Smt. Bhagwan Kaur Vs. State of Punjab Through Chief Secretary to Govt. of Punjab and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....ordertek chand, j.1. smt. bhagwan kaur, widow of balchtawar singh, petitioner has moved this petition under article 226 of the constitution praying for the issuance of an appropriate writ for quashing the respective orders passed by respondents nos. 2, 3 and 4. respondent no. 1 is the state of punjab and respondents nos. 5 to 15 are the tenants of the petitioner.2. the petitioner owns land measuring 94 standard acres out of which land measuring 410 bigbas is under possession of respondents nos. 5 to 15 who are cultivating the land as tenants-at-will under the petitioner. the land is situated in tahsil nabha to which the pepsu tenancy and agricultural lands act, 1955, is applicable. to the lands situated in the territory of punjab before merger, the law applicable is governed by the punjab.....

Judgment:
ORDER

Tek Chand, J.

1. Smt. Bhagwan Kaur, widow of Balchtawar Singh, petitioner has moved this petition under Article 226 of the Constitution praying for the issuance of an appropriate writ for quashing the respective orders passed by respondents Nos. 2, 3 and 4. Respondent No. 1 is the State of Punjab and respondents NOS. 5 to 15 are the tenants of the petitioner.

2. The petitioner owns land measuring 94 standard acres out of which land measuring 410 bigbas is under possession of respondents Nos. 5 to 15 who are cultivating the land as tenants-at-will under the petitioner. The land is situated in Tahsil Nabha to which the Pepsu Tenancy and Agricultural Lands Act, 1955, is applicable. To the lands situated in the territory of Punjab before merger, the law applicable is governed by the Punjab Security of Land Tenures Act. No part of this land was at any material time under personal cultivation of the petitioner. In this case, the permissible limit as defined in Section 3 would be 30 standard acres or 80 ordinary acres. Section 5 of the Pepsu Act provides that where a landowner owns land exceeding 30 standard acres, he shall be entitled to select for personal cultivation from land held by him in the State as a landowner any parcel or parcels of land not exceeding in aggregate area the permissible limit. He may reserve such land for 'personal cultivation by intimating his selection in the prescribed form and manner to the Collector. This rights ceases if it is not exercised by a person in the condition of the petitioner within a period of six months from the commencement of the President's Act. In this case the petitioner did not exercise any such right and did not give any indication to the Collector of? her wish to reserve the land. No land was reserved by her and no parcel was under her personal cultivation.

3. The tenants made an application to the prescribed authority (Tahsildar Nabha) under Section 22 of the Pepsu Act for the acquisition of proprietary rights. The prescribed authority, after notice to the petitioner, allowed- the tenants' application on 31st May, 1960. As the application was by different sets of tenants, four orders were passed which are similarly worded. Copies of these orders have been placed on the record as annexures A, B, C and D. The petitioner took the matter up in appeal to the Collector, but she was unsuccessful (vide annexures E, F, G and H). Then the matter was taken up in revision to the financial Commissioner where she was also not successful (vide annexure 1). Before the Financial Commissioner, reliance was also placed upon the provisions of Section 32-A and 32-B of the Pepsu Act.

4. Chapter 1V-A was inseried by Pepsu Act 15 of 1956. Section 32-A provides that no person shall be entitled to own or hold as landowner or tenant land under his personal cultivation within the State which exceeds in the aggregate the permissible limit. Section 32-B provides tor returns by persons having land in excess of the ceiling. This provision refers to a person who

'owns or holds as landowner or tenant land under his personal cultivation which in the aggregate exceeds the permissible limit'.

Such a person, within a period of one month from the commencement of the Pepsu Tenancy and Agricultural Lands (Amendment) Ordinance, 1958, is required to furnish to the Collector a return giving the particulars of all his lands in the prescribed form and manner and stating therein his location of the parcel or parcels of land not exceeding the permissible limit which he desires to retain. Section 32-B and the relevant sections following seem to give benefit to those persons where landowners or tenants have land under their personal cultivation. These provisions do not refer to a landowner who has no land under his personal cultivation at all.

Section 32(c) of the Pepsu Act provides that if any person, owning or holding under his personal cultivation land in excess of the permissible limit, fails to furnish the return and intimate his selection within the period prescribed under Section 32-B, the Collector may obtain the information required to be shown in the return through such agency as he may deem fit and determine the parcel or parcels of land which such a person is entitled to retain under the provisions of this Act as also the surplus area of such a person.

