Judgment:
L.P.A.No.1284 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) L.P.A.No.1284 of 2011 (O&M) Date of Order:
12. h April, 2013 Kamla Devi widow of Hans Raj ...Appellant Versus Financial Commissioner (Appeals), Punjab and others ..Respondents (2) L.P.A.No.1450 of 2011 (O&M) Som Raj and others ...Appellants Versus Financial Commissioner (Appeals), Punjab and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MRS. JUSTICE REKHA MITTAL Present: Mr. R.K.Joshi, Advocate for the appellants. Ms. Sudeepti Sharma, DAG, Punjab for respondent no.1. Mr. R.C.Setia, Senior Advocate, with Mr. Anish Setia, Advocate, for respondent nos. 2 to 5. RAJIVE BHALLA, J.By way of this order, we shall dispose of L.P.A.Nos.1284 L.P.A.No.1284 of 2011 -2- and 1450 of 2011, as they arise from the same impugned order and involve adjudication of common questions of fact and law. The appellants pray that order, dated 10.05.2011, allowing the writ petition, filed by private respondents, setting aside orders, passed by revenue authorities and granting liberty to the heirs of the deceased big landowner, Faqir Chand to seek a declaration of their land holdings in terms of Sections 4 and 5(1) of the Punjab Land Reforms Act, 1972 (hereinafter referred to as 'the 1972 Act') and simultaneously directing that the appellants' (tenants') application, for purchase of the land, in dispute, shall be considered only after surplus area proceedings under the 1972 Act are finalised, may be set aside. Counsel for the appellants submits that while accepting the writ petition and reversing orders, passed by revenue authorities, provisions of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as 'the 1953 Act') and the 1972 Act have been misread, the order dated 02.09.1960 declaring the land, in dispute, as tenant's permissible area has been ignored, the appellants' status as a sitting tenant with a right to purchase tenant's permissible area under the 1953 Act, duly protected by the 1972 Act has been wrongly rejected, the principle that land stands utilised on determination of tenant's permissible area has not been noticed, orders passed by revenue officers allowing the applications for purchase have been set aside on the ground that possession was not taken by the Government and by ignoring the fact that land in possession of a tenant stands “utilised”. on its declaration as tenant's permissible L.P.A.No.1284 of 2011 -3- area. The consequential finding that as the landowner could gift this land and as the land owner has passed away, the land has to be re- determined under the 1972 Act, is contrary to the law settled by the Hon'ble Supreme Court and various Division Bench judgments of this Court. The judgments, referred to by the learned Single Judge, apply to cases for re-determination of surplus area where the big landowner has passed away before possession is taken but not to cases where land is declared tenant's permissible area and has already “vested”. as it is in possession of sitting tenants. The land, in dispute, was declared tenant's permissible area on 02.09.1960 and has remained in possession of the appellants/tenants ever since. The land, in dispute, therefore, stood “utilised”., on 02.09.1960. The subsequent gift of the land by the big landowner or his death during pendency of purchase proceedings and enactment of the 1972 Act, is irrelevant. In support of his arguments, counsel for the appellants places reliance upon a judgment of the Hon'ble Supreme Court in Mala Singh v. Financial Commissioner and others, 1994(1) SCC, 195, along with Division Bench's judgments of this Court, in Bhag Singh and another v. Financial Commissioner and others, 1989, PLJ.541, Hari Chand and others v. The Financial Commissioner and others, 2000(2) Punjab Law Reporter, 491, Antu v. Naresh Saran, 2001(2) RCR (Civil), 790, Shashi Kumar and others v. Financial Commissioner, Haryana and others, 2011(1) Local Acts Reporter, 556. It is further argued that there is no question of re-determination of surplus area, whether in the hands of Faqir Chand, the private respondents, in view of the gift or on L.P.A.No.1284 of 2011 -4- account of the demise of Faqir Chand, during pendency of the application for purchase. It is further argued that whether the land was or was not declared surplus, under the 1972 Act, is irrelevant as the appellants seek to enforce their right to purchase land, in their possession as tenants, declared tenant's permissible area and “utilised”. and vested in 1960, by filing a petition under Section 18 of the 1953 Act, duly saved by the repealing clause enacted by Section 28 of the 1972 Act. It is further submitted that the appellants filed an application on 21.06.1972, for purchase of the land, in dispute, before coming into force of the 1972 Act. The revenue authorities have rightly held, in accordance with provisions of the 1953 Act that declaration of surplus area, under the 1972 Act, is irrelevant for the purpose of deciding the application for purchase, filed under the 1953 Act. The impugned order, holding to the contrary, by setting aside these orders by allowing the writ petition, may, therefore, be set aside. Counsel for the private respondents submits that as, admittedly, the land