PETITIONER: JODHA RAM Vs. RESPONDENT: FINANCIAL COMMISSIONER DATE OF JUDGMENT11/10/1993 BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) RAMASWAMY, K. CITATION: 1994 SCC (1) 27 JT 1993 (6) 504 1993 SCALE (4)119 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
N.P. SINGH, J.- These appeals have been filed against the
orders date–‘ January 8, 1981, passed by the High Court,
dismissing the writ petitions filed on behalf of Jodha Ram,
Om Parkash, Lekh Ram and others, for quashing the orders of
the Collector and the Financial Commissioner, holding that
the lands in question had been rightly declared surplus area
under the provisions of the Punjab Security of Land Tenures
Act, 1953 (,hereinafter referred to as the “Land Tenures
Act”).
2. It appears to be an admitted position that Om Parkash,
appellant in one of the appeals, had entered into
partnership agreement with Lott Ram and Rup Ram
(predecessor-in-interest of respondents 5 to 10), to run an
agricultural farm on the lands of aforesaid Om Parkash. In
the year 1949, Om Parkash filed a case for dissolution of
partnership and rendition of accounts. Loti Ram and Rup Ram
took a plea that as per the terms of the partnership, on the
dissolution of the partnership, they were entitled to get
150 bighas of land as tenants.
3. The Land Tenures Act came into force on April 15, 1953.
The appellant Jodha Ram purchased the lands in dispute from
Om Parkash through a sale deed dated November 21, 1953. The
Collector in exercise of the powers conferred on him by the
Land Tenures Act, declared the lands in dispute as surplus
area, by an order dated June 28, 1960.
4. In the civil dispute, which was pending between Om
Parkash and Loti Ram, the District Judge by an order dated
June 18, 1970, held that Loti Ram and Rup Ram were entitled
to remain in possession of the lands in question, as
tenants. Jodha Ram, the appellant, who had acquired the
right, title and interest of Om Parkash by aforesaid sale
deed dated November 21, 1953, did not care to get himself
impleaded as a party to that proceeding.
5. The appellant, Jodha Ram, however, filed a petition
under Section 9(1)(i) of the Land Tenures Act on August 16,
1973, for eviction of Loti Ram and Rup Ram, before the
Assistant Collector, on the ground that he himself was a
small landholder and the aforesaid tenants held large areas
of land and as such he was entitled to the possession of the
lands in question under Section 9(1)(i) of the Land Tenures
Act. The Assistant Collector came to the conclusion that as
Lott Ram and Rup Ram, the tenants, held 269 kanals and 5
marlas of land in addition to the lands in dispute and Jodha
Ram was a small landowner, he was entitled to recover
possession of the lands in dispute. On that finding, he
directed eviction of the tenants. The Collector, however,
allowed the appeals of the tenants, on the ground that the
lands which were the subject-matter of controversy, had been
declared as surplus area of Om Parkash and Jodha Ram, the
appellant, was not entitled to evict the tenants and to take
possession thereof. That finding was affirmed by the
Commissioner, Ambala Division, as well as the Financial
Commissioner. Ultimately, a writ petition was filed on
behalf of the appellant, Jodha Ram, which was dismissed by
the High Court. The High Court was of the view that the
lands having been declared as surplus area
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under the Land Tenures Act, and the validity of the order,
having not been questioned by Om Parkash or the writ
petitioner at any stage earlier, it was not open to the writ
petitioner to question the same in a proceeding initiated by
him under Section 9(1)(i) of the Land Tenures Act, for
eviction of the tenants, Loti Ram and Rup Ram.
6. Section 2(5-a) of the Land Tenures Act defines ‘Surplus
Area’:
“2. (5-a) ‘Surplus Area’ means the area other
than the reserved area, and, where, no area
has been reserved, the area in excess of the
permissible area selected under Section 5-B or
the area which is deemed to be surplus area
under sub-section (1) of Section 5-C and
includes the area in excess of the permissible
area selected under Section 19-B; but it will
not include a tenants’ permissible area:
Provided that it will include the reserved
area, or part thereof, where such area or part
has not been brought under self-cultivation
within six months of reserving the same or
getting possession thereof after ejecting a
tenant from it, whichever is later, or if the
landowner admits a new tenant, within three
years of the expiry of the said six months.”
On a plain reading any area in excess of the permissible
limit, declared in accordance with the provisions of the
Land Tenures Act, shall be deemed to be surplus area.
