Gurbax Singh Vs. State of Punjab &
Ors [1966] INSC 228 (25 October 1966)
25/10/1966 SINHA, BHUVNESHWAR
P.(CJ) SINHA, BHUVNESHWAR P.(CJ) BACHAWAT, R.S.
SHELAT, J.M.
CITATION: 1967 AIR 502 1967 SCR (1) 926
CITATOR INFO:
E&R 1974 SC 994 (56,60)
ACT:
Punjab Security of Land Tenures Act (10 of 1953),
ss. 5(1), 5-B, 9(1) and 18-Rules 3, 5, and 6-Reservation under s.
5(1), procedure for-'Reserved area' under s.
5(1) and 'selected area' under s. 5-B whether the same-Right of tenant to buy
land under s. 18 when area 'selected' under s. 5-B-Effect of s. 9(1) (1).
HEADNOTE:
The appellant was a tenant of the 3rd
respondent since 1950 in respect of 49 big has of land situated in the Punjab.
He applied for the purchase of those lands under s. 18 of the Punjab Security
of Land Tenures Act, 1953, and rule 23 of the Rules made there under. The
Assistant Collector allowed his application and on appeal the Collector
confirmed the order. The Additional Commissioner and the Financial Commissioner
however took the view that the 3rd respondent had not 'reserved' the land under
s. 5(1) of the Act but had 'selected' it under s. 5-B and therefore the
appellant had no -right to purchase the land under s. 18. The appellant's writ
petition against the Financial Commissioner's order was dismissed in limine and
he came to this Court by special leave.
It was contended on behalf of the appellant
that (i) the Financial Commissioner had committed an error of law in holding
that the 3rd respondent had not reserved the land under s. 5(1) when in fact he
bad not done so; and (ii) a landlord who did not 'reserve' any area under s.
5(1) of the Act but 'selected' the area under s. 5-B of the Act could not evict
the tenant under s. 9(1) of the Act and therefore the tenant had the right
under S. 18 to purchase the said land in his possession for the prescribed
period.
HELD : (i) A valid reservation can only be
made by the landowner under s. 5(1) of the Act, read with the rules made there under,
when the particulars contained in the application sent by him to the Patwari
were verified by the latter. In the present case the landowner sent an application
to the Patwari in the prescribed form, but there was nothing on the record to
show that the Patwari verified the correctness of the said particulars. In view
of this it could not be said that the Financial Commissioner's finding that
there was no reservation under s. 5(1) was vitiated by an error of law. [929 E]
(ii) The purpose of the Act must be borne in mind in Construing the relevant
provisions of the Act. The two concepts on which the entire Act revolves are
the 'permissible area' and the 'surplus area'. Out of the permissible area the
landowner is empowered to reserve land not exceeding the said area and the
balance is defined as surplus area. This reservation is to enable the land
owner to sustain himself by self-cultivation. The object of the surplus area is
to confer rights in respect thereof on the tenants. This twofold object of the
Act cannot be achieved unless the landlord has reserved some land in the manner
prescribed by s. 5 of the Act. But for one reason or another, if the
reservation has not been made by the landowner, s. 5-B gives him another
opportunity to do so. [932 C-D] Though 'reserved area' has been defined there
is no definition of 'selected area'. This indicates that the Legislature did
not introduce a new concept of 'selected area' in the Act. Even a comparison of
ss. 5 and 5-B 927 shows that the process of reservation and selection are
-almost the same. Under s. 5(1) reservation is made by selection of the land
and under s. 5-B the landowner selects his reserved area. The expressions
'reservation' and 'selection' involve the same process and indeed to some
extent they are convertible for one can reserve land by selection and select
land by reservation. [932 E.G] It is true that under s. 9(1) (1) a tenant of
the area reserved under the Act can be evicted and there is no other clause
enabling the landowner to evict a tenant from the selected area. But under s.
9(1)(1) the expression used is 'the area reserved under the Act, and not
'reserved area'.
The land selected by the landowner out 'of
the permissible area can legitimately be described as the area reserved under
the Act. If that be the interpretation of s. 5(1), s. 5-B and s. 9(1), it
follows that under s. 18 the tenants cannot claim to purchase the land from the
landowner for it is included in the reserved area of the landowner. [932 H; 933
A] Karam Singh v. Angrez Singh, (1960) 39 Lah. L.T. 57 and Angrej Singh v. Financial
Commissioner, Punjab, Chandigarh, 64 Punj. L.R. 736, approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 708 to 1964.
