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PETITIONER: MUNSHI RAM & ORS.

       Vs.

RESPONDENT: FINANCIAL COMMISSIONER, HARYANA & ORS.

DATE OF JUDGMENT15/12/1978

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH TULZAPURKAR, V.D.

CITATION:  1979 AIR  588            1979 SCR  (2) 846  1979 SCC  (1) 471

ACT:      Punjab Security  of Lands  Tenure Act,  1953-  s.  2(3) scope of-"Permissible  area" how computed-Appellants sons of a displaced  person from  Pakistan-S. 2(3)  if applicable to heirs of  a deceased  displaced person-Banjar land if should be excluded in computing "permissible area".

HEADNOTE:      In relation  to a  land-owner or  a  tenant,  the  term "permissible area"  as defined  in s.  2(3)  of  the  Punjab Security of  Land Tenures  Act, 1953  means thirty  standard acres  and   where  such  thirty  standard  acres  on  being converted into  ordinary acres exceed sixty acres such sixty acres, Clause  (ii) (b)  of the  proviso enacts  that  if  a displaced person  who has  been allotted  land in  excess of thirty standard  acres but  less than  fifty standard acres, the permissible  area shall  be equal  to his allotted area. The Explanation  states that for the purposes of determining the permissible area of a displaced person the provisions of proviso (ii)  shall not apply to the heirs and successors of the displaced person to whom land is allotted.      The  appellants’  father,  a  displaced  person,  owned considerable agricultural  land in  West Pakistan. After his migration to India and subsequent death, in lieu of the land abandoned in  Pakistan 124  standard acres  were allotted in his name.  Mutation of the property was sanctioned in favour of the  appellants and  permanent rights  were conferred  in their names.      Alleging that  they were ’small land-owners’ as defined in the  Act, and  that they  required  the  land  for  self- cultivation they applied for ejectment of the respondent No. 2 who at that time was in possession of the land.      The Assistant  Collector, rejected their request, their appeal  to   the  Collector   was  dismissed   and  revision application to  Commissioner and Financial Commissioner were also rejected.      In  their   writ  petition   under  Art.   226  of  the Constitution they  contended that  if the "permissible area" is computed  under proviso  (ii) to  s. 2(3) of the Act, the holding of each of them would be below the permissible limit of thirty  standard acres; that since the allotment was made in standard  acres, the  ’permissible area’  of each of them

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would  be   30  standard   acres  notwithstanding   that  on conversion into  ordinary acres  it exceeds  sixty  ordinary acres. A single Judge of the High Court dismissed their writ petition.      On appeal,  the Full  Bench of the High Court held that since  the   appellants  were  not  displaced  persons,  the concession of  an enhanced  permissible area  under  proviso (ii) to  s.  2(3)  was  not  available  to  them  and  their permissible area  would be  sixty ordinary  acres, each, and since the  holding of  each of  them exceeded sixty ordinary acres they  were not  ’small land-owners’  and so  could not seek ejectment of the tenant. 847      On further  appeal to  this Court it was contended, (1) that  the   words  "such   thirty  standard  acres"  in  the definition exclude  conversion into ordinary acres where the area already  held in  standard  acres  falls  below  thirty standard acres; (2) that they were small land owners because each of  them was  holding only  24 standard  acres and  the Explanation to  s. 2(3)  had no  application to them because the land  was allotted  to their  father who was a displaced person; and  (3) that while computing the "permissible area" uncultivated Banjar  land which  does not  fall  within  the definition of  "land" for  the purposes  of the 1953 Act had wrongly been included.      Rejecting contentions (1) and (2), ^      HELD: 1.  The language  of  s.  2(3)  proclaims  in  no uncertain terms  the legislative  imperative  that  no  land owner or  tenant shall hold land exceeding 30 standard acres or  60   ordinary  acres.  The  words  "such  thirty  acres" occurring in the definition cannot be construed to limit the conversion into  ordinary acres  only to  a case  where  the holding is  thirty standard  acres and not less. The concept of standard  acre being  "a measure of area convertible into ordinary acres  of  any  class  of  land  according  to  the prescribed scale with reference to the quantity of yield and quality of  soil" has  been introduced  in the definition of "permissible area"  to emphasise the qualitative aspect of a landholding and  the maximum limit of sixty acres delineates its quantitative aspect. [850 G, F]      2. The appellants were not displaced persons within the meaning of  proviso (ii)  to s.  2(3). They  were heirs of a displaced person  who died  after his  migration  of  India. Therefore,  proviso   (ii)  had   no  application   to   the appellants. The  Explanation clearly excludes application of proviso (ii)  to their  case, which  is fully covered by the substantive part  of the  definition of  "permissible  area" under which  the maximum  they could hold was sixty ordinary acres. At  the material  time, each of them was holding land in excess  of the  sixty ordinary  acres and therefore, they were not ’small land owners.’ [851 D-F]      Accepting the  third contention and allowing the appeal and remitting the case to the Collector concerned. [852 F].      HELD that  3. (a)  Banjar Qadim and Banjar Jadid cannot be taken into account while computing the surplus area under the Act  because, not being occupied or let for agricultural purposes or purposes subservient to agriculture, it does not fall within the purview of ’land’ under the Act. [852 B-C]           Nemi Chand Jain v. Financial Commissioner, Punjab, AIR 1964 Punj. 373; approved.      (b) The Assistant Collector should ascertain the extent of the Banjar Qadim and Banjar Jadid and Gair Mumkin area of the appellants  at the  relevant date  and  recompute  their permissible area after excluding such areas. [852 G].

