AJMER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) One Bishan Das who is the father of respondents 2 to 5 and another by name Mubari Ram whose legal representatives are respondents 6 and 7, owned considerable extent of land in Pakistan. He died on 11/04/1948 after he migrated to India. After his death the Rehabilitation Department allotted 124 standard acres and 4 1/4 units of evacuee land on 26/08/1949. 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 17/02/1953 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 2/01/1956. These lands were in the occupation of different tenants against whom the five brothers initiated ejectment proceedings by filing applications under S. 9 (1) (i) of the Punjab Security of Land Tenures Act, 1953 (hereinafter called 'the Act') for ejectment on the ground that each of them is a "small landowner" as defined in S. 2 (2) of the Act and that they required the land for self-cultivation. The Assistant Collector, Hissar rejected the application. The owners' appeals were dismissed by the Collector on 4/01/1965. Their revision also was rejected by the Commissioner of Ambala Division on 26/10/1965. Their further revision to the Financial Commissioner also met with the same fate on 17/05/1966. Thereafter the landowners moved the High court by a writ petition under Articles 226 and 227 of the Constitution 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 S. 2 (3) of the Act and so computed the holding of each of the five were well below the permissible limit of 30 standardacres prescribed thereunder. The writ petition was dismissed but the letters patent appeals filed against the same came up for consideration 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 S. 2 (3) is 60 ordinary acres. Against this decision the respondent landowners preferred appeals to this court. By a judgment dated December 15, 1978 in Munshi Ram v. Financial Commissioner, Haryana this court confirmed the view of the full bench. However, this court accepted an argument on behalf of the landowners that in computing the permissible area of each of the landowners the uncultivated area of 'banjar jadid', 'banjar kadim and 'gair mumkin lands as on 15/04/1953 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 concerned of Hissar District with a direction that he should ascertain the extent of the 'banjar jadid', 'banjar kadim' and 'gair mumkin of the landowners allottees at the relevant date, namely, 15/04/1953 and recompute their permissible area after excluding such land. It is now ascertained that so computed each of the landowners were holding at the relevant date less than 60 acres. When these proceedings were pending simultaneously applications filed by the tenants under S. 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 landowners 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 landowners. Thereafter, the Collector took up consideration of the surplus area cases in the light of the remand order. However, by his order dated 2/02/1978 the Collector held that the landowners should include in the permissible area all the 'banjar lands which have since been brought under cultivation and accordingly directed the landowners to produce the list of permissible area. On appeal by the landowners the Financial Commissioner remanded the cases to Collector with a direction 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 landowners eviction cases on 15/12/1978 (supra). Therefore, the revisionpetitions were dismissed. However, the Collector was asked to determine the permissible area with reference to relevant date, viz. , 15/04/1953. By his order dated 6/05/1982 the Collector determined the area held by each of the landowners, after excluding the 'banjar 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 18/04/1983 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 landowners 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 15/04/1953 and in that view dismissed the purchase 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.

(2.) 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 landowner 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 landowner has made the reservation as contemplated in S. 3, 4, 5 and 5-A, he incurs the penalty under S. 5-C 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 landowner including the land under the personal cultivation of the landowner, 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 landowners had not made any reservation under Sections 3, 4 and 5 originally nor did they make it after S. 5-A was introduced, though their lands were situated in more than one Patwar Circle within S. 5-A. However, the stand taken by the landowners was that they were small landowners having less than 60 acres and, therefore, they were not obliged to make any reservation and S. 5-C would not be attracted at all.

(3.) The following propositions have been settled by the decisions of this court in Bhagwan Das v. State of Punjab and Munshi Ram v. Financial Commissioner, Haryana :