Case: State of Punjab (Now Haryana) &amp; Others Vs. Amar Singh &amp; Another

2. A brief survey of the relevant facts leading up to the legal controversy seeking resolution in these appeals will help forcus forensic attention on the provisions of the Act which bear upon the issue. A lady by name Lachhman had considerable agricultural property, far in excess of the relatively liberal ceiling set by the Act which came into force on April 15, 1953.She had a daughter Shanti Devi andw Amar Singh, respondent in Civil Appeal No. 1755 of 1967, whose brother Indraj is the respondent in the connected Appeal No. 1756 of 1967. Annexure B to the writ petitions is an order dated May 11, 1962,passed under the Act and the Rules by the Collector, (Surplus Area) Sirsa. It is this order which has been successfully attacked in the writ petitions and is ther of the present appeals. The facts stated therein have not been reversed in the judgment of the High Court and we have to proceed on the assumption that those statements are correct. We are concerned with three khasras Nos. 177, 265 and 343,in all over 131 acres of land. At the commencement of the Act, khasra No. 177 was under Mst. Lachhmansn but there were two tenants under her, Chandu and Sri Chand, on the other two plots. Together, these three plots constitute a large slice out of her surplus area and are now claimed by the respondents Amar Singh and Indraj, as their own under a purchase ordered by the Assistant Collector who is the competent authority under Section 18 of the Act (Annexure A to the writ petitions). Appellants counsel urges that the history of the derivation of title of these claimants needs to be sceptically studied, the relationship of the parties being that of mother and daughter,w and brother, and the heavy impact being slicing off a good chunk from the surplus area, otherwise available for3. At the outset it must be mentioned that the two tenants, Chandu and Sri Chand, who were on the land on the determinative date (April 15, 1953) presumably showed no interest in claiming rights granted to tenants under the Act, which were subject, of course, to their possessing lands less than the permissible area. We have no information in this case what the total extent of lands in the possession of these two tenants was and whether they had chosen to keep other lands in preference to the ones under Mst. Lachman We need not speculate on how or why they left the suit plots but may note that they were on the holding on the key date in 1953 and if later they did not keep their possession (abandoned or surrendered) the tenancy terminated and on the facts of this case the lands came into the actual possession of the, Mst. Lachhman, no other legal inference being possible than that the leases were extinguished and the lands reverted to the landlady on general principles of law. In short, we have to proceed on the assumption that one plot, namely, Khasra No. 177, had always been in then of the landlady and that the two tenanted plots, namely, Khasra Nos. 265 and 343, came into the khas possession of the landlady to the crucial date. Apprehending the statutory peril to these lands which were admittedly outside her reserved area, Mst. Lachman went through the exercise of making a gift of the three lands to her daughter, Smt. Shanti (vide mutation No. 445 decided on December 24, 1953 and referred to in Annexure B). Subsequently, it is seen that Amar Singh, husband of Shanti and Indraj, brother of Amar Singh, purported to apply for purchase of thes right in these three plots under Section 18 of the Act making Lachhman and Shantis and alleging that they were tenants qualified for the statutory benefit. The Assistant Collector before whom the application was made for purchase under Section 18 has said in Annexure A to both the writ petitions that these two ladies are said to be big landowners but ..... had not got this land reserved for their own purpose. Curiously enough, in both the purchase petitions the parties avoided even an enquiry by the Assistant Collector as is evident from the following statement from Annexure A:Before the proceedings could state the parties have come to terms and they have actually put in court a compromise deed which they have backed up by their statementsMay be, because these dubious moves if exposed to the examination of an officer might prove a fiasco, the close relations who figured as petitioner and respondents lulled the Assistant Collector into mechanically acting on the compromise without enquiring into any of the eligibility factors before a purchase could be ordered4. There is another set of facts which needs mention at this state. Even before the purchase proceedings were initiated by the writ petitioners, the Collector had, as early as April, 1961, declared the surplus area of Lachhman ignoring alienations and including the three khasra numbers. But on appeals carried both by thew and his brother, the Commissioner ordered a further enquiry. Meanwhile, purchase proceedings were started and, by a quick compromise, orders of purchase were obtained. But all these proved exercises in futility because the Collector, Surplus Area, again ignored the leases to the writ petitioners as collusive and the orders of purchase as ineffective in the impugned order, Annexure B. However, the High Court set aside Annexure B so that the petitioners before it, thew and his brother, were restored to their purchases, and the State lost the lands from the surplus pool.

