Orissa High Court
Surendra Prasad Parida vs State Of Orissa Through Secretary To ... on 15 May, 1986
Equivalent citations: 1986(II)OLR31
Author: R.C. Patnaik
Bench: R.C. Patnaik
JUDGMENT R.C. Patnaik, J.
1. The petitioner in this writ application under Art, 226 of the Constitution of India has challenged the adjudication of the. authorities under the Orissa Land Reforms Act, 1960, treating him and his brother as a 'body of individuals' and determining the ceiling area and the surplus land on that basis
2. Ramahari Parida admittedly died in 1950 leaving behind the petitioner Surendra and Debendra, In a suo motu proceeding under Chapter IV of the Orissa land Reforms Act, 1960 (for short, 'the Act'), the contention of the brothers that there was a partition was negatived, as the document produced by them was not a registered one and the ceiling area and surplus lands were determined treating them as a body of individuals'. Being unsuccessful in appeal and revision, they have moved this Court for a certiurari-
3. It has been contended by the counsel for the petitioner that the authorities have gone wrong 1n negativing the contentions of the petitioner on the ground that the document produced by the petitioner was not registered. It is submitted that what is essential for the purpose of Section 37(b) is separation which connotes separation in status which can be effected by partition or otherwise but not necessarily by partition by metes and bounds. It has further been contended that assuming that there was no separation between the brothers, they should have been treated as two-separate families and determination of ceiling area and surplus lands should have been made on that basis Determination of the ceiling area and the surplus lands Wealing them as a 'body of individuals' is erroneous.
4. The petitioner Surendra and Debendra are brothers. The question is : are they to be treated as two separate families or a 'body of individuals' ? The relevant provisions are as hereunder :
"37. In this chapter :
(a) "person" ircludes a company, family, association or other body of individuals, whether incorporated or not, andary institution capable of owning or holding property ;
(b) "family" in relation to an individual means the individuals, the husband or wife, as the case may be, of such individuals and their children, whether major or minor, but does not include a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970.
39. In determining the celling area in respect of a person, the following principles shall be followed, namely :
(c) Where the person is a member of a Co-operative Farming Society, the extent of lather which he wculd get as his share if the land held By such society is divided shall be taken into account;
43.(1)..............................
Provided that no part of the lands held by a Company or any other corporate body of which the person concerned may be a member or share-holder shall be shown as surplus lands in respect of such person."
Should the expression 'body of individuals' be given meaning of widest amplitude or should it take its colour from the context and the setting and from the various provisions contained in the Act ? To understand the meaning of the expression, it would be profitable to refer to a few other Acts where the expression 'person' has been defined to include a body of individuals.
Section 2(33) of the Orissa General Clauses Act defines 'person' as under : .
"2(33) 'Person' shall include any company or association or body of individuals whether incorporated or not'."
Under the Urban Land (Ceiling and Regulation) Act, 1976, the expression has been defined as under :
"2. Definitions-.In this Act, unless the context otherwise requires,- .
(i) "Person" includes an individual, a family, a firm, a company or an association or body of individuals, whether incorporated or not ......................."
Section 2(31) of the Income Tax Act defines the expression as under:
"2. In this Act, unless the context otherwise requires,-
(31) "person" includes-
(i) an individual,
(ii) a Hindu undivided family,
(iii) a company,
(iv) a firm,
(v) an association of persons or a body of individuals, whether incorporated or not,
(vi) a local authority and,
(vii) every artificial juridical person, not falling within any of the proceeding sub-caluses".
5. The expressions 'association of persons' and 'body of individuals' have been interpreted by Judges. Derbyshire, C.J.- referred to the Oxford Dictionary where the meaning of 'association' is given as "to join in comnon purpose or to join in an action".
