AJMER SINGH AND ORS. ETC.versusSTATE OF HARYANA AND ORS.

                  AJMER SINGH AND ORS. ETC.
                                    v.                                       A
                STATE OF HARYANA AND ORS.

                        NOVEMBER 17, 1989

   (LALIT MOHAN SHARMA AND V. RAMASWAMI, JJ.]                                B

     The Punjab Security & Land Tenures Act 1953, Sections 3, 4, 5A
to 5C-Small Land owner-Right to reservation-Whether arises.

      These appeals are by tenants against the land-owners.

       One Bishan Das owned considerable extent of land in Pakistan.         C
He died on April 11, 1948 after he bad migrated to India. After his
death the Rehabilitation Department allotted 124 standard acres and
4·1/4 units of evacuee land to Respondents Nos. 2 to 5 his sons and to
Nos. 6 & 7 who were the legal heirs of one his deceased son. Each of
the five sons was deemed entitled to 24 standard acres and 13 units of       D
land and accordingly mutuation in respect of each of them was allowed
by the Rehabilitation Department. Permanent rights in regard to the
allotted land were also conferred by the authorities on the said respon·
dents. Thereupon the said respondents-land owners initiated ejectment
proceedings under sec. 9(1)(i) of the Punjab Security of Land Tenures
Act, 1953 against the tenants who were then in occupation of the Lands       E
in qnestion on the ground that each one of them was a small land owner
as defined in Section 2(2) of the Act and that they required the land for
self cultivation. The Assistant Collector, Hissar rejected the applica-
tion. Their appeals were dismissed by the Collector on 4.4.1965. Their
revision preferred before the Commissioner, Ambala Division was also
rejected. Land-owners' further revision to Financial Commissioner also       F
failed whereupon they filed a Writ Petition before the High Court on
the ground that the land had been allotted to them in lieu of the land
owned by their father in Pakistan and consequently the permissible
area of each of them was to be computed under the proviso to section
2(3) of the Act, and so computed the holding of each of the five was well
below the permissible limit of 30 standard acres prescribed thereunder.      G
The High Court dismissed the Writ petition.

      Respondents preferred Letters Patent Appeals wherein the High
Court held that in view of the Explanation to the proviso to section 2(3),
the heirs and successors of the displaced per~ons to whom lands were
allotted could not claim the benefit of the proviso and that the permissi-   H

                                   209
    210         SUPREME COURT REPORTS               [ 1989] Supp. 2 S.C.R.

    hie area under the substantive part of section 2(3) was 60 ordinary
A acres.

          The respondents preferred appeals to this Court. This Court con-
    firmed the view of the High Court. f(owever this Court accepted an
    argument advanced on behalf of the respondents-land owners that in
B   computing the permissible area of each of the laud-owner, the
    uncultivated area of "banjar Jadid", "banjar Kadim" and "gair
    Mumkin" lands as on April 15, 1953 could not be included.' As the
    authorities had wrongly included these types of lands, their orders were
    set aside and the case was remanded to the Collector concerned with a
    direction that should ascertain the extent of "banjar Jadid'', "banjar
    Kadim" and "gair mumkin" lands of the Respondents allotted as on
c   15.4.1953. When these proceedings were pending, applications filed by
    the appellants-tenants under section 18 of the Act for purchase of surp-
    lus area also came to be considered by the authorities. When the matter
    came up before the Financial Commissioner he set aside the orders of
    the Collector and remanded the appellants-tenants cases for purchase
D   of surplus land with a dn'ection that the Collector must decide the cases
    of surplus area after allowing the permissible 60 acres to the land
    owners. In a subsequent proceedings, the Financial Commissioner
    directed the Collector to determine the permissible area after excluding
    all "hanjar lands". The tenants filed Petitions ,llefore the Financial
    Commissioner against the order. However by the time these cases came
E   up for orders, this Court had decided the land-owners' eviction cases
    viz in Munshi Ram & Ors. v. Financial Commissioner, Haryana &
    Ors., [1979) 2 SCR 846.

        As such the revision Petitions were dismissed and the Collector
  was asked to determine the permlssible area with reference to relevant
F date viz., April 15, 1953. By bis order dated 6.5.82 the Collector
  accordingly determined the area held by each of the land oWller after
  excluding the "banjar lands", as less tbau the permlssible area and
  found that no area owned by them could be declared surplus and on
  that footing dismissed the purchase applications filed by the appellants-
  tenants. Their Petitions having been dismissed by the Authorities under
G the Act, they filed Writ Petitions questioning the dismissal of their
  purchase applications. The High Court having dismissed the Writ Peti-
  tions, they have filed these appeals.

