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Judgment
Mahajan, J.—The question that requires determination in this petition under Article 226 of the Constitution of India concerns the interpretation of certain provisions of the Punjab Security of Land Tenures Act, 1953 (Punjab Act X of 1953) hereinafter to be referred as the Act. On the facts, however, there is no dispute.
Manbhari Devi, petitioner No. 5, owned 77 standard acres and 7 units of land, by two sale deeds dated 19th August, 1953, and by another set of two sale deeds dated 21st May, 1958, she sold some land out of her holdings to Bhale Ram, Vidya Devi, Om Parkash and Hari Madho, petitioners 1 to 4. The vendees were put in possession of the land and are in possession of the respective areas of land sold to them by Manbhari Devi.
The petitioners 1 to 4 on the basis of the aforesaid sale deeds sought to reserve the land under the Act. The Collector refused their application and declared the land as surplus. The basis on which the Collector did so was that he treated the sales as ineffective and the land was treated as still property of Manbhari Devi for the purposes of its being declared as surplus. So far as Manbhari Devi, petitioner No. 5, is concerned reservation of permissible area to her has been allowed. The permissible area that can be reserved for self-cultivation under the Act is 30 standard acres. The owner of the area beyond permissible area remains its owner but he cannot deal with it in any way to take it out of the category of the surplus area. On the surplus area Government has a right to settle tenants; those tenants pay rent to the owners whoever may be for the time being and can only be evicted as provided in the Act. The vires of the Act were challenged and it has been held right upto the Supreme Court that the Act is intra vires the legislature.
The contention of the petitioners is that the sales are outside the pale and ambit of the Act and the area transferred thereunder can only be declared surplus if it exceeds the permissible limit so far as the transferees are concerned. The Collector, however, has not taken into account the transfers and has declared the area as already stated to be surplus. It is not disputed and indeed it cannot be that in case the area with the transferees including the area acquired by them from Manbhari Devi is in excess of 30 standard acres, it can be declared as surplus area so far as the transferees are concerned. Therefore, the transferees claim that the Collector''s order is without jurisdiction as he could not in spite of the sales have treated the land as still belonging to Manbhari Devi for the purpose of declaring it as surplus area. On the other hand Mr. Sikri, Advocated General, learned counsel for State, contends that for the purpose of declaring the area as surplus the transfers can not be recognised, as they have been effected after 15the April, 1953-the coming into force of the Act. The transfers effected upto the 1st February, 1955, are however recognised vis-a-vis the transferees inasmuch as their ownership under the said transfers which are really bona fide sales and mortgage are recognised for all purpose excepting that in the case the area transferred was surplus area in the hands of the transferor, it will so continue in the hands of transferee though vis-a-vis the transferees it may not be Surplus. It is not disputed that the transfers were before the coming into force of the Act they would not be hit by the provisions of the Act and even for the purpose of declaring the area surplus the area in the possessing of the transferees including the area acquired by them by the transfers would have to be taken into account.
In order too appreciate the contention of the learned counsel for the parties it is essential to go through from the Very start into the relevant provisions of the various Acts that have held the field from time to time. The first Act that was enacted in this behalf is the Punjab Tenants (Security of Tenure) Act, 1950 (Act No. 22 of 1950) which came into force on the 6th November, 1950. The permissible area in this Act was kept at 100 standard acres and the provisions as to transfers are dealt with in section 10, 11, and 12 and are in these terms:
Effect of transfer:- Subject to the provisions of sections 11 and 12, and save in the case of lands acquired under any law for the time being in force, every transfer or other disposition of land, whether by act of parties or by Operation of law by or in execution of a decree, unless duly completed or deemed to have been completed before the 1st, May 1950, shall be void and unforceable in so far as it tends to reduce or has the effect of reducing the minimum period of tenancy hereinafter specified.
