S.S. Sandhawalia, C.J.
1. Whether a tenant statutorily re-settled on agricultural land comprised in the surplus area of the original big landowner is to be fictionally deemed to become the tenant of such a landowner, despite the fact that the land had been sold much earlier to a vendee who was a small landowner is the somewhat intricate question which has necessitated this reference to the Full Bench. Even more pointedly at issue is the correctness of the view in Jagdish and Santu v. State of Haryana, 1980 Punj LJ 398 and its discordance with the earlier Full Bench in Chandi Ram V. State of Punjab, 1974 Punj LJ 251 : (AIR 1974 Punj 243).
2. The issue aforesaid is the common link in these three writ petitions and specifically arises in the context of the tenant's right of statutory purchase under Section 18 of the Punjab Security of land Tenures Act (hereinafter called and Act). It suffices to refer to the facts in C. W. P. No. 32/1980 Chander Bhan v. Financial Commissioner, Haryana. Madan Gopal respondent No. 9 was a big landowner who had sold the land in dispute to respondents Nos. 2 to 8 vide registered sale deed executed way back on the 30th of October, 1958. Later this area measuring 3 acres comprised in Killa Nos. 11, 12 and 14 of rectangle No. 9 situated at village Sewari was declared surplus in the hands of Madan Gopal respondent in the year 1961. It calls for pointed mention that the sale by Madan Gopal in favour of respondents Nos. 2 to 8 who admittedly were small landowners was ignored for purpose of the determination of his surplus area by virtue of the provisions of Section 10-A of the Act, Chander Bhan petitioner who was an ejected tenant was re-settled on the aforesaid surplus area in accordance with the utilisation scheme and its possession was delivered to him on the 12th of June, 1964. On the completion of six years of his tenancy he preferred an application under Section 18 of the Act to the Prescribed Authority for its purchase. This application was dismissed by the Assistant Collector, Ist Grade, Gurgaon (the Prescribed Authority) by his order dated the 11th December, 1972, primarily on the ground that the transferees of Madan Gopal (who stood recorded as owners in revenue record) were small landowners and, therefore, the applicant did not satisfy the pre-condition of being the tenant of a big landowner prescribed by Section 18. The dismissal of the application was upheld in appeal by the Commissioner and in revision by the Financial Commissioner. He has then filed the present writ petition for quashing the impugned orders of the revenue authorities. The connected C. W. P. No. 33 of 1980 has been preferred by Jai Parshad another tenant of Madan Gopal whose application for statutory purchase of land over which he was re-settled as ejected tenant was dismissed on similar grounds.
3. C. W. P. No. 2438 of 1980 Ram Singh and others v. F. C. Haryana--presents the reverse situation. Therein the application under Section 18 of the Act of Ram Sarup, a re-settled tenant on the surplus land of Madan Gopal was allowed at the revisional stage in accordance with Jagdish and Santu's case (1980 Punj LJ 398). The transferees of Madan Gopal have preferred this writ petition for quashing the order of the Financial Commissioner.
4. Inevitably the controversy here would revolve around the provisions Section 18 of the Act and it is apt to read the relevant portion thereof:--
'18. (I) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a landowner other than a small land owner-
(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 this tenancy immediately before ejectment and immediately after restoring 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 the ejectment, shall be entitled to purchase from the landowner the land so held by him but not included in the reserved area of the landowner, 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 intend 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 is actual occupation shall have the right to pre-empt the sale. * * * * '
5. Before adverting to the other statutory provisions and the maze of precedent, it is refreshing to examine the larger purposes of the conferment of the right of statutory purchase, by Section 18 of the Act. Was it the legislative intent that any and every tenant of an agricultural holding should be converted into its owner? The language of Section 18 and the other provisions of the Act do not seem to exhibit any such omnibus radical purpose. The larger triple object of the Act patently was to impose a ceiling on inordinately large holdings, to provide security of tenure to the tenants (as the very name of the statute indicates), including the right to be re-settled if ejected and thirdly to confer a right of purchase in strictitude only with regard to the surplus area of a big landowner. It would thus appear that the provisions of the Act as originally enforced in 1953 and its subsequent amendment took the middle road between the extremes of absolute laissez-faire to own agricultural land without any limits, against the other extreme of divesting the lawful owner of the land and substituting the tillers thereof in their place. It was, therefore, that the right of statutory purchase under Section 18 was limited and hedged with two significant pre-conditions. This right was allowed only as against a big landowner. The small landowners below the ceiling limits were absolutely protected against it, however long may have been the period of tenancy of their tenants. Even the big landowners were absolutely protected against this right of statutory purchase as regards the area reserved by them. Thus the right of statutory purchase by a tenant was confined strictly to the area which was above the ceiling limits and had been declared surplus in a big landowner's hands. All this manifests plainly the legislature's intent that the small landowners were completely out of the ambit of such a right and that within the ceiling limits even the big landowner was protected against any right of statutory purchase by his tenant under S. 18.
