Holding

Section 37(b) of the Orissa Land Reforms Act, 1960 is valid and its plain language defines "family", with the exception applying only to major married sons who had separated by partition before 26 September 1970; no amendment of wording is permissible.

Summary

The appellants challenged the declaration of surplus land under the Orissa Land Reforms Act, 1960, arguing that a 1965 partition in their families should prevent their share from being clubbed with their father's land. The High Court dismissed their writ petitions, relying on a Full Bench decision in Nityananda Guru v. State of Orissa. Before the Supreme Court, the appellants contended that Section 37(b) of the Act violated Article 31C and Article 14, and that the term "family" should be read to exclude major married sons who had partitioned before 26 September 1970, even by inserting the word "or" between "major" and "married". The Court held that the provision has a clear nexus with the agrarian‑reform policy embodied in Article 39(b) and is constitutionally valid; the plain language of Section 37(b) must be followed, and the proviso applies only to "major married son who as such had separated by partition or otherwise before the 26th day of September 1970". Consequently, the appellants' arguments were rejected and the appeals were dismissed.

Issues considered

The constitutionality of Section 37(b) of the Orissa Land Reforms Act, 1960 under Articles 31C and 14 of the Constitution
Whether the term "family" in Section 37(b) should be interpreted to exclude major married sons who partitioned before 26 September 1970, possibly by adding the word "or" between "major" and "married"
The proper meaning of the words "as such" in the proviso of Section 37(b)
Whether land of the appellants should be clubbed with that of their father for purposes of surplus‑land declaration

Legislation cited

Constitution of Indias. Article 14, s. Article 31C, s. Article 39(b)
Orissa Land Reforms Act, 1960s. 37(b), s. 42, s. 73(c)

Subjects

Land reformSurplus landFamily definitionAgrarian reformConstitutional validityArticle 31CArticle 14Statutory interpretationPartitionMajor married son

Judgment

DIBYASINGH MALANA
A
v.
ST~TE OF ORISSA & ORS.

APRIL 19, 1989

B [E.S. VENKATARAMIAH AND N.D. OJHA, JJ.]
''r·
Orissa Land Reforms AGl, 1960: Section 37(b): 'family'- ~-
Definition of_..:.'Major married son' whether entitled to benefit of· ·
statute.

Proceedings were initiated in •1974 under the Orissa Land
-
c Reforms Act, 1960 for declaration of surplus land of the appellants. The
appellants filed objections asserting, inter a/ia, that in view of the parti·
tion in their families in the year 1965 the land in the ancestral properties
which fell in their share could not be clubbed with those of their father.
This contention was not accepted on the definition of the term "family"
D contained in section 37(b) of the Act. Such of the major married sons
who as such had separated by partition before the 26th day of
September, 1970, as contemplated by the definition of the term
"family", were allotted separate ceiling units but so far as the appel·
lants were concerned, their shares were clubbed with those of their _..__
father. The appellants, having failed to get relief in the appeals and
E revisions filed by them under the Act, challenged the orders passed by
the various authorities in writ petitions before the High Court of Orissa
which were dismissed, relying on its earlier Full Bench decision in
Nityananda Guru v. State of Orissa, (A.I.R. 1983 Orissa 54).

Before this Court it was contended that (1) the protection under
F Article 31(C) would not be available to section 37(b) of the Act and it
would be hit by Article 14 unless it was established that it had nexus
with the policy of the State towards securing any of the principles laid •
down in Part IV of the Constitution; (2) section 37(h) of the Act had to
be read in such a manner as to exclude the land which had fallen to the
share of the appellants even though they did not fall within the category
G of "a major married son" as contemplated by the definition of the term
"family" in that section, by adding the word "or" between the words
''major" and ''married", (3) the words "as such" qualify only "son"
and not "major married son" and are meant to distinguish son from
brother or uncle, etc.

Dismissing the appeals, it was,

61t4
D.S. MALANA v. STATE OF ORJSSA 605

HELD: (1) The Act aims at agrarian reform and Section 37(b) A
has a clear nexus with the policy of the State towards securing the
principle laid down in Article 39(b) of the Constitution occmrring in
Part IV thereof. [607E-F]

Tumati Venkaish etc. v. State of Andhra Pradesh, [1980] 3 SCR
, 1143; Seth Nand Lal & Anr. v. State of Haryana, [1980] 3 SCR 1181 B
' i'.'. and Waman Rao & Ors. v. Union of India, [1981] 2 SCR 1 referred to.
~
(2) It is ditlicnlt to take recourse to the suggested mode of in-
terpretation of section 37(b), i.e., by adding the word "or" between the
words "major" and "married" in view of its plain language. [608C-D]