Court's reasoning:
Certainly, land reforms are no basic to the national reconstruction of the new order envisaged by the Constitution that the issue raised in this case deserves our anxious attention. We have to bear in mind the activist, though inarticulate, major premise of statutory construction that the rule of law must run close to the rule of life and the court must read into an enactment, language permitting, that meaning which promotes the benignent intent of the legislation in preference to the one which perverts the scheme of the statute on imputed legislative presumptions and assumed social values valid in a prior era. An aware court, informed of this adaptation in the rules of forensic interpretation, hesitates to nullify the plain object of a land reforms law unless compelled by its language, and the crux of this case is just that accent when double possibilities in the chemistry of construction crop upAnyway, the law laid down in this case was affirmed by a Full Bench of that Court. Having regard to all those circumstances a serious analysis and attemp at harmonisation of the various provisions of the Act is necessary now6. The triple objects of the agrarian reform projected by the Act appear to be (a) to impart security of tenure (b) to make the tiller the owner, and (c) to trim large land holdings, setting sober ceilings. To convert these political slogans into legal realities, to combat the evil of mass evictions, to create peasant proprietorships and to ensure even distribution of land ownerships a statutory scheme was fashioned, the cornerstone of which was the building up of a reservoir of land carved out of the larges and made available for utilisation by the State for8. It is obvious that thist for a peaceful transformation of agrarian relations assumes the availability of a large surplus area on which the State can settle tenants form, the reserved areas and small holdings. Thus the key to the success of the scheme is the maximising of the surplus land reservoir and sealing off legal leakages through private alienations, collusive orders and decrees and the like, and so care was taken to interdict alienations and ignore dectrees and orders which diminished the surplus poolPlainly, there is a wide interdict against any transfer or other deposition of land comprised in the surplus area, if it still affect the utilization thereof for the resettlement of tenants ejected or to be ejected under clause (i) ofn (1) of Section 9. Such a strategic provision which takes care of the surplus reservoir of land must receive a benignantly spacious construction. There can, therefore, be no doubt that the expression transfer or other disposition of landmust definitely cover leases which, by very definition, are a species of transfer of land. It looks as if other devices were resorted to by largeto defeat the surplus area scheme of section. Courts and other authorities were approached and, through their processess, decrees and orders were secured whereby lands out of the surplus area could be salvaged by theThe legislature finding this anticeiling phenomenon clamped down a blanket ban on the adverse operation ofany judgment, decree or order of a court or other authority, obtained after the commencement of this Act and having the effect of diminishingthe area of a person which could have been declared as his surplus area. SectionA (c) may be usefully reproduced in this context :(c). For the purposes of determining the surplus area of any person under this section,any judgment, decree or order of a court or other authority, obtained after the commencement of this Act and having the effect of diminishingthe area of such person which could have been declared as his surplus area shall be ignored13. It is extremely important to remember that while this provision was enacted in 1962 and while SectionA (b) prohibiting alienation was passed in 1955, both these provisions were given retrospective effect as from the decisive date, namely, April 15, 1953. The deep concern of the legislature is clear from all thisWe do not wholly agree with this itemisation but it is good enough to focus attention on the relevant area of legal controversyOne further point pressed in both courts may be noticed. viz., that the order of purchase of the concerned officer not having been set aside binds the other authority determining the surplus area and so the question is whether one officer under the Act could ignore an order by another officer under a different provision of the Act, having regard to comity of courts and jurisdictions. As indicated already, the principal discussion in the judgment under appeal has turned on the claim to primacy of Section 18 as against SectionA and so it is a well that we state right now what stand we propose to take in resolving apparent conflicts in the provisions of ag legislation. Every such statute has a