MALA SINGHversusTHE FINANCIAL COMMISSIONER AND OTHERS

                      MALA SINGH                                               A
                          v.
        THE FINANCIAL COMMISSIONER AND OTHERS

                           OCTOBER 15, 1993

            [KULDIP SINGH AND S.P. BHARUCHA, JJ.]                              B

       Tht Punjab Security of Land Tenures Act, 1953-Ss.2(3}, 2(5A}, 5-B,
5-C, 10-A, 10-B, 18-Land owner-Permissible area--Proceedings for decla-
ration· of surplus area-Surplus land in occupation of tenant-Declared as
tenant's permissible area-Utilization of surplus area-Held, land declared as   C
tenant's permissible area stood utilized by virtue of declaration.

      The Haryana Ceiling on Land Holdings Act, 197~Ss.12(3), 33(2)(i)-
Vesting of surplus area-Land declared as 'tenant's permissible area' under
Punjab Security of Land Tenures Act-Application of tenant for purchase
of-Introduction of Act during pendency of application-Held, application to     D
be disposed of as if Act had not been passed-S.12(3) not relevant for
determination of question whether before coming into force of Act, surplus
land under Punjab Act had been utilized or not.

     Worth and Phrases-Expression ''utilized" occurring in ss. 10-A and        E
10-B of the Punjab Security of Land Tenures Act, 1953--lnterpretation of.

      The appellant was a tenant in cultivatory possession of certain land
owned by the father of respondents no. 3.5, who was a big land-owner
under the provisions of the Punjab Security of Land Tenures Act, 1953.
During the proceeding under the Act against the land-owner certain land F
owned by him including that in occupation of the appellant was declared
as surplus. On appellant's application the land in his occupation was
reserved as tenant's permissible area. After land-owner's death in Septem·
her 1971, respondents no. 3-5 filed an application for ejectment of the
appellant on the ground that they had became small land-owners and as G
such were entitled to the land possessed by the appellant as a tenant, and
the appellant applied under s.18 of the Act Act for purchase of the said
land.

      The Assistant Collector allowed the application of the appellant and
rejected that of the respondents. The appeal of the respondents was            H
                                    407
     408                   SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R. .

A dismissed by the Collector holding that the tenant's permissible area was
     equal to the area as utilized, which could not revert back to the respon-
     dents. On revision petitions being filed by the respondents, the Commis-
     sioner recommended to the Financial Commissioner to dismiss the
     application of the appellant and to redetermine the question whether the
     respondents were smaU land-owners.
B
            The Financial Commissioner accepted the revision petitions and
     held that since the application by the tenant for purchase of the land in
     dispute was made during the life time of the land-owner on whose death
     the succession opened, the question whether the heirs were small land-
c    owner assumed importance. He also held that in view of s.12(3) of the
     Haryana Ceiling on Land Holdings Act, 1972, the tentant's permissible
     area under the Act vested in the State Government with effect from the
     appointed day and, therefore, the land in dispute could not be held to be
     utilized. Aggrieved, the tenant filed the appeal by special leave.

·D         Allowing the appeal, this Court

          HELD : 1.1. On January 24, 1971, when the surplus land in posses-
   sion of the appellant was declared as tenant's permissible area, it stood
   utilized by virtue of the said declaration. The land-owner having died after
E the utilization of the land in dispute, his successors could not take ad-
   vantage of the fact that they had become small land-owners after the death
 • of their father. [413-B-CJ

           1.2. The expression "utilized" though not defined under the Act, has
     been used in ss. 10-A and 10-B of the Act to indicate that the surplus area
F    of a land-owner gets utilized on the re-settlement of tenants on the said
     land. Under the scheme of the Act the surplus area of a big land-owner
     could be used for the resettlement oflandless tenants and ss.10-A and 10-B
     of the Act provided thttt as and when it was done, the said surplus area
     was taken to be utilised. If the surplus land allotted to the landless tenants
G    stood utilized, the surplus land declared as tenant's permissible area
     would also be considered to be utilized. [412-G-H, 413-A]