Appeal by special leave from the judgment and
order dated April 3, 1962 of the Punjab High Court in Civil Writ No. 394 of 1962.
Bhawani Lal and Mohan Lal Agarwal, for the
appellant Gopal Singh, for respondent No. 3.
The Judgment of the Court was delivered by
Subba Rao, C.J. This appeal by special leave raises the question of the true
scope of the expression "selected area" within the meaning of s. 5-B
of the Punjab Security of Land Tenures Act, 1953, (Act No. 10 of 1953), as
amended by Act No. 46 of 1957, hereinafter called the Act.
The facts are not in dispute and they are as
follows: The appellant is a tenant under respondent No. 3 since the year 1950
in respect of 49 bighas of land. As he was in continuous occupation of the said
land for a period of 6 years, he applied under s. 18 of the Act and r. 23 of
the Rules made thereunder in the prescribed form to the Assistant Collector,
1st Grade, Fazilka, for the purchase of the said land. The Assistant Collector
held-it does not appear that the 3rd respondent questioned the right of the
appellant to purchase the said land-that the appellant was entitled to purchase
the land and determined the price payable by the appellant to the 3rd
respondent in a sum of Rs. 20,630/ and ordered that the said amount was payable
in 10 equal six-monthly installments. On appeal to the Collector, Ferozepure,
the order of the Assistant Collector was confirmed. On a revision petition
filed by the 3rd respondent before the Additional Commissioner, Jullunder, the
said Commissioner took the view that the said area was selected by the 928 3rd
respondent under s. 5-B of the Act and, therefore, the appellant had no right
to purchase the same under s. 18 of the Act. On that view, he submitted the
case to the Financial Commissioner, Punjab, who, agreeing with the view
expressed by the Additional Commissioner, Jullunder, held that the 3rd
respondent did not reserve the said area under s. 5(1) of the Act and,
therefore, he was entitled to select the same under s. 5-B of the Act and that
the appellant had no right to purchase the same, under s. 18 thereof. In the
result, he accepted the revision. The appellant filed a petition under Art. 226
of the Constitution in the High Court of Punjab at Chandigarh for quashing the
order of the Financial Commissioner, Punjab, but the said petition was
dismissed in limine. Hence the present appeal. The scope of this appeal should necessarily
be confined to the ambit of the writ petition in the High Court. It is,
therefore, necessary for the appellant to establish that the order of the
Financial Commissioner was without jurisdiction or was vitiated by an error of
law apparent on the record.
As there was no question of want of
jurisdiction in the Financial Commissioner to dispose of the revision, it was
contended that the said order was vitiated by two errors of law on the face of
the record: firstly, it was argued that the Commissioner committed an obvious
error in holding that the 3rd respondent had not reserved the said land under
s. 5(1) of the Act when as a matter of fact he had done so; and secondly, it
was said that a landlord who did not reserve any area under s. 5(1) of the Act
but selected the area under S. 5-B of the Act, could not evict the tenant under
s. 9(a) of the Act and, therefore, the tenant had the right under s. 18 to
purchase the said land in his possession for the prescribed period.
The first question, therefore, is whether the
3rd respondent reserved the disputed land under s. 5(1) of the Act. The
material parts of the relevant provisions of the Act and the Rules made
thereunder read thus:
Section 2(4): "Reserved area" means
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,"
hereinafter referred to as the "1950 Act" or under this Act.
Section 5(1) : Any reservation before the
commencement of this Act shall cease to have effect and subject to the
provisions of sections 3 and 4 any land-owner 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 his selection in the prescribed form and manner to the Patwari of
the estate in which the land reser929 ved is situate or to such other authority
as may be prescribed.
The land under this sub-section can only be
reserved by the land-owner by intimating his selection in the prescribed form
and-'-manner to the Patwari of the estate concerned.
Rule 3-Intimation for reservation--A landowner
having land in excess of the permissible area and intending to make a
reservation in pursuance of the provisions of sections 3, 4 or sub-section (1)
of section 5 of the Act shall notify, in duplicate, his reservation to the
Patwari of the Estate in which the land is situated in the form in Annexure 'B'
to these rules.