was not purchased, by the appellants, before repeal of the 1953 Act and the land was transferred to private respondents by way of a gift, after repeal of the 1953 Act and the land has not been re-assessed, under the 1972 Act, it could not be purchased by the appellants, as tenants. The learned Single Judge has, therefore, rightly held that as the land stood gifted to private respondents and as the big landowner has passed away, before “utilisation”., the land holding has to be re-assessed in the hands of L.P.A.No.1284 of 2011 -5- his heirs, before the application for purchase is considered. It is further argued that as the land was gifted to private respondents on 22.10.1971, the application for purchase of the land was not maintainable against Faqir Chand. The application for impleading the private respondents as parties, was filed after one year. The application for purchase has to be dismissed as necessary parties were not impleaded during the period of one year, prescribed under Section 15 of the 1972 Act. Counsel for the private respondents further submits that as held by the Hon'ble Supreme Court and as rightly relied by the learned Single Judge, in Jeet Ram and others v. Gobind and others, 1971 P.L.J., 766, Ujjagar Singh(dead) by his Lrs v. The Collector, Bhatinda and another-AIR 199.Supreme Court, 2623, Financial Commissioner, Haryana v. Smt. Kela Devi- AIR 198.Supreme Court 309, Jasbir Kaur and another v. Financial Commissioner (Appeals), Punjab and another-1996 PLJ 205.if a big landowner passes away during pendency of proceedings for purchase and before utilisation, the land has to be re-assessed in the hands of his legal heirs, of the big landowner. We have heard counsel for the parties, perused the impugned order, as well as orders passed by revenue authorities. Before we record our opinion, it would be necessary to narrate relevant facts. Faqir Chand, father of the private respondents, was a big landowner. Admittedly, his land holding was assessed, under the 1953 Act and vide order dated 02.09.1960, 30 standard acres were declared permissible area, 16 standard acres and 6¼ units were L.P.A.No.1284 of 2011 -6- allotted to vendees and as the appellants were sitting tenants, 32 standard acres, were reserved as tenant's permissible area, in the hands of the appellants. The Assistant Collector Ist Grade, Dasuya, therefore, declared that Faqir Chand does not own or possess any surplus area. The order, dated 02.09.1960, has attained finality as neither Faqir Chand not the private respondents, who are his legal heirs and donees from him by way of a gift, have ever challenged this order. Faqir Chand, the big landowner, in an attempt to save this land, gifted the land, in dispute, to the private respondents (his sons), vide gift deed dated 22.10.1971. The appellants filed an application, under Section 18 of the 1953 Act, on 22.06.1972, for purchase of the land comprising their tenancy, by impleading Faqir Chand, as a respondent. During pendency of the application for purchase, the private respondents filed an application for dismissal of the application on the ground that the big landowner has gifted the land to them and they have not been impleaded as parties. The appellants filed an application, on 24.04.1974, to implead the sons of the big landowner (the private respondents, herein) as co- respondents. The Assistant Collector Ist Grade, Dasuya, dismissed the application as time barred and as a consequence also dismissed the purchase application on 21.09.1977. An appeal filed before the Collector, Hoshiarpur, was allowed by holding that as no relief was actually sought against the sons of the landowner and as they came into the picture long after the land, in dispute, was declared tenant's permissible area, their L.P.A.No.1284 of 2011 -7- non-joinder as respondents, could not lead to dismissal of the application, as barred by time. However, while remanding the case to the Assistant Collector Ist Grade, the Collector issued a direction that permissible area of the landlord should be decided before the purchase applications are decided, afresh. The Collector was apparently alluding to the holdings of the landower and his sons, under the 1972 Act and not under the 1953 Act. The private respondents filed an appeal before the Additional Commissioner. The appeal was dismissed by holding as follows:-
“8. It may further be added that there is no question of keeping the applications pending for getting the permissible area of the landowner determined by the Collector Agrarian. The land in dispute was declared surplus under the Punjab Security of Land Tenures Act, 1953 and continues to be so under the Punjab Land Reforms Act, 1972, if any returns have been filed by the landowners under Rule 5(1) of the Punjab Land Reforms Rules, 1973 including the area already declared surplus, the said circumstances would not make any difference to the rights of the tenants which may have already accrued.
9. In the circumstances discussed above, both the appeals are rejected and the parties are directed to appear before the A.C. Ist Grade, Dasuya on 14.5.1979 for fresh decision of the applications in L.P.A.No.1284 of 2011 -8- the light of the observations made above.”
