S. Balwant Singh Chopra and Others vs Union of India and Others

Sandhawalia, J.—For the limited purpose of this referring order, the facts are in a narrow compass. Four connected Civil Writ Petitions Nos. 2775, 693, 1284 and 1285 of 1966 came for decision before Tuli, J. As common questions of law arose, these were disposed of by a Single Judgment against which the present four Letters Patent Appeals are directed.

The first question of law considered was whether after the reorganisation of the State of Punjab, the landowner owning the land in the States of Punjab and Haryana could claim that they should be allowed the permissible area in both the States separately and the order declaring the area surplus prior to 1st November, 1966, which has not been utilised so far should be deemed to have no effect. The second question agitated in Civil Writ No. 2775 of 1966 was whether under Rule 6 of the Punjab Security of Land Tenures Rules, 1956, the transferees of the land are entitled to a notice and hearing in proceedings for determination of the surplus area. The learned Single Judge held that the petitioners were not entitled to claim their permissible area in each of the two States of Punjab and Haryana as they now exist. regarding the second point it was held that the transferees were not entitled to any hearing and notice.

On behalf of the appellants, as regards the second contention regarding the right of the transferees to notice and a hearing primary reliance is placed on sub-clauses (3),(5) and (6) of Rule 6 of the Rules. These are in the following terms :--

"6(3) The circle revenue officer shall, after holding such enquiry as he thinks fit and after giving the persons concerned, an opportunity of being heard, forward his report to the Collector.

(5) In the case of a landowner or tenant who has furnished his Forms to the Special Collector under Rules 3 and 4, the Special Collector shall after giving the landlord or tenant an opportunity of being heard and after such enquiry as he thinks fit, assess his surplus area. In doing so he shall hear any objections made by the landowner or tenant, and in a written order decide such objections. In case no objections are made, or the person affected does not appear, the fact shall be stated in the order.

(6) In the case of a landowner or tenant who has furnished his Forms to the Collector under Rules 3 and 4, the Collector shall, after giving the landlord or tenant an opportunity of being heard and after such enquiry as he thinks fit, assess his surplus area. In doing so he shall hear any objections made by the landowner or tenant, and in a written order decide such objections. In case no objections are made, or the person affected does not appear, the fact shall be stated in the order."

Relying on the above-said provisions, it is first contended on the basis of authority that as many as four earlier decisions of this Court holding that the transferees were entitled to a notice and a hearing were not brought to the notice of the learned Single Judge and were, therefore, not considered by him in arriving at a decision on this point. Reference in this context is made to Ghamandi Lal v. The State of Punjab 1965 P LJ 24 and Indraj Singh v. State of Punjab 1965 P LJ 66 wherein Shamsher Bahadur, J., in construing Rule 6 above-said held that notice to the transferees was necessary. Two decisions of Narula, J., being Smt. Pari v. State of Punjab 1966 L LT 176 and Bhool Chand v. State of Punjab 1966 L LT 31 have similarly held in the clearest terms that the transferees of land are entitled to a notice and hearing in Rule 6 of the Rules. In Smt. Pari''s case, Narula, J., interpreted Rule 6 in conjunction with the Form ''D'' prepared thereunder and categorically observed as follows :--

"This rule further requires that in doing so, he is bound to hear the landowner or the tenant and has to decide those objections by a written order. A further safeguard is provided in the rule to the effect that even in a case where no objections are made or the person affected does not appear, this fact has to be stated in writing in the order. In view of the contents of Form D referred to above, it was necessary that a notice should have been issued to the tenants as well as to the transferees as it cannot be said that they were not persons interested in the matter."

In Bhool Chand''s case in fact it was noticed that the law on this point seemed to be settled and there was no pronouncement whatsoever at variance with the law laid down in the earlier three decisions referred to.

