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Rajkumar Rajinder Singh and ors. Vs. Lieutenant Governor and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. Nos. 15 of 1962 and 2, 3, 4, 8 and 16 of 1963
Judge
Reported inAIR1965HP41
ActsTenancy Law; ;Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954 - Section 27(1); ;Constitution of India - Article 226
AppellantRajkumar Rajinder Singh and ors.
RespondentLieutenant Governor and ors.
Appellant Advocate Sarvshri Mohan Lal and; Hira Singh, Advs.
Respondent Advocate K.C. Pandit, Govt. Adv.
DispositionPetition allowed
Cases ReferredState of U. P. v. Mohammad Nooh
Excerpt:
- .....and interest of such owner in such land shall hedeemed to nave been transferred and vested in the state government free from ail encumbrances. (2) nothing contained in sub-section (1) shall apply in respect of such land which is under the personal cultivation of the landowner. (3) the landowner whose rights are acquired under sub-section (1) by the state government, shall be entitled to receive compensation which shall be determined by the compensation officer having regard to sections 71 and 18 of this act, in accordance with the provisions of schedule ii but in the case of such occupancy tenant who is liable to pay rent in terms of land revenue or the multiple of land revenue, the compensation payable to his landowner shall be computed in accordance with schedule 1. (4) the right,.....
Judgment:

Om Parkash, J.C.

1. This order will dispose of Civil Writ Petition No. 15 of 1962 and Civil Writ Petitions Nos. 2, a, 4, 8 and 16 of 1963. The important question of law, involved in these civil writ petitions, relates to the Interpretation of Section 27 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, (hereinafter referred to as the Abolition Act). That section reads as under:--

'(1) Notwithstanding anything contained in the foregoing provisions of this Chapter, a landowner who holds land, the annual land revenue of which exceeds Rs. 125/- per year the right, title and interest of such owner in such land shall hedeemed to nave been transferred and vested in the State Government free from ail encumbrances.

(2) Nothing contained in Sub-section (1) shall apply in respect of such land which is under the personal cultivation of the landowner.

(3) The landowner whose rights are acquired under Sub-section (1) by the State Government, shall be entitled to receive compensation which shall be determined by the Compensation Officer having regard to Sections 71 and 18 of this Act, in accordance with the provisions of Schedule II but in the case of such occupancy tenant who is liable to pay rent in terms of land revenue or the multiple of land revenue, the compensation payable to his landowner shall be computed in accordance with Schedule 1.

(4) The right, title and interest of the landowner acquired under Sub-section (1) or (2) shall be transferred by the State Government on the payment of compensation in accordance with Schedule 1 to such tenant who cultivates such land.

(5) The state Government shall give rehabilitation grant according to the rules framed under this Act, to such small landowner whose right, title and interest have been extinguished and who does not have any other means of livelihood.'

2. The question, about the interpretation of Section 27, in the writ petitions, has arisen in the following circumstances:--

3. The joint Secretary (Revenue), Himachal Pradesh, had issued instructions, to the Collectors of the Districts, asking them to direct, the revenue staff, working under them, to enter and sanction mutations of transfer of ownership, in favour of the state Government, of lands, owned by landowners who paid annual land-revenue exceeding Rs. 125/-. The instructions, explained that, according to tne provisions of Section 27 of the Abolition Act, the right, title and interest of such landowners, in the lands, excepting lands, under their personal cultivation, stood transferred to, and vested in, the State Government, from the date of the enforcement of the Abolition Act, namely, 26th January, 1955. In pursuance of the above instructions, the ownership of the lands held By the petitioners, was transferred to and mutations of transfer of ownership, effected, In favour of the State Government. The petitioners filed the present writ petitions, under Article 226 of the Constitution of India, questioning the validity of the mutations, transferring the ownership of their lands, in favour of the State Government. The main plea of the petitioners is that a landowner's rights in land can vest in the state Government, under Section 27(1) of the Abolition Act only, after compensation payable to the landowner, for those rights, has been determined and paid and that, as in the present cases, the mutations of transfer of ownership rights were sanctioned, without even determination of compensation, they were without any basis, without jurisdiction and illegal. The petitioners have raised other pleas also; but it is not necessary to set out those pleas and to give a decision thereon, as in my opinion, the petitioners are entitled to succeed on the basis of their main plea and the mutations of transfer of ownership rights are liable to be quashed on that plea, alone.