soul and an intgrated personalityminor deformities may mar this unity, especially when piecemeal amendments and unskilled drafting occur. The basic judicial approach must be to discover this soul of the law and strive to harmonise the many limbs to subserve the pervasive spirit and advance the social project of the enactment. Seeming confrontations between provisions must be resolved into a. This interpretative activism persuades us in this case to reconcile what the High Court has conceived to be a conflict between Section18. We are afraid there is a fallacy in this reasoning. It is true that a mere change in tenancy by transfer of the lease as such, as distinguished from a landlord inducting a new tenant on land the prior lease over which has been terminated and possession restored to the landlord, may not perhaps offend SectionA although situation may arise even in such cases leading to a different conclusion. We need not investigate this possibility further. In the present case, the exclusion of the two khasras from the surplus area depends on their being part of the permissible area of Chandu and Sri Chand. To salvage the lease in his favour, Amar Singh, the new tenant, must prima facie show that this alienation does not violate Section) which prohibits all transfers and other dispositions which diminish the surplus area of theconcerned. He has, therefore, to make out (a) that the demised lands do not form part of the landlords surplus area of (b) that, as was vehemently argued but may with little legal qualms be rejected, a lease is not a transfer or other disposition of property. The High Court has disposed of this alter submission with the simple but impecable observation that the creation of a lease is a transfer or a demise referred to in Section 105 of the Transfer of Property Act admits of no doubt. The purpose of the prohibitive provision is to strike at every alienatory essay and the natural meaning of transfer or other disposition of land, apart from the contextual compulsion, embraces leases. The contention that even wide words must oblige the landlords plea for a narrow meaning, viz., absolute transfer of, is beyond us to acceptWe think not. For that they must be comprised in the permissible area of the tenant. Here we have no information placed by him who wants to prove it affirmatively that these plots lie within the permissible are of 30 standard acres, by definition, of Chandu and Sri Chand. That they did not continue in possession after the Act is not disputed. If they were in possession of other lands either as owners or tenants, and such holding was 30 acres or more, it was open to them to relinquish those lands being in excess of their permissible area, in which case, not being the permissible area of the tenant and being in excess of the reserved area of the landlord, those lands would be surplus area of the landlord within the definition under Section 2. In the absence of proof that the lands in dispute were comprised in the permissible area of the prior tenants, it is not possible to hold that they do not come within the surplus area of the landlord, Mst. Lachhman. On the contrary, the likely inference flowing from the disappearance from the scene of Chandu and Sri Chand and their failure to claim to remain as tenants or to purchase is that these were not their permissible area. It is not as if every bit of land that is with a tenant on the relevant date is his permissible area. It has to fulfil the requirement of Section 2(3). No such test has been satisfied here. Nor can it be argued that even if a tenant gives up his interest in the holding the statute will haunt him with rights. Permissible area is not a concept in the abstract but, as Section 2(3) mentions, is in relation to atenant. In relation to Chandu and Sri Chand no claim to permissible area or consequential rights has been set up and Amar Singh is not a transferee from them but a de novo tenant. It follows that the two khasras should be computed as part of the surplus area of Mst. Lachhman and SectionA (b) operates to invalidate the alleged lease to Amar Singh as its clear impact is to diminish the surplus area of theHe had, therefore, no right as a tenant to purchase under Section 1821. The High Court has taken the view that SectionA (b) cannot affect involuntary transfers and since a purchase effected under Section 18 affects an involuntary transfer it is not hit by sectionA (b). The further view taken us that the expression other authority in SectionA (c) refers only to authorities other than those under the Act; the Assistant Collector who has ordered the purchase under Section 18 being outside SectionA (c) his order cannot be ignored by the Collector on the strength of SectionA (c). A third point converging to the same conclusion taken by the Court is that when an order under Section 18 has become final, the Collector