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 277 of 1969.      Appeal from the Judgment and Order dated 30-8-67 of the Punjab and Haryana High Court in L.P.A. No. 50/67.      Naunit Lal for the Appellants.      S. K. Bisaria for Respondent No. 2. 848      Appeal set down ex-parte for RR 1 and 3.      The Judgment of the Court was delivered by      SARKARIA, J.-This  appeal on  certificate  is  directed against  a   Full  Bench  judgment  of  the  High  Court  at Chandigarh, rendered  on November 22, 1968 in Letters Patent Appeal No. 47 of 1967. It arises out of these facts:      Bishan Das  was a  displaced person from West Pakistan, where he  owned a considerable area of agricultural land. He died on  April 11,  1948,  after  his  migration  to  India, leaving behind  his five sons, who are the appellants before us.      After Bishan Das’s death, the Rehabilitation Department allotted 124  standard acres and 1/4 unit of evacuee land in his (Bishan  Das) name  on August 26, 1949. Permanent rights in regard  to this  allotted  land  were  conferred  by  the Managing Officer  on behalf  of the President of India under the provisions  of the  Displaced Persons  (Compensation and Rehabilitation) Act,  in the names of the sons of Bishan Das on January  2, 1956.  Prior to it, a mutation was allowed by the Rehabilitation  Authorities  on  February  17,  1953  in favour of  the appellants,  herein,  showing  each  of  them entitled to 24 standard acres and 13 units of land.      Ram Dhan,  respondent 2,  was in possession of the land as a  tenant. The  appellants applied under Section 9(1) (i) of  the   Punjab  Security   of  Lands   Tenure  Act,   1953 (hereinafter called the Act) for his 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 require the land for self-cultivation.      The  Assistant   Collector,  Hissar,   rejected   their application. Their appeal was dismissed by the Collector, on January  4,   1965.  Their  Revision  was  rejected  by  the Commissioner of  Ambala Division  on October 26, 1965. Their further Revision  to the  Financial Commissioner,  also, met the same fate on May 17, 1966.      The appellants  then moved  the High  Court by  a  writ petition under  Articles 226  and 227  of the  Constitution, alleging  that   the  aforesaid   orders  of  the  Assistant Collector, Commissioner and the Financial Commissioner, were illegal, without jurisdiction and ultra vires the provisions of the  Act and  the rules made thereunder. Their contention was that  the land  had been allotted to them in lieu of the land abandoned by their father, Bishan Das, in Pakistan, and consequently, the  permissible area of each of them is to be computed under Proviso 849 (ii) to  Section 2(3)  of the  Act,  and  so  computed,  the holding of  each  of  the  five  would  be  well  below  the permissible  limit   of   30   standard   acres   prescribed thereunder.  It   was  further   contended  that  since  the allotment was  made in  standard acres,  and not in ordinary acres, the  ’permissible area’  of each  of  the  appellants would be 30 standard acres, notwithstanding the fact that on conversion into  ordinary  acres,  it  exceeds  60  ordinary

