01 August 1996
Supreme Court


Case number: C.A. No.-001208-001209 / 1975
Diary number: 60395 / 1975



CASE NO.: Appeal (civil)  1208 of 1975



DATE OF JUDGMENT: 01/08/1996



WITH CIVIL APPEAL NO. 1209 OF 1975 Hazara Singh & Ors. V. State of Punjab & Ors.

Judgement Delivered By: N.P.SINGH  

N.P. SINGH,J.      The original  appellant held  lands in village Guru Sar Sainwala, District Bhatinda. Out of which 218 Kanals of land were declared  surplus under  the Pepsu Tenancy Agricultural Land Act,  1955 (herein after referred to as the Pepsu Act). However, the  surplus land so declared was never utilised by the State Government and remained in possession of the appellant.      The Punjab Land Reforms Act, 1972 (hereinafter referred to as  the Punjab  Act) came into force with effect from 2nd April, 1973,  the appointed  date fixed  under the Act being 24th January, 1971. Fresh steps were taken for declaring the lands held  by the appellant as surplus. The appellant filed objection saying that on the relevant date he had four adult sons namely  Hardial Singh, Gurucharan Singh, Gurbanta Singh and Gurdial Singh and as such there was no surplus land held by  him.  It  appears  that  the  Secretary,  Department  of Revenue, issued  a letter  to the Collector of the District, directing that  the immediate possession of 218 kanals which had been  declared surplus  in the  year 1961-62  under  the Pepsu Act  be taken.  Proceedings under  Sections 8 and 9 of the Punjab  Act were  also initiated directing the appellant to hand  over the  possession of  the surplus  land declared under the  old Act.  Thereafter a writ petition was filed on behalf of  the appellant  questioning the  validity  of  the action  of   the  respondents   to  the  said  petition,  in initiating proceedings  for taking  possession of  the lands which had  been declared surplus under the old Pepsu Act and possession whereof  had not  been taken till the date of the coming into  force of  the Punjab Act. The writ petition was dismissed by  the High Court on 3.9.1974 in limine. However, this Court  granted leave  to  appeal  giving  rise  to  the present appeal which in due course ’has been referred to the Constitution Bench.



    Section 3  of the Pepsu Act fixed the permissible limit for holding  the land  at thirty standard acres. Sub-section (2) of  Section 3  provided the  procedure for computing the permissible limit  under sub-section  (1) of  Section 3.  In view of  Section 5  every landowner  owning  land  exceeding thirty standard  acres was  entitled to  select for personal cultivation from  the land  held by him as a landowner which was to  be reserved  for his personal cultivation. Section 6 required the  Collector to  notify in  such form & manner as may be  prescribed the particulars all lands so reserved for personal  cultivation   of  the  landowner  concerned  under Section  5   aforesaid.  Section   32-E  Which  is  relevant provided:      "32.E. Vesting  of surplus  area in      the       State        Government.-      Notwithstanding  anything   to  the      contrary  contained   in  any  law,      custom or  usage for the time being      in  force,   and  subject   to  the      provisions of Chapter IV  after the      date on  which the  final statement      in  respect   of  a   landowner  or      tenant published  in  the  Official      Gazette, then      (a) in the case of the surplus area      of a  landowner, or  in the case of      the surplus  area of a tenant which      is   not    included   within   the      permissible limit  of the landowner      such area  shall, on  the  date  on      which possession  thereof is  taken      by  or   on  behalf  of  the  State      Government, be deemed to  ave  been      acquired by  the  State  Government      for  a   public  purpose   and  all      rights,    title    and    interest      including the  contingent interest,      if  any,  recognized  by  any  law,      custom or  usage for the time being      in force  of all  persons  in  such      land   shall be  extinguished,  and      such rights  title  and    interest      shall vest  in the State Government      free from  encumbrances  created by      any person; and      (b) in the case of the surplus area      of  a  tenant.  which  is  included      within the  permissible  limits  of      the  landowner,   the   right   and      interest of the tenant in such area      shall stand terminated:           Provided   that,    for    the      purposes of  clause (a),  where any      land  falling  within  the  surplus      area is  mortgaged with possession.      Only the mortgage rights shall vest      in the State Government." Section 32-F enabled the Collector to take possession of the surplus area so declared :      "32.F. Power  to take possession of      surplus area  The Collector may, by      order in writing, at any time after      the  date   on  which   the   final      statement   in    respect   of    a      landowner’ or  tenant is  published