The relevant pan of Section 9 is as follows:
“9. Liability of tenant to be ejected.- (1) Notwithstanding
anything contained in any other law for the time being in
force no landowner shall be competent to eject a tenant
except when such tenant-
(i) is a tenant on the area reserved under this Act or is a
tenant of a small landowner;
Section 10-A provides:
“10-A. (a) The State Government or any officer empowered by
it in this behalf, shall be competent to utilize any surplus
area for the resettlement of tenants ejected, or to be
ejected, under clause (i) of subsection (1) of Section 9.
(b) Notwithstanding anything contained in any other law for
the time being in force and save in the case of land
acquired by the State Government under any law for the time
being in force or by an heir by inheritance no transfer or
other disposition of land which is comprised in surplus area
at the commencement of this Act, shall affect the
utilization thereof in clause (a).
Explanation.- Such utilization of any surplus area will not
affect the right of the landowner to receive rent from the
tenant so settled.
(c) For the purposes of determining the surplus area of any
person under this section, any judgment, decree or order of
a court or other authority, obtained after the commencement
of this Act and having the effect of diminishing the area of
such person which could have been declared as his surplus
area shall be ignored.”
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There is no dispute that in exercise of the powers
conferred, by the provisions of the Land Tenures Act, the
authority concerned declared the lands in dispute as surplus
area of Om Parkash on June 28, 1960. According to the
appellant, Jodha Ram, even if the land had been declared as
surplus area, as there was no provision in the Land Tenures
Act in respect of vesting of such lands in the State, the
title and ownership of the lands in question of Om Parkash,
shall be deemed to have been conveyed to the appellant, in
view of the sale deed dated November 21, 1953, executed by
Om Parkash in favour of the appellant. As such even after
the declaration of the lands as surplus area, the appellant
continued to be the owner thereof and entitled to get Loti
Ram and Rup Ram, the tenants, evicted in accordance with the
procedure prescribed under Section 9 aforesaid.
7. Section 9(1)(i) confers the right on the landowner to
get a tenant evicted from such land, if the landowner is a
“small landowner”. In the present case, the appellant,
Jodha Ram, was a small landowner vis-a-vis the two tenants,
as such his application was maintainable under Section
9(1)(i). But the question which has to be answered is as to
whether after declaration of the lands as surplus area under
the provision of the Land Tenures Act, the appellant could
have taken possession of the lands under Section 9(1)(i) by
evicting the tenants. Section 10-A(a) empowers the State
Government or any officer authorised in that behalf to
utilize any surplus area for the resettlement of tenants
ejected, or to be ejected. Section 10-A(b) enjoins that no
transfer or other disposition of land which is comprised in
surplus area, at the commencement of this Act, shall affect
the utilization thereof in clause (a). In view of the
explanation, the utilization of the surplus area is to be
made by the State Government, only the right to receive rent
from the tenant, settled on such land, remains with the
landowner. In view of clauses (a) and b) of Section 10-A of
the Land Tenures Act, once any land is declared as surplus
area, in accordance with the provisions of that Act, then
the right of utilization of such land remains with the State
Government and the and owner has only the right to receive
rent from the tenants settled on such lands. It is true
that there was no provision in the Land Tenures Act, under
high all the right, title and interest of the landowner used
to vest, even after declaration of such land as surplus
area. But his right to utilize the said land r to remain in
possession thereof was absolutely curtailed. If the
landowner, as in the present case, the appellant, had no
right to utilize the land, declared as surplus area or to
remain in possession thereof, we fail to understand, how any
application on his behalf under Section 9(1)(i) to evict the
tenants and to resume possession of the lands in question
could have been entertained by he authorities. Section
9(1)(i) obviously conceives lands, over which the and owner
after eviction of the tenant, on any of the conditions
mentioned herein, can resume possession of such lands. But
if in view of Section 10-A, he utilization of lands declared
as surplus area, has to be with the State Government, then
appellant could not have exercised his power of resumption
of the possession, by evicting the tenants under Section 9
of the and Tenures Act.
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8. Faced with this situation, it was urged that after
coming into force of the Haryana Ceiling on Land Holdings
Act, 1972, the situation has changed inasmuch as all
transfers made by the landholders prior to July 30, 1958
even in respect of excess areas have been exempted from the
scope and operation of the Ceiling Act. Reference in this
connection was made to Section 8 of that Act, the relevant
part whereof is as follows:
“8. Certain transfers or dispositions not to
affect surplus area.- (1) Save in the case of
land acquired by the Union Government or the
State under any law for the time being in
force or by a tenant under the Pepsu law or
the Punjab law or by an heir by inheritance,
no transfer or disposition of land in
excess of-
(a) the permissible area under the Pepsu law
or the Punjab law after the 30th day of July,
1958; and
(b) the permissible area under this Act,
except a bona fide transfer, or disposition
after the appointed day, shall affect the
right of the State Government under the
aforesaid Acts to the surplus area to which it
would be entitled but for such transfer or
disposition:
Provided that any person who has received an
advantage under such transfer or disposition
of land shall be bound to restore it, or to
pay compensation for it, to the person from
whom he received it.”
