PETITIONER: MALA SINGH Vs. RESPONDENT: FINANCIAL COMMISSIONER DATE OF JUDGMENT15/10/1993 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) BHARUCHA S.P. (J) CITATION: 1994 AIR 856 1994 SCC (1) 195 JT 1993 (6) 303 1993 SCALE (4)246 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
KULDIP SINGH, J.- Kishan Dutt, father of respondents 5 to 7
in the appeal herein, was a big landowner under the
provisions of the Punjab Security of Land Tenures Act, 1953
(the Act). Mala Singh, the appellant, was a tenant since
1951-52 in a part of the land owned by Kishan Dutt. Mala
Singh was shown in the revenue records as a tenant in
cultivating possession of the land. Since Kishan Dutt was a
big landowner, proceedings under the Act were initiated and
the Collector, Sirsa by its order dated January 3 1, 1962,
declared certain area owned by Kishan Dutt including the
land in Mala Singh’s possession, as surplus under the Act.
Kishan Dutt was permitted to retain the permissible area
reserved by him under the Act. Mala Singh filed an
application before the Revenue Officer praying that the land
in his possession be reserved as “tenant’s permissible area”
and be taken out of the surplus pool. The application was
allowed by the Revenue Officer, vide his order dated
December 24, 1963. The net result was that Kishan Dutt was
permitted to retain his permissible area under the Act and
the land in possession of Mala Singh was declared as
tenant’s permissible area.
2.Section 18 of the Act provided that a tenant who was in
continuous occupation of the land for a minimum period of
six years was entitled to purchase the same provided the
said land was not included in the reserve area of the
landowner. Mala Singh filed an application on June 24,
1972, under Section 18 of the Act for the purchase of the
land under his possession as a tenant. It would be relevant
to mention that Kishan Dutt died on September 4, 1971,
leaving his son Madan Mohan and two daughters. Madan Mohan
and his sisters filed an application dated November 23,
1971, for ejectment of Mala Singh from the land in dispute,
on the ground that after the death of their father, the
three successors had become small landowners and, as such,
were entitled to the land, possessed by Mala Singh as
tenant.
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3. Both the applications came for consideration beforethe
Assistant Collector, 1st Grade, Sirsa, who by his order
dated June 18,1977 rejected the application of Madan Mohan
and allowed the applicationof Mala Singh for the purchase
of the land. Madan Mohan along with his sisters filed
appeal before the Collector, Sirsa against the order of the
Assistant Collector. The Collector dismissed the appeal on
the following reasoning:
“In this case, the land in dispute is the
tenant’s permissible area and this area is
equal to the area as utilised. This area
cannot be reverted back to the appellants.
The rulings cited by the appellants are only
applicable when the surplus land was not
utilised. Under the circumstances I feel that
the order passed by the Assistant Collector
allowing the purchase application is perfectly
legal and after the purchase, application for
ejectment of the tenant has no meaning.
Hence, the appeals filed by the appellants are
hereby dismissed.”
4. Madan Mohan and his sisters filed two revision
applications before the Commissioner, Hissar Division. The
Commissioner allowed the revision petitions and recommended
to the Financial Commissioner to dismiss the application of
the tenant for the purchase of the land and to have the
question whether the landowners were small landowners
redetermined. The Financial Commissioner by his order dated
November 11, 1982, accepted the recommendations of the
Commissioner and dismissed the application of Mala Singh for
the purchase of the land. The Financial Commissioner
accepted the revision petitions on the following reasoning:
“It is obvious that an application for the
purchase of the land was made during the
lifetime of the original landowner. The
succession opened as soon as the death of the
original landowner took place and the question
whether the heirs were small landowners
assumed importance. Furthermore, a plain
reading of Section 12(3) of the new Act shows
that the tenant’s permissible area under the
old Act vested in the State Government with
effect from the appointed day. This being so,
the land in dispute could not be held to be
utilised. I, therefore, agree with the view
expressed by the learned Commissioner.”
5. Mala Singh challenged the order of the Financial
Commissioner by way of writ petition under Article 226 of
the Constitution before the High Court of Punjab and Haryana
which was dismissed by the High Court on May 26, 1988. This
appeal by Mala Singh by way of special leave is against the
order of Financial Commissioner as upheld by the High Court.
6. The Haryana Ceiling on Land Holdings Act, 1972 (Haryana
Act) came into force on December 23, 1972. Sections 12(3),
33(1) and 33(2)(i) of the Haryana Act which are relevant are
as under :
” 12. Vesting of surplus area.- (3) The area
declared surplus or tenants 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 in pending
proceedings to be decided under the Punjab Law
or
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Pepsu Law shall be deemed to have vested in
the State Government with effect from the date
of such declaration.
33. Repeal and savings.- (1) The provisions
of the Punjab Security of Land Tenures Act,
1953, and the Pepsu Tenancy and Agricultural
Lands Act, 1955, which are inconsistent with
the provisions of this Act are hereby
repealed.