Rule 5. The reservation by the landowner
shall be deemed to have been effected as soon as the application is received by
the Patwari subject to the verification of all details as hereinafter provided.
Rule 6--Procedure for dealing with
reservation forms.The Patwari shall after verifying all the particulars given
in the forms,'retain one copy and forward the other copy to the Tehsildar with
his report as to the correctness of the particulars referred to............
It will be seen from the said provisions that
a valid reservation can only be made by the land-owner under s. 5(1) of the
Act, read with the rules made thereunder, when the particulars contained in the
application sent by him to the Patwari were verified by the latter. In this
case the landowner sent an application to the Patwari in the prescribed form,
but there is nothing on the record to show that the Patwari verified the
correctness of the said particulars.
The Financial Commissioner in his order
observed:
"Having examined the case carefully, I
find that the Exhibit P.X. on which the learned Advocate for the respondent has
relied is really no proper form as was required under section 5 of the Punjab
Security of Land Tenures Act. On the other hand, it is only a mere report. The
proper forms in this case were filed in only in accordance with the provisions
of section 5-B and they are on the file." It has not been shown that the
finding is vitiated by any error of law; indeed, as we have indicated earlier,
there is no report by the Patwari verifying the particulars given by the
appellant.
The second contention turns upon the relevant
provisions of the Act. It would be convenient at the outset to collect the said
provisions at one place.
930 .lm15 Section 2(3): "Permissible
area" in relation to a landowner or a tenant, means thirty standard acres
and where such thirty standard acres on being converted into ordinary acres
exceed sixty acres, such sixty acres:
Section 4: "Reserved area" means
the area lawfully reserved under the Punjab Tenants (Security of Tenures) Act,
1950 (Act XXII of 1950), as amended by the President's Act of 1951, hereinafter
referred to as the "1950 Act" or under this Act.
Section 2 (5-A): "Surplus area"
means the area other than the reserved area, and, where, no area has been
reserved, the area in excess of the permissible area selected 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 19B; but it will not include a tenant's permissible area;
Section 5. (1) Any reservation before the
commencement of this Act shall cease to have effect and subject to the
provisions of sections 3 and 4 any land-owner 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 his 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:
Section 5-B. (1) A land-owner 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 section 5-A and in such form and manner as may be prescribed:
Provided that a land-owner who is required to
furnish a declaration under section 5-A shall intimate his selection along with
that declaration.
Section 9. (1) Notwithstanding anything
contained in any other law for the time being in force, no land-owner shall be
competent to eject a tenant except when such tenant:(1) is a tenant on the area
reserved under this Act or is a tenant of a small land-owner.
931 Section 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-(1) who has been in continuous occupation of the
land comprised in his tenancy for a minimum period of six years, or The gist of
the provisions may be stated thus: "Permissible area" is defined and
the landlord is empowered to demarcate a reserved area for his self-cultivation
out of the permissible area and intimate his selection in the prescribed manner
to the Patwari of the estate.. The area other than the reserved area is defined
as is surplus area".
No land-owner is competent to eject a tenant
unless he is a tenant in the reserved area and if he has made one or other of
the defaults mentioned in s. 9 of the Act. The State Government shall be competent
to utilize the surplus area in the re-settlement of the tenants ejected. The
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
land-owner the land so held by him but not included in the reserved area. But,
for one reason or other, some of the landowners did not make the reservation in
the manner prescribed under s. 5 of the Act and the rules made there under.
Presumably to give relief to such land-owners s. 5-B which was inserted by the
1957 Act, enabled them to intimate the selection to the prescribed authority
within the period prescribed therein, i.e., within a period of six months from
the commencement of the Amending Act. If the area selected under s. 5-B could
be equated with the reserved area, the land-owner could evict the tenant from
that area for the purpose of his self cultivation. In that event, it would not
be a surplus land which could be allotted for the evicted tenants; and it could
not also be purchased by the tenants at their option.
We are not concerned in this case with small
holders.
On this analysis the short question that
falls to be decided is whether a reserved area can be equated with an area
selected by the landowner under s. 5-B of the Act.
To answer the said question it is necessary
to know briefly the scope and purpose of the Act. The purpose of the Act has
been neatly summarized by the Financial Commissioner of Punjab in Karam Singh
v. Angrez Singh() thus:
"The main purpose of that Act seems to
be to (i) provide a "permissible area" of 30 standard acres to a
land-owner/tenant, which he can retain for self-cultivation.