. The learned Additional Commissioner has clarified that the purchase application relating to land assessed under the 1953 Act, cannot be kept pending and in case any return has been filed by the landowner under the 1972 Act with respect to the land, in dispute, it would not make any difference to the rights of tenants as their right to purchase had already accrued, thus, making a clear reference to Section 18 of the 1953 Act. The appellants, thereafter, filed an application before the Assistant Collector Ist Grade for revival of the application for purchase, but the Assistant Collector Ist Grade ignored the order passed by the Collector and the Additional Commissioner and once again dismissed the application on 27.03.1985 by wrongly holding that as it has not been proved that the disputed land is from the permissible area of the landowner and the matter can only be determined after decision of permissible area, thereby, once again making a reference to the 1972 Act and, in essence, reiterating his earlier order. The Assistant Collector Ist Grade, ignored findings recorded by the Collector and the Additional Commissioner, Jalandhar Division, Jalandhar, and in a blatant act of judicial in- discipline dismissed the application for purchase. An appeal, filed by the appellant before the Collector, Hoshiarpur, was allowed after examining the matter in its entirety, particularly, the previous litigation and the declaration of tenant's permissible area on 02.09.1960. A relevant extract reads as follows:-
“11. I have heard the arguments of both the counsel for L.P.A.No.1284 of 2011 -9- the parties and gone through the record of the lower court carefully and the following observations are made:- i) It looks that the lower Court had ordered to keep the purchase application in abeyance because the orders of the higher Courts had not been properly interpreted by the lower Court; ii) The tenant's permissible area was determined in the year 1960 and the tenants became eligible to have the proprietary rights from 1960 itself. Perhaps, the tenants were not present at the time when order dated 2.9.1960 was announced and due to that the Court not only within the time period of one year and applied for the proprietary rights in the year 1972 and this litigation is continuing from 1972 onwards regarding the proprietary rights of the tenants. To keep the purchase application pending till the determination of the reserve area of the landlord mean doing injuries to the tenants. In case, the Collector (Agr.) had mentioned specifically the khasra numbers, which had been earmarked as permissible area of landlord, this litigation would not have arises; L.P.A.No.1284 of 2011 -10- iii) The counsel of the respondents have argued more on maintainability of the purchase application in the lower Court, but scope of the present appeals is very-very limited because the appellant had prayed for proper processing of the purchase application and not to keep in abeyance for a long time. iv) The counsel of the respondents have also argued that no appeal can be preferred against the interlocutory orders and only revision lies against the interlocutory orders. In this respect, it is very clear that if the interlocutory order is in contradiction with the orders passed by the higher Courts, then that interlocutory orders is to be set aside by the appellate Court.
12. In view of the above observations, I accept the appeal, remand the case to the Assistant Collector Ist Grade, Dasuya, to process the purchase applications by summoning the record of surplus area of Faqir Chand deceased, predecessor-in- interest of the present respondents. In case, the proceedings relating to the surplus area of Faqir Chand deceased are not finalised, the same should be finalized within period of two months as Assistant Collector Ist Grade (SD)(C) has also L.P.A.No.1284 of 2011 -11- concurrent powers of Collector(Agr.). While finalizing the surplus area of Faqir Chand deceased the orders of Financial Commissioner dated 23.02.1982 and 3.5.1985, order of Additional Commissioner, Jalandhar Division, Jalandhar, dated 23.4.1979, order of the Commissioner, dated____ as well as remand order of the Collector, Hoshiarpur, dated 29.3.1978 be kept in view. Some of these orders have not been placed by the parties on the files of purchase applications but are available on the files relating to the suit for recovery of rent, between the same parties, in this Court.”
