Case: Gurbax Singh Vs. State Of Punjab &amp; Ors

2. The facts are not in dispute and they are as follows: The appellant is a tenant under respondent No. 3 since the year 1950 in respect of 49 bighas of land. As he was in continuous occupation of the said land for a period of 6 years, he applied under S. 18 of the Act and R. 23 of the Rules made thereunder in the prescribed form to the Assistant Collector, 1st Grade Fazilka, for the purpose of the said land. The Assistant Collector held-it does not appear that the 3rd respondent questioned the right of the appellant to purchase the said land-that the appellant was entitled to purchase the land and determined the price payable by the appellant to the 3rd respondent in a sum of Rs. 20.630 and ordered that the said amount was payable in 10 equal six-monthly instalments. On appeal to the Collector. Ferozepure the order of the Assistant Collector was confirmed. On a revision petition filed by the 3rd respondent before the Additional Commissioner, Jullunder, the said Commissioner took the view that the said area was selected by the 3rd respondent under S. 5-B of the Act and, therefore, the appellant had no right to purchase the same under S. 18 of the Act. On that view, he submitted the case to the Financial Commissioner) Punjab, who, agreeing with the view expressed by the Additional Commissioner, Jullunder, held that the 3rd respondent did not reserve the said area under S. 5 (1) of the Act and, therefore, he was entitled to select the same under S. 5-B of the Act and that the appellant had no right to purchase the same under S. 18 thereof. In the result, he accepted the revision. The appellant filed a petition under Art. 226 of the Constitution in the High Court of Punjab at Chandigarh for quashing the order of the Financial Commissioner, Punjab, but the said petition was dismissed in limine. Hence the present appeal. The scope of this appeal should necessarily be confined to the ambit of the writ petition in the High Court. It is therefore, necessary for the appellant to establish that the order of the Financial Commissioner was without jurisdiction or was vitiated by an error of law apparent on the record.

Reasoning: The gist of the provisions may be stated thus: "Permissible area" is defined and the landlord is empowered to demarcate a reserved area for his self-cultivation out of the permissible area and intimate his selection in the prescribed manner to the Patwari of the estate. The area other than the reserved area is defined as "surplus area". No land-owner is competent to eject a tenant unless he is a tenant in the reserved area and if he has made one or other of the defaults mentioned in S. 9 of the Act. The State Government shall be competent to utilize the surplus area in the re-settlement of the tenants ejected. The tenant who has been in continuous occupation of the land comprised in his tenancy for a minimum period of 6 years shall be entitled to purchase from the land-owner the land so held by him but not included in the reserved area. But, for one reason or other, some of the land-owners did not make the reservation in the manner prescribedunder S.5 of the Act and the rules made thereunder. Presumably to give relief to suchs S. 5-B which was inserted by the 1957 Act, enabled them to intimate the selection to the prescribed authority within the period prescribed therein, i.e., within a period of six months from the commencement of the Amending Act. If the area selectedunder S.5-B could be equated with the reserved area, the land-owner could evict the tenant from that area for the purpose of his self-cultivation. In that event, it would not be a surplus land which could be allotted for the evicted tenants, and it could not also be purchased by the tenants at their option. We are not concerned in this case with small holdersThese purposes must be borne in mind in construing the relevant provisions of the Act. The two concepts on which the entire Act revolves are the "permissible area" and the "surplus area". Out of the permissible area the land-owner is empowered to reserve land not exceeding the said area and the balance is defined as the surplus area. This reservation is to enable the land-owner to sustain himself by self-cultivation. The object of the surplus area is to confer rights in respect thereof on the tenants. This two fold object of the Act cannot he achieved unless the landlord has reserved some land in the manner prescribedunder S.5 of the Act. But, for one reason or other, if the reservation was not made by the land-owner, S. 5-B gives him another opportunity to do so. But it is said that if that be the intention of the Act, there was no reason why the same phraseology used in S. 5 (1) was not used in S. 5-B. Though "reserved area" has been defined, there is no definition of "selected area". This indicates that the Legislature did not introduce a new concept of "selected area" in the Act. Even a comparison of Ss. 5 and 5-B shows that the process of reservation and selection are almost the same. Under S. 5 (1) the land-owner, after making the reservation, intimates his selection in the prescribed form to the Patwari. It is, therefore, manifest that the reservation is made by the process of selection. So too,under S.5-B, a land-owner, who has not exercised the right of reservation under the Act, may select his reserved area and intimate his selection. The wording of S. 5-B indicates that the selection therein is a selection similar to that in Section 5 (1) and the selection in S. 5-B is because of default made in reserving by selectionunder S.5 (1). In terms S. 5-B gives the land-owner another chance, because he has not exercised his right of reservation earlierunder S.5 (1). The expressions "reservation" and "selection" involve the same process and indeed, to some extent, they are convertible, for one can reserve land by selection and another can select land by reservation. The argument based on S. 9 is also without force. It is true thatunder S.9 (1) (i) a tenant of the area reserved under the Act can be evicted and there is no other clause enabling thelandownerto evict a tenant from the selected area. It is said that `reserved area" is defined and that "selected area" does not fall under that definition and that, therefore, the effect of S. 9 is that a tenant in the selected area cannot be evicted. But, it may be noticed thatunder S.9 (1) (i) the expression "reserved area" is not used, but instead the expression "the area reserved under the Act" is mentioned. As we have said earlier, the land selected by the land-owner out of the permissible area can legitimately be described as the area reserved under the Act. If that be the interpretation of S. 5 (1), Section 5-B and S. 9 (1), it follows thatunder S.18 the tenants cannot claim to purchase the land from the land-ownerunder S.18, for it is included in the reserved area of the land-owner9. If the contrary interpretation be accepted, it defeats the purpose of the Act. Tenants could he inducted and they would be permitted to purchase permissible area to the grave detriment of the land-owners. The entire concept of surplus area would be eroded. When asked what purpose Sections 5-B (1) and 5-B (2) would serve, the learned counsel said that in the case of selected area the land-owner can enjoy the land through the tenant for six years. That would be an insignificant benefit for the land-owner and it could not have possibly been the reason for introducing voluntary and compulsory selection of land out of the permissible area under Ss. 5(1) and 5 (2) of the Act. It is true thatunder S.5 (1), the land-owner has to include in his reserved area certain specified categories of land, butunder S.5-B his selection is not subject to any such restrictions. It may be that one of the objects of the amendment was to enlarge the discretion of the land-owner in the matter of reservation or it may be that in the matter of selection the land-owner has to conform to the provisions of S. 5 (1). We leave open that question for future decision. Our view is consistent with that accepted by Financial Commissioner, Punjab, in Karam Singh v. Angrez Singh. (1960) 39 Lah LT 57 (supra) and the Division Bench of the Punjab High Court in Angrez Singh v. Financial Commissioner, Punjab, Chandigarh, (ILR (1962) 2 Punj 766). We have gone through the two judgments and we are satisfied that the opinion expressed therein is correct.