CIVIL WRIT PETITION NO.4540 OF 1983 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 24 , 2010 Col. Sir Harinder Singh .....Petitioner VERSUS State of Punjab and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Rajinder Sachar, Sr.Advocate with Mr. Dhruv Mehta & Mr. Keshav Kataria, Advocates, for the petitioner. Mr. K. S. Dadwal, Addl.A.G., Haryana, for the State. **** RANJIT SINGH, J. This writ petition filed in the year 1983 was given a different dimension by amending the same in the year 2009. Through this amendment, a very interesting and issue of far reaching consequences has been introduced relating to agrarian reforms. The CIVIL WRIT PETITION NO.4540 OF 1983 :{ 2 }: issues have been projected by learned senior counsel for the petitioner with seriousness. Under consideration is a substantial chunk of land, which the State Government is considering to deal with under the Punjab Land Reforms Act. Action is in progress to declare this land as surplus. Initially, the writ petition was filed, when an application dated 8.12.1982 was moved by the land owner- petitioner, objecting to the proceedings started under Punjab Land Reforms Act, 1972 (for short, “the Punjab Act”), concerning the surplus area case of the petitioner. This writ petition was filed to challenge the provision which authorised declaration, utilisation and taking of possession of the land declared surplus without making any provision for payment of compensation for structural improvement i.e. wire fencing, buildings, tubewells, cemented khals, forest plantation, timber, gardens and crops. It was further pleaded that Section 10 of the Punjab Act provided only illusionary compensation and, thus, was illegal, void and ultra vires of Article 300-A of the Constitution of India. The above challenge was made in the following factual background:- The petitioner is the rulers of erstwhile Faridkot State situated in East Punjab. He owned 23843 Ghamaons 5 Kanals and 6 Marla land as his personal property. The Faridkot State was merged into State of Patiala and East Punjab States Union. The personal properties of the rulers were demarcated from the State properties. The petitioner was advised by the Government to keep only 12000 Ghamaons of land out of the above personal land owned by the petitioner. He accordingly chose his personal property. The Pepsu CIVIL WRIT PETITION NO.4540 OF 1983 :{ 3 }: Government thereafter issued following notification on 7.9.1949:- “It is notified for the information of all concerned that out of the following lands situate in erstwhile Faridkot State:- i) Brijindra estate: 3806 ghumaons and 18 marlas ii) Harindra estate: 4704 ghumaons 7 kanals 14 marlas iii)Harmindra estate: 6851 ghumaons 2 kanals 10 marlas iv)Land in other villages 8481 ghumaons 8 kanals and 4 marlas. Only 12,000 ghumaons of land, which are in His Highness the Raja Sahib of Faridkot's possession inside the State, have been allotted to His Highness the Raja Sahib, subject to any third party's rights over these lands' the ala Malkiyat rights of His Highness the Raja Sahib of Faridkot in any land out of the erstwhile Faridkot State have been extinguished and the landowners will not hereafter have to pay any dues in respect of the said rights.” Subsequently, the Pepsu legislature added Chapter IV-A to the Pepsu Tenancy and Agriculture Land Act (for short, “the Pepsu Act”). As per this, no owner could hold more than permissible limit area but Section 32-K provided for various exemptions from the ceiling. The petitioner accordingly claimed various exemptions, which were referred to by the Collector to the Pepsu Land Commission, who vide his order dated 18.1.1962 allowed following exemptions to the petitioner:- “i. Harindra Garden situate in the area of revenue estate of Bir Sikhanwala – 1681 kanals 2 marlas khasra Nos.344 CIVIL WRIT PETITION NO.4540 OF 1983 :{ 4 }: min (64K 7M) 345 min (150-0) 346 min (183-18) 347 min (184-0) 350 min (184-0), 351 (246-10) 352 (317-9) 353 (228-18) 354 min (122-0). ii) Krishna Garden situate in the area of revenue estate Faridkot – 530 kanals 8 marlas khasra Nos.2155 min (149-3) 2204 min (381-5). iii)Ghugiana orchard situate in the area of revenue estate Bir Ghugiana – 96 kanals khasra Nos.142 min (38-0) and 143 min (58-0). iv)Vine yard situate in the area oaf revenue estate Faridkot – 18 kanals 9 marlas khasra Nos.6135 min 6136 min, 6149, 6143 min, 6150 min, 6151 min, 6153 min, 6154 min. v) Area reserved for cattle breeding and dairying situate in the area of revenue estate Faridkot. Khasra No.4241 (18-16), 4246 (19-07), 4247 (19-16), 4252, (20-04), 4253 (20-13), 4258 (21-04), 4259 (21-16), 4264 (22- 04), 4265 (22-16), 4270 (23-07), 4271 (23-16), 4242 min (4-0), 4245 min (4-0), 4248 min (4-0), 4251 min (4- 0), 4254 min (4-0), 4257 min (4-0), 4260 min (4-0), 4263 min (4-0), 4266 min (4-0), 4269 min (4-0), 4272 min (4-0), 4263 min (4-0), 4256 min (4-0) = 277 K -19M.” One of the Head for which the exemption under Section 32-K could be granted was efficiently managed farm. Pepsu Land Commission allowed 3514 kanals 16 marlas of land vide its order dated 30.10.1962 as efficiently managed farm. This area is in the revenue estate of Bir Sikhanwala. Schedule B and C of the Pepsu CIVIL WRIT PETITION NO.4540 OF 1983 :{ 5 }: Land Tenancy and Agriculture Rules, 1958, under which this exemption was granted, however, were struck down by the Supreme Court in case of S.Shivdev Singh and another Vs. The State of Punjab and another, AIR 1963 Supreme Court 365. The petitioner filed a writ petition against the order dated 30.10.1962, which was allowed