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acres. On these grounds, the appellants claimed that each of them is  a ’small  land-owner’ and as such, entitled to move for eviction  of the  tenant under  Section 9(1)  (i) of the Act.      The learned  Single Judge  of the  High Court dismissed the writ petition.      Munshi Ram  and his  four brothers filed Letters Patent Appeal, which  was eventually  heard by  a Full  Bench.  The Bench held  that since  the appellants  were not  ’displaced persons’ within  the meaning  of the  East Punjab  Displaced Persons (Land  Resettlement) Act, 1949, the concession of an enhanced permissible  area under Proviso (ii) to sub-section (3) of  Section 2  of the Act was not available to them, and their permissible  area would  be 60  ordinary acres,  each; that since  the holding  of each  of the  appellants exceeds that limit,  they are  not ’small land-owners’, and as such, were not  competent to  seek ejectment  of the  tenant. With this reasoning, the Full Bench dismissed the appeal.      Before considering  the contentions  canvassed, let  us have a  look at  the definition  of  ’permissible  area’  in Section 2(3) of the Act. This definition reads as under :           " ’Permissible area’ in relation to a landowner or      a tenant,  means (thirty standard acres) and where such      thirty standard  acres on being converted into ordinary      acres exceeds sixty acres such sixty acres;           Provided that-           (i) ...........           (ii) for a displaced person-                (a)  who has  been allotted land in excess of                     fifty standard  acres,  the  permissible                     area shall  be fifty  standard acres  or                     one hundred acres, as the case may be;                (b)  who has  been allotted land in excess of                     thirty standard  acres,  but  less  than                     fifty standard 850                     acres, the  permissible  area  shall  be                     equal to his allotted area;                (c)  who has  been allotted  land  less  than                     thirty standard  acres  the  permissible                     area shall  be  thirty  standard  acres,                     including  any   other  land   or   part                     thereof,  if   any,  that   he  owns  in                     addition.           Explanation.- For  the purposes of determining the      permissible area  of a displaced person, the provisions      of proviso  (ii) shall  not  apply  to  the  heirs  and      successors of  the displaced  person to  whom  land  is      allotted."      The first  contention of  Mr. Naunit  Lal is  that  the words "such  thirty standards acres" in the substantive part of the  definition clearly  exclude conversion into ordinary cases, where  the area held in standard acres falls below 30 standard acres. In short, the point sought to be made out is that the  definition ensure  an irreducible  minimum  of  30 standard acres to a land holder.      The contention  does not stand a close examination. The flaw in the proposition propounded by the counsel is that it takes into  account only  one aspect of the definition while ignoring the other.      As rightly observed by the High Court, in devising this formula for  computing the permissible area, the Legislature was concerned  to put limits on the holdings of land both in its qualitative and quantitative aspects.      The concept  of ’standard  acre’, being  ’a measure  of

