1. This appeal under Clause X of the Letters Patent is directed against the decision of a learned Single Judge of this Court rejecting the petition of the appellants under Articles 226 and 227 of the Constitution of India. In this petition, the petitioners challenged the right of the respondent tenant to purchase the land under Section 18 of the Punjab Security of Land Tenures Act (Act No. 10 of 1953) (hereinafter referred to as the Act).
2. The facts giving rise to this appeal are that Madho Dass is a displaced person from Pakistan. He was allotted 53 standard acres and 11 units of land in tehsil Fatehabad, district Hissar, in lieu of the land left by him in Pakistan. In a partition suit filed by his son Nanak Chand, half of the land allotted to him was entered in the name of Nanak Chand. in the year 1962, the Rehabilitation authorities cancelled four standard acres and one unit of the land allotted to Madho Dass. Thus, he was left with 49 standard acres and 10 units of land, the same being well within his permissible area.
3. The Surplus Area Collector declared 13.4 standard acres equal to 35-13 ordinary acres of Madho Dass land as surplus area on January 7, 1965 under the Act. Madho Dass preferred an appeal to the Commissioner, who rejected the same on December 8, 1965. He went up in revision to the Financial Commissioner, who allowed his revision petition and set aside the order of the Collector with the finding that there was no surplus area with Madho Dass. This decision finds support from the Full Bench decision of this Court in Khan Chand v. State of Punjab, ILR (1966) 2 Punj 447=(AIR 1966 Punj 423).
4. It is common ground that Midha Singh, the present respondent, was cultivating field Nos. 2170, 2171 and 2172 as a tenant under Madho Dass, from the year 1954. After consolidation the numbers changed and the total area under the tenancy came to 77 Kanals and 5 Marlas. The tenant made an application on January 19, 1966, under Section 18 of the Act, for the purchase of the land under his tenancy. An attempt was made by the father and the son to evict Midha Singh. The plea was that Madho Dass was a small landowner and the entire land being within his 'permissible area' the tenant could be evicted. This application was allowed and the purchase application of the tenant was dismissed by the Assistant Collector on 4th July, 1966. Two appeals against the aforesaid orders were preferred by the tenant to the Collector who rejected both of them on 24th October, 1966. The tenant then preferred two revision petitions to the Commissioner, but with no success. The tenant then preferred further revision petitions to the Financial Commissioner, who partly allowed the same by his order dated September 16, 1967. The result being that he permitted the tenant to purchase half of the land comprised in his tenancy and which was under the ownership of Nanak Chand. The decree for eviction in favour of Nanak Chand was also set aside. This led to the filing of the present writ petition by Madho Dass and Nanak Chand.
5. The learned Single Judge, after examining the various contentions urged by the learned counsel for the petitioners rejected the petition. The petitioners have come up in appeal.
6. The contentions that have been advanced by the learned counsel for the appellants before us are:--
(i) that Madho Dass was a small landowner as he did not own land above the 'permissible area'. At the time he made the transfer of land to his son he was a big landowner and thus any transfer by him has to be ignored. Later on by reason of cancellation of part of his allotment, he became a small landowner. The tenant thus cannot maintain his application under Section 18 as qua him Madho Dass is a small landowner.
(ii) That after the dismissal of the petition under Articles 226 and 227 of the Constitution of India by this Court, the father and the son have divided the land and the land which is the subject-matter of the tenancy of the respondent, has fallen to the share of the father and the entire land with the father being within his 'permissible area', the application for purchase must fail.
(iii) That in any event if the transfer to the son is not to be ignored and the son is to be treated as a big landowner, his reserved area has not been determined and unless that is determined, Section 18 application cannot be allowed, because the land under the tenant may fall within the reserved area and in that contingency the application under Section 18 of the Act would fail.
(iv) That by Madho Ram's transfer of his undivided share in half the land in dispute, the respondents did not become the tenants of Nanak Chand transferee.
7. The learned counsel for the respondents has controverted these contentions. We propose to deal with these contentions in the order in which they have been stated.