    in the Official Gazette, direct the      landowner  or  the  tenant  or  any      other person  to possession thereof      within ten  days of  the service of      the order  on him to such person as      may be specified in the order.      (2). If the landowner or the tenant      or any  other person  in possession      of  the  surplus  area  refuses  or      fails without  reasonable cause  to      comply with  the order  made  under      sub section  (1), the Collector may      take possession  of  the    surplus      area and  may for  that purpose use      such force as may be necessary." . On a  plain reading  of clause (a) of Section 32 E aforesaid it appears  that in  case any  surplus area of the landowner which is  not included  within the permissible limit of such landowner ’such  area shall, on the date on which possession thereof is taken by or on behalf of the State Government, be deemed to  have been  acquired’ by  the State Government for public purpose  and all rights, title interest of all person in such land shall be extinguished and such rights title and interest shall  vest  in  the  State  Government  free  from encumbrances. In  other words,  in  view  of  the  aforesaid statutory provisions,  only when  the possession of the land which has been declared as surplus area is taken over by the State Government,  then only  it shall  be deemed  that such surplus area  has been  acquired by the State Government and all rights,  title and  interest of person concerned in such land are  extinguished and  vest in the State Government. As such if  the possession of any surplus area of landowner has not been  taken by  or on behalf of the State Government, it shall not be deemed that such surplus area has been acquired and title of the landowner has been extinguished.      The stand  of the  appellant is  that in  view  of  the admitted position  that the possession of the land which had been declared  surplus in  the year  1961-62 under the Pepsu Act had never been taken till the Punjab Act came into force in  the   year  1973  and  as  the  appellant  continued  in possession thereof throughout, the respondent authorities or the State  Government was not entitled to take possession of such surplus  area after coming into force of the Punjab Act and the  ceiling has  to be  determined afresh in accordance with the provisions of the Punjab Act. It appears that there is no  dispute that when the Punjab Act came into force, the appellant had  four adult  sons and  if the ceiling is fixed afresh in  accordance with  the provision of the Punjab Act, the appellant had no surplus land.         The learned  counsel, appearing  for  the  State  of Punjab, could  not point  out as  to  how  in  view  of  the admitted position therefore had not been declared surplus in the year.  1961-62  under  the  Pepsu  Act;  the  possession Thereof had  not been  taken either  by or  on behalf of the State Government  till the  coming into  force of the Punjab Act, the  right, title  and interest of the appellant in the land which had been declared surplus under the Pepsu Act was extinguished. The  taking  of  possession  was  a  must,  in whereof it shall be deemed that right, title and interest of the appellant  had never been extinguished and the said land which had  been declared  surplus never vested in the State; Fresh steps  for fixation  of the ceiling had to be taken in accordance with the provisions of the Punjab Act.      A  similar  controversy  had  arisen  in  the  case  of Financial Commissioner  Haryana State  & Ors.  vs. Smt. Kela



