State of Punjab (Now Haryana) &
Ors Vs. Amar Singh & ANR  INSC 14 (21 January 1974)
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 994 1974 SCC (4) 305
RF 1975 SC1952 (6,7) RF 1992 SC 248 (53)
Punjab Security of Land Tenures Act (10 of
1953) Ss.10A and 18--Scope of Interpretation of Statutes.
Section 10A(B) of the Punjab Security of Land
Tenures Act, 1953, provides that no transfer or other disposition of land which
is comprised in a surplus area [as defined in s.
2(5a)], at the commencement of the Act, shall
affect the utilization thereof for the resettlement of ejected tenants;
and s. 10A(C) provides that for the purpose
of determining the surplus area, any judgment, decree or order of a court or
other authority, which diminishes the surplus are a shall be ignored. Under the
Act, land owners who had land in excess of the 'permissible area' could reserve
for themselves lands to the extent of the permissible area; and the rest,
excluding the permissible area of the tenants, was the surplus area of the
landowner. Section 18 provides that a tenant, who has been in continuous
occupation of the land comprised in his tenancy for a minimum period of 6
years, shall be entitled to purchase from the landowner, the land so held by
At the commencement of the Act on April 15,
1953, a landowner owned three items of property which did not form part of her
reserved area. One of the items was under her self-cultivation while there were
tenants on the other two.
Those tenants later gave up possession and
abandoned the lands. The landowner made a gift of the 3 items to her daughter,
who sold them to her husband and his brother, the 1st and 2nd respondents
respectively. The Collector (Surplus Area), while determining the surplus area
of the landowner, ignored the gifts and sales, and included the 3 items in the
landowner's surplus area. The respondents appealed to the Commissioner. They
also applied to the Assistant Collector under s. 18, for purchase of the lands
in their possession on the ground of continuous occupation for 6 years. The
applications were allowed on the basis of a compromise between the applicants
(respondents) and the landowner, and the respondents paid the purchase price
determined by the Assistant Collector. On the basis of those purchase orders
the Commissioner, set aside the order of the Collector (Surplus Area) declaring
the surplus area of the landowner, and directed him to inquire into the matter
afresh. The collector [the Asstt. Collector who had allowed the purchases by
the respondents had by then become Collector (Surplus Area)] thereupon
determined the surplus area of the landowner under s. 10A(c). He, however, held
that the leases granted to the respondents were collusive and that the orders
of purchase under S. 18 were ineffective, and included the 3 items again in the
landowner's surplus area.
The High Court allowed the Writ Petitions of
the respondents on the ground that the authority acting under s. 10A(c) could
not ignore the purchase orders passed under s. 18.
Allowing the appeals to this Court, HELD :
Per Palekar and Krishna lyer, JJ. (Sarkaria J.
dissenting) : 1(a) The public policy of S.
10A cannot be outwitted by consent orders calculated to defeat the provision,
and, without the statutory authority charged with the inquiry being satisfied
about the bonafides of and eligibility for, the purchase. [175G] When high
public policy finds expression in socioeconomic legislation contractual
arrangements between interested individuals, sanctified into consent or
compromise decrees or orders cannot be binding on the instrumentalities of the
State called upon to enforce the statute, although the tribunals, enjoined to
enforce the law, may take probative note of the recitals in such compromise or
consent statements in proof of facts on which their jurisdiction depends.
Neither the materials on 153 record in the present case, nor the recitals in
the compromise, disclose the application of the judicial mind.
[174C] (b) It was found by the Collector
(Surplus Area) that the leases in question have been collusively got up to
dwindle the surplus area of the landowner and that the landowner had conspired
with her son-in-law and big brother to retain the area in contravention of the
law. Further, S. 18 applies only to persons who are legally tenants. In the
present case' the lease was granted by the landowner after gifting the property
to her daughter. Also, the section requires 6 years continuous occupation by
the tenant; but the Collector found that the respondents had not completed the
period at the time of their application under S. 18. The order in fact is thus
a nullity. Therefore, it could not be contended that the orders of purchase in
favour of the respondents passed by the concerned officer under S. 18 had
become final and not having been set aside bind the other authority determining
the surplus area.
(c) There is no provision in s. 18 to give
notice to the Collector who is to declare the surplus area and so, the State
(represented by the Collector), which is vitally concerned in the resettlement
of ejected tenants by utilising the surplus area, has no opportunity to present
its case against the fraudulent character of the proceedings under s. 18 before
the Assistant Collector. The State, not being a party to that order, in any
case, cannot be bound by it, whatever may be the effect as between the parties
to those proceedings. Since the State is not a party it has no right of appeal
or review.[172B] (2) The authority under s. 10A may ignore the order of the
authority under s. 18.
(a) There is an apparent conflict between Ss.
10 and 18 and the basic judicial approach should be to harmonise the two
sections. The major premise of statutory construction is that the rule of law
must run close to the rule of life and the court must read into an enactment,
language permitting, the meaning which promotes, the benignant intent of the
legislation in preference to the one which perverts the scheme of the statute.
The objects of the agrarian reform underlying the Act are : (a) to impart
security of tenure;
(b) to make the tiller the owner; and (c) to
trim large land holdings thus creating peasant proprietorships ensuring even
distribution of land ownership. The intendment of the statute is that
reservation was to be made by a landowner to enable self-cultivation, and so,
landowners could eject tenants. But, since agrarian reform must promote not
eviction but security of tenure, it became necessary for the State to create surplus
area of a considerable extent, so that, the evicted tenants could be
rehabilitated on such surplus lands, enjoying fixity of tenure and paying. rent
to the owners. The success of the scheme depends on preventing leakages through
private alienations, collusive awards and decrees and the like, and so, care
was taken in s. 10A(C) to interdict alienations and to ignore decrees and
orders which diminished the surplus pool. Such a strategic provision must
receive a benignantly spacious construction. [160H, 161F, 157H] (b) There is no
force in the contention that the benefit under s. 18 would be completely
nullified and obliterated if s. 10A(c) were to prevail and apply to orders
under s. 18.
Though S. 10A(C) uses the words 'shall be
ignored it is not every order under s. 18 that would have to be ignored but
only those orders which have the effect of diminishing the surplus area. The
person who is entitled to purchase under s. 18 is a person lawfully inducted on
the land as a tenant.
The cases under the section would be, (i) of
tenants who are eligible to purchase by virtue of 6 years continuous occupation
of land in their permissible area, and (ii) of tenants resettled on surplus
area of the landowner, after 6 years continuous occupation. The purchase in the
first case being from the tenant's permissible area is outside the surplus area
of the landowner and does not have the effect of diminishing the landowner's
surplus area. In the second case, the purchase fulfils the object of the
statute of making the tiller the owner. The principal category adversely
affected would be post statutory collusive tenants and perhaps some bonafide
tenants, who, however do not deserve sympathy since they damage the prospects
of displaced persons to be resettled. Section 18(1)(iii) apparently
contemplates purchase rights for persons who had no possession when the Act
came into force, but the exception was made only in case of those persons who
had been deprived of their rights by unjust eviction prior to the Act coming
into force. [169H-170D] 154 (3) The purchase order by the Assistant Collector
18 was rightly ignored by the Collector
(Surplus Area), as 'other authority' in s. 10A(c) includes the officers under
s. 18. The plain meaning of the sub-section is that any order by any authority
which shrinks the surplus area of the landowner is invalid to the extent laid
down in that clause, and orders under s. 18, if they diminish the surplus area
suffer the same fate. The High Court was wrong in inferring from the statement of
objects and reasons that 'other authorities' in s. 10A(C) are arbitrators or
such like agencies and not authorities under the Act. The objects and reasons
relating to the clause of a bill may be read for finding the object of the law
and not to control its amplitude. The purpose as revealed in the statement of
objects is that the legislature wanted to ensure the invulnerability of the
surplus pool provision to attacks, by ignoring judicial and quasi-judicial
orders of every sort.
This object of s. 10A(C) cannot be fulfilled
unless the widest meaning were given to the expression 'court or other
authority'. Nor is there any basis for truncating the ambit of 'other
authority'. 'Other authority' is every other authority within or without the
Act. [168F, 169B, 171A-B] (4) Further, the expression 'transfer or other
disposition of land' in s. 10A(b) covers leases, which by very definition, are
a species of transfer of land. In the present case, the lands in dispute fell
outside the landowner's reserved area and were therefore included in her
surplus area. The first respondent, to be entitled to be a lessee, must prima
facie show that the alienation in his favour, as a lessee, does not violate s.
10A(b) which prohibits all transfers and other dispositions which diminish .the
surplus area of the landowner. Under s. 2(1), the word 'landowner' includes
also the lessee and the permissible area of the tenant is excluded from the
surplus area of the landowner.
Merely because of the outstanding leases in
favour of the prior tenants at the commencement of the Act, the two items which
were earlier leased to tenants do not ipso facto fall outside the surplus area
of the landowner. That would be so only if they are comprised in the
permissible area of the tenant on the relevant date but there is no evidence to
that effect. In relation to the prior tenants no such claim has been set up by
the first respondent, and the first respondent was not a transferee from the
prior tenants, but a de novo tenant. After the prior tenants gave up possession
the lands came into the actual possession of the landowner and the leases were
extinguished. It follows, that one item was always in the possession of the
landowner and other two came into her possession subsequent to the coming into
force of the Act, that those three items of property should be computed as part
of the landowner's surplus area, and that s. 10A(b) operates to invalidate the
alleged leases to the respondents, since they diminish the surplus area of the
landowner. The respondents, therefore, had no right, as tenants, to purchase
18.[167D,167H-168D] (5) It could not be
contended that even if leases are prohibited by s. 10A(b) the sub-section does
not affect involuntary transfers and that since a purchase under s.18, effects
an involuntary transfer it is not affected by s. 10A(b). The three sub clauses
of s. 10A, read together, show that if the landowner, by any act or omission of
his suffered a diminution in the surplus area by a transfer, voluntary or
otherwise contrary to the right of the State Government to dispose of it, such
a transfer is liable to be set aside. The expression 'transfer' is wide enough
to cover transfers by operation of law, as in the present case, under s. 18. To
uphold the contention of the respondents that involuntary transfers are not
affected would stultify s. 10A and the scheme of the statute altogether as they
would diminish the available surplus area of a landowner.
Moreover, special exclusion to save transfers
by way of inheritance and compulsory land acquisition by the State would be
supererogatory had involuntary transfers been automatically excluded from s.
10A(b). [172H] The Court expressed the hope that land reform measures would be
quickly implemented, because, in the present case, more than a score of years
notwithstanding the processes of fixing reserved areas and surplus areas' on
the strength of which alone confirment of proprietary rights on tenants and
resettlement of a ejected tenants could proceed, are still lingering. [176C] Mam
Rai v. State of Punjab I.L.R. (1969) 2 Pun. & Har. 680;
155 Chari v. Seshadri  1 S.C.C. 761,
Bahadur Singh v. Muni Subrat  2 S.C.R. 432, Kaushalya Devi v. K. L.
Bansal  2 S.C.R. 1048 and Ferozi Lal Jain v. Man Mal  3 S.C.C. 181,
Per Sarkaria J. (dissenting) (1) (a) The
Collector (Surplus Area) would be entitled to ignore the order of the Asstt.
Collector under S. 18 independently of s. 10A of the Act if the order based on
the compromise is void and a nullity. But if it is only voidable or erroneous,
it could be avoided only by way of appeal review or revision or in other
appropriate proceedings, known to law and the Collector (Surplus Area) could go
behind it only when it is so set aside, or if the provisions of s. 10A entitle
him to do so.
(b) An order is null and void if the
quasi-judicial tribunal passing it lacks inherent jurisdiction over the parties
and the subject matter. In the present case, the Assistant Collector who made
the order under s. 18 was duly invested with jurisdiction under the section.
The respondents were tenants and merely because-they were related to the
landowner they could not be denied the rights and privileges under the Act. The
allegations in the purchase application about the applicants' being in
continuous occupation of the lands comprised in their tenancy for the requisite
Period, coupled with admission by the landowner in the compromise, furnished
sufficient material on the basis of which the authority could have been
satisfied about the existence of all the facts essential for the exercise of
his jurisdiction under s. 18. [191F, 192E] (c) It is not correct to say, that
on the facts of the instant case the Assistant Collector passed the orders
solely on the basis of the compromise without applying his mind to the facts of
the case. Application of mind is evident from the circumstance that he assessed
the price to be paid by each of the applicants who thereafter did so.
The mere fact that he did not record a
finding in so many words that he was satisfied from such and such material in
regard to the existence of the basic conditions necessary for making the order
under s. 18 did not render his order a nullity when such material was otherwise
evident on the record. Therefore, the order under s. 18 was not a nullity and
it could not be ignored as non-est by the Collector (Surplus Area). [192E] K.
K. Chari v. R. M. Seshadri  1 SCC 761, Nagindas Ramdas v. Dalpatram
Ichchram Civil Appeal No. 2479/72 decided on 30-11-1973, Smt. Ujjam Bai v.
State of Uttar Pradesh, AIR 1962 S.C. 1621=1 SCR 778 and Ittyavira Mathai
v. Varkey Varkey, A.I.R, 1964 S.C. 907 (910)= 1 SCR 495, followed.
(d) The Collector (Surplus Area) and the
Collector acting under s. 18, are coordinate authorities exercising separate
and distinct jurisdictions'. If one feels that a certain order passed by the
other in the exercise of his distinct jurisdiction is erroneous it was open to
that authority to get it rectified in the appropriate manner provided by the
Act, that is, by way of appeal, review or revision. The provisions in regard to
appeal, review and revision against an order of the Assistant Collector under
s. 18 are, under ss. 24 and 25 of the Act, ss 80 to 84 of the Punjab Tenancy
Act, 1887. There is nothing in the Act or the Rules framed under the Act, or in
the Tenancy Act, as to who can file an appeal or revision against the decision
or order of the Collector exercising jurisdiction under s. 18; and, in view of
the long Practice there could be no doubt that the State Government or its
department can, if aggrieved or prejudiced by such a decision, go in appeal or
revision against it. A person who is not a party to a decree or order, may with
the leave of the Appellate Court prefer an appeal and as a rule, leave will not
be refused to a person who might have been made a party to the proceedings. In
any case, the State or the department could have moved the Financial
Commissioner to set right the illegality or impropriety in revision. The Financial
Commissioner under the Tenancy Act has wide powers in revision to correct
errors committed by the inferior authorities and there is no time limit to the
exercise of the revisional power. Once the application of the tenant under s.
18 has been allowed and the order is not set aside in appeal or revision, it
becomes final and remains immune to an attack against its validity on any
ground, including that of collusion, before the coordinate authorities under
the Act dealing with the question of the determination of surplus area. In the
present case the Collector (Surplus Area) could not go behind the orders under
s. 18 or himself sit in appeal over them, especially when the officer who
passed the two orders happended to be the same person.
[194C] 156 Amir Chand v. State of Haryana
1971 PLJ. 449, Securities Insurance Co.  2 Ch. 410, Province of Bombay v.
W. L Automobile Association A.I.R. 1949 Dom. 141, Heera Singh v.
Veerka, A.I.R. 1958 Raj. 181, Shivaraja v.