5. Mr. Babu Ram Aggarwal, learned counsel for the petitioner, has assailed the order of the Financial Commissioner which is to the effect that Section 32-B benefits the landowners and tenants who had land under their personal cultivation in excess of the permissible limit. As the land in suit is (not ?) under the personal cultivation of the landlord, the view of the Financial Commissioner is that the petitioner cannot derive any benefit from Section 32-B. According to the view of the Financial Commissioner the result is that the landowner is deprived of all her land, including the area within the permissible limit.

6. Some of the relevant provisions of the Act may now be briefly-examined with a view to see if the Financial Commissioner came to a correct conclusion. Shri Babu Ram Aggarwal has placed reliance on Section 32-C. This section provides that if any person owning or holding under personal cultivation land in excess of the permissible limit fails to furnish the return and intimate his selection within the period prescribed under Section 32-B, the Collector may obtain the information required to be shown' in the return through such agency as he deems fit and select the parcel or parcels of land which such person is entitled to retain as also the surplus area of such person. As I look at Section 32-C, it appears to be confined to the case of a person owning or holding land under his personal cultivation and not to the case of the petitioner who has no land under her personal cultivation.

7. Under Section 32-D after the information is obtained by the Collector or it is supplied to him, he is required to prepare the draft statement giving prescribed particulars, including the total area of land owned or held by such a person, the specific parcels of land which the landowner may retain by way of permissible limit or exemption from ceiling and also the surplus area. Any objection which the Collector may receive may be considered by him. The draft statement is then published in the Official Gazette and no person is entitled to question it in any Court or before any authority.

8. Section 32-E provides for vesting of surplus area in the State Government. This section is reproduced in extenso--

'Notwithstanding anything to the contrary contained in any law, custom or usage for the time being in force, and subject to the provisions of Chapter IV, as from the date on which the final statement in respect of a landowner or tenant is, published in the Official Gazette, then --

(a) in the case of the surplus area of a landowner, or in the case of the surplus area of a tenant which is not included within the permissible limit of the landowner, such area shall be deemed to have been acquired by the State Government for a public purpose and all rights, title and interest (including the contingent interest, if any, recognised by any law, custom or usage for the time being in force) of all persons in such land shall be extinguished and such rights, title and interest shall vest in the State Government free from encumbrances created by any person; and (b) in the case of the surplus area of a tenant which is included within the permissible limit of the landowner, the rights and interest of the tenant in such area shall stand terminated : Provided that, for the purposes of Clause (a), where any land falling within the surplus area is mortgaged with possession, only the mortgagee rights shall vest in the State Government'.

This section deals with the acquisition of land by the State Government for a public purpose of surplus area of landowner' which is not included within the permissible limit of the landowner. All rights and title and interest of all persons in such land stand extinguished, and such rights, title and interest vest in the State Government free from encumbrances.

9. Section 32-F empowers the Collector to require the landowner or the tenant, as the case may be to deliver possession of the surplus area and in the case of failure without reasonable cause to comply with the Collector's orders the necessary force may be used. The question that arises is, as to what is 'surplus area of a landowner'. According to ordinary dictionary meaning 'surplus' is that which remains when use or need is satisfied. It is an excess or over plus. The surplus, therefore, is. what remains beyond permissible area. It is in the nature of residue or remainder. The section requires acquisition of the remainder or of the excess beyond the permissible area.

Mr. H. S. Doabia, learned counsel for the State, contends that in this case the term 'surplus area of a landlord' is to be construed to mean the entire area including the permissible limit and when the law requires acquisition of the surplus and its vestment in the State the clear statutory language cannot be construed to mean the entire land, not even leaving for the landowner the permissible area. It is submitted by the learned counsel for the petitioner that the consequences of such a construction to a person in the position of the petitioner. are calamitous. Thus though she owns a large tract of land measuring 94 standard acres, the fact, however, is that as no parcel of her land was under her personal cultivation, and as she admitted to notify (sic) reservation under Section 5 she loses completely the entire land under her ownership. It seems to me that Section 32-E is to be construed strictly and cannot vest in the State Government the surplus area, that is, area in excess of the permissible limit and the State Government in a case like the present does acquire her entire land. This matter is of considerable importance and deserves to be placed before a larger Bench for examination.