4. The petitions have! been opposed on behalf of the respondents, it is not denied that compensation, payable to the petitioners, for the vesting of their ownership rights, was neither determined nor paid, before the sanctioning of the mutations of transfer of ownership; but it is denied that the ownership rights had not vested in the State Government at the time of the sanctioning of the mutations and that they were Illegally sanctioned. The contention, on behalf of the respondents, is that ownership rights of a landowner, who holds lands, the annual land revenue of which exceeds Rs. 125/- automatically, vest in the State Government, after the enforcement of the Abolition Act, and that such vesting does not depend on the determination of compensation or its payment, though the State Government is bound to pay the prescribed compensation, after the vesting of the ownership rights.

5. The question, which requires decision in the petitions, is as to when the rights of a landowner, in land, vest in the State Government, under Section 27(1) of the Abolition Act. The provisions of Section 27 have already been set forth. It will have been noticed that these provisions do not specifically state when the rights of a landowner are to be deemed to nave been transferred and vested in the State Government. The question, as to when the right, title and interest of a landowner, in land, are extinguished, under Section 27 of the Abolition Act, was debated, before this Court, on a previous occasion, in Rajkumar Rajender Singh v. Land Acquisition Officer, Civil Writ Petn. No. 11 of 1962, D/- 6-3-1963 (Him Pra). My learned predecessor, the Hon'ble Mr. Justice C. B. Capoor, did not give a final decision on that question; but he was Inclined to take the view that a harmonious construction of the various sub-sections of Section 27 leads to the inference that the determination of the amount of compensation is sine qua non to the extinction of the right, title and interest of a landowner in his land. I am, in respectful agreement, with the above view.

6. Sub-section (2) of Section 27 excludes, from the operation of Sub-section (1), land, which is under the personal cultivation of a landowner. The landowner will be able to avail himself of the benefit of Sub-section (2), only if he has notice before the actual vesting of his proprietary rights in the state Government. If there be automatic vesting of his rights, without notice, the protection afforded by Sub-section (2) to a landowner, may become useless in most cases. Of course, there will be entries in tne revenue records whether a particular piece of land is under the personal cultivation of a landowner. But those entries may be incorrect. The landowner should have an opportunity to prove the incorrectness of such entries, by showing that a particular piece of land, though shown in the revenue records, under the cultivation of a tenant, was, under his personal cultivation.

7. The Legislature has used, in Sub-sections (3) and (4) of Section 27, the word 'acquired', for the transferring and vesting of the rights of a landowner in the land, in the State Government. Land is, also, acquired by, and vests in, the Government, under the Land Acquisition Act. A perusal of the various provisions of that Act indicates that, normally, land vests in the Government after compensation, payable to the interested persons, has been determined. Section 4 of that Act provides that the appropriate Government shall publish a notification in the Official Gazette that a particular land is nicely to be needed for a public purpose and that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the locality. After hearing objections, if any, a declaration that the land is needed tor a public purpose is to be issued under Section 6 of the Act. Section 9(1) of the Act enjoins upon the Collector to cause public notice to be given at convenient places, stating that the Government intends to take possession of the land and that claims to compensation for all interests in the land may be made to him. Sub-section (2) of Section 9 directs the Collector to get individual notices served on the persons interested.

Objections, filed by the interested persons, are heard, and after enquiry, an award is made, by the Collector, determining, amongst other things, compensation, payable for the land, vide Section 11 of the Act. Except in cases of urgency, provided for in Section 17 of the Act, possession of the land is taken, and it vests in the Government, after the award, determining compensation, under Section 11, has been made, vide Section 16 of the Act. It is clear, from the aforesaid provisions of the Land Acquisition Act, that wide publicity is given to the acquisition proceedings and ample opportunity is afforded to the persons interested to lodge their objections and that, ordinarily, the land, acquired, vests in the Government, after compensation has been determined, it would not be unreasonable to assume that the Legislature, which has, advisedly used the word 'acquired' in Sub-sections (3) and (4) of Section 27 of the Abolition Act, intended that, like the acquisition and vesting of land under the Land Acquisition Act, the rights of a landowner should vest in the State Government, under Section 27(1), after the determination of compensation, on due notice to him.

8. Another point deserves consideration. Section 11 of the Abolition Act confers, on a tenant, the right to acquire on payment of compensation the right, title and interest of the landowner, in the land of his tenancy. According to the provisions' of that section, the right, title and interest of the landowner vest in the tenant, only after compensation has been determined and the landowner afforded an opportunity to file objections. It can reasonably be concluded that the Legislature did not intend to lay down a different principle with respect to the acquisition of the right, title and interest of a landowner, under Section 27 (1) of the Abolition Act.