In repelling an argument that the transferees were entitled to notice, the learned Single Judge did not advert to the above-said authorities, which as already stated, were not brought to his notice. Reliance was, however, placed by him on Pritam Singh and Others Vs. State of Punjab and Others, for holding that the transferees were not entitled to any notice. It deserves mention that as noticed by the learned Single Judge, the above said decision related to another statute, namely, the Pepsu Tenancy and Agricultural Lands Act 13 of 1955 and the Full Bench was considering the provisions of S. 32-FF which cannot be said to be in pari materia with the provisions which fall for construction in the present case. What, however, deserves notice is that in Bhool Chand''s case, 1969 LLT 31 Narula, J., had expressly referred to this decision and distinguished the same in the following terms :--

"It has been pointed out that the Full Bench judgment of this Court in Pritam Singh and Others Vs. State of Punjab and Others, relates to the Pepsu Tenancy and Agricultural Lands Act (13 of 1955) and not the Punjab Act, and that the distinction in the two Acts in this respect is apparent from the discussion of the relevant provisions of the Pepsu Act in paragraph 14 of the Full Bench Judgment in Pritam Singh''s case. The main difference between the two Acts is that whereas the landowner is divested of his surplus area under the Pepsu Act, he remains the owner under the Punjab Act and merely his right to cultivate the said land himself or to settle his own tenants thereupon is taken away from the landowner."

Apart from the case law, learned counsel also based himself on the provisions of the statute, namely the definition of the ''landowner''s S.2(1) of the Punjab Security of Land Tenures Act. It was contended with plausibility that the word "landowner" as used in the Rules and Section 10-A of the Act has reference to the person in whom the legal title of the land vests at the time when the proceedings for the declaration of surplus area are initiated. It is hence contended that a transferee of the land, who is the owner at the time of the commencement of the proceedings, is in fact the "landowner" concerned, and under that head also he is directly entitled by R. 6 to a hearing an a notice. It was argued with vehemence that "landowner" in the context could not mean the landowner prior to the 15th of April, 1953, who had diverted himself and at the relevant time may have no concern whatsoever with the land and in the proceedings for the declaration of the surplus area.

The learned counsel for the appellant had also based himself on the language of Rule 6 where the words used are ''person concerned'' or ''person affected''. It was contended with force that it could not possibly be said that a person whom at the relevant time the legal right of ownership and possession vests is a person either unconcerned or unaffected in the declaration of his land as surplus. Even accepting the fact that the transfers after 1953 are to be ignored it was argued that this fact per se cannot rob the transferee landowner of his cherished right of at least having an opportunity to be heard before he is expropriated by declaring his land as surplus under the Act.

Mr. J. N. Kaushal the learned Advocate-General for the State of Haryana strenuously controverted the contention raised on behalf of the appellant first on principle. No authority other than Pritam Singh and Others Vs. State of Punjab and Others, noticed above, however, was relied upon on behalf of the respondents. Though the matter was agitated keenly on both the sides, the learned counsel did not bring to our notice in the course of the argument an authoritative pronouncement by the Division Bench directly on the point in issue. In Hardev Singh v. State of Punjab ILR (1970)1 P&H 411 an identical point was considered by S. B. Capoor and R. S. Narula, JJ. narula, J., who wrote the judgment of the Division Bench, with which S. B. Capoor, J. concurred, after exhaustively dealing with the point on principle, referred to a string of authorities of this Court upholding the view that the transferees of land were persons interested who were entitled to notice under R. 6. The learned Judge reiterated hie earlier view in Bhool Chand''s case, 1969 Lah LT 31 and further pointed out a number of factors which would distinguish Pritam Singh and Others Vs. State of Punjab and Others, which relates to Pepsu Tenancy and Agricultural Lands Act. In this context, it was also observed as follows :--

"So far as the Punjab Act is concerned, no judgment of this Court, and not even a decision of any Financial Commissioner has been cited to us wherein a view contrary to that canvassed by Mr. Gujral before us might have been taken. Even otherwise the requirement of service of notice on all persons interested under sub-rule (3) of Rule 6 of the 1956 Rules appears to us to be based on principles of natural justice requiring an opportunity being afforded to any person who is likely to be prejudicially affected by an order which might be passed in the relevant proceedings. The want of such a notice cannot be dispensed with or ignored on the mere ground that particular transferees or tenants who may otherwise be deemed to be the persons interested in the proceedings have really no good defence to the proposed order." The above decision is binding on us and is in consonance with the consistent view held in this Court on the point. Even otherwise, I am wholly in agreement with the reasoning and ratio of the above decision. The L. P. A. No. 541 of 1968 is hence entitled to succeed on this point alone. However, on behalf of the appellant in this case, a larger right is also claimed on the second point and it is necessary to advert to the same and also that point is common to all the Letters Patent Appeals before us.

