Bhan Singh and Others vs Budh Singh and Others

M.R. Sharma, J.—Common questions of law and fact are involved in these three petitions, (C.W.P. 3694, 3695 and 3696 of 1979) which are being disposed of by one judgment.

For facility of reference, the facts giving rise to C.W.P. No. 3694 of 1979 may briefly be stated as under;

The land in dispute originally belonged to Karam Singh, father of the petitioners. After the coming into force of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act), he was found to own and possess 69 standard acres and 9 3/4 Units of land. His surplus area case was decided by the Collector on January 7, 1964 and land measuring 35 standard areas and 11 3/4 Units was declared as surplus. Some of the surplus land was allotted to Budh Singh responding Karam Singh, the landowner, died on February 25, 1970. On April 2 1975, Budh Singh respondent moved an application in form ''J'' for purchase of the land comprised in his tenancy. This application was contested by the landowners, who also supplied in Form ''L'' for his ejectment. Both these applications were heard by the Assistant Collector, 1st Grade, Patti. He, vide his order, dated August 1, 1975, dismissed the ejectment application made by the petitioners and allowed the purchase application qua 8 kanals 10 mar as made by the tenant respondent. The landowners went up in two appeals which were allowed by the Collector vide his order dated March 18, 1975. The case were remanded for a fresh decision by the Assistant Collector, 1st Grade. The Assistant Collector, 1st Grade, vide his order dated June 1976, came to the conclusion that the landowners had become small landowners because of the death of Karam Singh and Budh Singh respondent had no right to purchase the land u/s 18 of the Act. The ejectment application filed by the landowners was allowed.

Budh Singh respondent filed an appeal against this older; which was dismissed by the Collector on December 15, 1976. Budh Singh respondent filed a revision petition, which was dismissed by the Commissioner, Jullundur Division, on June 7, 1978, on the ground that there was no legal point which deserved to be referred the Financial Commissioner for the acceptance of the petition.

Budh Singh tenant then filed a revision petition before the Financial Commissioner, Revenue, Punjab. Before him it was submitted on behalf of the landowners that since Karam Singh had died during the pendency of the purchase application made by Budh Singh respondent, the three sons of Karam Singh, that is the petitioners, had become small landowners and for that reason, application filed by Budh Singh respondent deserved to be dismissed. The learned Financial Commissioner rejected this contention with these observations:

I have considered the arguments advanced by both sides and gone through the record. Banta Singh is admittedly resettled tenants since 15th April, 1964 on a part of the surplus area of Karam Singh who died thereafter. His heirs cannot claim benefit of fragmentation which is not allowed u/s 10-B of the Punjab Security of Land Tenures Act, 1953. The rulings cited by the Commissioner do not come in a play in this case as these are based on different facts. The Courts below have thus acted illegally which warrants interference.

He, accordingly, allowed the revision petition. The three sons of Karam Singh deceased-landlord hare filled the instant petition.

Before us also, the same argument which was raised before the learned Financial Commissioner was put forth by the learned counsel for the petitioners. It was submitted that the scheme of the Act shows that in case a big landowner dies leaving behind more than one heirs and the land possessed by each individual heir falls within his permissible area, the tenant of the deceased landlord cannot voluntarily exercise his right u/s 18 of the Act for purchasing the land comprised in his tenancy.

Now, it may be observed that the three petitioners obtained this land under a will to the exclusion of their sisters. In Mahan Singh and another v. Haryana State and others (1978) 80 P.L.R. 553, it was held that a person acquiring land under a will cannot be said to have inherited the same. We are in respectful agreement with this view because it is in accordance with the settled principles of law. The law lays down a special mode of proof for the wills because a will makes departure from the natural devolution of property. Once it is held, then the provisions of Section 16 of the Act would come into play and the alienation made by the deceased landlord under the will would have to be ignored in proceedings initiated by the tenant u/s 18 of the Act for the purchase of the land. The position deserves to be dismissed on this short ground alone.

However, since elaborate arguments have been advanced at the Bar on the legal issues involved in the case which are likely to arise in a large number of cases, we are also inclined to dispose of the other contentions raised by the learned counsel for the petitioners.

It was submitted by the learned counsel for the petitioners that the three petitioners being the sons of the big landowner inherited the property of their father when the tenant respondent had not completed six years as a tenant in respect of the land in dispute and after the death of the original landowner the three petitioners did not own land more than the permissible area as laid down in the Act. The necessary conditions incorporated in Section 8 of the Act for enabling the tenant to purchase the land were not in existence. This section lays down that a tenant can purchase the land if two conditions arc satisfied; firstly the land should form part of the surplus area of the landowner and secondly the tenant must have occupied the same for a continuous period of six years.

