Full Judgment Text
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PETITIONER:
AJMER SINGH AND ORS. ETC.
Vs.
RESPONDENT:
STATE OF HARYANA AND ORS.
DATE OF JUDGMENT17/11/1989
BENCH:
RAMASWAMI, V. (J) II
BENCH:
RAMASWAMI, V. (J) II
SHARMA, L.M. (J)
CITATION:
1989 SCR Supl. (2) 209 1990 SCC (1) 227
JT 1989 (4) 481 1989 SCALE (2)1137
ACT:
The Punjab Security & Land Tenures Act 1953, Sections 3,
4, 5A to 5C--Small Land owner--Right to reservation--Whether
arises.
HEADNOTE:
These appeals are by tenants against the land-owners.
One Bishan Das owned considerable extent of land in
Pakistan. He died on April 11, 1948 after he had migrated to
India. After his death the Rehabilitation Department allot-
ted 124 standard acres and 4-I/4 units of evacuee land to
Respondents Nos. 2 to 5 his sons and to Nos. 6 & 7 who were
the legal heirs of one his deceased son. Each of the five
sons was deemed entitled to 24 standard acres and 13 units
of land and accordingly mutuation in respect of each of them
was allowed by the Rehabilitation Department. Permanent
rights in regard to the allotted land were also conferred by
the authorities on the said respondents. Thereupon the said
respondents-land owners initiated ejectment proceedings
under sec. 9(1)(i) of the Punjab Security of Land Tenures
Act, 1953 against the tenants who were then in occupation of
the Lands in question on the ground that each one of them
was a small land owner as defined in Section 2(2) of the Act
and that they required the land for self cultivation. The
Assistant Collector, Hissar rejected the application. Their
appeals were dismissed by the Collector on 4.4.1965. Their
revision preferred before the Commissioner, Ambala Division
was also rejected. Land-owners’ further revision to Finan-
cial Commissioner also failed whereupon they filed a Writ
Petition before the High Court on the ground that the land
had been allotted to them in lieu of the land owned by their
father in Pakistan and consequently the permissible area of
each of them was to be computed under the proviso to section
2(3) of the Act, and so computed the holding of each of the
five was well below the permissible limit of 30 standard
acres prescribed thereunder. The High Court dismissed the
Writ petition.
Respondents preferred Letters Patent Appeals wherein the
High Court held that in view of the Explanation to the
proviso to section 2(3), the heirs and successors of the
displaced persons to whom lands were allotted could not
claim the benefit of the proviso and that the permissi-
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210
ble area under the substantive part of section 2(3) was 60
ordinary acres,
The respondents preferred appeals to this Court. This
Court confirmed the view of the High Court. However this
Court accepted an argument advanced on behalf of the re-
spondents-land owners that in computing the permissible area
of each of the land-owner, the uncultivated area of "banjar
Jadid", "banjar Kadim" and "gair Mumkin" lands as on April
15, 1953 could not be included. As the authorities had
wrongly included these types of lands, their orders were set
aside and the case was remanded to the Collector concerned
with a direction that should ascertain the extent of "banjar
Jadid", "banjar Kadim" and "gair mumkin" lands of the Re-
spondents allotted as on 15.4.1953. When these proceedings
were pending, applications filed by the appellants-tenants
under section 18 of the Act for purchase of surplus area
also came to be considered by the authorities. When the
matter came up before the Financial Commissioner he set
aside the orders of the Collector and remanded the appel-
lants-tenants cases for purchase of surplus land with a
direction that the Collector must decide the cases of sur-
plus area after allowing the permissible 60 acres to the
land owners. In a subsequent proceedings, the Financial
Commissioner directed the Collector to determine the permis-
sible area after excluding all "banjar lands". The tenants
filed Petitions before the Financial Commissioner against
the order. However by the time these cases came up for
orders, this Court had decided the land-owners’ eviction
cases viz in Munshi Ram & Ors. v. Financial Commissioner.
Haryana & Ors., [1979] 2 SCR 846.
