Sube Singh vs The State of Haryana and others

Bal Raj Tuli, J.—Sube Singh petitioner is the son of Shri Debi Singh, a resident of village Bhali Anandpur, Tahsil and District Rohtak. Debi Singh was a big landowner holding 49 Standard Acres and 6 1/2 Units of land. On 1oth April, 1953, when the Punjab Security of Land Tenures Act 1953 hereinafter called the Act'', came into force, by order dated 16th April, 1960, Collector Rohtak, declared 19 Standard Acres and 6 1/2 Units of land of the petitioner as surplus. Killa numbers of that land are mentioned in the order, a copy of which is Annexure B'' to the writ petition. The petitioner made an application u/s 18 of the Act before the Assistant Collector 1st Grade, Rohtak, on 11th March. 1965, stating that he had been a tenant of 3 Standard Acres and 14 1/4 Units of land comprised in Killa Nos. 67/12, 68/5 and 77/3-6, which originally belonged to his father and had been declared surplus. In those proceedings, the Patwari appeared and he stated that Sube Singh had been an occupancy tenant under Debi Singh landowner since the year 1956-57 according to the entries in the khasra girdawari. The price of the land was assessed as Rs. 3236/- per acre. The petitioner was directed to pay Rs. 9465.30 as the price determined in accordance with various sub-sections of section 18 of the Act. This order was passed on 19th July, 1965.

The petitioner and his brother Ram Kumar filed an appeal before the Commissioner, Ambala Division. Ambala, on 3rd of October, 1966, against the order of the Collector, Rohtak, dated the 16th April, i960, declaring the land surplus in the hands of Debi Singh. The plea was taken that the two brothers were tenants under their father at the rate of l/3rd Batai and the surplus area declared being their tenants'' permissible area could not have been declared surplus. This appeal was dismissed by the Commissioner, Ambala Division, by his order dated 6th June, 1967. The learned Commissioner observed that the purchase of land made by Sube Singh under the order of the Assistant Collector dated 19th July, 1965, was not a genuine purchase u/s 18 of the Act and that whole thing had been stage-managed so as to unable the landowner to take out the land from surplus pool.

Against the order of the Commissioner, a revision was filed before the learned Financial Commissioner, which was also dismissed on 22nd July, 1967. The petitioner than filed the present writ petition on 9th February, 1968, for quashing the orders of Respondents 2 to 4.

The return to the writ petition has been filed by the Deputy Secretary to Government. Haryana, Settlement Department, in which it has been emphasized that the petitioner could not be a tenant of the land under his father in view of the defininition of "self-cultivation" in s. 2(9) of the Act and for that reason he could not purchase land from his father u/s 18 of the Act. In refutation of that assertion, the learned counsel for the petitioner has submitted that the definition of "self-cultivation" is only for the purpose of reservation of permissible area and not for the purpose of section 18 of the& Act. The '' tenant" has been defined in section 2(6) of the Act as under:

''Tenant'' has the meaning assigned to it in the Punjab Tenancy Act, 1887 (Act XVI of 1887), and includes a sub-tenant and self-cultivating lessee, but shall not include a present holder, as defined in section 2 of the Resettlement Act.

In sub-section (5) of section 4 of the Punjab Tenancy Act, 1887, "Tenant" is defined as a person who holds land under another person, and, is, or but for a special contract would be, liable to pay rent for that land to that other person; but it does not include-

(a) an inferior land-owner, or

(b) a mortgagee of the rights of a land-owner, or

(c) a person to whom a holding has been let in farm under the Punjab Land Revenue Act, 1887 for the recovery of an arrear of land revenue or of a sum recoverable as such as an arrear, or

(d) a person who takes from the Government a lease of unoccupied land for the purpose of sub-letting it.

Self-cultivation'' is defined in the Punjab Security of Land Tenures Act, 1953, as ''cultivation by a land-owner either personally or through his wife or children, or through such of his relations as may be prescribed, or under his supervision.