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area convertible  into ordinary  acres of  any class of land according to  the prescribed  scale with  reference  to  the quantity of  yield and quality of soil’, has been introduced in the  definition of  ’permissible area’  to emphasise  the qualitative aspect  of a land-holding, and the maximum limit of 60 ordinary acres delineates its quantitative aspect.      The language  of sub-section  (3) of Section 2 is plain and unambiguous.  It proclaims  in no  uncertain terms,  the legislative imperative  that no  land-owner or  tenant shall hold land  exceeding 30 standard acres or 60 ordinary acres. By no  stretch of  imagination, therefore,  the words  "such thirty acres"  occurring in  the definition can be construed to limit  the conversion  into ordinary acres only to a case where the holding is 30 ’standard acres’, and not less.      Mr. Naunit  Lal next  contended that since the land was allotted in  the name  of Bishan  Das deceased,  who  was  a displaced person,  the EXPLANATION  will not  be  attracted, with the result that the per- 851 missible area  of each of his five sons would be 30 standard acres in  accordance with Clause (c) of Proviso (ii) of sub- section (3)  of Section  2. Since  each of  them was holding only about 24 standard acres, they were small land-owners.      The argument  rests on  the fallacy  that the  land was allotted to  a ’displaced person’. The true position is that it was  allotted to  the sons  of Bishan  Das, who  were not ’displaced  persons’   within  the   contemplation  of   the aforesaid Proviso  (ii). Section  2(11)  of  the  Act  says: "Displaced person"  has the  meaning assigned  to it  in the East Punjab  Displaced Persons (Land Resettlement) Act, 1949 (Act XXXVI of 1949). According to the definition of the term in East Punjab Act XXXVI of 1949, a ’displaced person’ means "a landholder  in  the  territories  now  comprised  in  the Province of  Punjab in  Pakistan or  a person  of the Punjab extraction who holds land in the (West Pakistan) and who has since the  1st day of March 1947, abandoned or has been made to abandon  his land  in the  said territories on account of civil disturbances  or the fear of such disturbances, or the partition of the country." Now, the sons of Bishan Das never owned or  abandoned any  land in  West Pakistan.  Evidently, they were  not ’displaced  persons’ within  the  meaning  of Proviso (ii)  to Section  2(3). They  are merely "heirs of a displaced person"  who died  after his  migration to  India. Proviso (ii)  therefore, does  not apply  to the case of the appellants who,  and not  their father,  were the persons to whom the  land in dispute has been allotted. The EXPLANATION appended to  Section 2(3),  therefore, clearly  excludes the application of  Proviso (ii),  to their  case. Their case is fully covered  by the  substantive part of the definition of ’permissible area’ according to which the maximum which they could hold  is 60  ordinary acres. Each of them was holding, at the  material date,  in excess  of that area and as such, they were not ’small land-owners’.      The last  contention of  Mr.  Naunit  Lal  is  that  in computing the  ’permissible area’ of each of the appellants, the  Collector   had  illegally   and  wrongfully   included uncultivated area  of Banjar  Jadid, Banjar  Qadim and  Gair Mumkin land  as on April 15, 1953, and had also through some oversight, failed  to allow  deduction for the dimunition in their holdings resulting from consolidation. The argument is that Banjar  land does  not fall  within the  definition  of ’Land’ for  the purpose  of Punjab  Security of Land Tenures Act, 1953. In support of this contention, reference has been made to several decisions of the High Court at Chandigarh.      According to  sub-section (8)  of Section 2 of the Act,

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"Land" shall  have the  same meaning as is assigned to it in the Punjab Tenancy 852 Act, 1887.  Section 2(c)  of that Act defines ’Land’ to mean "land which is not occupied as the site of any building in a town or  village  and  is  occupied  or  has  been  let  for agricultural  purposes   or  for   purposes  subservient  to agriculture, or  for pasture,  and  includes  the  sites  of buildings and other structures on such land".      In  Nemi   Chand  Jain   v.   Financial   Commissioner, Punjab(1), H. R. Khanna, J. speaking for a Division Bench of the High Court, held that Banjar Qadim and Banjar Jadid land cannot be  taken into  account while  computing the  surplus area, under  the Act,  because not being occupied or let for agricultural   purposes    or   purposes    subservient   to agriculture, it  does not  fall within the purview of ’Land’ under the Act. This ruling has been consistently followed by the High  Court in  its subsequent  decisions, some of which are reported  as Sadhu Ram v. Punjab State(2), Amolak Rai v. Financial Commissioner,  Planning, Punjab(3)  and  Jaggu  v. Punjab State(4) and Jiwan Singh v. State of Punjab(5).      In our  opinion, this  view taken  by  the  High  Court proceeds  on  a  correct  interpretation  of  the  statutory provisions as it stood at the relevant time.      Learned counsel  for the  tenant-respondent also,  does not question  the soundness  of this view. He, however, does not accept  the particulars  of the areas of Banjar and Gair Mumkin Land  supplied by  Mr. Naunit  Lal, in  the form of a Goshwara.      We will,  therefore, while  upholding the view taken by the  High   Court  in   regard  to  the  interpretation  and application of  Section 2(3)  Proviso (ii) of the Act, allow this appeal and set aside the decision of the High Court and the impugned  orders of  the Assistant Collector, Collector, and the  Commissioner and  remit the  case to  the Collector concerned of  Hissar District  with the  direction  that  he should ascertain  the extent  of the Banjar Qadim and Banjar Jadid and  Gair Mumkin  land of  the appellants-allottees at the relevant date and recompute their permissible area after excluding such  Banjar and Gair Mumkin land; then dispose of the applications  of the  appellants under  Section  9(1)(i) afresh. In  the circumstances  of the case, there will be no order as to costs. N.V.K.    Appeal allowed. 853