As such the revision Petitions were dismissed and the
Collector was asked to determine the permissible area with
reference to relevant date viz., April 15, 1953. By his
order dated 6.5.82 the Collector accordingly determined the
area held by each of the land owner after excluding the
"banjar lands", as less than the permissible area and found
that no area owned by them could be declared surplus and on
that footing dismissed the purchase applications filed by
the appellantstenants. Their Petitions having been dismissed
by the Authorities under the Act, they fried Writ Petitions
questioning the dismissal of their purchase applications.
The High Court having dismissed the Writ Petitions, they
have filed these appeals.
Dismissing the appeals, this Court,
HELD: The Punjab Security Land Tenures Act 1953 is intended
to
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place a ceiling on holding of land by fixing a maximum area
permissible to be held by a land-owner. In other words the
excess over the permissible area shall be available as
surplus area to be dealt with under the provisions of the
said Act. [217H]
In calculating the total extent held by a person on the
date of the Act for purposes of determining whether a person
is small land-owner, the banjar lands cannot be taken into
account. [216C]
The need to make a reservation would arise only when the
land-owner on the relevant date held land in excess of the
permissible area. [217C]
The right of reservation given to a person who holds
land in excess of the permissible area is, among others to
give him an option to select that land which he would like
to retain for himself and avoid one of the consequences of
enabling the tenant to choose under section 18 of the Act
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any land including that which is under the personal cultiva-
tion of the land owner. [218B]
It is not necessary and the Act does not make it obliga-
tory, on pain of consequences provided under section 5C, for
a small land-owner to make a reservation under sections 3,
4, 5, 5A or 5B. [218C]
Bhagwan Das v. State of Punjab, [1966] 2 SCR 510; Gurbux
Singh v. State of Punjab, AIR 1964 SC 502, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8068 10
of 1986.
From the Judgment and Order dated 16.3.1985 of the
Punjab & Haryana High Court in Civil W.P. No. 2050-2054 of
1984.
M.S. Gujral and Prem Malhotra for the Appellants.
Kapil Sibal, M.R. Sharma, S.K. Mehta, Vinod Mehta, Atul
Nanda and M.K. Dua for the Respondents.
The Judgment of the Court was delivered by
V. RAMASWAMI, J. One Bishan Das who is the father of
respondents 2 to 5 and another by name Muhari Ram whose
legal representative are respondents 6 and 7, owned consid-
erable extent of
212
land in Pakistan. He died on April 11, 1948 after he migrat-
ed to India. After his death the Rehabilitation Department
allotted 124 standard acres and 4-1/4 unit of evacuee land
on 26th August, 1949. The five sons of Bishan Das were
treated as entitled to this land as heirs and successors of
the displaced person and accordingly mutation was allowed by
the rehabilitation authorities on February 17, 1953 in
favour of the five sons showing each of them entitled to 24
standard acres and 13 units of land. Permanent rights in
regard to this allotted land were also conferred by the
authorities under the provisions of the said Displaced
Persons (Compensation and Rehabilitation) Act in the names
of the sons of Bishan Das on January 2, 1956. These lands
were in the occupation of different tenants against whom the
five brothers initiated ejectment proceedings by filing
applications under section 9(1)(i) of Punjab Security of
Land Tenures Act, 1953 (hereinafter called ’the Act’) for
ejectment on the ground that each of them is a "small land-
owner" as defined in Section 2(2) of the Act and that they
required the land for self-cultivation. The Assistant Col-
lector, Hissat rejected the application. The owners’ appeals
were dismissed by the Collector on January 4, 1965. Their
revision also was rejected by the Commissioner of Ambala
Division on October 26, 1965. Their further revision to the
Financial Commissioner also met with the same fate on May
17, 1966. Thereafter the land-owners moved the High Court by
a writ petition under Article 226 and 227 of the Constitu-
tion on the ground that the land had been allotted to them
in lieu of the land owned by their father Bishan Das in
Pakistan and consequently the permissible area of each of
them is to be computed under the proviso to Section 2(3) of
the Act and so computed the holding of each of the five were
well below the permissible limit of 30 standard acres pre-
scribed thereunder. The writ petition was dismissed but the
L.P. Appeals filed against the same came up for considera-
tion before a full Bench of the High Court of Punjab and
Haryana. The High Court held that in view of the explanation
to the proviso the heirs and successors of the displaced
persons to whom land were allotted could not claim the
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benefit of the proviso and that the permissible area under
the substantive part of section 2(3) is 60 ordinary acres.