1963 Mys. 127, Executive Officer v. Raghavan
1961 Kerala 114, B. an Infant,  1 Q.B.
12; Govinda Menon v. Madhvan Nair A.I.R. 1964 Kerala 235(DB), Punjab State v.
Dr. Iqbal Singh  Punjab Law Journal 110, Man Raj and ors v. State of
Punjab I.L.R.  2 Punj and Haryana 680 and Shyamlal v. State of Gujrat
 2 S.C.R.
457, referred to.
(2)The view taken by the High Court with
regard to the interpretation and inter-relation of s. 10A and s. 18 is sound
and therefore s. 18 prevails over s. 10A and so, the authority under s. 10A
cannot ignore the order of the authority under s. 18. [197B] (a) The two canons
of interpretation applicable to the statute are, (i) if choice lies between two
alternative constructions, that alternative is to be chosen which will be
consistent with the smooth working of the system which the statute purports to
be regulating; and that alternative is to be rejected which will introduce
uncertainty friction or confusion into the working of the system and, (ii) if
there is an apparent conflict between different provisions of the same
enactment they should be so interpreted that, if possible, effect may be given
to both. [195E] King Emperor v. Benori Lal Sarma  49 CWN 178 (PC)=72 IA
57, referred to.' (b) Section 18 is designed to promote one of the primary
objects of the Act, namely of procuring ownership of the land to the tiller on
easy terms. The self sufficing machinery of this section is available for
purchase of their tenancies to the tenants inducted before or after April 15,
1953, by the landowner, equally with tenants settled by the Government on the
surplus area. The Act does not take away the right of the landowner to induct
tenants on such area. Every sale made by the operation of s.18 in favour of a
tenant admitted by the landowner on the surplus area causes diminution of the
surplus area or affects the utilisation thereof by the Government. Under
s.10A(C) every judgment, decree or order of a court or the authority, which
diminishes the surplus area shall be ignored. If sales in favour of tenants
inducted by the landowner after April 15, 1953 were to be ignored under s. 10A(c)
then it will reduce the working of the system of the Act to a mockery, because
it will present the spectacle of manifest contradiction and absurdity of an Act
giving a right with one hand and taking it away by another. The adoption of
such an interpretation may not completely obliterate. s. 18 but it will
certainly truncate it, with reference to the category of tenants inducted by
the landowner after April 15, 1953. [195G] (3) The conflict between the two
provisions can be avoided only if the general words 'other authority' in s.
10A(c) are read ejusdem generis with the specific words 'judgment, decree or
order of a court' which immediately precede them.
Thus construed, the general words 'or other
authority' will not take in an authority exercising jurisdiction under s. 18 of
the Act. [196B-C] (4) The lease created by the landowner in the present case,
ceased to subsist as soon as the Collector made orders of purchase under s. 18
in favour of the respondent. The question whether the extinct lease which
preceded the purchase orders was a transfer or not, did not therefore survive
for decision. [197A] Bhajan Lal v. Punjab State  70 I.L.R. 664, Bishan
Singh v. Punjab State 47 LLt 284 and Lakshmi Bai v. State of Haryana
 LXXIII Punj. L.R. 8 1 5, referred to.
Further, the land comprised in the lease of
the prior tenants was far less than their permissible limit and the High Court
rightly presumed that the lands were within their permissible area, since there
was. no evidence that they held any other land. Surplus area has to be
determined, as appears from s. 19F, with reference to the situation as on April
15, 1953, when the Act came into force. The disputed land held by the prior
tenants was within their permissible area and therefore it could not be
included in the surplus area of the landowner. At the time when the ,Collector
(Surplus Area ) took up determination of the surplus area, these lands were
still comprised in a tenancy though under a different tenant, namely the first
157 respondent. Such change of the tenant does not amount to a future
acquisition of land, comprised in that tenancy, by the landowner within the
contemplation of s. 19A or S. 19B of the Act. [197H-198D] Bhagwan Das v. The
State of Punjab,  2 SCR 511, followed.
Harchand Singh v. Punjab State, (1964) 66
P.L.R. 285; 1963 P.L.J. 144, approved(5) The expression 'transfer and other
disposition of land in s.10A(b) does not include completed sales effected under
s. 18. The words transfer or other disposition of land' must be restricted to
voluntary dispositions of land made by the landowner and cannot be extended to
cover involuntary transfers brought about by operation of law or circumstances
beyond the control of the landowner. This is the only reasonable interpretation
of the words 'transfer or other disposition of land' in s. 10A (b) which is
consistent with s. 18 and can reconcile and keep effective both the sections.
The two types of involuntary transfers. namely compulsory acquisition of land
by Government or by an heir by inheritance are only illustrative of the
intention of the legislature. [196 D]
CIVIL APPELLATE JURISDICTION : Civil Appeals
1756 of 1967.
Nos. 1755 and From the judgment and order
dated the 4th October, 1966 of the Punjab and Haryana High Court in Civil Writ
854 and 855 of 1963.
V. C. Mahajan and R. N. Sachthey, for the
S. K. Dhingra for the respondents.
The Judgment of D. G. PALEKAR and V. R.
KRISHNA IYER, JJ.
was delivered by Krishna lyer, J. R. S.
SARKARIA, J. gave a dissenting, Opinion.
KRISHNA IYER, J. These two appeals by the
State of Haryana challenge the High Court's approach to an interpretation of
two, crucial provisions of a land reforms law, namely, Ss.
10-A and 18 of the Punjab Security of Land
Tenures Act (X Of 1953) 1953 (for short called "the Act"). Counsel
for the appellants complains; that if the view upheld by the High Court of
subordinating S. 10-A to S. 18 were not upset by this Court, large land'
holders may extricate their surplus land in excess of the ceiling set, through
legal loopholes, such as have been practised in the present case. If makebelieve
deals and collusive, proceeding, he argues, may maneouvre through the legal net
cast by S. 10-A of the Act interdicting alienations and orders which diminish
the surplus pool intended for re-settlement by the State of ejected tenants,
the agrarian reform measure would be reduced to a paper tiger or socioeconomic
Certainly, land reforms are so basic to the
national reconstruction of the new order envisaged by the Constitution that the
issue raised in this case deserves our anxious attention. We have to bear in
mind, the activist, though inarticulate, major premise of statutory
construction that the rule of law must run close to the rule of life and the
court must read into an enactment, language permitting, that meaning which
promotes the benignant intent of the legislation in preference to the one which
perverts the, scheme of the statute 158 on imputed legislative presumptions and
'assumed social values valid in a prior era. An aware court, informed of this
adaptation in the rules of forensic interpretation, hesitates to nullify the
plain object of a land reforms law unless compelled by its language, and the
crux of this case is just that accent when double possibilities in the
chemistry of construction crop up.
A breif survey of the relevent facts leading
up to the legal controversy seeking resolution in these appeals will help focus
forensic attention on the provisions of the Act which bear upon the issue. A
lady by name Lachhman had considerable agricultural property, far in excess of
the relatively liberal ceiling set by the Act which came into force on April
15, 1953. She had a daughter Shanti Devi and son-in-law Amar Singh, respondent
in Civil Appeal No. 1755 of 1967, whose brother Indraj is the respondent in the
connected appeal No. 1756 of 1967. Annexure (B) to the writ petitions is an
order dated May 11, 1962 passed under the Act and the Rules by the Collector
(Surplus Area) Sirsa. It is this order which has been successfully attacked in
the writ petitions and is the subject-matter of the present appeals. The facts
stated therein have not been reversed in the judgment of the High Court and we
have to proceed on the assumption that those statements are correct. We are
concerned with three khasras Nos. 177, 265 and 343, in all over 131 acres of
land. At the commencement of the Act, khasra No. 177 was under Mst. Lachhman's
self cultivation but there were two tenants under her, Chandu and Sri Chand, on
other two plots. Together, these three, plots constitute a large slice out of
her surplus areas and are now claimed by the respondents, Amar Singh and
Indraj, as their own under a purchase ordered by the Assitant Collector who is
the competent authority under s. 18 of the Act (Annexure A to the writ
petitions). Appellant's counsel urges that the history of the derivation of title
of these claimants needs to be sceptically studied, the relationship of the
parties being that of mother and daughter, son-in-law and brother and the heavy
impact being slicing off a good chunk from the surplus area, otherwise
available for re-settlement of evicted tenants.
At the outset it must be mentioned that the
two tenants, Chandu and Sri Chand who were on the land on the determinative
date (April 15, 1953) presumably showed no interest in claiming rights granted
to tenants under the Act, which were subject, of course, to their possessing
lands less than the permissible area'. We have no information in this case what
the total extent of lands in the possession of these two tenants was and
whether they had chosen to keep other lands in preference to the ones under
Mst. Lachhman. We need not speculate on how or why they left the suit plots but
may note that they were on the holding on the key date in 1953 and if later
they did not keep their possession (abandoned or surrendered) the tenancy
terminated and on the facts of this case the lands came into the actual
possession of the land holder, Mst. Lachhman, no other legal inference being
possible than that the 159 leases were extinguished and the lands reverted to
the landlady on general principles of law. In short, we have to proceed on the
assumption that one plot, namely, khasra No. 177 had always. been in the
self-cultivation of the landlady and that the two tenanted plots, namely,
khasras Nos. 265 and 343, came into the khas possession of the landlady
subsequent to the crucial date. Apprehending the statutory peril to these lands
which were admittedly outside her "reserved areas" Mst. Lachhman went
through the exercise of making a gift of the three lands to her daughter Smt.
Shanti (vide mutation No. 445 decided on
December 24, 1953 and referred to in Annexure B). Subsequently, it is seen that
Amar Singh, husband of Shanti and Indraj, brother of Amar Singh purported to
apply for purchase of the landholders right in these three plots under s. 18 of
the Act making Lachhman and Shanti co-respondents and alleging that they were
tenants qualified for the statutory benefit.
The Assistant Collector before whom the
application was made for purchase under s. 18 has said in Annexure 'A' to both
the writ petitions that these two ladies "are said to be big land-owners
but had not got this land reserved for their own purpose". Curiously
enough, in both the purchase petitions the parties avoided even an enquiry by
the Assistant Collector as is evident from the following statement from
"Before the proceedings could start the
parties have come to terms and they have actually put in court a compromise
deed which they have backed up by their statements." May be, because these
dubious moves if exposed to the examination of an officer might prove a fiasco,
the close relations who figured as petitioner and respondents lulled the
Assistant Collector into mechanically acting on the compromise without
enquiring into any of the eligibility factors before a purchase could be
There is another, set of facts which needs
mention at this stage. Even before the purchase proceedings were initiated by
the writ petitioners, the Collector had, as early as April 1961, declared the
surplus area of Lachhman ignoring alienations and including the three khasra
numbers. But on appeals carried both by the landholder and her son-in-law and
his brother the Commissioner ordered a further enquiry.
Meanwhile, purchase proceedings were started
and by a quick compromise, orders of purchase were obtained. But all these
proved exercises in futility because the Collector, Surplus Area, again ignored
the leases to the writ petitioners as collusive and the orders of purchase as
ineffective in the impugned order, Annexure B. However the High Court set aside
Annexure 'B' so that the petitioners before it, the son-in-law and his brother,
were restored to their purchases, and the State lost the lands from the
surplus. pool. The aggrieved State canvasses the correctness of. the supersession
of s. 18 and of certain other legal reasoning approved by the Court, as its
impact on the working of the land reform scheme would be disastrous. Anyway,
the law laid down in this case was affirmed by a Full Bench of that Court.
Having regard to all those circumstances a series analysis and attempt at
harmonisation of the various provisions of the Act is necessary now.
160 A flash back to the genetic evolution of
the act and the legislative mutations by amendatory effort to make the law
effective, and to unmake judicial decisions which weakened the working of it
will help understand the current biochemistry of the Act. Any interpretation
unaware of the living aims ideology and legal anatomy of an Act will miss its
soul substance--a flaw which we feel, must be avoided particularly in
socio-Economic legislation with a dynamic will and mission. Now to the
legislation itself. A brief introduction is found in the reference order of the
Full Bench (Shamsher Bahadur, J.) in Mam Raj v. State of Punjab :
(1) "The Act passed on 15th of April,
1953, was not the first legislation on the subject and the contours of many of
the concepts had already taken shape in the two earlier enactments on the
subject, namely, the Punjab Tenants (Security of Tenure) Act, 1950 (Act No. 22
of 1950) and Punjab Tenants (Security of Tenure) Amendment Act, 1951
(President's Act 5 of 1951). The Act, which at once consolidated and amended
the existing law on the subject, was designed "to provide for the security
of land tenure and other incidental matters". As is clear from the
preamble, the primary object was the protection of tenants whose ejectments
recently from holdings held by landowners owning vast tracts of lands, had
taken place on a massive scale. In restoring the rights of tenants ejected
after 15th of August, 1947, care was taken that landlords with small holdings
were not subjected to harassment by the tenants. For this reason, the concepts
of "small landowner", "permissible area" and
"reservation" were introduced. A small landowner was described as a
person whose entire holding in the State of Punjab did not exceed the
permissible area which though fixed at 100 standard acres in the Act of 1950
was reduced to 30 standard acres in the Act. A Landowner owning larger areas
was entitled to reserve the permissible area, and many of the provisions of the
Act dealt with the manner and exercise of this right of reservation. The right
of the landowner to eject tenants from the reserved or permissible areas was
recognized in the Act though under section 9-A(introduced by Punjab Act II of
1955) the tenants liable to ejectment on this score had to be accommodated in
surplus areas, a minimum period of ten years' tenancy was fixed under section 7
in respect of tenants who were in occupation of land outside the reserved areas
and the right of the tenants who had been ejected after the 15th August, 1947,
for restoration to the tenancies was recognised.
Provisions were made for the exercise of the
other rights of the tenants, the most important of these being the right to
purchase the leased lands under section 18 of the Act." The triple objects
of the agrarian reform projected by the Act appear to be (a) to impart security
of tenure (b) to make the tiller the owner, and (c) to trim large land holdings,
setting sober ceilings. To convert these political slogans into legal realities
to combat the evil of mass evictions, to create peasant proprietorships and to
ensure even dis(1) I.L.R.  2 Pun. & Har. 680; 682-683.
161 tribution of land ownerships a statutory
scheme was fashioned, the cornerstone of which was the building up of a
reservoir of land carved out of the large landholdings and made available for
utilization by the State for re-setting ejected tenants.