          Dismissing the appeals, this Court,

H         HELD: The Punjab Security Land-Tenures Act 1953 is /Blended to
     AJMER SINGH v. STAIB OF HARYANA [V. RAMASWAMI. J.] 211

place a ceiling on holding of land by fixing a maximum area permissible
to be held by a land-owner. In other words the excess over the permissi-    A
ble area shall be available as surplus area to be dealt with under the
provisions of the said Act. [217H]

      In calculating the total extent held by a person on the date of the
Act for purposes of determining whether a person is small land-owner,       B
the banjar lands cannot be taken illto account. [216C]

      The need to make a reservation would arise only when the
land-owner on the relevant date held land in excess of the permissible
area. [217C]

      The right of reservation given to a person who holds land in excess   c
of the permissible area is, among others to give him an option to select
that land which he would like to retain for himself and avoid one of the
consequences of enabling the tenant to choose under section 18 of the
Act any land including that which is under the personal cultivation of
the land owner. [218B]                                                      D
      It is not necessary and the Act does not make it obligatory, on
pain of consequences provided under section SC, for a sma1l land-owner
to make a reservation under sections 3, 4, S, SA or SB. [218C]

     Bhagwan Das v. State of Punjab, [1966] 2 SCR SIO; Gurbux               E
Singh v. State of Punjab, AIR 1964 SC S02, referred to.

    CIVIL APPELLATE IDRISDICTION: Civil Appeal Nos. 806-
810of 1986.

    From the Judgment and Order dated 16.3.1985 of the Punjab &             F
Haryana High Court in Civil W.P. No. 2050-2054 of 1984.

      M.S. Gujral and Prem Malhotra for the Appellants.
                                           ,
    Kapil Sibal, M.R. Sharma, S.K. Mehta, Vinod Mehta, Atul
Nanda and M.K. Dua for the Respondents.                                     G

      The Judgment of the Court was delivered by

     V. RAMASWAMI, J, One Bishan Das who is the father of
resporulents 2 to 5 and another by name Muhari Ram whose legal
representative are respondents 6 and 7, owned considerable extent of        H
    212         SUPREME COURT REPORTS             [1989) Supp. 2 S.C.R.

  land in Pakistan. He died on April 11, 1948 after he migrated to India.
A After his death the Rehabilitation Department allotted 124 standard
  acres and 4-1/4 unit of evacuee land on 26th August, 1949. The five
  sons of Bishan Das were treated as entitled to this l&nd as heirs and
  successors of the displaced person and accordingly mutation was
  allowed by the rehabilitation authorities on February 17, 1953 in
B favour of the five sons showing each of them entitled to 24 standard
  acres and 13 units of land. Permanent rights in regard to this allotted
  .land were also conferred by the authorities under the provisions of the
  said Displaced Persons (Compensation and Rehabilitation) Act in the
  names of the sons of Bishan Das on January 2, 1956. These lands were
  in the occupation of different tenants against whom the five brothers
  initiated ejectment proceedings by filing applications under section
C 9(1)(i) of Punjab Security of Land Tenures Act, 1953 (hereinafter
  called 'the Act') for ejectment on the ground that each of them is a
  "small land-owner" as defined in Section 2(2) of the Act and that they
  required the land for self-cultivation. The Assistant Collector, Hissar
  rejected the application. The owners' appeals were dismissed by the
D Collector on January 4, 1965. Their revision also was rejected by the
  Commissioner of Ambala Division on October 26, 1965. Their further
  revision to the Financial Commissioner also met with the same fate on
  May 17, 1966. Thereafter the land-owners moved the High Court by a
  writ petition under Article 226 and 227 of the Constitution on the
  ground that the land had been allotted to them in lieu of the land
E owned by their father Bishan Das in Pakistan and consequently the
  permissible area of each of them is to be computed under the proviso
  to Section 2(3) of the Act and so computed the holding of each of the
  five were well below the permissible limit of 30 standard acres
  prescribed thereunder. The writ petition was dismissed but the L.P.
  Appeals filed against the same came up for consideration before a full
F Bench of the High Court of Punjab and Haryana. The High Court held
  that in view of the explanation to the proviso the heirs and successors
  of the displaced persons to whom land were allotted could not claim
  the benefit of the proviso and that the permissible area under the
  substantive part of section 2(3) is 60 ordinary acres. The decision of
  the full Bench is reported in 1967 Punjab Law Reporter 913. Against
G this decision the respondent land-owners preferred appeals to this
  Court. By a judgment dated December 15, 1978 in Munshi Ram &
  Ors. v. Financial Commissioner, Haryana & Ors., l1979J 2 SCR 846
  this Court confirmed the view of the full Bench. However, this Court
  accepted and argument on behalf of the land-owners that in computing
  the permissible area of each of the land-owners the uncultivated area
H of 'banjar jadid', 'banjar kadim' and 'gair mumkin' lands as on April
          AJMER SINGH v. STATE OF HARYANA (V. RAMASWAMI, J.) 213