6. Now apart from the above, the right of purchase was not conferred unreservedly on any and every tenant-at-will. When originally enacted in 1953 it was only a statutory recognition of a very long standing tenancy which was sought to be allowed to ripen into ownership qua large feudal holdings. The statute, therefore, required a strict qualification of 12 years' of continuous occupation as a tenant before such a right of purchase could be exercised. Later perhaps this period was considered to be inordinately long and by an amendment it was halved to a period of 6 years. The legislature has maintained this statutory period of 6 years now for well-night 26 years. It would thus be plain that the statutory right of purchase under Section 18 of the Act is a happy compromise or a golden mean between the absolutism of passing of title in land to its tiller only, and a feudal claim to own large chunks of land unreservedly without let or hindrance. The ideal which the statute apparently wishes to promote ultimately was that of peasant proprietorship within the ceiling limits. Certainly the object of the Act was not to expropriate small peasants at the hands of tenants whom they might have been compelled to induct because of innumerable circumstances. This is why no right of purchaser was conferred qua small land holders at all or even with regard to the reserved area of big land-owners as well. The right of statutory purchase was, therefore, not intended to rob Peter and pay Paul in the sense of allowing a compulsory purchase by the tenant of a very small holding as well which would have the effect of expropriating even a peasant of his holding by a tenant, who in terms himself may well be a land holder also and sometimes quantitatively a bigger one. It is with this back drop of the legislative statute that the individual provisions thereof have now to be construed.
7. Now the core of the argument on behalf of the tenant writ petitioners projected by their learned counsel Mr. G. C. Garg rests on an apprehension of an abuse or misuse of the statute by a crafty big land-owner. It was argued that such a big landowner may successfully transfer his surplus area in favour of a small landowner thus exposing the resettled tenants to the liability of ejectment and in any case defeating his right to purchase the same on the expiry of the statutory period of 6 years.
8. The learned counsel when unable to sustain his basic stand (that the big land-owner would be barred in law from transferring any part of the surplus area on either principle or any other statutory provision) made a last ditch attempt to contend that Section 16 should be fictionally brought in and made applicable to resettled tenants also even by a process of strained construction because otherwise some of the purposes of the Act may be hindered.
9. In order to appreciate the rival contentions in the aforesaid context it is apt to read the provisions of S. 16:--
'16. Saving of tenancies from effect of mala fide transfer.
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 effected after the 1st February, 1955, shall affect the rights of the tenant thereon under this Act.'
10. Now a plain reading of the above makes it manifest that the language of Section 16 cannot possibly lend itself to the construction sought to be canvassed by Mr. G. C. Garg and is indeed categorically just opposite to his stand. It in term says that any mala fide transfer shall not adversely affect the rights of the tenant thereon. The crucial word here is 'thereof'. It necessarily flows therefrom that the tenant must be on the land at the material time in order to invoke the protection guaranteed by the statute. The word 'thereon' cannot be whimsically converted to read as an equivalent to a tenant inducted years later under the provisions of the resettlement schemes and who may not have been even remotely in contemplation when the alleged transfer was made. Section 16 to my mind was not intended to protect all the tenants which may subsequently be brought on the land (either voluntarily by the landowner or statutorily by way of resettlement) in perpetuity. Clearly the protection extended by S. 16 to a tenant was in praesenti and note de futuro. The aforesaid view receives massive support in the light of the analogous provisions of Section 6 of the Act. Herein what calls for pointed notice is that this provision was substituted by Punjab Act No. 14 of 1962, nearly seven years after the enactment of Section 16. It reads as under:--
'6. Certain previous transfers of land not to affect rights of tenants:-- No transfer of land, except a bona fide sale or mortgage with possession or a transfer resulting from inheritance made after the 15th August, 1947 and before the 2nd February, 1955, shall affect the rights of the tenant on such land under this Act.'
11. Reading the provisions of Sections 6 and 16 together it would be plain that the protection was afforded to the tenants in cultivation of the land against mala fide transfers affected after the 1st February 1955. However, later a similar protection was thought necessary against similar transfers from the date of the partition of the country. Consequently Section 6 provided for protection to the tenants on such land against transfer made after 15th August, 1947 and before 2nd February, 1955. Both Sections 6 and 16, however, categorically provide that such a protection was to be accorded to existing tenants. Section 6 uses even more explicit phraseology namely 'the rights of the tenants on such land under this Act'. Consequently the use of the word 'thereon' in Section 16 and the aforesaid language in Section 6 would leave no manner of doubt that the protection was sought to be given to an existing and known class of tenants in actual cultivation of the land and not to any future and unknown class of tenancy either under the statutory schemes of resettlement, or inducted by agreement afterwards.