Devi and  Anr., (1980)  1 SCC  77, in  connection  with  the Punjab Security  of Land  Tenures Act, 1953. Section 10-A(a) enabled the  State Government or any officer empowered by it in  that   behalf  to  utilize  any  surplus  area  for  the resettlement of  tenants ejected  or  to  be  ejected  under clause (i) of sub-section (1) of Section 9 of that Act. In this connections it was said:           "In order  to  understand  the      full   meaning    and   effect   of      provisions of  Section 10-A  it  is      necessary to make a cross-reference      to Rules 18, 20-A, 20-B and 20-C of      the Punjab Security of Land Tenures      Rules, 1956  (hereinafter  referred      to as  the Rules).  Rule  18  deals      with the procedure for allotment of      "surplus area"  to other  resettled      tenants. Rule 20-A provides for the      issue of  certificates of  allowing      of lands  to them,  and  Rule  20-B      provides for delivery of possession      and makes  it  obligatory  for  the      resettled tenant to take possession      of the  land allotted to him within      a period  of  two  months  or  such      extended period  as may  be allowed      by the officer concerned. Rule 20-C      provides,  inter   alia,  for   the      execution  of   a  "qabuliyat"   or      "patta" by  a resettled  tenant. It      would  thus   appear   that   while      allotment of  land  is  an  initial      stage in the process of utilisation      of the  "surplus area", it does not      complete  that  process  as  it  is      necessary  for   the  allottee   to      obtain a  certificate of allotment,      take possession  of the land within      the  period   specified   for   the      purpose,   and    to   execute    a      "qabuliyat" or  "patta" in  respect      thereof. the process of utilisation      contemplated by Section 10-A of the      Act  is   therefore  complete,   in      respect of any "surplus area", only      when possession  thereof  has  been      taken  by   the  allottee   or  the      allottes and  the other formalities      have been  completed   and there is      no force  in the  argument  that  a      mere order  of  allotment  has  the      effect of completing that process." Construing the  scope of  Section 10-A of the aforesaid Act, this Court pointed out that allotment of land was an initial stage in  the process  of utilisation  of the "surplus area" and such  utilisation was  not complete.  till the  allottee obtained a  certificate of  allotment and took possession of the land within the period specified for the purpose. It was pointed out  that the  process of  utilisation  contemplated under Section  10-A of  the said Act was complete in respect of any "surplus area" only when possession thereof had been completed - by mere order of allotment there was no question of completion  of the  process of  utilisation. The same was the position  in respect of the Pepsu Act in view of Section 32-E(a) Unless  the possession  had bean taken of he surplus



area by  the State Government or on its behalf, light, title and interest  of the landowner was not extinguished and such surplus area  never vested  in the  State Government. A Full Bench of  and Haryana  High Court  in the case of Ranjit Ram vs. The Financial Commissioner. Revenue Punjab & Ors, (1981) 83 P.L.R 492, said;      "As already  observed, even  if the      land  of  a  land  owner  has  been      declared surplus,  either under the      Punjab law or under the  Pepsu law,      and if  the land  of land-owner has      not been  utilised and  further has      not been  purchased by  the tenants      in case  of Punjab  Law, and if the      land-owner     has     not     been      dispossessed  by   the   Government      under the  provisions of  the Pepsu      Law,  the   continues   to   be   a      landowner  of  the  land  and  also      holds the same even though his land      has been  declared surplus, till he      is divested  of  its  ownership  by      taking possession of the land under      section 8 of the Reforms Act, where      has been  provided that the surplus      area declared  as  such  under  the      Punjab Law  or the  Pepsu Law which      has  not  been  utilised  till  the      commencement of  the  Reforms  Act,      shall on  the date  or the  date on      which  the  possession  thereof  is      taken by  or on behalf of the State      Government,  vests   in  the  State      Government    free     from     all      encumbrances. It would thus be seen      that’such land  owners surplus area      shall vest  in the State Government      under section  8 of the Reforms Act      and. till  then the  landowners are      not divested  of the  ownership  of      the surplus  land. Thus, if a land-      owner owns  or holds  land which is      beyond  the   permissible  area  as      defined under  sections 4  and 5 of      the Reforms  Act,  his  case  shall      have to  be processed  again by the      Collector and  the determination of      the  permissible   area   and   the      surplus area has to be according to      the mandate  of section  4 and 5 of      the Reforms   Act.  Sub-section (1)      of section  4 of  the  Reforms  Act      contains a clear bar that no person      shall own or hold land in excess of      the permissible  area and  when the      case   is   re-processed   by   the      collector, the  permissible area as      provided for  in section 4 and 5 of      the Reforms  Act has to  allowed to      the landowner,  It may  be observed      that  the   permissible   area   as      defined under  sub-section  (2)  of      section 4  of the  Reforms Act.  is      subject  to   the   provisions   of      Section 5 of the Reforms this is so



