Sher
Singh & Ors Vs. Financial Commissioner of Planning, Punjab & Ors [1987]
INSC 82 (26 March 1987)
Khalid,
V. (J) Khalid, V. (J) Oza, G.L. (J)
CITATION:
1987 AIR 1307 1987 SCR (2) 691 1987 SCC (2) 439 JT 1987 (2) 63 1987 SCALE
(1)644
ACT:
Punjab
Reorganisation Act, 1966 sections 88 and 89 and the Haryana Adaptation of Laws
(States and Concurrent Subjects) Order 1968, clauses 10 and 11, scope and
effect of--Whether orders passed by an Authority which has become final would
continue after reorganisation.
Punjab
Security of Land Tenures Act, 1930, sections 9(1) (i), 10A(a), 10A(b) and
10B--Rights and duties under--Effect of the order passed there under.
HEAD NOTE:
Balwant
Singh was a displaced person from West Pakistan.
He
owned in all 67 standard acres of land distributed in various villages. On
8.11.1960 when proceedings under the Punjab Security of Land Tenures Act, 1930
were initiated, the Special Collector, Punjab, declared 29 standard acres belonging to him as surplus area. While
doing so, the transfers made by him were ignored. He had an option to choose
the property which fell to his share. He opted for the entire land belonging to
him and situated in village Semani as his permissible area and did not opt for
any area in Mohamad Pera, District Ferozepure. The Special Collector reserved
for him about 18 standard acres out of his holding in village Dhav Kharial in
order to make up his permissible area of 50 standard acres. This part of the
order of the Special Collector became final.
On
1.11.1966, the Punjab Reorganisation Act, 1966 came into force and as a result
thereof, the original properties that belonged to Balwant Singh fell within the
new State of Punjab and the new State of Haryana. In December 1966, Balwant Sigh,
his wife and his minor son filed a writ petition for the issuance of necessary
directions to the States of Punjab and Haryana restraining them from utillsing
the surplus area declared by the Special Collector by his order dated
8.11.1960. A learned Single Judge repelled all the following three contentions;
(1) that
after the States Reorganisation, persons owning lands both in the State of Punjab and Haryana could claim that they
should be allowed 692 permissible area in both the States separately;
(2)
that orders passed regarding surplus area prior to 1st November, 1966, and
which area had not been utilised till then, should be deemed to have no effect;
and
(3) that
the proceedings declaring surplus land were bad for want of notice to the
transferees.
When
the matter was taken up in appeal, the Division Bench felt that an important
question was involved and therefore referred the appeal to a Full Bench. The
Full Bench considered the matter in detail and held that the order declaring
the area to be surplus passed before Ist November, 1966, would continue to have
effect after that date, even if that order had not been implemented and persons
owning land in the newly created States is not, in law, entitled for a separate
allotment under the Act. Hence the appeal by certificate.
Dismissing
the appeal, the Court,
HELD:
1.1 Under the scheme of the Punjab Security of Land Tenure Act, 1930, It is the
entire holding of a person on 15th April, 1953, that is to be taken into
consideration for determining his surplus area. The Government acquires the
right to utilize the surplus area of a person against whom an order of
declaration has been made for the resettlement of tenants ejected or to be
ejected. [696D-E]
1.2 It
is true that alongwith the order declaring the land of an owner as surplus, a
corresponding right and duty accrues to the Government to utilise the surplus
area for the re-settlement of tenants. In other words, the rights on the land
declared as surplus get vested in the Government to be distributed amongst the
tenants for re-settlement. This is an indefeasible right that the Government
secures. Therefore, the appellant cannot get back the land, if the surplus land
had not been utilised. [697A-C]
1.3
There is nothing in the Act which imposes any time limit for the government to utilise
the land for the purpose mentioned in the Act. Nor is there any provision
enabling the owner of the land to claim back the land and to get it restored to
him if utilization is not made by the government within a specified period. All
that the Act contains by way of exception is what is seen in section 10A(b). If
at the time of the commencement of the Act, the land is acquired by the
government under the relevant acquisition laws or when it is a case of
inheritance, the owner could claim exclusion of such land from his land for
fixation of his ceiling under the Act. The second exception itself is further
lettered 693 by the provision in section lOB that where succession had opened
after the surplus area or any part thereof had been utilised under section
10A(a), the saving specified in favour of an heir by inheritance would not