Saving of bona fide sale:-Nothing contained in section l0 shall apply to a sale made, of intended to be made, in good faith and any tenant of the land "which is the subject matter of such sale shall, unless the unexpired period of his tenacity fixed by or under the provisions of this Act is accepted by the vendee be liable to ejectment under the provisions of the Punjab. Tenancy Act, 1887 (XVI of 1887), as if he were a tenant from to year:
Provided that where the tenant is not accepted by the Vendee, the tenant shall subject to the rights of other pre-emperors as provided in the Punjab Pre-emption Act, 1913 be entitled to pre-empt the sale in the manner prescribed therein, and section 15 of the said Act shall be deemed to be amended accordingly.
This Act was amended by the Punjab Tenants (Security of Tenure) Amendment Act, 1951 (President''s Act 5 of 1985m So far as the present controversy is concerned no change was made in the 1950 Act by this amendment. The 1950 Act was repealed by the Act and the Act came into force on the 15th April, 1953. Section 2 is the definition section and it is only necessary to notice the definitions of the phrases ''land-owners'', ''permissible area'', ''reserved area'', ''surplus area'' and these definitions are as under:-
In this Act, unless the context otherwise require (1). ''Land-owner'' means a person defined as such in the Punjab Land Revenue Act, 1987 (Act XVII of 1987), and shall include land allotee and ''lessee'' as defined in clauses (b) and (c), respectively, of section 2 of the East Punjab Displaced Persons (Land Resettlement) Act, 1949 (Act XXXVI of 1949), hereinafter referred to as the ''Resettlement Act''.
Explanation:-In respect of land mortgaged with possession, the mortgagee shall be deemed to be the land-owner.
(The definition of the ''land owner'' in the Punjab Land Revenue Act is in these terms:-
''land-owner'' does not include a tenant or an assignee of land revenue, but does include a person to whom a holding has been transferred, or an estate or holding has been let in farm, under this Act for the recovery of an arrear of land-revenue or of a sum recoverable as such an arrear and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate.)
(2) * * * *
(3) ''Permissible area'' in relation to a land-owner or a tenant means thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres, such sixty acres:
Provided that-
(i) no area under an orchard at the commencement of this Act; shall be taken into account in computing the permissible area;
(ii) * * * *
(4) ''Reserved area'' means the area lawfully reserved under the Punjab Tenants (Security of Tenures) Act, 1950 (Act XXII of 1950), as amended by President''s Act of 1951 hereinafter referred to as the ''1950 Act'' or under this Act.
(5) * * * *
(5-a) ''Surplus area'', means the area other thin the reserved area, and, where, no area has been reserved the area in excess of the permissible area selected as prescribed; but it will not include a tenant''s permissible area:
Provided that it will include the reserved area, or part thereof, where such area or part has not been brought under self-cultivation within six months of reserving the same or getting possession thereof after ejecting a tenant from it, whichever is later, or if the land-owner admits a new tenant, within three years of the expiry of the said six months.
The other provisions which require notice in connection with the present controversy are sections 6, 10-A and 16 and are in these terms:-
For the purposes of determining under this Act the area owned by a land owner, all transfers of land except bona fide sales or mortgages with possession, or transfers resulting from inheritance, made after the 15th August, 1947 and before the commencement of this Act, shall be ignored.
10-A. (a) The State Government or any officer empowered by it in this be hill, shall be competent to utilize any surplus area for the resettlement of tenants ejected, or to be ejected, under clause (i) of sub-section (1) of section 9.
(b) Notwithstanding anything contained in any other law for the time being in force, no transfer or other disposition of land which is comprised in a surplus area at the commencement of this Act, shall affect the utilization thereof in clause (a).
Explanation-Such utilization of any surplus area will not affect the right of the land-owner to receive rent from the tenant so settled.
Save in the case of land acquired by the State Government under any law for the time being in force, or by an heir by inheritance no transfer or other disposition of land effected after the 1st February 1955 shall affect the rights of the tenant thereon under this Act.
