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PETITIONER: SAILEN KRISHNA MAJUMDAR

       Vs.

RESPONDENT: MALIK LABHU MASIH (DECEASED) REPRESENTEDBY SMT. JASSI & ORS.

DATE OF JUDGMENT21/02/1989

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) OZA, G.L. (J)

CITATION:  1989 AIR 1596            1989 SCR  (1) 817  1989 SCC  Supl.  (1) 302 JT 1989 (1)   361  1989 SCALE  (1)461

ACT:     Displaced  Persons (Compensation & Rehabilitation)  Act, 1954:  Exemption in respect of gallantry award  land-Whether available in respect of land allotted under this Act.     Punjab  Security of Land Tenures Act, 1953: Sections  9, 14A, 18 and 19DD--Grant of land for gallantry before January 26,  1950--Whether to be taken in account in computing  sur- plus area.     Practice and Procedure: Whether equities are  equal--Law should prevail.     Word and Phrases: ’In aequali jure, melior est  conditio possidentis’--Meaning of.

HEADNOTE:     The  father of the appellant was conferred  a  gallantry award  posthumously by the Government wherewith a  piece  of land  situated in Lyallpur district was granted to him,  and was  allotted to the appellant who took possession  on  July 24,  1947.  Consequent to the partition of the  country  the family migrated to India where the Government allotted about 69 standard acres of land in Jullundur district as compensa- tion for the land left behind in Pakistan. Out of this  land 19 standard acres came under the possession of the  respond- ent as a tenant.     On  February, 1961 the respondent filed  an  application under s. 18 of the Punjab Security of Land Tenures Act, 1953 to  the Assistant Collector stating that he was a tenant  in respect of the aforesaid land and should be granted  permis- sion  to purchase the same. The Assistant Collector  granted the   requisite  permission  subject  to  the   payment   of Rs.21,007.88P  in  ten equal half  yearly  instalments.  The appellant  appealed to the Collector who upheld the  permis- sion  to  purchase, but enhanced the amount payable  to  the appellant as landlord.     During  the pendency of these proceedings the  appellant moved an application under s. 9 read with s. 14A of the  Act for ejectment of the  818 respondent and obtained an order an 27th September, 1961.     The  respondent  moved a revision  petition  before  the Commissioner in the proceedings initiated under s. 18 of the

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Act,  and  the  Commissioner made a  recommendation  to  the Financial  Commissioner for setting aside the orders of  the Assistant Collector and the Collector allowing the  purchase of land by the respondent on the ground that the application of  the  appellant for the ejectment of the  respondent  had since  been allowed. The Financial Commissioner,  set  aside the order of purchase. The respondents’ writ petition  chal- lenging  this order was allowed and the High  Court  quashed that order on 30th August, 1966.     On  July 3, 1970 the appellant filed a suit against  the respondent  for possession of the land contending  that  the respondent  had  entered  on a part of land  as  tenant  and subsequently  applied for the purchase of the land under  s. 18, but by virtue of s. 19 DD of the Act inserted on  August 3,  1968  with retrospective effect, the  suit  property  of gallantry award was exempted from the provisions of the Act. The  Trial court dismissed the suit. The order was  affirmed in  appeal by the Additional District Judge, and the  second appeal to the High Court was also dismissed holding that  s. 19  DD  of the Act was applicable to the suit land  and  the tenant could purchase it under s. 18.     In the appeal to this Court, it was contended on  behalf of the appellant that the High Court was in error in holding that the land in question having been granted to the  appel- lant,  the landlord in the year 1946 the same could  not  be said  to  be covered by the provisions of s. 19  DD  of  the Punjab  Security  of  Land Tenures Act, 1953.  It  was  also contended  that equity is in favour of the appellant as  the land  was as compensation for the gallantry award land  left by the awardee family at Layallpur as a result of  partition of  the country, and that the privilege of exemption  should be acquired by the compensation land, and that the appellant has acquired the right to purchase as a tenant in occupation after a long time. Dismissing the appeal, the Court,     HELD:  1.1. From the language of s. 19 DD of the  Punjab Security of Land Tenures Act, 1953 which was inserted by the Punjab Act No. 12 of 1968 and from the fact that the date of the award of the grant of the land for gallantry having been before  the 26th day of January, 1950 so long as  such  land or,  any portion thereof, had not passed from  the  original grantee into more than three successive 819 hands  by inheritance or bequest, and was held by the  gran- tee, or any of such hands, such land or portion, as the case may  be, should not be taken into account in  computing  the surplus  area  under the Act, nor shall any tenant  of  such land  or portion have the right to purchase it under s.  18. [822C-D]     1.2. There is no basis for holding that the exemption in respect  of  the gallantry award land will be  available  in respect  of  the  land given  under  the  Displaced  Persons (Compensation and Rehabilitation) Act, 1954 as  compensation for  the  loss thereof. There is no infirmity  in  the  High Court judgment on this Court. [823A-B]     1.3. Equity is being claimed by both the parties.  Under the  circumstances there is no other alternative but to  let the  loss lie where it fails. As the maxim is,  ’in  aequali jure,  melior est conditio possidentis’ Where  the  equities are equal, the law should prevail the respondent’s right  to purchase must, therefore, prevail. [823B-C]