10. I may also make a mention of the arguments urged on behalf of the petitioner under Article 14 of the Constitution of India. It is submitted that the Pepsu Tenancy and Agricultural Lands Act 1955 has become violative of Article 14 of the Constitution as after the merger of State of Pepsu in Punjab the principle of equality before law and of equal protection of law within the same territory is being contravened. The former territory of Pepsu merged with the territory of Punjab on the 1st November 1956 when the new Punjab State was formed under Section 11 of the States Reorganisation Act (37 of 1956). Under Section 14 of the Act the territorial Act of the existing laws, unless otherwise provided by a competent Legislature, was left unaffected in the Punjab. There is a similar enactment equal to Punjab Security of Lauds Tenures Act 1953 in one particular matter. There is one significant departure from the Pepsu Tenancy and Agricultural Lands Act. The Punjab Act makes no distinction between the self-cultivated land of the landowner or tenant or the land which is merely owned though in possession of the tenants. Section 5-C. of the Punjab Act provides that if a landowner or tenant fails to furnish the declaration supported by an affidavit as required by Section 5-A, the prescribed authority may by order direct that the whole or part of the land of such landowner or tenant, in excess of 10 standard acres to be specified by such authority, shall be deemed to be the surplus area of such landowner or tenant. This surplus area under Section 10-A is liable to be utilised by the State Government for resettlement, of tenants etc.

The dislinction between the two provisions is that in view of Section 32-B of the Pepsu Act a landowner, who has no land under his personal cultivation, may not be able to keep with himself even an area to the extent of the permissible limit, but in the case of those lands to which Punjab Act applies a landowner or tenant becomes liable to be deprived of an area in excess of 10 standard acres. Thus a landowner who is similarly situated in Punjab at least retains 10 standard acres, whereas the owner in Pepsu stands to lose his entire land. There is no reasonable classification between one landowner and another in the Punjab State.

My attention was drawn to a number of decisions of the High Courts in the States where similar merger had taken place and the existing laws of several merging States had been preserved, though mutually conflicting. In Desai Nagardas Lalubhat v. Jagsi Bhikha, AIR 1953 Sau 58, it was held that an Act of Bhavnagar State was inconsistent with the provisions of Article 14 of the Constitution as it discriminated against the money-lenders of Bhavnagar State as against money-lenders of the rest of the States. A decision in Monohar Singh Ji v. State of Rajasthan, AIR 1953 Raj 22, laying down similar principle was affirmed by the Supreme Court in State of Rajasthan v. Manohar Singhji, AIR 1954 SC 297. As a result of the integration which took place in Rajasthan, a discrimination exhibited itself not by virtue of anything inherent in the impugned Ordinances but by reason of the fact that Jagirdars of one part of the present State of Rajasthan were already subjected to a disability in the matter of management of their Jagirs, while those in the other parts remained wholly unaffected. Such a discrimination could not be supported on the ground that it was based upon a reasonable classification. Reference may also be made to subsequent decisions of Rajasthan High Court in She karansingh v. Daulatram, AIR 1955 Raj 201, a decision of the Full Bench of that Court, and Birdichand v. State of Rajasthan, AIR 1958 Raj 26, a decision of Division Bench.

11. Mr. Doabia has cited a Division Bench decision of this Court in Tilakram Rambaksh v. Bank of Patiala, AIR 1959 Punj 440. That case concerned Patiala Recovery of State Dues Act. One of the grievances of the petitioner was that that Act arbitrarily discriminated between the Patiala State Bank and private banks doing similar business. It was held by the Bench that there was a rational basis of classification between State owned bank and other private banks. The other principle which was affirmed was that Article 14 of the Constitution does not require that there should be in one State only one law on one subject applicable to the whole State. The Bench expressed the view that there were sound reasons for allowing the operation of the Patiala Recovery of State Dues Act to continue in only the former territory of Pepsu and the provisions of Article 14 of the Constitution were not being offended in any manner. On the applicability of Article 14 in the present circumstances, I am of the view that this matter may also be examined by a larger Bench.

12. For reasons stated above this case may be placed before the Hon'ble the Chief Justice for constituting a Division Bench for determination of the questions arising in this case and for its disposal.