Indian Kanoon - Search engine for Indian Law

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 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 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 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-

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).

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.

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.