JUDGMENT:

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   CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2 193  of 1982.     From  the  Judgment  and Order dated  29.5.1980  of  the Punjab  and Haryana High Court in Regular Second Appeal  No. 706 of 1973. Dr. Y.S. Chitale and Ashok Grover for the Appellant. R.K. Garg and D.K. Garg for the Respondents. The Judgment of the Court was delivered by     K.N. SAIKIA, J. This appeal by special leave is from the judgment  of  the High Court of Punjab and  Haryana  in  the appellant’s regular second appeal No. 706 of 1973 dismissing the appeal and allowing the respondent’s civil writ petition against the order passed by the Assistant Collector.     Late  Wg. Cdr. K.K. Majumdar, of the Indian  Air  Force, father of the appellant laid down his life during the second world war. He was conferred a gallantary award  posthumously by the Government wherewith 442 Kanals and 10 Marlas of land bearing  Chak Nos. 535-G-V situated in Tehsil  and  District Layallpur was granted to him and was allotted to the  appel- lant  Shri  S.K. Majumdar who took possession  on  July  24, 1947. Consequent to the partition of the country the  family of  820 late  Wg. Cdr. K.K. Majumdar had to migrate to  India  where the  Government  allotted 69 standard acres and 2  units  of land to the appellant in Village Dhogri, Tehsil and District Jullundhur  as  compensation  for the land  left  behind  at Layallpur, Pakistan. Out of this land 19 standard acres came under  possession of the respondent Malik Labhu  Masih  (now deceased) as a tenant.     On February 26, 1961 Malik Labhu Masih filed an applica- tion under section 18 of the Punjab Security of Land Tenures Act,  1953,  hereinafter referred to as ’the  Act’,  to  the Assistant Collector stating that he was a tenant in  respect of the land in question and should be granted permission  to purchase  it. As per order of the Assistant Collector  Grade I, Jullundhur dated 15th January, 1962 the said Labhu  Masih was granted the requisite permission subject to the  payment of  Rs.21,007.88 P. in 10 equal half yearly  instalments  of Rs.2100.80 P. each. The appellant appealed therefrom to  the Collector  Jullundhur who upheld the permission to  purchase but enhanced the amount payable to the appellant as landlord to Rs.23,133.53 P. During the pendency of the said  proceed- ings the appellant moved an application under section 9 read with section 14A of the Act for ejectment of the  respondent and obtained an order on 27th September, 1961. The  respond- ent moved a revision petition before the Commissioner in the proceedings  initiated under section 18 of the Act  and  the Commissioner  made recommendation to the  Financial  Commis- sioner for setting aside the orders of the Assistant Collec- tor  and the ColleCtor allowing the purchase of land by  the respondent on the ground that the application of the  appel- lant for ejectment of the respondent had since been allowed. The  Financial Commissioner accordingly set aside the  order of purchase. The respondent impugned that order in the  High Court  of  Punjab and Haryana in writ petition No.  1158  of 1963  and the High Court quashed that order on 30th  August, 1966. On July 3, 1970 the appellant filed a suit against the respondent  for possession of the lands contending that  the respondent  had entered on a part of the land as tenant  and subsequently applied for purchase of the land under  section 18  of  the Act but by virtue of section 19 DD of  the  Act, which  was  inserted on August 3,  1968  with  retrospective effect,  the suit property of gallantry award  was  exempted from  the provisions of the’ Act and as such the  respondent