           1.3. The Financial Commissioner erred in relying on s.12(3) of the
     Haryana Act and holding that the land in possession of the appellant was
     not utilised. The said section is not relevent for determining the question
H    as to whether before coming into force of the Haryana Act the surplus Ia~d
         MALA SINGH v. FINANCIAL COMMR. [KULDIP SINGH, J.)              409

under the Act had been utilized or not. It provides that the area declared      A
surplus under the Act whether utilized or not and the area declared as
'tenant's permissible area' stood vested in the State Government, whereas
under the Punjab Security of Land Tenures Act the surplus area on which
the tenants were settled as also the area declared as tenant's permissible
area continued to be under the ownership of the land-owner and he was
entitled to receive rent as permitted under the Act. (413-E-F, A]
                                                                                B

      2. Since the application of the appellant under s.18 of the Punjab
Security of Land Tenures Act, 1953 for purchase of the land was pending·
immediately before the commencement of the Haryana Ceiling on Land
Holdings Act, 1972, the same was to be disposed of in terms of s.33(2)(i)       c
of the Haryana Act as if the said Act had not been passed. The Assistant
Collector and the Collector were justified in allowing the application of the
appellant for the purchase of the land in dispute. (413-D]

        Jaswant Kaur v. State, AIR (1977) P&H 221 and Nand Lal v. Haryana,
(1980) 3 SCR 1181, held inapplicable.                                           D
      3. The orders of the Commissioner, the Financial Commissioner and
of the High Court are set aside and that of the Assistant Collector as
upheld by the Collector restored.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2357 of E
1989.

      From the Judgment and .order dated 26 May, 1988 of the Punjab
and Haryana High Court at Chandigarh in Civil Writ Petition No·. 1925 of
1983.
                                                                                F
        K.K. Mohan for the Appellant.

        M.R. Sharma and Ms. S. Janani for the Respondents.

        The Judgment of the Court was delivered by
                                                                                G
      KULDIP SINGH, J. Kishan Dutt, father of respondents 5 to 7 in the
appeal herein, was a big land-owner under the provisions of The Punjab
Security of Land Tenures Act, 1953 (the Act). Mala Singh, the appellant,
was a tenant since 1951-52 in a part of the land owned by Kishan Dutt.
Mala Singh was shown in the revenue records as a tenant in cultivating          H
        410                   SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.
;

    A possession of the land. Since Kishan Dutt was a big land-owner, proceed-
        ings under the Act were initiated and the Collector, Sirsa by its order dated
        .January 31, 1962, declared certain area owned by Kishan Dutt including
        the land in Mala Singh's possession, as surplu·s under the Act. Kishan Dutt
        was permitted to retain the permissible area reserved by him und<tr the
        Act. Mala Singh filed an application before the Revenue Officer praying
    B   that the land in his possession be reserved as "tenant's permissible area"
        and be taken out of the surplus pool. The application was allowed by the
        Revenue Officer vide his order dated December 24, 1963. The net result
        was that Kishan Dutt was permitted to retain his permissible area under
        the Act and the land in possession of Mala Singh was declared as tenant's
    C   permissible area.

              Section 18 of the Act provided that a tenant who was in continuous
        occupation of the land for a minimum period of six years was entitled to
        purchase the same provided the said land was not included in the reserve ,
    D   area of the land-owner. Mala Singh filed an application on June 24, 1972, :
        under Section 18 of the Act for the purchase of the land un4er his
        possession as a tenant. It would be relevant to mention that Kishan Dutt
        died on September 4, 1971, leaving his son Madan Mohan and two
        daughters. Madan Mohan and his sisters filed an application dated Novem·
        ber 23, 1971, for ejectment of Mala Singh from the land in dispute, on the
    E   ground that after the death of their father, the three successors had become
        small land-owners and, as such, were entitled to the land, possessed by
        Mala Singh as tenant

               Both the applications came for consideration before the Assistant
    F   Collector 1st Grade, Sirsa, who by his order dated June 18, 1977 reje~ted
        the application of Madan Mohan and allowed the application of Mala
        Singh for the purchase of the land. Madan Mohan along with his sisters
        filed appeal before the Collector, Sirsa against the order of the Assistant
        Collector. The Collector dismissed the appeal on the following reasoning:-

