Punjab-Haryana High Court
Swaran Singh vs Financial Commissioner And Ors. on 8 August, 1977
Equivalent citations: AIR 1978 PUNJAB AND HARYANA 252
ORDER
1. This order will dispose of two writ petitions under Articles 226 and 227 of the Constitution-C. W. No. 81 of 1975(Swaran Singh v. Financial Commissioner, Revenue, Punjab and others) and C. W. 113 of 1975(Dalip Singh v. Financial Commissioner, Revenue, Punjab and others) for quashing the impugned orders (Annexure P. 4 in each petition), dated 21-11-1974 by which the revision petition filed by each of the petitioners was dismissed by the Financial Commissioner, Revenue, Punjab, ordering the ejectment of the petitioner from the land in dispute.
2. Some land of Bal Singh respondent No. 5(hereinafter to be called the Landlord) was declared as surplus, being in excess of the permissible limit, under the provisions of the Punjab Security Land Tenures act, 1953(hereinafter to be called the Punjab Act). The petitions in both these writ petitions were resettled on a part of the land so declared surplus under the Punjab Act and the rules framed thereunder. According to the provisions of the Punjab Act, the landlord continued to be the owner of the land which had been declared surplus and thus the petitioners after resettlement became his tenants. As the landlord refused to accept rent from the petitioners, the latter filed applications on 5-5-1970 and 14-5-1970 under Section 14-A (iii) of the Punjab Act for the deposit of rent. In order to defeat the attempt of the petitioners, the landlord submitted an application on 7-9-1970 under Section 9 of the Punjab Act for the ejectment of the petitioners on the ground that they had failed to pay rent without sufficient cause. In this application arrears of rent had been claimed for Kharif 1968 to Rabi 1970. In the applications filed by the petitioners, rent as claimed to be due from them was deposited under the orders of the Assistant Collector, Revenue, on 25-9-1970 and subsequently the arrears of rent as ordered were deposited. However, in the proceedings initiated by the landlord for the ejectment of the petitioners, an order of ejectment was passed by the Assistant Collector on 7-4-1971 with a finding that the petitioners had failed to pay the rent regularly without sufficient cause. Appeals filed by the petitioners against the above order failed and were dismissed by the Collector by his order dated 11-1-1972. Another attempt made by the petitioners in revision before the Additional Commissioner also failed and the revision petitions were dismissed on 26-6-1973. Further revisions by the petitioners were also dismissed by the learned Financial Commissioner by the impugned orders son 21-11-1974. The orders of ejectment by the Asstt. Collector, the Collector and the Addl. Commissioner are respectively marked as Annexures P. 1, P. 2 and P. 3. It is the impugned order, Annexure P. 4, of the learned Financial Commissioner in each petition which has been challenged.
3. It may be mentioned here that Dalip Singh petitioner in C. W. 113 of 1975 continued to be in possession of the land dispute as a result of the stay order issued by the Motion Bench. However, in the writ petition filed by Swaran Singh, petition filed by Swaran Singh, petitioner in c. W. 81 of 1975, though dispossession was stayed by the Motion Bench in the first instance, but that order was subsequently vacated and Swaran Singh petitioner is, therefore, not in possession of the land at present.
4. Before the learned Financial Commissioner, the order of ejectment by the authorities below was challenged by the petitioners on two grounds. Firstly, that the petitioners were not liable to be ejected as they had not failed to pay the rent regularly, rather the landlord refused to accept the rent presented by them, and consequently the petitioners submitted an application before the Assistant Collector for deposit of arrears of rent before the application for their ejectment was filed by the landlord, and in pursuance of the order of the Assistant Collector rent due was duly deposited. Secondly, that the order of ejectment was inoperative according to Section 17 of the Punjab Land Reforms Act, 1973(hereinafter to be called the new Act). The learned Financial Commissioner did not agree with either of the contention of the petitioners and held that Section 17 of the new Act was not applicable as the provisions of the Punjab Act were not inconsistent with any provisions of the new Act regarding ejectment of tenants on the ground of non-payment of rent. Regarding arrears of rent, it was held that all the three authorities below had concurrently given a finding of fact that both the petitioners had made default in the payment of rent regularly without sufficient cause and that this finding of fact could not be interfered with in revision.