This view of Derbyshire, C. J. was accepted in (Commissioner of income Tax v. Lakshmandas Devdas), 5 ITR 584 and the Supreme Court observed in AIR 1960 SC 1172 (Commissioner of Income Tex, Bombay North, Kutch and Saurashtra v. Smt. Indira Baikrishna):
"Therefore, an association of persons must be one in which two or more persons join in common purpose or "a common action, and as the words occur in a section which imposes a tax on income, the association must be one, the object of which is to produce income, profits or gains,"
and China 'ppa Reddy. J. in (M/s" Deccan Wine end General Stores, Hyderabad v. The Commissioner of Income Tax. Andhra Pradesh) (1973 Tax. L. R. 196), observed :
"It is, therefore, clear that "an association of persons" does not mean any and every combination of persons, It is only when they 'associate'; then selves in an income productive activity that they become an association of persons. They must combine to engage in such an activity ; the engagement must be association; there must be a meeting of the minds, so to speak. In a nutshell, there must be common design to produce income. It there is no common design there is no association...the feature of common design or combined will so peculiar or distinctive to an association of persons is not a characteristic of body, of individuals The absence of a common design is what principally distinguishes a body of individuals from an association of persons..."
His Lordship further observed :
"We are of the view that the expression 'body of individuals' should receive a wide interpretation, perhaps not wide enough " to include a"combination of individuals who merely receive income jointly without anything further as in the case of co-heirs inheriting shares or securities, but certainly wide enough to include a combination of individuals who have a unity of interest but who are not actuated by a common design and one or more of whose members produce or help to produce income for the benefit of all. We are* content to leave it at that. We will not attempt a comprehensive definition; nor will we attempt to catalogue the characteristics of a body of individuals. There is danger in doing either."
In 1935-3 ILR 408, Costello J. said :
"It may well be that the intention of the legislature was to hit combinations of individuals who were engaged together in some joint enterprise but did not in law constitute partnership... When we find that, there is a combination of persons formed for the promotion of a joint enterprise, then I think no difficulty arises in the way of saying that these persons did constitute an association....."
The aforesaid observation was approved by the Supreme Court in AIR 1960 S C. 1172 (supera).' What is necessary to constitute an association of individuals is a joint enterprise, a joining together in a common purpose, a common design, a joining in action. The common design, the combined will is not the characteristics of a 'body of individuals'.
In the context of the various provisions of the Act, the members of a family as understood in common parlance, as distinguished from the artificial meaning which has been given to the expression "family" in Section 37(b)y cannot be considered as an association or a body of individuals. The extended meaning given by the revenue authorities would embrace even the residents of a whole village as a body of individuals constituting them a 'person', for, the purpose of Chapter IV of the Act. Such a consequence cannot tiave been intended. That a person as a member of the family as understood in common parlance has a separate and a distinct existence is , evident from Section 39(c) which has been extracted above. The extent of the land representing the share of a person who is a member of the Co-operative Farming Society is available to be taken into account while determining the ceiling area and surplus land of the person as a member of the 'family'. The proviso to Section 43(1) also gives a clue to the interpretation. Without being exhaustive, where the members of a family as understood in common parlance hold land by inheritance, succession or by acquisition, they cannot be treated as an association or a body of individuals, but as a "family" or "families", as the case may be, within the purview of Section 37(b) In 50 (.1980). C. L. T. 132: Jaga @ Jagsnnath Naik and Ors. v. The State of Orrisa and another, one Baraja died leaving behind his wife and three sons, it was held that while determining the ceiling area and surplus lands of one of the brothers, the property held by the two Others could not be taken into account. The brothers were not treated as a body of individuals, i. e , as a 'person' within the purview of Section 37(a). They were treated as distinct "families".
6. We, therefore, quash the decisions of the Revenue Officer and the appellate and revisional authorities and hold that the petitioner and his brother Debendra shall be treated as two separate and distinct "persons" and direct that determination of their respective ceiling" areas observations made by us above and law after giving them an opportunity of being heard and option to select if there be surplus lands in their hands.
7. In the result, the writ application Is allowed and the matter is remitted to the Revenue Officer for a fresh disposal. There would be no order as to costs.