The Act was again amended by the Punjab Security of Tenures (Amendment) Act 57 of 1953 but so far as the provisions concerning the present controversy are concerned no change was made. The next amendment of the Act was made by the Punjab Security of Land Tenures (Amendment) Act, 1955 (Act No. XI of 1955). Sub-section 3 of section 2 was replaced by the following sub-section:-
(3) ''Permissible area'' in relation to a landowner or a tenant, means thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres, such sixty acres:
Provided that-
(i) no area under an orchard at the commencement of this Act, Shall be taken into account in computing the permissible area;
(ii) for a displaced person-
(a) who has been allotted land in excess of fifty standard acres, the permissible area shall be fifty standard acres or one hundred ordinary acres, as the case may be.
(b) who has been allotted land in excess of thirty standard acres but less than fifty standard acres, the permissible area shall be equal to his allotted area,
(c) who has been allotted landless than thirty standard acres; the permissible area shall be thirty standard acres, including any other land or part thereof, if any, that he owns in addition,
and so also sub-section 5 (a) of section 2 as under:-
(5-a) "Surplus Area" means the area other than the reserved area, and, where no area has been reserved, the area in excess of the permissible area selected as prescribed; but it will not include a tenant''s permissible area:
Provided that it will include the reserved area, or part thereof, where such area or part has not been brought under Self-cultivation within six months of reserving the same or getting possession thereof after ejecting a tenant from it, whichever is later, or if the land-owner admits a new tenant, within three years of the expiry of the said six months.
Section 16 was also substituted by the following section-
Save in the case of land acquired by State Government under any law for the time being in force, or by an heir by inheritance, no transferor other disposition of land effected after the 1st February 1955 shall affect the rights of the tenant thereon under this Act.
The next amendment of the Act came into force in the year 1957 by the Punjab Security of Land Tenures (Amendment) Act, 1957 (Punjab Act No. 46 of 1957). Certain changes were made in section 2(5-a) by section of the amending Act with the result that section 2(5-a) after the amendment stands thus:-
(5-a). ''Surplus area'' means the area other than the reserved area, and, where no area has been reserved, the area in excess of the permissible area selected u/s 5-B or the area which is deemed to be surplus area under sub-section (1) of section 5-C, but it will not include a tenant''s permissible area:
Provided that it will include the reserved area, or part thereof; where such area or part has not been brought under self-cultivation within six months of reserving the same or getting possession thereof after ejecting a tenant from it, whichever is later, or, if the landowner admits a new tenant, within three years of the expiry of the said six months.
The last amendment is by the Punjab Security of Land Tenures (Amendment) Act, 1959, (Punjab Act No. 4 of 1959). Section 10-A was amendment by section 2 of the amending Act and new sections 19-A and 19-B were inserted. The amended section 10-A and sections 19-A and 19-B are in these terms:-
10-A. (a) The State Government or any officer empowered by it in this behalf, shall be competent, to utilize any surplus area for the re-Settlement of giants ejected, or to be ejected under clause (i) of subsection (1) of section 9.
(b) Notwithstanding anything contained in any other law for the time being in force, and save in the case of land acquired by the State Government wider any law for the time being in force or by an heir by inheritance no transfer or other disposition of land which is comprised in a surplus area at the commencement of this Act, shall affect the utilisation thereof in clause (a).
Explanation:-Such utilization of any surplus area will not affect the right of the land owner to receive rent from the tenant so settled.
19-A. (1) Notwithstanding anything to the contrary in any law custom, usage, contract or agreement from and after the commencement of the Punjab Security of Land Tenures (Amendment) Ordinance. 1958, no person whether, as land-owner or tenant, shall acquire or possess by transfer, exchange, lease, agreement or settlement any land, which with of without the land already owned or held by him, shall "in the aggregate exceed the permissible area.
Provided that nothing in this section shall apply to lands belonging to registered cooperative societies formed for purposes of co-operative farming, if the land owned by an individual member of the society does not exceed the permissible area.