    because a clear provisions has been      made to  this effect in sub-section      (l) of  section 4  of  the  Reforms      Act. Under Section 5 of the Reforms      Act of a landowner has an adult son      he shall also be entitled to select      separate   permissible    area   in      respect of such son out of the land      owned or  held by  him, subject  to      the   condition   that   the   land      selected  together  with  the  land      already owned or held by such, son,      shall not  exceed  the  permissible      area each  such son.  It would thus      be seen  that  merely  because  the      case of  a  landowner  had  already      been processed under the Punjab Law      or the Pepsu Law would not be a bar      for   the    application   of   the      provisions  cf  section  read  with      section 5  of the  Reforms Act. The      provisions of  sub-section  (1)  of      section Set to 5 of the Reforms Act      entitles the  landowner  to  select      permissible area  for his adult son      from the  land owned or held by him      in addition to the permissible area      of the family. It is clear that the      rest of the provisions made in sub-      sections (1)  and (2)  of section 5      of the Reforms Act are procedural." It may  be mentioned  that in the aforesaid judgment "Punjab Law" refers  to Punjab  Security of  Land Tenures Act, 1953, "Pepsu Law"  refers to  Pepsu Tenancy Agricultural Land Act, 1955 and  "Reforms Act"  refers to  Punjab Land Reforms Act, 1972. According  to us,  the majority  judgment of  the Full Bench, has  correctly appreciated  the scope  of  the  three enactments referred  to above. Once the lands declared three as surplus  under the  Pepsu Act  did not  vest in the State Government, as  possession thereof had not been taken, there has to be a fresh determination in respect of the area which he appellant  is entitled to hold in the light of the Punjab Act.      The learned  counsel, who  appeared for  the State, did not take a stand that under the Punjab Act, the appellant is holding any  surplus area.  He, however,  placed reliance on the judgment  of this  Court in  the case  of Amar Singh vs. Ajmer Singh,  1994 Supp.(3)  SCC 213, where it has been said that merely  because the  land had  not  been  utilised  and remained in  possession of  the heirs  of the  landowner was inconsequential.  The   aforesaid  decision  of  this  Court relates to  the Haryana  Ceiling on  Land Holdings Act, 1972 which  came  into  force  w.e.f.  23.12.1972.  From  a  bare reference to  the aforesaid  Judgment, it  shall appear that the   vesting under  that takes place on the appointed date. There is  no provision  under that  Act like  32-E(a) of the Pepsu Act  under which the surplus area had been declared so far the  appellant  is  concerned.  As  such  the  aforesaid judgment in  the case  of Amar Singh v. Ajmer Singh, (supra) is of  no help to the respondent-State. In normal course, we would have  directed the  respondent-State to  examines  the question of  surplus land  held by  the appellant along with his four adult sons in accordance with the provisions of the Punjab Act,  but in  view of  an admitted position that if a fresh proceeding  is to  be initiated  under the Punjab Act,



there is  no question  of declaration of any land as surplus area, no  useful purpose  will served  by issuing   any such direction. Accordingly,  the appeal is allowed. The order of the dismissal  passed by the High Court on the writ petition filed  on   behalf  of  the  appellant  is  set  aside.  All proceedings initiated against the appellant either under the provisions of  the Pepsu  Act or the Punjab Act are quashed. In the facts and circumstances of the case there shall be no order as to costs.      Even in  this appeal,  the lands held by the appellants had been  declared surplus  under the  Pepsu Act in the year 1961-62 but  possession thereof was never taken on behalf of the State  Government. The appellants continued to remain in possession thereof  till the Punjab Act came into force. The assertion of  the appellant  that. before  fresh proceedings could be initiated under the Punjab Act for determination of the surplus  area the  members who were not entitled to hold the land  under the  Pepsu Act  became entitled  to hold the same even when the ceiling had been reduced, does not appear to have been disputed. In that view of the matter, we do not consider  it   necessary  to   remit  the   case  for  fresh examination  under   the  provisions   of  the  Punjab  Act. Accordingly, this appeal is also allowed.  there shall be no orders as to cost.

The Collector, Agrarian & Anr. etc.etc. V. Gurdeve Singh etc. etc. (With C.A.Nos.1129/85,  3042/81, 6252/90, 1283/88, S.L.P.(C) Nos.8201/89, 4061/83,  10903/82, 7044/83, 14690/83 17260/85, C.A.   Nos.1493/77,    2383/78,   4773-75/89,   S.L.P.(C)No. 14104/85,  C.A.   Nos.3532/87,  5&6/83,   923/90,   4860/90, 4895/90, 4832-35/90, 224/90 and 1817/90)                          O R D E R      All the above mentioned matters may be listed before an appropriate  bench  for  final  disposal  in  light  of  the judgment of  this Court in the case of Ujjagar  Singh (Dead) by Lrs.  etc. etc.  vs. The  Collector  and  Anr.  etc.etc., (Civil Appeal Nos 1208-09 of 1975) delivered  today.