     15, 1953 could not be included. As the authorities under the Act had
    illegally and wrongfully included these types of uncultivated lands         A
    orders of the various authorities were set aside and the case was
    remanded to the Collector concerned of Hissar District with a direc-
    tion that he should ascertain the extent of the 'ban jar jadid', 'ban jar
    kadim' and 'gair mumkin' of the land-owners allottees at the relevant
    date, namely, April 15, 1953 and recompute their permissible area           B
    after excluding such land. It is now ascertained that so computed each
    of the land-owners were holding at the relevant date less than 60 acres.
    When these proceedings were pending simultaneously applications
    filed by the tenants under section 18 of the Act for purchase of the
    surplus area were also being considered by the various authorities.
    When that matter came up before the Financial Commissioner,
    Haryana, in surplus area cases after noting the judgment of the Full        c
    Bench of the High Court in the land-owners case, the Financial
    Commissioner set aside the orders of the Collector and remanded the
    tenants cases for purchase of surplus land with a direction that the
    Collector must decide the case of surplus area after allowing the
    permissible 60 acres to the land-owners. Thereafter. the Collector          D
    took up consideration of the surplus area cases in the light of the
    remand order. However, by his Order dated February 2, 1978 the
    Collector held that the land-owners should include in the permissible
    area all the 'banjar' lands which have since been brought under cultiva-
    tion and accordingly directed the land-owners to produce the list of
    permissible area. On appeal by the land-owners the Financial Commis-        E
    sioner remanded the cases to Collector with a direction that he must
    decide the cases after excluding all 'ban jar lands'. The tenants filed
    petitions against this Order to the Financial Commissioner. By the
    time these cases came up for orders the Supreme Court had decided
    the land-owners eviction cases on December 15, 1978 (supra). There-
    fore, the revision petitions were dismissed. However; the Collector         F
    was asked to determine the permissible area with reference to relevant
    date, viz., April 15, 1953 .. By his Order dated May 6, 1982 the Col-
    lector determined the area held by each of the land-owners, after
    excluding tht 'banjar' lands as less than the permissible area and that,
    therefore, no area owned by them could be declared surplus and
    accordingly dismissed the purchase application filed by the tenants.        G
    The Commissioner by his order dated April 18, 1983 confirmed this
    decision of the Collector. The tenants went in revision before the
    Financial Commissioner. It was again argued before the Financial
    Commissioner that he should not have allowed the 'banjar' area to be
    excluded from their holding since they had subsequently been brought
•   under cultivation. The Financial Commissioner agreed with the land-         H
    214         SUPREME COURT REPORTS               [1989] Supp. 2 S.C.R.

A owners that 'banjar' lands could not be treated as 'lands' for the
  purpose of computing the permissible area, that the relevant date for
  purpose of determining the permissible area is April lS, 19S3 and in
  that view dismissed the purchase applications filed by the tenants. The
  tenants having failed in the writ petition filed by them questioning the
  dismissal of their purchase applications, have filed these five appeals.
B
         The main contention of Mr. Gujral, learned counsel f9r the
  petitioner in these cases was that in determining the question whether
   a person is a small land-owner for the purpose of the Act the entire
  land owned by him whether cultivated or not cultivated and whether it
  is 'banjar' or any other land shall be taken into account. If the total
   extent of the land so calculated is above the permissible area, then
C unless the land-owner has made the reservation as contemplated in
  sections 3, 4, S and SA, he incurs the penalty under section SC and the
   'permissible area' will be reduced to 10 standard acres and then again
   he cannot also choose these 10 standard acres but the tenants would
  have the option to purchase any land of the land-owner including the
D land under the personal cultivation of the land-owner, leaving only 10
  standard acres. The point in this form was never raised before and,
   therefore, the learned counsel for the respondent objected to the
   counsel raising it for the first time in this Court. But since it is a
  question of law and the facts were not in dispute we have permitted the
   counsel to raise this point. It is not in dispute that the land-owners had
E not made any reservation under sections 3, 4 and S originally nor did
  they make it after section SA was introduced, though their lands were
  situated in more·than one Patwar Circle within section SA. However,
   the stand taken by the land-owners was that they were small land-
   owners having less than 60 acres and, therefore, they were not obliged
   to make any reservation and section SC would not be attracted at all.
F
         The following proposition have been settled by the decisions of
   this Court in Bhagwan Das v. State of Punjab, (1966] 2 SCR SlO and
   Munshi Ram v. Financial Commissioner, Haryana, (supra).