The scheme of agrarian re-organisation
contemplated by the statutes is simple. The legislature fixed a limit on
ownership expressively described as "permissible area" landowners who
exceeded this area were allowed to reserve for themselves the best lands they
desired to keep and this parcel or parcels of land was meaning fully designated
as "reserved area". Of course, if he failed to intimate his selection
within six months from the commencement of the Act to the Patwari concerned,
the prescribed authority was empowered to select the parcel or parcels of land
which such person was entitled to retain for himself. The legislature found
that many land-owners had failed to make the reservation in time and so by the
Amending Act 46 of 1957 a further period of six months from the commencement of
the later Act was given for selecting the land/lands they meant to keep, and
further again gave the prescribed authority power to select the parcel or
parcels of land on behalf of the defaulting landholders. The intendment of the
statute was that the reserved area war, to be self cultivated and so
land-owners were competent to eject tenants from the reserved area, although,
generally speaking, evictions had been barred. As a matter of fact, landholders
were directed to start self cultivation within six months from the date of
reservation or the date on which they got possession by eviction. Small
holders, i.e., persons who owned less than the permissible area were not only
not disturbed by the statute in regard to their ownership but were also allowed
to evict tenants from their parcels of land so that they may also become
self-cultivators. This process of making the proprietor cultivator naturally
would result in the coexistence of possession and ownership at the cost of
ejectment of tenants from their holdings. Since agrarian reform must promote
not eviction of lessees but security of tenure for them it became necessary for
the State to create a considerable surplus pool of lands coughed up by large
owners who held beyond the permissible areas. All the tenant refugees from
resumed lands were to be rehabilitated on surplus lands and such tenants,
enjoying fixity of tenure ,Would continue to pay rents to the owners. Another
limb of the peasant proprietorship plan was the conferment of the right to
purchase the landlord's right on long-standing tenants with six years
continuous occupancy. if the scheme in the book had worked well on the ground
the Act would have paved the way for a new rural map of economic relations even
though the problem of the landless poor may perhaps have survived. Such was the
conspectus of the legislative scheme.
It is obvious that this blue-print for a
peaceful transformation of agrarian relations assumes the availability of a
large surplus area on which the State can settle tenants from the reserved
areas and small landholders' holdings. Thus the key to the success of the
scheme is the maximising of the surplus land reservoir and sealing off legal
leakages 162 through private alienations, collusive orders and decrees and the
like, and so care was taken to interdict alienations and ignore decrees and
orders which diminished the surplus pool.
At this stage it may be useful to sketch out
the broad outlines of the statute with specific reference to its provisions,
and changes. The Act of 1953 had been amended often, for the professed reason,
atleast once, that judicial pronouncements have had the effect of defeating the
objectives with which the law was enacted. Substantial amendments were made in
1955, 1957 and 1962. The objects and reasons of Punjab Act 14 of 1962, which
brought in certain significant restrictions on alienations and acquisitions of
large landholders starts off in the statement of objects thus :
"Some of the recent judicial
pronouncements have the effect of defeating the objectives with which the
Punjab Security of land Tenures Act, 1953, was enacted and amended from time to
time. It was intended that the surplus area of every land-owner recorded as
such in the revenue records should be made utilisable for the settlement of
ejected tenants." Certain specific decisions and their impact on the
legislative operation were mentioned, and then the statement of objects
"In order to evade the provisions of s.
10-A of the Parent Act interested persons, being relations, have obtained
decrees of courts for diminishing the surplus area. Clause (4) of the Bill
seeks to provide that such decrees should be ignored in computing the surplus
area." We. mention this only to emphasize that the legislature has been
anxious to, guard against erosion of the surplus pool by alienatory maneouvres
or even decrees and orders obtained through judicial or quasi-judicial
The Act defines "permissible area"
"in relation to landowner or a tenant as 30 standard acres and where such
30 standard acres on being converted into ordinary acres exceed 60 acres, such
60 acres." (s. 2(3), The landlord who has a vaster extent may utilise the
specific lands he wants to keep for himself and this is called "reserved
area." Section 2(4) defines "reserved area" as "the area
lawfully reserved under the Punjab Tenants (Security of Tenures Act) 1950 (Act
XXII of 1950). as amended by President's Act of 1951,..." The area other
than the reserved area, ie. the balance left over, is defined as ,surplus area".
Section 2 (5-a) defines "surplus area" a concept introduced by Act XI
of 1955. It is useful to extract the definition which runs thus :
"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 under section 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 under section 19-B, but it will not
include a tenants permissible area 163 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 rejecting a tenant from it, whichever is later, or if
the land-owner admits a new tenant, within three years of the expiry of the
said six months".
At this stage it may be mentioned that
landowner is not only entitled to self-cultivate his reserved area but is
obliged to do, so within the period stipulated in the proviso to s.2(5-a) test
such un-self-cultivated land become surplus area. But for fear that absentee
landlords may pretend to be self-cultivating while really leasing out their
lands to close relations, the statute defines "self cultivation" as
cultivation by the' land-owner personally or through his wife or children or
through prescribed relations. It may be noted that a son-in-law is not one of
those relations (vide rule 5 of the Punjab Security of land Tenures Rules,
Sections 5, 5-A and 5-B deal with the
reservation of land by large landholders and the procedure in that behalf What
is important to note is that in the present case the landholder has made her
reservation and the properties in dispute fall outside it and are therefore
included in the surplus area.
Immunity from eviction of tenants is
conferred by s. 9 but a landlord is entitled to eject a tenant from the area
reserved under this Act. However, such ejectment shall not be given effect to
by way of disposession unless the displaced tenant"is accommodation
surplus area in accordance with the provisions of s. 10-A or......' Of course,
if the tenant is a close relation of the landlord within the prescribed
category this protection does not enure to him as per the second proviso to
s-9-A. It is not worthy that a son-in law is not one such relative. It is
obvious that a large number of tenants would be ejected by small landholders
and large landholders from their reserved areas under s. 9 of the Act. Naturally,
legislative concern for their rehabilitation found expression in s. 10-A(a)
which runs thus 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 clause (i) of
sub-section (1) of s. 9." The success of the scheme, therefore, depends on
the extent of the surplus pool. For one thing, large landholders, when deprived
of their excess area, as well as small landholders, in order to be viable, have
to secure actual possession of what they are eligible to keep, this being the
legislative justice shown to landowners by the Act. Actual possession could
follow only if the potential for re-settlement of dispossessed tenants were
sufficient. That is why the legislature has jealously protected the surplus
pool which plays a pivotal role in the whole programme. For this purpose s.
10-A(b) was brought in in 1955 and it reads 164 "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 a surplus area at the commencement of this Act, shall
affect the utilization there of in clause (a)." Plainly, there is a wide
interdict against any transfer of other disposition of land comprised in the
surplus area, if it will affect the utilisation thereof for the re-settlement
of tenants ejected or to be ejected under cl. (i) of sub-s.
(1) of s. 9. Such a strategic provision which
takes care of the surplus reservoir of land must receive a benignantly spacious
construction. There can, therefore, be no doubt that the expression
"transfer or other disposition of land" must definitely cover leases
which, by very definition, are a species of transfer of land. It looks as if
other devices were resorted to by large land-owners to defeat the surplus area
scheme of s. 10-A. Courts and other authorities were approached and, through
their processes, decrees and orders were secured whereby lands out of the
surplus area could be salvaged by the land-owner. The legislature finding this
anti-ceiling phenomenon clamped down a blanket ban on the adverse operation of
"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 a person which could have been declared a,-, his surplus area.
Section 10-A(c) may be usefully reproduced in
"10-A(c) For the purposes 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." It is extremely
important to remember that while this provision was enacted in 1962 and while
s. 10-A(b) prohibiting alienations was passed in 1955, both these provisions
were given retrospective effect as from the decisive date, namely, April 15,
1953. The deep concern of the legislature is clear from all this.
Right from the beginning one of the primary
objects of the statute had been to enable tenants to purchase the Landlord's
right and become full owners and in this behalf was enacted S. 18 which has
figured very much in the controversy in these appeals, It states :
"18(1) Notwithstanding anything to the
contrary contained in any law, usage or contract, a tenant of a landowner other
than 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)........
165 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
any 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 further that.. . .
The further sub-sections of s. 18 deal with
the process of purchase, the Assistant Collector being the authority empowered
to order such purchase.
In the appeals before us there is an apparent
competition for primacy between s. 18 and s. 10-A(b) and (c), and perhaps it
may be relevant to refer to s. 23 also. This last section reads:
"No decree or order of any court or
authority and no notice of ejectment shall be valid save to the extent to which
it is consistent with the provisions of this Act.
As we will presently see we are called upon
to reconcile the claims and contentions put forward by either side on the
strength of the provisions we have just mentioned.
Let us interpret and apply the law to the
facts of this case. The learned judge, Narula, J., stated at the outset:
"I have to take the fact as found by the
Collector for the purposes of determining the surplus area of the landowner and
consequently for determining the rights of the petitioners so far as they are
sought to be interfered with by the impugned order." We agree. The same
judge formulated the legal questions falling for decision in these words:
(1) Whether the expressions
"transfer" or "other disposition of land" in clause (b) of
section 10-A of the Act, include involuntary transfer of a part of the holding
of a landowner by operation of an order forcing the landowner to sell a part of
his holding to a tenant under section 18 of the Act;
(2) Whether the order of any other authority
referred to in clause (c) of section 10-A of the Act includes an order of the
authorities under the Act itself passed under section 18 thereof in favour of a
tenant, which order has become final either at its original stage or at the
appellate or revisional stage; and (3) In case of conflict between section 10-A
and section 18 of the Act, which of the two provisions has supervening effect
or overrides the other." We do not wholly agree with this itemisation but
it is good enough to focus attention of the relevant area of legal controversy.
one further point pressed in both courts may be noticed, viz., that the order
of purchase of the concerned officer not having been set aside binds the other
166 authority determining the surplus area and so the question is whether one
officer under the Act could ignore an order by another officer under a
different provision of the Act, having regard to comity of courts and
jurisdictions. As indicated already, the principal discussion in the judgment
under appeal has turned on the claim to primacy of s. 18 as against s. 10-A and
so it is as well that we state right now what stand we propose to take in
resolving apparent conflicts in the provisions of a socially-oriented, project implementing
legislation. Every such statute has a soul and an integrated personality-minor
deformities may mar this unity, especially when piecemeal amendments and
unskilled drafting occur. The basic judicial approach must be to discover this
soul of the law and strive to harmonise the many limbs to sub serve the
pervasive spirit and advance the social project of the enactment. Seeming
confrontations between provisions must be resolved into a cooperative coexistence.
This interpretative activism persuades us in this case to reconcile what the
High Court has conceived to be a conflict between s. 10-A and s. 18.
Here, there are 3 khasra nos., two of which
(nos. 265 and 343) were outstanding on tenancy with Chandu and Sri Chand at the
relevant date, April 15, 1953 (which admittedly, is the date with reference to
which "Permissible area", "reserved area" and "surplus
area" have to be fixed). The third item, khasra no. 177, had on the
relevant date been with the landowner directly. The High Court treats them as
two ,categories, not without reason. What was with tenants on the relevant date
may well be part of their permissible area since 'landowner' in s.2(1) includes
Moreover, a permissible area of a tenant is
excluded by definition from 'surplus area', obviously because the tenant can
stabilise himself on his permissible area and it is not intended to dislodge
him there from for re-settling other tenants under s. 10-A. Therefore, Narula,
" A survey of the above-mentioned
provision of the Act leave no doubt that if Chandu and Sri Chand who were the
tenants of the land now comprised in the tenancy of Amar Singh on April 15,
1953, had continued to be the tenants of that parcel of land, subsequently the
land in their tenancy could not be included in the permissible area of the
landowner. On the other hand it would have been the right of Chandu and Sri
Chand to either get the said land declared as heir own permissible area or to
exercise their right under section 18(1) of the Act by making an application
under sub-section (2) thereof to purchase the said parcel of land." The
learned Judge proceeds to negative the argument that the legal result is
different when the sitting tenants on the relevant date have quit and new
tenants have been inducted subsequently: "Surplus area and Permissible
area of a landowner has to be determined in view of the situation as it existed
on the 15th of April, 1953 and subsequent alienations have to be completely
ignored. Though subsequent acquisitions by the landowner may in certain
circumstances be included in the., surplus area as accretions, no such thing
can happen in respect of that parcel of land which could not be included in the
sur167 plus area of the landowner on 15th of April, 1953, which was again not
with the landowner on the date when the Collector sought to determine his/her
surplus area. In other words, once a piece of land is excluded from the surplus
area of a landowner on account of its forming the subject matter of the holding
of a tenant in occupation (who is not related to the landowner in the
prohibited manner) on the 15th of April, 1953, the mere subsequent change of
the holder of the tenancy will not make the tenancy premises revert to the
surplus area of the landowner. It is, therefore, clear that the land comprised
in Khasras Nos. 265 and 343 (subject matter of the tenancy in favour of Amar
Singh) could not fall within the definition of surplus area in the hands of the
landowner and Section 10-A of the Act could not apply to it." We are
afraid there is a fallacy in this reasoning. It is true that a mere change in
tenancy by transfer of the lease as such, as distinguished from a landlord
inducting a new tenant on land the prior lease over which has been terminated
and possession restored to the landlord, may not perhaps offend s.10-A although
situations may arise even in such cases leading to a different conclusion. We
need not investigate this possibility further. In the present case, the
exclusion of the two khasras from the surplus area depends on their being part
of the permissible area of Chandu and Sri Chand. To salvage the lease in his
favour, Amar Singh, the new tenant, must prima facie show that this alienation
does not violate s.10-A(b) which prohibits all transfers and other dispositions
which diminish the surplus area of the landowner concerned. He has, therefore,
to make out (a) that the demised lands do not form part of the landlord's
surplus area or (b) that, as was vehemently argued but may with little legal
qualms be rejected, a lease is not a 'transfer or other disposition of
property'. The High Court has disposed of this latter submission with the
simple but impeccable observation"that the creation of a lease is a
transfer or a demise referred to in s.105 of the Transfer of Property Act
admits of no doubt". The purpose of the prohibitive provision is to strike
at every alienatory essay and the natural meaning of 'transfer' or other
disposition of land. apart from the contextual compulsion, embraces leases. The
contention that even wide words must oblige the landlord's plea for a narrow
meaning, viz., absolute transfer of ownership, is beyond us to accept.
Do the lands, khasras nos. 265 and 343,
because 61 outstanding leases on April 15, 1953, swim out of the surplus area
ipso facto? We think not. For that they must be comprised in the permissible
area of the tenant. Here we have no information placed by him who wants to
prove it affirmatively that these plots lie within the permissible area of 30
standard acres, by definition of Chandu and Sri Chand. That they did not
continue in possession after the Act is not disputed. If that were in
possession of other lands either as owners or tenants, and such holding was 30
acres or more, it was open to them to relinquish these lands being in excess of
their permissible area, in which case, not being the permissible area of the
tenant and being in excess of the reserved area of the landlord, these lands
would be surplus area of the landlord within the definition under s.2(5-a). In
the absence of proof that the lands in dispute were comprised in the
permissible area of the prior it is not possible to hold that they do not come
within the 168 surplus area of the landlord, Mst. Lacchman. On the contrary,
the likely inference flowing from the disappearance from the scene of Chandu
and Sri Chand their failure to claim to remain as tenants or to purchase is
that these were not their permissible area. It is not as if every bit of land
that is with a tenant on the relevant date is his permissible area. it has to fulfill
the requirement of s.2(3). No such test has been satisfied here. Nor can it be
argued that even if a tenant gives up his interest in the holding the statute
will haunt him with rights. 'Permissible area' is not a concept in the abstract
but, as s.2(3) mentions, is 'in relation to a landowner or a tenant'. In
relation to Chandu and Sri Chand no claim to permissible area or consequential
rights has been set up and Amar Singh is not a transferee from them but a de
novo tenant. It follows that the two khasras should be computed as part of the
surplus area of Mst. Lacchman and s.10-A(b) operates to invalidate the alleged
lease to Amar Singh as its clear impact is to diminish the surplus area of the
landowner. He had, therefore, no right as a tenant to purchase under s. 18.
