order dated March 13, 1973.
Respondents 1 to 4, former landlords, who would have become entitled to claim relief under the Act at the time when the distribution of surplus land held by Bhikoba was taken up for consideration preferred an appeal against the order of the Special Deputy Collector dropping the proceedings, before the Maharashtra Revenue Tribunal.
The Tribunal dismissed the appeal by its judgment dated January 31, 1975.
A petition filed under Article 227 of the Constitution before the High Court of Bombay challenging the decision of the Tribunal was allowed by the High Court by its judgment dated July 30, 1980 and the matter was remanded to the Special Deputy Collector to continue the proceedings commenced on the basis of the return filed by Bhikoba.
Hence the appeal by special leave.
Dismissing the appeal, the Court ^ HELD: 1.
Respondents 1 to 4 had locus standi to file not only an appeal before the Maharashtra Revenue Tribunal but also later on a petition under Article 227 of the Constitution before the High Court.
It is no doubt true that at the first instance the land which is declared a surplus land in the hands of any person would vest in the State Government under the Land Ceiling Act.
But the said land had to be distributed in accordance with the provisions contained in Chapter VI of the Act.
Any person who is entitled to grant of land under any of the provisions of the Act may question any order which would have the effect of reducing the extent of total surplus land in any village.
Respondents 1 to 4 were the former landlords of the land bearing Survey No. 34 which formed part of the holding of Bhikoba in the instant case.
They cannot, therefore, be characterised as just strangers to these proceedings.
[226 F H, 227 A B] 2.
It is very hazardous to decide cases in which proprietary rights arise for determination on the basis of decisions rendered under taxation laws which have their own peculiarities.
The Land Ceiling Act is not one levying tax on the income during the previous year or previous years or of a period other than the previous year in the hands of an assessee but a Law imposing a ceiling on the holding of a person or a family as on a specified date.
The Act has to be construed in accordance with its scheme and object which is equitable distribution of land in the hands of those who held land in excess of the ceiling limit on the appointed day, or those who would acquire subsequently land in excess of the ceiling or those who own lands which exceed the ceiling limit by reason of their conversion into a different class.
[227 E G] In order to achieve that object the Legislature enacted sections 3 and 4 of the Act declaring that no person could on or after the appointed day hold land in excess of the ceiling area and compelling every person acquiring or coming into possession of any land in excess of the ceiling area on or after the appointed day to file a return before the Collector furnishing particulars of all land held by him.
[227 G H, 228 A] 220 3. 1.
A close reading of the provisions contained in sections 3, 4 and 18 to 21 of the Land Ceiling Act shows that the determination of the extent of surplus land of a holder has to be made as on the specified date which is made further clear by the following requirements under section 12 of the Act.
If any person has at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area, such person should file a return within the prescribed period from the appointed day furnishing to each of the Collectors within whose jurisdiction any land in his holding is situated, in the form prescribed containing the particulars of all land held by him.
If any person acquires, holds or comes into possession of any land (including any exempted land) in excess of the ceiling area on or after the appointed day, such person has to furnish a return within the prescribed period from the date of taking possession of any land in excess of the ceiling area.
If any person whose land is converted into another class of land in the circumstances described in section 11 A (formerly numbered as section 11) thereby causing his holding to exceed the ceiling area then such person has to file a return within the prescribed period from the date of such conversion (such date being a date to be notified in the Official Gazette by the State Government in respect of any area).
[228 F H, 229 A B] 3:2.
If a person is found to be in possession of land in excess of the ceiling area at any time after the fourth day of August, 1959 but before the appointed day, he incurs the liability to surrender any surplus land as on the appointed day itself even though the actual extent of such surplus land is determined on a subsequent date.
Similarly those who acquire land in excess of the ceiling area on or after the appointed day would become liable to surrender surplus land on the date of taking possession of any land in excess of the ceiling area.
A person whose case falls under section 11 A of the Act becomes liable to surrender any surplus land in his possession as on the date of conversion of land into irrigable land.
[229 D F] 3:3.
The liability to surrender surplus land would not in any way come to an end by reason of the death of such holder before the actual extent of surplus land is determined and notified under section 21 of the Act.