          1. The relevant date for determining the permissible area and
G         the surplus area is April lS, 19S3 the date on which the Punjab
          Security of Land Tenures Act, 19S3 came into force and not the
          date on which the eviction application was filed.

          2. If a person is a small land-owner at the commencement of the
          Act, his status is not altered by reason of improvements in the
H         value of his land or re-allotment of land on compulsory consoli-
          dation of holdings.
     AJMER SINGH v. STATE OF HARYANA [V. RAMASWAMI, J.)             215

      3. Banjar Kadim, Banjar Jadid and Gair Mumkin cannot be              A
      taken into account while computing the permissible area and
      surplus area under the Act.

     4. Ban jar Kadim and Ban jar Jadid do not fall within the purview
     of the definition of 'land' under the Act as they are not being
                                                                           B
     occupied or let for agricultural purposes or purposes subservient
     to agriculture.

     5. Permissible area under the substantive part of section 2(3) for
     a person who is not a displaced person is sixty ordinary acres.

     6. The concept of standard acre being a measure of area               c
     convertible into ordinary acres of any class land according to
     prescribed scales with reference to the quantity of the yield and
     quality of· the soil, has been introduced in the definition of
     permissible area to emphasise the qualitative aspect of a land
     holding and the maximum limit of sixty acres its quantitative
     aspect.                 ·                                             D

      Section 2{2) of the Act defining small land-owner reads as
follows:

           "Small land-owner means land!owner whose entire land in
           the State of Punjab.does not exceed the 'permissible area'.     E

           Explanation-In computing the area held by any particular
           land-owner the entire land owned by him iii the State of
           Punjab, as entered in the record-of-rights, shall be taken
           into account, and if he is a joint owner only his share shall
           be taken into account."                                         F

      The learned counsel for the appellant wanted us to understand
and interpret the words "entire land" with reference to the definition
of the word 'land' in section 2(8) and that sub-clause reads as follows:

           " 'Land' and all other terms used, but not defined in this      G
           Act, shall have the same meaning as are assigned to them in
           the Punjab Tenancy Act, 1887 (XVI of 1887).'

      Section 4(1) of the Punjab Tenancy Act, 1887 defines land as
follows:
                                                                           H
    216         SUPREME COURT REPORTS                [1989] Supp. 2 S.C.R.

                " 'Land' means land which is not occupied as the site of any
A               building in a town or village and is occupied or has been let
                for agricultural purposes or for purposes subservient to
                agriculture, or for pasture, and includes the sites of build-
                ings and other structures on such land".

B   This Court had held in Munshi Ram v. Financial Commissioner,
    (supra) that banjar kadim and banjar jadid do not fall within the
    purview of definition of land under the Act as they are not being
    occupied or let for agricultural purposes or for purposes subservient to
    agriculture. It necessarily follows that in calculating the total extent
    held by a person on the date of the Act for purposes of determining
    whether a person is a small land-owner, these banjar lands cannot be
c   taken into account.