The more serious question raised turns on the
effect of the purchase orders, Annexure A, on s.10-A(c). The High Court
reasoned-and this was repeated before us as counsel's argument-that while it is
true that for determining the surplus area of a person 'any judgment, decree or
order of a court or other authority' obtained after the commencement of the Act
and having the effect of diminishing his surplus area 'shall be ignored', this
mandate does not apply to orders of authorities under the Act, like the
Assistant Collector exercising powers under s. 18. The learned judge quotes the
object of s. 10-A(c):
"In order to evade the provisions of
section 10-A of the parent Act interested persons, being relations, have
obtained decrees of Courts for diminishing the surplus area.
Clause 4 of the Bill seeks to provide that
such decrees should be ignored in computing the surplus area." From this
the Court infers that 'other authorities' in s. 10-A(c) are arbitrators or such
like agencies and not authorities under the Act. It is useful to read the
objects and reasons relating to the clause of a bill to illumine the idea of
the law not to control its amplitude. Moreover, the purpose, as revealed in the
statement of object is plain.
The legislature wanted to insure the
invulnerability of the surplus pool provision to attacks, by ignoring judicial
and quasi-judicial Orders of every sort. In this behalf two provisions were
made namely ss. 10-A. and a. 23, primarily the former. In fact, we are concerned
only with s.10-A(b) and (c).
The High Court has taken the view that s.
10-A(b) cannot affect involuntary transfers and since a purchase effected under
S. 18 effects an involuntary transfer it is not hit by s. 10-A(b). The further
view taken is that the expression "other authority" in s. 10-A(c)
refers only to authorities other than those under the Act; the Assistant
Collector who has ordered the purchase under s. 10 being outside s. 10A(c), his
order cannot be ignored by the Collector on the strength of S. 10-A (c).A third
point converging to the same conclusion taken by the 169 Court is that when an
order under s. 18 has become final, the Collector acting under S. 10-A(c)
cannot but be bound by it until it is set aside in appeal or revision or other
appropriate proceedings even though the Assistant Collector's order under s. 18
was passed on a compromise between the parties.
We may now consider the soundness of these
grounds separately. The object of s. 10-A(c) cannot be fulfilled unless the widest
meaning were given to the expression "court or other authority". Nor
is there any basis for truncating the ambit of "other authority" in
the manner the High Court has done. "Other authority" is every other
authority within or without the Act. The reason given by Narula, J., to exclude
the officer passing orders under s. 18 from "other authorities" is
that "the result would be that the benefit sought to be conferred by s. 18
on the tenants would be completely nullified and obliterated". In this
connection he further observed :
"In every case, order under section 18
of the Act, would be passed after the Act came into force. If an order under
section 18 has to be ignored by the operation of clause (c) of section 10-A,
every order under section 18, must be ignored while declaring the permissible
area of the Landowner. There is no discretion in the authorities to apply the
provisions of clause (c) of s. 10-A or not to apply them. The provision is
mandatory, if, therefore, clause (c) of section 10-A could be utilised for
abrogating the effect of an order under section 18 of the Act, the whole scheme
of the Act of distribution of land to the tenants and for conferring a right on
a tenant to purchase the land within the limits of permissible area, would be flouted."
Having given serious consideration to the pros and cons we are not satisfied
that this argument is valid; on the contrary, if upheld it may stultify s. 10-A
and the scheme of the statute altogether. Obviously, if every order of purchase
sanctioned under s. 18 can successfully diminish surplus area of a landowner, a
spate of such, orders would be procured by previous arrangement between the
landowner and his nominee tenants or even bona fide alienees. The present case
is a capital illustration of the fraud and collusion that may follow on such an
Indeed, there is no provision in s. 18 to
give notice to the Collector who is to declare the surplus area and so the
State which is vitally concerned in the re-settlement of ejected tenants utilising
the surplus area has no opportunity to present its case against the fraudulent
character of the proceedings under s. 18 before the Assistant Collector. The
State, not being a party to that order, in any case cannot be bound by it,
whatever may be the effect as between the parties to those proceedings. We are
concerned here with a challenge by the State to the efficacy of the order,
Annexure A, and so we cannot muzzle the plea of the State that the order under
s. 18 is void if there are good grounds to hold with it.
Nor is there force in the argument that
benefit under s. 18 would be "completely nullified and obliterated"
if s. 10A(c) were to apply to it. It is wrong for the Court to have said that
"in every 170 case " orders under s. 10 would have to be ignored.
That is not the result of s. 10-A. All the three sub-clauses of that section
read together show that if the landlord by any act or omission of his suffered
a diminution in the surplus area by a transfer, voluntary or otherwise, in
favour of another, contrary to the right of the State Government to dispose of
it, such a transfer only is liable to be set aside. The tenants described in s.
18 in whose favour the authority sanctions the purchase of the land are not
transferees whose transfers have to be set aside as being contrary to the right
of the State Government. Actually, the bulk of the cases under s. 18 would be
by tenants who are eligible to purchase by virtue of six years' continuous
occupation under s. 18(1). Their purchases would often be from land which is
their permissible area. Every tenant with six years' ending, be it before or
after the commencement of the Act, will be entitled to buy the ownership.
Of course. if he is within the reserved area
he is liable to be evicted even before he purchases but if he is outside the
landlord's reserved area he can move for purchase. Such a purchase being from
the permissible area of the tenant is outside the surplus area of the landlord
and does not diminish "the area of such person which could have been
declared as his surplus area". Ex hypothesi "surplus area"
excludes a tenant's permissible area. Therefore, even if that land falls
outside the reserved area of the landowner, if it is within the tenant's
permissible area, its purchase by the tenant cannot diminish the landowner's
(emphasis supplied) Another substantial
category, who may buy under s. 18 without reducing the surplus area, is the
re-settled tenants. When the State acting under s. 10-A(c) accommodates an
ejected tenant the utilization of the surplus land pro tanto is fulfilled. Such
a rehabilitated tenant of the landlord, after the six years' term, can qualify
to buy under s. 18. Such a purchase only fulfils the second object of the
Statute of making the tiller the owner and does not in any way diminish
the-surplus area of the landlord. For, with the re-settlement of an ejected
tenant that land, for all practical purposes, is no longer available for the
only purpose for which the surplus pool is meant, viz., re-settlement of
ejected tenants. Thus, it is clear that s. 18 is not rendered otiose by the
view that orders thereunder which diminish the surplus area are bad for
violation of s. 10-A(c). Indeed, the principal category adversely affected by
our view would be post-statutory collusive tenants, who are in most cases
likely to be brought in by landlords experimentally to rescue those lands from
the surplus pool, and even in bonafide cases they do not deserve sympathy since
they damage the prospects of displaced tenants from being re-settled. It may as
well be noted here that the person who is entitled to purchase under s. 18 is a
tenant. i.e. a person lawfully inducted on the land as a tenant. Once a land is
held to be part of the surplus land of the landlord, it rests with the State
Government for being disposed of for resettlement of tenants and any
disposition of the same by the landlord after April 15, 1953 would be invalid
against the State Government's claim to dispose of it. That is the effect of s.
10-A(a) &(b). Therefore, in respect of any land to which the State
Government makes a claim for resettlement, on the ground of its being surplus
171 land, any person inducted by the landlord after April 15, 1953 would have
no title to it as a tenant and, would not be able to avail of s. 18. To sum up,
the 'other authorities' in s. 10-A(c) include officers under s.16.
Secondly, the plain meaning of s. 10-A(c) is
that any order by any authority which shrinks the surplus area of the landlord
is invalid to the extent laid down in that clause.
Thirdly, orders under s. 18 if they diminish
the surplus area suffer the same fate and Annexure 'B' fails to shield Mst.
Lacchman's lands against orders re-settling ejected tenants thereon.
Shri Dhingra relied on Sahib Ram v. The Financial
Commissioner, Punjab (1) but that decision only rules that a tenant, who
completes his 6 years qualifying occupation required by s. 18 after April 15,
1953, is not excluded.
Vaidialingam, J., took care to refer to the
case under appeal now before us (Amar Singh's case) and said that it dealt with
the scope of s. 10-A and did not bear upon the point before them.
The last point urged by Shri Dhingra for the
respondent-and accepted by the High Court-is that the order, Annexure A, having
become final could not have been ignored in Annexure 'B'. Here it serves the
discussion to remember that the leases in question have been found by the
Collector to have been collusively got up to dwindle the surplus area of the
landowner. The Collector in Annexure 'B' finds:A " ......and it is crystal
clear that Amar Singh and Indraj had not been in continuous cultivating
possession of this land for full six years, the other copy of Khasra Girdawari
put in this case and which is to be found at page 27 of the file, shows the
possession over this land of Indraj and Amar Singh only from the year 1957-58,
and so their possession over it for full six years is not complete as
yet." He has also stated that he was convinced "that the landowner
has conspired with her son-in-law Amar Singh and his brother Indraj to retain
this area in contravention of the law." A third pregnant fact is that the
proceedings under s. 18 were prima facie collusive, and to burke an enquiry
into the eligibility of the alleged tenants to purchase under s. 18 an
expedient was resorted to. "Before the proceedings could start" says
Annexure 'A', "the parties have come to terms and they have actually put
in court a compromise deed which they have backed up by their statements."
Thus, no finding on the basic facts of entitlement to purchase have been
recorded by the authority under s. 18 because he has merely stated in Annexure
"As per statements of the parties, I
allow Amar Singh to purchase the land in suit." These facts have to be
assumed since a controversy thereon in the writ court or in this Court cannot
be permitted. We are, therefore, concerned to see whether on such a factual
basis any legal consequences compelling the court to uphold Annexure 'A', and
thus judicially condoning what is a fraud on the statutory scheme, follow.
(1)  3 S.C.R. 790 172 An order like
Annexure 'A' ordinarily binds the parties only and here the State which is the
appellant is seriously prejudiced by that order but is not a party to it.
Therefore, it cannot bind the state proprio
vigore. It was argued by Shri Dhingra that the State could have moved by way of
appeal or review and got the order set aside if there was ground and that not
having done so it was bound by the order. As a matter of fact, the State, which
is not a party to the proceedings, does not have a right of appeal. The
ordinary rule is that only a party to a suit adversely affected by the decree
or any of his representatives-ininterest may file an appeal. Under such
circumstances a person who is not a party may prefer an appeal with the leave
of the appellate court "if he would be prejudicially affected by the
judgment and if it would be binding on him as res-judicata under Explanation 6
to s. 11." (see Mulla Civil Procedure Code-13th edn vol. I, 421). Section
82 of the Punjab Tenancy Act, 1887, which may perhaps be invoked by a party
even under the Act, also speaks ,of applications by any party interested. Thus,
no right of review or ,of appeal under s. 18 can be availed of by the State as
If the State is not precluded from proving
the invalidity of Annexure 'A, it is clear that the said order is
unsustainable. Section 18 applies only to tenants, i.e., not anyone who claims
to be, but legally is one.-Here who has granted the lease ? Mst. Lacchman? How
could she, after gifting away to her daughter? And no lease from daughter
Shanti is set up although obscurely both mother and ,daughter are made
respondents. Secondly, s.18 qualifies for purchase ,only those tenants who had
6 years continuous occupation. Here, on the Collectors finding, Amar Singh and
Indraj came by possession ,only in 1957-58 and, as he points out in Annexure
'B', the six year period is not complete at the time of application. The reason
why ,even before the proceedings began parties presented a compromise ,and
avoided an enquiry is not far to seek. In short, the State could and did make
out the incompetence of the respondents to purchase under s. 18 and Annexure
'A', being also stricken by the vice of s. 10-A (b) and (c).
Shri Dhingra urged that s.18(1)(iii) did
contemplate purchase rights for persons who had no possession when the Act came
into force and their purchases must necessarily diminish the surplus area. This
seeming attractiveness vanishes when we notice that s.18(1) (ii) ,and (iii)
provide for two classes of hard cases where unjust evictions prior to the Act
coming into force had deprived them of their rights. For all practical purposes
the Act clothes them with such rights as they would have enjoyed had they not suffered
unjust evictions. That is why specific provision was made in s. 18 for them.
The exception proves the rule.
The paramountcy of s. 10-A cannot be
subverted by illegitimate use of the processes under s. 18.
Purchases under s. 18 being involuntary, s.
10-A(b) would not be hit, as it deals only with voluntary transfers, according
to Shri Dhingra. While we need not finally pronounce on this argument, it is
worthy of note that the expression 'transfer' is wide enough to cover transfers
by operation of law unless expressly excluded as 173 s. 2(d) of the Transfer of
Property Act. Moreover, special exclusions to save transfers by way of
inheritance and compulsory land acquisition by State have been made which would
have-been supererogatory had involuntary transfers automatically gone out of
the pate of s. 10-A(b).
Another argument was suggested that the order
even though passed on a compromise was as valid and binding as one passed on
contest, May be that as a broad proposition one may assent to it. But where a
compromise goes against a public policy prescription of a statute or a
mandatory direction to the Court to decide on its own certain foundational
facts, a razi cannot operate to defeat the requirement as, specified or absolve
the court from the duty. The resultant order will be ineffective. After all by
consent or agreement, parties cannot achieve what is contrary to law and a
decree merely based on such agreement cannot furnish a judicial amulet against
statutory violation. For, 'by private agreement' converted into a decree,
parties cannot empower themselves to do that which they could not have done by
private agreement alone'. (see Mulla, C. P. C., vol. II, P 1300). The true rule
is that "the contract of the parties is not the less a contract, and subject
to the incidents of a contract, because there is superadded the command of the
Judge". The learned author, Mulla, in his Commentary on Order XXIII r. 3
(Civil Procedure Code, vol. II, pp. 1299-1300) cites many authorities for this
proposition and observes "If a decree is passed under this rule on a
compromise which is not lawful, the Court should not enforce the decree in
execution proceedings. Thus, a sale of an office attached to a temple is
against public policy.
Hence, if in a suit against the holder of
such an office a compromise is arrived at whereby the holder of the office
consents to the office being sold in satisfaction of the debt due to the
plaintiff, and a decree is passed on the compromise, the Court should not
withstanding the consent decree refuse to sell the office in execution. It is
clear that if the matter had rested in contract only, the Court could not have
enforced the sale in a suit brought for that purpose. The mere fact that the
contract is embodied in a decree does not alter the incidents of the
contract." it may be right to conclude that any authority, like the
Collector here, enjoined to apply s. 10-A(b) and (c) may decline to act on a
compromise which has ripened into an order if the agreement between the parties
disposes of property in violation of a statutory mandate. He can and must lift
the veil and look the agreement of the parties in the face. The vice of
contravention of s. 10-A(b) is writ large in Annexure 'A.' A few decisions of
this Court bearing on the efficiency of consent decrees were cited at the bar
and they are exhaustively dealt with in Chari v. Seshadri(1). The other rulings
of this Court-all rendered under the Rent Control Law-are Bahadur Singh v. Muni
Subrat(2) (1)  1 S.C.C. 761. (2)  2 S.C.R. 432.
