Civil Appeal No 1331 of 1978
From the Judgment and order dated 3131977 of the Allahabad High Court in CM Writ No 72 of 1777
Arvind Kumar KB Chatterjee RK Mathur and Mrs Laxmi Arvind for the Appellant
Prithvi Raj and Ashok K Srivastava for the Respondents
The Judgment of the Court was delivered by NATARAJAN J
This appeal by special leave arises out of and is directed against the dismissal of Civil Misc
Writ No 7277 filed by the appellant by the High Court of Allahabad by judgment and order dated 3131977
The facts are not in controversy and the only question for consideration in the appeal is whether the High Court was in error in affirming the view taken by the Prescribed Authority and the Appellate Authority the District Judge Mathura that an extent of 1235 acres which the appellant claimed to have transferred to his daughter by means of a registered gift deed has also to be reckoned in computing the total extent of land in the appellant s holding for determination of the ceiling area in his holding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act hereinafter the Act 1960
In response to a notice issued under Section 102 of the Act the appellant contended that he was not in possession of 2361 acres of surplus agricultural land as set out in the notice and that the authorities had failed to notice that he had transferred by means of a registered deed of gift dated 711972 an extent of 1235 acres of land to his invalid daughter Pushpa Devi who remained unmarried inspite of being 30 years old because of her being born a crippled child and secondly the lands bearing khasra No 226 227 and 229 were part of Abadi and therefore stood excluded from the operation of the Ceiling Act
Both the contentions did not find favour with the Prescribed Authority as well as the Appellate Authority
In so far as the first contention is concerned with which alone we are concerned in this appeal both the authorities held that the appellant had failed to establish that the transfer of land in favour of his daughter was made in good faith and was not intended for the immediate or deferred benefit 543 of the appellant and other members of his family and furthermore the transfer appeared to be a device to defeat the provisions of the Act The appellant filed Civil Misc
Writ No 7277 in the High Court for having the order of the Prescribed Authority as affirmed by the Appellate Authority quashed but failed to meet with success and hence the present appeal by special leave
The learned counsel for the appellant assailed the finding rendered against the appellant as regards the purported gift of land to his daughter on the following grounds 1 Though the registered deed of gift had been executed after the prescribed date viz 21171 the transfer was in pursuance of an earlier family arrangement to provide maintenance for the invalid daughter and therefore the transfer falls outside the purview of Section 56 of the Act
2 Alternatively if the transfer attracted the operation of Section 56 and did not constitute an excepted transfer under Clause b of the proviso to Section 56 then Section 56 should be held ultra vires Article 31 A of the Constitution
3 The Act is violative of Article 14 of the Constitution in that it discriminates between major unmarried daughters and minor unmarried daughters by excluding the former from the definition of family  under Section 37 of the Act Before examining the merits of the above said contentions it has to be stated that the Act as well as the amending Acts viz Uttar Pradesh Act 18 of 1973 and Uttar Pradesh Act 2 of 1975 have been included in the Ninth Schedule and therefore Section 56 is not open to attack on the ground of constitutional infirmity by reason of the immunity conferred by Article 31 B Bearing this position in mind we may refer to the definition of Section 37 and Section 56 of the Act The relevant provisions read as under Section 37 family  in relation to a tenure holder means himself or herself and his wife or her husband as the case may be other than a judicially separated wife or husband minor sons and minor daughters other than married daughters Section 56 In determining the ceiling area appli 544 cable to a tenure holder any transfer of land made after the twenty fourth day of January 1971 which but for the transfer would have been declared surplus land under this Act shall be ignored and not taken into account Provided that nothing in this sub section shall apply to a a transfer in favour of any person including Government referred to in sub section 2 b a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure holder or other members of his family
From the definition of family in Section 37 it may be seen that a major daughter of a tenure holder even if she is unmarried is undoubtedly not treated as a member of the family
As regards Section 56 the legislature has provided that any extent of land transferred after 2411971 has also to be included in the total extent of holding of the tenure holder for the purposes of calculation of the ceiling area unless the transfer falls within the category of excepted transfers under clause a or b of the proviso
Taking up the first contention of the appellant s counsel we find no merit in it because the finding of the Prescribed Authority and the Appellate Authority which has found acceptance with the High Court is a finding of fact and as such its correctness cannot be canvassed in an appeal under Article 136 of the Constitution Even otherwise we do not see any error in the impugned finding because the appellant had failed to prove that there was an earlier family arrangement and if there was one to explain why he had delayed the execution of the deed of gift till after the Act came into force especially when the purported gift would only result in himself and his sons being in possession of the land and enjoying the income therefrom