(3) On a plain reading of the definition of the term "family" in C
+ section 37(b) of the Act, the said definition as it stands is neither mean-
ingless nor of doubtful meaning. [608F]

British India General Insurance Co. Ltd. v. Captain ltbar Singh
& Ors., [1960] I SCR 168 referred to. D

(4) Keeping in view the agrarian reform which was contemplated
by the Act and particularly the provisions of Chapter IV relating to
·....( ceiling and disposal of surplns land which were calculated to distribute
the surplus land of big tenure holders among the overwhelming have-
nots of the State, the Legislature in its wisdom gave an artificial mean- E

- ing to the term "family". [608F-G]

(5) The main provision containing the definition of the term
'family' is to be found in the first part of section 37(b), namely "family
, in relation to an individual means the individual, the husband or wife as
"'· the case may be of such individual and their children whether major or F
... minor". The latter part of section 37(b), namely "but does not include
a major married son who as such had separated by partition or
otherwise before the 26th day of September 1970", does not on the face
of its contain a matter which may in substance be treated as a fresh
enactment adding something to the main provision but is apparently
r and unequivocally a proviso containing an exception. This admits of no G
- doubt in view of the words "but does not include". [608G-H; 609A-B]

Comis~ioner of Income Tax, Mysore v. The Indo Mercantile
Bank Limited, [1959] Supp:2 SCR 256 referred to.

(6) Given its proper meaning, the words "as such" can only be H
606 SUPREME COURT REPORTS !1989] 2 s.c:R.

A interpreted to mean that it is only such son who would get the benefit of }:-
the exception who had separated by partition or otherwise before the
26th day of September, 1970 as "major married son". [609F]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2436
to 2438 of 1989.
B
From the Judgment and Orders dated 7.4.83 and 2.5.1986 of the
Orissa High Court in O.J.C. Nos'108 and 109 of 1986 and 6 of 1984 ,4
respectively.

T. U. Mehta, Gobind Das and Vinoo Bhagat for the Appellants.
c G.L. Sanghi, R.K. Mehta and A.K. Panda for the Respondents. _.....
The Judgment of the Court was delivered by ,.
OJHA, J. Special leave granted.
D
These three appeals raise a common question about the interpre-
talion of the term "family" in Section 37(b) of the Orissa Land
Reforms Act, 1960 (hereinafter referred to as the Act). According to
clause (a) of Section 37 of the Act the term "person" includes inter alia _l_
family. Clause (b) of Section 37 being the clause under consideration
E may usefully be reproduced. It reads:

"(b) "family'' in relation to an individual, means the indi-
vidual, the husband or wife, as the case may be, of such
individual and their children, whether major or minor, but
does not include a major married son who as such had -~
F separated by partition or otherwise before the 26th day of
September, 1970." _.
According to the appellants in these three appeals partition in
their respective families had been taken place in the year 1965. The
Act except Chapters III and IV came into force on 1st October, 1965.
G Chapter IV of the Act which contains the provisions relating to ceiling
and disposal of surplus land came into force on 7th January, 1972. Suo
motu proceedings under Section 42 of the Act for declaration of sur-
plus land and consequential purposes were initiated in the year 1974.
Objections were filed asserting inter alia that in view of the partition in
the families of the appellants in the year 1965 the land in the ancestral
H properties which fell in the share of the appellants could not be club-
D.S. MALANA v. STATE OF ORISSA roiHA, J.] 607

bed with those of their father. This contention, however, was not
A
accepted on the definition of the term "family" contained in Section
37(b) of the Act. Such of the major married sons who as such had
separated by partition before the 26th day of September, 1970 as con-
templated by the definition of the term "family" were allotted sepa-•
rate ceiling units but so far as the appellants are concerned their shares
were clubbed with those of their father and only one ceiling unit was B
allotted as contemplated by the relevant provision of the Act.

The appellants having failed to get relief in the appeals and revi-

- sions filed by them under the Act challenged the orders passed by the
various authorities under the Act in writ petitions before the High
Court of Orissa. These writ petitions were dismissed relying on the C
decision of a Full Bench of that Court in Nityananda Guru v. State of
Orissa and others, A.LR. 1983 Orissa Page 54 (F.B.). It is these orders
of the High Court which have been challenged in these appeals. The
validity of Section 37(b) of the Act does not appear to have been
challenged before the High Court nor has it been seriously challenged
even before us except by making a faint submission that even if by D
virtue of the said provision being incorporated in the 9th Schedule, it
may be immune from challenge in view of Article 3 lB of the Constitu-
tion, the protection under Article 31C would not be available to it and
it would be hit by Article 14 unless it was established that it had nexus
with the policy of the State towards securing any of the principles laid
down in Part IV of the Constitution. This submission even if it is E

- permitted to be raised for the first time in this Court has obviously no
substance in view of the undisputed position that the Act aims at
agrarian reform and the provisions with regard to declaration of sur-
plus land and its distribution among the have-nots namely landless
persons· is apparently to give effect to the policy of the State towards
securing the principle laid down in Article 39(b) of the Constitution F
occurring in Part IV thereof and Section 37(b) has a clear nexus with
that policy. The aforesaid submission has, therefore, no substance.

