Delivered by Hon'ble Dr. Devendra Kumar Arora, J.

128 Pages·2016·0.76 MB·English

2 All] Northern India Iron Press Work (P) Ltd. Vs. State of U.P. & Anr 503
ORIGINAL JURISDICTION (Delivered by Hon'ble Dr. Devendra
CIVIL SIDE Kumar Arora, J.)
DATED: LUCKNOW 15.04.2015
1. Heard Sri N. K. Seth, learned
BEFORE
Senior Advocate, assisted by Sri Ashish
THE HON'BLE DR. DEVENDRA KUMAR
Chaturvedi and Sri Badrul Hasan, learned
ARORA, J.
Addl. Chief Standing Counsel, appearing
Misc. Single No. 3 of 1993 on behalf of opposite parties.
Northern India Iron Press Work (P) Ltd. 2. By means of present writ petition,
...Petitioner the petitioner has prayed for a writ in the
Versus
nature of certiorari for quashing of the
State of U.P. & Anr. ...Respondents
impugned order dated 22nd September,
1992, passed by the Addl. District
Counsel for the Petitioner:
Magistrate (Finance & Revenue),
Sri R.A. Shankhdhar, Sri N.K. Seth
Lucknow by which it was directed that
Counsel for the Respondents: since the petitioner is a company and
C.S.C. purchased the land in question for
industrial/commercial purposes, therefore,
Stamp Act-Section-47(2)-Market value- the proper value of the land should be at
explained petitioner purchased the rate of Rs. 13/- per square feet and not
agricultural land-on circle rate of Rs.
at the rate of Rs. 14,900/- per bigha, as
66000/-paid stamp duty on 77000/-on
claimed by the petitioner. After valuing
complaint by private person-notice
the said land @ Rs. 13 per square feet, the
issued to pay additional duty as the land
being used for running cement factory- learned Addl. District Magistrate (Finance
without evidence-held-market value-is & Revenue), Lucknow held that the
the value general buyer may offer-and market value of the said land is Rs.
not future use-impugned order quashed.
14,68,519/- and the stamp duty should
have been paid on such value of Rs.
Held: Para-32
14,68,519/- and, as such, petitioner was
This is very surprising that opposite
party no. 2, on the basis of some directed to deposit the deficit stamp duty
complaint, came to the conclusion that of Rs. 1,73,925/- within ten days,
cement factory will be established on the otherwise, proceedings will be initiated
land in question, whereas except that against the petitioner under the provisions
complaint there is no evidence on record,
of Land Revenue Act.
which establishes that the petitioner
intends to establish a cement factory. It
is settled legal position that stamp duty 3. Submission of learned counsel for
is to be paid on the basis of the use of the petitioner is that the petitioner is a
the land at the time of registration of Company under the provisions of
document and no inference can be drawn
Companies Act, 1956, having its
for changing the nature of the land in
registered office at Aishbagh, Lucknow.
future by the purchaser.
Amongst other objects of the petitioner-
Case Law discussed: company one of the object was to carry on
AIR 2009 Alld. Pg. 31; 2008 (26) LCD Pg. 590; business of farming including dairy
1999 (90) RD Pg. 521; 2008 (104) RD Pg. 235. farming etc. and the same has been clearly
504 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned in clause (c) of sub-clause 5 at the land comes to Rs. 66,000/-. However,
page 4 of the Memorandum of since the sale consideration was Rs.
Association of the petitioner-company. 77,000/-, stamp duty was paid by the
petitioner on the said value of Rs.
4. Further submission of learned 77,000/- which was above the value of the
counsel for the petitioner-company is that land at the rate fixed by the Collector,
one Smt. Jairani was the owner of Khasra Lucknow.
plot no. 854, measuring 3 bigha and 11
biswas and khasra plot no. 856 measuring 7. In view of the above, submission
12 biswas, total measuring 4 bigha and 3 of learned counsel for the petitioner is that
biswas in Mauja Udaipur, Pargana the petitioner complied all the provisions
Nigohan, Tehsil Mohanlalganj, District- of Indian Stamp Act with respect to
Lucknow in which she was carrying on payment of stamp duty for the purposes of
farming. Smt. Jairani was interested in registration of the land.