Contention No. 1:
8. The question whether Madho Dass had land within the 'permissible area' was settled by the Commissioner and that decision holds the field. Even the Financial Commissioner in revision, in Section 18 application was driven to the conclusion that so far as Madho Dass is concerned he is a small landowner, whose holding does not exceed the 'permissible area'. It is only vis-a-vis his son Nanak Chand, it has been held that he holds land more than the permissible area and is not a small landowner. The learned Single Judge repelled the contention of the learned counsel for the landowner that the transfer by Madho Dass to his son is to be ignored on the ground that the provisions of S. 16 of the Act were meant for the benefit of the tenants. It is on this basis that the decisions of Narula J. in Rajinder Kumar v. State of Punjab, 1967 Punj LJ 77 and of the Division Bench in Ram Singh v. Inderjit, 1969 Punj LJ 560, were distinguished. Narula J., in Rajinder Kumar's case (supra), while dealing with an application under Section 18 of the Act, observed as follows:--
'For determining the rights of a tenant under Section 18 of the Act, the alleged transfer in favour of the petitioners has to be completely ignored. This legal fiction of the deeming provision must be pursued to its logical end. The result is that in so far as the right of the tenant in his claim under Section 18 is concerned, the transfer of any part of the original holding after the 1st February, 1955, has to be treated as absolutely non-existent and it is to be deemed as if the land continued in the hands of the original landowner. The necessary consequence of the legal fiction is that in the course of determination of a tenant's petition under Section 18 of the Act, if the original landowner dies, the legal fiction must be extended to the situation which would have arisen if there had been no transfer after the 1st February, 1955, and as if the original owner had continued to own the land in dispute till the date of his death resulting in the same passing out to his heirs irrespective of the fact that it does not really go to the heirs as it was factually not a part of the estate of the deceased. In coming to this decision I have also been influenced by the provisions of Section 6 of the Act which indicate that in every relevant section prohibiting the rights of a tenant being effected by transfer of proprietary interest by the landlord, an exception has always been carved out in respect of transfers by inheritance. The whole scheme of the Act appears to be that whenever change in the situation results from inheritance, it is the changed situation which must be taken into account for determining the rights of a tenant till the tenant actually acquires the rights bestowed on him under the Act.'
9. These observations are unexceptionable and we respectfully agree with the same. However, this decision does not solve the problem. The problem has to be viewed from two standpoints: (a) Madho Dass is a big landowner and (b) Madho Dass is a small landowner. In case we proceed on the basis that Madho Dass is a big landowner, any transfer of his surplus area would be hit by Sections 6 and 16 of the Act. Any transfer of his permissible area would not be so hit. Similarly, if he is a small landowner, any transfer made by him will not be hit by Section 6 or Section 16. It is no doubt true that Sections 6 and 16 are very widely worded and if they are read divorced from the other provisions of the Act, they would cover all transfers whether by big landowners or small landowners. But as observed by their Lordships of the Supreme Court in Gurbax Singh v. State of Punjab, 1967 Punj LJ 31=(AIR 1967 SC 502). 'the two concepts on which the entire Act revolves are the 'permissible area' and the 'surplus area'.' Both these expressions have reference in fact to a big landowner because a small landowner whose land is within the permissible area is exempted from the operation of the Act, excepting in the matter of eviction of tenants. However, the fact still remains whether the transfer is valid or not. There is no provision in the Act which makes the transfer per se invalid but the transfer is rendered ineffective so far as the rights of a tenant are concerned by reason of Sections 6 and 16. It is also clear that a transfer of a surplus area has to yield to the utilization of that area. See section 10-A. It is also clear that any future acquisition above the permissible area is rendered null and void. See Section 19-A(2).
10. Therefore, the position boils down to this that a transfer by a landowner who holds land above the permissible area has to be ignored. The surplus area so transferred can be utilized to resettle tenants thereon. Its transfer can be pre-empted and so also it can be acquired by purchase by the tenant thereon under Section 18. It is not open to the transferee to say vis-a-vis the surplus area that he is a small landowner. The position with regard to the permissible area is different. If there is a transfer out of this permissible area to a person who is a small landowner, he too is to be treated as a small landowner and the various provisions of the Act which do not cover the case of a small landowner will not come into play. Most of the provisions of the Act have been enacted to cover the area which is surplus. But in case the transfer is to a person who holds land within the permissible area by a small landowner out of his permissible area, which makes the transferee a big landowner, i.e., a land-holder holding in excess of the permissible area by reason of the transfer, the consequences envisaged by Section 19-B come into play and in his case surplus area has to be determined.
