BALDEV RAJ Vs. FINANCIAL COMMISSIONER, HARYANA AT CHANDIGARH

JUDGEMENT

(1.) THE writ petition challenges the order passed by the authorities constituted under the Punjab Security of Land Tenures Act of 1953, who had rejected the plea of a transferee from the original landowners that the recognition of rights of a tenant under Section 18 could not have been done without allowing for a reservation of the landlord's permissible area, as required to be so under Section 5B of the Act. The dispute is, therefore, between a transferee from the landowners and a tenant, who was staking a claim to the property to enlarge his right through purchase guaranteed under Section 18 of the Act. The property had originally belonged to one Darbari Singh and on his death, the property came to be inherited by two of his sons, namely, Hukam Singh and Aidal Singh. They had in turn gifted the properties in dispute in favour of their respective sons. When the descendants of Darbari Singh were agitating for their rights against the claim by a tenant under Section 18, the Financial Commissioner (Revenue) passed an order on 26.06.1974 that the rights of a tenant under Section 18 could not be decided before the landlord makes his reservation under Section 5B of the Act. After the remand by the Financial Commissioner through his order dated 26.06.1974, it so happened that the landowners Hukam Singh and Aidal Singh died one after the other in 1975 and 1980 respectively. The contention by the petitioners was that in terms of Section 10A(b), the effect of inheritance would be to save the property for the benefit of heirs and compel a determination of surplus in the hands of the heirs. The requirement of Section 5B, as directed by the Financial Commissioner, would have to be considered with reference to the inheritance operating on the death of Hukam Singh and Aidal Singh. The Collector, however, rejected such a plea on the ground that the mandate of the Financial Commissioner was that the reservation of the landowners Hukam Singh and Aidal Singh alone were to be considered and it was not possible to go beyond the brief. After the remand, the Collector, therefore, held that Hukam Singh and Aidal Singh had each held an extent of about 35 standard acres and 31/4 units under self -cultivation and found 70 acres equivalent to 52 standard acres and 121/2 units each in the hands of the tenants. According to Section 5B, each of the landowners, namely, Hukam Singh and Aidal Singh, had to be allowed 30 standard acres in their permissible area and the balance of 5 standard acres and 31/4 units was to be declared as surplus and the right of tenant could be decided in terms of such a declaration. This reasoning as found from the order of the Collector was affirmed subsequently and the impugned orders reflect the same line of reasoning and it is challenged through this writ petition.

(2.) IT is contended by the learned senior counsel appearing on behalf of the petitioners that the direction of the Financial Commissioner could not have been considered without reference to the subsequent event of death of the landowners and if through inheritance, the property had devolved on his heirs on the date of his determination, he was bound to take notice of such a subsequent event and allowed for the respective holding of the legal heirs as per their entitlement before allowing for consideration of tenant's plea for his permissible area. The learned senior counsel appearing on behalf of the private respondent, who is the tenant, would contend that the writ petition itself has been filed at the instance of a transferee only without making the transferors parties in the writ petition. The transferors had not themselves challenged the order and if they have not expressed any grievance for the same, a fortiorari, the petitioners cannot also object to the same. It is the further contention that the direction of the Financial Commissioner could not have been breached by the Collector and more so, in a situation where the property did not belong to the estate of the respective deceased landlords, namely, Hukam Singh and Aidal Singh on their death to devolve by succession to his legal heirs. This contention was on the basis that the tenant has paid his installment at the time of the death and also subsequently parted with all the installments and in terms of Section 18(4) of the Act, the properly was deemed to have vested in the tenant and did not survive to the landowners or the transferee. It is the further contention of the learned senior counsel for the tenant that the purchase by the petitioners itself was during the application filed by the tenant under Section 18 and therefore, the principles of lis pendens shall apply to deny to the transferee a right to make claim in preference to a statutory right of the tenant under Section 18.

(3.) THE point that would require a focus is whether the landowners could be said to have lost the right in favour of the tenant even before a reservation is made under Section 5B. If the case was to be again considered only in the context of the effect of payment of first installment under Section 18(4), then there was perhaps not even a need by the Financial Commissioner to remit the matter for fresh consideration. The learned counsel relies upon two decision of the Hon'ble Supreme Court as pronouncing on the superior rights of a tenant and the effect of payment of installment under Section 18(4) Rameshwar and others versus Jot Ram and another : 1975 PLJ 454 and Kanaya Ram and others versus Rajinder Kumar and others : 1985 PLJ 167 hold the view that if there is a purchase application made by a tenant and he had also made the payment of installment, the subsequent death of a landowner cannot operate to defeat the tenant's right. In other words, the issue of inheritance in such a case is irrelevant and the tenant must secure what the statute protects under Section 18(4). This point is well taken only in so far as the issue of succession by itself will not take away the right of a tenant to assert what the statute provides under Section 18. It will be, however, too simplistic to assume that this will prevail over every other Section under the same Act. If the Financial Commissioner was remitting the matter to the Collector for consideration of the landowners' right of reservation under Section 5B, it was not meant to be a mere formality. A tenant's right to obtain a compulsory purchase would by only in respect of properties which are available outside the permissible area of the landlord. The permissible area for a tenant can be determined only after the landlord exercises his right under Section 5B of the Act. It has been held by a Division Bench of this Court in Shanti Swaeupa versus State of Punjab : ILR 1976 (1) P&H 304, that reservation by a landowner is a sine qua non for the exercise of a tenant's right to purchase. When an application for purchase by a tenant is made, it could be considered only after the reservation has been made by the landlord. It shall be impermissible to consider aright for a tenant under Section 18 without determination of the landlord's permissible area.