apply in respect of the area so utilised. To put it short, the government had
under the Act an unfettered right without time limit to utilise the land for
re-settlement of tenants subject to the two exceptions. Though it is desirable
that re-settlement should be done as expeditiously as possible, inaction on the
part of the government to resettle the tenants will not clothe the owner with a
power for restoration of the land. [697B-F]
2.1
The appellant is not entitled to have the best of the two worlds; in other
words to have his quota of full 50 acres in Punjab and another 50 acres in Haryana,
this is so because Section 88 of the Punjab Reorganisation Act, 1966 makes the
provisions of the Act which was applicable to the old State of Punjab would
continue to apply to the new State. In other words, the order passed before
1.11.1966, which became final, declaring the surplus area would be given effect
to and the order would be implemented uninfluenced by the division of the
State. [697F-G; 698B]
2.2 A
combined reading of clauses 10 and 11 of the Haryana Adaptation of Laws (States
and Concurrent Subjects) Order, 1968 also makes it clear that any order made or
anything done or any liability incurred or a right accrued before the 1st
November, 1966 would not be affected by the coming into force of the order.
[698G-H]
2.3
Clauses 10 and 11 show unambiguously that the respective State Governments
would be entitled to give effect to orders passed before 1st November, 1966,
declaring the surplus area by utilising them for the re-settlement of the
tenants, despite the re-organisation of the State of Punjab.
The
orders passed will be respected by both the States. The fact that the land
belonging to a particular owner, under fortuitous circumstances, fail in the
two newly formed States, will not in any way affect the operation of the orders
which had become final prior to 1st November, 1966.
To
accept the appellant's contention would create anomalies.
Persons
against whom proceedings under the Act were taken and became final prior to 1st
November, 1966, would be entitled to claim lands in both the States wile those
whose petitions are pending on the date the States Re-organisation Act came into
force would be in a disadvantageous position.
This
is not the object of the Act. Nor the scheme behind it.
The
States re-organisation was a historical accident. The land owners cannot take
advantage of this accident, to the detriment of ejected tenants or tenants in
need of re-settlement. [698H; 699A-C] 694
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 341 of 1973.
From
the Judgment and Order dated 26.2.1971 of the Punjab and Haryana High Court in L.P.A. No. 566/1968.
Harbans
Singh for the Appellants.
R.S. Sodhi
and S.K. Sinha for the Respondents.
The
Judgment of the Court was delivered by KHALID, J. This is an appeal by
certificate against the Judgment of a full bench of the Punjab and Haryana High Court dated 20th November, 1970. The question involved in this
appeal is ingenious but untenable. The question referred to the full bench
reads as follows:
"Whether
after the re-organisation of the State of Punjab the land owners owning land in both the States of Punjab and Haryana
can claim to retain the permissible area in each State separately after 1st of
November, 1966.
If so,
whether an order declaring the area to be surplus passed prior to the date
above said, but which order has not been implemented and the surplus land so
declared has not in fact been utilised would continue to have effect after said
date?" Now the facts. Balwant Singh was a displaced person from West
Pakistan. He owned in all 67 standard acres of land distributed in various
villages. According to him he had sold some properties to strangers and the
remaining in favour of his wife and minor son in 1957. On 8th November, 1960, when proceedings under the Punjab
Security of Land Tenures Act, 1930 (for short the Act) were initiated' the
Special Collector, Punjab, declared 29 standard acres
belonging to him as surplus area. While doing so, the transfers made by him
mentioned above, were ignored. He had an option to choose the property which
fell to his share. He opted for the entire land belonging to him and situated
in village Samani as his permissible area and did not opt for any area in Mohamad
Pera, District Ferozepore. The Special Collector reserved for him about 18
standard acres out of his holding in village Dhab Kharial in order to make up
his permissible area of 50 standard acres. This part of the order of the
Special Collector, though 695 challenged in appeal, was confirmed by the
Commissioner, Jullundar Division on 5th January, 1965, since the appeal before
him was held to be barred by limitation. The appellant pursued the matter
before the Financial Commissioner, Planning, Punjab,_by filing a revision. This was dismissed on 19-2-1965.
