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2004(4) Supreme 381
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Rajendra Babu, CJI & G.P. Mathur, J.
Pohla Singh @ Pohla Ram (d) by Lrs. & Ors. -Appellants
versus
State of Punjab & Ors. -Respondents
Civil Appeal Nos. 6741 of 1999
Decided on 5-5-2004
Counsel for the Parties :
For the Appearing Parties : P.P. Rao, Sr. Advocate, Anant Vijay Palli, Mrs. Rekha Palli, Arindam Ghose, Vimal Chandra S. Dave, Mrs. Neelam Kalsi, K.K. Mohan, Kuldip Singh, R.K. Pandey and R.S. Suri, Advocates.
Held : In our opinion a question which goes to the root of the matter has escaped the attention of the High Court and has not been considered at all. There is no dispute that Dhanna Singh had been allotted land by way of military grant in Sind (Pakistan). After partition of the country, he came to India and he was given land in District Bhatinda under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and proceedings for declaration of surplus area have been applied to such land, namely, land in Bhatinda and not to the original land which had been allotted in Sind. The Pepsu Tenancy and Agricultural Lands Act, 1955 was amended by Act No. 11 of 1968 by which section 51A was inserted therein and it was specifically mentioned that section 51A "shall be deemed always to have been inserted". (Para 9)
A displaced person on account of his migration to India after partition did not get the same property which he had in the area which became Pakistan, but he got monetary compensation though it was possible that some property out of compensation pool could be sold or transferred to him out of the said compensation amount. The consequence is that the land which Dhanna Singh got in village Budhlada, in District Bhatinda is not the same land which he had got by way of military grant in Sind. It is an altogether different land purchased out of compensation amount which was payable to him or could have been transferred to him by setting off the valuation of the property against the compensation payable to him. Section 51A of the Act lays down that "where any land is granted for gallantry ..... such lands or portion ..... shall not be taken into account in computing surplus area ....". The language used in the Section shows in unequivocal terms that if the grantee holds any specific land or portion which had been granted for gallantry then subject to fulfillment of other conditions it shall not be taken into account for computing the surplus area. Therefore, Section 51A can come into operation only if the specific land which had been granted for gallantry is in possession of the person concerned and not otherwise. In the present case the land which had been granted to Dhanna Singh by way of gallantry award was situate in Sindh which he abandoned when he came to India on account of partition of country. Thereafter, on account of the loss suffered by him, he became entitled to compensation under Section 7 of the Rehabilitation Act, 1954. The land which he got in village Budhlada, District Bathinda, was either by way of sale by setting off the purchase money against the compensation payable to him in accordance with Clause (c) or by any other mode of transfer from the compensation pool and setting off the valuation of the property against the compensation payable to him in accordance with Clause (d) of Sub-section (1) of Section 8. Therefore, the land in possession of Dhanna Singh was an altogether different land and not "such land" which may have been given to him by way of gallantry and consequently Section 51A of the Pepsu Tenancy and Agricultural Lands Act can have no application at all. (Paras 14 and 15)
The recourse taken to the second writ petition by the allottees, therefore, cannot be said to be illegal as their basic grievance was that though they were in possession since 1962 i.e. for nearly 18 years, but the order declaring the land as surplus had been set aside in a writ petition, wherein they were not impleaded as parties. In these circumstances we are of the opinion that the writ petition filed by the allottees was rightly allowed by the learned Single Judge. (Para 19)
The learned Single Judge while allowing the writ petition of the allottees has also observed in the order that if permissible the question as to whether the land could be declared surplus or not may be determined in any proceedings that may be competent under law and also whether on account of retrospective operation of section 51A of the Act respondent No. 4 was entitled to ask for setting aside of the orders declaring his land as surplus where the question as to whether the appellants had acquired an indefeasible right which cannot be taken away even by retrospective amendment of the Act shall also be gone into. The allottees did not challenge this part of the order by filing any Letters Patent Appeal. However, having regard to the view taken by us and to avoid any scope for further litigation and to do complete justice between the parties, we set aside the said direction of the learned Single Judge and also the judgment and order dated 9.1.1980 passed in the writ petition filed by Dhanna Singh. (Para 20)
JUDGMENT
G.P. Mathur, J.-This appeal by special leave has been preferred against the judgment and order dated 4.6.1999 of a Full Bench of High Court of Punjab & Haryana whereby Letters Patent Appeal preferred by respondent No. 4 Gurcharan Singh was allowed, the judgment and order dated 13.8.1992 of the learned Single Judge allowing the writ petition filed by the appellants Pohla Singh and others was set aside and the writ petition was dismissed.
2. Dhanna Singh (father of Gurcharan Singh respondent No. 4) had been allotted land by way of a military grant in Sind (Pakistan). On partition of the country he migrated to India. He was initially allotted 79.39 standard acres of land in Village Budhlada, Tehsil Mansa, District Bhatinda which on account of report of Patwari in some Revenue Proceedings was reduced to 68.68 standard acres. In the year 1955. The Pepsu Tenancy and Agricultural Lands Act was promulgated and section 3 thereof provides that the permissible limit shall mean "thirty standard acres of land". Accordingly proceedings for determination of the surplus area were initiated and by an order passed on 28.3.1961, which was ex-parte, 28.68 acres of land were declared as surplus. Dhanna Singh then filed an application for setting aside the ex parte order wherein he also indicated his choice for the plots to be declared as surplus. The Collector (Agrarian Reforms) Bhatinda, by his order dated 9.6.1961, set aside the ex-parte order and the plots, choice of which was given by Dhanna Singh, equivalent to 28.68 standard acres, were declared as surplus. Under the Utilization of Surplus Area Scheme the land declared as surplus was allotted to the appellants on 5.3.1962, Sannads as prescribed in Form-V were issued to them and they were put in possession of the land. The compensation with regard to surplus area was determined at Rs. 13,882.53/- which was deposited by the appellants and was received by Dhanna Singh. Thereafter consolidation proceedings took place and mutation was ordered in favour of the appellants.
3. After a long time Dhanna Singh filed a revision on 19.11.1966 against the order dated 9.6.1961 of the Collector, declaring his land as surplus, but the same was dismissed by the Financial Commissioner, Revenue on 2.3.1967 on the ground of limitation as the same was beyond time by 1882 days. Thereafter he filed CWP No. 3213 of 1968 challenging the order of the Financial Commission and also the order of Collector dated 9.6.1961. The Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as the Act ) had been amended by Act No. 11 of 1968 whereby section 51A was introduced therein which provides that where any land is granted for gallantry at any time before 26th day of January, 1950 such land or portion, as the case may be, shall not be taken into account in computing the surplus area under the Act. Relying upon the said provision the learned Single Judge allowed the writ petition by the judgment and order dated 9.1.1980 and set aside the order declaring 28.68 standard acres as surplus. It is important to note that in this petition (i) State of Punjab; (ii) Financial Commissioner; and (iii) Collector, Agrarian R.A. II), Bhatinda were impleaded as respondents. Though the surplus land had been allotted in favour of appellants on 5.3.1962 and they had been put in possession over the same, but they were not impleaded as parties to the writ petition nor any notice was issued to them.
4. The appellants then filed CWP 1287 of 1980 wherein they claimed several reliefs including a writ of mandamus directing the respondents not to dispossess them from the land allotted to them. In this petition besides the above mentioned official respondents, Gurcharan Singh son of Dhanna Singh was also impleaded as respondent No. 4 as he had been substituted on account of death of his father during the pendency of CWP No. 3213 of 1968. The writ petition was contested by Gurcharan Singh alone. The learned Single Judge held that no
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