1980 Supreme(P&H) 211

PUNJAB & HARYANA HIGH COURT
Prem Chand Jain, Harbans Lal and M.M.Punchhi JJ.
Ajit Kaur
Versus
State Of Punjab
Civil Writ No. 3053 of 1979,
Decided On : MAY 30, 1980

Sub-section (7) of Section 11 of the Act of 1973, will be attracted only in those cases where surplus area and the permissible area are determined by the Collector under the Act of 1973 and subsequent to such a decision the death of a landowner and the opening of succession in favour of his heirs will have no effect on the surplus area already determined; and Where the surplus area and the permissible area in the hands of a landowner were determined under the Punjab Law or the PEPSU Law and thereafter the landowner died resulting in acquisition of the holding by his heirs, the protection to the heirs in the matter of determination of surplus area in their hands, as embodied in sub-section (5) of Section 11 of the Act of 1973, will be fully available.

Headnote:

Whether the land declared surplus under the provisions of the Punjab Security of Land Tenures Act, (hereinafter called the Punjab Law), but yet not utilised nor in possession of the Government at the time of the enforcement of the Punjab Land Reforms Act, 1973 , (hereinafter to be called the Act of 1973), was vested in the Government for the purpose of its utilization though on account of the death of the original landowner the entire land including the surplus land may have devolved upon the heirs and in consequence thereof the land in the share of each heir as a result of devolution by law may have been reduced so as to fall within the premissible limit.

Fact of the Case:

The important question of law which falls for determination by the Full Bench is as to whether the land declared surplus under the provisions of the Punjab Security of Land Tenures Act, (hereinafter called the Punjab Law), but yet not utilised nor in possession of the Government at the time of the enforcement of the Punjab Land Reforms Act, 1973 , (hereinafter to be called the Act of 1973), was vested in the Government for the purpose of its utilization though on account of the death of the original landowner the entire land including the surplus land may have devolved upon the heirs and in consequence thereof the land in the share of each heir as a result of devolution by law may have been reduced so as to fall within the premissible limit.

Finding of the Court:

Sub-section (7) of Section 11 of the Act of 1973, will be attracted only in those cases where surplus area and the permissible area are determined by the Collector under the Act of 1973 and subsequent to such a decision the death of a landowner and the opening of succession in favour of his heirs will have no effect on the surplus area already determined; and Where the surplus area and the permissible area in the hands of a landowner were determined under the Punjab Law or the PEPSU Law and thereafter the landowner died resulting in acquisition of the holding by his heirs, the protection to the heirs in the matter of determination of surplus area in their hands, as embodied in sub-section (5) of Section 11 of the Act of 1973, will be fully available.

Issues: None

Ratio Decidendi: The scheme and intention of the Act of 1973 is clearly discernible from an analytical study of its provisions that wherever the legislature wanted to make any provision with reference to Punjab or the PEPSU Law, specific reference was made relating thereto. However, where some decision was required to be taken by the Collector or any of the authorities under the Act of 1973, there could not be obviously any reference to the Punjab Law or the PEPSU Law, nor was it necessary to specifically provide that such a decision may be made by the authority "under this Act." When some power is conferred on any authority under any statute, no specific reference to the statute is made, nor it is necessary in each and every provision. It appears that while interpreting sub-section (7) of Section 11, the aspect of the scheme of the Act of 1973 and the intention of the legislature was not high-lighted and the result was error in the interpretation of the two provisions.

Final Decision: The writ petition under Articles 226 and 227 of the Constitution has to be allowed. The surplus area in the hands of the original landowner Pakhar Singh, had been declared and determined by the Collector in 1959 and after remand in 1963 under the Punjab Law. As the said Pakhar Singh died in 1965 before the Act of 1973 came into force, his heirs were entitled to the protection of the saving as embodied in Section 10-A of the Punjab Law and the surplus area was required to be re-determined in their hands treating each heir as a separate landowner for the purpose of determination of permissible area and surplus area to the extent of 11 standard acres and 5-1/2 units of the surplus area so declared. No order regarding surplus area was passed by the Collector under the Act of 1973 and as such sub-section (7) of Section 11 of the Act of 1973, is not attracted. The learned counsel for the petitioners has not prayed for any relief in respect of 8 standard acres and 10-1/2 units of land out of the surplus area which was utilised during the lifetime of Pakhar Singh, landowner. It is not disputed that the land of Pakhar Singh, after devolution, in the hands of his heirs, is not in excess of permissible area, Consequently, the orders of the Collector, Agrarian, Samrala, Annexures-P.1 and P.2 and the order of the Commissioner, Annexure-P.4 are quashed. In view of the circumstances of the case, there will, however, be no order as to costs.