5. The learned counsel for the petitioners confined his argument to the question that the order of ejectment passed by the Collector in appeal and then by the Additional Commissioner in revision was nullified and set sat naught on account of the operation of Section 17 of the new Act. In order to appreciate the contention. Section 17 of the now Act is reproduced below:-
"17. No decree or order of any court or authority and no notice of ejectment shall be valid save to the extent to which it is consistent with the provisions of this Act".
According to the submission of the learned counsel for the petitioners, as the order of ejectment by the revenue authorities was inconsistent with the provisions of the new Act, the same ceased to be valid under this provision. In support of this contention it is submitted that the case of the petitioners is that after the declaration of some land of the landlord as surplus, the petitioners were resettled on a part of that land as tenants before 1970. Under the provisions of the Punjab Act, land though declared surplus continued to remain in the ownership of the original landlord. Thus till the enforcement of the new Act., the petitioners continued to remain the tenants of the original landlord, and offered rent to him. As the landlord refused to receive the same, two applications by the petitioners were made separately in May 1970 for deposit of the rent. On the other hand, an application was made by the landlord for ejectment of the petitioners on 7-9-1970. The new Act was enforced with effect from 2-4-1973. Sections 8 and 11 of the new Act and Para 13 of the Punjab Utilisation of Surplus Area Scheme, 1973, which was framed under Section 11(2) of the new Act and was enforced on 4-7-1973(hereinafter to be called the Scheme) brought about a drastic change in the position of the landlord and the resettled tenants regarding the surplus area. According to Section 8 of the new Act, all surplus area, declared as such under the Punjab Act and the Pepsu Tenancy and Agricultural Lands Act, 1955(hereinafter to be called the Pepsu Act), which had not been utilised till the commencement of the new Act, was to vest in the Government on the date on which possession was taken by or on behalf of the State Government. Under Section 11(1) of the new Act, the surplus area so vested in the State Government under Section 8, was at the disposal of the State Government which was free to utilize the same in any way as it liked. Under Section 11(2) of the new Act, the State Government was confirmed the power to frame a scheme for utilizing the land which had been declared surplus under the Punjab Act or the Pepsu Act, and while utilising this surplus land, under clause (a) of Section 11(2), rights of ownership could also be conferred by the State on the tenants, or under clause (b) such land could be allotted to the tenants and others mentioned therein. According to para 13 of the Scheme, the tenants who had been resettled on the surplus area of a land-owner under the Punjab Act or the Pepsu Act were to be deemed to be allottees of that land in accordance with the provisions of the Scheme. Para 13 of the Scheme reads as under:-
"Para 13. A tenant resettled on the surplus area of a land-owner (other than a land-owner who died before the commencement of this scheme) in accordance with the provisions of the Punjab Law and the rules framed thereunder at any time before the commencement of the Act shall be deemed to have been allotted land in accordance with the provisions of this scheme:
Provided that the provisions of this paragraph shall not be applicable where the tenant is deemed to have become the owner in accordance with clause (b) of sub-section (4) of Section 18 of the Punjab Law before the commencement of the scheme."
Under para. 10 of the Scheme, a resettled allottee was liable to make payments to the Government as specified therein and was to become the owner either on payment of the full amount as specified or after the expiry of 15 years of the date of possession, whichever was later. Combined reading of Sections 8, 11 of the new act and paras 10 and 13 of the Scheme makes it clear beyond any doubt that after the enforcement of the Scheme on 4-7-1973 under the new Act, those who were resettled on the surplus land under the Punjab Act and the Pepsu Act became allottees of the Government and were liable to pay the amounts as specified Government, which had become the owner of the surplus land, and such resettled tenants after becoming allottees, ceased to be the tenants of the landlord, and thus were not liable to pay any rent to the landlord.
6. Under the Punjab Act, a land-owner continued to be the owner of surplus land even after its utilization and allotment to the tenants and was entitled to recover rent and even initiate proceedings for ejectment of the tenants under Section 9 of that Act, but under the new Act his status as the land-owner vis-a-vis the tenants came to an end as soon as the surplus land was utilized and its possession was taken over from him under Section 8 of the new Act, or in cases where the land had been already utilized under the Punjab Act or the Pepsu Act and was under the resettled tenants, the relationship of landlord and tenant was brought to an end on 4-7-1973 when para 13 of the Scheme came into operation. After the termination of the relationship of landlord and tenant, the benefit of Section 9 of the Punjab Act could no longer be available to the original land-owner vis-a-vis the land which had been declared surplus. To this extent it cannot be controverted that the provisions of the Punjab Act were inconsistent or in conflict with those of the new Act and in such a situation Section 17 of the new Act would be clearly applicable and the decree or order of ejectment passed in favour of the landlord and against the tenants will cease to have any validity or effect.