selling a piece of said land and the
petitioner being interested in purchasing 8. Petitioner was asked to receive
the same, offered a price of Rs. 77,000/- notice from opposite party no. 2 under
which she accepted and a sale- deed was section 47 (2) of the Stamp Act mentioning
executed by Smt. Jairani in favour of the therein that the sale deed executed by Smt.
petitioner-company in respect of the said Jairani in favour of the petitioner-company is
plots of land on 30.1.1992 which was under-stamped and the petitioner was
presented before the Sub Registrar, required to show-cause as to why the deficit
Mohanlalganj, Lucknow. stamp duty and penalty be not realized from
the petitioner. The petitioner filed objection
5. It is also submitted by the learned dated 12th August, 1992 to the said notice
counsel for the petitioner that the land dated 21st July, 1992 along with the affidavit
purchased by the petitioner-company was of S/Sri Sushil Kumar Agarwal, Amit
'Harfour Matiyar". For the purposes of Kumar Gupta and Pravin Kumar Gupta,
stamp duty and registration, the market stating therein that the valuation of the land
value of the property is to be determined in question was in no case over Rs. 66,000/-
as per the rate notified by the Collector, but since the sale consideration agreed was
Lucknow vide its order dated 24th Rs. 77,000/- stamp duty on the said value
January, 1990. was paid and the sale deed in no case is
under-stamped. In fact, the said land was
6. At the relevant time, Collector, purchased for the agricultural purposes and
Lucknow vide order dated 24th January, not for setting up a factory. It has further
1990 fixed the rate of the land of 'Har-4 been stated that in Gosainganj, Lucknow
Matiyar' as Rs. 12,500/- per bigha. On the there is no commercial complex and the
basis of the said rate the total value of the fixation of the value of the land on
land purchased by the petitioner comes to commercial basis is absolutely illegal and
Rs. 44,120/-. It is also submitted that the arbitrary.
Collector, Lucknow revised the said rate
vide order dated 30.1.1992 w.e.f. 1.2.1992 9. Opposite Party No. 2, without
and fixed rate as per Rs. 15,900/- per appreciating the objection raised by the
bigha and at such rate the total value of petitioner, vide order dated 22.9.1992
2 All] Northern India Iron Press Work (P) Ltd. Vs. State of U.P. & Anr 505
directed the petitioner-company to pay made in para-3 of the writ petition and the
difference of the stamp duty as petitioner said fact has not been disputed in para-12
is a company and had purchased the said of the counter affidavit. Similarly, the
land for industrial/commercial purposes, type of land is Har-4-Matiyar and the
and, as such the proper value of the land same has also not been disputed by the
should be at the rate of Rs. 13/- per square opposite parties in the counter affidavit.
feet and not at the rate of Rs. 15,900/- per
bigha, as claimed by the petitioner. As 12. Learned counsel for the
such, valuing the said land at the rate of petitioner in support of his submissions
Rs. 13/- per square feet the opposite party placed reliance on the judgment and order
no. 2 held that the market value of the rendered in following cases:
said land is Rs. 14,68,519/- and the stamp
duty should have been paid on the said (1) ITC Ltd. Vs. State of U.P.; AIR
value and the petitioner was directed to 2009 Alld. Pg 31, Pr. 30, 31 and 32.
pay deficit stamp duty of Rs. 1,73,925/-. (2) Naresh Kumar Sonkar Vs. State
The petitioner feeling aggrieved against of U.P. and others; 2008 (26) LCD Pg.
the said order has approached this Court 1590 Pr. 19, 20 and 21.
for setting aside the impugned order. (3) Smt. Har Pyari and others Vs.