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could not purchase the land under section 18 of the Act  and the orders passed by the Assistant Collector as also of High Court  were  nullity  and the  respondent  was  consequently liable  to be ejected. The trial court dismissed  the  suit. The  appellant’s appeal therefrom was also having been  dis- missed  by  the Additional District  Judge  Jullundhur,  the appellant preferred second appeal to the High  821 Court of Punjab and Haryana which also dismissed the  appeal holding that section 19 DD of the Act was not applicable  to the suit land and the tenant could purchase it under section 18.     Dr.  Y.S. Chitale the learned counsel for the  appellant submits that the High Court was in error in holding that the land  in question having been granted to the appellant  S.K. Majumdar, the landlord, in the year 1946 the same could  not be said to be covered by the provisions of section 19 DD  of the Act. We are inclined to agree. Though the Memorandum No. 2354-C Lahore, dated the 30th March, 1946 from D.S.D. to the Commissioner, Lahore, Rawalpindi and Multan Divisions on the subject Award of land in the Punjab for acts of gallantry in the  field’ with reference to Punjab  Government  Memorandum No. 3583-C dated 30th November, 1944- contained the instruc- tions to allot two squares rectangles of land to the heir of the  grantee  noted  in the margin in  accordance  with  the orders contained in the aforesaid Memorandum, and showed the appellant  Shri S.K. Majumdar, it could not been  said  that the  grant itself was to the appellant. The said  Memorandum No. 3583-C dated 30th November, 1944 clearly showed that the Government had decided that in the case of posthumous grants allotments  would  be  made to the heirs  in  the  following order:               "(a)  the male lineal descendants of  the  de-               ceased in the male line of descent." I, having not been in dispute that the appellant S.K. Majum- dar was the male lineal descendant of the deceased Wg.  Cdr. K.K. Majumdar, the allotment was to be made in his name  and hence it was done so.     Section  19  DD  of the Act which was  inserted  by  the Punjab  Act  No. 12 of 1968 and was to be deemed  always  to have been inserted said:               "Notwithstanding  anything contained  in  this               Act,  where any land is granted for  gallantry               at  any time before the 26th day  of  January,               1950 to any member of the armed forces, wheth-               er maintained by the Central Government or  by               any  Indian State, then, so long as such  land               or,  any portion thereof, as the case may  be,               has not passed from the original grantee  into               more  than three successive hands  by  inheri-               tance or bequest, and is held by the  grantee,               or any of such hands, such land or portion, as               the case may be, shall                822               not  be  taken into account on  computing  the               surplus  area  under this Act, nor  shall               any  tenant of such land or portion  have  the               right to purchase it under section 18.                        Provided  that  where  such  land  or               portion  has passed into more than three  such               hands  and  the person holding  such  land  or               portion,  immediately before the  3rd  August,               1967,  is  a person to whom it has  passed  by               inheritance  or bequest, the  exemption  under               this  section  shall apply, to  such  land  or

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             portion  thereof, as the case may  be,  during               the life time of such person."     From the language of this section and from the fact that the date of the award of the grant of the land for gallantry having been before the 26th day of January, 1950 so long  as such  land or, any portion thereof, as the case may be,  had not  passed from the original grantee into more  than  three successive  hands by inheritance or bequest and was held  by the grantee, or any of such hands, such land or portion,  as the case may be, should not be taken into account on comput- ing the surplus area under the Act. nor shall any tenant  of such  land  or portion have the right to purchase  it  under section 18.     Mr.  R.K. Garg the learned counsel for the  respondents, while  not refuting the proposition of law, points out  that the land in respect of which the respondent has obtained the order  of purchase as tenant is not the land granted to  Wg. Cdr.  K.K.  Majumdar for gallantry award. That land  was  in Layallpur and the suit land in respect of which the respond- ent acquired socially beneficial right of purchase is  situ- ate at village Dhogri Tehsil and District Jullundhur in  the State  of  Punjab and as such it cannot  be  exempted  under section 19 DD. Dr. Chitale answers that this land was  given as compensation for the gallantry award land left behind  by the awardee family at Layallpur as a result of partition  of the  country  and as such equity demands that  privilege  of exemption  should  be  acquired by  the  compensation  land. Besides,  Dr. Chitale submits, that equity is in  favour  of the  appellant  who has acquired the right  to  purchase  as tenant in occupation after a long time.     We  are  referred  to the provisions  of  the  Displaced Persons  (Compensation and Rehabilitation) Act, 1954. It  is an Act to provide for the payment of compensation and  reha- bilitation  grants  to  displaced persons  and  for  matters connected therewith. We have not been shown in it any provi- sion to the effect that any land given as compensation to  823 a  displaced  person for loss of gallantry  award  land  may imbibe  the convent of exemption available under section  19 DD of the Act. We are consequently of the view that there is no  basis for holding that the exemption in respect  of  the gallantry  award  land will be available in respect  of  the land  given  under the Displaced Persons  (Compensation  and Rehabilitation)  Act,  1954  as compensation  for  the  loss thereof. We find no infirmity in the High Court judgment  on this count.     Equity  is being claimed by both the parties. Under  the circumstances  we have no other alternative but to  let  the loss lie where it falls. As the maxim is, ’in aequali  jure, melior  est  conditio possidentis’. Where the  equities  are equal,  the  law should prevail. The respondent’s  right  to purchase must, therefore, prevail.     In  the result, this appeal fails and  hence  dismissed, but  without  any order as to costs. The stay  order  stands vacated. N.V.K.                              Appeal dismissed. 824