Satluj Jal Vidyut Nigam Vs. Raj Kumar Rajinder Singh (Dead) Through LRS. & Ors. [September 24, 2018]

Satluj Jal Vidyut Nigam Vs. Raj Kumar Rajinder Singh (D) through LRS. & Ors.

[Civil Appeal No. 9871 of 2018 Arising Out of S.L.P. [C] No.23292 of 2008]

[C.A. No.9874 of 2018 @ Special Leave Petition [C] No.9281 of 2014]

[C.A. No. 9875 of 2018 @ Special Leave Petition [C] No.9284 of 2014]

[C.A. No.9876 of 2018 @ Special Leave Petition [C] No.9288 of 2014]

[C.A. No. 9877 of 2018 @ Special Leave Petition [C] No.9289 of 2014]

[C.A. No. 9878 of 2018 @ Special Leave Petition [C] No.9287 of 2014]

[C.A. No. 9879 of 2018 @ Special Leave Petition [C] No.9285 of 2014]

[C.A. No. 9880 of 2018 @ Special Leave Petition [C] No.9283 of 2014]

[C.A. Nos. 987273 of 2018 @ Special Leave Petition [C] Nos. 2253922540 of 2008]

ARUN MISHRA, J.

1. Leave granted.

2. The question involved is whether after the abolition of Jagirs by virtue of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter referred to as 'the Abolition Act'), the late Jagirdar or his legal representatives could have claimed the compensation on the land acquisition being made particularly when land has vested in the State of Himachal Pradesh, the land was not under the personal cultivation, and particularly when they have received the compensation under the Abolition Act, apart from that had also received the compensation under the provisions of H.P. Ceiling on Land Holdings Act, 1972 (hereinafter referred to as "the Ceiling Act").

3. The facts project how a litigant has filed a slew of litigations one after the other and faced with a situation that it was likely to be dismissed, he would withdraw it; again, file it on new grounds, or having lost it, would withdraw it again at appellate stage, and in the meantime, in different proceedings by playing fraud, getting unjust enrichment by receiving compensation at the expense of public exchequer.

4. The facts in the instant case reveal that Late Rajinder Singh, son of erstwhile ruler Late Maharaja Padam Singh was Jagirdar of the land, and thus was recorded as owner of thousands of bighas of land in Tehsil Rampur, SubTehsil Nankhari and Tehsil Rohru of erstwhile Mohasu district which is presently a part of Shimla district and Tehsil Nichhar of district Kinnaur of State of Himachal Pradesh.

5. The land in village 'Jhakri' of 393 khasra numbers admeasuring 1011 bighas, 6 Biswas was declared to have vested in the State under section 27 of the Abolition Act and the intermediary Rajinder Singh as per order dated 14.11.1962 was permitted to retain only 64.12 bighas of land which was under his personal cultivation. In Himachal Pradesh, one acre comprises 5 bighas of land. Vide order dated 19.9.1964 passed by the Assistant Collector, the order of vesting was modified to the extent that he was given 13 bighas 12 Biswas of land comprised in Khatauni No.1 out of 14 Khasra numbers, i.e., 14, 122, 125, 142, 143, 165, 212, 238, 241, 288, 423, 494, 511 and 512. Some of the aforesaid survey numbers were unmeasured. However, the fact remains that the total area which was found to be under personal cultivation, was 13 bighas, 12 Biswas.

6. Late Jagirdar Rajinder Singh assailed the order of vesting dated 14.11.1962 by filing W.P. [C] No. 15/1962. Before the Judicial Commissioner who used to hear writ petitions at the relevant time, 4 held that the land which was not under personal cultivation, would not vest in the State unless and until compensation was paid.

7. Pursuant to the order of vesting, the competent authority under the Abolition Act i.e. Compensation Officer, Mahasu, vide order dated 12.4.1966 determined the compensation of Rs.28,019.45. Since the Zamindar had already received an amount of Rs.1,703.25 in excess from the tenants who had acquired proprietary rights under section 11 of the Abolition Act, same was deducted from the amount and the amount payable was found to be Rs.26,316.20 and it was actually paid on 6.5.1966.

8. As against the order passed by the Compensation Officer dated 12.4.1966, the appeal was preferred before the District Judge, Mahasu. The appeal was partly allowed and the direction which was made of deduction of Rs.1703.25 was set aside and the payment of entire Rs.28,019.45 was ordered without aforesaid deduction.

9. As against the decision of the Judicial Commissioner dated 14.11.1962, the matter travelled to this Court in C.A. Nos.11861191/ 1966. This Court held that vesting under section 27, the right, title and interest of the owner in landholding in case land revenue of the holding exceed Rs.125 per year, would vest free from all encumbrances in the State Government and the vesting is automatic and without being contingent on the happening of any other event. Compensation and rehabilitation grant can be determined and paid later. This Court in the order dated 17.9.1969 made the following observations:

"It is apparent that S.27 deals with lands the annual land revenue of which exceeds Rs.125 per year. It says in unequivocal terms that the right. title and interest of the owner in such lands shall be deemed to have been transferred land vested in the State Government free from all encumbrances. This essentially means that on the enforcement of the Act the vesting takes place automatically and without being contingent on the happening of any other event.

The High Court in the full Bench decision referred to above took the same view and was right in observing that wherever the legislature intended to defer the date of vesting such as in S.11 and 15 clear provisions were made to that effect and the reasons thereof were obvious. In 8.11 the tenant had to exercise the option to acquire the right. title and interest of the landowner.