174 Kaushalya Devi v. K.L. Bansal(1), and
Ferozi Lal Jain v. Man Mal(2). The core principle or ratio that is revealed in
these cases is that in cases ,where a statute, embodies a public policy and
consequentially prescribes the presence of some conditions for grant of
reliefs,parties cannot by-pass the law by the exercise of a consent decree or
order, and mere judicial imprimaturs may not validate such decree or order
where the ,court or tribunal is not seen to have applied its mind to the
existence ,Of those conditions and reached its affirmative conclusion thereon.
Such mindless orders are a nullity but where the stage of the proceedings, the
materials on record and/or the recitals in the razi disclose the application of
the judicial mind, the order is beyond collateral attack merely on the score
that it does not ritualistically write into ,the judgment what is needed by the
statute. The important facet of the law clarified in these decisions is that
where high public policy finds expression in socioeconomic legislation
contractual arrange merits between interested individuals sanctified into
consent or compromise decrees or orders cannot be binding on instrumentalities
of the State called upon to enforce the statute, although the tribunals
enjoined to enforce the law may take probative note of the recitals in such
compromise or consent statements in proof of facts on which their jurisdictions
may have to be exercised. Further, if there is no evidence either by way of
admissions in consent statements and razis or otherwise on the record, the
reliefs sanctioned by the statute cannot be granted and orders or decrees which
purport to grant them sans proof of the legal requirements will be a nullity.
In Kaushalya Devi v. K. L. Bansal (1) the
Court was concerned with a suit for eviction under the Rent Control law. On
being satisfied about the statutory grounds the Court could decree possession.
The plaintiff set out two grounds both of which were, denied in the written
When the pleadings of the landlord and the
tenant were in this state, both parties filed a compromise memo in and by which
they agreed to the passing of a decree of eviction against the tenant.
Representations to the same effect were also made by the counsel for both
parties. The court passed the following order :
" In view of the statement of the
parties counsel and the written compromise, a decree is passed in favour of the
plaintiff. against the defendant." The tenant did not vacate the premises
within the time mentioned as per the compromise memo. On the other hand, he
filed an application under s. 47, C.P.C., pleading that the decree is void as
being in contravention of s. 13 of the Delhi statute. The High Court held 'that
the decree was a nullity, as the order was passed solely on the basis of the
compromise without indicating that any of the statutory grounds mentioned in s.
13 existed. Following the decision in Bahadur singh v. Muni Subrat(supra), this
Court upheld the order of the High Court.
In Ferozi Lal Jain v. Man Mal(2), the
landlord's grounds for eviction were denied by the tenant but they reported
compromise with prayer for a decree for eviction. This Court ruled (1)  2
S.C.R. 1048, (2)  3 S.C.C. 181.
175 "From the facts mentioned earlier,
it is seen that at no stage, the Court was called upon to apply its mind to the
question wheather the alleged 'subletting is true or not. Order made by it does
not show that it was satisfied that the subletting complained of has taken
place, nor is there any other material on record to show that it was so
satisfied. it is clear from the record that the court had proceeded solely on
the basis of the compromise arrived at between the parties.
That being so there can be hardly any doubt
that the court was not competent to pass the impugned decree. Hence the decree
under execution must be held to be a nullity." In both these cases the
decrees based solely on the razi and without the courts applying their mind,
were a nullity. The order of the Assistant Collector, Annexure 'A', bears
resemblance to the situation in these two cases. On the other hand K. K.
Chari's case (supra) is a study in contrast. There was plethora of evidence to
prove the ground of eviction and the court directed eviction based on the terms
of the compromise and after making a reference to the provisions for eviction.
Vaidialingam, J., has explained this aspect elaborately.
The order, Annexure 'A', was passed before
evidence was let in because even before the trial began parties reported
compromise and gave statement accordingly. Not a word is to be found in the
order indicating; the court's mind adverting to the requirements of s. 18 of
the Act; the contrary being the evidence. Indeed, unlike in K. K. Chari's case,
no material existed on record to warrant a finding (a) regarding the tenancy,
(b) continuous occupation for over 6 years, (c) the surplus area being
Nor even recitals amounting to admissions on
facts of entitlement to purchase were made. The order was a nullity, denuded of
evidence and absent judicial satisfaction.
Strictly speaking, collusive razis cannot
affect the State which has the right to utilise surplus lands for re-settling
tenants. Certain proceedings, e.g. election petitions and actions under s. 92,
C.P.C., once set in motion, transcend private interests and public authorities
cannot pass orders on collusive representations without regard to public
interest or independent satisfaction. Annexure 'A' ex facie was a nullity. It
is unfortunate that the Assistant Collector has, with insipient insouciance,
lent his authority to a compromise, where care and conscientiousness would have
averted the error. We are satisfied that Annexure 'A' is unavailing against the
State and its officers in accommodating ejected tenants on the lands in
question. The public policy of s. 10-A cannot be outwitted by consent orders
calculated to defeat the provision and without the statutory authority charged
with the enquiry being satisfied on the bona fides of and eligibility for the
purchase. So viewed, the respondents in these appeals cannot on the strength of
the purchase orders exclude those lands from the operation of s. 10-A(a) of the
The legislature, charged with the
constitutional mandate of art. 38 and art. 39 has passed the Act and amended it
from time to time in furtherance of the major purpose of distributive justice.
The judicial wing of the State, viewing the law in the same wavelength, 176
interprets and applies it. But the Executive instrumentality of the State has
an activist role to play if the arm of the law were not to hang limp and social
justice is not to be a cynical phrase. Good laws and correct interpretations
are not enough. Quick, conscientious and public minded enforcement, of the
provisions is the responsibility of Government and its officers. In the present
case the Assistant Collector'& order, Annexure 'A', has fortified an
attempted fraud on the statute. It was stated at the Bar that a score of years
notwithstanding, the processes of fixing reserved areas and surplus areas on
the strength of which alone conferment of proprietary right on tenants and
re-settlement of ejected tenants could, proceed, are still lingering. If this
is true Government has much to answer for and litigation bounds where delays in
executive enforcement occur. We expect that this land reform measure will not
be a slow motion picture but a strict and swift procedure so that parties
affected may know where they stand. There is an 'executive' dimension to law's
delays which defeats the rule of law. It must be remembered that the third
reading of a bill and the last appeal in court are not the final scene in the
drama of law and society. A post-audit on the enforcement of social
legislation, all social scientists will agree, is a material aspect of law in
action, inter-alia to avoid the administrative cutting edge of the law becoming
With these hopeful observations we allow the
State appeals but we direct that in the circumstance parties will bear their
SARKARIA J.-I have gone through the judgment
prepared by my learned brother, Krishna lyer J. Since I cannot fully subscribe
to the reasoning and the view taken therein, I have thought it fit to record my
own opinion separately.
These two appeals (Nos. 1755 and 1756 of
1967) on certificate granted under Art. 133(1)(c) of the Constitution by the
Punjab High Court, raise questions with regard to the interpretation and
interrelationship of the provision of Sections 2(5-a), 10-A and 18 of the
Punjab Security of Land Tenures Act (X of 1953) (for short, the Act). The
questions for determination, as formulated by the High Court, are :
"(i) Whether the expression
"transfer" or "other disposition of land" in clause (b) of
section 10-A of the Act., includes involuntary transfer of a part of the
holding of a landowner by operation of anorder forcing the landowner to cell a
part of his holding to a tenant under section 18 of the Act;
(ii) Whether the order of any "other
authority" referred to in clause (c) of section 10-A of the Act includes
an order of the authorities under the Act itself passed under section 18
thereof in favour of a tenant, which order has become final either at its
original stage or at the appellate or revisional stage; and 177 (iii) In case
of conflict between section 10-A and section 18 of the Act, which of the two
provisions has supervening effect or overrides the other." To the above, I
may add a fourth question which arises in Amar Singh's case (C.A. 1755 of 1967)
and has been dealt with by the High Court.
(iv) Whether any land held by tenants on
April 15, 1953 within the permissible area of those tenants, can be included in
the 'surplus area' of the landowner, if, at the time the surplus area collector
takes up the determination of the matter, that land is found to be comprised in
the tenancy of persons other than the original tenants." The material
facts are these:
On April 15, 1953 when the Act came into
force, Smt. Lachhman (hereinafter referred to as the 'landowner') owned 101 .6
standard acres, equivalent to 404.10 ordinary acres, of land in the revenue,
estates of two villages, namely, Darba Kalan and Nahran Wali. Out of this
holding of the landowner, we are concerned only with Field Nos. 177, 265 and
343, situate in the area of Darba Kalan. On the determinative date (April 15,
1953), Field No. 177 measuring 64 bighas and 12 biswas which is the subject
matter of C. A. 1756/67, was in the personal cultivation of the landowner,
while Field Nos. 265 and 343, measuring 67 bighas and 19 biswas were in the
occupation of two tenants, namely, Sri Chand and Nathu.
It is not clear from the record whether the
landowner had made the reservation or selection of her permissible area in the
prescribed manner, within time. But the learned Counsel for the parties before
us are agreed that Field Nos. 265, 343 and 177 in question do not form a part
of her reserved or permissible area.
It appears from the Surplus Area Collector's
order that in 1955 (vide mutation No. 144), the landowner tried to gift this
land in favour of her daughter Shanti Devi, who, in turn, attempted to sell the
same to her husband, Amar Singh, and the latter's brother, Indraj. These
alienations were ignored by the Surplus Area collector as per his order dated
April 24, 1961, while declaring the surplus area of the landowner. Against that
order, Amar Singh and. Indraj carried an appeal to the Commissioner. The
landowner also preferred a separates appeal.
On May 2, 1961, Amar Singh made an
application under a. 18 of the Act before the Assistant Collector, 1st Grade,
for purchase of the land comprised in Field Nos. 265 and 343, on the ground
that he has been in its continuous occupation as a tenant for the requisite
period. A similar application was made on the same date, by his brother,
Indraj, for the purchase of Field No. 177. After serving notice on all
concerned, Shri Hardyal Singh, Assistant Collector 1st Grade allowed these
applications on September 15, 1961, on the basis of a compromise between the
applicants and the landowner. In compliance with that order, Amar Singh,
deposited in the Treasury,.
178 Rs. 13,590/which had been determined as
the purchase price by the said Collector. Indraj also in his case deposited the
price assessed by the Collector, The effect of these proceedings and the order
of the Collector was that Amar Singh and Indraj the tenants, in the words of s.
18, itself, "shall be deemed to have become the owners of the land".
The Commissioner on December 21, 1961, taking
notice of the statutory purchases of these fields by Amar Singh and Indraj
under s. 18, allowed their appeal and remanded the case to the Collector for de
novo enquiry regarding the area in occupation of Amar Singh and Indraj as
tenants under the landowner.
After the remand, in the course of de novo
enquiry, the same Officer, Shri Hardyal Singh, as Collector, Surplus Area,
passed the impugned order, dated May 11, 1962, whereby he declared 408 .10
ordinary acres equal to 101 .61 standard acres as the surplus area of Smt.
Lachhman and included in that area the land in question (comprised in Field
Nos. 265, 343 and 177) of which according to his earlier order Amar Singh and
Indraj were deemed to have become owners by purchase under s. 18. He ignored
his order, dated September 15, 1961 on the ground that Amar Singh and Indraj
has not been in continuous occupation of these fields as tenants for the full
terms of six years and that "in fact the landowner has conspired with her
son-in-law, Amar Singh, and his brother, Indraj, to retain this area in
contravention of the law". It was added that the said order was based on a
compromise and was a "collusive one".
Amar Singh and Indraj filed two separate writ
petitions under Art. 226 of the constitution for the grant of a writ of
certiorari for bringing up and quashing the order, dated May 11, 1962, of the
Surplus Area Collector and for a writ of Mandamus directing the respondent
State not to dispossess them from the fields purchased by them under s. 18.
The High Court by its common Judgment, dated
October 4, 1966, answered the three questions referred to above. as under
"(i) The expression "transfer" and "other disposition of
land in clause (b) of section 10-A of the Panjab Security of Land Tenures Act
10 of 1953, do not include completed sales effected tinder s. 18 of the Act ;
(ii) In exercise of the powers conferred by
clause (c) of section 10-A of the Act, the authorities under the Act cannot
exclude from consideration and order of the Assistant Collector or Collector
under section 18 of the Act, where by a part of the holding of the landowner
has vested absolutely in the erstwhile tenant; and (iii) If any conflict were
detected between section 10-A and section 18 of the Act, the special provision
or law contained in the latter section would override the earlier and general
provision." 179 Regarding Question (iv) in Amar Singh's case, it was held
that since Field Nos. 265 and 343 were, on April 15, 1953, comprised in the
tenancy of Sri Chand and Nathu as part of their permissible area, they could
not, in view of the definition given in s. 2 (5-a), be included in the surplus
area of the landowner, and the subsequent change of the holder of the tenancy
did not make the tenancy land revert to the Surplus Area. That was, according
to the High Court, an additional reason why s. 10-A was not attracted in Amar
In order that the questions raised in these
appeals may be considered in the proper perspective, it is necessary to notice
briefly the object, the scheme and the relevant provisions of the Act.
Chronologically, the Act is not the first
measure enacted by the State to give effect to its policy of abolishing
intermediaries and regulation of agricultural tenancies with the object of
securing tenure or procuring ownership of land to the tiller. The first piece
of legislation was the Punjab Tenants (Security of Tenure) Act, 1950. The
contours of the concepts "permissible area" and "reserved
area" first made their appearance in this statute. Under that Act, a
landowner was entitled to reserve 100 standard acres for his self-cultivation ;
and the protection against eviction was not available to tenants on the
reserved area. The 1950 Act was amended by Punjab Tenants (Security of Tenure)
Amendment Act, 1951 which reduced the permissible area of a landowner to 50
standard acres, and extended the tenure of the tenants from 4 to 5 years.
The Acts of 1950 and 1951, were repealed and
replaced by Act 10 of 1953 with which we are concerned. The preamble says that
the Act is a piece of legislation "to provide for the security of land
tenure and other incidental matters". The Act classifies landowners into
"small landowners" and "other landowners". A "small
landowner" as defined in s. 2(2), means a landowner whose entire land does
not exceed the "permissible area". Owners other than small landowners
fall in the second category. "Landowner" means a person defined as
such in the Punjab Land Revenue Act, 1887 (Act XVII of 1887) and also includes
an "allottee" and "lessee" as defined in clauses (b) and
(c) respectively, of section 2 of the East Punjab Displaced Persons (Land
Resettlement) Act, 1949. Under the Explanation added to the clause, a
mortgagee, in respect of the land mortgaged with possession is also to be
deemed a 'landowner'. "Landowner" is not comprehensively defined in
the Land Revenue Act, clause (2) of Sec. 3 of that Act makes it clear that
"landowner" does not include a tenant. Thus, it is to be noted that
lesses from the landowner (being other than those falling under s.
2(e) of the Land Resettlement Act, 1949) do
not come within the definition of "landowner-" given in the Act.
The fivefold object of the Act., endorsed by
Subba Rao J.