7. So far as the present case in concerned, the order of ejectment against both the petitioners passed by the Assistant Collector on 7-4-1971 and confirmed in appeal by the Collector on 11-1-1972 as well as by the Additional Commissioner in revision on 26-6-1973 could not remain valid after 4-7-1973 when by virtue of para 13 of the Scheme the status of the petitioners improved from tenants under the landlord into allottees of land under the State Government. In view of this proposition of law, the order of the learned Financial Commissioner, dated 21-11-1974(Annexure P. 4) upholding the order of ejectment against the present petitioners in spite of the operation of Section 17 of the new Act in his impugned order and also came to the conclusion that the same was applicable to the extent the provisions of the Punjab Act were in conflict with those of the new Act, but he did not go further and no attempt was made to find inconsistency between the provisions of the two Acts regarding the status of the landlord and tenants on the surplus land.
8. The learned counsel for the landlord-respondent No. 5 has contended that under Section 8 of the new Act the surplus land vested in the State Government only in those cases where the area declared as such under the Punjab Law or the Pepsu Law had not been utilised till the commencement of the new Act and possession was taken over by the State Government under the new Act, but the said provision was silent regarding those cases in which the surplus land had been already utilized under the Punjab Act or the Pepsu Act as is the case of the present petitioners. This contention does not bear scrutiny if Section 8 is read along with Section 11, sub-sections (1) and (2) of the new Act, because sub-section (1) of Section 11 only deals with that surplus area which has vested in the State Government under Section 8 and sub-section (2) deals with the utilization of the surplus land under the Punjab Act and the Pepsu Act in accordance with the Scheme. Para 13 of the Scheme is intended to cover precisely those cases in which the surplus land had been utilized under the Punjab Act or the Pepsu Act before the commencement of the new Act, and some tenants had been settled on the surplus land. Such tenants were conferred the status of allottees under the Government in accordance with this provision. Historically speaking, before 1956 separate Acts, namely, the Punjab Act and the pepsu Act, were in force in the respective areas of erstwhile Punjab and erstwhile Pepsu for the purpose of determining permissible limit, declaration of surplus area and its utilisation by resettlement of tenants and other eligible persons. Even after the integration of the areas of Punjab and Pepsu into the present Punjab, these Acts continued to be in operation in the respective territories. It was for the first time that the new Act was passed and enforced in 1973 repealing the Punjab Act and the Pepsu Act in order to bring about uniformity in legislation. Under the Pepsu Act, as soon as the surplus area was utilised, land vested in the Government, but under the Punjab Act, as stated above, even after the utilisation of the surplus area, the land continued to remain in the ownership of the original landowners. This disparity between the two laws was done away with by enacting Sections 8 and 11 of the new Act and enforcing the Scheme. The intention of the new Act was absolutely clear that after the possession of surplus area was taken over by the Government or on behalf of the Government the same vested in the State Government and the land-owner ceased to have anything to do with the same.
9. It was then contended by the learned counsel for the respondent that the order of ejectment against the petitioners was passed by the Assistant Collector on 7-4-1971, and the appeal was also dismissed on 11-1-1972. Up to that time the new Act had not come into force and thus the order of eviction against the petitioners was valid and legally operative. According to the learned counsel, any subsequent change in the law could not invalidate the valid eviction order passed earlier. Reliance has been placed on a Full Bench judgment of this Court in Chanan Dass v. Union of India, 69 Pun LR 1: (AIR 1967 Punj 297) in which the only question involved was as to whether Rule 30 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, after amendment on 24-3-1961, with retrospective effect, was applicable to revisions pending on that date or filed thereafter under Sections 24 and 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The Full Bench held that the retrospective nature of the amended rule operated to affect pending proceedings to the stage of appeal only and not to revision petitions. The ratios of this judgment cannot be applicable to the present case, because by Section 17 of the new Act no previous provision was amended as such, but it was clearly declared that any decree or order of ejectment passed under the old Acts will be invalid to the extent the old Acts were inconsistent with the provisions of the new Act. Thus the legislature itself has put an end to the previous decrees or orders of ejectment in specified circumstances, and the question of applicability of certain amendments in the rule to the pending appeals or revisions does not arise.