At this place it may also be pointed out that validity of analogous
provisions dealing with laws for declaration and distribution of surplus
land framed by the States of Andhra Pradesh, Haryana and G
Maharashtra has already: been upheld by this Court after rejecting
challenges to them on various grounds in Tumati Venkaish etc. etc. v ..
State of Andhra Pradesh, [1980] 3 SCR 1143; Seth Nand Lal & Anr. v.
State of Haryana & Ors., [1980]·3 SCR 1181 and Waman Rao & Ors.
etc. etc. v. Union of India and Ors., [1981] 2 SCR 1.
H
608 SUPREME COURT REPORTS [1989] 2 S.C.R.

A The main attack against the judgment of the Full Bench of the ~
Orissa High Court in the case of Nityananda Guru (supra) relying on
which the writ petition filed by the appellants were dismissed by the
High Court has been on the ground that partition in the respective
families of the appellants in the year 1965 having been accepted, Sec-
tion 37(b) of the ~ct had to be read in such a manner as to exclude the
B land which had fallen to the share of the appellants even though they ';r-
did not fall within the category of "a major married son who as such /,
had separated by partition or otherwise before the 26th day of ~

c
September, 1970" as contemplated by the definition of the terrn
"family" in the said section. It was urged that this purpose could be
achieved by adding the word "or" between the words "major" and
"married". According to learned counsel if that is done the terrn "indi-
vidual" would not include a major son who had separated by partition
-
before the 26th day of September, 1970 even if he had not married --i.
prior to that date. We find it difficult to take recourse to this mode of
interpretation of Section 37(b) in view of its plain language. In British
India General Insurance Co., Ltd. v. Captain ltbar Singh and Others,
D [ 1960] 1 SCR 168 sub-section (2) of Section 96 of the Motor Vehicles
Act, 1939 was sought to be interpreted by the learned Solicitor
General in a manner which involved addition of certain words. The
submission was repelled and it was held:

"The learned Solicitor General concedes this and says that
E the only word that has to be added is the word "also" after
the word "grounds''. But even this the rules of interpreta-
tion do not permit us to do unless the section as it stands is
meaningless or of doubtful meaning, neither of which we
think it is."
-
F On- a plain reading of the definition of the term "family" in
Section 37(b) of the Act we are of the view that the said definition as it .+
stands is neither meaningless nor of doubtful meaning. In this connec-
tion, it may be pointed out that keeping in view the agrarian reform
which was contemplated by the Act and particularly the provisions of
Chapter IV relating to ceiling and disposal of surplus land which were
G calculated to distribute the surplus land of big tenure holders among \_..
the overwhelming have-nots of the State the Legislature in its wisdom '
gave an artificial meaning to the term "family". The main provision
containing the definition of the term is to be found in the first part of
Section 37(b) namely "family in relating to an individual means the
individual, the husband or wife as the case may be of such individuai
H and their children whether major or minor.''. The later part of Section
D.S. MALANA v. STATE OF ORISSA [OJHA, J.] 609

37(b) namely "but does not include a major married son who as such A
had separated by partition or otherwise before the 26th day of
September, 1970" does not on the face of it contain a matter which
may in substance be treated as a fresh enactment adding sotnething to
the main provision but is apparently and unequivocally a proviso con-
taining an exception. This admits of no doubt in view of the words "but
does not include". In the Commissioner of Income Tax, Mysorev. The B
Indo Mercantile Bank Limited, (1959] Supp. 2 SCR 256. it was held:

"Ordinarily the effect of an excepting or a qualifying pro-
viso· is to carve something out of the preceding enactment
or to qualify something enacted therein which but for the
proviso would be in it and such a proviso cannot be con-
strued as enlarging the scope of an enactment when it can be C
fairly and properly construed without attributing to it that
effect."
(Emphasis supplied)

That apart the submission made by learned counsel for the D
appellants would also lead to an anomalous situation if the word "or"
is added between the words "major" and "married". Not only a major
unmarried son who had separated by partition before the 26th day of
September, 1970 would get excluded from the definition of the term
"family" even a minor married son would get so excluded. The result
would be that even though marriage of a minor son is prohibited by E

- law such son would be placed at an advantageous position to a minor
son who was law-abiding and had not married. Further the submission
made by learned counsel for the appellants completely ignores the
words "as such" used in the later part of Section 37(b) which contains
the exception referred to above. Given its proper meaning the words
"as such" can only be interpreted to mean that it is only such son who F
would get the benefit of the exception who had separated by partition
or otherwise before the 26th day of September, 1970 as "major mar-
ried son".