. A perusal of the order passed by the Collector reveals that rights of the appellants, to purchase the land, in dispute, were affirmed, the private respondent's plea for adjourning the case to decide their surplus area was rejected but it was ordered that surplus area case of Faqir Chand, who had, in the meanwhile, passed away, if not decided, be finalised under the 1972 Act. The private respondents filed an appeal before the Commissioner, Jalandhar Division, Jalandhar, which was dismissed on 23.11.1987. A revision, filed before the Financial Commissioner met the same fate. The private respondents, however, raised a fresh plea before the Commissioner and the Financial Commissioner that as the big landowner has passed away and the land claimed by the appellants for purchase has not been “utilised”. (i.e. possession has not been taken by the State), the land should be re-assessed in their L.P.A.No.1284 of 2011 -12- hands, as they are, admittedly, legal heirs of Faqir Chand. The arguments were rejected by the Commissioner and the Financial Commissioner by holding that as land is tenant's permissible area, it stands “utilised”. on the date of its declaration as tenant's permissible area. The private respondents, thereafter, filed two separate writ petitions, which have been allowed by holding that as the land has not been “utilised”. i.e., possession has not been taken by the State, the land continues to vest in the big landowner and as he gifted the land to the private respondents before enactment of the 1972 Act and as in the meanwhile, he passed away, the application for purchase cannot be allowed, till such time as the land is not assessed for surplus area in the hands of legal heirs of the big landowner, i.e., the private respondents. While holding that the land, in dispute, has not been “utilised”. before or after the death of the big landowner and as no declaration of surplus area was made under the 1972 Act, it was held that the applications for purchase cannot be considered. The following judgments were relied, in support of the conclusions:- Jeet Ram and others v. Gobind and others, 1971 PLJ.766, Ujjagar Singh(dead) by his LRs v. The Collector, Bhatinda and another-AIR 199.Supreme Court 2623, Financial Commissioner, Haryana v. Smt. Kela Devi-AIR 198.Supreme Court 309, and Jasbir Kaur and another v.Financial Commissioner(Appeals), Punjab and another-1996 PLJ 205.The dispute, in hand, briefly put and the questions that call for an answer are the nature of tenant's permissible area, the L.P.A.No.1284 of 2011 -13- rights of tenants in occupation of tenant's permissible area, the nature of their right under the 1953 and 1972 Act to purchase this land, whether the concept of “utilisation”. applies to land declared as tenant's permissible area and whether death of the big landowner, during pendency of applications for purchase of land comprised in tenant's permissible area or his gift of the land to his sons during his life time, has any adverse affect on the rights of tenants in possession of tenant's permissible area or would require authorities to make a fresh assessment of surplus area. Admittedly, the land, in dispute, was declared tenant's permissible area, on 02.09.1960 in the hands of the appellants and they continue to be in possession, as such. Admittedly, order dated 02.09.1960 has attained finality as neither the big landowner not the private respondents have challenged this order, before any forum, much less in the writ petition that has been allowed in their favour. While assessing the land holding of a landlord, the Assistant Collector determines permissible area, surplus and tenant's permissible area. The permissible area remains the ownership of the landowner, land declared tenant's permissible area, remains in possession of the tenant and land declared surplus vests in the State after “utilisation”. i.e., after the State takes possession, in accordance with law. Tenants permissible area, is a variety of surplus area, other than permissible area as it is in occupation of a sitting tenant, conferred with a right to purchase the land that comprises his tenancy, by filing an application, under Section 18 of the 1953 Act. L.P.A.No.1284 of 2011 -14- The landowner, on the other hand, has a right to recover rent, till the land is not purchased by the tenant but cannot deal with the land to the detriment, of the rights, of a tenant. We find support for our conclusions, regarding the nature of surplus area, permissible and tenant's permissible area and the rights of a tenant in occupation of tenant's permissible area, from a Division Bench judgment of this Court in, Bhag Singh and another v. Financial Commissioner and others(supra). A relevant extract reads as follows:-
“3. There were three qualities of areas which emerged as a consequence of the Old Act, when applicable to a big landowner. He would get a permissible area; if he had tenants settled on some area with effect from April 15, 1953, those tenants would get their tenants' permissible area (for short TPA) and the remaining was surplus area capable of being utilised by the State for resettlement of tenants. The tenants already sitting and the tenants inducted by the State on utilisation of surplus area could purchase their tenancies under section 18 of the Old Act provided the tenancy had continued for six years or more; the only impediment being that the land so sought to be purchased be not included in the reserved area of the landowner. The procedure prescribed therein warranted for such a tenant to make an application to the Assistant Collector Ist L.P.A.No.1284 of 2011 -15- Grade who after giving notice to the landowner and to all other persons interested in the land could make an enquiry and determine the value of land which was the average of the price obtaining for similar land during 10 years immediately preceding the date on which the application was made. Further the purchase price was 3/4th of the land so determined and the tenant could pay it in instalments. On the payment of first instalment, the tenant was deemed to have become owner of the land.
4. Section 18 of the Old Act was only enabling. There was nothing compelling in the old Act for a tenant to ask for a purchase of his tenancy, one of the objects of the old legislation being the removal of intermediaries. The said enabling provision did not fully carry out the object and while framing the New Act the Legislature had in mind to remedy that situation. By enacting Section 15 of the New Act, whereunder a tenant who was entitled under section 18 of the Old Act to purchase the land under his tenancy, was required to opt for purchase within one year from the date of the commencement of the New Act. The concessional rates were further brought down and the number of instalments were enhanced.”