10. Reliance has also been placed on Pishori Lal v. Hukama, 1972 Pun LJ 4, and Rikhi Ram v. Ram Kumar, 1975 Pun LJ 331: (AIR 1975 SC 1869) for the purpose of canvassing the proposition that as soon as the order of eviction was passed against the petitioners the relationship of landlord and tenant ceased and the subsequent change in law could not have any effect on the same. Both these decisions are under the Punjab Pre-emption Act as applicable to Haryana in which the question was whether the tenant who claimed to have the right of pre-emption as a tenant continued to have that right even after the order of ejectment had been passed against him. It was in that context that it was held that once the order of ejectment was passed against a tenant that was an end of relationship between the landlord and the tenant, and the tenant no more could claim anything on the ground of his status as a tenant under the landlord. It is not possible to appreciate as to how the ratio of these two decisions has any relevancy in the present case. The petitioners do not claim any right as tenants after the passing of the order of ejectment against them. Their only case is that after the enforcement of the Scheme on 4-7-1973 under the new Act as the order of ejectment against them became invalid by operation of Section 17 of the new Act, their status was changed from tenants under the landlord to allottees under the State Government.
11. The learned counsel in support of his contention also referred to a judgment of the Financial Commissioner, Punjab in Sohan Sigh v. The State of Punjab, 1966 Pun LJ 229. According to this decision, the surplus area once utilised cannot be the subject-matter of re-determination after the original land-owner had died and his heirs claimed separate permissible area. There is possibly no dispute with this proposition of law and there is no such controversy in the present case. Admittedly a part of the surplus land was uitilized and the petitioners were resettled on the same. Reliance on State of Punjab (now Haryana) v. Amar Singh 1974 Rev LR 197 : (AIR 1974 SC 994) is also entirely misconceived. Therein the controversy centered round the scope of Sections 10-A and 18 of the Punjab Act, which has absolutely no relevancy for determining the matters in dispute in the present case.
12. The learned counsel for the respondent them raised the objection that the present writ petitions are liable to be dismissed because the State of Punjab has not bee impleaded as a party. In the present case the impugned orders were passed by the Assistant Collector 1st Grade, the Collector, the Additional Commissioner and the Financial Commissioner, all of whom had been made the parties. The landlord has also been made a party as respondent No. 5, who is represented by his learned counsel who has argued thecase on behhalf of the respondents. Thus, besides the authorities who passed the impugned orders, the State as such was not a necessary party. The learned counsel for the respondent then advanced a novel proposition that as the land in dispute had been allotted to the petitioners as tenants by the State and that after the orders of ejectment the land in dispute has been allotted by the State to some others, therefore, the State of Punjab is a necessary party. The contention has to be mentioned only to be rejected. The only prayer of the petitioners is that the impugned orders passed by the revenue authorities be set aside. The State as such does not come into the picture at all.
13. It was lastly contended that after the order of ejectment by the Collector, the land in dispute was allotted to Dayal ingh, Gujjar Singh and Tara Singh and some of the land is in their possession. They were necessary parties but were not impleaded. As such the writ petitions are not maintainable. According to the additional affidavit filed by the petitioners, these are the persons just brought on the scene by the landlord-r-espondent No. 5. The said Daya Singh is the brother-in-law of Jit Singh, who is the son of the landlord. Gujjar Singh is the brother-in-law of Piara Singh another son of the landlord. Tara Singh is the father-in-law of a nephew of the land-lord. It is not denied that these persons were allotted some parcels of this land after the order of ejectment had been challenged in appeal or revision. Thus challenged in appeal or revision. Thus when a matter is sub judice, any transfer of land during the pendency of the proceedings cannot affect the rights of the parties. Besides, once the impugned order of ejectment is quashed, the allotment in favour of these persons will automatically fall.
14. For the reasons mentioned above, both the writ petitions are allowed with costs and the impugned orders. Annexures P. 1, P. 2, P. 3 and P. 4 are quashed and it is held that both the petitioners became allottees under the State Government after the enforcement of the Scheme under the new Act. With the decision of this writ petition, C. M. Nos. 1455 and 1456 of 1977 stand automatically disposed of.
15. Petitions allowed.