    G           "In this case, the land. in dispute is the tenant's permissible area
                and this area is equal to the area as utilised. This area cannot be
                reverted back to the appellants. The rulings cited by the appellants
                are only applicable when the surplus land was not utilised. Under
                the circumstances I feel that the order passed by the Assistant
    H           Collector allowing the purchase application· is perfectly legal and
       MALA SINGH v. FINANCIAL COMMR. [KULDlP SINGH, J.J              411

        after the purchase, application for ejcctmcnt of the tenant has no   A
        meaning. Hence, the appeals filcc.l by the appellants arc hereby
        dismi~sed."


       Madan Mohan and his sisters filed two revision applications before
the Commissioner, Hissar Division. The Commissioner allowed the revision
petitions and recommended to the Financial Commissioner to dismiss the       B
application of the tenant for the purchase of the land and to have the
question whether the land- owners were small land-owners redetermine.
The Financial Commissioner by his order dated November 11, 1982, ac-
cepted the recommendations of the Commissioner and dismissed the ap-
plication of Mala Singh for the purchase of the land. The Financial          C
Commissioner accepted the revision petitions on the following reasoning:-

        "It is obvious that an application for the purchase of the land was
        made during the life time of the original land- owner. The succes-
        sion opened as soon as the death of the original land-owner took
        place and the question whether the heirs were small Iand-oMiers D
        assumed importance. Furthermore, a plain reading of Section
        12(3) of the new Act show that the tenant's permissible area under
        the old Act vested in the State Government with effect from the
        appointed day. This being so, the land in dispute could not be held
        to be utilised. I, therefore, agree with the view expressed by the E
        learned Commissioner."

      Mala Singh challenged the order of the Financial Commissioner by
way of writ petition under Article 226 of the Constitution before the High
Court of Punjab and Haryana which was dismissed by the High Court on
May 26, 1988. This appeal by Mala Singh by way of special leave is against   F
the order of the Financial Commissioner as upheld by the High Court.

      The Haryana Ceiling on Land Holding Act, 1972 (Haryana Act)
came into force on December 23, 1972. Sections 12(3), 33(1) and 33(2)(i)
of the Haryana Act which are relevant are as under: -
                                                                             G
        "12. Vesting of surplus area.-(3) The area declared surplus or
        tenants permissible area under the Punjab Law and the area
        declared surplus under the Pepsu Law, which has not so for vested
        in the State Government, shall be deemed to have vested in the
        State Government with effect from the appointed day and the area H
    412                   SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A            which may be so declared in pending proceedings lo be decided
             under the Punjab Law or Pepsu Law shall he deemed lo have
             vested in the State Government with effect from the date of such
             declaration.

             33. Repeal and savings. - (1) The provisions of the Punjab Security
B            of Land Tenures Act, 1953, and the Pepsu Tenancy and Agricul-
             tural Lands Act, 1955,· which are inconsistent with the provisions
             of this Act are hereby repealed.

             (2) The repeal of the provisions of the enactments mentioned in
             sub-section (1), hereinafter referred to as the said enactments,
c            shall not affect-

                (i) the applications for the purchase of land under Section 18
            of the Punjab Law or Section 22 of the Pepsu Law, as the case
            may be pending immediately before the commencement of this
D           Act, which shall be disposed of as if this Act had not been passed;"

          It is not disputed that the appellant was a tenant in the area owned
    by Kishan Dutt which was declared.surplus under the Act. It is further not
    disputed that the area in possession of the appellant was declared as
    tenant's permissible area. The only question before the authorities under
E   the Act was whether the area in possession of the appeallant as a tenant
    could be considered to have been utilized before the death of Kishan Dutt.
    The Assistant Collector and the Collector gave the answer in the affirm-
    ative whereas the Commissioner and the Financial Commissioner came to
    the conclusion that the area in possession of the appellant was not utilized.
F
           We have heard learned counsel for the parties. We are of the view
    that the revisional authorities under the Act and the High Court fell into
    patent error in holding that the surplus area of Kishan Dutt which was
    declared tenant': permissiblt: area on January 24, 1971 had not been
    utilised on September 4, 1971 when Kishan Dutt died. The expression
G   "utilized" has not been defined under the Act. It has been, however, used
    in sections 10-A and 10-B of the Act to indicate that t!te surplus area of a
    land-owner gets utilized on the resettlement of tenants on the said land.
    Under the scheme of the Act the surplus area of a big lnad-owner could
    be used for the resettlement of landless tenants and Sections lOA and lOB
H   of the Act provided that as and when it was done, the said surplus area
       MALA SINGH v. FINANCIAL COMMR. [KULDIP SINGH, J.)                  413

