Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
SHER SINGH & ORS.
Vs.
RESPONDENT:
FINANCIAL COMMISSIONER OF PLANNING,PUNJAB & ORS.
DATE OF JUDGMENT26/03/1987
BENCH:
KHALID, V. (J)
BENCH:
KHALID, V. (J)
OZA, G.L. (J)
CITATION:
1987 AIR 1307 1987 SCR (2) 691
1987 SCC (2) 439 JT 1987 (2) 63
1987 SCALE (1)644
ACT:
Punjab Reorganisation Act, 1966 sections 88 and 89 and
the Haryana Adaptation of Laws (States and Concurrent Sub-
jects) Order 1968, clauses 10 and 11, scope and effect
of--Whether orders passed by an Authority which has become
final would continue after reorganisation.
Punjab Security of Land Tenures Act, 1930, sections 9(1)
(i), 10A(a), 10A(b) and 10B--Rights and duties under--Effect
of the order passed thereunder.
HEADNOTE:
Balwant Singh was a displaced person from West Pakistan.
He owned in all 67 standard acres of land distributed in
various villages. On 8.11.1960 when proceedings under the
Punjab Security of Land Tenures Act, 1930 were initiated,
the Special Collector, Punjab, declared 29 standard acres
belonging to him as surplus area. While doing so, the trans-
fers made by him were ignored. He had an option to choose
the property which fell to his share. He opted for the
entire land belonging to him and situated in village Semani
as his permissible area and did not opt for any area in
Mohamad Pera, District Ferozepure. The Special Collector
reserved for him about 18 standard acres out of his holding
in village Dhav Kharial in order to make up his permissible
area of 50 standard acres. This part of the order of the
Special Collector became final.
On 1.11.1966, the Punjab Reorganisation Act, 1966 came
into force and as a result thereof, the original properties
that belonged to Balwant Singh fell within the new State of
Punjab and the new State of Haryana. In December 1966,
Balwant Sigh, his wife and his minor son filed a writ peti-
tion for the issuance of necessary directions to the States
of Punjab and Haryana restraining them from utillsing the
surplus area declared by the Special Collector by his order
dated 8.11.1960. A learned Single Judge repelled all the
following three contentions; (1) that after the States
Reorganisation, persons owning lands both in the State of
Punjab and Haryana could claim that they should be allowed
692
permissible area in both the States separately; (2) that
orders passed regarding surplus area prior to 1st November,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
1966, and which area had not been utilised till then, should
be deemed to have no effect; and (3) that the proceedings
declaring surplus land were bad for want of notice to the
transferees.
When the matter was taken up in appeal, the Division
Bench felt that an important question was involved and
therefore referred the appeal to a Full Bench. The Full
Bench considered the matter in detail and held that the
order declaring the area to be surplus passed before Ist
November, 1966, would continue to have effect after that
date, even if that order had not been implemented and per-
sons owning land in the newly created States is not, in law,
entitled for a separate allotment under the Act. Hence the
appeal by certificate.
Dismissing the appeal, the Court,
HELD: 1.1 Under the scheme of the Punjab Security of
Land Tenure Act, 1930, It is the entire holding of a person
on 15th April, 1953, that is to be taken into consideration
for determining his surplus area. The Government acquires
the right to utilize the surplus area of a person against
whom an order of declaration has been made for the resettle-
ment of tenants ejected or to be ejected. [696D-E]
1.2 It is true that alongwith the order declaring the
land of an owner as surplus, a corresponding right and duty
accrues to the Government to utilise the surplus area for
the re-settlement of tenants. In other words, the rights on
the land declared as surplus get vested in the Government to
be distributed amongst the tenants for re-settlement. This
is an indefeasible right that the Government secures. There-
fore, the appellant cannot get back the land, if the surplus
land had not been utilised. [697A-C]
1.3 There is nothing in the Act which imposes any time
limit for the government to utilise the land for the purpose
mentioned in the Act. Nor is there any provision enabling
the owner of the land to claim back the land and to get it
restored to him if utilization is not made by the government
within a specified period. All that the Act contains by way
of exception is what is seen in section 10A(b). If at the
time of the commencement of the Act, the land is acquired by
the government under the relevant acquisition laws or when
it is a case of inheritance, the owner could claim exclusion
of such land from his land for fixation of his ceiling under
the Act. The second exception itself is further lettered
693
by the provision in section lOB that where succession had
opened after the surplus area or any part thereof had been
utilised under section 10A(a), the saving specified in
favour of an heir by inheritance would not apply in respect
of the area so utilised. To put it short, the government had
under the Act an unfettered right without time limit to
utilise the land for re-settlement of tenants subject to the
two exceptions. Though it is desirable that re-settlement
should be done as expeditiously as possible, inaction on the
part of the government to resettle the tenants will not
clothe the owner with a power for restoration of the land.