The decision of the full Bench is reported in 1967 Punjab
Law Reporter 913. Against this decision the respondent
land-owners preferred appeals to this Court. By a judgment
dated December 15, 1978 in Munshi Ram & Ors’. v. Financial
Commissioner, Haryana & Ors., [1979] 2 SCR 846 this Court
confirmed the view of the full Bench. However, this Court
accepted and argument on behalf of the land-owners that in
computing the permissible area of each of the land-owners
the uncultivated area of ’banjar jadid’, ’banjar kadim’ and
’gair mumkin’ lands as on April
213
15, 1953 could not be included. As the authorities under the
Act had illegally and wrongfully included these types of
uncultivated lands orders of the various authorities were
set aside and the case was remanded to the Collector con-
cerned of Hissar District with a direction that he should
ascertain the extent of the ’banjar jadid’, ’banjar kadim’
and ’gair mumkin’ of the land-owners allottees at the rele-
vant date, namely, April 15, 1953 and recompute their per-
missible area after excluding such land. It is now ascer-
tained that so computed each of the land-owners were holding
at the relevant date less than 60 acres. When these proceed-
ings were pending simultaneously applications filed by the
tenants under section 18 of the Act for purchase of the
surplus area were also being considered by the various
authorities. When that matter came up before the Financial
Commissioner, Haryana, in surplus area cases after noting
the judgment of the Full Bench of the High Court in the
land-owners case, the Financial Commissioner set aside the
orders of the Collector and remanded the tenants cases for
purchase of surplus land with a direction that the Collector
must decide the case of surplus area after allowing the
permissible 60 acres to the land-owners. Thereafter. the
Collector took up consideration of the surplus area cases in
the light of the remand order. However, by his Order dated
February 2, 1978 the Collector held that the land-owners
should include in the permissible area all the ’banjar’
lands which have since been brought under cultivation and
accordingly directed the land-owners to produce the list of
permissible area. On appeal by the land-owners the Financial
Commissioner remanded the cases to Collector with a direc-
tion that he must decide the cases after excluding all
’banjar lands’. The tenants filed petitions against this
Order to the Financial Commissioner. By the time these cases
came up for orders the Supreme Court had decided the land-
owners eviction cases on December 15, 1978 (supra). There-
fore, the revision petitions were dismissed. However, the
Collector was asked to determine the permissible area with
reference to relevant date, viz., April 15, 1953. By his
Order dated May 6, 1982 the Collector determined the area
held by each of the land-owners, after excluding the ’ban-
jar’ lands as less than the permissible area and that,
therefore, no area owned by them could be declared surplus
and accordingly dismissed the purchase application filed by
the tenants. The Commissioner by his order dated April 18,
1983 confirmed this decision of the Collector. The tenants
went in revision before the Financial Commissioner. It was
again argued before the Financial Commissioner that he
should not have allowed the ’banjar’ area to be excluded
from their holding since they had subsequently been brought
under cultivation. The Financial Commissioner agreed with
the land-
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owners that ’banjar’ lands could not be treated as ’lands’
for the purpose of computing the permissible area, that the
relevant date for purpose of determining the permissible
area is April 15, 1953 and in that view dismissed the pur-
chase applications filed by the tenants. The tenants having
failed in the writ petition filed by them questioning the
dismissal of their purchase applications, have filed these
five appeals.
The main contention of Mr. Gujral, learned counsel for
the petitioner in these cases was that in determining the
question whether a person is a small land-owner for the
purpose of the Act the entire land owned by him whether
cultivated or not cultivated and whether it is ’banjar’ or
any other land shall be taken into account. If the total
extent of the land so calculated is above the permissible
area, then unless the land-owner has made the reservation as
contemplated in
sections 3, 4, 5 and 5A, he incurs the penalty under section
5C and the ’permissible area’ will be reduced to 10 standard
acres and then again he cannot also choose these 10 standard
acres but the tenants would have the option to purchase any
land of the land-owner including the land under the personal
cultivation of the land-owner, leaving only 10 standard
acres. The point in this form was never raised before and,
therefore, the learned counsel for the respondent objected
to the counsel raising it for the first time in this Court.