The second question is patently of far reaching significance. It is argued that after the re-organisation of the undivided State of Punjab into the present States of Punjab and Haryana, the landowners in each State are entitled to retain the permissible area under the statute in both the States separately. This, it is contended, is the inevitable effect of the creation of two separate States and the mere fact that the law applicable to them for the time being is the same, namely, the Punjab Security of Land Tenures Act, would not affect their rights to hold the permissible area separately in each State. Learned counsel for the appellants placed reliance on A. S. S. Karanath v. Asstt. Commercial Tax Officer, Puttur S. Kanara AIR 1960 Mys. 275 and Mansa Roadways (P) Ltd. v. State of Haryana ILR (1968) P& H 772. The cases cited on the point before the learned Single Judge were also relied upon. In this context, support was also sought from Munshi Singh v. Sub-Divisional Magistrate, Rewari 1964 P LR 85 and other authorities in which it had been held that where the permissible area of a landowner is reduced due to consolidation but the surplus area declared earlier had not yet been utilised, he would be entitled to have an opportunity to be heard before making the selection and to retain his permissible area even out of the unutilised land upto that stage.

We are of the opinion that this point is of importance on principle and also likely to affect a large number of cases. In these circumstances, we would formulate the following question for determination by a larger Bench :--

"Whether after the re-organisation of the State of Punjab the landowners owning land in both the States of Punjab and Haryana can claim to retain the permissible area in each State separately after 1st November, 1966. If so, whether an order declaring the area to be surplus passed prior to the date above said but which order has not been implemented and the surplus land so declared has not in fact been utilised would continue to have effect after the said date ?"

Let the matter be placed before my Lord the Chief Justice for constituting the larger Bench.

D.K. Mahajan, J.

I agree.

JUDGMENT OF THE FULL BENCH

P.C. Pandit, J.

The following question of law has been referred to us for opinion-

"Whether after the re-organisation of the State of Punjab the landowners owning land in both the States of Punjab and Haryana can claim to retain the permissible area in each State separately after 1st November, 1966. If so, whether an order declaring the area to be surplus passed prior to the date above said, but which order has not been implemented and the surplus land so declared has not in fact been utilised would continue to have effect after the said date ?"

It has arisen in the following circumstances--Balwant Singh was a displaced person from West Pakistan. He was allotted about 37 standard acres of land in village Dhab Kharilal, District Ferozepore, about six standard acres in village Mohamad Pera, District Ferozepore and about 31 Standard acres in village Samani Distrct Karnal in lieu of the land left by him in Pakistan. According to him, he had sold the entire land in village Mohamad Pera to certain persons and transferred the whole of the land in village Dhab Kharial in favour of his wife Bimla Rani and his son Ranbir Singh (minor) in 1957.

On 8th November, 1960, the Special Collector, Punjab declared about 29 standard acres of Balwant Singh as surplus area, after ignoring the above mentioned two transfers made by him. Balwant Singh had selected the entire land allotted to him in village Samani as his permissible area and did not reserve any area out of the land in the other two villages, presumably on the ground that he had already transferred those lands. The Special Collector reserved for him about 18 standard acres out of his holding in village Dhab Kharilal in order to make up his permissible area of 50 standard acres. The order of the Special Collector was confirmed by the Commissioner, Jullundur Division on 5th January, 1965, the appeal before him having been held to be barred by limitation. Subsequently, the Financial Commissioner, Planning, Punjab also dismissed the revision petition against the order of the Commissioner, Jullunder Division on 19th February, 1965.

On 1st November, 1966 the Punjab Re-organisation Act, 1966 (hereinafter referred to the Re-organisation Act) came into force and the territories comprising the State of Punjab were transferred to the present State of Punjab, State of Haryana, Union Territory of Chandigarh and Union Territory of Himachal Pradesh. In December, 1966, Balwant Singh, his wife Bimla Rani and his son Rabir Singh (minor) filed a writ petition (Civil Writ No. 2775 of 1966) under Arts. 226 and 227 of the Constitution of India in this Court against the Union of India, the State of Punjab, and the State of Haryana for issuing necessary directions to the two States for restraining them from utilising the surplus area declared by the Special Collector on 8th November, 1960. The writ petition came up for hearing before B. R. Tuli, J.