(1) (1960) 39 Lah. L.T. 57.
932 (ii) provide security of tenure to
tenants by reducing their liability to ejectment as specified in section 9,
(iii) ascertain surplus areas and ensure resettlement 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 certain circumstances.
These purposes must be borne in mind in
construing the relevant provisions of the Act. The two concepts on which the
entire Act revolves are the "permissible area" and the "surplus
area". Out of the permissible area the landowner is empowered to reserve
land not exceeding the said area and the balance is defined as the surplus
area. This reservation is to enable the landowner to sustain himself by
self-cultivation. The object of the surplus area is to confer rights in respect
thereof on the tenants. This twofold object of the Act cannot be achieved
unless the landlord has reserved some land in the manner prescribed under s. 5
of the Act. But, for one reason or other, if the reservation was not made by
the land-owner, s. 5-B gives him another opportunity to do so. But it is said
that if that be the intention of the Act, there was no reason why the same
phraseology used in s. 5(1) was not used in s. 5-B.
Though "reserved area" has been
defined, there is no definition of 'selected area'. This indicates that the
Legislature did not introduce a new concept of "selected area" in the
Act. Even a comparison of ss. 5 and 5-B shows that the process of reservation
and selection are almost the same. Under s. 5(1) the land-owner, after making
the reservation, intimates his selection in the prescribed form to the Patwari.
It is, therefore, manifest that the reservation is made by the process of
selection. So too, under s. 5-B, a land-owner, who has not exercised the right
of reservation under the Act, may select his reserved area and intimate his
selection. The wording of s. 5-B indicates that the selection therein is a
selection similar to that in s. 5(1) and the selection in s. 5-B is because of
default made in reserving by selection under s. 5(1). In terms s. 5-B gives the
landowner another chance, because he has not exercised his right of reservation
earlier under s. 5(1). The expressions "reservation" and
"selection" involve the same process and indeed, to some extent, they
are convertible, for one can reserve land by selection and another can select
land by reservation. The argument based on s. 9 is also without force. It is
true that under s. 9(1) (1) a tenant of the area reserved under the Act can be
evicted and there is no other clause enabling the land-owner to evict a tenant
from the selected area. It is said that " reserved area" is defined
and that "selected area" does not fall under that definition and
that, therefore, the effect of s. 9 is that a tenant in the selected area
cannot be evicted. But, it may be 933 noticed that under S. 9(1) (1) the
expression "reserved area" is not used, but instead the expression
"the area reserved under the Act" is mentioned. As we have said
earlier, the land selected by the land-owner out of the permissible area can
legitimately be described as the area reserved under the Act. If that be the
interpretation of s. 5(1), S. 5-B and s. 9(1), it follows that under S. 18 the
tenants cannot claim to purchase the land from the landowner for it is included
in the reserved area of the landowner.
If the contrary interpretation be accepted,
it defeats the purpose of the Act. Tenants could be induced and they would be
permitted to purchase permissible area to the grave detriment of the
land-owners. The entire concept of surplus area would be eroded. When asked
what purpose ss. 5-B(1) and 5-B(2) would serve, the learned counsel said that
in the case of selected area the landowner can enjoy the land through the
tenant for six years. That would be an insignificant benefit for the landowner
and it could not have possibly been the reason for introducing voluntary and
compulsory selection of land out of the permissible area under S. 5(1) and 5(2)
of the Act. It is true that under S. 5(1), the landowner has to include in his
reserved area certain specified categories of land, but under s. 5-B, his
selection is not subject to any such restrictions. It may be that one of the
objects of the amendment was to enlarge the discretion of the land-owner in the
matter of reservation or it may be that in the matter of selection the
landowner has to conform to the provisions of s. 5(1). We leave open that
question for future decision. Our view is consistent with that accepted by
Financial Commissioner, Punjab, in Karam Singh v. Angrez Singh(1) and the
Division Bench of the Punjab High Court in Angrez Singh v. Financial
Commissioner, Punjab Chandigarh(2). We have gone through the two judgments and
we are satisfied that the opinion expressed therein is correct.
In the result, the appeal fails and is
dismissed with costs.
G.C.
Appeal dismissed.
(1) (1960) 39-Lah L. T. 57.
(2) 64 punj. L. R. 736.
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