[697B-F]
2.1 The appellant is not entitled to have the best of
the two worlds; in other words to have his quota of full 50
acres in Punjab and another 50 acres in Haryana, this is so
because Section 88 of the Punjab Reorganisation Act, 1966
makes the provisions of the Act which was applicable to the
old State of Punjab would continue to apply to the new
State. In other words, the order passed before 1.11.1966,
which became final, declaring the surplus area would be
given effect to and the order would be implemented uninflu-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
enced by the division of the State. [697F-G; 698B]
2.2 A combined reading of clauses 10 and 11 of the
Haryana Adaptation of Laws (States and Concurrent Subjects)
Order, 1968 also makes it clear that any order made or
anything done or any liability incurred or a right accrued
before the 1st November, 1966 would not be affected by the
coming into force of the order. [698G-H]
2.3 Clauses 10 and 11 show unambiguously that the re-
spective State Governments would be entitled to give effect
to orders passed before 1st November, 1966, declaring the
surplus area by utilising them for the re-settlement of the
tenants, despite the re-organisation of the State of Punjab.
The orders passed will be respected by both the States. The
fact that the land belonging to a particular owner, under
fortuitous circumstances, fail in the two newly formed
States, will not in any way affect the operation of the
orders which had become final prior to 1st November, 1966.
To accept the appellant’s contention would create anomalies.
Persons against whom proceedings under the Act were taken
and became final prior to 1st November, 1966, would be
entitled to claim lands in both the States wile those whose
petitions are pending on the date the States Re-organisation
Act came into force would be in a disadvantageous position.
This is not the object of the Act. Nor the scheme behind it.
The States re-organisation was a historical accident. The
land owners cannot take advantage of this accident, to the
detriment of ejected tenants or tenants in need of re-set-
tlement. [698H; 699A-C]
694
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 341 of
1973.
From the Judgment and Order dated 26.2.1971 of the
Punjab and Haryana High Court in L.P.A. No. 566/1968.
Harbans Singh for the Appellants.
R.S. Sodhi and S.K. Sinha for the Respondents.
The Judgment of the Court was delivered by
KHALID, J. This is an appeal by certificate against the
Judgment of a full bench of the Punjab and Haryana High
Court dated 20th November, 1970. The question involved in
this appeal is ingenious but untenable. The question re-
ferred to the full bench reads as follows:
"Whether after the re-organisation of the
State of Punjab the land owners owning land in
both the States of Punjab and Haryana can
claim to retain the permissible area in each
State separately after 1st of November, 1966.
If so, whether an order declaring the area to
be surplus passed prior to the date above
said, but which order has not been implemented
and the surplus land so declared has not in
fact been utilised would continue to have
effect after said date?"
Now the facts. Balwant Singh was a displaced person from
West Pakistan. He owned in all 67 standard acres of land
distributed in various villages. According to him he had
sold some properties to strangers and the remaining in
favour of his wife and minor son in 1957. On 8th November,
1960, when proceedings under the Punjab Security of Land
Tenures Act, 1930 (for short the Act) were initiated’ the
Special Collector, Punjab, declared 29 standard acres be-
longing to him as surplus area. While doing so, the trans-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
fers made by him mentioned above, were ignored. He had an
option to choose the property which fell to his share. He
opted for the entire land belonging to him and situated in
village Samani as his permissible area and did not opt for
any area in Mohamad Pera, District Ferozepore. The Special
Collector reserved for him about 18 standard acres out of
his holding in village Dhab Kharial in order to make up his
permissible area of 50 standard acres. This part of the
order of the Special Collector, though
695
challenged in appeal, was confirmed by the Commissioner,
Jullundar Division on 5th January, 1965, since the appeal
before him was held to be barred by limitation. The appel-
lant pursued the matter before the Financial Commissioner,
Planning, Punjab,_by filing a revision. This was dismissed
on 19-2-1965.