Two points were urged before the learned Judge by the petitioners. The first was that after the re-organisation of the State of Punjab and Haryana could claim that they should be allowed the permissible area as surplus prior to 1st November, 1966, but which area had not been utilised so far, should be deemed to have no effect. The second was that no notice of the proceedings was given to the transferees of the land, namely, Bimla Rani and Ranbir Singh. The learned Judge repelled both these contentions and dismissed the writ petition with costs.

The petitions then filed a Letters Patent Appeal No. 541 of 1968 and the same came up for hearing before D. K. Mahajan and S. S. Sandhawalia, JJ. The learned Judges were of the view that the second contention raised before the learned Single Judge had merit and the Letters Patent Appeal was liable to succeed on that ground alone. But since the appellants were claiming a larger right on the basis of their first contention, they thought that the same should be referred to a larger Bench, because it was likely to affect a number of cases. It was in view of these facts that the Letters Patent Bench formulated the above mentioned question of law and referred it for determination by a larger Bench. That is how the matter has been placed before us.

It may be stated that along with the case of Balwant Singh v. Union of India (Civil Writ No. 2775 of 1966), three other Civil Writ Nos. 693,1284 and 1285 of 1966 were also disposed of by the same judgment by B. R. Tuli, J., as according to the learned Judge a common question of law had arisen in all of them. In these cases, however, the second point, namely, the non giving of notice of the proceedings for declaring the land surplus did not arise for consideration. After the dismissal of those writ petitions, the petitioners also filed Letters Patent Appeals Nos. 566,594 and 595 and they also came up for hearing along with Letters Patent Appeal No. 541 of 1968 (Balwant Singh and others) before D. K. Mahajan and S. S. Sandhawalia, JJ. This decision will cover those appeals as well.

I propose to take up the second part of the question of law referred to us, in the first instance, because in my view, if that is decided against the appellants. it may not be necessary to give any opinion on the first part of the question.

The Punjab Security of Land Tenure Act, 1953 (hereinafter called the Act) came into force on 15th April, 1953. the expressions "Small landowner", "Permissible area", "Reserved area" and "Surplus area" have been defined in sub-sections (2),(3),(4) and (5-a) of S. 2 of the Act as under :--

(2) "Small landowner" means a landowner whose entire land in the State of Punjab does not exceed the "permissible area".

Explanation--In computing the area held by any particular landowner, the entire land owned by him in the State of Punjabis entered in the record-of-rights, shall be taken into account, and if he is joint owner only his share shall be taken into account.

(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 land less 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.

Explanation--For the purposes of determining the permissible area of a displaced person, the provisions of proviso (ii) shall not apply to the heirs and successors of the displaced persons to whom land is allotted.

(4) "Reserved area" means the area lawfully reserved, under the Punjab Tenants (Security of Tenures) Act, 1950(Act 22 of 1950),as amended by President''s Act of 1951, hereinafter referred to as the "1950 Act or under this Act."

(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 the surplus area under sub-section (1) of S. 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;

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."

It is undisputed that surplus area has to be determined after taking into consideration the entire holding of a person on the date of the commencement of the Act i.e., 15th April, 1953. It was so held by the Supreme Court in Bhagwan Das Vs. The State of Punjab, , where it was observed that the entire land held by the landowner in the State of Punjab on the date of commencement of the Act must be evaluated as on that date and the status of the landowner and his surplus area, if any, must be then ascertained. This is also clear from the provisions of Sections 9(1)(i) and 10-A(b) of the Act. A similar view was taken by a Bench of this Court in Hans Raj v. Financial Commissioner, Development, Punjab, 1968 Lah LT 30.

