Desai, C.J:— This is a petition for certiorari to quash orders passed by the apposite-parties assessing the petitioner to a certain amount of tax for the Fasli year 1365 under the U.P Large Land Holdings Tax Act, (No. XXXI of 1957). Sec. 3 of the Act which is the charging section, provides that a tax called the “Holding Tax” shall be charged, levied and paid for each agricultural year on the annual value of each land holding exceeding thirty acres “Land holding” is defiled in Sec. 4 to mean “the aggregate of all land held or occupied on the first day of July each year by a land-holder, whether in his own name or in the name of any member of his family”; this definition is subject to the proviso that “the land held or occupied by a member of the family of the land-holder, shall not form part of the holding of such land-holder, if the same is managed and cultivated separately.” The explanation to the proviso shows that a family includes sons and grandsons. “Annual value” of a land holding means, vide Sec. 5, an amount equal the rent payable for the land or lands included therein multiplied by a certain multiple. “Land-holder” is defined in Sec. 2(16) and the petitioner is admittedly a land-holder. The procedure for assessment of holding tax is described in Chap. III. The Sub-Divisional Officer is the assessing authority. Sec. 7 requires a general notice to be given in each agricultural year requiring livery land-holder liable to pay holding tax to furnish to the assessing authority a return within a certain time. A special notice may be served on any landholder who, in the opinion of the assessing authority, is liable to the payment of holding tax requiring him to furnish within a certain time a return. If the return filed by a land-holder is accepted by the assessing authority as correct and complete, he determines the annual valuation of the land holding and assesses the holding tax chargeable thereon under Sec. 8, Sub-Sec. (1); if he has reason to believe that the return is incorrect or incomplete, he should require the land-holder to produce evidence in support of the return and, after considering such evidence as he may produce, determine the annual valuation of the land holding and assess the holding tax chargeable thereon under sub-Sec. (3). An appeal from an assessment order is provided in Sec. 11 to the Commissioner and a revision from the Commissioner's order is provided in Sec. 12 to the Board of Revenue. Any order passed by the Board of Revenue under Sec. 12 is final.

2. The petitioner is a landholder in several villages, including villages Naya Gaon, Habibpur, Condarao and Baghauli. In 1956 he separated from his sons through a family arrangement and the sons started living, and carrying on business and cultivation, separately from him. Previous to this partition the name of the petitioner was recorded in the village records over all the land and on July 20, 1956, his sons applied for entry of their names in respect of land belonging to these four villages, which, they claimed, had fallen to their shares under the partition and was in their own cultivation. These application were pending on 1-7-57, the date on which Fasli year 1365, commenced. The applications were allowed on various dates, such as 15-4-58, 7-6-58 and 4-7-58 and the names of the sons were recorded over the lands in place of the petitioner.

3. The assessing authority, namely, the Sub-Divisional Officer, served upon the petitioner a notice under Sec. 7(2) of the Act, along with a copy of a provisional valuation statement, for the assessment year 1365 Fasli. In reply the petitioner filed a return showing the total valuation of his land at Rs. 3,900 and odd and that of his sons at Rs. 16,000 and odd against the valuation of Rs. 21,000 and odd shown in the provisional valuation statement by the assessing authority. He claimed exemption of Rs. 17,000 and odd under rule 5 of the Rules framed by Government under the Act on the ground that the entries in the records were incorrect and that the land was in possession of other persons. He also claimed that the land in possession of his sons, who had separated from him in all respects, should not be shown as his land for the purpose of assessment and that the land occupied by residential buildings should be exempted. In pursuance to a notice served upon him under Sec. 8(2) he produced evidence, oral and documentary. After considering it the assessing authority held him liable for all the land that stood recorded in his name on 1-7-57, even though it had been given to his sons under the partition and they were separate from him in cultivation and residence. He exempted from the assessment the land covered by residential buildings and the land in the possession of his sons and standing recorded in their names on 1-7-57. He refused to give him the benefit of R. 5 on account of alleged wrong entries in the records on the ground that his case was not covered by R. 5. In the result he assessed the valuation of his land-holding at Rs. 13,000 and odd and assessed the holding tax on it. The Commissioner dismissed the petitioner's appeal from this assessment order, taking his stand on the fact that his name stood recorded over the land of the four villages on 1-7-57. As regards the land, which was supposed to be in adverse possession of other persons, who were recorded as Qabiz in respect of it, the Commissioner held that, since they were recorded as Qabiz after 1-7-57, the land could not be excluded from the landholding of the petitioner. A second appeal was dismissed by the Board of Revenue simply on the ground that it had decided previously in a certain case that “land held or occupied…. by” within the meaning of Sec. 4 means “land which stands recorded in the name of.” By this petition the petitioner wants the orders of the assessing authority, the Commissioner and the Board of Revenue to be quashed by a certiorary on the ground of an apparent error of law. The petition is contested by the opposite parties.