On 1st November, 1966, the Punjab Re-Organisation Act,
1966, (for short, Re-organisation Act) came into force. The
State of Punjab was distributed under the Act to the present
State of Punjab, State of Haryana, Union Territory of Chand-
igarh and Union Territory of Himachal Pradesh. In December,
1966, Balwant Singh, his wife and his minor son filed a writ
petition for the issuance of necessary directions to the
States of Punjab and Haryana restraining them from utilising
the surplus area declared by the Special Collector by his
order dated 8-11-1960. It is relevant to note here that the
original properties that belonged to him fell within the new
State of Punjab and the new State of Haryana.
The matter came before a learned Single Judge. The
following questions were raised before him: (1) That after
the States Reorganisation, persons owning lands both in the
State of Punjab and Haryana could claim that they should be
allowed permissible area in both the States separately, (2)
that orders passed regarding surplus area prior to 1st
November, 1966, and which area had not been utilised till
then, should be deemed to have no effect and (3) that the
proceedings declaring surplus land were bad for want of
notice to the transferees. These contentions were repelled
by the learned Single Judge.
He took the matter in appeal. The Division Bench before
whom the appeal was posted felt that an important question
was involved and therefore referred the appeal to a larger
bench.
The full Bench considered the matter in detail and held
that the order declaring the area to be surplus passed
before 1st November, 1966, would continue to have effect
after that date, even if that order had not been implemented
and persons owning land in the newly created States is not,
in law, entitled for a separate allotment under the Act. It
is this conclusion of the Full Bench that is assailed before
us on the strength of a certificate issued by the Court
Balwant Singh had more than the permissible area, viz.,
50 standard acres with him. The excess area was liable to be
declared as surplus. Surplus area was declared by the Spe-
cial Collector, by his
696
order dated November 8, 1960. It was confirmed in appeal and
in revision. The revisional order is dated 19th February,
1965, that is before 1st November 1966, when the Re-organi-
sation Act came into force. As indicated above, by virtue of
the Re-organisation of the two States, a part of his hold-
ings fell in the territory of the State of Haryana and
another part in the State of Punjab. He evolved a contention
that he could have 50 standard acres of land in each of the
two States. On this basis, he questioned the order dated 8th
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
November., 1960. He supported this argument with the addi-
tional plea that the said order had not been implemented and
the land declared surplus not utilised.
The question that fell to be decided by the full Bench
was whether the order which had become final would continue
to have effect after the date of enforcement of the Re-
organisation Act when that order had not been given effect
to and the surplus area had not been utilized by the Govern-
ment.
Under the Scheme of the Act, it is the entire holding of
a person on 15th April, 1953, that is to be taken into
consideration for. determining his surplus area. The Govern-
ment acquires the right to utilize the surplus area of a
person against whom an order of declaration has been made
for the resettlement of tenants ejected or to be ejected.
Sections 9(1)(i) and 10A(a), which read as follows, make the
position clear:
"9(1). Notwithstanding anything contained in
any other law for the time being in force, no
land owner shall be competent to eject a
tenant except when such tenant
(i) is a tenant on the area reserved
under this Act or is a tenant of a small land
owner; or..................."
"10A(a) The State Government or any officer
empowered by it in this behalf, shall be
competent to utilise any surplus area for the
re-settlement of tenants ejected, or to be
ejected, under clause (i) of sub-section ( 1 )
of Section 9."
It was contended before the High Court and repeated
before us that the order did not get finality unless the
surplus area had in fact been utilised, and tenants re-
settled there. This contention did not find
697
favour with the High Court. We will presently examine wheth-
er the contention has any merit. It is true that along with
the order declaring the land of an owner as surplus, a
corresponding right & duty accrues to the Government to
utilise the surplus area for the re-settlement of tenants.