In Letters Patent Appeal No. 541 of 1968 (Balwant Singh and others v. Union of India and others) on 15th April, 1953, the total holding of balwant Singh was admittedly more than his permissible area, namely, 50 standard acres. The rest was liable to be declared as surplus and it had actually been declared as such by the Special Collector on 8th November, 1960, and that order of the said Officer was confirmed on appeal and then on revision by the Commissioner and the Financial Commissioner on 5th January, 1965, and 19th February, 1965, respectively. These were the two authorities mentioned in the Act, before whom the landowner could go up in appeal and revision against the declaration of surplus area by the Special Collector. It means that the order declaring the surplus area had become final under the Act, when the Re-organisation Act came into force. Under that Act, a part of the holding of Balwant Singh fell in the territory of State of Haryana and the remaining in the present State of Punjab. He, therefore, took up the position that after the re-organisation of the States, he was entitled to retain his permissible area separately in both the States of Punjab and Haryana. In other words, he said that he could have 50 standard acres in each of the two States and, consequently, the order passed by the Special Collector on 8th November, 1960, declaring some of his holding as surplus area had no effect, when that order had not been implemented and the said land had not been utilised. He, therefore, along with his wife and son filed a writ petition in this Court saying that both the States may be restrained from utilising the surplus area declared by the Special Collector.

It is common ground that in all the four cases the order declaring the surplus area had become final before the Re-organisation Act came into force.

The question for decision is whether an order, declaring the area of the petitioners to be surplus, which had become final under the Act before the re-organisation of the State of Punjab, would continue to have effect after 1st of November, 1966 (the date of enforcement of the Reorganisation Act), when that order had not been given effect to and the surplus area had not been utilised by the Government.

It has already been stated that the entire holding of a person on 15th April, 1953 has to be taken into consideration for determining his surplus area. If on that date a displaced person owns more than 50 standard acres, the liability is attached to the area of above that limit to be declared surplus. Simultaneously, the Government acquires the right to utilise the surplus area of that person for the resettlement of tenants ejected or to be ejected under Cl.(i) of sub-sec(1) of S. 9 of the Act. This is clear from the provisions of S. 10-A(a) of the Act which say--

"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 resettlement of tenants ejected, or to be ejected, under Cl.(i) of sub-section (1) of S. 9.

(b) X X X X

(c) X X X X"

Clause (i) of S. 9 (1) of the Act is as follows :--

"9. (1) Notwithstanding anything contained in any other law for the time being in force, no landowner shall be competent to eject a tenant except when such tenant--

(i) is a tenant on the area reserved under this Act or is a tenant of a small landowner; or

X X X X X

X X X X X"

It means that along with the liability of the land to be declared surplus, a corresponding right accrues to the Government to utilise the said surplus area for the resettlement of tenants. The result is that when the order declaring the surplus area becomes final under the Act, the Government gets an indefeasible right to resettle the tenants thereon. But it is noteworthy that no time limit has been given in the Act, during which the Government had to utilise the land for that purpose. It has also not been further provided in the Act that if the utilisation is not made by the Government within a specified period, the landowners can claim that the land has ceased to be surplus and should be restored to them. In the Act, there are, however, two exceptions given in Section 10-A(b) which reads thus--

"10-A (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 an heir by inheritance no transfer or other disposition of land which is comprised in surplus area at the commencement of this Act, shall affect the utilisation thereof in Cl.(a).

X X X X

X X X X"

According to this Section, the two exceptions are only two cases, firstly when the land is acquired by the Government and secondly, when it goes to heir by inheritance. So far as the second exception is concerned, it has further been provided in Section 10-B of the Act that where succession had opened after the surplus area or any part thereof had been utilised under Cl.(a) of Section 10-A, the saving specified in favour of an heir by inheritance under Cl.(b) of that section would not apply in respect of the area so utilised. Under the Act, therefore, these are the only two exceptions. It was so held by a Bench of this Court in Karam Singh v. State of Punjab 1968 P LJ 190 where it was observed :

"The only two classes of land that are exempted from the operation of the,mischief of Cl.(b) of S. 10-A are :--

(i) land acquired by the State Government under any law for the time being in force, and

(ii) land acquired by an heir by inheritance, out of the land compromised in the surplus area at the commencement of the Act."

