Mahant Sewa Dass Chela Mahant Rattan Dass vs State of Punjab

G.C. Garg, J.

Challenge in this petition is to the orders passed by the authorities under the Punjab Land Reforms Act, 1972 (hereinafter called the Reforms Act), seeking to take Possession of land declared surplus under the Punjab Security of Land Tenures Act, 1953 (for short the Punjab Act).

Petitioner, Mahant Sewa Dass Chela Mahant Rattan Dass alleges that Dharamshala Bhai Sadhu an Udasi institution, of religious, charitable and a public nature in village Rurka Kalan, tehsil Phillaur in district Jalandhar, established some three hundred years ago, continues to be in existence and he is its present Mahant. Earlier Mahant Rattan Dass was the Mahant of the Dera when proceedings for declaration of surplus area were taken. The lands owned by the Dera were mostly recorded in the revenue record in the name of the Mahant including some of his personal property. The Collector vide order dated March 28, 1972 decided the surplus area case of Mahant Rattan Dass and an area measuring 93 standard acres and 14 units situated in various villages, was declared surplus. Learned Commissioner accepted the appeal only to the extent that an area of 40 Kanals, 6 Marlas, as against 56 Kanals, 17 marlas claimed by the landowner, being under an orchard was excluded from the surplus area. A further appeal was filed before the learned Financial Commissioner. Mahant Rattan Dass died during the pendency of the appeal and the present petitioner was substituted in his place, being his Chela. The appeal was rejected by the learned Financial Commissioner by order dated March 5, 1987, Annexure P3, with the observation that plea regarding Section 14 of the Reforms Act be raised at the time when an order to utilise the land is passed or sought to be passed under the Reforms Act and that this plea cannot be taken to attack the order passed under the Punjab Act. All other contentions were rejected on merits. Writ Petition challenging the order, Annexure P3, passed by the learned Financial Commissioner was dismissed in limine on June 3, 1987.

It is further alleged that the whole land in question always belonged to the Dera and not to the Mehant in his individual capacity. Notice dated July 3, 1987 was issued to file a return in Form ''A'' prescribed under the Rules. Reply was filed with an application alleging that the land is owned by a religious and charitable institution of a public nature and the same is being managed by the present Mahant and is thus exempt from the provisions of the Reforms Act, 1972. Various documents in support of this plea were also filed. Collector Agrarian, Phillaur, vide his order dated December 13, 1987, Annexure P8, after noticing the objection raised, rejected the application and the contention raised by observing that all the points raised have already been decided by the learned Financial Commissioner. Learned Commissioner dismissed the appeal by his order, Annexure P10, by observing that the order of the Financial Commissioner, Annexure P3, has attained a finality. The learned Financial Commissioner dismissed the revision petition on April 1, 1991 (Order Annexure P12) by observing

"The second plea taken by the counsel for the petitioner is that the institution is religious one and under the Land Reforms Act exemption should have been granted. As the case has already been decided under the Punjab Security of Land Tenures Act, 1953, under which no exemption was provided to the religious and charitable institution and it has not been proved on record that the institution is religious and charitable one, so the plea for granting exemption, is not tenable and has no force." Orders, Annexures P8, P10 and P12 have been impugned in this petition under Articles 226 and 227 of the Constitution of India.

It will be apposite to notice that Sections 4 to 14 of the Reforms Act are contained in Chapter II. Sections 4 to 7 deal with the permissible area, manner of selection and the determination thereof. Section 8 deals with the vesting of unutilised surplus area in the State Government. Section 9 deals with the power to take possession of surplus area and Section 14 deals with exemption of lands belonging to religious or charitable institutions. In the context of the contention raised it is proper to notice the provision of Sections 8, 9 and 14 at this stage :

"8. Vesting of unutilised surplus area in the State Government. Notwithstanding anything contained in any law, custom or usage for the time being in force, but subject to the provisions of Section 15, the surplus area, declared as such under the Punjab Law or the Pepsu Law, which has not been utilized till the commencement of this Act and the surplus area declared as such under this Act shall, on the date on which possession thereof is taken by or on behalf of the State Government, vest in the State Government free from all encumbrances and in the case of surplus area of a tenant which is included within the permissible area of the landowner, the right and interest of the tenant in such area shall stand terminated on the aforesaid date :

Provided that where any land failing within the surplus area is mortgaged with possession only the mortgagee rights shall vest in the State Government.

