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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

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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

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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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