District Registrar Aligarh; 1999 (90) RD
10. Shri N.K. Seth, learned counsel Pg 521 Pr. 6 and 11.
for the petitioner also submits that the (4) Kishore Chandra Agarwal v.
land in question was purchased by the State of U.P. and others; 2008 (104) RD
petitioner for agricultural purposes, which Pg 235 Pr. 16, 23 and 25.
is also one of the object of the petitioner's
company and, therefore, the contention of 13. It is further submitted that the
opposite party no. 2 that land was market value of the land cannot be
purchased by the petitioner for determined with reference to the use of
commercial purposes is absolutely the land to which buyer intends to put it.
misconceived. It is also submitted that at The market value is what a general buyer
the relevant time there was no commercial may offer and what the officer may
complex in the area and fixation of the reasonably expect. In determining the
value of land on commercial basis is market value, the potential of the land as
absolutely misconceived. It is very on the date of sale alone can be taken into
emphatically submitted that the land for account and not what potential it may
the purposes of stamp duty cannot be have in the distant future. Even
valued considering its future land use. subsequent improvement or change in the
The land has to be valued considering its nature or use of the land, which may
location etc. at the time of its purchase. result into enhancement of the market
value of the property, is not to be taken
11. Further submission of learned into account.
counsel for the petitioner is that at the
time of purchase, the land in question was 14. A counter affidavit has been
agricultural land and was being used for filed on behalf of opposite parties, in
agricultural purposes and specific which it has been stated that Sub-
averments to the same effect have been Registrar, Mohanlalganj, Lucknow
506 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted a reference/report that the 19. In the case of Prakashwati Vs.
purchaser of the land is an Chief Controlling Revenue Authority ,
Industrial/Commercial Institution and at Board of Revenue; 1996 AWC 1331, the
the time of execution of sale deed, the Apex Court had held that situation of a
petitioner paid Stamp Duty at the property in an area close to a decent
agricultural rates. However, it would be at colony not by itself would make it a part
the rate of Rs. 13.00 per square feet. It is thereof and should not be a factor for
also submitted that in view of the report approach of the authority in determining
of Sub-Registrar, a Case No. 3138/Stamp, the market value. According to the said
State Vs. Northern India Iron Press Works decision , Valuation has to be determined
(Pvt.) Ltd. was registered against the on constructive materials which could be
petitioner under the Indian Stamp Act and made available before the authorities
during the time of proceedings of the concerned."
case, the petitioner failed to submit any
proof in its favour that the property in 20. In Anirudha Kumar and Ashwini
question has been under the agricultural Kumar Vs. Chief Controlling Revenue
uses. On the contrary, there was no Authority, (2000 (3) AWC 2587), this
evidence on record that the land will not court has referred the aforesaid
be used for construction of Cement Prakashwati's case (supra) and observed
Factory. It is submitted that the competent as under :
court after examining the matter passed
the order dated 22.09.1992 and directed "in the present case , the market
the petitioner to make good the deficiency value is to be determined on the basis of
of the stamp duties. the value that would satisfy the vendor.
Thus . The question of future potential
15. A plea of alternative remedy to cannot be a factor determining the market
file an appeal has also been raised before value of such a land for the purpose of
the Chief Controlling Revenue Authority stamp duty payable under the stamp act.
against the order dated 22.09.1992. The vendee pays the price that satisfies
the vendor and,therefore, it is the utility of
16. I have considered the the land as on the date of transfer by the
submissions of learned counsel for the vendor and as such, if the land was an
parties and gone through the record. agricultural land, it has to be treated as
such and the valuation has to be done
17. Before examining the facts of accordingly. Whether in Future the
the present case, this Court examined purchaser puts the land into residential
various judgments on the issue of use or changes the character is immaterial
determination of stamp duty payable on for the purpose of payment of stamp duty.
property. The principal that has been laid down in
P. Ram Reddy (supra) can be attracted for
18. It is settled position that the Rule the purpose of determining the market
of Alternative Remedy does not oust the value only to the extent of potential as on
jurisdiction of the Court, if found the date of transfer and not beyond. Thus,
necessary for promotion of justice and the market value has to be determined
prevention of injustice. according to the factors , which include
2 All] Northern India Iron Press Work (P) Ltd. Vs. State of U.P. & Anr 507
the situation of the land, the amenities the property is to be paid on the basis of
available in and around and various other market value of the land for industrial
factors, including close proximity of the purpose. This court placing reliance on
residential area as well as any transfer various citations has held that the market
made immediately before the transfer or value of the property is to be determined
after the transfer in close proximity if with reference to the date on which the
such documents are produced in respect document is executed.
of the area that similarly situated land by
either of the parties." 23. Apart from the above decisions,
a Full Bench of this court in Shri Ramesh
21. In Rakesh Chandra Mittal and Chandra Srivastava, Kanpur vs. State of
others vs. Additional District Magistrate U.P. and others, 2007 U.P.T.C. 335 held
(2004 (3) UPLBEC 2434, a Division that the market value of the property has
Bench of this Court held- to be determined with reference to the
date of which the document is executed.