(2) Any transfer, exchange, lease, agreement or settlement made in contravention of the provisions, of sub-section (1) shall be null and void.
19-B. (1) If, after the commencement of this Act, any person whether as land-owner or tenant, acquires by inheritance or bequest, or gift from a person, to whom he is an heir any land or if after the commencement Of this Act and before the 30th July, 1958, any person has acquired by transfer, exchange, lease, agreement or settlement, any land, Which with or without the lands already owned or held by him, exceeds in the aggregate the permissible area, then he shall, within the period prescribed, furnish to the Collector, a return in the prescribed form and manner giving the particulars of all lands and selecting the land not exceeding in the, aggregate the permissible area which he desires to retain and if the land of such person is situated in more than one patwar circle, he shall also furnish a declaration required by section 5-A.
(2) If he fails to furnish the return, and select his land within the prescribed period then the Collector may, in respect of him obtain the information required to be shown in the return through such agency as he may deem fit.
(3) If such person fails to furnish the declaration, the provisions of section 5-C. shall apply.
(4) The excess land of such person shall be at the disposal of the State Government for utilization as surplus area under clause (a) of section 10-A or for such other purposes as the State Government may by notification direct.
It may be mentioned that this Act was enacted in pursuance of the Punjab Security of Land Tenures (Amendment) Ordinance, 1958 (Punjab Ordinance No. 6 of 1958) which was repealed by the Amending Act No. IV of 1959.
It is in the light of these provisions relating to sales that the respective arguments of the parties have to be examined.
In my view, all the transfers in this case which have been effected before the 30th of July, 1958, are not hit by the provisions of the Act and they have to be taken into account while fixing the permissible area which cap be held by the transferees. This result follows from the combined reading of sections 19-A and 19-B. Both these provisions were not brought to my notice at the time when the case was argued by any of the counsel for the parties. These two sections, as I have already indicated, were enacted in the year 1959 and are the latest on the subject. On a cursory reading of the provisions of the Act, there may appear to be some conflict inter se sections 6, 10-A and 16, but on a close reading of these provisions there does not seem to be any conflict excepting perhaps to some extent so far as section 10-A goes. Section 6 merely enacts that transfers made after the Commencement of this Act are to be ignored for the purpose of determining the area owned by a landowner. This section does not in any way present any difficulty so far as the transferees are concerned. The transfer is not made void by this provision. The next provision that deals directly with transfers is section 16. That merely provides that "the transfer of land effected after the 1st February 1955, shall not affect the rights of the tenants thereon under this Act." This provision also does not make the transfer void vis-a-vis the transferees. The other provisions dealing with the transfers is section 10-A. This merely provides that "no transfer of land which is comprised in a surplus area at the commencement of this Act, shall affect the utilization thereof in clause (a)." Therefore, this provision also does not render any transfer void. For the first time, the provision that makes the transfer void has been enacted in, section 19-A. It bars the acquisition of land by any person whether a land-owner or a tenant in excess of the permissible area, whereas section 19-B recognises the transfers made upto the 30th July 1958. According to this provision the area acquired by the transferees including the area held by them is to be taken into account for the purpose of finding out the surplus area in their hands. Therefore, if all these provisions are read in the way in which I have sought to read them, the only conclusion possible is that the impugned transfers cannot be ignored vis-a-vis the transferees and they must be taken into consideration so far as the transferees are concerned in arriving at the decision as to whether the area in the hands of the transferees including the area held by them before the transfers is in excess of the permissible area. So far as S. 10-A is concerned it stands impliedly repealed by Ss. 19-A and 19-B.
I, therefore, allow this petition and quash the orders of the Collector and the Commissioner. It will be open to the Collector to determine any surplus area in the hands of the transferees after taking into account the area acquired by them under the transfers. It may be mentioned at this stage that all the transfers in question were effected before the 30th of July, 1958, the dead line fixed in section 19-B. The petitioners of course would be entitled to their costs, which are fixed at Rs. 50/-.