Power to take possession of surplus area. (1) The Collector may, by an order in writing, after an area has become surplus under the Punjab Law or the Pepsu Law or become surplus under this Act, direct the landowner or tenant or any other person in possession of such area to deliver possession thereof, within ten days of the service of the order on him, to such person as may be specified in the order.

(2) If the landowner or tenant or any other person in possession of such area refuses or fails without reasonable cause to comply with the order made under subsection (1), the Collector may take possession of that area and may, for that purpose. use such force as may be necessary.

Exemption of lands belonging to religious or charitable institutions Notwithstanding any judgment decree or order of any Court or authority, the provisions of this Chapter shall not apply to lands belonging to any religious or charitable institution of a public nature in existence immediately before the date of commencement of this Act, but not belonging to the mahant, mohtamim or manager thereof :

Provided that the exemption specified herein shall be admissible till such time only as the land or income therefrom is utilised for the specified purpose of such institution and shall not be admissible to the lessees of such lands.

Explanation. For the purpose of this section religious or charitable institution means

(i) a temple;

(ii) a gurdwara;

(iii) a gaushala;

(iv) a wakf as defined in clause (ii) of Section 3 of the Wakf Act, 1954 (Parliament Act 29 of 1954); or

(v) any other religious place of public nature.

The sole contention raised by the learned counsel for the petitioner is whether the authorities under for Reforms Act are justified in taking possession of the land declared surplus under the Punjab Act in the presence of Section 14 which prohibits the applicability of Chapter II of the Reforms Act to lands belonging to the religious and charitable institutions. According to the learned counsel, the land in question belongs to a Dera of Udasi Sect and, therefore, possession of the land belonging to this institution cannot be taken by having recourse to Sections 8 and 9 of the Reforms Act in the absence of a finding by the authorities that provisions of Section 14 are not attracted.

There was no provision in the Punjab Act granting exemption to lands belonging to the religious or charitable institutions. Section 14 is now on the statute book providing for exemption to lands belonging to religious or charitable institutions from the provisions of Chapter II of the Reforms Act. Chapter II comprises of Sections 4 to 14. Section 14 in turn provides that the provisions of Chapter II shall not apply to lands belonging to any religious or charitable institution of a public nature in existence immediately before the date of commencement of the Reforms Act notwithstanding any judgment, decree or order of any Court or authority. The land declared surplus under the Punjab Act in this case would have vested in the State Government in terms of Sections 4 to 13 irrespective of the fact that the land belonged to an institution of religious or charitable nature. Section 14 exempts lands belonging to a religious and charitable institution of a public nature in existence immediately before the commencement of the Reforms Act till such time the income thereform is utilised for specified purposes of the institution from the provisions of Chapter II and this exemption is not admissible to land belonging to a Mahant, Mohtmim or Manager thereof or even lessees of such land. In order to avail exemption it has to be proved as a fact that the land belongs to a religious or charitable institution and not to its Mahant, Mohtmim or Manager; it is of a public nature was in existence immediately before the commencement of the Reforms Act, income thereof is utilised for specified purposes of such institution. If all or any of these factors is missing, the provisions of Section 14 would not apply. It is also a condition in Section 14 that exemption will be admissible till such time only the land or the income thereof is utilised for specified purposes. If it has to be proved as a fact before exemption can be granted, authorities under the Act are required to go into this matter and record a finding thereon before granting or refusing to grant relief. In the presence of a provision of this nature, an enquiry is not shut out only on the ground that the order declaring the land as surplus has attained finality under the Punjab Act. This section begins with nonobstante clause, namely :

"Notwithstanding any judgment, decree or order of any Court .... ". The authorities thus cannot take advantage of the fact that land has already been declared surplus under the Punjab Act and the matter cannot be enquired into afresh.

Adverting to the facts of this case Mr. Sibal learned counsel contends that Section 14 was pressed into service to contend that surplus area cannot be utilised under the Reforms Act and the learned Financial Commissioner in his order dated March 5, 1987, Annexure P3, refused to go into this contention by observing :

"The occasion to take these pleas can arise only when the order to utilise the land is passed or sought to be passed on the Punjab Land Reforms Act."