" It is well settled that market value
of the property has to be determined with 24. In the case of Sarva Hitkarini
reference to the date on which the Sahkari Avas Samiti Allahabad and
document is executed. Market value as another Verses State of U.P and others.
such keeps on varying and changing. Any ,(2007(103)RD19) it has been observed
subsequent improvement or change in the that the rules framed for determining
nature or user of the land, which may market value under the Stamp Act and
result into enhancement of the market circle rates circulated under said rules are
value of the property, is not to be taken relevant only for initiation of proceedings
into account and it is only the value of the under section 47-A of Stamp Act.
property on the date of execution of the However, after initiation of the case the
document that is to be considered for the said rules become irrelevant and while
purpose of determination of proper stamp deciding the case market value shall be
duty payable on the instrument." determined on the basis of general
principles for determining market value
22. In Shakumbari Sugar And Allied which are applicable to the land
Industries Ltd. Vs. State of U.P. & acquisition matters. Moreover, future use
others,(2007 (5) ADJ 602) some land was of the property is not decisive."
purchased through a Sale Deed dated
22.7.94. Since the land was agricultural in 25. In the case of Kishore Chandra
nature, the petitioner paid the stamp duty Agarwal; vs. State of U.P. & others,
in accordance with the circle rate issued reported in 2008 (104) RD 235, this Court
by the District Magistrate. On 13.2.1995, has held that the obligation to act fairly on
a notice under Section 47-A read With the part of the administrative authorities
section 33(4) of the Stamp Act was issued was evolved to ensure the rule of law and
to show cause , as to why the deficiency to prevent failure of justice. This doctrine
of stamp duty should not be levied. In the is complementary to the principles of
notice, it was alleged that the petitioner natural justice, which the quasi-judicial
had purchased the land for industrial authorities are bound to observe. An
purposes and as such the stamp duty on arbitrary action is ultra virus.
508 INDIAN LAW REPORTS ALLAHABAD SERIES
26. In the case of I.T.C. Ltd. vs. before this Court, it appears that the
State of U.P. , reported in AIR 2009 authority had proceeded to determine the
Allahabad 31, this Court has held that value on the presumption that though the
market value cannot be determined with land is agricultural land but it has not
reference to use of land for which buyer been purchased for the said purpose. The
intends to put it-stamp duty is payable on said presumption does not appear to be
property as it stands on date of execution sound and reasonable."
of deed. The relevant paras 30 to 32 of the
judgment read as under: 27. Admittedly, the petitioner is a
Company under the provisions of Companies
Para 30. "Thus, the legal position which Act, 1956 and as per Memorandum of
emerges out from the aforesaid cases is that Association of the petitioner-company,
the market value of the land cannot be amongst other objects, one of the object for
determined with reference to the use of the which the company was established, was to
land to which buyer intends to put it. The carry on business of farming including dairy
market value is what a general buyer may farming etc., which has been mentioned in
offer and what the officer may reasonably Clause (c) (sub clause-5 at page 4 of the
expect. In determining the market value, the memorandum of association of the petitioner.
potential of the land as on the date of sale The same reads as under:
alone can be taken into account and not what
potential it may have in the distant future. "To carry on the business of farming
Any subsequent improvement or change in including as dairymen, fruit, farmers
the nature or user of the land, which may livestock breeders, poultry farmers, timber
result into enhancement of the market value growers, horticulturists, seed merchants,
of the property, is not to be taken into processors of agricultural proceeds and
account and it is only the value of the generally to manage improve, farm cultivate,
property on the date of execution of the acquire, lease undertake, exchange, purchase,
document that is to be considered for the sell or otherwise deal with or dispose of
purpose of determination of proper stamp agricultural lands and generally to carry on
duty payable on the instrument. the business of advisers on problems relating
Para 31 In addition to above legal to the administration, organization and work
proposition, it may be pointed out that the of farms, training of personnel thereof, of
State Government has issued a Government system or process relating to the production,
Order dated 16.9.1999 to all the Divisional storage, distribution, marketing and sale
Commissioners, District Magistrates and thereof and/ or relating to the rendering of
Additional District Magistrates (Finance & service in connection therewith."