4. For the assessment year 1365. Fasli the petitioner was liable to pay holding tax on the annual value of the aggregate of all land held or occupied on 1-7-57 by him, whether in his own name or in the names of his sons; this is the effect of Sec. 4. This section is badly drafted and it seems that whatever was in the mind of the draftsman has not been brought out clearly in the provision. The phrase “held or occupied” has become a fashion with the draftsmen and the Legislature and has been used frequently. It is to be found in Sec. 9 of the Zamindari Abolition and Land Reforms Act and is also to be found in Secs. 2(15) and (16) of the Large Holdings Tax Act. Apart from the difficulties involved in the interpretation of this phrase, further difficulties are caused by the addition of the words “whether in his own name or in the name of any member of his family” in Sec. 4. It is not easy to understand what is meant by “held or occupied in own name or in another's name.” Neither-holding land nor occupying it requires any name. If a person holds or occupies land, he just holds or occupies it and there arises no question of names. Either he holds or occupies it, or he does not, and it seems meaningless to speak of his holding or occupying it in a certain name. If the draftsman meant that land holding includes all land held or occupied by a land-holder, regardless of whether it is recorded in the village records in his name or in the name of any member of his family, he should have used appropriate words instead of the vague words “whether in his own name or in the name of any member of his family.” The significance of the words “each year” is also not clear. These words certainly do not mean “in the year of assessment.” The words “each agricultural year” have to be used in the charging Sec. 3, because holding tax is to be charged, levied and paid for each agricultural year. Holding tax is to be assessed on the annual value of the Iand-holder's land holding. What the legislature seems to intend is that the tax for a particular year be assessed on the annual value of the land holding held or occupied by the land-holder on the first day of July of that year; but the idea of “that year” is not conveyed by the words used in Sec. 4, “each year.” Then the proviso that the land held or occupied by a member of the family of the land-holder shall not form part of his land holding is inappropriate, being no proviso at all. Land held or occupied by another person, even though a member of the family of the land-holder, is certainly not land held or occupied by the land-holder and would not come within the scope of Sec. 4(1). If it would not, the proviso accomplishes nothing because even without it the land would not have been included in the land holding of the land-holder. The proviso is not only misconceived but also mischievous on account of the involved suggestion that land held or occupied by a person other than the land-holder may still be treated as land held or occupied by him within the meaning of Sec. 4(1).