The argument raised on behalf of the petitioners stands concluded against them by a Single Bench decision in Civil Writ Petition No. 4088 of 1977 (Krishan Kumar and others v. The Cinancial Commissioner, Taxation, Punjab, Chandigarh and others C.W.P. 4088 of 1977) decided on May 22, 1980. In that case, it was held as under:

However, once the surplus area has been utilised by resettlement of eligible tenant by the Government and the possession of the surplus area is taken from the landowner, his death subsequent thereto is of no consequence so far as the devolution of his interest on his heirs and the questions of permissible area and surplus area are concerned. So far as the land in the hands of a landowner is concerned, the final time limit is the date of utilization of the surplus area.

We are in respectful agreement with this view.

The learned counsel for the petitioners, however, drew our attention to another Single Bench decision in Rajinder Kumar and others v. State of Panjab and others 1967 P.L.J. 77. That was, however, a case of ordinary tenant and not a resettled tenant like Budh Singh respondent. In those circumstances, the learned Single Judge held that the scheme of the Act appeared to be that whereever change in the situation resulted from inheritance it was the changed situation which had to be taken into account for determining the rights of a tenant till the tenant actually acquired the rights bestowed upon him under the Act. Further more, no argument seems to have been advanced before the learned Judge based on section 10B of the Act The Act had to be amended from time to time for protecting the rights of the tenant, which the Legislature thought h ad been put into jeopardy because of the judicial interpretation of some of its provisions. In order to appreciate the merit of the legal issues involved, one has to cast a glance on the relevant provisions as a whole. Some of them read as under:-

10-A. (a) The State Government or any officer empowered by it in this behalf shall be competent to utilise any surplus area for the resettlement of the 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 and save in the case of land acquired by the State Government under any law for the time being in force or by any heir by inheritence, no transfer or other disposition of land which is comprised in 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

(c) for the purpose of determining the surplus area of any person under this section, any judgment decree or order of a court or other authority, obtained after the commencement of this Act and having the effect of diminishing the area of such person which could have been declared as his surplus area shall be ignored.

10-B Saving by inheritance not to apply after utilization of surplus area Where succession has opened after the surplus area or any part thereof has been utilized under clause (a) of Section 10-A the saving specified in favour of an heir by inheritance under clause (b) of that section shall not apply in respect of the area so utilized.

Saving of tenancies from effect of mala fide transfers. Save in the case of the 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 affected after the 1st February, 1955, shall affect the rights of the tenant thereon under this Act.

Right of certain tenants to purchase land (1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a land-owner other then a small land-owner-

(i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six years, or

(ii) who has been restored to his tenancy under the provisions of this Act and whose periods of continuous occupation of the land comprised in his tenancy immediately before ejectment and immediately restoration of his tenancy together amount to six years or more, or

(iii) who was ejected from his tenancy after the 14th day of August, 1947, and before the commencement of this Act, and who was in continuous occupation of the land comprised in his tenancy for a period of six years or more immediately before his ejectment,

shall be entitled to purchase from the landowner the land so held by him but not included in the reserved area of the landowner, in the case of a tenant falling within clause (i) or clause (ii) at time, and in the case of a tenant falling within clause (iii) within a period of one year from the date of commencement of this Act:

Provided that no tenant referred to in this sub-section shall be entitled to exercise any such right in respect of the land or any portion thereof if he had sublet the land or the portion, as the case may be, to any other person, during any period the tenant was suffering from a legal disability or physical infinity, or if a woman, was a widow or was unmarried:

Provided further that if the land intended to be purchased is held by another tenant who is entitled to pre-empt the sale under the next preceding section, and who is not accepted by the purchasing tenant the tenant in actual occupation shall have the right to pre-empt the sale.

(2) A tenant desirous of purchasing land under sub-section (1) shall make an application in writing to an Assistant Collector of the First Grade, having jurisdiction over the land concerned, and the Assistant Collector after giving notice to the landlord and to all other persons interested in the land and after making such inquiry as he thinks fit, shall determine the value of the land which shall be the average of the prices obtaining for similar land in the locality during 10 years immediately preceding the date on which the application is made.

(3) The purchase price shall be three-fourth of the value of land as so determined.

(4)(a) The tenant shall be competent to pay the purchase price either in a lump sum or in six monthly instalments not exceeding ten in the manner prescribed.

(b) On the purchase price or the first instalment thereof, as the case may be, being deposited, the tenant shall be deemed to have become the owner of the land, and the Assistant Collector shall, where the tenant is not already in possession, and subject to the provisions of the Punjab Tenancy Act (XVI of 1887), put him in possession thereof

(e) If a default is committed in the payment of any of the instalments, the entire outstanding balance shall, on application by the person entitled to receive it, be recoverable as arrears of land revenue.

(6) If the land is subject to a mortgage at the time of the purchase, the land shall pass to the tenant unencumbered by the mortgage, but the mortgage debt shall be a charge on the purchase money.

(6) If there is no such charge as aforesaid the Assistant Collector shall, subject to any direction which he may receive from any court, pay the purchase money to the land-owner.

