N. P. Singh, J. - (1.) The original appellant held lands in village Guru Sar Sainwala, District Bhatinda. Out of which 218 kanals of land were declared surplus under the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as the Pepsu Act). However, the surplus land so declared was never utilised by the State Government and remained in possession of the appellant.
(2.) The Punjab Land Reforms Act, 1972 (hereinafter referred to as the Punjab Act) came into force with effect from 2nd April, 1973, the appointed date fixed under the Act being 24th January, 1971. Fresh steps were taken for declaring the lands held by the appellants as surplus. The appellant filed objection saying that on the relevant date he had four adult sons namely Hardial Singh, Gurucharan Singh, Gurbanta Singh and Gurdial Singh and as such there was no surplus land held by him. It appears that the Secretary, Department of Revenue, issued a letter to the Collector of the District, directing that the immediate possession of 218 kanals which had been declared surplus in the year 1961-62 under the Pepsu Act be taken. Proceedings under Section 8 and 9 of the Punjab Act were also initiated directing the appellant to hand over the possession of the surplus land declared under the old Act. Thereafter a writ petition was filed on behalf of the appellant questioning the validity of the action of the respondents to the said petition, in initiating proceedings for taking possession of the lands which had been declared surplus under the old Pepsu Act and possession whereof had not been taken till the date of the coming into force of the Punjab Act. The writ petition was dismissed by the High Court on 3-9-1974 in limine. However, this Court granted leave to appeal giving rise to the present appeal which in due course has been referred to the Constitution Bench.
(3.) Section 3 of the Pepsu Act fixed the permissible limit for holding the land at thirty standard acres. Sub-section (2) of Section 3 provided the procedure for computing the permissible limit under sub-section (1) of Section 3. In view of Section 5 every landowner owning land exceeding thirty standard acres was entitled to select for personal cultivation from the land held by him as a landowner which was to be reserved for his personal cultivation. Section 6 required the Collector to notify in such form and manner as may be prescribed the particulars of all lands so reserved for personal cultivation of the landowner concerned under Section 5 aforesaid. Section 32-E which is relevant provided:- "32.E. Vesting of surplus area in the State Government - Notwithstanding anything to the contrary contained in any law, custom or usage for the time being in force, and subject to the provisions of Chapter IV after the date on which the final statement in respect of a landowner or tenant published in the Official Gazette, then - (a) in the case of the surplus area of a landowner, or in the case of the surplus area of a tenant which is not included within the permissible limit of the landowner such area shall, on the date on which possession thereof is taken by or on behalf of the State Government, be deemed to have been acquired by the State Government for a public purpose and all rights, title and interest including the contingent interest, if any, recognised by any law, custom or usage for the time being in force of all persons in such land shall be extinguished, and such rights title and interest shall vest in the State Government free from encumbrances created by any person; and (b) in the case of the surplus area of a tenant which is included within the permissible limits of the landowner, the right and interest of the tenant in such area shall stand terminated. Provided that, for the purposes of clause (a), where any land falling within the surplus area is mortgaged with possession. Only the mortgage rights shall vest in the State Government". Section 32-F enabled the Collector to take possession of the surplus area so declared:- "32.F. Power to take possession of surplus area - (1) The Collector may, by order in writing, at any time after the date on which the final statement in respect of a landowner or tenant is published in the Official Gazette, direct the landowner or the tenant or any other person in possession thereof within ten days of the service of the order on him to such person as may be specified in the order. (2) If the landowner or the tenant or any other person in possession of the surplus area refuses or fails without reasonable cause to comply with the order made under sub-section (1), the Collector may take possession of the surplus area and may for that purpose use such force as may be necessary". On a plain reading of clause (a) of Section 32E aforesaid it appears that in case any surplus area of the landowner which is not included within the permissible limit of such landowner 'such area shall, on the date on which possession thereof is taken by or on behalf of the State Government, be deemed to have been acquired' by the State Government for public purpose and all rights, title and interest of all persons in such land shall be extinguished and such rights title and interest shall vest in the State Government free from encumbrances. In other words, in view of the aforesaid statutory provision, only when the possession of the land which has been declared as surplus area is taken over by the State Government, then only it shall be deemed that such surplus area has been acquired by the State Government and all rights, title and interest of person concerned in such land are extinguished and vest in the State Government. As such if the possession of any surplus area of landowner has not been taken by or on behalf of the State Government, it shall not be deemed that such surplus area has been acquired and title of the landowner has been extinguished.;