In view of what has been said above, it is clear that if the surplus area had not been utilised by the Government, that fact did not affect its right to the said area and the same could not be utilised by it for the resettlement of the tenants. The right to resettle the tenants on the surplus area was subject only to two exceptions mentioned in the Act and referred to above, and the said exceptions could not be increased. It has not been shown as to how the non-utilization of the surplus area by the Government in any way clothes the landowner with any more rights. The resettlement of the tenants is the duty of the Government and if due to one reason or the other the said duty had not been performed, that circumstance did not, under the Act, afford a ground to the landowner to say that the declared surplus area ceased to be so and came back to him, especially when no time limit was fixed in the Act for doing so. As under the ordinary law, if no limitation had been fixed for the execution of a decree, it could not be held that on account of its non-execution, it had ceased to exist. This was the position in law regarding the surplus area and its utilization, when the re-organisation of the State of Punjab took place. By virtue of Section 88 of the Re-organisation Act, reproduced below, the law which was applicable to the territories before 1st November, 1966 continued to apply in spite of the fact that those territories had been transferred to the various States mentioned in part II of the Re-organisation Act.

The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Punjab shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day."

In other words, if the Punjab Security of Land Tenure Act was applicable to the old State of Punjab, the same would continue to apply to all the territories comprised in the said State before 1st November, 1966 although those territories had been distributed amongst the various States by the Reorganisation Act with effect from 1st November, 1966. That means that if the order declaring the surplus area had become final under the Act before the reorganisation of the State of Punjab took place, the same would be given effect to and the surplus area utilised by the Government under the provisions of Punjab Security of Land Tenure Act after 1st November, 1966, since no change in law had been effected.

After the Reorganisation Act came into force, the Haryana Adaptation of Laws (State and concurrent Subjects) Order, 1968, (hereinafter called the Order) was made on 23rd October, 1968, by the Governor of Haryana in exercise of the powers conferred by S.89 of the Reorganisation Act and the same was published in the Haryana Government Gazette on 29th October, 1968. In the preamble of that Order, it was mentioned :--

"Whereas by Section 89 of the Punjab Re-organisation Act, 1966 (hereinafter referred to as "the Act"), the appropriate Government is empowered by order, to make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient for the purpose of facilitating the application of any law made before the 1st November, 1966, in relation to the State of Haryana so that every such law shall have effect subject to the adaptations and modifications so made;

Now, therefore, in exercise of the powers conferred by Section 89 of the Act and all other powers enabling him in that behalf, the Governor of Haryana hereby makes the following order, namely."

It was stated herein that the order would be deemed to have come into force on the 1st day of November, 1966, and the term ''appointed day'' occuring anywhere in the said Order meant ''1st day of November, 1966.'' The term ''existing State Law'' had been defined in Cl.2(b) of the Order as :--

"''existing State law'' means any law in force immediately before the appointed day in the whole or any part of the territories now comprised in the State of Haryana, but does not include any law relating to a matter enumerated in the Union List."

Clauses 10 and 11 of the Order read--

The provisions of this Order which adapt or modify any law so as to alter the manner in which, the authority by which, or the law under or in accordance with which any powers are excercisable shall not render invalid any notification, order, license, permission, award, commitment, attachment, bye-law, rule or regulation duly made or issued or anything duly done before the appointed day; and any such notification, order, license, permission, award, commitment, attachment, bye-law, rule, regulation or thing may be revoked, varied or undone in like manner, to the like extent and in the like circumstances as if it has been made, issued, or done after the commencement of this Order by the competent authority and under and in accordance with the provisions then applicable to such a case.

Nothing in this order shall affect the previous operation of or anything duly done or suffered under any existing State law or any right, privilege, obligation, or liability already acquired, accrued or incurred under any such law, or any penalty, forfeiture or punishment incurred in respect of any offence already committed against any such law."