(7) If there is such a charge, the Assistant Collector shall, subject as aforesaid, apply in the discharge of the mortgage debt so much of the purchase money as is required for that purpose and pay the balance, if any, to the land-owner, or retain the purchase money pending the decision of a Civil Court as to the person or persons entitled thereto.

It has been argued by the learned counsel for the petitioners that Section 10-B only protects the utilization of surplus area even after the original landowner had died, and this section has no application for determining the rights of the tenant to purchase land u/s 18 of the Act. The precise argument raised is that Section 16 of the Act expressly lays down that tenancies have not been saved from the effect of the inheritance of land of big landowner by his heirs and if the Legislature intended to save tenancies from this effect also, it could have made express provision in section 10-B of the Act. As a necessary corollery to this proposition, argues the learned counsel for the petitioners, it must be held that if a big landowner dies during the pendency of an application u/s 18 of the Act and the land owned by his heirs falls within their respective permissible areas, the tenant would not be legally entitled to purchase that land.

We are not impressed with these submissions. As noticed earlier, the law had to be amended from time to time. Section 16 of the Act was substituted by the Punjab Act 11 of 1955. By that time the predominant view was that sales or dispositions of land made upto February 1, 1955 should not be disturbed and if after the death of a big landowner his children are reduced to the status of small landowners, they should not be deprived of the land by the tenant u/s 18 of the Act but the entire scheme of the Act was in favour of the tenants and indeed it was so held by their Lordships of the Supreme Court in Atma Ram Vs. The State of Punjab and Others,

The Punjab Legislature, realising that the interest of a tenant was much too precarious for him to invest his available labour and capital to the fullest extent so as to raise the maximum quality and quantity of money crops or other crops, naturally, in the interest of the community as a whole, and in implementation of the Directive Principles of State Policy, thought of granting longer tenures, and as we have seen above, the period has been progressively increased until we arrive at the stage of the legislation now impugned, which proposes to create a large body of small landowners who have a comparatively larger stake in the land, and consequently, have greater impetus to invest their labour and capital with a view to raising the maximum usufruct out of the land in their possession.

Reference to the Punjab Act 11 of 1955, by which the present Act was amended, further clarifies the point that wherever rights of a tenant had been put into jeopardy, the Legislature made an intervention to ameliorate the lot of the tenant. Section 10-B of the Act was introduced in the Act under the Punjab Act No. 14 of 1967. The effect of of this section was that where the surplus area had been utilised, the death of the big landlord did not in any way affect the rights of the tenant. This section was brought on the statute book later and being a special provision on the subject holds away over sections 16 and 18 of the Act. If the object of the Act was to create a body of small landowners, who were earlier tenants, this object could not be achieved if such tenants after having been resettled on the land were to be ejected once again therefrom after the death of the big landlord, whose surplus area had been declared. When all the aforementioned four sections are read together it becomes patently clear that the view taken by the learned Judge in Krishan Kumar and others v. Financial Commissioner Taxation, Punjab, Chandigarh C.W.P. 4088 of 1977 is unexceptionable. We, therefore, see no hesitation in repelling the second contention raised by Mr. Ratta.

Mr. Ratta has given large number of grounds about the constitutional validity of the Act in the petition. One of these grounds is that if the right to property is taken away, the citizens of India will be reduced to the position of mere slaves. However, the learned counsel did not advance any arguments in support of these grounds. The only constitutional point raised by him was that the interpretation placed by us on the aforementioned four sections created a discriminatory position inasmuch as the surplus which had been utilised was being treated differently under the Act from the surplus area which had not been utilised. We might add for the sake of clarity that under the Act if the big landlord died before the utilisation of the surplus area, the authorities under the Act had to re-determine whether the area inherited by his heirs could be regarded as surplus area qua them or not and they could resettle tenants on it only in the first contingency. The short answer to the submissions made by Mr. Ratta is that the two situations form valid basis for classification. Where the surplus area is not utilised, the Legislature for good reasons thought that it would not be proper to deprive the heirs of the big landlord because by then no rights of the tenant to be resettled on that land had come into being. However, when the tenants ejected from permissible area by big landowners are resettled on surplus area, the Legislature for equally good reasons thought that such resettled tenants should not be disturbed. We, therefore, see no force in this contention raised by Mr. Ratta.

No other point was raised before us.

For the reasons afore-mentioned, we find no merit in this petition and dismiss the same. Mr. Ratta prays that we should certify this case fit for appeal to the Supreme Court of India. This prayer is declined.

B.S. Dhillon, J.

I agree with my learned brother M.R. Sharma, J. that the benefit as contained in section 10-A of the Punjab Security of Land Tenures Act, 1953, is not available to the petitioners as the petitioners obtained the land in dispute under a will and not by inheritance. Therefore, I am in perfect agreement with my learned brother that all the three writ petitions are liable to be dismissed and the same are hereby dismissed. As regards the other, points raised by the learned counsel for the petitioner, I do not wish to express any opinion as the said points do not arise in this case because the petitioners did not get the land by inheritance and the said points can appropriately be dealt with in some other case where they actually arise.