(as he then-was) speaking for this Court in
Gurbax Singh v. State of Punjab(1) is to(1)  1,S.C. R. 926.
180 (i) provide a permissible area of 30
standard acres to a landowner/tenant which he can retain for self cultiation
(ii) provide security of tenure to tenants by reducing their liability to
ejectment as specified in s. 9 ;
(iii) ascertain surplus areas and ensure
re-settlement of ejected tenants on those areas ;
(iv) fix maximum rent payable by tenants ;
and (v) confer rights on tenants to pre-empt and purchase their tenancies in
We are primarily concerned with the
provisions relating to (i), (iii) and (v). What is to be borne in mind is that
while self-contained and comprehensive provisions in Section 17 and 18 for
effective achievement of object (v) were made from the very inception of the
Act, object (iii) did not assume shape and contant till Punjab Act XI of 1955
The concepts 'permissible area' and 'reserved
area' were reshaped by the Act of 1953. 'Persmissible area' in relation to a
landowner or a tenant has been defined to mean "30 standard acres and
where such 30 standard acres are being converted into ordinary acres exceed 50
acres, such 60 acres". 'Reserved area' as defined in s. 2(4) mean
"area lawfully reserved under the Punjab Tenants (Security of Tenure) Act,
1950 (Act XXII of 1950), as amended by President's Act of 1951, hereinafter
referred to as the "1950-Act or under this Act".
"Reserved area" is dealt with in
sections 2, 5, 5-B, 9 and 18 of the Act.
Section 5 lays down that "any landowner
who owns land in excess of the permissible area may reserve out of the entire
land held by him in the State of Punjab as landowner, any parcel or parcels not
exceeding the permissible area by intimating this selection in the prescribed
form and manner to the patwari of the estate in which the land reserved is
situate or to such other authority as may be prescribed within six months from
the date of the commencement of the Act". Since, for one reason or the
other many landowners could not exercise their right of reservation within the
period of six months originally fixed by the 1953 Act, Sections 5-A, 5-B and
5-C were inserted by the Amending Act 46 of 1957 which came into force on
December 20, 1957.
Section 5-B enacts that "a landowner who
has not exercised his right of reservation under this Act, may select his
permissible area and intimate the selection to the prescribed authority within
the period specified in sec. 5-A and in such form and manner as may be
prescribed. The requisite form was prescribed by Punjab Government Notification
No. 3223-LR-11-57/1624 published in the Gazette Extraordinary of March 22,
1958, consequently, a landowner could make the selection of his permissible
area within six months of date.
In Gurbax Singh v. State of Punjab (supra),
this Court held that ,selection' in s. 5-B is similar to 'reservation' in s. 5 and
that, in terms, 181 s. 5-B gives the landowner another chance to make the
reservation if he had not exercised his right of reservation earlier under s.5.
It was clarified that "reservation" and "selection" involve
the same process and indeed, to some extent, they are convertible, for, one can
reserve land by selection and another select land by reservation.
Thus if the right of selection is exercised
under s. 5-B, by the landowner, his permissible area would become his 'reserved
area'; to that extent, the two concepts would represent one and the same thing.
The next provision to be noticed is in s. 9
which says inter alia that 'no landowner shall be competent to eject a tenant
except when such tenant is a tenant on the area reserved under this Act or. is
a tenant of a small landowner". Its sub-s. (2) provides that
"notwithstanding anything contained hereinbefore a tenant shall also be
liable to be ejected from any area which he holds in any capacity whatever in
excess of the permissible area." Before proceeding to s. 18, it will be
proper at this stage to advert to the concept "surplus area". This
concept was born in 1955 when Act XI of that year inserted in the principal Act
general provisions including s. 2(5-a) which (as modified by a subsequent Act) runs
"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 under s. 5-B or the area which is
deemed to be surplus area under (1) of section 5-C (and includes the area in
excess of the permissible area selected under section 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 rejecting 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
This definition will be considered further
while dealing with proposition (iv). At this place it will be sufficient to
have a general idea of the inter-relationship of "permissible area"
and ",surplus area", and the right of the landowner to deal with the
surplus area. A full Bench of Punjab and Haryana High Court in Dhaunkal v. Man
Kauri, (1) speaking through Mehar Singh C. J. summed up the interconnection
between these concepts thus:
"According to these provisions (of
sections 5, 5-A 5-B, 5-C read with Rule 6 of the 1956 Rules framed under the
Act) a landowner or a tenant who has more than 30 standard acres of land has to
select or reserve his permissible area and the excess is available as surplus
area. The Collector attending to such cases has to determine, therefore, three
(a), the permissible (1) (1970) LXXII PLR
182 area of a landowner, (b) the permissible
area of a tenant, and (c) the surplus area. The details for the determination
of these matters are to be found in 1956 Rules Rule 6 is really material No
doubt in the Act,there is no specific provision which says that a decision has
to be given by any authority whether a permissible area has or has not been
rightly reserved or selected by a landowner or tenant concerned, but when the provisions
of the Act with the rules are considered, it becomes plain that while
determining the surplus area with a landowner or a tenant the question of his
permissible area comes to be determined so that, if there is a question in
regard to the validity of reservation or selection of permissible area, it must
come for consideration before the Collector when he disposes of the surplus
area of a particular landowner or tenant......." (Parenthesis added).
Declaration of 'surplus area' does not have
the effect of expropriating the landowner of that area. The only effect of such
declaration is that the Government gets a right to utilize the surplus are, if
necessary, for settlement of ejected tenants. The tenants, thus settled on the
surplus land become by operation of law, the tenants of the landowner. They are
bound under the rules, to attorn and pay rent to the landowner. The latter's
rights of ownership remain intact, who is even entitled to evict the settled
tenants in certain contingencies specified in the Act. The landowner's right to
transfer the surplus area is also not taken away, but the transferee even if a
small landowner,will not be rid of the liability to accommodate evicted tenants
whom the Government may wish to resettle under s. 10-A(a). The Act does not
take away the right of the landowner to induct tenants on such area, or the
rights of the tenants so inducted, to purchase the land under s. 18 if it has
continuously remained comprised in their tenancy for the requisite period.
Section 9(1) (i) provides for eviction of a
tenant from the area of a landowner reserved under the Act. Section 9-A
safeguards such a tenant against dispossession of his tenancy so long as he is
not accommodated on a surplus area or other land by the State Government. There
is a positive indication in the 2nd proviso to s. 9-A that a landowner has a
right to induct tenants on his land even after the commencement of the Act. The
Proviso says "that if a tenancy commences after the commencement of this
Act, and the tenant is also an owner and is related to his landlord in the
manner prescribed, he shall not be entitled to the benefit of this
section". Now let us have a close look at the provisions of s. 18, which,
as amended by Punjab Act 11 of 1955 runs thus:
"18 (1) Notwithstanding anything to the
contrary contained in any law usage or contract, a tenant of a landowner other
than small landowner(i) who has been in continuous occupation of the land
comprised in his tenancy for a minimum period of six years, or 183 (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 after 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
any time, and in the case of a tenant falling within clause (iii)within a
period of one year from the date of the commencement of this Act;
(2) A tenant desirous of purchasing land
under subsection (1) shall make an application in writing to an Assistant
Collector of First Grade having jurisdiction over the land concerned , and the
Assistant Collector, after giving notice to the landowner and to all other
persons interested in the land and after making such inquiry as he thinks fit,
shall determine (formerly the word was 'fix,) the average of the prices
obtaining for similar land in the locality during 1 0 years immediately
preceding the date on which the application is made.
3. xxx xx xx 4(a) xxx xxx xx (b) On the
purchase price or the first installment 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..
(C) x x (5) to (7) x x" This section is
the keystone of the arch of peasant proprietors' complex which the Act seeks to
build. The non obstante clause with which the section starts indicates the
overriding operation of its provisions. It provides a self sufficing machinery
enabling tenants, to purchase lands comprised in their tenancies. Broadly
speaking, the existence of three conditions is necessary for the exercise of
this right. They are: (a) the landowner whose area is sought to be purchased is
not a 'small landowner' i.e. one owning less than 30 standard acres. (b) the
land to be purchased does not form a part of the 'reserved 184 area' of the
landlord which has become fixed by reservation under s. 5, or selection under
s. 5-D; (c) the applicant has been in continuous Occupation of the land, as a
tenant, for a period of six years or more on the date of the application.
For our purpose, condition (b) is the most
important. By excluding a landowner's reserved permissible area from the
operation of s. 18, it confines a tenant's right of purchase to that land which
either falls within the 'surplus area' of the landowner, or, was on April 15,
1953 within the 'permissible area' of that tenant.
As observed by this Court in Sahib Ram_v.
Financial Commissioner Punjab and Ors.(1) "Under s. 18(1) three categories
of tenants have been given a right to purchase from the landowner the land so
held by him. They are:
(i) a tenant who has been in continuous
occupation of the land for a minimum period of six years ;
(ii) a tenant restored to his tenancy under
the Act and whose period of continuous occupation of the land comprised in hi s
tenancy immediately before ejectment and after restoration amounts to six years
or more and (iii) a tenant who was ejected from his tenancy after-August 14,
1947 and before April 15, 1953, 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." Category (iii) has become extinct and clause (iii)
18(1) has become redundant because the
exercise of the right of purchase by this category was limited to a period of
one year, only, after the commencement of the Act. Only a small number of cases
fall under category (ii). Most of the tenant-purchasers belong to category (i)
which may be further divided into these sub-categories :
(a) Tenants who were on the land on April 15,
1953 and continued to be in occupation of their land for the requisite period
up to the date of the application ;
(b) Tenants who were inducted on the surplus
area by the landowner sometime after the determinative date and who thereafter
remained in continuous occupation of the land for the requisite term ;
(c) Tenants who were resettled on the surplus
area by the Government, and thereafter remained in continuous occupation of the
land for the requisite period. Quite a number of tenants who invoke s. 18, come
under sub-category (b).In the instant case, Amar Singh and Indraj are tenants
(1)  3 S. C. R. 796 at p. 805.
185 of this sub-category. In Sahib Ram's case
(supra) also, this Court was dealing with a case of tenants of this subcategory.
Vaidialingam J. speaking for the Court, enunciated the law on the point, thus
"So far as we could see there is no prohibition under the Act placing any
restrictions against the right of the landowner creating new tenancies after
the date of the Act. In fact, the second proviso to s. 9-A clearly indicates to
It deals with contingency of tenancy coming
into force after the commencement of the Act.
Section 18(1)(ii) gives a right to tenant to
purchase the land and that right has to be examined when an application under
s. 18 is made and cannot be deemed on the ground that he was not a tenant for
more than six years on April 15, 1953. There is no limitation placed under
clause (i) of s. 18(1) that the tenant who exercises his right should be a
tenant on the date of the Act or that be should have completed the period of
six years on April 15.
1953 and there is no warrant for reading in
s. 18(1)(i) clauses which it does not contain.
It is enough if the continuous period of six
years has been completed on the date when the tenant files the application for
purchase of the land".
The Validity or otherwise of the orders of
purchase made under s. 18 by the Collector in favour of Amar Singh and Indraj
will be discussed a little later, at its appropriate place. Suffice it to say
here, that in view of the law settled in Sahib Ram's case (supra), Amar Singh
and Indraj provided the other conditions were satisfied-would be entitled to
purchase the land comprised in their tenancies notwithstanding the fact that
the said land was a part of the surplus area of the landowner and these
tenancies were created by her after April 15, 1953.
It will now be appropriate to examine s.
10-A. It is one of the question. It reads 10--A (a) The State Government or any
Officer empowered by it in this behalf, shall be competent to utilise any
surplus area or the resettlement of 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 inheritance) no transfer or other disposition of land which is
comprised in a 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 landowner to receive rent from the tenant
186 (c) 'For the purposes of determining
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 dimnishing the area of such person which could have been
declared as his surplus area shall be ignored." Section 10-A with its
sub-clauses (a) and (b) was added by Punjab Act XI of 1955. Punjab Act 4 of
1959 inserted the saving clause (within brackets) in clause (b) Later Punjab
Act 14 of 1962, inserted clause (c) and gave retrospective effect to all the
provisions of s. 10-A from April 15, 1953.
The Statement of Objects and Reasons
published in the Punjab Gazette Extraordinary on April 16, 1955, lists among
others, the main objects of Act XI of 1955 :
"to prevent large scale ejectment of
to introduce new concepts of surplus area and
its utilization by the State Government for the resettlement of ejected tenants
.... to coordinate the ejectment of tenants with their resettlement on surplus
area .... to prevent sales and other dispositions of land adversely affecting
the continuance of tenancies and the extent of available surplus area ; to
reduce the period (from 12 to 6 years) entitling a tenant to purchase the land
comprised in his tenancy and to provide for easier terms of purchase and other
The professed object of the concept of
"Surplus area" and resettling ejected tenants on such area finds its
manifestation in the insertion of s.2(5-A) and S. 10-A(a) ;
while the object of entitling tenants to
purchase their tenancy lands on easier terms is reflected in the amendments
made in s. 18.
According to the Statement of Objects and
Reasons published in Punjab Gazette Extraordinary, dated April 27, 1962, the
main purpose the Amending Act 14, of 1962 was two-fold : the First was to
neutralize the effect of certain decisions and to plug the loopholes revealed
in the interpretation among others,of sections 2(5-a), 6, 10-A (b), 18, 19-B.
Among those decisions was one of the Financial Commissioner holding that
section 6 did not protect the claim of tenants under section 18 to purchase the
proprietary rights in respect of the land held by them in tenancy. The second
was to ignore in computing the surplus area "decrees of courts for
diminishing the surplus area" which "interested persons, being
relatives, have obtained." "in order to evade the provisions of
Section 10-A the parent Act". That was why clause (c) was inserted in s.
I have referred in extenso to the Objects and
Reasons which led to these Amendments to show that while the Legislature was
anxious to preserve surplus area for settlement of evicted tenants and for that
purpose enacted S. 10A, it did not in its wisdom, think it fit, to curtail the
ambit of s.18 so as to exclude tenants inducted by the landowner on the surplus
area from purchasing their tenancy lands through the mechinery of this section.
So far as the right to purchase their 187 tenancies is concerned, tenants
inducted by the landowner and' tenants settled by the Government, on the
surplus area, remain on an, equal footing. The Amendments did not in relation
to the new Section 10-A, relegate s. 18 to a position of "subordinate
alliance".. The non-obstante clause of s. 18 has not been touched. Indeed,
the amendments of s.
18 inter alia, by providing for easier terms
of purchase and reducing the qualifying period from 12 to 6 years, have made
the machinery of the section more comprehensive, efficient and attractive for
tenants desirous of purchasing their tenancies.
The Amendments have not changed the basic
scheme of the Act, according to which, the jurisdiction of the Prescribed
Authority assessing the surplus area under ss. 5-B and 5-C read with Rule 6 of
the 1956. Rules, and acting under S.