was taken to be utilized. If the surplus land allotted to the landless tenants   A
under the Act stood utilized, we see no reason why the surplus land which
was declared as tenant's permissible area under the Act, be not considered
to be utilized. The appellant was an old tenant of the land-owner. The land
under his possession was declared surplus. He was permitted to continue
in the said land by declaring the same as a tenant's permissible area. We
                                                                                 B
are of the view that on January 24, 1971 when the surplus land in possession
of the appellant was declared as tenant's permissible area, it stood utilized
by virtue of the said declaration. The land-owner, Kishan Dutt, having died
after the utilization of the land in dispute, his successors could not take
advantage of the fact that they had become small land-owners after the
death of their father.                                                           c
      Since the application of the appellant under Section 18 of the Act,
for the purchase of the land was pending immediately before the commen-
cement of the Haryana Act, the same was. to be disposed of in terms of
section 33(2)(i) of the Haryana Act as if the said Act had not been passed.      D
The Assistant Collector and the Collector, Sirsa, were thus justified in
allowing the application of the appellant, Mala Singh, for the purchase of
the land in dispute. The said authorities were further justified in rejecting
the ejectment application of Madan Mohan and his sisters.

       The reliance by the Financial Commissioner on section 12(3) of the        E
Haryana Act for reaching the conclusion that the land in possession of the
appellant was not utilized, is wholly misplaced. The said provision has an
entirely different purpose. Under the Act, the surplus area on which the
tenants were settled and also the area which was declared as tenant's
permissible area, continued to be under the ownership of the land-owner          F
and he was entitled to receive rent as permitted under the Act. Under
section 12(3) of the Haryana Act the area declared surplus under the Act,
whether utilised or not, and the area declared as 'tentat's permissible area'
stood vested in the State Government. Section 12(3) of the Haryana Act
has nothing to do with the question as to whether before coming into force       G
of the Haryana Act, the surplus land declared under the Act had been
utilized or not. The Financial Commissioner fell into patent error and, as
such, the conclusions reached by him cannot be sustained. Although, there
are ample provisions under the Haryana Act for the allotment of land,
which stood vested in the State Government under section U(3) of the
Haryana Act, to the tenants but it is not necessry for the appellant to follow   H
    414                  SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A   that route. His application for purchase of the land under section 18 of the
    Act was pending immediately before the commencement of the Haryana
    Act and, as such, he was entitled to have a decision on the said application
    under section 33(2)(i) of the Haryana Act. The said application was rightly
    allowed by the Assistant Collector, Sirsa.

B          Mr. Mela Ram Sharma, learned senior advocate, appearing for the
    respondent landlords vehemently contended that the appellant has no right
    to purchase the land in view of the law laid down by a Full Bench of Punjab
    and Haryana High Court in Jaswant Kaur v. State, AIR (1977) P & H 221.
    The said judgment of the Punjab and Haryana High Court was affirmed
C   by this Court in Nand Lal v. Haryana, (1980) 3 SCR 1181. We do not agree
    with the learned counseL.Jaswant Kaur's case has no relevance to the facts
    of the present case.

          We allow the appeal, set aside the orders dated December 4, 1980
    of the Commissioner, dated November 11, 1982 of the Financial Commis-
D   sioner and also of High Court dated May 26, 1988. We restore the order
    of the Assistant Collector, Sirsa as upheld by the Collector, Sirsa. The
    appellant shall be entitled to his costs which we· quantify as Rs.10,000.




                                                                                   -
    R.P.                                                       Appeal allowed.