12. Again Section 16 does not provide a protection which may be termed as absolute. It is confined to the specific limit that the rights of the tenants will not be affected as a result of the transfer by the land-owner. It is not as if thereby the tenant is absolutely protected or converted into an owner or vested with an inflexible right to stay on the land. Even the tenants within the ambit of Section 16 would continue to be liable to ejectment for non-payment of rent or other contingencies provided by the statute in Section 9 and 14 of the Act. It was not disputed before us that even a re-settled tenant who after having executed the kabuliatnama incurs the obligation of paying the rent to the transferee landowner would also be liable to ejectment if he contravened any of the aforesaid provisions of the statute.
13. Apart from principle, authority also does not seem to be lacking for the proposition that Section 18 stands by itself and no inroad into its provisions can be made on the basis of Section 16. The Division Bench in Jot Ram v. The Financial Commissioner. 1966 Punj LJ 787 has held in no uncertain terms that Section 16 has no application to Section 18, and that the protection envisaged by it was merely for tenants adversely affected by mala fide transfers. Section 18 was held to be complete by itself and in no way overridden by S. 16.
14. Again the suggested inference of Mr. Garg that a big landowner could not induct any tenant on the surplus area immediately after the 15th of April, 1953, when the Act came into force is neither borne out by principle nor by precedent. Plainly on that date and in many cases long thereafter the precise area surplus in the hands of a landowner may not come to be determined by the authorities. It seems vain to argue that any blanket bar was imposed on a big landowner to lease out all or any parts of his land to a tenant on the mere apprehension of some land being declared surplus in his hands. Not only a big landlord could induct a tenant on his land both before or after the declaration of surplus area but indeed if such a tenant could satisfy the requisite conditions of Section 18 he could well exercise the right of purchase also. The second proviso to Section 9-A is clearly a pointer to this effect. This provision created a bar against tenants who were closely related to the landlord from statutorily purchasing the same. The necessary corollary therefrom is that this was intended primarily to hit collusive induction of relations by big landowners as their tenants, and that the bona fide tenants inducted by the landowners who were not related would be entitled to the same rights of purchase conferred by S. 18.
15. In view of the aforesaid discussion, it seems to be plain that S. 16 cannot be stretched and strained to arrive at the fictional construction (advocated by Mr. Garg) that a statutory re-settled tenant must be imagined to have become the tenant of the original big landowner, despite the fact that the area on which he is so re-settled had long since been transferred to a small landowner-vendee.
16. Coming now to the precedent which tilts to the contrary view (and which has necessitated this reference to the langer Bench) one may straightway notice the two basic premises on which Jagdish and Santu's case 91980 Punj LJ 398) (supra) rests and examine their correctness. The learned single Judge therein first proceeded on the assumption that Section 10-A of the Act bars any transfer by a big landholder altogether and in any case if such a transfer is made the same would be non est qua the vendee. This conclusion appears to us to be erroneous and based on a mis-construction of Section 10A as authoritatively construed. It is not that all transfers by big landowners are illegal or barred by the aforesaid provision. A plain reading of sub-sections (b) and (c) of Section 10A would indicate that the law merely provides that such transfers would be ignored if they come in the way of the utilisation of the surplus land for the re-settlement of tenants or for the purposes of the declaration of surplus are in the hands of a big landowner. Indeed within this jurisdiction this aspect is so well settled that even Mr. Garg fairly conceded that there was neither a legal bar to the transfer of a surplus area by a big landowner nor could such a transaction be deemed as void ab initio or non est. However, we are not at all basing ourselves on any concession but are inclined to the view both on the language of Section 10A and the precedents of this Court holding to the same effect which were not even remotely challenged before us. It suffices to refer to the following observations of the Division Bench in State of Punjab v. Shamsher Singh, 1966 Punj LJ 16.
'* * *. The Act does not invalidate alienations of an area from the holding of a landowner in which there is subsequently found to be surplus area, and all that it does is to provide in Section 10-A that the total holding of the landowner, ignoring the alienation or alienations, will be taken into consideration for determination of permissible area and surplus area. There is nothing in the Act which deprived the landowner of his right to dispose of any part of his holding simply because subsequently it may be found that part of his holding comes to be surplus area.'
It would thus be plain that the fundamental premises underlying Santu's case that transfers by big landowners were under a blanket bar and any such transfer, if made, was non est cannot hold water on a close analysis.