          We are also not impressed with the argument that a land-owner
    shall make a reservation under the Act in all cases irrespective of
    whether he is a small land owner or not. Section 3 of the Act speaks of
D   a small land-owner who by virtue of an allotment made after the com-
    mencement of the Act under the Administration of Evacuee Property
    Act, 1950 "comes to hold more than the permissible area of the land".
    The section enables and provides that in such a case the small land-
    owner may select out of the entire area held by him as a land-owner
    land not exceeding the permissible area and reserve it for himself. The
E   section thus implies that as a small land-owner he was not obliged to
    make any reservation. But when by reason of allotment made subse-
    quently under the Administration of Evacuee Property Act, 1950. he
    "comes to hold more than the permissible area", he was given an
    option to select out of the entire land, land to the extent of permissible
    area and to rnserve to himself, again emphasising that holding more
F   than the permissible area as a necessary requirement to oblige a land-
    owner to make a selection or reservation. S"ection 4 deals with the case
    where the person was not a small land-owner .but has made a reserva-
    tion under the original 1950 Act which was repealed and replaced by
    the 1953 Act. This provision enables him to make a fresh selection and
    reservation if his allotment under the Administration of Evacuee
G   Property Act, 1950 had been modified or revised since his earlier
    reservation. Section 5 of the Act provides:

                "Any reservation before the commencement of this Act,
                shall cease to have effect and subject to the provisions of
                sections 3 and 4 any land-owner who owns land in excess of
H               the permissible area may reserve out of the entire land held
      AJMER SINGH v. STATE OF HARYANA (V. RAMASWAMI, J.]               217

             by him in the State of Punjab as land-owner, any parcel or
             parcels not exceeding the permissible area by intimating his
                                                                               A
             selection in the prescribed form and manner to the patwari
             of the estate in which the land reserved is situate or to such
             other authority as may be prescribed."

This again requires only a land-owner who owns land in excess of the           B
permissible area to make a fresh selection and reservation to an extent
not exceeding the permissible area. Section 5A also deals with a case
where a land-owner holding in excess of the permissible area but it is
with refrence to a land-owner who has land situate in more than one
patwar circle. Section 5B authorised a land-owner who was holding
lands in excess of the permissible area but has not previously exercised
the right of reservation, to select and reserve the ·permissible area fof      c
his own purposes wit_hin the extended period mentioned in that
section. The need to niake a reservation would thus arise only when
the land-owner on the relevant date held land in excess of the permissi-
ble 'area.
                                                                               D
      This Court in Gurbux Singh v. State of Punjab, AIR 1964 SC 502
 accepted that:

             "The main purpose of the Act seems to be to:

             (i) provided a 'permissible area' of 30 standard seems to a       E
             land-owner/tenant, which he can retain for self-cultivation;

             (ii) provide security of tenure to tenants by reducing their
             liability to ejectment as specified in section 9;

             (iii) ascertain surplus areas and ensure re-settlement of         F
             ejected tenants on those areas;

             (iv) fix maximum rent payable by tenants, and

             (v) confer rights on tenants to pre-empt and purchase their
             tenancies in certain circumstances.''                             G

-Thus the Act is also intended to place a ceiling on holding of land by
 fixing a maximum area permissible to be held by a land-owner. In
 other words the excess over the permissible area shall be available as
 surplus area to be dealt with under the provisions of the Act. Then
 again section 9(1)(i) of the Act dealing with the liability of a tenant for   H
    218         SUPREME~COURT REpORTS                [1989) Supp. 2 S.C.R.

A eviction states that "tenants on the ar.ea reserved under this Act or is a
    tenant of a small land-owner" is liable for eviction. If in every case
    irrespective of whether the person is a small land-owner or not he had
    to make a reservation then the later portion of this clause referring to a
    tenant of small land-owner was absolutely not necessary. The right of
    reservation given to a person who holds land in excess of the permissi-
B
    ble area is, among others, to give him an option to select that land
    which he would like to retain for himself and avoid one of the conse-
    quences of enabling the tenant to choose under section 18 of the Act
    any .land including that which is under the personal cultivation of the
    land owner. It may be mentioned that section 18 of the Act itself
  • specifically provides that the right to purchase is available to a tenant
C only against a land-owner "other than a small land-owner". In our
    view, therefore, it is not necessary and the Act does not make it
    obligatory, on pain of consequences provided under section 5C, for a
    small land-owner to make a reservation under sections 3, 4, 5, 5A or
    5B.
D       It was then contended by the learned counsel for the appellant
  that an area of 0.33 ordinary acres had been excluded in determining
  total extent held by the land-owner on the ground that area was under
  old tenants and that it should not have been excluded. This point was
  not raised at any stage. No facts relating to this area is available on
  record and, therefore, we cannot permit the counsel to raise this point
E for the first time in this Court.

         In the result the appeals fail and they are dismissed. However,
    the parties will bear their respective costs in all the appeals in this
    Court.

F   Y. Lal                                                Appeals dismissed.