. L.P.A.No.1284 of 2011 -16- A perusal of the above extract also reveals that land declared tenant's permissible area can be purchased by a tenant, under Section 18 of the 1953 Act or by filing an application under Section 15 of the 1972 Act, within one year of enforcement of the 1972 Act. Before we deal with the next question, it would be appropriate to once again point out that the writ petition has been allowed by holding that as the land, in dispute, was No.“utilised”., it cannot be purchased by the tenant till such time as surplus area is not re-determined under the 1972 Act. The questions that, therefore, require an answer are the meaning of “utilisation”., and whether the concept of surplus land vesting on “utilisation”. applies to land that is tenant's permissible area?. The word “utilisation”. appears in Sections 10-A and 10-B of the 1953 Act and denotes that land declared 'surplus' shall vest in the State only after “utilisation”., i.e., after the State takes over possession of surplus area. The concept of surplus area vesting in the State after “utilisation”., i.e., taking of possession is, however, alien to tenant's permissible area or land, in possession of a tenant, as tenant's permissible area. The land declared tenant's permissible area is already in possession of a tenant, and, therefore, stands “utilised”. on its declaration as tenant's permissible area. The concept of vesting after “utilisation”., i.e., after taking possession applies to surplus area. The judgments, relied by the learned Single Judge for holding to the contrary, relate to cases of surplus area and not to cases of tenant's permissible area. The rights in tenant's permissible L.P.A.No.1284 of 2011 -17- area and surplus area are entirely different. The land, in dispute, was already in possession of tenants and stood “utilised”. on its declaration as tenant's permissible area on 02.09.1960. We find support for our conclusions, from a judgment of the Hon'ble Supreme Court in, Mala Singh v. Financial Commissioner and others(supra), wherein, after considering the nature of land declared as tenant's permissible area and surplus area, it was held that as tenant's permissible area is already in the possession of a tenant, it stands utilised on its declaration as tenant's permissible area and the concept of “utilisation”. does not apply to tenant's permissible area. The facts in Mala Singh's case (supra) were that one Mala Singh, a tenant, prayed that land in his possession be declared tenant's permissible area and be excluded from the surplus pool. The application was allowed on 24.12.1963. Kishan Dutt, the big landowner, passed away on 04.09.1971, leaving behind his son Madan Mohan and two daughters, who filed an application on 23.11.1971 for ejectment of Mala Singh from the land, in dispute, on the ground that they have succeeded to the land, in dispute, after the death of their father. Mala Singh, thereafter, filed an application, on 24.06.1972, under Section 18 of the 1953 Act for purchase of the land under his possession. The application for purchase was allowed and the application for ejectment was dismissed. The Commissioner, however, forwarded a reference to the Financial Commissioner that the application for purchase should be dismissed as the question whether landowners (the legal heirs of the big landowner) were small landowners, should be determined first. L.P.A.No.1284 of 2011 -18- The Financial Commissioner accepted the recommendation and dismissed the application. The writ petition filed by Mala Singh was dismissed on 26.05.1988. The Hon'ble Supreme Court, held as follows:-
“8. 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's permissible area on January 24, 1971 had not been utilised on September 4, 1971 when Kishan Dutt died. The expression "utilised" 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 the surplus area of a landowner gets utilised on the resettlement of tenants on the said land. Under the scheme of the Act the surplus area of a big landowner could be used for the resettlement of landless tenants and Sections 10-A and 10-B of the Act provided that as and when it was done, the said surplus area was taken to be utilised. If the surplus land allotted to the landless tenants under the Act stood utilised, we see no reason why the surplus land which was declared as tenant's permissible area under the Act, be not considered to be utilised. The appellant was an old tenant of the landowner. The land L.P.A.No.1284 of 2011 -19- 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 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 utilised by virtue of the said declaration. The landowner, Kishan Dutt, having died after the utilisation of the land in dispute, his successors could not take advantage of the fact that they had become small landowners after the death of their father.”