10-A is distinct and separate from the
jurisdiction of the Assistant Collector 1st Grade dealing with an application
under s. 18. "Collector" has been defined by Rule 2(iii-A) of the
1956 Rules, to mean "the Collector of the district or any other officer
not below the rank of Assistant Collector 1st Grade empowered in this behalf by
Government". (emphasis supplied) Rule 4-B provides that the Prescribed
Authority for the purposes of Section 5B(12) and Section 5-C shall be (i) the
Collector if the lands owned or held by the landowner or tenant are situate in
one district : and (ii) the Special Collector-as defined in Rule 2(iv)-if the
lands so owned or held are situated in more than one district.
Section 18(2), however, confers the
jurisdiction to try and determine applications for purchase made under that
section specifically, on Assistant Collector of First Grade.
An order of the Prescribed Authority made
under the aforesaid' provisions has been made appealable under Sub Rule (8) of
Rule 6 ;. whereas the provision in regard to appeal, review and revision
against an order of the Assistant Collector First Grade made under s. 18, by
virtue of Section 24 of the Act, the same as provided in ss. 80,, 81, 83 and 84
of the Punjab Tenancy Act, 1887.
Section 80 of the Tenancy Act provides for
"Appeals", s. 82 for "Review" and s. 84 for
"Revisions". Sections 81 and 83 of that Act relate to limitation and
computation of limitation for Appeals and applications for review. Under s. 82
of Tenancy Act, Revenue Officers have the powers of reversing their own orders
and those of their pre-decessors, if no appeal against those orders has been
filed. In the case of Assistant Collectors of all Grades, the exercise of this
power is always subject to the previous sanction of the Collector. Though a
period of 90 days for making an application for review is provided in
sub-clause (b) of the proviso to s. 82(1), yet no limitation has been provided
within which a Revenue Officer may suo moto review or move for sanction to
review an order. Under s. 84 the Commissioner and the Financial Commissioner
have the concurrent revisional jurisdiction. The revisional powers of the
Financial Commissioner unders. 84 are in no way less extensive than those of
the High Court under 115 of the Code of Civil Procedure. In a sense, his
revisional powers are wider. He has power to revise an order against which an.
appeal lies (gee Amir Chand v. State of
Haryana (1) decided by a Division (1) 1971 P.L.J. 449.
188 Bench of the Punjab and Haryana High
Court. No.statutory limitation for making an application for revision has been
provided, but as a matter of practice the revision-petitions are ordinarily not
entertained after a period of 90 days unless sufficient cause for the delay is
shown. The Financial Commissioner can interfere in revision suo moto at any
time, if the circumstances of the case so warrant.
There is nothing in the Act or the Rules
framed there under or in tie Tenancy Act saying as to who can file an appeal or
revision against the decision or order of the Collector exercising jurisdiction
under s. 18. But in view of the long array of judicial decisions including that
of the Financial Commissioner, there can be no doubt that the State Government
or its Department can, if aggrieved, or prejudiced by such a decision, go in
appeal or revision against it.
Firstly there is a catena of authorities
which, following the doctrine of Lindley L.J. in re Securities Insurance Co.(1)
have laid down the rule that a person who is not a party to a decree or order
may with the leave of the Court, prefer an appeal from such decree or order if
he' "is either bound by the order or is aggrieved by it or is prejudicially
affected by it." As a rule, leave to appeal will not be refused to a
person who might have been made ex nominee a party-see Province of Bombay V. W.
1 Automobile Association(2) Heera Singh v. Veerka(3) and Shivaraja v.
Siddamma(4); Executive Officer v. Raghavan
Pillai(5) In re B. an Infant (6); Govinda Menon v. Madhavan. Nair (7).
Secondly, the ruling of the Financial
Commissioner in Punjab ,State v. Dr. lqbal Singh (8), which is binding on all
the authorities and Revenue Officers exercising jurisdiction under the Act
clinches the matter. There the decision of the Special Collector declaring
surplus area was reversed by the Additional Commissioner. The State, filed
against that decision of the Additional Commissioner, a revision petition
before the Financial Commissioner. Objection was taken with regard to the
competency of the State to file that petition, on two grounds :
(i) that the order was appealable and the
revision was incompetent and;
(ii) that the State was not a party to the
The Financial Commissioner treated the
revision as an appeal, and ,overruled the objection in these terms "The
argument on behalf of the Respondents overlooks the fact that the Revenue
Officers act in a quasi-judicial capacity deciding such cases and if the Punjab
State is aggrieved by their orders it is as much entitled to contest them
through a remedy provided under the law as private parties arc. In fact. there
will be no justification for discrimination against the Punjab (1)  2 Ch.
(3) A.I.R. 1958 Raj. 181.
(5) A.I.R. 1961 Kerala 114.
(7) A.I.R. 1964 Kerala 235(DB).
(2) A.I.R. 1949 Bom. 141.
(4) A.I.R. 1963 Mys. 127.
(6)  Q.B. 12.
(8)  Punjab Law Journal 110.
189 State in this regard and for holding that
it suffers from any disability in the matter of agitating against decisions
which are to detriment." The above being in accord with the general
principles settled by the long chain of authorities, noticed earlier, appears
to be a correct exposition of the law on the point.
In the present case, neither the landowner,
nor the State made any attempt to get the decision, dated 15-9-1961 of the
Collector under s. 18 set aside or modified by way of appeal, review or
revision or other appropriate proceedings.
In a sense, therefore, that decision had
become final and conclusive.
The stage is now set for examining the
contentions canvassed at the bar with regard to the correctness or otherwise of
the findings of the High Court.
Mr. Mahajan, learned Counsel for the
appellant-State contends that the Collector, Surplus Area had rightly ignored
the sale orders dated September 15, 1961, of the Collector purportedly passed
under s. 18, in favour of Amar Singh and Indraj and that the view taken by the
High Court is wrong, because(a) the lease made by the landowner in favour of
these Respondents, was itself a "transfer of land" effecting the
utilization of surplus area, and as such, was Mt by clause (b) of of s. 10-A,
and the orders obtained on the basis of that lease could not stand on a better
(b) the expression "transfer" in
clause (b) of this section includes. involuntary transfers, also, brought about
by operation of law, with only two exceptions which are specifically mentioned
in that clause;
(c) these orders were consent orders and were
not based on any independent finding of the Collector as to the existence of
the essential condition viz., that the applicants were in continuous occupation
of the lands,' as tenants, for the requisite period, but were the result of compromise
and collusion between the landlady and her relation-tenants, and as such, were
null and void ;
(d) these orders had the effect of
diminishing the surplus area and as such, were orders of "other
authority" bit by clause (c) of s. 10A;
(e) Section 18 has to be construed in a
manner which does not defeat the object of s.
10-A. These two sections can be reconciled
only if the operation of s. 18 is confined to those purchases which do not
adversely affect the extent or utilization of surplus area.
In reply, Mr. S. K. Dhingra, learned Counsel
for the respondents,. maintains that a "lease" cannot be regarded as
a "transfer or disposition of land" within the meaning of clause (b)
of s. 10-A, because according to its general scheme and object, the Act not
only recognise 190 the right of a landowner to create new tenancies on his
surplus area after April 15, 1953, but further gives to such a tenant the right
to purchase his tenancy under s, 18.
Reliance has been placed on this Court's
decision in Saheb Ram's case (supra). Laying stress on the omission of the word
"lease" from clause (b) of s. 10-A. Counsel has .referred to the use
of the word"lease"in addition to the word "transfer" in somewhat
similar provision relating to future acquisitions ins.19-A and 19-B,to show
that whenever the Legislature intended to bring a "lease" within the
sweep of such a provision, it expressly did so.
Reiterating the reasoning of the High Court,
Mr. Dhingra submits that a "sale"made in accordance with an order of
the Collector under s. 18 cannot be ignored by the Prescribed Authority.
Surplus Area, either as a "transfer" under clause (b) or as an order
of "other authority" under clause (c) of s. 10-A. Any other
interpretation, according ,to the Counsel, will render nugatory s. 18 which is
a self contained provision intended to achieve one of the primary objects of
the Act. In support of these arguments, reliance has been placed on a later
Full Bench judgment of the Punjab and Haryana High Court in Matti Rai and ors.
v. State of Punjab (1) which affirmed the propositions of law laid down in the
judgment under appeal Shyamlal v. State ,of Gujarat (2) was also cited.
Replying to Mr. Mahajan's contention (c),
Counsel submits that this was not a case where the orders of the Collector
passed under s. 18 could be said to be a nullity. The Khasra Girdawari before
the Collector with the admission of the landowner, superadded, was sufficient
material, on the basis of which the Collector making the orders of purchase in
favour of the tenants could be satisfied about ,their being in continuous
occupation of their tenancy lands for the requisite period. Great emphasis has
been placed on the fact that in reply to the writ petition of Amar Singh, the
State in their written statement had admitted Amar Singh's averment as to his
being a tenant of the land for the requisite period. Even the Surplus Area
Authority, it is pointed out, conceded in his impugned order that according to
the copy of the Khasra Girdawari on the file, Amar Singh and Indraj were in
occupation of the land as tenants since 1957-58, though such occupation was
held to be of less than six years. In these circumstances proceeds the
argument, the order dated September 15,1961, passed by the Collector under s.
18, on the basis of compromise, could not be treated as totally void and
non-est; at the most ,they were erroneous orders passed by the Collector in the
exercise of the distinct jurisdiction particularly conferred on him by s.
The only remedy-adds the Counsel-of the aggrieved
person or the 'State was by way of appeal or revision as provided by the
statute and since those orders were not so challenged, they had become final.
The Prescribed Authority, Surplus Area-it is
emphasised, while assessing the surplus area, had no jurisdiction to sit in
appeal or revision over the orders of the Asstt.
Collector, 1st Grade passed under s.18.
(1) I.L.R.(1969) Panj. and Haryana 680 (2)
 2 S.C.R. 457.
191 Reference in this behalf has been made to
ss. 24 and 25 of the Act, ss. 80 to 84 of the Punjab Tenancy Act and R.K.
Chari v. Seshadri; (1) Mohanlal v. Goenka(2);
Dhaunkal v. Man Kauri (3) and Mam Raj v. Punjab State (supra).
It will be appropriate to take contention
(c), first, canvassed by Mr. Mahajan because it is the linch-pin of the entire
The question is, whether the compromise
order,, were wholly void or merely voidable. If they were of the former kind,
they would be a nullity which does not from its very nature needs setting
aside, and consequently, they could be treated as non-existant whenever and
wherever their legality comes in question. And, the Prescribed Authority
Surplus Area would be entitled to ignore such orders as non-est independently
of the provisions of s. 10-A. In that view of the matter, the necessity of
determining as to whether those orders are hit by clauses (b) and (c) of that
section would not arise.
If the orders were of the latter type, i.e.
voidable or erroneous, passed by the Asstt. Collector acting within his
jurisdiction under s. 18, they could be avoided or questioned only by way of
appeal,' review or revision as provided by the statute or in other appropriate
proceedings known to law, and the Prescribed Authority or Collector, Surplus
Area would not be entitled to go behind them and question their validity or
propriety. He shall have to accept them as they are. In that view of the
matter, the question will still remain whether such an order of the Assistant
Collector passed by him in the exercise of his jurisdiction in favour of a tenant
under s. 18, can be ignored as a ,,transfer" under clause (b) or as an
order of "other authority" under clause (c) of s. 10-A on the ground
that it adversely affects the utilization or extent of surplus area.
An order is null and void if the quasi-.judicial
tribunal passing it lacks inherent jurisdiction over the parties and the
subject matter. Such was not the case here. The Assistant Collector who made
the orders dated September 15, 1961, was duly invested with the quasijudicial
jurisdiction tinder s. 18(2). All the jurisdictional facts for making the
orders under that section existed. There is no dispute that Smt. Lachhman was
not a "small landowner". It is common ground that Field Nos.263, 343
and 177 did not fall within her reserved area. It was not controverted that in
May 1961, when the purchase applications were made, Field Nos. 263 and 343 were
comprised in the tenancy-of Amar Singh and Field No. 177 in that of Indraj.
According to the observation of the Surplus Area Collector, the copy of the Khasra
Girdawri on the file showed that their possession as tenants was from 1957-58
i.e. for about 4 1/2 years only, preceding the applications and thus according
to him they had failed to show their continuous possession for the requisite
period of six years. It is important (1)  2 S.C.R. 848. (2)  4
S.C.R. 377 (392).
(3)  LXXII P.L.R. 882 (F.B.).
192 to note further that Amar Singh in para 2
of his writ petition pleaded:
"That on the 2nd of May 1961, the
petitioner having been in continuous occupation of land comprised in his
tenancy for a period of six years applied under s. 18 of the.. ..Act for
purchase of the above land, and by his order dated 15th September 1961, Shri
Hardial Singh, Assistant Collector 1st Grade Sirsa District Hissar, allowed the
petitioner to purchase the above land at a price of Rs. 13,590/-.. .. "
This averment of Amar Singh was admitted in the counteraffidavit filed on
behalf of the State in these terms "Para 2 of the petition is
admitted" In the written statement filed by the State--apart from a
general statement that "in view of the facts explained by the Collector in
his order dated 11-5-62 the surplus area .... has been rightly declared"it
was not specifically pleaded that the purchase order dated September 15, 1961,
made by the Collector under s. 18 was collusive, void or without jurisdiction
on the ground that Amar Singh and Indraj had not been in occupation of these
fields for the full statutory period. Nor could Amar Singh and Indraj be denied
the status of 'tenants' and the rights and privileges attaching thereto, merely
because they were related to the landowner, the 'son-in-law' and 'son-in-law's
brother' not being among the "relatives" prescribed in Rule 5 of the
1956 Rules, whose cultivation [in view of s. 2(9) of the Act may be deemed to
be the "self-cultivation" of the landowner.
To sum up, the allegation in the purchase
applications about the applicants' being in continuous occupation of these
fields comprised in their tenancies for the requisite period, coupled with the
Khasra Girdawri on file and the admissions made by the landlady in the
compromise, furnish,Id sufficient material on the basis of which the Assistant
Collector, at the time of making the orders of purchase on September 15, 1961,
could have been satisfied about the existence of all the facts essential for
the exercise of his jurisdiction under s. 18. It is not correct to say that on
the facts of the instant case, the Assistant Collector passed those orders
solely on the basis of the compromise, without applying his mind to the case.
Application of mind is evident from the circumstance that the Assistant
Collector further assessed the price to be paid by each of the applicants who
thereafter, deposited the same in the Government Treasury on September 29,
1961. And, it was on the making of such deposits that the respondents were
deemed to be the owners of those fields. The mere fact that the Assistant
Collector did not record a finding in so many words that he was satisfied from
such and such material in regard to the existence of the basic conditions
necessary for making the order under s. 18, did not render his order a nullity
when such material was otherwise evident on the record.
In the view I take I am fortified by the
decision of this Court in K. K. Chari v. R.N. Seshadri (1). That was a case of
a compromise (1)  1 S.C.C. 761.
193 order of eviction passed by the Rent
Control Court under s. 10 of the Madras Building (Lease and Rent Control) Act,
1960. But by analogy, the ratio of that decision is an opposite guide for the
present case. There the landlord brought an action under said Rent Act, for
eviction of his tenant, Seshadri from a house on the ground that he required it
for his bona fide use and occupation. The tenant at first controverted the
landord's claim but subsequently, both the parties filed a compromise in terms
of which the court passed a decree of eviction. The tenant resisted the
execution of that decree, on the ground that the decree was based on compromise
or consent without the court having satisfied itself by an independent
consideration regarding the bona fide requirement of the property by the
landlord for his own occupation; and as such the decree contravened s. 10 of
that Act, and was a nullity. The Bench unanimously rejected this objection of
the judgment-debtor tenant.