It was urged that Section 8(1)(a) specifically exempts
transfer of even surplus area made prior to July 30, 1958,
as is the case in the present appeals. Section 12 contains
the provision in respect of vesting of the surplus area.
“12. Vesting of surplus area.- (1) The
surplus area of a landowner shall, from the
date on which it is declared as such, be
deemed to have been acquired by the State
Government for a public purpose and all
rights, title and interest including the
contingent interest, if any, recognised by any
law, custom or usage for the time being in
force, of all persons in such area shall stand
extinguished and such rights, title and
interest shall vest in the State Government
free from any encumbrance:
Provided that where any land within the
permissible area of the mortgagor is mortgaged
with possession and falls within the surplus
area of the mortgagee, only the mortgagee
rights shall be deemed to have been acquired
by the State Government and the same shall
vest in it.
(2) The right and interest of the tenant in
his surplus area which is included within the
permissible area of the landowner shall stand
extinguished.
(3) The area declared surplus or tenant’s
permissible area under the Punjab law and the
area declared surplus under the Pepsu law,
which has not so far vested in the State
Government, shall be deemed to have vested in
the State Government with effect from the
appointed day and the area which may be so
declared under the Punjab law or the Pepsu
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law after the appointed day shall be deemed to
have vested in the State Government with
effect from the date of such declaration.
(4) For the purposes of determination of the
surplus area under this Act, any judgment,
decree or order of a court or other authority,
obtained after the appointed day and having
the effect of diminishing the surplus area
shall be ignored.”
It is true that Section 8(1)(a) says that no transfer or
disposition of land in excess of the permissible area under
the Punjab Law after July 30, 1958, shall affect the right
of the State Government under the aforesaid Act, to which
surplus area the State Government would be entitled but for
the transfer or disposition. July 30, 1958 has been fixed
as the cut-off date. Transfer or disposition of land in
excess of the permissible area, under the Punjab Law made
after July 30, 1958, will only be covered under the Haryana
Ceiling on Land Holdings Act. Any transfer made prior to
July 30, 1958 in respect of an excess area under the Land
Tenures Act, is not covered and has been exempted. It was
pointed out that as such lands transferred prior to July 30,
1958, shall not vest in the State Government under Section
12(3) of the Act. Reference in this connection was made to
a Full Bench judgment of the Punjab and Haryana High Court
in the case of Jaswant Kaur v. State of Haryana‘. Mr
Justice O. Chinnappa Reddy (as he then was), speaking for
the Full Bench said:
“Shri Naubat Singh, the learned Assistant
Advocate-General, also agreed that we should
harmonise Section 8 and Section 12(3) in the
manner that we have done but he suggested that
the date up to which transfers of the three
categories specified by us earlier as (1), (2)
and (3) should be recognised, should be the
appointed day (January 24, 1971) and not the
date on which Section 12(3) came into force.
We do not agree. Section 1(2) of Act XVII of
1976 expressly provides that the Act shall
come into force on December 23, 1972. We must
give some meaning and effect to it. In our
view, the effect of Section 12(3) coming into
force from December 23, 1972 on Section 8 is
that transfers of the three categories
specified by us made up to December 23, 1972
would be excluded from the operation of
Section 12(3), that transfers of land in
excess of the permissible area under the
Punjab or Pepsu Law would be protected if made
before July 30, 1958 and that all other land
not excepted by Section 8 would vest in the
State Government with effect from the
appointed day.”
9. Even if it is held that the transfer made in favour of
the appellant in respect of the excess area on November 21,
1953 being prior to July 30, 1958, will not be affected by
Section 12(3) of Haryana Ceiling on Land Holdings Act, still
the application for recovery of possession filed on behalf
of the appellant under Section 9(1)(i) of the Land Tenures
Act has to be dismissed, because in view of Section 10-A of
that Act, the appellant is not entitled to resume possession
of the lands in question, after evicting the tenants. These
appeals are accordingly dismissed. But, in the facts and
circumstances of the cases, there shall be no orders as to
costs.
1 AIR 1977 P & H 221, 229: 1977 Punj LJ 230: 1977 Rev LR 418
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