. A perusal of the judgment reveals that land, in possession of a tenant, declared as tenant's permissible area, stands utilised, on its declaration as tenant's permissible area. It is, therefore, crystal clear that if a parcel of land is declared tenant's permissible area, it stands “utilised”. on its declaration as such and a plea, for redetermination of land holding on account of demise of the big landowner or on account of transfer of the land, is not available to heirs/transferees from a big landowner. The judgment was apparently not brought to the notice of the learned Single Judge. A similar controversy came up for consideration before a Division Bench of this court in Hari Chand and others v. The Financial Commissioner and others(supra), and it was held as follows:- “18.Surplus area, as mentioned above, does not L.P.A.No.1284 of 2011 -20- include tenants's permissible area. It is only not utilisation of surplus area that would come to the rescue of a landlord by dint of the provisions contained in the Act of 1972 and by virtue of judgment of Full Bench in Ranjit Ram's case (supra). Insofar as tenant's permissible area is concerned, the same stood utilised by dint of the the fact that the tenants had already occupied the same and of which landlord was not in possession. Such land, in our view, stood utilised, the day it was declared to be tenant's permissible area. True, this matter was not argued before the learned Single Judge but it is too well settled that the respondents are entitled to defend the order on the grounds other than mentioned in the impugned order or even for that matter on the grounds which have gone against them by the impugned order.”
. A relevant extract from the judgment in Shashi Kumar and others v. Financial Commissioner, Haryana and others (supra) would also be appropriate. The following question was culled out by the learned Division Bench:- “Whether the tenant's permissible area determined in order dated 09.07.1960 vests with tenants and stand utilised on the said date itself?.”. The question was answered after placing reliance upon Mala Singh and Hari Chand's cases (supra) in the following L.P.A.No.1284 of 2011 -21- terms:-
“41. Thus, in respect of tenant's permissible area, the land vests with tenants with the passing of the order in respect of selection of the permissible area of landowner and tenant's permissible area. The tenants are already in possession of the tenanted land. The question of utilisation arises only in the event, the ejected tenants are to be resettled on the land declared surplus. Since the land of Om Parkash, either falls within his selected area or the tenant's permissible area, no further action was required by the Authorities under the Act.
42. In view of the above, we hold as under: (i) That the order passed by the Collector on 09.07.1960 is final and operative between the parties. (ii) The landlord is entitled to retain land as per his selection in form 'E' submitted on 19.06.1958 as his permissible area. (iii) The tenants within the tenant's permissible area, other than the selected area of the landowner, are deemed to be in possession as owners thereof from the date of the order passed by the learned Collector on 09.07.1960.”
. L.P.A.No.1284 of 2011 -22- An extract from Bhag Singh and another v. Financial Commissioner and others (supra)(a portion whereof we have already reproduced) would also be appropriate, and reads as follows:- 9. Learned counsel for the petitioners was vehement and emphatic that when the old landowner had died, entire case had become open and the surplus area had to be redetermined in the hands of his heirs and the benefit thereof could be derived by the vendees too. He was further emphatic that surplus area proceedings would not reflect on proceedings under section 15 of the New Act and may even wipe them off.
10. We are clear that the argument is totally misplaced. Chapter 11 of the New Act describes `Ceiling on land and an elaborate procedure has been provided to cull out the permissible and the surplus area of the landowner. The death of a land owner may or may not cause an affectation thereto, for we are not going to pronounce on this aspect of the case. What we are concerned with here is that the petitioners want that the proceedings in section 15 application should be stopped by issuance of a writ of prohibition against the Assistant Collector Ist Grade. This we are not prepared to do in view of the non-obstante clause occurring in section 15 which says notwithstanding anything contained in L.P.A.No.1284 of 2011 -23- this Act". The paramountly of section 15 is so patent that it overrides all other sections in the Act. What was an enabling right in the old Act is not a positive and assertive right and the tenant in the exercise of that right is absolutely safe even if the big landowner were to die during the pendency of the proceedings. We would, however hasten to add that some room may be there to entertain such an argument within one year from the date of the commencement of the New Act, within which an application under section 15 is entertainable, but, once the landowner survives that date, the claim of the tenant under section 15 is water tight and not defeasible by death of the big landowner. It is as good as saying that the tenant would got the relief on the day he asked for. Therefore, in these circumstances we do not find any occasion to apply either the decision of an Hon'ble Single Judge of this Court in Smt. Santosh v. Financial Commissioner, Haryana and others, 1982 P.L.J.