Learned counsel submits that while filing return in Form ''A'' under the Reforms Act, such a plea was raised but the same has been rejected by the Authorities vide orders, Annexures P8, P10 and P12 without going into the merits thereof, only by observing that all the points raised have already been decided by the learned Financial Commissioner. The application was consequently dismissed. According to the learned counsel, a duty was cast on the authorities to go into the merits of the plea raised in terms of Section 14 while disposing of the matter covered by Chapter II of the Reforms Act and could not feel content by observing that the surplus area case has already been finally decided by the Financial Commissioner under the Punjab Act. The present controversy could only be decided under the Reforms Act and not under the Punjab Act as had rightly been observed by the learned Financial Commissioner in its order dated March 5, 1987. It is disputed that the land declared surplus under the Punjab Act and not been utilised till the enforcement of the Reforms Act and has also not vested in that State Government as possession thereof has not been taken till today in terms of Sections 8 and 9.

In Ranjit Ram v. The Financial Commissioner, Revenue, Punjab and others, 1981 PLJ 262, the question posed before the Full Bench was in the following terms

"Whether a landowner, whose land has been declared surplus under the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Punjab Law) or under the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as the Pepsu Law) and who has not yet been divested of the ownership of the surplus area before the enforcement of the Punjab Land Reforms Act, 1972 (hereinafter referred to as the Reforms Act) is entitled to select the permissible area for his family and for each of his adult sons in view of the provisions of Section 4 read with Section 5(1) of the Reforms Act ? " In the case before the Full Bench, the area had been finally declared surplus under the Punjab Act, as in this case. In the context of the question reproduced above, it was observed in para 7 of the majority judgment as under :

"If the Legislature intended to exclude the land which has already been declared surplus from the operation of the provisions of the Reforms Act, a clear provision would have been made to that effect in section 5(1) of the Reforms Act, but on the contrary I find that the landowner has been entitled to select separate permissible area in respect of his adult son out of the land owned or held by him. As already observed, till the landowner is divested of the rights of ownership, he continues to hold and own the land."

In para 9 of the judgment it was again observed as under :

"It is no doubt true that under the provisions of section 8, the area which has been declared surplus under the Punjab Law or the Pepsu Law, can also vest in the State Government, but this section cannot be interpreted to mean that the area of a landowner declared surplus, whose case falls within the purview of sections 4 and 5 of the Reforms Act, can be taken possession of under section 8 of the Reforms Act. There may be cases where the surplus area has been declared under the Punjab Law or the Pepsu Law, but such cases do not fall within the purview of sections 4 and 5 of the Reforms Act. In these cases, the area so declared surplus becomes final and the State Government under the provisions of section 8 of the Reforms Act is entitled to take possession of the same so as to divest the owner of the ownership of the land so declared surplus. Thus the provisions of section 8 of the Reforms Act would be fully compiled with when possession in such cases is taken by the State. Section 8 of the Reforms Act cannot be interpreted in seclusion. The said provision is subject to the provisions of sections 4 and 5 read with section 7 of the Reforms Act. The Legislature clearly intended that landowners, who own land more than the permissible area as defined in the Reforms Act, their cases had to be processed again on the touchstone of the provisions of Sections 4 and 5 of the Reforms Act. This conclusion of ours is further reinforced when I find that in view of the provisions of Section 28(2) of the Reforms Act, all pending cases at the time of enforcement of the Reforms Act have to be processed in accordance with the provisions of the Punjab Law or Pepsu Law, as the case may be. The cases of the landowners who owned land more than the permissible area either under the Punjab Law or under the Pepsu Law, could be only of two categories firstly, the cases which already stand concluded before the enforcement of the Reforms Act, and secondly, the cases which were yet pending at the commencement of the Reforms Act. The Legislature clearly provided that all such pending cases shall be processed as if the Land Reforms Act had not been passed, but the area so declared surplus shall vest in State Government in accordance with the provisions of the Reforms Act. Cases can be visualised where landowners might have been given permissible area, which area may happen to be more than the permissible area under the Reforms Act. In such cases, after the pending proceedings are disposed of in accordance with the provisions of the previous Acts the Legislature intended that the same maybe reprocessed in accordance with the provisions of sections 4 and 5 of the Reforms Act. Thus, the scheme of the Act appears to be clear that all cases shall first be processed in accordance with the provisions of the Punjab Law or the Pepsu Law, as the case may be, and if out of those cases, any case satisfies the ingredients of sections 4 and 5 of the Reforms Act, the same shall have to be reprocessed. It would thus be seen that finality in all cases where the area had been declared surplus, has not been given by the Legislature and some cases which fall within the purview of sections 4 and 5 of the Reforms Act shall have to be reprocessed even if the area had already been declared surplus under the Punjab Law or the Pepsu Law."