acting under SectionA (c) cannot but be bound by it until it is set aside in appeal or revision or other appropriate proceedings even though the Assistant Collectors order under Section 18 was passed on a compromise between the parties22. We may now consider the soundness of these three grounds separately. The object of SectionA (c) cannot be fulfilled unless the widest meaning were given to the expression court or other authority. Nor is there any basis for truncating the ambit of other authorities in the manner the High Court has done. Other authority is every other authority within or without the Act. The reason given by Narula, J., to exclude the officer passing orders under Section 18 from other authority is that the result would be that the benefit sought to be conferred by Section 18 on the tenants would be completely nullified and obliterated. In this connection he further observed :In every case, order under Section 18 of the Act, would be passed after the Act came into force. If an order under Section 18 has to be ignored by the operation of clause (c) of Sec., every order under Section 18, must be ignored while declaring the permissible area of theThere is no discretion in the authorities to apply the provisions of clause (c) of SectionA or not to apply them. The provision is mandatory. If, therefore, clause (c) of sectionA could be utilised for abrogating the effect of an order under Section 18 of the Act, the whole scheme of the Act for distribution of land to the tenants and for conferring a right on a tenant to purchase the land within the limits of permissible area would flouted23. Having given serious consideration to the pros and cons we are not satisfied that this argument is valid; on the contrary, if upheld it may stultify SectionA and the scheme of the statute altogether. Obviously, if every order of purchase sanctioned under Section 18 can successfully diminish surplus area of aa spate of such orders would be procured by previous arrangement between thehis nominee tenants or even bona fide alienees. The present case is a capital illustration of the fraud and collusion that may follow on such an interpretation. Indeed, there is no provision in S. 18 to give notice to the Collector who is to declare the surplus area and so the State which is vitally concerned in the resettlement of ejected tenants utilising the surplus area has no opportunity to present its case against the fraudulent character of the proceedings under Section 18 before the Assistant Collector. The state, not being a party to that order, in any case cannot be bound by it, whatever may be the effect as between the parties to those proceedings. We are concerned here with a challenge by the State to the efficacy of the order. Annexure A, and so we cannot muzzle the plea of the State that the order under Section 18 is void if there are good grounds to hold with it24. Nor is there force in the argument that the benefit under Section 18 would be completely nullified and obliterated if Section. (c) were to apply to it. It is wrong for the Court to have said that in every case orders under Section 18 would have to be ignored. That is not the result of Sections of that section read together show that if the landlord by any act or omission of his suffered a diminution in the surplus area by a transfer, voluntary or otherwise, in favour of another, contrary to the right of the State Government to dispose of it, such a transfer only is liable to be set aside. The tenants described in Section 18 in whose favour the authority sanctions the purchase of the land are not transferees whose transfers have to be set aside as being contrary to the right of the State Government. Actually, the bulk of the cases under Section 18 would be by tenants who are eligible to purchase by virtue of six years continuous occupation under Section 18(1). Their purchases would often be from land which is their permissible area. Every tenant with six years standing, be it before or after the commencement of the Act, will be entitled to buy the ownership. Of course, if he is within the reserved area he is liable to be evicted even before the purchase but if he is outside the landlords reserved area he can move for purchase. Such a purchase being from the permissible area of the tenant is outside the surplus area of the landlord and does not diminish the area of such person which could have been declaredas his surplus area.Ex hypothesis surplus area excludes a tenants permissible area. Therefore, even if that land falls outside the reserved area of the landowner, if it is within the tenants permissible area, its purchase by the tenant cannot diminish the25. Another substantial category, who may buy under Section 18 without reducing the surplus area, is thetenants. When the State acting under Section) accommodates an ejected tenant the utilization of the surplus land protanto