278. wherein it was held that the purchase application must remain state till the finalisation of the surplus area proceedings under the Act (Old), or the Full Bench decision of this Court in Smt. Ajit Kaur and others v. The Punjab State and Others, 1980 P.L.J.354, interpreting sub-sections (5) and L.P.A.No.1284 of 2011 -24- (7) of Section 11, which get employed while determining the surplus area of a deceased landowner in the hands of his heirs, or the Supreme Court decision in Kanaya Ram and others v. Rajinder Kumar and others, 1985 P.L.J.167 :
1985. R.R.R. 436 which is a decision defining the enabling right of tenant under section 19 of the Old Act. We have section 15 of the New Act before us, under which the claim of the tenant is being revived and agitated before the Assistant Collector Ist Grade. As we read the provision, the New Act is utterly intolerant of the intermediary and that is why it has made it incumbent on the tenant to apply for purchase within one year from the date of the commencement of The Act and never the rafter. Care has otherwise been taken of the ones who fail to avail of the opportunity under the statutory schemes for utilising the surplus area.”
. A perusal of the provisions of the 1953 Act and the ratio of the above judgments, leave no ambiguity or room for any further debate that land reserved as tenant's permissible area, under the 1953 Act, and in possession of a sitting tenant stands “utilised”., on the date of its declaration as tenant's permissible area and in case the big landowner transfers the land or passes away during pendency of an application for purchase, filed by a tenant, the heirs of a big landowner or a transferee from him cannot be heard to urge L.P.A.No.1284 of 2011 -25- that the land be reassessed for surplus area in their hands, whether under the 1953 Act or the 1972 Act. The judgments relating to the nature and “utilisation”. of tenant's permissible area were not brought to the notice of the learned Single Judge and judgments that relate to surplus area were cited and wrongly relied by the learned Single Judge while holding that as the land has not been utilised, the private respondents are entitled to a re-assessment of surplus area on account of gift of the land and on account of demise of the big landowner and only, thereafter, can the applications for purchase be decided. With due deference to the findings recorded in the impugned order, we are unable to accept the enunciation of law, that as the land was gifted to the private respondents and in the meanwhile the big landowner has passed away, surplus area will have to be re-assessed in the hands of heirs of the big landowner. The land, in dispute, was, admittedly, reserved as tenant's permissible area on 02.09.1960 and the appellants were and are in possession. The land, therefore, stood “utilised”. on 02.09.1960 and was not available to the big landowner for any purpose much less for inclusion in his land holding, whether under the 1953 Act, the 1972 Act or even to his heirs after his demise. Faqir Chand, the big landowner, was apparently unaware of Section 16 of the 1953 Act that saves tenancies from the affect of any malafide transfer after 01.02.1955. It is, therefore, held that as land declared tenant's permissible area is land in possession of a sitting tenant, who has a right to purchase the land under Section 18 of the 1953 Act, duly protected by Section 28 and Section 15 of the 1972 Act, and his right L.P.A.No.1284 of 2011 -26- cannot be adversely affected by transfer of the land by the big landowner or by his death. It would be necessary to reiterate that the land stood utilised on 02.09.1960, when it was declared tenant's permissible area, and the fact that the big landowner may have gifted the land to his sons, i.e., the private respondents, or that he may have passed away during pendency of proceedings for purchase, does not entitle the private respondents to pray or the learned Single Judge to hold that the matter that was finalised on 02.09.1960, has to be re-opened. The next question is the affect, if any, of the 1972 Act on the rights of a tenant in possession of land declared tenant's permissible area, under the 1953 Act. The 1972 Act, received the assent of President of India, on 24.03.1973 and was notified on 02.04.1973. Section 28 of the 1972 Act titled as “Repeal and Saving”., repeals the 1953 Act and provides that provisions of the Punjab Security of Land Tenures Act, in so far as they are inconsistent with the provisions of the 1972 Act, shall stand repealed. Section 28 of the 1972 Act reads as follows:- 28. Repeal and Saving – (1) The Punjab Security and Land Tenures Act, 1953 and the Pepsu Tenancy and Agricultural Lands Act, 1955, in so far as these are inconsistent with the provisions of this Act, are hereby repeated. (2) The repeal of the enactments mention in sub- section (1), hereinafter referred to as the said L.P.A.No.1284 of 2011 -27- enactments, shall not affect— (i) the proceedings for the determination of the surplus area pending immediately before the commencement of this Act, under either of the said enactments, which shall be continued and disposed of as if this Act had not been passed, and the surplus area so determined shall vest in and be utilised by the State Government in accordance with the provisions of the Act; Provided that such proceedings shall, as far as may be, be continued and disposed of, from the stage these were immediately before the commencement of this Act, in accordance with the procedure specified by or under this Act, [and the cases pending before the Pepsu Land Commission immediately before the date of commencement of this Act shall transferred to the Collector of the district concerned for disposal].. Provided further that nothing in this section shall affect the determination and utilisation of surplus area, other than the surplus area referred to above, in accordance with the provisions of this act; (ii) the previous operation of the said enactments or anything duly done or L.P.A.No.1284 of 2011 -28- suffered thereunder. (iii) any right, privilege, obligation or liability acquired, accrued or incurred under the said enactments, in so far as such right, privilege, obligation or liability is not inconsistent with the provisions of this Act and any proceeding or remedy in respect of such right, privilege, obligation or liability may be instituted, continued or enforced as if this Act had not been passed. Provided that such proceedings or remedy shall, as far as may be, instituted continued or enforced in accordance with the procedure specified by or under this Act.”
