T.H.B Chalapathi, J.:— These four writ petitions are filed to quash the orders dated 31.8.1981 of the Financial Commissioner and Chief Secretary to Government, Haryana Chandigarh in Review Application Nos. 2 of 1979-1980, 3 of 1979-1980, 4 of 1979-1980, 5 of 1979-1980 and 6 of 1979-1980, reviewing the earlier orders passed by his predecessor on 22.12.1978
2. The petitioners are claiming as tenants of the big landowner Surja. The surplus area of the big landowner Surja was determined on 1.12.1961 under the provisions of the Punjab Security of Land Tenures Act, 1953. The said orders became final on 27.9.1963 Thereafter, the petitioners who are the tenants of the portions of the land belonging to the big land owner filed applications under Section 18 of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the ‘Act’) for purchase of the same. The said applications were allowed by the Assistant Collector on 17.5.1971 The big land-owner Surja filed appeal before the Collector who forwarded the same to the Commissioner who recommended to the Financial Commissioner for re-determination of the surplus area of the big land-owner and review of the order dated 27.9.1963 The Financial Commissioner by his Page: 153order dated 28.10.1971 confirmed the order of the Assistant Collector permitting the tenants to purchase the land. It appears that after the orders of the Assistant Collector dated 17.5.1971, the tenants paid the sale consideration also in accordance with the rules. Thereafter the applications have been fded by the big land-owner to review the orders of the Financial Commissioner dated 22.12.1978 By the impugned order, the said applications for review were allowed by the Financial Commissioner on the ground that the tenants were not in possession of the land on 15.4.1963 and therefore, they have no right to purchase the land. To come to this conclusion, the Financial Commissioner relied on the decision of the Supreme Court in State of Punjab v. Amar Singh, 1974 PLJ SC 74. Aggrieved by the said order of the Financial Commissioner the tenants preferred the above writ petitions.
3. Admittedly, the petitioners who are the tenants on the land of Surja, have been in possession of the land for more than six years after 1953. It is an admitted case of the petitioners that they were not in possession of the land on 15.4.1953, the date on which the Punjab Security of Land Tenures Act, 1953 came into force. It is to be seen whether the right of the tenants who have been inducted in possession of the land continuously for a period of 6 years can be denied or defeated by virtue of Section 10-A of the Act. To allow the review petitions, the Financial Commissioner relied on the decision of Supreme Court in State of Punjab v. Amar Singh, 1974 PLJ 74. It is to be seen how far the said decision is applicable to the case in hand.
4. Section 8 of the Punjab Security of Land Tenures, 1953, gives a right to the tenants to purchase the land from the big landowner if they fulfil certain conditions. It reads as follows:
“18. Rights of certain tenants to purchase land.
(1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a landowner other than a small landowner—
(i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six years, or
(ii) who has been restored to his tenancy under the provisions of this Act and whose period of continuous occupation of the land comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amounts to six years or more, or
(iii) who was ejected from his tenancy after the 14th day of August, 1947, and before the commencement of this Act, and who was in continuous occupation of the land comprised in his tenancy for a period of six years or more immediately before his ejectment, shall be entitled to purchase from the landowner the land so held by him but not included in the reserved area of the land-owner, in the case of a tenant falling within clause (i) or clause (ii) at any time, and in the case of a tenant falling within clause (iii) within a period of one year from the date of commencement of this Act:
Provided that no tenant referred to in this sub-section shall be entitled to exercise any such right in respect of the land or any portion thereof if he had sublet the land or the portion, as the case may be, to any other person during any period of his continuous occupation unless during that period the tenant was suffering from a legal disability or physical infirmity, or, if a woman, was a widow or was unmarried:
Provided further that if the land intended to be purchased is held by another tenant who is entitled to pre-empt the sale under the next preceding section, and who is not accepted by the purchasing tenant, the tenant in actual occupation shall have the right to pre-empt the sale.
(2) A tenant desirous of purchasing land under sub-section (1) shall make an application in writing to an Assistant Collector of First Grade having jurisdiction over the land concerned, and the Assistant Collector, after giving notice to the land-owner and to all other persons interested in the land and after making such enquiry as he thinks fit, shall determine the value of land which shall be the average of the price obtaining for similar land in the locality during 10 years immediately preceding the date on which the application is made.
(3) The purchase price shall be three-fourths of the value of land as so determined.