The question posed and reproduced above was finally answered by the Full Bench in the following words :

"That a landowner whose land has been declared surplus under the Punjab Security of Land Tenures Act, 1953, or under the Pepsu Tenancy and Agricultural Lands Act, 1955, who has not been divested of the ownership of the surplus area before the (enforcement of the) Punjab Land Reforms Act 1972 is entitled to select the permissible area for his family and for each of his adult sons in view of the provisions of section 4 read with section 5(1) of the Punjab Land Reforms Act."

In Jagjit Singh and others v. State of Punjab and another, 1983 PLJ 319, it was held that where surplus area had been declared under the 1953 Act and the owner had not been divested of ownership of the surplus area before the commencement of the Punjab Land Reforms Act, he is entitled to select permissible area for his family for each of his adult sons in view of provisions of Section 4 read with Section 5(1) of the new Act.

Learned counsel for respondents made reference to Lakshmanasami Gounder v. C.I.T. Selvamani and others, JT 1992(2) S.C. 298 and Sher Singh and others v. Financial Commissioner, Planning, Punjab and others, AIR 1987 S.C. 1307 : 1987 RRR 164 : 1987 R.R.R. 368, but these judgments have no application whatsoever to the facts of the present case.

Learned counsel for respondents also contended that no exemption is provided to the religious or charitable institutions under the Punjab Act and the surplus area had been determined thereunder. It is not now open to the petitioner to contend that the area declared surplus could not be utilised especially when all the submissions had earlier been raised and rejected. It was also contended that provisions of Section 14 of the Reforms Act are not applicable to this case. The submissions are without merit.

Plea of Section 14 was raised, but it was not adjudicated upon. It was rather observed by the Financial Commissioner in his order dated March 5, 1987 that his plea can arise only when an order to utilise the land is passed or sought to be passed under the Reforms Act. The applicability of Section 14 has not been gone into in proceedings under the Reforms Act as well. Section 14 will not apply if any of the conditions noticed therein are not satisfied. In order to attract Section 14 it has to be proved that (i) land belongs to a religious or charitable institution and not to the Mahant, Mohtmim or Manager, (ii) the institution to Court is of a public nature, (iii) has been in existena immediately before the commencement of the impugned order even now holding the court Reforms Act, and (iv) the land or the income thereof Review petition cannot be presented to another is utilised for the purposes of institution. An authority has thus to find as a fact that all or any of the above conditions are not satisfied in order to say that Section 14 is not attracted to the facts of this case. This as already noticed, has not been done.

If the provisions of Section 14 of the Reforms Act were intended not to apply to the surplus area determined and finalised under the Punjab Act and this provision was only intended for the purpose of declaration of permissible area as contemplated by Sections 4, 5 and 6 of this Act. A said provision could not have been placed in Chapter II of the Act, the separate provision beyond Chapter II of the Act would have been made. This section again would not have started with a non obstante clause. This leads me to a conclusion that Section 14 which is a part of Chapter II of the Reforms Act applies to a case of the present nature, and if the petitioner is able to establish the conditions imposed by the said section he is entitled to the relief but if otherwise all or any of the conditions are not satisfied, the order declaring the surplus area of the petitioner''s land under the Punjab Act would stand and the authorities would be well justified in seeking possession thereof in terms of Sections 8 and 9 of the Reforms Act.

In the light of the factual and legal position noticed above, orders dated 30.12.1987, 13.9.1988 and 1.4.1991, Annexures P8, P10 and P12 respectively deserve to be set aside, which I hereby do. The writ petition is consequently allowed and the case is remanded to the Collector Agrarian, Phillaur, to decide the only matter relating to the applicability of Section 14 of the Reforms Act, afresh in accordance with law. The parties through their counsel have been directed to a appear before the Collector Agrarian on July 30, 1992 for further proceedings and the Collector shall dispose of the matter as expeditiously as possible preferably within six months.

In the circumstances, there will be no order as to costs.