The submission by counsel for the appellants that the words "as
such" qualify only "son" and not "major married son" and are meant G
to distinguish son from brother or uncle etc. is misconceived on the
plain language of Section 37(b) which contemplates clubbing of land of
spouse and children only and not of brother and uncle etc. So, the
question of using the words "as such" to distinguish son from brother
or uncle etc. does not arise. Further, for accepting this submission the
words "major married" will have to be omitted as superfluous which H
610 SUPREME COURT REPORTS . [1989] 2 S.C.R.

A cannot be done in the garb of interpretation.

Learned counsel for the appellants also urged that a son who had
separated by partition or otherwise from his father was himself an
"individual" and if his land was clubbed with that of his father, he will
be subjected twice to the provisions relating to declaration of surplus
B land. This submission too is equally untenable. Land of such son alone /
who does not fall within the exception is to be clubbed with that of his
father and with regard to land which had been so clubbed the son .
obviously cannot be treated as another "individual" in his own right
for purposes of declaration of surplus land. Only such son who falls -
within the exception will be liable to be dealt with as an "individual" in
C his own rjght, as his land has not been clubbed with that of his father.
Even on the facts of these appeals nothing has been brought to our -I-
notice to indkate that the land of the appellants which was clubbed · · ·
with that of their father was subjected twice to the provisions relating
to declaratio~ of surplus land treating the appellants also as indi-
viduals.
D
It was then urged by learned counsel for the appellants that
according to the definition of the term "family" as contained in Sec-
tion 37(b) of the Act, land of a married daughter is liable to be clubbed
twice; firstly, with that of her father and secondly, with that of her i ..
husband. According to him it is against the spirit of the law dealing
E with the question of declaration of surplus land. Suffice \t to say, so far
as this submission is concerned that none of appellants in these appeals
is a married daughter and as such we do not find it necessary to go into
this question. We may also point out that dealing with an almost simi-
lar submission with regard to interpretation of Section 123(7) of the
Representation of the People Act, 1951 it was held by a Constitution , .¥
F Bench of this Court in Rananjaya Singh v. Baijnath Singh and others,
[ 1955] S.C.R. Page 671at676: ...

"The learned advocate, however, contended that such a
construction would be against the spirit of the election laws
in that candidates who have rich friends or relations would
G have an unfair advantage ovet a poor rival. The spirit of the >-
law may well be an elusive and unsafe guide and the sup-
posed spirit can certainly not be given effect to in opposi-
tion to the plain language of the sections of the Act and th~
rules made thereunder. If all that can be said of these
statutory provisions is that construed according to the ordi'-
H nary, grammatieal and natural meaning CJf their langu~e
D.S. MALANA v. STATE OF ORISSA (OJHA, J.] 611

they work injustice by placing the poorer candidates at a A
disadvantage the appeal must be to Parliament and not to
this Court."

In view of the foregoing discussion we are of the o'!>inion that the
Full Bench of the Orissa High Court in the case of Nityananda Guru
B
(supra) lays down the correct law.

One more submission has been made by learned counsel for the
appellants in the Civil Appeal arising out of SLP (Civil) No. 9079 of
1986. It has been urged that certain Home-Stead urban land of the
appellants riot connected with agricultural lying inside Udala Notified
Area Council has wrongly been included as agricultural land in the c
draft statement. This submission does not appear to have been made
either before the High Court or before the authorities under the Act.
In the counter affidavit filed by the Additional District Magistrate
(Land Reforms), Mayurbhanj, Orissa it has been stated in reply to
paragraphs 21 to 24 of the SLP that there is no Home-Stead land and
D
no non-agricultural land belonging to the appellant-land holders in the
Notified Area Council of Udala. It has also been stated in paragraph
3( c) of the said counter affidavit that no Notification as contemplated
by Section 73(c) of the Orissa Land Reforms Act has been made by the
State Government. It has further been stated therein that the Urban
Land (Ceiling and Regulation) Act, 1976 has not been made appli-
cable so far to the Udala Notified Area Council. In this view of the E
matter it is not possible for us to record any finding with regard to this

- submission, and consequently we express no opinion in this behalf.

In the result, we find no merit in any of these appeals and they
are accordingly dismissed but in the circumstances of the case there
F
shall be no order as to costs.

R.S.S. Appeals dismissed.