On 1st
November, 1966, the Punjab Re-Organisation Act, 1966, (for short, Re-organisation
Act) came into force. The State of Punjab was distributed under the Act to the present State of Punjab, State of Haryana, Union Territory of Chandigarh and
Union Territory of Himachal Pradesh. In December, 1966, Balwant Singh, his wife
and his minor son filed a writ petition for the issuance of necessary directions
to the States of Punjab and Haryana restraining them from utilising the surplus
area declared by the Special Collector by his order dated 8-11-1960. It is
relevant to note here that the original properties that belonged to him fell
within the new State of Punjab and the new State of Haryana.
The
matter came before a learned Single Judge. The following questions were raised
before him:
(1)
That after the States Reorganisation, persons owning lands both in the State of
Punjab and Haryana could claim that they
should be allowed permissible area in both the States separately,
(2)
that orders passed regarding surplus area prior to 1st November, 1966, and
which area had not been utilised till then, should be deemed to have no effect
and
(3) that
the proceedings declaring surplus land were bad for want of notice to the
transferees. These contentions were repelled by the learned Single Judge.
He
took the matter in appeal. The Division Bench before whom the appeal was posted
felt that an important question was involved and therefore referred the appeal
to a larger bench.
The
full Bench considered the matter in detail and held that the order declaring
the area to be surplus passed before 1st November, 1966, would continue to have
effect after that date, even if that order had not been implemented and persons
owning land in the newly created States is not, in law, entitled for a separate
allotment under the Act. It is this conclusion of the Full Bench that is
assailed before us on the strength of a certificate issued by the Court Balwant
Singh had more than the permissible area, viz., 50 standard acres with him. The
excess area was liable to be declared as surplus. Surplus area was declared by
the Special Collector, by his 696 order dated November 8, 1960. It was confirmed in appeal and in revision. The revisional
order is dated 19th February, 1965, that is before 1st November 1966, when the Re-organisation Act came into force. As indicated
above, by virtue of the Re-organisation of the two States, a part of his
holdings fell in the territory of the State of Haryana and another part in the State of Punjab. He evolved a contention that he
could have 50 standard acres of land in each of the two States. On this basis,
he questioned the order dated 8th November., 1960. He supported this argument
with the additional plea that the said order had not been implemented and the
land declared surplus not utilised.
The
question that fell to be decided by the full Bench was whether the order which
had become final would continue to have effect after the date of enforcement of
the Reorganisation Act when that order had not been given effect to and the
surplus area had not been utilized by the Government.
Under
the Scheme of the Act, it is the entire holding of a person on 15th April,
1953, that is to be taken into consideration for. determining his surplus area.
The Government acquires the right to utilize the surplus area of a person
against whom an order of declaration has been made for the resettlement of
tenants ejected or to be ejected.
Sections
9(1)(i) and 10A(a), which read as follows, make the position clear:
"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 (i) is a tenant on the area reserved under this Act or is a tenant of a
small land owner; or..................." "10A(a) The State Government
or any officer empowered by it in this behalf, shall be competent to utilise
any surplus area for the re-settlement of tenants ejected, or to be ejected,
under clause (i) of sub-section ( 1 ) of Section 9." It was contended
before the High Court and repeated before us that the order did not get
finality unless the surplus area had in fact been utilised, and tenants resettled
there. This contention did not find 697 favour with the High Court. We will
presently examine whether the contention has any merit. It is true that along
with the order declaring the land of an owner as surplus, a corresponding right
& duty accrues to the Government to utilise the surplus area for the
re-settlement of tenants.