A combined reading of these clauses would show that any order made or anything done or any liability incurred or right accrued before 1st November, 1966, would not be affected by the coming into force of the Order. Applying this principle to the instant case, it is clear that the order declaring the surplus area in the case of the petitioners, before 1st November, 1966, the liability attaching to the surplus land belonging to the petitioners and the corresponding right accruing to the State Government for utilising the said area for resettling the tenants thereon would not be affected, in any way, by the enforcement of the Haryana Adaptation of Laws (State and Concurrent Subjects) Order on 1st November, 1966. Consequently, the respective State Govts. would be entitled to give effect to the order declaring the surplus area by utilising the same for the resettlement of the tenants after the re-organisation of the State of Punjab. To put it differently, it would mean that the order declaring the surplus area would be enforced and the tenants settled thereon by the Government even after 1st November, 1966, as if no change in the law had taken place. The concerned Officers of the State of Punjab and Haryana will continue to act and comply with the orders already passed before 1st November, 1966. It is needless to mention that all the objections and the remedies that were available to the landowners under the provisions of the Act before 1st November, 1966 will remain intact and unchanged even after that date.

It was argued by the learned counsel that the mere fact that the area had been declared surplus before the reorganisation of the State of Punjab made no difference, because the appellants were still in possession of the area in question, the land having not been utilised by the Government for the resettlement of the tenants. Before the appellants could be dispossessed, so argued the counsel, they could take up the plea that after the re-organisation the land could not be taken from them, because they could then retain permissible area separately in the two States.

There is no substance in this submission. Admittedly, an order declaring the land of the appellants surplus had been finally made under the Act before the re-organisation of the State of Punjab took place with the result that rights accrued to the Government to resettle tenants thereon. Under the provisions of the Order, the said rights were not in any way affected by the non-utilisation of the surplus area by the Government. As I have already held above, under Cls. 10 and 11 of the Order, nothing in the said Order would affect the previous operation of anything done, liability incurred or rights accrued under any law in force immediately before 1st November, 1966. It is undisputed that the order declaring the surplus area was passed, liabilities were incurred and the rights in the Government had accrued under the old law. All these things would continue even after 1st November, 1966, as if no change under the old law had taken place. The result would be that the Government would be able to utilise the area declared surplus before 1st November, 1966, for the resettlement of the tenants even after that date.

In view of what I have said above, the answer to the second part of the question, in my opinion, therefore, is that an order, declaring the area to be surplus, passed before the 1st November, 1966 will continue to have effect after that date, even if that order had not been implemented and the surplus area so declared had not in fact been utilised by the Government.

Since in view of this answer, all the four Letters Patent Appeals, out of which the question of law, referred to us, has arisen, are liable to be dismissed, it is needless to give any opinion of the first part of the question.

It was, however, argued by the learned counsel for the appellants in Letters Patent Appeal No. 541 of 1968 (Balwant Singh v. Union of India and others) that the appeal was liable to succeed, because according to the observations of the Letters Patent Bench, no notice of the proceedings for declaring the land surplus was given to the transferees of the land, namely, Bimla Devi and Ranbir Singh (minor) appellants Nos. 2 and 3. The order declaring the surplus area would, so argued the learned counsel, be set aside and the case remanded to the authorities below to start the proceedings afresh in accordance with law. Counsel, therefore, contended that so far his clients were concerned, the first part of the question should also be answered because on remand the landowner was bound to raise the objection that after the re-organisation of the State of Punjab and coming into existence of the States of Punjab and Haryana, he was entitled to retain his permissible area in each State separately.

The entire argument of the learned counsel is based on so many assumptions. The fact remains that, at present, the said Letters Patent Appeal has not been accepted. If that happens then whatever order is passed by the Bench, it will be given effect to. In the event of the case being remanded, it all depends what precise objection the landowner or the transferees are going to take before the authorities below and what view the latter take regarding the same. The appellants would have their remedies under the Act and it is only after exhausting them that they will be able to come to this Court on the writ side. It is then that a decision will be given by this Court on whatever points are raised here. It is too much to speculate regarding all these matters at this stage. In my view, therefore, it is pointless to give our answer on the first part of the question.

All the four Letters Patent Appeals can now go back to the Division Bench for final decision.

There would be no order as to costs.

S. S. Sandhawalia, J.

I agree.

Mohan Singh Gujral, J.

I agree.

JUDGMENT OF THE FULL BENCH

(26-2-1971)

In view of the finding recorded in our referring order dated 21-5-1970, this appeal succeeds as no notice was issued to the transferee before passing the impugned order. The case will go back to the authorities to proceed in accordance with the law. The impugned order is quashed. No costs.

Appeal allowed.