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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 211 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- 214

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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.               215               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. 29