In
other words, the rights on the land declared as surplus get vested in the
Government, to be distributed amongst the tenants for re-settlement. This is an
indefeasible right that the Government secures. The appellant is not well
rounded in his contention that he could get back the land if the surplus had
not been utilised. There is nothing in the Act which imposes any time limit for
the Government to utilise the land for the purpose mentioned in the Act. Nor is
there any provision enabling the owner of the land to claim back the land and
to get it restored to him if utilization is not made by the Government within a
specified period. All that the Act contains by way of exception is what is seen
in Section 10A(b). If at the time of the commencement of the Act, the land is
acquired by the Government under the relevant acquisition laws or when it is a
case of inheritance, the owner could claim exclusion of such land from his land
for fixation of his ceiling under the Act. The second exception itself is
further lettered by the provision in Section 10-B that where succession had
opened after the surplus area or any part thereof had been utilised under
Section 10A(a), the saving specified in favour of an heir by inheritance would
not apply in respect of the area so utilised. To put it short, the Government
had under the Act an unfettered right without time limit to utilise the land
for re-settlement of tenants subject to the two exceptions mentioned above. It
is, of course, desirable that re-settlement should be done as expeditiously as
possible. Inaction on the part of the Government to re-settle the tenants will
not clothe the owner with a power for restoration of the land. The contention
of the appellant based on non-utilisation of the land has, therefore, to fail.
The
second question is whether the appellant is entitled to have the best of the
two worlds; in other words, to have his quota of full 50 acres in Punjab and
another 50 acres in Haryana. Section 88 of the Re-organisation Act makes the
position clear. It reads as follows:
"The
provisions of Part II shall not be deemed to have effected any change in the
territories to which any law in force immediately before the appointed day
extends or applies, and territorial references in any such law to the State of
Punjab shall, until otherwise provided by a competent Legislature or other
competent authority, be construed as meaning the territories within that State
698 immediately before the appointed day." As per this Section the
provisions of the Act which was applicable to the old State of Punjab would
continue to apply to the new State. In other words the order passed before 1st
November, 1966, which became final, declaring the surplus area, would be given
effect to and the order would be implemented uninfluenced by the division of
the State.
After
the Re-organisation Act, the Governer of Haryana in exercise of the powers
conferred by Section 89 of the Reorganisation Act passed an order by name Haryana
Adaptation of Laws (States and Concurrent Subjects) Order, 1968, on 23-10-1968
making it to take effect retrospectively from 1st November, 1966. Clauses 10
and 11 of the order read as follows:
"10.
The provisions of this order which adapt or modify any law so as to alter the
manner in which, the authority by which, or the law under or in accordance with
which any powers are exercisable shall not render invalid any notification,
order, licence, permission, award, commitment, attachment, by-law. Rule or
regulation duly made or issued, or anything duly done, before the appointed
day; and any such notification, order licence, permission, award, commitment,
attachment, bye-law, rule, regulation or thing may be revoked, varied or undone
in likemanner, to the like extent and in the like circumstances as if it has
been made, issued, or done after the commencement of this order by the
competent authority and under and in accordance with the provisions then
applicable to such a case.
11.
Nothing in this Order shall affect the previous operation of, or anything duly
done or suffered under any existing State law or any right, privilege,
obligation or liability already acquired, accrued or incurred under any such
law, or any penalty, forfeiture or punishment incurred in respect of any
offence already committed against any such law." A combined reading of
these two clauses makes it clear that any order made or anything done or any
liability incurred or a right accrued before the 1st November, 1966 would not
be affected by the coming into force of the order.
These
two clauses show unambiguously that the respective State Governments would be
entitled to give effect 699 to orders passed before 1st November, 1966,
declaring the surplus area by utilising them for the re-settlement of the
tenants, despite the reorganisation of the State of Punjab.
The
orders passed will be respected by both the States. The fact that the land
belonging to a particular owner, under fortuitous circumstances, fall in the
two newly formed States, will not in any way affect the operation of the orders
which had become final prior to 1st November, 1966.
To
accept the appellant's contention would create anomalies.
Persons
against whom proceedings under the Act were taken and became final prior to 1st
November, 1966, would be entitled to claim lands in both the States while those
whose petitions are pending on the date the States Reorganisation Act came into
force would be in a disadvantageous position.
This
is not the object of the Act. Nor the scheme behind it.
The
States re-organisation was a historical accident. The land owners cannot take
advantage of this accident, to the detriment of ejected tenants or tenants in
need of re-settlement. For the above reasons, we hold that the High Court was
justified in answering the question referred to it against the appellant. The
appeal is accordingly dismissed.
There
will be no order as to costs.
S.R.
Appeal dismissed.
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