by this Court on 20.3.1967. The matter was remitted to the Commission with a direction that the Commission will afford adequate opportunity to the petitioner for supporting his claim and consider the evidence already led before the Commission to decide the case in accordance with law to see if the petitioner was entitled to any further exemption. The grounds of attack raised in the writ petition were accordingly not gone into being wholly unnecessary. The case, however, remained pending as the State filed a Letters Patent Appeal against this order whereas the petitioner sought Leave to Appeal before the Hon'ble Supreme Court. Even the Pepsu Land Commission was not constituted, which became an added reason for the case to remain pending. By Section 7 of the Punjab Act No.40 of 1973, a proviso was added to Section 28(2)(i) of the Punjab Act No.10 of 1973, which reads as follow:- “....and the cases pending before Pepsu Land Commission immediately before the date of commencement of the Act shall stand transferred to the Collector of the District concerned for disposal.” The matter accordingly went to the Collector as the Commission ceased to function. The grievance made by the petitioner is that Collector disallowed the production of three witnesses vide his order dated 25.4.1983 against which the CIVIL WRIT PETITION NO.4540 OF 1983 :{ 6 }: petitioner filed an appeal before the Commissioner, followed by a revision before the Financial Commissioner. Having failed, he filed Civil Writ Petition No.2952 of 1983 in which notice of motion was issued and was pending hearing, when the present writ petition was filed. During this time only, Collector, Faridkot, issued notice for taking proceedings for determining surplus area case of the petitioner under the Punjab Act and fixed the date of hearing in this case. The petitioner approached this Court with a plea that areas of the petitioner are Garmumkin and do not fall within the definition of land and as such, are not within the purview of the Punjab Act. This issue was to be considered and decided by the Collector. The main grievance in the writ petition was that the petitioner is entitled to compensation for the improvement of the land, which was made in the shape of building, structure etc. and of Shisham tree. Plea was that Section 10 of the Punjab Act made provision for payment of compensation for the land alone and there was no provision for payment of compensation to the owner of the building and structure. Accordingly, the provisions of the Act authorizing this utilization after declaring the land surplus was said to be illegal, void and ultra-virus on various grounds. What appears to have prompted the petitioner to approach this Court is an order dated 15.6.1983 passed by the District Collector, Faridkot, rejecting the application filed by the petitioner through which he had objected to the proceedings started under the Punjab Act. The plea as raised before the Collector was that proceedings under the Pepsu Act were still pending before the CIVIL WRIT PETITION NO.4540 OF 1983 :{ 7 }: Collector and accordingly the proceedings under the Punjab Act should not have been initiated. The Collector observed that the proceedings under the Pepsu Act had started in the year 1955 and had not been finalised till the date of passing of the order because the land owner dragged the State Government into litigation. It is also noticed that the proceedings under the old Act were nearing almost finalisation. The Collector accordingly observed that there was apparently no bar in taking simultaneous proceedings except that the orders under the Old Act were to be announced first and the case under the Punjab Act was to be decided later. Thus, while challenging the provisions of Section 10 of the Punjab Act on the ground that this provided only illusionary compensation, prayer was made for staying further proceedings before the Collector. While issuing notice of motion, the Collector was restrained from passing the final order. This order was continued and petition was admitted on 14.11.1983. It appears that applications for early hearing were moved by the State without success. The writ petition, however, was ordered to be heard in an order passed during 2002. Somehow, the same could not be taken up for hearing for all these years. In the year 2004, application was filed to amend the writ petition. This prayer was allowed on 22.2.2005. Another application for amendment of the writ petition was filed during March 2009, in which notice was issued. This amendment was allowed. The submissions as made in the amended petition have been heard. The main ground of challenge ofcourse has remained the same, which is that the land was being declared surplus without making any provisions for compensation for structure, building etc., CIVIL WRIT PETITION NO.4540 OF 1983 :{ 8 }: which would make the provisions of Section 10 of the Act only an illusionary compensation. The additional ground, which has now been pleaded is that through entry No.17 (a) Forest has been inserted in the concurrent list of the 7th Schedule of the Constitution through 42nd amendment. Thereafter, the Forest Conservation Act, 1980 (hereinafter referred to as “the Forest Act”) was passed, which was amended in 1988. Reference is made to Section 2 of this Act to say that the Act has an over-riding effect and on this basis it is pleaded that Forest Act would prevail over the Punjab Act regarding the forest land. Submission also is that the Forest Act being subsequent law will apply to all forest land and, thus, the forest land owned