Revenue), providing therein that while
determining the valuation of the property 28. Admittedly, the petitioner is a
under 1997 Rules, neither the future potential Company under the provisions of Companies
or use of the property nor the status of the Act, 1956 and as per Memorandum of
purchaser (Organization, Society, Company Association of the petitioner-company,
etc.) will not be taken into consideration. .. amongst other objects, one of the object for
Para 32. Having considered the which the company was established, was to
submissions made by the learned Counsel carry on business of farming including dairy
for the parties and the materials placed farming etc., which has been mentioned in
2 All] Northern India Iron Press Work (P) Ltd. Vs. State of U.P. & Anr 509
Clause (c) (sub clause-5 at page 4 of the basis of which Case No. 3138/Stamp, State
memorandum of association of the petitioner. Vs. Northern India Iron Press Works (Pvt.)
The same reads as under: Ltd. was registered against the petitioner
under the provisions of Stamp Act and
"To carry on the business of farming notice was issued to the petitioner. After
including as dairymen, fruit, farmers examining the reply of the petitioner,
livestock breeders, poultry farmers, timber impugned order dated 22.09.1992 was
growers, horticulturists, seed merchants, passed, holding that the land in question
processors of agricultural proceeds and was purchased for establishment of Cement
generally tomanage improve, farm cultivate, Factory and, therefore, petitioner's company
acquire, lease undertake, exchange, purchase, was required to pay stamp duty at the circle
sell or otherwise deal with or dispose of rate fixed for commercial purposes and the
agricultural lands and generally to carry on same being Rs. 13/- per square feet, the
the business of advisers on problems relating value of land was assessed as Rs.
to the administration, organization and work 14,68,519/- and deficiency of stamp duty of
of farms, training of personnel thereof, of Rs. 1,73,925/- was raised against the
system or process relating to the production, petitioner.
storage, distribution, marketing and sale
thereof and/ or relating to the rendering of 31. This Court has examined the
service in connection therewith." impugned order dated 22.09.1992 and
from the perusal of the same, it appears
29. The petitioner purchased a piece that the opposite party no. 2 while
of land of Khasra plot no. 854 measuring examining the matter of deficiency in
3 Bigha and 11 Biswas and Khasra plot stamp duty in registration of document,
no. 856, measuring 12 Biswas, total observed that the purchaser of land in
measuring 4 Bigha and 3 Biswas in question is an industrial/commercial
Mauza Udaipur, Pargana Nigohan, Tehsil institution and will establish industry on
Mohanlalganj, District-Lucknow at the the same and this fact has been confirmed
price of Rs. 77,000/- and the sale-deed by one Shri Suresh Kumar and other local
was executed on 30.01.1992. As per residents of the area vide their complaint
submission of learned counsel for the dated 22.09.1992 to the effect that on the
petitioner, the type of land is Har-4- land in question Cement Factory will be
matiyar. As per circle rate fixed by the established and on this ground, opposite
Collector, Lucknow, the value of the land party no. 2 came to the conclusion that the
comes to Rs. 66,000/-, since the sale land in question has not been purchased
consideration was Rs. 77,000/-, therefore, for agriculture, as no evidence has been
stamp duty was paid by the petitioner at produced with respect to agricultural
the rate of Rs. 77,000/-, which was above activities being carried out, therefore,
the value of land as well as fixed by the stamp duty is to be paid on the basis of
Collector, Lucknow. Industrial/Commercial rates and
accordingly passed the impugned order.