(4)(a) The tenant shall be competent to pay the purchase price either in a lump sum or in six monthly instalments not exceeding ten in the manner prescribed.
(b) On the purchase price or the first instalment thereof, as the case may be, being deposited, the tenant shall be deemed to have become the owner of the land, and the ‘Assistant Collector shall, where the tenant is not already in possession, and subject to the provisions of the Punjab Tenancy Act (XVI of 1887) put him in possession thereof.
(c) If a default is committed in the payment of any of the instalments, the entire outstanding balance shall, on application by the person entitled to receive it, be recoverable as arrears of land revenue.
(5) If the land is subject to a mortgage at the time of the purchase, the land shall pass to the Page: 154tenant unencumbered by the mortgage, but the mortgage debt shall be charged on the purchase money.
(6) If there is no such charge as aforesaid the Assistant Collector shall subject to any directions’ which he may receive from any Court, pay the purchase money to the landowner.
(7) If there is such a charge, the Assistant Collector shall, subject as aforesaid, apply in the discharge of the mortgage debt so much of the purchase money as is required for that purpose and pay the balance, if any, to the landowner, or retain the purchase money pending the decision of a Civil Court as the person or persons entitled thereto.”
5. Therefore, when a tenant has been in possession of the land for more than six years, he is entitled to purchase the same. But this right of the tenant to purchase the land is subject to the provisions of Section 10-A of the Act. Sections 10-A and 10-B read as follows:—
“10-A. Surplus area for resettlement of ejected tenants—
(a) The State Government or any officer empowered by it in this behalf, shall be competent to utilise any surplus area for the resettlement of tenants ejected, or to be ejected, under clause (a) of sub-section (1) of Section 9.
(b) Notwithstanding anything contained in any other law for the time being in force and save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance no transfer or other disposition of land which is comprised in surplus area, at the commencement of this Act, shall affect the utilisation thereof in clause (a).
Explanation.— Such utilization of any surplus area will not affect the right of the landowner the receive rent so settled.”
6. Under clause (c) of Section 10-A for the purpose of determining the surplus area of any person under this Section or judgment, decree, or order of a Court or other authority, obtained after the commencement of this Court and having the effect of diminishing the area of such person which could have been declared as his surplus area shall be ignored.
7. It is, therefore, to be seen whether the case of the petitioners comes within Section 10-A or B of the Act. The effect of Section 10-A has been considered by the Supreme Court in State of Punjab v. Amar Singh, 1974 PLJ (SC) 74. The Supreme Court also reconciled Section 10-A and Section 18 in the said decision. From the observations of the Supreme Court, it is clear that the intention of the parties is to diminish the surplus area of the landowner then it is hit by Section 10-A and B in which case the tenant had no right to purchase the land under Section 18. This position is further amplified by the Supreme Court in para 27 of the judgment, which reads as follows:—
“Nor is there force in the argument that the benefit under Section 18 would be “completely nullified and obliterated” if Section 10-A(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 Section 10-A. All the three sub-clauses 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 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. Even 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 purchases but if he is outside the landlord's 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 declared as his surplus area.” Ex hypothesis “surplus area” excludes a tenant's permissible area. Therefore, even if that land falls outside the reserved area of the land-owner, if it is within the tenant's permissible area, its purchase by the tenant cannot diminish the landowner's surplus area.”
(Emphasis supplied).
8. Thus it is clear that if the purchase by the tenant diminishes the surplus area of the landowner then the purchase is hit by Section 10-A of the Act and the application of the tenant cannot be allowed, because in that case the surplus area has been diminished. In the case in hand, the application for purchase of the land has been made by the tenant long after the determination of the surplus area of the big landowner. Therefore, there is no question of diminishing the surplus area of the landowner under the provisions of the Punjab Security of Land Tenures Act, 1953 and the Page: 155landlord cannot take advantage of the tenants purchase so as to exclude the area purchased by the tenant from his surplus area. Therefore, I am of the opinion that decision of the Supreme Court in State of Punjab v. Amar Singh, 1974 PLT (SC) 74, does not help the landowner to avoid the purchase by the tenants under Section 18 of the Act. Therefore, in my view order of the Financial Commissioner, allowing the review applications is liable to be set aside.
9. The writ petitions are accordingly allowed and the impugned order dated 31.8.1981 of the Financial Commissioner is hereby set aside.
Petition allowed.
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