Jee Ram and others vs Gobind and others

D.K. Mahajan, J.—This is an appeal under Clause 10 of the Letters Patent and is directed against the decision of the learned Single Judge of this Court allowing the petition of respondents 1 to 3 under Articles 226 and 227 of the Constitution of India and setting aside the order of the Subordinate authorities allowing the tenant''s applications for purchase u/s 18 of the Punjab Security of Land Tenures Act, 1953.

The learned Single Judge has written a very elaborate judgment and it is not necessary in the present appeal to go into very minute details because we are entirely agreeing with the decision of the learned Single Judge.

The salient facts of the case are that one Ram Singh was the owner of the land measuring 30.4 standard acres, Technically he would be a big landowner because the land in his possession exceeded the permissible limit by 0.4 standard acres. Ram Singh sold 94 Kanals 13 Marias of land to Jai Kauri and Kesar on the 3lst October, 1957. He sold another piece of land measuring 8 Kanals to Gobind on the same day. Biru admittedly was a tenant of the land in dispute. He is dead and is now represented by his legal representatives. He made an application u/s 18 of the Act for purchase of the land forming the subject-matter of his tenancy on the ground that his landowner was a big landowner. The land of which he was the tenant is the land which has been sold by Ram Singh to Jal Kauri, Kesar and Gobind. This application was allowed and all attempts on the part of the vendees of Jai Kauri failed right upto the Financial Commissioner excepting that there was a slight modification that part of the land was excluded from the purchase application. The vendees being dissatisfied with the revenue authorities under the Act moved an application in this Court under Articles 226 and 227 of the Constitution. The learned Single Judge has allowed this application holding that till the reserved area of the landowner was determined, the tanant''s'' application u/s 18 could not be entertained because Section 18 is specific and provides that "the tenant 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 present case, there was no determination of the reserved area of the landowner. The only surplus area left would be 0.4 standard acres and this is a very insignificant part as compared to the area in possession of Biru. The learned Single Judge was of the view that the proper course to adopt was to determine the reserved area of the landowner and thereafter entertain the application of the tenant u/s 18. However, the learned Single Judge dismissed the purchase application of the tenant The tenant has come up in appeal under Clause 10 of the Letters Patent.

Mr. Sarin, learned counsel for the tenant, in the first instance, contended that admittedly all conditions of Section 18 are satisfied. It is also true that there is no determination of reserved area. According to the learned counsel, the mere fact that the landowner is a big landowner is enough to warrant the applications being allowed.

Before proceeding to deal with the contention of the learned counsel, it will be proper to exmine the scheme of the Punjab Security of Land Tenures Act, 1953 (Punjab Act No. 10 of 1953), as amended up-to-date. The Act has been enacted to provide for the security of land tenure and other incidental matters Small landowner'' is defined as a landowner whose entire land in the State of Punjab does not exceed the permissible area." "Permissible area" is defined in relation to a landowner "30 standard areas and where such 30 standard acres on being converted into ordinary acres exceed sixty acres, such sixty acres". "Reserved area" means the "area lawfully reserved under the Punjab Tenants (Security of Tenures Act, 1950 (Act 22 of 1950) as amended by the President''s Act of 1951". "Surplus area" means ''-the area other then 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 and includes the area in excess of the permissible area selected u/s 19-B, but it will not include a tenant''s permissible area". Sections 5, 5-A and P-B provide for reservation of land by a landowner and the consequences of not making a reservation. Section 5-C provides for penalty for failure to furnish declaration as required by Section 5-A. Section 6, which will have a bearing on the controversy is as follows:

No transfer of land, except a bona fide sale or mortgage with possession or a transfer resulting from inheritance. made after the 15th August,1947, and before the 2nd February, 1955, shall affect the rights of the tenant on such land under this Act.

This provision sets at naught any transfers except bona fide sales or mortgages with possession or a transfer resulting from inheritance after 15th August, 1947, and before the 2nd of February, 1955, so far as they may affect the rights of a tenant on the land.

Section 10-A provides for the utilisation of surplus land, the only exception being that the surplus land will cease to be. surplus in case it so acquired by the State Government or the succession to it has opened out. Section 10-B makes an exception so far as inheritance is concerned in case the land has been utilised before the succession has opened out. Section 16, which is akin to Section 6 and covers the period after 1st of Febraury,1955, is in the following terms:

Save in the case of land acquired by the State Government under any law for the time being in force, 0r by an heir by inheritance, no transfer or other disposition of land effected alter the 1st February, 1955, shall affect the rights of the tenant thereon under this Act.