is fulfilled. Such a rehabilitated tenant of the landlord, after the six years term, can qualify to buy under Section 18. Such a purchase only fulfils the second object of the statute of making the tiller the owner and does not in any way diminish the surplus area of the landlord. For, with thean ejected tenant that land, for all practical purposes, is no longer available for the only purpose for which the surplus pool is meant, viz.,resettlement of ejected tenants.Thus, it is clear that Section 18 is not rendered otiose by the view that orders thereunder which diminish the surplus area are lad for violation of SectionA (c). Indeed, the principal category adversely affected by our view would bey collusive tenants, who are in most cases likely to be brought in by landlords experimentally to rescue those lands from the surplus pool, and even in bona fide cases they do not deserve sympathy since they damage the prospects of displaced tenants from being. It may as well be noted here that the person who is entitled to purchase under Section 18 is a tenant, i.e., a person lawfully inducted on the land as a tenant. Once a land is held to be part of the surplus land of the landlord, it rests with the State Government for being disposed of forand any disposition of the same by the landlord after April 15, 1953, would be invalid against the State Governments claim to dispose of it. That is the effect of Section) and (b).Therefore, in respect of any land to which the State Government makes a claim for resettlement, on the ground of its being surplus land, any person inducted by the landlord after April 15, 1953, would have no title to it as a tenant and, would not be able to avail of Section 18. To sum up, the other authorities in Section) include officers under Section 18. Secondly, the plain meaning of SectionA (c) is that any order by any authority which shrinks the surplus area of the landlord is invalid to the extent laid down in clause. Thirdly, orders S. 18 if they diminish the surplus area suffer the same fate and Annexure B fails to shield Mst. Lachhamans lands against orders26. Shri Dhingra relied on Sahib Ram v. The Financial Commr., Punjab, (1970)3 SCR 796   = (AIR 1971 SC 198  ) but that decision only rules that a tenant, who completes his 6 years qualifying occupation required by S. 18 after April 15, 1953 is not excluded. Vaidilingam, J., took care to refer to the case under appeal now before us (Amar Singhs case) and said that it dealt with the scope of S.A and did not bear upon the point before themHere it serves the discussion to remember that the leases in question have been found by the Collector to have been collusively got up to dwindle the surplus area of theThe Collector in Annexure B finds :and it is crystal clear that Amar Singh and Indraj had not been in continuous cultivating possession of this land for full six years, the other copy of Khasra Girdawari put in this case and which is to be found at page 27 of the file, shows the possession over this land of Indraj and Amar Singh only from the year, and so their possession over it for full six years is not complete as yetHe has also stated that he was convinced :has conspired with herw Amar Singh and his brother Indraj to retain this area in contravention of the lawA third pregnant fact is that the proceedings under Section 18 were prima facie collusive, and to burke an enquiry into the eligibility of the alleged tenants to purchase under S. 18 an expedient was resorted to. Before the proceedings could start says Annexure A, the parties have come to terms and they have actually put in court a compromise deed which they have backed up by their statements. Thus, no finding on the basic facts of entitlement to purchase have been recorded by the authority under S. 18 because he has merely stated in Annexure AAs per statements of the parties, I allow Amar Singh to purchase the land in suit28. These facts have to be assumed since a controversy thereon in the writ court or in this Court cannot be permitted. We are, therefore, concerned to see whether on such a factual basis any legal consequences completing the court to uphold Annexure A, and thus judicially condoning what is a fraud on the statutory scheme, follow29. An order like Annexure A ordinarily binds the parties only and here the State which is the appellant is seriously prejudiced by that order but is not a party to it. Therefore, it cannot bind the State proprio vigore. It was argued by Shri Dhingra that the State could have moved by way of appeal or review and got the order set aside if there was ground and that not having done so it was bound by the order. As a matter of fact, the State, which is not a party to the proceedings, does not have a right of appeal. The ordinary rule is that only a party to a suit adversely affected by the decree or any of hist may file an appeal. Under such