According to this definition, the petitioner, while cultivating the land, could not be a tenant of his father. He was supposed to be cultivating it on behalf of his father. According to the Patwari, who appeared in the proceedings of purchase u/s 18 of the Act, he had been brought on the land as an occupancy tenant in 1955-57. In view of section 5 of the Punjab Tenancy Act, the petitioner could not be brought on the land as an occupancy tenant in 1956-57. That entry is absolutely incorrect. He could not, therefore, make an application for the purchase of the land in his cultivation u/s 18 of the Act. The order of the Assistant Collector dated the 19th July, 1965, on the purchase application was, therefore, without jurisdiction, null and void, and was rightly ignored by the Commissioner and the Financial Commissioner. It is also pertinent to note that surplus area had been declared by order dated 16th April, 1960, and according to the return, the land in dispute had been allotted to the eligible tenants on 5th November, 1934, and 10th December, 1965, and its possession had already been given to the tenants on 10th February, 1966. Learned counsel for the petitioner has relied on a judgment of a Division Bench of this Court in Amar Singh v. State of Punjab and another ILR (1967)2 Punj. and Haryana. 120 Punjab and in which it was held that in exercise of the powers conferred by clause (c) of section 10-A of the Act, the authorities under Act cannot exclude from consideration an order of the Assistant Collector u/s 18 of the Act, whereby a part of the holding of the landowner has vested absolutely in the erstwhile tenant, and if any conflicts were detected between section 10 A and section 18 of the Act, the special provision of law contained in the latter section would override the earlier and general provision In that case, the tenants, who had made an application u/s 18 of the Act, were landowners'' son-in-law and his brother who are not included in the list of relations prescribed u/s 2(9) of the Act, the cultivation by whom is to be considered as self-cultivation of the landowner. The second distinction is that the appeal against the order declaring surplus area was accepted by the Commissioner and the case was remanded to the Collector for a fresh decision. The decision of the Collector, after remand, was given after the decision in the application u/s 18 of the Act. The learned Judges held in that case that the cultivation by the son-in-law of the landowner and by his brother could not in law be deemed to be the self-cultivation of the landowner within the meaning of section 2(9) of the Act, and, therefore, the order of purchase in their favour could not be ignored. The ratio of that decision is, therefore, not applicable to the facts of the present case and the learned counsel for the petitioner cannot derive any advantage from that judgment.

It has been emphasized by the learned counsel for the respondents that it was stated in paragraph 17, of the return that the land had been allotted to eligible tenants on 5th November, 1964, and 10th December, 1965, and its possession had already been given to the tenants on 10th February, 1966. The petitioner has not made those tenants parties to the writ petition and, therefore the writ petition is not competent. In reply, the petitioner does not admit that the land has been allotted to eligible tenants or that its possession has been delivered to them the present writ petition was filed on 1oth February. 1988, along with an affidavit in which it has been stated that the petitioner is still in possession of the land in dispute. This objection of the learned counsel for the respondents cannot prevail in view of the dispute on facts.

Learned counsel for the respondents has then submitted that the writ petition should be dismissed on the ground that misstatement of facts has been made deliberately. In paragraph 9 of the petition, it has beer; stated that the petitioner came to know of the fact of the land in dispute having been declared surplus only after the Rabi crop of 196S had been harvested when some ejected tenants were sought to be resettled on the land in dispute by the Patwari Deh. The petitioner then filed a review application before the Collector, Rohtak, but it was dismissed by him by his order dated 6th September, 1966. In paragraph 6 of the order of the Assistant Collector dated 19th July, 1965, on the application of the petitioner u/s 18 of the Act, it has been stated as under:

From the evidence of the patwari and from the copies of khasra girdawari A. W. 2/2 and A.W. 2/3 and copy of Tamabandi A.W. 2/1. it is evident that Debi Singh respondent is a big landowner and the land comprising of killa Nos. 67/12, 68/5, and 77/5, 6 measuring 31 kanals 4 marlas (3 Standard Acres and 14| Units) is not the reserved area of Debi Singh. This has also been proved that this land has been declared as surplus and is in the cultivating possession of Sube Singh applicant in the capacity of an occupancy tenant. This has also been admitted by Debi Singh and he has no objection if the land in question is purchased by Sube Singh applicant. In view of this, Shri Sube Singh applicant is entitled to purchase the said land.

In this paragraph it had been definitely stated that the land had been declared surplus and it is futile for the petitioner to state in paragraph 9 that he came to know of the land having been declared surplus after Rabi crop of 1966 had been harvested, but I do not attach much importance to this misstatement as in my opinion the writ petition is without merit in view of the above discussion.

For the reasons given above, this petition is dismissed with costs. Counsel''s fee Rs. 100.