. Section 28(2)(iii) of the 1972 Act provides that repeal of the 1953 Act shall not affect the previous operation of the 1953 Act or anything duly done or suffered thereunder and any right, privilege, obligation or liability acquired, accrued or incurred under the 1953 Act, in so far as such right, is not inconsistent with provisions of the 1972 Act and any proceeding or remedy in respect thereof may be instituted, continued or enforced as if this Act (the 1972 Act) had not been passed. Section 28 of the 1972 Act, clearly postulates that, though, the 1953 Act has been repealed any proceedings instituted to enforce a right, conferred under the 1953 Act shall be continued or L.P.A.No.1284 of 2011 -29- enforced as if the 1972 Act had not been passed except when rights conferred under the 1953 Act or the proceedings are inconsistent with any provision of the 1972 Act. The application, for purchase of land, comprised in their tenancy and declared tenant's permissible area was filed, on 22.06.1972, before repeal of the 1953 Act and enactment of the 1972 Act. The rights of the appellants, as tenants in possession of tenant's permissible area, to purchase land that comprised their tenancy stood crystalised on declaration of tenant's permissible area. The enactment of the 1972 Act or repeal of the 1953 Act does not affect these rights adversely. The applications for purchase, which were already pending on enactment of the 1972 Act are saved by Section 28(2)(iii) of the 1972 Act, read along with Section 15 of the 1972 Act. The only difference is that compensation for purchase shall be assessed in accordance with terms and conditions of purchase set out in Section 15 of the 1972 Act. A combined reading of these statutory provisions leaves no room for further debate that if a tenant sitting on tenant's permissible area, has filed an application for purchase, in accordance with his right of purchase conferred by Section 18 of the 1953 Act, before repeal of the 1953 Act, the application shall have to be considered and decided in accordance with provisions of the 1953 Act, as per rights crystalised under the said enactment. If, however, an application for purchase is not pending, a tenant, sitting on tenant's permissible area, may file an application within one year of enactment of the 1972 Act, as provided by Section 15 of the 1972 L.P.A.No.1284 of 2011 -30- Act. A tenant who does not file an application within one year, would still be entitled to a preferential allotment in accordance with the scheme for utilisation of surplus area framed under the 1972 Act. The coming into force of the 1972 Act or transfer of the land declared as tenant's permissible area by the big landowner or the death of big landowner during pendency of the application for purchase, does not defeat the rights of a tenant to purchase land declared as tenant's permissible area. It is, however, true that a big landowner is not prohibited from dealing with surplus area but such a transfer shall not adversely affect tenant's permissible area or the right of a tenant on such land. The sale/gift etc. so made would be binding inter parties but would be ignored if it adversely affects the extent of surplus area or tenant's permissible area. The applications for purchase, filed by the appellants before enactment of the 1972 Act, were pending on the date of repeal of the 1953 Act and enforcement of the 1972 Act. The applications had to be decided in accordance with the procedure prescribed by Section 18 of the Punjab Law and the rates and method for purchase, set out in Section 15 of the 1972 Act. The provision of repeal and saving, enacted by Section 28 of the 1972 Act clearly save pending proceedings that are not inconsistent with provisions of the 1953 Act. The gift of the land, in dispute, by the big landowner or his demise do not adversely affect the rights of the appellants, to purchase the land, in dispute, which stood crystalized on 02.09.1960. The death of big landowner does not require decision of purchase application, to await outcome of surplus area L.P.A.No.1284 of 2011 -31- proceedings, under the 1972 Act. In view of what has been stated hereinabove, we allow the appeals, set aside the impugned order and dismiss the writ petition. The Assistant Collector Ist Grade, Dasuya, is directed to proceed with the application of appellants for purchase of the land, in dispute, in accordance with law. Parties are directed to appear before the Assistant Collector Ist Grade, Dasuya, on 16.05.2013. (RAJIVE BHALLA) JUDGE 12 h April, 2013 (REKHA MITTAL) nt JUDGE