That apart there is no scope for treating the gift as falling outside the purview of Section 56 because the sub section mandates any transfer of land made after the twenty forth day of January 1971 to be ignored and not to be taken into account unless the transfer stands protected by proviso a or b of the sub section
545 As regards the second contention that Section 56 is violative of Article 31 A of the Constitution we may straightaway observe that the question is no longer res integra
In D G Mahajan vs Maharashtra  at pages 810 to 812 and at page 824 this Court has held that that Section 5 sub clause 6 of the amended UP Imposition of Ceiling on Land Holdings Act even if it contravenes the seconds proviso to clause 1 of Article 31 A a matter on which we do not wish to express any opinion since it is unnecessary to do so is validated under Article 31 B and that Section 5 sub clause 6 of the U P Imposition of Ceiling on Land Holdings Act is valid and its constitu tionality cannot be assailed by reason of the immunity enacted in Article 31 B In a later case Ambika Prasad vs UP State  the validity of the Act was declared and inter alia it was held that the provision in Section 56 when read in the light of the proviso is fair and valid
 There is therefore no scope for the apellant to raise any contention that Section 56 is ultra vires Article 31 A So far as the last contention is concerned even this question is concluded by the pronouncement in Ambika Prasad s case supra and does not therefore survive for consideration
This Court while observing that though the anti female kink is patent in that the very definition of family discloses prejudice against the weaker sex by excluding adult daughter without providing for any addition to the ceiling on their account has nevertheless held that the provisions do not discriminate between man and woman qua man and woman but merely organise a scheme where life s realism is legislatively pragmatised The relevant portion of the judgment reads as under Section 53 does not confer any property on an adult son nor withdraw any property from an adult daughter
That provision shows a concession to a tenure holder who has propertyless adult sons by allowing him to keep two more hectares per such son
The propertyless son gets no right to a cent of land on this scope but the father is permitted to keep some more of his own for feeding this extra mouth
If an unmarried daughter has her own land this legislation does not deprive her any more than a similarly situated unmarried son
Both are regarded as tenure holders
The singular grievance of a chronic spinster vis a vis a similar bachelor may be that the father is allowed by section 53 to hold an extra two hectares only if the unmarried major is a son
546 Neither the daughter nor the son gets any land in consequence and a normal parent will look after an unmarried daughter with an equal eye
Legal injury can arise only if the daughter s property is taken way while the son s is retained or the daughter gets no share while the son gets one
The legislation has not done either
So no tangible discrimination can be spun out
May be the legislature could have allowed the tenure holder to keep another two hectares of his on the basis of the existence of an unmarried adult daughter
It may have grounds rooted in rural realities to do so
The Court may sympathise but cannot dictate that the land holder may keep more land because he has adult unmarried daughter
That would be judicial legislation beyond permissible process
 The above pronouncement of the Constitution Bench concludes the issue regarding the vice of discrimination
For the reasons aforesaid all the contentions of the apellant fail and the appeal will stand dismissed
The parties are however directed to pay and bear their respective costs
NVK Appeal dismissed


Summary:
The 2nd petitioner a member of the Delhi Higher Judicial Service and working as an Additional District Judge in a writ petition to this Court contended that he was directly recruited to service as a Scheduled Castes candidate and that the High Court had acted in an unreasonable manner in refusing to grant selection grade to him on more than one occasion
Disposing of the Writ Petition  HELD 1
Where promotion to higher grade or post is made on the criteria of merit many a time a junior officer is bound to supersede his senior
In the process of assessment of comparative merit supersession of a senior officer may result
This cannot be helped614G H In the instant case the petitioner was considered on merit along with others and as the High Court found officers junior to him suitable for grant of selection grade the petitioner could not be selected
This Court finds no illegality in the High Court s order
615A 2
Integrity of a judicial officer is a great asset to administration of justice
It must be given due weight
615C 3
The petitioner in the instant case comes from a weaker section of the society and he has been found to be an honest officer
This fact needs consideration
The High Court should consider the petitioner s 614 case sympathetically for the grant of selection grade at the next selection
615D