circumstances a person who is not a party may prefer an appeal with the leave of the appellate court if he would be prejudically affected by the judgment and if it would be binding on him as res judicata under Explanation 6 to Section 11. (see Mulla Civil Procedure Code 18th edn., vol. 1, p. 421). Section 82 ofthe Punjab Tenancy Act, 1887, which may perhaps be invoked by a party even under the Act, also speaks of applications by any party interested. Thus, no right of review or of appeal under S. 18 can be availed of by the state as of right30. If the State is not precluded from proving the invalidity of Annexure A, it is clear that the said order is unsustainable. S. 18 applies only to tenants, i.e., not anyone who claims to be, but legally is one. Here who has granted the lease? Mst. Lacchman? How could she after gifting away to her daughter? And no lease from daughter Shanti is set up although obscurely both mother and daughter are made respondents. Secondly, S. 18 qualifies for purchase only those tenants who had 6 years continuous occupation. Here, on the Collectors finding. Amar Singh and Indraj came by possession only in8 and, as he points out in Annexure B, the six year period is not complete at the time of application. The reason why even before the proceedings began parties presented a compromise and avoided an enquiry is not far to seek. In short, the State could and did make out the incompetence of the respondents to purchase under S. 18 and Annexure A being also stricken by the vice of SectionThis seeming attractiveness vanishes when we notice that Section 18(i)(ii) and (iii) provide for two classes of hard cases where unjust evictions prior to the Act coming into force had deprived them of their rights. For all practical purposes the Act clothes them with such rights as they would have enjoyed had they not suffered unjust evictions. That is why specific provision was made inSection18 for them. The exception proves the rule. The paramountcy of SectionA cannot be subverted by illegitimate use of the processes under Section 18May be, that as a broad proposition one may assent to it. But where a compromise goes against a public policy prescription of a statute or a mandatory direction to the Court to decide on its own certain foundational facts, a razi cannot operate to defeat the requirement so specified or absolve the court from the duty. The resultant order will be ineffective. After all, by consent or agreement, parties cannot achieve what is contrary to law and a decree merely based on such agreement, on such agreement on such agreement cannot furnish a judicial amulet against statutory violation. For, by private agreement, converted into a decree, parties cannot empower themselves to do that which they could not have done by private agreement alone. (See Mulla, C. P. C., Vol. II, p.1300). The true rule is thatthe contract of the parties is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the Judge.The learned author, Mulla, in his Commentary on Order XXIII, Rule 3 (Civil Procedure Code, Vol. II, pp.) cites many authorities for this proposition and observes :If a decree is passed under this rule on a compromise which is not lawful, the Court should not enforce the decree in execution proceedings. Thus, a sale of an office attached to a temple is against public policy. Hence, if in a suit against the holder of such an office a compromise is arrived at whereby the holder of the office consents to the office being sold in satisfaction of the debt due to the plaintiff, and a decree is passed on the compromise, the Court should notwithstanding the consent decree refuse to sell the office in execution. It is clear that if the matter had rested in contract only, the Court could not have enforced the sale in a suit brought for that purpose. The mere fact that the contract is embodied in a decree does not alter the incidents of the contract.It may be right to conclude that any authority, like the Collector here, enjoined to apply Section) and (c) may decline to act on a compromise which has ripened into an order if the agreement between the parties disposes of property in violation of a statutory mandate. He can and must fit the veil and look the agreement of the parties in the face. The vice of contravention of Section) is writ large in Annexure A37. In both these cases the decrees based solely on the razi, and without the Court applying their mind, were a nulllity. The order of the Assistant Collector, Annexure A bears resemblance to the situation in these two cases. On the other hand K. K. Charis case (1973) 1 SCC 761   = (AIR 1973 SC 1311  ) is a study in contrast. There was plethora of evidence to prove the ground of eviction and the Court directed eviction based on the terms of the compromise and after making a reference to the provisions for eviction. Vaidialingam, J., has explained this aspect elaborately