G.C. MATHUR, J. :- Dhan Singh respondent No. 1, was the tenure-holder of a large area of land. A notice under Section 10 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, was served upon him. He filed objections claiming that his family consisted of seven members. He also claimed certain exemptions. By the time the objections came to be decided his family had increased to nine members and he claimed that the ceiling area should be calculated on the basis of nine members in his family. The Prescribed Authority accepted his contention and calculated the ceiling area at 64 acres, but in calculating the surplus area the Prescribed Authority committed some error. Dhan Singh preferred an appeal for correcting the error in the calculation of the surplus area. In the appeal, it was urged on behalf of the State Government that the child born subsequent to the coming into force of the Act could not be taken into account in calculating the members of the family. This contention was accepted by the Appellate Authority and it held that on the date the Act came into force, which is the relevant date, the family consisted of only seven members and was, therefore, entitled to a ceiling area of 56 acres only. It further held that the surplus area calculated on this basis came to something more than what had been declared by the Prescribed Authority and, therefore, Dhan Singh was not really aggrieved by the order of the Prescribed Authority. It, accordingly dismissed the appeal Thereupon a writ petition was Sled before this Court.

2. It appears that out of the two children born after the coming into force of the Act, one was a son who was in embryo on the date the Act came into force. It was urged before the learned Single Judge that this son should be deemed to have been in existence on the date the Act came into force and should be taken into account in determining the family. The learned Single Judge accepted this contention and held that a child in the womb was a child in existence on the date the Act came into force. He, accordingly, held that the family consisted of eight members and was entitled to a ceiling area of 64 acres. On this basis the surplus area was found to have been wrongly calculated and the learned Single Judge remanded the case to the Appellate Authority for correction of the mistake. The State Government has now preferred this appeal against the judgement of the leaned Single Judge.

3. The only question which arises for determination in this appeal is whether a child who was born after the Act came into force, but who was in embryo on that date, can be treated to be a child in existence on the date. The learned Standing Counsel has relied upon the decision of a Division Bench of this Court in State v. District Judge. 1964 All LJ 558 : (AIR 1964 All 451). The facts of this case are identical to the facts of the case before us. In this case the family of the tenure-holder consisted of five members, but a son was born in February. 1961, increasing the number to six. It was held by the Division Bench that the relevant date for determining the ceiling area was the date of the enforcement of the Act (January 3, 1961) and, therefore, a son born after this data could not be taken into account in determining the number of the members of the family. Since the son in this case was born in February. 1961. it is obvious that he was in embryo on the date the Act came into force and still the Division Bench held that he could not be treated as a member of the family for purposes of calculating the ceiling area. Learned Counsel for the contesting respondents has contended that the specific question whether a child in embryo on the date the Act came into force should be deemed to be a child in existence on that date was not raised or decided in this case.

4. How the ceiling area is to be calculated is set down in Section 4 of the Act The relevant part of Sub-Section (2) of Section 4 with which we are concerned reads thu