30. It appears that subsequently on the
basis of some complaint made by some 32. This is very surprising that
local residents, Sub-Registrar, opposite party no. 2, on the basis of some
Mohanlalganj submitted a report on the complaint, came to the conclusion that
510 INDIAN LAW REPORTS ALLAHABAD SERIES
cement factory will be established on the one month from the date of receipt of a
land in question, whereas except that certified copy of this order.
complaint there is no evidence on record, --------
which establishes that the petitioner ORIGINAL JURISDICTION
intends to establish a cement factory. It is CIVIL SIDE
settled legal position that stamp duty is to DATED: LUCKNOW 15.04.2015
be paid on the basis of the use of the land
BEFORE
at the time of registration of document
THE HON'BLE DR. DHANANJAYA YESHWANT
and no inference can be drawn for
CHANDRACHUD, C.J.
changing the nature of the land in future
THE HON'BLE SHRI NARAYAN SHUKLA, J.
by the purchaser.
Misc. Bench No. 2993 of 2015
33. Thus, the legal position is that
Ashish KumarMisra [P.I.L.] ...Petitioner
the market value of the land cannot be
Versus
determined with reference to the use of
Bharat Sarkar ...Respondent
the land to which buyer intends to put it.
The market value is what a general buyer Counsel for the Petitioner:
may offer and what the officer may Satish Kumar Misra, Prabuddh Tripathi,
reasonably expect. In determining the Prashant Tripathi, Vineet Kumar Chaurasia
market value, the potential of the land as
on the date of sale alone can be taken into Counsel for the Respondent:
account and not what potential it may C.S.C., A.S.G., Anand Dwivedi
have in the distant future. Any subsequent
improvement or change in the nature or National Food Security Act 2013-Section-
user of the land, which may result into 13-Issue of Ration Card-with name of
eldest woman of family-apprehension-
enhancement of the market value of the
where no major women-by clause 2 of
property, is not to be taken into account
section 13 itself clarify the situation-so
and it is only the value of the property on far discrimination with transgender
the date of execution of the document that concern-within purview of legislating
is to be considered for the purpose of body-to enact suitable provisions-effort
determination of proper stamp duty of counsel raising public interest-duly
appreciated.
payable on the instrument.
Held: Para-6
34. In view of the above, the writ The object and purpose of Section 13 of
petition is allowed. The order dated the Act was to bring about a sense of
22.09.1992 passed by the Addl. District empowerment for women. The purpose
of enacting Section 13 of the Act was to
Magistrate (Finance & Revenue),
recognize the status of a woman in every
Lucknow is hereby quashed.
household and it was in that context that
the statute has enacted that the head of
35. It has been informed by learned the household would be deemed to be
counsel for the petitioner that original eldest woman member who is above the
age of eighteen. The recognition of the
sale-deed has been impounded by the
eldest woman as the head of the
opposite party no. 2. Accordingly,
household is in contradistinction to a
opposite party no. 2 is hereby directed to
male member since as we have already
release the sale-deed within a period of noted above, sub-section (2) of Section 13
2 All] Ashish Kumar Misra [P.I.L.] Vs. Bharat Sarkar 511
of the Act enables a male member of the household, shall be head of the household
household to be recognized as the head of for the purpose of issue of ration cards.
the household only in the absence of a (2) Where a household at any time
woman or if the sole woman is below the
does not have a woman or a woman of
age of eighteen, until she attains the age
eighteen years of age or above, but has a
of majority. The object and purpose of
Section 13 of the Act in other words was female member below the age of eighteen
not to exclude transgenders though in years, then, the eldest male member of the
view of the judgment of the Supreme household shall be the head of the
Court in National Legal Services Authority household for the purpose of issue of
(supra) Parliament may, if we may
ration card and the female member, on
respectfully so say, consider the
attaining the age of eighteen years, shall
appropriateness of a suitable provision to
meet the situation. This is entirely within become the head of the household for
the purview of the legislating body and a such ration cards in place of such male
matter which lies in the province of the member."
enacting authority. The salutary public
purpose, underlying the enactment of
3. Section 13 forms part of Chapter
Section 13 of the Act can be furthered by
VI of the Act which has a provision for
incorporating a situation where a
transgender can be recognized as a head the empowerment of women. Stipulating
of an eligible household. that the eldest woman of every eligible
household, above the age of eighteen,
(Delivered by Hon'ble Dr. Dhananjaya
shall be the head of the household for the
Yeshwant Chandrachud, C.J.)