9. Even if it be assumed that Sub-section (1) of: Section 27 is capable of two interpretations--that the vesting of ownership rights of a landowner, in the State Government, is automatic or that it takes place only after the determination of compensation, after due notice--the interpretation, favourable to the landowner, as against the State Government, should be accepted, as the provisions of the afore said sub-section are of a drastic nature and make great inroads on the rights of a landowner. In this view of the matter, the interpretation that a landowner's rights will vest only after compensation has been determined, should be preferred, out of the two interpretations, it is well-settled that

'In determining either the general object of the Legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and, legal principles, should, in all cases of doubtful significance, be presumed to be the true one'

vide Maxwell on Interpretation of Statutes, Eleventh Edition, page 183. In the instant cases, if it be taken, that the provisions of Section 27 of the Abolition Act, as to when the right, title and interest of a landwoner vest in the State Government, are not clear and explicit, but are of doubtful significance, then, according to the above principle of interpretation, it should be assumed that the Legislature intended that the vesting should take place after the determination of compensation, after due notice, as such an intention is in accord with the principles of natural justice.

10. For all the above reasons, I am of the opinion that the right, title and interest of a landowner vest, in the State Government, under Sub-section (1) of Section 27 of the Abolition Act, only after compensation payable to him, has been determined, after due notice, in so holding, the I existence of other conditions, specified in Sub-section (1), has been assumed.

11. It is admitted that, in the present cases, the compensation, payable to the petitioners, for their right, title and interest, in the lands, was not determined, before the mutations, vesting and transferring the ownership rights, in the State Government, were sanctioned. It follows that the mutations of transfer of ownership were sanstioned, without any basis as the ownership rights had not vested in the State Government at the time of the sanctioning of the mutations. The mutations of transfer of ownership were sanctioned without jurisdiction, were illegal and are liable to be quashed.

12. Before parting with the cases, a preliminary objection, raised on behalf of the respondents, against the maintainability of the writ petitions, may be noticed. It was contended that the petitioners had an adequate, alternative remedy in the form of an appeal against the order, sanctioning the mutation of transfer of ownership, and that, as the petitioners had failed to avail of that remedy, before coming to this court, they were disentitled, to seek relief, under Article 226 of the Constitution. There are two answers to the preliminary objection, in the first place, the principle that a Court will not Issue a prerogative writ when an adequate, alternative remedy was available, does not apply where a party has come to the Court, as in the present cases, with an allegation that his fundamental right has been infringed and sought relief under Article 226 of the Constitution, vide Himmatlal Harilal Mehta v. State of Madhya Pradesh, AIR 1954 SC 403. Reference may also be made to thefollowing observations of their Lordships, in State of U. P. v. Mohammad Nooh, AIR 1958 SC 86:--

'There is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. Provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law.'

13. In the second place, in the circumstances of the present cases, the remedy of appeal, available to the petitioners, was not an adequate and effective remedy but was only illusory. The appeal against the order, sanctioning the mutation, lay to the Collector, the very officer, in pursuance of Whose general directions, the mutations were entered and sanctioned. It would have been futile for the petitioners to have lodged appeals to the Collector. This Court cannot refuse to exercise its discretion to issue writs, under Article 220 of the Constitution, in the present cases, on the ground, that an alternative remedy existed as that remedy was not effective but was only illusory. The preliminary objection, urged on behalf of the respondents, is without substance and is overruled.

14. In conclusion, all the six writ petitions are allowed and It is ordered that, in each of the writ petitions, (1) a writ of certiorari be issued, quashing the order, sanctioning the mutation, transferring the right, title and interest of the petitioner, in the name of the State Government and (2) a writ of mandamus be issued, directing the respondent or the respondents, as the case may be, to restore status quo ante, with respect to the ownership off the land of the petitioner, and to take or to cause to be taken steps for determination of compensation, by the Compensation Officer, after due notice, to the effect whether the right, title and interest of the petitioner, in the land, are liable to be transferred and vested in the state Government and what amount of compensation is payable to him, in this connection.

15. This order will be read in all the six writ petitions No. 15 of 1962 and Nos. 2, 3, 4, 3 and 16 of 1963.

16. As the point, decided in the writ petitions, is of first impression, the parties are left to bear their own costs in all the writ petitions.


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