by the petitioner can not be adversely effected by the provisions of the Punjab Act in view of Section 2 of the Forest Act. Reference is also made to the amendment made in the Forest Act regarding restriction on de-reservation of forest or use of forest land for non-forest purposes. Section 2 of the Forest Act reads as under:- “2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose:- Notwithstanding anything contained in ay other law for the time being in force in a State, no State government or other authority shall make, except with the prior approval of the Central Government, any order direction:- (i)that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; CIVIL WRIT PETITION NO.4540 OF 1983 :{ 9 }: (ii)that any forest land or any portion thereof may be used for any non-forest purpose, (iii)that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government; (iv)that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reforestation. Explanation: For the purpose of this section “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for- (a) the cultivation of tea, coffee, spices, rubber, palms, oil bearing plants, horticulture, crops or medicinal plants; (b) any purpose other than reafforestation. But does not include any work relating to ancillary to conservation, development and management of forest and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, water holes, trench marks, boundary marks, pipelines or other like purposes.” Taking support from these provisions, the petitioner would plead that there admittedly is an existing forest, as can be seen from the notification issued by His Excellency the Governor under Section CIVIL WRIT PETITION NO.4540 OF 1983 :{ 10 }: 38 for applying the provisions of Sections 32, 33, 34 and 68 to Patiala Forest Act to the said land of the petitioner. Reference is also made to the notification regarding the land in question for conservation of forest and declaring the land as forest. Reference is also made to all these notifications, collectively annexed as Annexure P-20. The submission in short is that the forest or forest land is not envisaged within the term `land' as defined under Section 3(5) of the Punjab Act or the provisions of the Punjab Utilization of Surplus Area Scheme, 1973. In response, the State has not only raised various preliminary submissions but has opposed the line of submission of the petitioner tooth and nail. The State has first highlighted that this writ petition is pending since 1983 and, thus, the stay on passing the final order continues. The petitioner is attributed with a motive that the present application to amend the writ petition has been filed to delay the disposal of the writ petition. It is pointed out that the plea as now being raised to challenge the provisions of Section 10 of the Punjab Act, in view of the ratio of law laid down in the case of I.R.Coeho (Dead) by L.Rs Vs. State of Tamilnadu, 2007 (2) Supreme Court Cases 1, is a meaningless reiteration of the pleas which have already been raised in the petition filed in the year 1983. Reference is then made to the Full Bench decision of this Court reported as Sucha Singh Bajwa Vs. The State of Punjab through the Revenue Secretary to Govt. of Punjab, AIR 1974 Punjab and Haryana 162, where it has been viewed that the Punjab Act is immune from the attack on the ground that its provision take away or CIVIL WRIT PETITION NO.4540 OF 1983 :{ 11 }: abridge any fundamental rights. As per the stand in the reply, this view has further been reiterated in Bal Raj Ahuja Vs. State of Punjab and another, 1989 (1) All India Land Law Reporters 144. On merits, it is pleaded that the Pepsu Act has been repealed by the Punjab Act specifically. It is stated that the Garmumkin land can not be presumed to be out of the scope of the Act. By making reference to the definition of the `land', it is stated that the land includes land and building and structure. As per the State counsel, even the banjar land falls within the definition of `land' and that the Garmumkin land is also such land, which is not cultivable and lies in the water course, roads, building, abadi etc., which can not be excluded from the purview of the Punjab Act. Responding to the plea of compensation in terms of Section 10, it is stated that the petitioner has to be awarded compensation of land and this will include sites, buildings and other structures. It is stated that the Act is protected under Article 31-A of the Constitution and no challenge can be made to the provisions of this Section on the ground that the compensation is not adequate or illusionary as per the ratio of law laid down in Sucha Singh's case (supra). It is also pointed out that the payment of compensation for structure has to be determined by the Collector and, thus, it would be premature at this stage to urge that the petitioner would not be getting compensation for the structures etc. The plea of the petitioner that the Punjab Act can not be made applicable to the forest land is also denied and so also the assertion that the Forest Act would have over-riding effect over the Punjab Act. As per the reply, the land under the Forest Act has also CIVIL WRIT PETITION NO.4540 OF 1983 :{ 12 }: to be taken into account while determining the surplus area and it can not be excluded on the ground with reference to Forest Act. It is further stated that the forest area has to be protected but so far as the determination of surplus area is concerned, it is beyond the scope of the Forest Act. It is accordingly pleaded that the writ petition deserves to be dismissed. To substantiate