purpose of the issue of ration cards is
intended to recognize and strengthen the
1. The petition has been filed in the
dignity, role and status of women.
public interest by a practising Advocate in
Parliament gave legal recognition to the
order to raise two concerns relating to the
significant responsibilities which women
issuance of ration cards under the
as decision makers have in a family. This
National Food Security Act, 20131. The
includes those having a bearing on food
first issue relates to the validity of the
security. In enacting Section 13,
provisions of Section 13 of the Act on the
Parliament recognized the roles and
ground that the statutory provision while
responsibilities which are discharged by
recognizing the eldest woman member as
women. That role has been conferred with
the head of the household does not
a statutory status and recognition by
contemplate a situation where there may
providing that the eldest woman, above
be no woman in the family.
the age of eighteen in a household, shall
be regarded as the head of the household.
2. In order to appreciate this
For too long in our history and even
grievance, we extract hereinbelow the
today, women have been burdened with
provisions of Section 13 of the Act:
the obligation of maintaining home and
family without a corresponding
"13. Women of eighteen years of age
recognition or acceptance of their role as
or above to be head of household for
decision makers. Subjected to
purpose of issue of ration cards.- (1) The
discrimination and domestic violence, a
eldest woman who is not less than
woman is left with no social security.
eighteen years of age, in every eligible
Something as primary as the equal
512 INDIAN LAW REPORTS ALLAHABAD SERIES
distribution of food within the family for education, social accumulation, access to
male and female members of the family is public places and employment
a casualty. Recognizing the central role of opportunities. The Supreme Court
the woman in issues of food security is an observed that since transgenders are
integral part of the constitutional right to neither male nor female, treating them as
gender equality. Some of the worst forms belonging to either of these categories,
of discrimination against women originate will be a denial of their constitutional
in the home and the kitchen. It was time rights. The recognition of transgenders as
that the law made an effort to remedy it. the third gender in law has thus become
The submission that the statute does not an intrinsic part of the right to life
account for a situation where there may protected by Article 21 of the
be no woman in a family, is incorrect. Constitution. It is a part of and incidental
Sub-section (2) of Section 13 of the Act to the fundamental expression of the
contemplates a situation where a human personality. The full expression of
household either does not have a woman gender is what the Constitution embodies.
at all or where a woman member of an Among the directions which have been
eligible household is yet to attain the age issued by the Supreme Court are the
of eighteen. In such a situation, sub- following:
section (2) of Section 13 of the Act
provides that the eldest male member of "135.1. Hijras, eunuchs, apart from
the household shall be the head of the binary genders, be treated as "third
household for the issuance of ration cards. gender" for the purpose of safeguarding
Where a female member of the household their rights under Part III of our
is below the age of eighteen, her status as Constitution and the laws made by
the head of the household, shall upon Parliament and the State Legislature.
attaining the age of eighteen, be 135.2. Transgender persons' right to
recognized in terms of sub-section (2) of decide their self-identified gender is also
Section 13 of the Act. In view of these upheld and the Centre and State
statutory requirements, we find no merit Governments are directed to grant legal
in the first submission. recognition of their gender identity such
as male, female or as third gender.
4. The second submission raises an 135.3. We direct the Centre and the
important issue pertaining to the State Governments to take steps to treat
availability of food security for them as Socially and Educationally
transgenders. In National Legal Services Backward Classes of citizens and extend
Authority Vs. Union of India2, the all kinds of reservation in cases of
Supreme Court recognized the admission in educational institutions and
fundamental right of the transgender for public appointments.
population as citizens of the country to 135.7. The Centre and State
possess an equal right to realise their full Governments should also take steps for
potential as human beings. Incidental to framing various social welfare schemes
the fundamental right to live in dignity for their betterment.
under Article 21 of the Constitution, is a 135.8. The Centre and State
right of access to all facilities for Governments should take steps to create
development of the personality including public awareness so that TGs will feel