17. Secondly he learned single Judge in Santu's case firmly look the view that no provision of law existed to indicate that the re-settled tenant on the surplus area would become the tenant of the transferee to whom it had been sold by the big landowner before such re-settlement. There observations and the inevitable conclusions therefrom appeared to us as having been rendered per incuriam. Counsel for the parties were apparently remiss in not bringing to the notice of the learned single Judge the pivotal provision of rule 20-C in the basic set of statutory provisions with regard to the re-settlement of tenants. This reads as under :--
'R. 20-C. Conditions of resettlement: The tenant, who is resettled under this Part-
(a) shall be the tenant of the land-owner in whose name the land in question stands in the revenue records;
(b) shall be liable to pay the same amount of rent as is customary in that estate for such lands subject to the maximum fixed under Section 12 of the Act: and
(c) shall in respect of the land upon which he is resettled execute a Qabuliyat or a Patta as given in annexure 'C' appended to the Punjab Security of Land Tenures Rules. 1953, in favour of the landowner before he is put in possession of the land.'
Plainly enough the aforesaid provisions not only recognised the factum of a re-settled tenant being the tenant of the transferee landowner but further provide a statutory obligation of attornment to such a transferee as his land-lord. Sub-rule (c) obliges such a resettled tenant to execute a Qabuliat Nama in favour of the transferee land-owner who may be recorded as the owner of the land in the revenue papers. The tenant thus comes under a legal obligation to tender the rent for the land to the transferee as his landlord. Inevitably he would incur the penalty of ejectment under Section 9 if he fails or refuses to pay rent to the landlord in whose favour he has executed a Qabuliat Nama. Therefore it is more than plain that apart from the principle that a tenant inducted or re-settled on the land would necessarily be the tenant of the owner of such land (and not fictionally of his predecessors-in-interest) there is a categoric statutory recognition of this situation. The second basis rationale in Santu's case thus appears to us as equally unsustainable.
18. Lastly the whole tenor of Santu's case in our view runs counter to the core and gist of the ratio of the Full Bench in Chandi Ram's case (AIR 1974 Punj 243) (supra). The learned single Judge seemed to be aware of this fact and had attempted to distinguish this case. With respect we are unable to subscribe to that line of reasoning. It was observed that the full Bench in Chandi Ram's case had not considered whether the transfer by the big land-owner in favour of his sons was valid or invalid and the whole case was argued on the wrong assumption that the transfers were valid. However, we find that the clearest finding of the full Bench in Chandi Ram's case (AIR 1974 Punj 243) which is in consonance with the earlier settled view of this Court is in the following terms (at pp.245, 246):
'* * *. Therefore, if he satisfies the conditions which are a pre-requisite to the exercise of his right of purchase under Section 18 and one of the conditions being that the land is held by the landowner he can purchaser it. Thus for the purposes of Section 18 a tenant cannot exercise his right of purchaser by ignoring the transfer. This seems to be the true legal position with regard to all transfers made between 15th Aug. 1947 and 15th April, 1953, the date on which the Act came into force. It is significant that the transfers other than those excepted by Section 6 do not become void or inoperative so far as the transferor and the transferee are concerned but they cannot be recognised when they come in conflict with the purpose and the provisions of the Act. Bona fide sales are outside the prohibition regarding transfers under Section 6 between 15th August, 1947 and 15th April, 1953, and are also not prohibited even after the 15th April, 1953. See in this connection S. 16.'
'* * *. Therefore, if the transfers are good and pass title, the tenant who wants to exercise the right of purchase under Section 18 has to satisfy the requirements of that provision and one of the requirements of the same is that and land which he seeks to purchase is held by a 'landowner'. In all the present cases and lands and owned by small landowners and are not held by a landowner, and therefore the tenants cannot purchase the same. They can only purchase the same if the transfers by which the lands have vested in the small landowners are to be ignored. There is no provision under which they can be ignored for the purpose of Section 18 of the Act.'
It would be plain from above that the observations in Santu's case run counter to the binding precedent in Chandi Ram's case and it suffices to mention that no challenge to the ratio thereof was even remotely raised before us.
19. For the aforesaid reasons with respect we must hold that Santu's case (1980 Pun LJ 398) does not lay down the law correctly and is hereby overruled.
20. To conclude, the answer to the question posed at the outset is rendered in the negative and it is held that a statutory re-settled tenant would become the tenant of the small landowner vendee who had earlier purchased the same from a big landowner. Consequently being the tenant of a small landowner he would not satisfy the basic pre-requisite of Section 18 and would be disentitled to purchase the land.
21. As a necessary application of the aforesaid view C. W. P. 32/1980 Chander Bhan v. Financial Commissioner Haryana and C. W. P. 33/1980 which have been preferred by the tenants claiming the right to purchase are hereby dismissed. C. W. P. 2438 of 1980 which challenges the purchase of land by the tenants under Section 18 in consonance with Jagdish and Santu's case (1980 Punj LJ 398) is hereby allowed and the impugned order of the Financial Commissioner is hereby set aside.
22. In view of the conflict of the precedent and the somewhat intricate issues involved the parties are left to bear their own costs.
23. Order accordingly