Sections 17, 17-A, 17-B and 18 provide for certain rights in tenants. For instance, u/s 17, a tenant has been given a right to pre-empt the sale of the land of which he is a tenant, Section 17-A forbids pre-emption when land is sold to a tenant by the landowner. Section 17-B provides for the continuation of the tenant on the land after redemption where the land was under mortgage. Section 18 confers a right on the tenant to purchase the land which is the subject-matter of his tenancy.

Section 19-A bars future acquisition of land in excess of the permissible area and Section 19-B provides for reservation of land where land has been acquired by inheritance and exceeds the permissible area.

It will appear from the scheme of the Act that it vests a right in the landowner to reserve his area. In case the landowner fails to reserve his area, certain area is still to be reserved for him by the Collector. It is only the land which is in excess of the reserved area to which the provisions of Section 18 apply. In the present case, no land was reserved by the landowner. The Collector had also not made any selection for him u/s 5-B(2) The Collector also did not act u/s 5-C. The total land-holding of the landowner was 30.4 standard acres Thus, what was surplus was 0.4 standard acres. It will appear from the language of Section 5-B(2) that there is no time limit provided within which the Collector is to act to make a selection of the reserved area for a landowner. Their Lordship of the Supreme Court in Gurbax Singh v. State of Punjab 1967 P.L.J. 31, observed:

The two concepts on which the entire Punjab Security of Land Tenures Act resolves the permissible area" and the ''surplus area''. Out of the permissible area the landowner is empowered to reserve land not exceeding the said area and the balance is defined as surplus area. This reservation is to enable the landowner to sustain himself by self-cultivation. This two-fold object of the Act cannot be achieved unless the landlord has reserved some land in the manner prescribed u/s 5 of the Act. But, for one reason or other, if the reservation was not made by the landowner, Section 5-B gives him another opportunity to do so.

Therefore, the short question that arises is, can the landowner at the time when an application for purchase of land has been made, reserve the permissible area where he has failed to do u/s 5 The decision in Gurbax Singh''s case clearly leads to the conclusion that he can do so particularly when no time-limit is fixed in Section 5-B for that purpose. The above view finds ample support from the decision of my learned brother in Ram Chand v. Munshi Ram 1969 P.L.J. 74, and Birbal v. Bawa Basant Dass Chela Bawa Balah Dass 1969 P.L J 111'' Moreover, the very language of Section 18 shows that the tenant is not entitled to purchase from the Landowner the land held by him which is included in the reserved area of the landowner. Therefore, it appears that the reservation by the landowner is sine qua non so far as Section 18 is concerned. The first and the formost requirement of the Act is that all landowners should reserve the land. They can do so voluntarily failing which the Collector can do so for them. For the proper working of the Act, this is the first requirement. It cannot be countenanced that the Act is a confiscatory piece of legislation and that it has been enacted to deprive a landowner of his land or to whittle down the ownership rights of a landowner in land. The object of the Act is to give security of tenure to the tenants and give them certain rights in addition to that security. But those rights have to be exercised in consonance with the purpose and the scheme of the Act. To hold that where a landowner has not reserved any land his tenant is free to purchase the tend of which he is a tenant and in case he is a tenant of the entire tend, the entire land, would be preposterous. When an application is made u/s 18 for purchase and there has been no reservation, the first thing that will have to be done by the Collector is to make a reservation for the landowner u/s 5-B. It is after the reservation has been made that the tenant will be entitled to purchase the land which has been declared surplus out of which he is the tenant provided he satisfies the remaining requirements of Section 18. We see no escape from this conclusion.

However, the learned Single Judge was in error in dismissing the applications of the tenant u/s 18. The applications should have been kept in abeyance and could only be dismissed after the permissible area of the landowner is determined u/s 5-B.

For the reasons recorded above, we affirm the decision of the learned Single Judge and dismiss the appeal with this modification that the tenant''s applications u/s 18 will remain pending and would be decided after the Collector has determined the surplus area u/s 5-B. There will be no order as to costs.