5. What is clear from Sec. 4 is that the petitioner was liable to be assessed to holding tax on the annual value of the aggregate of all land held or occupied by him on 1-7-57. It is immaterial whether he held or occupied it in his own name or in the names of his sons. The question in whose name the land was held or occupied will not arise if it was not held by him. The words “whether in his own name or in the name of any member” do not do away with the requirement that the land must be held or occupied by the land-holder; their office simply is to remove a possible objection that though a particular land was held or occupied by him it should not be included in his land-holding because it was not held or occupied in his own name. The Commissioner and the Board of Revenue have clearly gone wrong staking everything upon the entries in the village records; the words “whether in his own name etc.” did not make entries in the village records relevant when he was not found to have title or possession. Entries in the village records are made by lekhpals and not by land-holders or under instructions from them. The legislature could not have contemplated that the liability to pay holding tax would depend upon entries made by lekhpals which might be completely against the facts. A land-holder, who has neither title nor possession over land, cannot certainly be said to occupy it merely because his name is recorded in the village records, but he also cannot be said to hold it. The lekhpal's act of recording his name wrongly in the village records cannot be said to be his act of holding the land. The essential question to be considered was whether the land was held or occupied by the petitioner on 1-7-57 or not; if it was answered in the affirmative it did not matter whether his name was recorded or his sons,’ and if it was answered in the negative, no further question arose and the land was not to be included in his land holding. Now the facts that are found are that the land was not occupied by him on 1-7-1957 and belonged to, and was in sole possession of, his sons. They had acquired title over it under the partition before 1-7-1957. Merely because the petitioner's name continued to be recorded in respect of it, it could not be said that he held or occupied it when both the title and possession were with his sons and are not claimed by him. He disclaimed all title and possession over the land on 1-7-57. It was illogical to say that he held or occupied land merely because his name was recorded in respect of it. If he held or occupied it, it would have to be included in his land holding, even though it was recorded in the names of his sons, but land not held or occupied by him could not be included in his land holding merely because it was recorded in his sons' names.

6. The effect of the proviso to Sec. 4 is the same. Land held or occupied by the sons of the petitioner cannot form part of his land holding, as it was managed and cultivated separately.

7. The scheme of the Act is that the same land cannot be included, in two land holdings and two persons cannot be assessed to a holding tax on it. If it must be included in the land holding of one land-holder, it cannot be included in the land holding of any other land-holder. Therefore, the words “held” and “occupied” must be treated as synonyms and the phrase “held or occupied” must be interpreted so as to be applicable to only one landholder. If land is occupied by a landholder, the phrase should be interpreted so as to be wholly applicable to him. Since only one land-holder is to be deemed to hold or occupy land, the idea of one land-holder's holding it and another's occupying it is completely excluded. If a land-holder holds land but it is not in occupation of any one, the land is to be included in his land holding. If land belongs to one person but is occupied by another person, it is to be included in the holding of the other person. If land is occupied it must be included in the land holding of the occupier even if another person has a right to occupy it or his name is recorded in respect of it.

8. The assessing authority should first start with land and find its landholder and then find the annual value of the aggregate of all land held or occupied by him on the first day of July of the assessment year. Proceeding in this manner the Sub-Divisional Officer should have found that the petitioner's sons were the land-holders, being intermediaries personally cultivating it or holding it as sir or khudkasht or persons holding or occupying it otherwise then as asamis, sub-tenants, tenants of sir or sirtans. The petitioner would not be its land-holder because even though he might be an intermediary it was not in his personal cultivation and he did not hold or occupy it.

9. I do not understand how the petitioner claimed the benefit of R. 5. The land in dispute is not covered by it.

10. The assessing authorities rightly refused to be governed by the decision in the case under the Agricultural Income-Tax Act; the question that arises under the Large Land Holdings Tax Act is not identical with the question that arises under the Agricultural Income-Tax Act.

11. The Commissioner rightly rejected the claim of the petitioner for exclusion of land recorded as in possession of other persons after 1-7-1957.

12. The Sub-Divisional Officer, the Commissioner and the Board of Revenue made an apparent mistake of law in treating the land of the four villages as included in the petitioner's land holding. I would, therefore, allow this petition and issue certiorari to quash the orders passed by the Sub-Divisional Officer, the Commissioner and the Board of Revenue, and a mandamus calling upon the Sub-Divisional Officer to pass a fresh assessment order in conformity with this judgment. The petitioner should get his costs of the petition from opposite party no. 4.

13. S.D Singh, J.:— I agree.

Petition allowed.