But since it is a question of law and the facts were not in
dispute we have permitted the counsel to raise this point.
It is not in dispute that the land-owners had not made any
reservation under sections 3, 4 and 5 originally nor did
they make it after section 5A was introduced, though their
lands were situated in more than one Patwar Circle within
section 5A. However, the stand taken by the land-owners was
that they were small landowners having less than 60 acres
and, therefore, they were not obliged to make any reserva-
tion and section 5C would not be attracted at all.
The following proposition have been settled by the
decisions of this Court in Bhagwan Das v. State of
Punjab,[1966] 2 SCR 510 and MunshiRam v. Financial Commis-
sioner, Haryana, (supra).
1. The relevant date for determining the
permissible area and the surplus area is April
15, 1953 the date on which the Punjab Security
of Land Tenures Act, 1953 came into force and
not the date on which the eviction application
was filed.
2. If a person is a small land-owner at the
commencement of the Act, his status is not
altered by reason of improvements in the value
of his land or re-allotment of land on compul-
sory consolidation of holdings.
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3. Banjar Kadim, Banjar Jadid and Gair Mumkin
cannot be taken into account while computing
the permissible area and surplus area under
the Act.
4. Banjar Kadim and Banjar Jadid do not fall
within the purview of the definition of ’land’
under the Act as they are not being occupied
or let for agricultural purposes or purposes
subservient to agriculture.
5. Permissible area under the substantive part
of section 2(3) for a person who is not a
displaced person is sixty ordinary acres.
6. The concept of standard acre being a meas-
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ure of area convertible into ordinary acres of
any class land according to prescribed scales
with reference to the quantity of the yield
and quality of the soil, has been introduced
in the definition of permissible area to
emphasise the qualitative aspect of a land
holding and the maximum limit of sixty acres
its quantitative aspect.
Section 2(2) of the Act defining small land-owner reads
as follows:
"Small land-owner means land-owner whose entire land in the
State of Punjab does not exceed the ’permissible area’.
Explanation--In computing the area held by any
particular land-owner the entire land owned by
him in the State of Punjab, as entered in the
record-of-rights, shall be taken into account,
and if he is a joint owner only his share
shall be taken into account."
The learned counsel for the appellant wanted us to
understand and interpret the words "entire land" with refer-
ence to the definition of the word ’land’ in section 2(8)
and that sub-clause reads as follows:
"’Land’ and all other terms used, but not
defined in this Act, shall have the same
meaning as are assigned to them in the Punjab
Tenancy Act, 1887 (XVI of 1887).’
Section 4(1) of the Punjab Tenancy Act, 1887 defines
land as follows:
216
"’Land’ means land which is not occupied as
the site of any building in a town or village
and is occupied or has been let for agricul-
tural purposes or for purposes subservient to
agriculture, or for pasture, and includes the
sites of buildings and other structures on
such land".
This Court had held in Munshi Ram v. Financial Commissioner,
(supra) that banjar kadim and banjar jadid do not fall
within the purview of definition of land under the Act as
they are not being occupied or let for agricultural purposes
or for purposes subservient to agriculture. It necessarily
follows that in calculating the total extent held by a
person on the date of the Act for purposes of determining
whether a person is a small land-owner, these banjar lands
cannot be taken into account.
We are also not impressed with the argument that a
land-owner shall make a reservation under the Act in all
cases irrespective of whether he is a small land owner or
not. Section 3 of the Act speaks of a small land-owner who
by virtue of an allotment made after the commencement of the
Act under the Administration of Evacuee Property Act, 1950
"comes to hold more than the permissible area of the land".