Section 21 of the Act, no doubt, states that the title of the holder in the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land is published in the Official Gazette.
But the liability to surrender the surplus land, however, relates back to the appointed day in the case of those who fall under section 12(1) (a) of the Act, to the date of taking possession of any land in excess of the ceiling area in the case of those who come under section 12(1) (b) of the Act and to the date of conversion of land into a different class in the case of those who come under section 12(2) of the Act.
Any other construction would make the Act unworkable and the determination of the extent of surplus land of a holder ambulatory and indefinite.
[229 F H, 230 A] 3:4.
Further, section 8 of the Act prohibits transfer or partition of any land held by a person holding land in excess of the ceiling area on or after the appointed day until the land in excess of the ceiling is determined under the Act.
Section 10 provides that if any person after the fourth day of August, 1959 but 221 before the appointed day transferred or partitioned any land in anticipation of or in order to avoid or defeat the objects of the Act or any land is transferred or partitioned in contravention of provisions of section 8 then in calculating the ceiling area which that person is entitled to hold the area so transferred or partitioned should be taken into consideration and land exceeding the ceiling area so calculated should be deemed to be in excess of the ceiling area for that holding notwithstanding the land remaining with him may not in fact be in excess of the ceiling area.
[230 B D] 3:5.
The expression 'holding ' used in sections 3, 5, 6 and 10 shows that the statute treats a holding as a unit for purposes of determination of surplus land which can be acquired from such holding.
Section 2(14) which defines the expression 'to hold land ' as 'to be lawfully in actual possession of land as owner or tenant ' requires that the expression 'holding ' should be construed accordingly.
Section 3 of the Act expressly imposes a limit on the holding of agricultural land on the commencement of the Act.
The extent of surplus land which the Government can acquire under the Act from a holder cannot therefore be made to depend upon the date on which a declaration indicating the extent of surplus land is notified in the Official Gazette under section 21 and the date on which such surplus land is taken possession of.
It cannot be also made to depend upon the holder who has incurred the liability on the relevant date being alive on the date on which the declaration is made under section 21 and possession of surplus land is taken.
The proceedings initiated by a return filed by a holder cannot be dropped if such holder dies before a declaration is made under section 21 and surplus land is taken possession of.
To hold otherwise would frustrate the very object and purposes of the Act.
[230 D H] 3:6.
The surplus land in the case of a person who at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area has got to be determined as on the appointed day even though such person may die before the actual extent of surplus land is determined and notified under section 21 of the Act.
The persons on whom his 'holding ' devolves on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the deceased would not come to an end on his death.
The heirs of the deceased cannot be permitted to contend to the contrary and allowed to get more land by way of inheritance that what they would have got if the death of the person had taken place after the publication of the notification under section 21.
[231 G H, 232 A C] Raghunath Laxman Wani & Ors.
vs State of Maharashtra & Ors.
, ; , applied.
The introduction of the second paragraph of the new section 3(2) does not alter the position as to the true legal position and scope of section 21 of the Act.
The said paragraph was introduced by way of abundant caution to get over the possible objection raised on the basis of the decision in the case of Dadarao Kashiram.
The said paragraph is merely declaratory of what the true legal position had always been even from the commencement of the Act.
The said paragraph in the new section 3(2) refers to two contingencies (i) the death of a person who was holding land in excess of the ceiling limit; and (ii) the death 222 of any member of a family unit owning land in excess of the ceiling on the appointed day.
It provides that the death of the person or the death of a member of the family unit as the case may be should be ignored.
The death of a person after the appointed day also would make no difference so far as the liability of his holding to part with a surplus land is concerned.[232 F H, 233 A, E F] 3:8.
In the instant case, (i) the proceedings commencing with the return filed by Bhikoba could not be dropped merely because he died before a notification was issued under section 21 of the Act.
The proceedings have to be continued and the surplus land in the hands of Bhikoba as on the appointed day should be determined and taken possession of in accordance with law; (ii) the heirs of Bhikoba are entitled to participate in the said proceedings representing the estate of Bhikoba and (iii) they would be entitled as heirs at law only such land that may remain after surrendering the surplus land as may be determined under the Act.
[233 G H, 234 A B] Dadaro Kashiram vs The State of Maharashtra, , overruled.