(2) The repeal of the provisions of the
enactments mentioned in sub-section (1),
hereinafter referred to as the said
enactments, shall not affect
(i) the applications for the purchase of land
under Section 18 of the Punjab Law or Section
22 of the Pepsu Law, as the case may be,
pending immediately before the commencement of
this Act, which shall be disposed of as if
this Act had not been passed.”
7. It is not disputed that the appellant was a tenant in
the area owned by Kishan Dutt which was declared surplus
under the Act. It is further not disputed that the area in
possession of the appellant was declared as tenant’s
permissible area. The only question before the authorities
under the Act was whether the area in possession of the
appellant as a tenant could be considered to have been
utilised before the death of Kishan Dutt. The Assistant
Collector and the Collector gave the answer in the
affirmative whereas the Commissioner and the Financial
Commissioner came to the conclusion that the area in
possession of the appellant was not utilised.
8. We have heard learned counsel for the parties. We are
of the view that the revisional authorities under the Act
and the High Court fell into patent error in holding that
the surplus area of Kishan Dutt which was declared tenant’s
permissible area on January 24, 1971 had not been utilised
on September 4, 1971 when Kishan Dutt died. The expression
“utilised” has not been defined under the Act. It has been,
however, used in Sections 10-A and 10-B of the Act to
indicate that the surplus area of a landowner gets utilised
on the resettlement of tenants on the said land. Under the
scheme of the Act the surplus area of a big landowner could
be used for the resettlement of landless tenants and
Sections 10-A and 10-B of the Act provided that as and when
it was done, the said surplus area was taken to be utilised.
If the surplus land allotted to the landless tenants under
the Act stood utilised, we see no reason why the surplus
land which was declared as tenant’s permissible area under
the Act, be not considered to be utilised. The appellant
was an old tenant of the landowner. The land under his
possession was declared surplus. He was permitted to
continue in the said land by declaring the same as a
tenant’s permissible area. We are of the view that on
January 24, 1971 when the surplus land in possession of the
appellant was declared as tenant’s permissible area, it
stood utilised by virtue of the said declaration. The
landowner, Kishan Dutt, having died after the utilisation of
the land in dispute, his successors could not take advantage
of the fact that they had become small landowners after the
death of their father.
9. Since the application of the appellant under Section 18
of the Act, for the purchase of the land was pending
immediately before the commencement
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of the Haryana Act, the same was to be disposed of in terms
of Section 33(2)(i) of the Haryana Act as if the said Act
had not been passed. The Assistant Collector and the
Collector, Sirsa, were thus justified in allowing the
application of the appellant, Mala Singh, for the purchase
of the land in dispute. The said authorities were further
justified in rejecting the ejectment application of Madan
Mohan and his sisters.
10. The reliance by the Financial Commissioner on Section
12(3) of the Haryana Act for reaching the conclusion that
the land in possession of the appellant was not utilised, is
wholly misplaced. The said provision has an entirely
different purpose. Under the Act, the surplus area on which
the tenants were settled and also the area which was
declared as tenant’s permissible area, continued to be under
the ownership of the landowner and he was entitled to
receive rent as permitted under the Act. Under Section
12(3) of the Haryana Act the area declared surplus under the
Act, whether utilised or not, and the area declared as
‘tenant’s permissible area’ stood vested in the State
Government. Section 12(3) of the Haryana Act has nothing to
do with the question as to whether before coming into force
of the Haryana Act, the surplus land declared under the Act
had been utilised or not. The Financial Commissioner fell
into patent error and, as such, the conclusions reached by
him cannot be sustained. Although, there are ample
provisions under the Haryana Act for the allotment of land,
which stood vested in the State Government under Section
12(3) of the Haryana Act, to the tenants but it is not
necessary for the appellant to follow that route. His
application for purchase of the land under Section 18 of the
Act was pending immediately before the commencement of the
Haryana Act and, as such, he was entitled to have a decision
on the said application under Section 33(2)(i) of the
Haryana Act. The said application was rightly allowed by
the Assistant Collector, Sirsa.
11. Mr Mela Ram Sharma, learned Senior Advocate, appearing
for the respondent-landlords vehemently contended that the
appellant has no right to purchase the land in view of the
law laid down by a Full Bench of Punjab and Haryana High
Court in Jaswant Kaur v. State of Haryana’. The said
judgment of the Punjab and Haryana High Court was affirmed
by this Court in Nand Lal v. State of Haryana’. We do not
agree with the learned counsel. Jaswant Kaur case1 has no
relevance to the facts of the present case.
12. We allow the appeal, set aside the orders dated
December 4, 1980 of the Commissioner, dated November 11,
1982 of the Financial Commissioner and also of High Court
dated May 26, 1988. We restore the order of the Assistant
Collector, Sirsa as upheld by the Collector, Sirsa. The
appellant shall be entitled to his costs which we quantify
as Rs 10,000.
1 AIR 1977 P&H 221 :1977 Rev LR 418: 1977 Punj LJ 230
2 1980 Supp SCC574:(1980)3SCR1181
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