his challenge, learned senior counsel appearing for the petitioner would first refer to the statement of object and reasons of the Punjab Act, which is to consolidate and amend the laws relating to ceiling of land holdings, acquisition of proprietaries rights by tenant and other ancillary matters. He would then refer to the definition of term `land' as given in Section 3(5). As per this Section, land means:- “land which is not occupied as the site of any building in a town or a village and is occupied or has been let for agriculture purposes or for purposes subservient to agriculture or for pasture and includes: a) the sites of building and other structures on such lands and b) banjar land.” The submission appears to be that the land which is a forest land can not be said to be such a land which is used for agriculture purpose or purposes subservient to agriculture. Counsel contends that this is also to be seen in the background that after declaring this land as surplus, it may not be possible to put this land to utilization under the Surplus Area Scheme. In this regard, the counsel would refer to various provisions of the Surplus Area CIVIL WRIT PETITION NO.4540 OF 1983 :{ 13 }: Scheme to plead that there would be no purpose achieved by declaring the forest land as surplus, if it can not be utilised under the Utilization Scheme. Having made reference to the definition of the `land', permissible area and vesting of unutlised surplus land and after highlighting the purpose, the counsel submits that the provisions of the statutes are required to be interpreted by assigning a literal meaning as the plain words of the statute are unambiguous and lead to no unintelligible results. In support, reference is made out Raghunath Rai Bareja Vs. Punjab National Bank, (2007) 2 SCC 230. It is accordingly pleaded that the purpose and the Scheme of the Act is to distribute the land amongst the land-less for the agriculture purposes. Thus, the plain reading of the Act would not provide for acquisition of forest land as the same is not envisaged within the meaning of the Act and the Scheme in any manner. It is highlighted that the forest land by its very nature and in terms of the provisions of the Forest Act can not be utilised for agriculture purposes. It is accordingly prayed that the proceedings initiated for acquisition of forest land are without jurisdiction and ought to be quashed. Proceeding further, the counsel would submit that even if it is assumed that the forest land was covered by the Act and the Scheme for the sake of arguments, then the provisions of the Forest Act having an over-riding effect over the provisions of the Punjab Act, would, as necessity, require permission of the Central Government before any action is taken to deal with the forest land. The submission on these lines is made on the ground that there is an CIVIL WRIT PETITION NO.4540 OF 1983 :{ 14 }: existing forest as is seen from Annexure P-20. Accordingly, this land being a forest land can not be used for any non-forest purposes, as per the provisions of the Forest Act. Plea is that the use of this land for the purpose of agriculture, therefore, would be prohibited without the prior consent of the Central Government. Reference is then made to the decision in the cases of T.N.Godavarman Vs. Union of India, 1997 (2) SCC 267, B.L.Wadehra Vs. Union of India, 2002 (9) SCC 108 and Rural Litigation and Entitlement Kendra Vs. State of U.P., 1989 Supp. (1) SCC 504 to urge that the forest land has to be protected as a forest land in view of the law laid down in these cases and, thus, this land would not come within the purview of the Act and can not be utilized under the Punjab Act. During the course of arguments, it was put to the learned counsel for the petitioner as to why all these pleas can not be raised before the Collector who is dealing with the case. In response, the learned senior counsel would plead that writ of prohibition would lie when the proceedings are without jurisdiction. Plea is that forest land can not be dealt with under the Punjab Act and hence, any proceeding initiated pertaining thereto, would be without jurisdiction and hence, writ would lie in such a situation without even raising this issue before the Collector. In support, reference is made to Calcutta Discount Co. Vs. L.T.Officer, AIR 1961 Supreme Court 372 to say that action without jurisdiction can be prevented by the High Court at the stage of initiation of such action itself. The relevant observations of the Hon'ble Supreme Court are as under:- “It is well settled however that though the writ of prohibition or certiorari will not issue against an executive CIVIL WRIT PETITION NO.4540 OF 1983 :{ 15 }: authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled with issue appropriate orders or directions to prevent such consequences.” Reference is also made to Coca Cola Export Corporation Vs. ITO & Anr., (1998) 4 SCC 166 in this regard. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. It is first to be seen whether the prayer of the petitioner to invoke the writ jurisdiction without having raised these points and making these submissions before the Collector can be entertained or not. The counsel has placed reliance on Calcutta Discount Co. (supra) to urge that action without jurisdiction can be prevented by the High Court at the stage of initiation itself. There can not be any doubt in regard to this proposition of law. Undoubtedly, the High Court would have a jurisdiction under Article 226 of the Constitution of India to interfere in an order, which is found to be