In other words, the rights on the land declared as surplus
get vested in the Government, to be distributed amongst the
tenants for re-settlement. This is an indefeasible right
that the Government secures. The appellant is not well
rounded in his contention that he could get back the land if
the surplus had not been utilised. There is nothing in the
Act which imposes any time limit for the Government to
utilise the land for the purpose mentioned in the Act. Nor
is there any provision enabling the owner of the land to
claim back the land and to get it restored to him if utili-
zation is not made by the Government within a specified
period. All that the Act contains by way of exception is
what is seen in Section 10A(b). If at the time of the com-
mencement of the Act, the land is acquired by the Government
under the relevant acquisition laws or when it is a case of
inheritance, the owner could claim exclusion of such land
from his land for fixation of his ceiling under the Act. The
second exception itself is further lettered by the provision
in Section 10-B that where succession had opened after the
surplus area or any part thereof had been utilised under
Section 10A(a), the saving specified in favour of an heir by
inheritance would not apply in respect of the area so uti-
lised. To put it short, the Government had under the Act an
unfettered right without time limit to utilise the land for
re-settlement of tenants subject to the two exceptions
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
mentioned above. It is, of course, desirable that re-settle-
ment should be done as expeditiously as possible. Inaction
on the part of the Government to re-settle the tenants will
not clothe the owner with a power for restoration of the
land. The contention of the appellant based on non-utilisa-
tion of the land has, therefore, to fail.
The second question is whether the appellant is entitled
to have the best of the two worlds; in other words, to have
his quota of full 50 acres in Punjab and another 50 acres in
Haryana. Section 88 of the Re-organisation Act makes the
position clear. It reads as follows:
"The provisions of Part II shall not be deemed
to have effected any change in the territories
to which any law in force immediately before
the appointed day extends or applies, and
territorial references in any such law to the
State of Punjab shall, until otherwise provid-
ed by a competent Legislature or other compe-
tent authority, be construed as meaning the
territories within that State
698
immediately before the appointed day."
As per this Section the provisions of the Act which was
applicable to the old State of Punjab would continue to
apply to the new State. In other words the order passed
before 1st November, 1966, which became final, declaring the
surplus area, would be given effect to and the order would
be implemented uninfluenced by the division of the State.
After the Re-organisation Act, the Governer of Haryana in
exercise of the powers conferred by Section 89 of the Re-
organisation Act passed an order by name Haryana Adaptation
of Laws (States and Concurrent Subjects) Order, 1968, on
23-10-1968 making it to take effect retrospectively from 1st
November, 1966. Clauses 10 and 11 of the order read as
follows:
"10. The provisions of this order which adapt
or modify any law so as to alter the manner in
which, the authority by which, or the law
under or in accordance with which any powers
are exercisable shall not render invalid any
notification, order, licence, permission,
award, commitment, attachment, by-law. Rule or
regulation duly made or issued, or anything
duly done, before the appointed day; and any
such notification, order licence, permission,
award, commitment, attachment, bye-law, rule,
regulation or thing may be revoked, varied or
undone in likemanner, to the like extent and
in the like circumstances as if it has been
made, issued, or done after the commencement
of this order by the competent authority and
under and in accordance with the provisions
then applicable to such a case.
11. Nothing in this Order shall affect the
previous operation of, or anything duly done
or suffered under any existing State law or
any right, privilege, obligation or liability
already acquired, accrued or incurred under
any such law, or any penalty, forfeiture or
punishment incurred in respect of any offence
already committed against any such law."
A combined reading of these two clauses makes it clear
that any order made or anything done or any liability in-
curred or a right accrued before the 1st November, 1966
would not be affected by the coming into force of the order.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
These two clauses show unambiguously that the respective
State Governments would be entitled to give effect
699
to orders passed before 1st November, 1966, declaring the
surplus area by utilising them for the re-settlement of the
tenants, despite the reorganisation of the State of Punjab.
The orders passed will be respected by both the States. The
fact that the land belonging to a particular owner, under
fortuitous circumstances, fall in the two newly formed
States, will not in any way affect the operation of the
orders which had become final prior to 1st November, 1966.
To accept the appellant’s contention would create anomalies.
Persons against whom proceedings under the Act were taken
and became final prior to 1st November, 1966, would be
entitled to claim lands in both the States while those whose
petitions are pending on the date the States Reorganisation
Act came into force would be in a disadvantageous position.
This is not the object of the Act. Nor the scheme behind it.
The States re-organisation was a historical accident. The
land owners cannot take advantage of this accident, to the
detriment of ejected tenants or tenants in need of re-set-
tlement. For the above reasons, we hold that the High Court
was justified in answering the question referred to it
against the appellant. The appeal is accordingly dismissed.
There will be no order as to costs.
S.R. Appeal dis-
missed.
700