Vaidialingam J. (Dua J. concurring) laid down
the law thus The true position appears to be that an order of eviction based on
consent of the parties is not necessarily void if the juridictional fact viz.,
the existence of one or more of the conditions mentioned in s. 10 were shown to
have existed when the Court made the order.
Satisfaction of the Court, which is no doubt
a pre-requisite for the order of eviction, need not be by the manifestation
borne out by a judicial finding. If at some stage the Court was called upon to
apply its mind to the question and there was sufficient material before it,
before the parties invited it to pass an order in terms of their agreement, it
is possible to postulate that the Court was satisfied. about the grounds on
which the'. order of eviction was Passed".
The above principle was reiterated and
applied by this Court in Nagindas Ramdas v. Dalpatram Ichchram (1).
Judged by the basic principle enunciated in
the above' decisions the order dated September 15, 1961 passed by the Assistant
Collector under s. 18, was not a nullity which could be ignored as non-est by
the Prescribed Authority.
Even if those orders were erroneous, they
could be impeached only by way of appeal etc. as provided in the Act because
the error was committed by the Collector within the exercise of his
jurisdiction. A court or any quasi-judicial tribunal acting within its
jurisdiction can decide rightly as well as wrongly. To use the felicitious
words of S. K. Das J. vide Smt. Ujjam Bai v. State of Uttar Pradesh (2), such
administrative bodies or officers acting in judicial capacity" are deemed
to have been invested with the power to err within the', limits of their
jurisdiction" and their decisions must be accepted as valid unless set
aside in appeal. This general principle was reiterated by this Court in
Ittayavira Mathai v. Varkey Varkey (3) as under "It is well settled that a
court having jurisdiction over the subject matter of the suit and over the
parties thereto, though (1) civil Appeal No. 2479/72 decided on 30.11.73.
(2) A.I.R. 1962 S.C. 1621=1, SCR 778.
(3) A.I.R. 1964 S.C. 907(910)=1, SCR
194 bound to decide right may decide wrong
and that even though it decided wrong it would not be doing something which it
had no jurisdiction to do. It had the jurisdiction over the subject matter of
the suit and over the party and, therefore, merely because it made an error in
deciding a vital issue in the suit, it cannot be said that it has acted beyond
its jurisdiction. As has often been said courts have jurisdiction to decide
right or to decide wrong and even though they decide wrong the decrees rendered
by them cannot be treated as nullifies........ It merely makes an error or law
(which) can be corrected only (on appeal) in the manner laid down in the Civil
Procedure Code." The above principle are applicable with greater force to
the present case. The Prescribed Authority, surplus Area, and the Collector
competent to make an order under s. 18 are both Assistant Collectors of the 1st
Grade, that is coordinate authorities exercising separate and distinct
jurisdictions. One cannot sit in appeal or revision over the orders of the
other. If one feels that a certain order passed by the other in the exercise of
distinct jurisdiction is erroneous it is open to get it rectified in the
appropriate manner provided by the Act i.e. by way of appeal, review or
revision. As has already been observed earlier, the State or the Department. if
aggrieved or prejudiced by a decision of an authority under this Act can avail
of the remedy of appeal available under the Act in any case, it can move the
Financial Commissioner to set right the illegality or impropriety in revision.
The Financial Commissioner it may be recalled has wide powers in revision to
correct such errors committed by the inferior authorities in the exercise of
their jurisdiction and there is no time limit to the exercise of this
revisional power by the Financial Commissioner.
Section 25 of the Act provides "Except
in accordance with the provisions of this Act, the validity of any proceedings
of order taken or made under this Act shall not be called in question in any
court or before any other authority.
On analysis of the section it is clear that
it gives a twofold mandate. on one hand it debars the jurisdiction of courts or
other authorities to question the validity of any proceeding or order taken or
made under the Act and on the other it prohibits the impeachment of such orders
or proceedings in a manner which is not in Accordance with the provisions of
the Act. it indicates that decisions of the authorities under the Act can be
challenged only by way of appeal review or revision as provided in ss. 80, 81,
82, 83 and 84 of the Punjab Tenancy Act, 1887, made applicable by s. 24 of the
Act or in the Rules made under the Act.
The Punjab and Haryana High Court has
consistently taken this view. The Full Bench in Dhankel v. Matz Kauri (supra)
also held that the Assistant Collector while dealing with the purchase
application under s 18 has no jurisdiction to sit in appeal or revision over
the order of the Surplus Area Collector passed in surplus area proceeding and
he has no jurisdiction to ignore that order.
195 The rule equally holds good in the con,
verse. In the Full Beach decision in Mam Raj v. Punjab State (supra) it was
held that once an application of the tenant under s. 18 has been allowed and
the other is not set aside in appeal or revision, the same becomes final and remains
immune to an attack against its validity on any ground including that of
collusion, before the co-ordinate authorities under the Act dealing with the
question of determination of surplus area.
If I may say so with respect this proposition
laid down by the Full Bench is unexceptionable.
The above being the law on the point, it is
clear that the orders dated September 15, 1961 not having been impeached by way
of appeal, review or revision as provided by the statute or in other
proceedings Authority Surplus Area was bound to accept them as valid. He could
not go behind them or himself sit in appeal over them. It was all the more
disconcerting in this case because the Collector who passed the orders under
s.18 and the Collector who ignored those orders as Prescribe Authority, Surplus
Area happened to be the same Officer.
This takes me to the next question viz, if
the orders dated September 15, 1961 were not a nullity could they be ignored
under s. 10 A on the around that they amounted to "transfer" or orders
of "other authority" affecting the utilisation or causing the
diminution of surplus area? Before embarking upon a consideration of this
question, it is necessary to remember two fundamental canons of interpretation
applicable to such statutes. The first is that if choice ties between two
alternative constructions, "that alternative is to be chosen which will be
consistent with the smooth working of the system which the statute purports to
be regulating; and that alternative is to be rejected which will introduce
uncertainty, friction or confusion into the working of the system" (see
Maxwell 12th Edn. page 45). The second is that if there is an apparent conflict
between different provisions of the same enactment, they should be so
interpreted that, if possible, effect may be given to both (see King Emperor v.
Behari Lal Sharma (1).
Let us now apply the above principles to the
construction of ss. 10-A and 18. It has already been noticed that s. 18 is
designed to pro.mote one of the primary objects of the Act viz., of procuring
ownership of land to the tiller on easy terms. It has also been seen that the
self-sufficing machinery of this section is available for purchase of their
tenancies to the tenants inducted before or after April 15, 1953, by the landowner
on land not being a part of his permissible area, equally with tenants settled
on such area by the Government. In a way, every sale made by the operation of
s. 18 in favour of tenant admitted by the landowner on his surplus area, causes
diminution of the surplus area or affects the utilisation thereof by the
If such sales were to be ignored under s.
10-A, then it will reduce the working of the system of the Act to a mockery.
It will mean "war" between sections
18 and 10-A. Such a construction of the Act will present a spec(1) 1944  C.
W. N. 178 P. C.=72 I. A. 57.
196 tacle of manifest contradiction and
absurdity of an Act giving fight by one hand and taking away the same by
another. The -adoption of such an interpretation may not completely
"obliterate" S. 18, as the High Court has said, but it will certainly
truncate it. A 'Potent and substantial limb of s. 18, which according to the
ruling of this Court in Sahib Ram's case (supra) entities the category of
tenants inducted by the landowner after April 15, 1953 to purchase their
tenancies, would stand-as it were-"amputated" by judicial operation
such an interpretation will run counter to the fundamental principles of
construction. The conflict between the two provisions can be avoided only if we
read the general words other authority" in cl. (c) of s.
10-A, ejusdem generis with the specific words
"judgment, decree or order of a court", which immediately precede
Thus construed, these general words "or
other authority" will not take in an authority exercising jurisdiction
under s. 18(2) of the Act.
Nor can the words "transfer or other
disposition of land' in clause (b) of s. 10-A, be construed to include a
transfer which results by the process of s. 18. The meaning of these words must
be restricted to volitional dispositions of land made by the landowner, and
cannot be extended to cover involuntary transfers brought about by operation of
law or circumstance beyond the control of the landowner. The two type of
involuntary transfers, namely, acquisition of land by Government under legal
compulsion or by an heir by inheritance which were inserted by the Amending Act
4 of 1959 in the saving clause of this provision and were later given a
retrospective effect from April 15, 1953, are only clarificatory or
illustrative of the original intent of the Legislature. These two instances are
not exhaustive of the involuntary transfers which are outside the sweep of
This interpretation of "transfer"
has been consistently adopted by the Punjab and Haryana High Court in several
cases. Some of them in which involuntary transfers of a kind other than those
specifically mentioned in the saving clause of clause (b) came up for
consideration are reported in Bhajan Lal v. Punjab State(1) & BishanSingh
v. State (2).
This case decided pretation of the same words
and Agricultural Lands Act, 10-A of the Punjab Act; Lakshmi Raj v. State of
Haryana (3) Punjab by Mahajan j. proceeds on an interused in s. 32-FF of the
Pepsu Tenancy 1953, which is in pari material with s. The above is the only
reasonable interpretation of the words "transfer or other disposition of
land" in s.10-A(b) which is consistent with the content and object of
s.18, and can reconsile and: keep effective both the sections.
Though the contention of Mr. Dhingra that the
words "transfer or other disposition" in the said clause(b) do not
embrace within their scope tenancies or leases 'created by the
landowner-because such a right of the landowner is reeognised by the Act vide
sahib Ram's case (supra)-is, not altogether without force, yet I do not think
it necessary (1) (1968) 70 P.L.R. 664. (2) (1968) 47 LLT 284.
(3) (1971) LXXIII Punjab L. R. 815.
197 to decide that point. The lease created
by Smt. Lachchman ceased to subsist as soon as the Collector made the orders of
purchase under s. 18 in favour of the erstwhile tenants.
The question, whether the extinct lease which
preceded the purchase orders was a "transfer" or not, does not,
therefore, survive for decision.
In the light of what has been said above, I
am firmly of the opinion that the view taken by the High Court with regard to
the interpretation and inter-relationship of ss.10-A and 18 is sound and the
answers given by it to the first three questions of law set out at the commencement
of this judgment, are correct. I would, therefore, uphold the same.
Now I turn to question No. 4, which arises in
Amar Singh's case only.
It is common ground that Field Nos. 265 and
343 on April 15, 1953, were comprised in the tenancy of Sri Chand and Nathu.
The total area of these two fields is 67
bighas and 19 biswas equivalent to 42 ordinary acres, approximately. It is
apparent from the, record that the land in these two fields is entirely Barani
and has no irrigation facilities, whatever. According to the scale adopted by
the Collector, Surplus Area, for such land, these 42 ordinary acres will make
10.5 standard acres. The total area of Smt. Lachchman which has been found
surplus is about 80 standard acres.
The land comprised in these two fields is
thus only oneeighth of her surplus area.
At no stage before the High Court was it
contended that Sri Chand and Nathu held or owned in the state any other land
apart from the said fields. In this Court, also, either in the grounds of
appeal or otherwise, no such allegation or contention has been made. The
"permissiable area" which can be held or retained by a tenant under
the Act is 30 standard acres. That is to say, the permissible limit of the area
which could be held in common by Sri Chand and Nathu, was 60 standard acres.
Since it has been no-body's case that Sri Chand and Nathu held any other area,
and the land comprised in these two fields being 10.5 standard acres, was far
less than their permissible limit, the High Court presumed-and I think, not
wrongly that Field Nos. 265 and 343 were held by the tenants Sri Chand and
Nathu within their permissible area.
It is well settled that surplus area has to
be determined with reference to the situation as it obtained on April 15, 1953
when the Act came into force. This proposition is clear from s.19-F, also,
which says that the Prescribed Authority shall be competent to determine the
surplus area, referred to in s. 10-A, of a landowner out of the lands owned by
such land-owner immediately before the commencement of the Act. If there still
remained any doubt on this point, the. same must be deemed to have been
authoritatively dispelled by the decision of this Court in Bhagwan Das v.
The State of Punjab(1). A plain reading of
the definition of 'surplus area' in s.2(5-a) which has been quoted in a
foregoing part of this judgment, shows that land held by a tenant within (1)
 2 S. C. R. 511.
198 his permissible area, cannot be included
in the surplus area of the landowner. Since on the determinative date i.e. 15-4-53,
Field Nos. 265 and 343, measuring 10.5 standard acres only, were held by the
tenants, Sri Chand and Nathu, within their permissible area, these fields could
not, in view of the mandate of s. 2(5-a), be included in the surplus area' of
Smt. Lachchman. At the time, when the Surplus Area Collector took up
determination of the surplus area (which as pointed out in Dhannkal's case
(supra) implies incidental verification of the permissible areas of the
landowner and the tenants, also) these fields were still comprised in a
tenancy, though the holder of the tenancy was a different tenant. In these
circumstances, the change of the tenant will not make these Fields accrete to
the surplus area of the landowner. Such change of the tenant does not amount to
a future "acquisition of land comprised in that tenancy by the landowner
within the comtemplation of ss. 19A or 19-B of the Act. Such a situation came
up for consideration before a Division Bench (consisting of Sharma and Khosla
JJ) of the Punjab High Court in Harchand Singh v. Punjab State. (1) Sharma J.
who spoke for the Bench, made these observations:
"There can be no doubt that in the
instant case the surplus area was to be determined on the date the Act came
into force i.e. 15th April 1953, and further that the area in the cultivating
possession of a tenant if within the prescribed limit was also to be excluded
from consideration. Section 10-A governs the disposition of land which was
comprised in a surplus area at the commencement of the Act and not the land
which was not surplus on that date or had become surplus after the coming into
force of the Act. The latter case was evidently covered by ss. 19-A and 19B of
the Act.............. the mere change in tenancies will not attract the
provisions of these sections provided the area which the tenant comes to occupy
there by does not exceed the permissible area. By changing a tenancy a landlord
also cannot be said, to have acquired the land comprising the tenancy because
the land (which) belonged to him before hand continued to belong to him after
the change in tenancy. The term "acquire" has not been defined in the
Act and so we have to accept its dictionary meaning as, "To make property
one's own. To gain permanently. It is regularly applied to permanent
acquisition" (Bouvier's Law Dictionary and Concise Encyclopaedia, Eighth
Edition, Vol. I. P.
114)" (1) (1964) 66 P.L.R. 285; 1963
199 These observations, in my opinion,
contain a correct statement of law on the point.
For the foregoing reasons, I would hold that
these two fields could not be included in the surplus area of the landowner,
Smt. Lachman and s.10-A was not attracted to a disposition of these fields
either by an order made under s. 18 or otherwise.
In the result, I would dismiss both these
appeals, leaving the parties to bear their own costs in this Court.
ORDER In accordance with the Judgment of the
majority, the appeals are allowed, but in the circumstances, the parties will
bear their costs throughout.