The section enables and provides that in such a case the
small landowner may select out of the entire area held by
him as a land-owner land not exceeding the permissible area
and reserve it for himself. The section thus implies that as
a small land-owner he was not obliged to make any reserva-
tion. But when by reason of allotment made subsequently
under the Administration of Evacuee Property Act, 1950 he
"comes to hold more than the permissible area", he was
given an option to select out of the entire land, land to
the extent of permissible area and to reserve to himself,
again emphasising that holding more than the permissible
area as a necessary requirement to oblige a landowner to
make a selection or reservation. Section 4 deals with the
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case where the person was not a small land-owner but has
made a reservation under the original 1950 Act which was
repealed and replaced by the 1953 Act. This provision ena-
bles him to make a fresh selection and reservation if his
allotment under the Administration of Evacuee Property Act,
1950 had been modified or revised since his earlier reserva-
tion. Section 5 of the Act provides:
"Any reservation before the commencement of
this Act, shall cease to have effect and
subject to the provisions of sections 3 and 4
any land-owner who owns land in excess of the
permissible area may reserve out of the entire
land held
217
by him in the State of Punjab as land-owner,
any parcel or parcels not exceeding the per-
missible area by intimating his selection in
the prescribed form and manner to the patwari
of the estate in which the land reserved is
situate or to such other authority as may be
prescribed."
This again requires only a land-owner who owns land in
excess of the permissible area to make a fresh selection and
reservation to an extent not exceeding the permissible area.
Section 5A also deals with a case where a land-owner holding
in excess of the permissible area but it is with reference
to a land-owner who has land situate in more than one patwar
circle. Section 5B authorised a land-owner who was holding
lands in excess of the permissible area but has not previ-
ously exercised the right of reservation, to select and
reserve the permissible area for his own purposes within the
extended period mentioned in that section. The need to make
a reservation would thus arise only when the land-owner on
the relevant date held land in excess of the permissible
area.
This Court in Gurbux Singh v. State of Punjab, AIR 1964
SC 502 accepted that:
"The main purpose of the Act seems to be to:
(i) provided a ’permissible area’ of 30 stand-
ard seems to a land-owner/tenant, which he can
retain for self-cultivation;
(ii) provide security of tenure to tenants by
reducing their liability to ejectment as
specified in section 9;
(iii) ascertain surplus areas and ensure re-
settlement of ejected tenants on those areas;
(iv) fix maximum rent payable by tenants, and
(v) confer fights on tenants to pre-empt and
purchase their tenancies in certain circum-
stances."
Thus the Act is also intended to place a ceiling on holding
of land by fixing a maximum area permissible to be held by a
land-owner. In other words the excess over the permissible
area shall be available as surplus area to be dealt with
under the provisions of the Act. Then again section 9(1)(i)
of the Act dealing with the liability of a tenant for
218
eviction states that "tenants on the area reserved under
this Act or is a tenant of a small land-owner" is liable for
eviction. If in every case irrespective of whether the
person is a small land-owner or not he had to make a reser-
vation then the later portion of this clause referring to a
tenant of small land-owner was absolutely not necessary. The
right of reservation given to a person who holds land in
excess of the permissible area is, among others, to give him
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an option to select that land which he would like to retain
for himself and avoid one of the consequences of enabling
the tenant to choose under section 18 of the Act any land
including that which is under the personal cultivation of
the land owner. It may be mentioned that section 18 of the
Act itself specifically provides that the right to purchase
is available to a tenant only against a land-owner "other
than a small land-owner". In our view, therefore, it is not
necessary and the Act does not make it obligatory, on pain
of consequences provided under section 5C, for a small
land-owner to make a reservation under sections 3, 4, 5, 5A
or 5B.
It was then contended by the learned counsel for the
appellant that an area of 0.33 ordinary acres had been
excluded in determining total extent held by the land-owner
on the ground that area was under old tenants and that it
should not have been excluded. This point was not raised at
any stage. No facts relating to this area is available on
record and, therefore, we cannot permit the counsel to raise
this point for the first time in this Court.
In the result the appeals fail and they are dismissed.
However, the parties will bear their respective costs in all
the appeals in this Court.
Y. Lal Appeals dis-
missed.
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