11. Reverting to the present case and keeping in view the above principles, it will appear that finally it was concluded that Madho Dass was a small landowner; in other words, he held land within the permissible area. He transferred half of his land to his son. The area transferred to the son exceeds the permissible limit so far as his son is concerned. In other words, the son became a big landowner. Therefore, the provisions of Section 19-B come into play. In our opinion, therefore, the learned Single Judge was right in repelling the first contention. The rule laid down by Naruala J. has no application to the facts of the present case.
Contention No. 2:
12. So far as the second contention is concerned, it was not raised before the Revenue authorities. The facts alleged, on the basis of which the contention proceeds, have to be ascertained after hearing the opposite party and giving the opposite party an opportunity to disprove those facts. In this situation, we would not pronounce upon the validity of the contention. The view which we are ultimately taking in this case may give an opportunity to the appellants to urge this contention before the Revenue Authorities and it will be for them to determine it after recording evidence and hearing both the parties. In view of the above observations, we repel the second contention.
Contention No. 3:
13. So far as the third contention is concerned, Mr. Dhingra, learned counsel for the appellants, is on firm ground. The contention is that the land which is in the hands of Nanak Chand cannot be acquired by purchase under Section 18 of the Act unless in his case the permissible area has been determined in accordance with the provisions of the Act. This matter fell for consideration in Jee Ram v. Govind, L. P. A. No. 760 of 1970, decided by us on 20-9-1971 (Punj & Har) and for the reasons recorded therein it must be held that the tenants' applications for purchase under Section 18 have to remain in abeyance till the Collector reserves the 'permissible area' vis-a-vis Nanak Chand. In this view of the matter, the learned Single Judge could not dismiss the petition. The petition had to be allowed and a direction had to be issued to the Collector to reserve the area of the appellant Nanak Chand in accordance with law.
Contention No. 4:
14. So far as the fourth contention is concerned, the question that has to be determined is whether the respondent became a tenant of Nanak Chand? Admittedly, the respondent was the tenant of Madho Dass. Madho Dass parted with undivided half of his land to his son Nanak Chand. The result was that Nanak Chand became a joint owner with Madho Dass. It is well established principle of law that in order to bring about the relationship of landlord and tenant there has to be a contract between the owner of the land and the person inducted thereon as a tenant. It is also true that this relationship can also be brought about by operation of law. In the present case the relationship of landlord and tenant between the respondent and Nanak Chand did not come into being by operation of law. There is also no contract between Nanak Chand and the respondent. The only basis on which the learned counsel for the respondent claims that this relationship came into being is the joint application for eviction of the respondent by Madho Dass and Nanak Chand. It is urged on the basis of this application that the respondent became the tenant of Nanak Chand. It is no doubt true that in this application it was clearly stated that the respondent was the tenant under Madho Dass and possibly the joint application was made because the revenue authorities has entered the respondent as tenant under both the joint owners. But there is no evidence that the respondent attorned to Nanak Chand. In this situation it is difficult to hold that there was any jural relationship of landlord and tenant between the respondent and Nanak Chand.
15. The last contention of the learned counsel is that the father and the son have divided the land and the land forming the subject-matter of the tenancy of the respondent has fallen to the share of the father. This is a matter on which there is no evidence before us. This allegation is not even supported by an affidavit. We, therefore, cannot express any opinion on this matter. We reject this contention on the ground that it cannot be allowed to be raised and determined without the requisite material being there in a Letters Patent Appeal.
16. For the reasons recorded above, we allow this appeal, set aside the judgment of the learned single Judge and allow the petition of the appellants under Arts. 226 and 227 of the Constitution of India and quash the order of the Financial Commissioner. We, however, leave the parties to bear their own costs.
17. Appeal allowed.