The vesting of such rightswould necessary depends on the time of the exercise of such option. Similarly in 8.15. a future date had to be provided in view of its special provisions. We do not consider that the provisions of sub S.53 (3) and (4) of S.27 contain any indication that the vesting of rights of ownership in the Government would be dependent on the determination of compensation. The vesting takes place under subS. (1) immediately on the enforcement of the Act. Thereafter, under subS. (3) compensation has to be paid to the landowner in accordance with the provisions mentioned therein. Under sub 8(4) the State Government shall transfer the rights of ownership to a tenant who cultivates the land only on payment of compensation.

That cannot prevent or have any bearing on the vesting which takes place under sub S(1). The payment of rehabilitation grant which is provided by sub 8(5) to a small landowner strengthens the reasoning in favour of vesting being automatic and immediate under sub S(1). There can 6 be no manner of doubt that in respect of land which falls within the ambit of S.27(1) transfer and vesting of the rights of ownership to and in the Government takes place immediately on the enforcement of the Act and thereafter compensation and rehabilitation grant are payable.

For all these reasons, the appeals are allowed and the decision of the learned Judicial Commissioner is set aside. The cases are remanded to the High Court for disposal of the questions which were not decided. In view of the entire circumstances, there will be no order as to costs."

(emphasis supplied)

This Court remitted the matter to the High Court for disposal of the questions which were not decided. In particular, the question of personal cultivation of Jagirdar as that land was only saved from vesting.

10. Faced with the observation made by this Court that the land which is not under personal cultivation vested automatically in the State and as after remand the High Court was required to decide the matter in view of the said observations of this Court, Rajinder Singh prayed for withdrawal of W.P. No.15/1962 with permission to file a civil suit. The High Court vide order dated 9.7.1970 permitted to withdraw the writ petition with liberty to file a civil suit. Thus, the mandate of this Court in the order dated 17.9.1969 to decide the question of personal cultivation was avoided by the withdrawal of writ petition.

11. Late Rajinder Singh then filed Civil Suit No.15/1970 in which he took a somersault and prayed for a declaration of title and sought a declaration that the suit property was not the 'land' under Section 2(5) of the Abolition Act and as such it did not vest in the State of Himachal Pradesh. The case of personal cultivation was abandoned by him. The trial court framed the issues; whether the plaintiff was in possession of the land in dispute and whether the disputed land, in whole or in part, vested in the State Government?

The issue was also framed whether the land in dispute is covered under the definition of 'land' in the Abolition Act. What is the effect of the decision dated 12.4.1966? The issue was also framed with respect to the finality of the decision of the Compensation Officer dated 12.4.1966, and whether the suit was barred as the order had attained finality. The trial court also framed the issue with respect to the aspect whether the plaintiff had received compensation of the part of the area in dispute and, as such, estopped from filing the suit.

12. The suit 15/1970 filed in the High Court was dismissed on 26.6.1973. The High Court has held that the suit land was within the purview of the term 'land' as defined in the Abolition Act and the plaintiff was not in the personal cultivation of the said land. Hence, the entire land had vested in the State Government under section 27 of the Act on 26.1.1955, the date on which the Abolition Act came into force. It was held that the plaintiff was not the owner of the said land. The High Court has recorded the following findings:

"25. In this view of the matter I hold, that the land in dispute is decidedly land as defined in the Abolition Act and the plaintiff not being in the personal cultivation of such land, the entire of it has vested in the State Government under section 27 of the Act. The two issues are thus decided against the plaintiff.

41. In view of my decision given above for respective issues, the relief of declaration cannot be granted. The disputed land has automatically vested in the State Government under section 27 on 26th January 1955, when the Abolition Act came into force. As such the plaintiff is not the owner of such land. Since the plaintiff has not proved his "personal cultivation" for such land, the same is not exempt from vestment under subsection (2) of section 27.

The executive instructions issued by the defendants, for this reason, cannot be considered to be wrong or illegal. The plaintiff is not entitled to any relief." The High Court in C.S. No.15 of 1970 also decided issue Nos.5, 11 and 12 and held that the suit was expressly barred by estoppel and also by res judicata. The suit being for the mere declaration was not maintainable and was barred under section 34 of the Specific Relief Act, 1963.

13. Rajinder Singh filed the appeal before Division Bench of the High Court as against the judgment and decree dated 26.6.1973 of Single Judge. The first appeal was ultimately withdrawn by making a statement by his counsel that the disputed land had been acquired 9 under the provisions of section 8 of the H.P. Ceiling on Land Holdings Act, and the compensation had been paid to the appellant. In view of the subsequent event, prayer was made to withdraw the suit and appeal as it had become infructuous.

However, the High Court on 23.6.1986 permitted the appellant to withdraw the suit with permission to file a fresh suit in respect of the subject matter of the suit on the same cause of action in case there was any necessity to file such a subsequent suit, and the appeal was dismissed as infructuous. It is apparent that the appellant has accepted the factual position that land was declared surplus and he has received compensation of the disputed land under the provisions of the Ceiling Act, 1972. From which actual factual position and admission, he has tried to wriggle out falsely in the instant matter.

14. The withdrawal of suit C.S. No.15 of 1970 was aimed at defrauding the court as the trial court has held that the suit land was not personally cultivated as such, it had vested automatically in the State Government and it was the 'land' as defined in the Abolition Act and the plaintiff was estopped from filing a suit. During the pendency of the aforesaid matter in spite of the land having been vested in the State, under Abolition Act compensation was obtained second time under the provisions of the Ceiling Act, though the compensation was 10 earlier too paid to him as determined by the Compensation Officer in 1966.

15. The Ceiling Act was enacted in the year 1972 and it provided for consolidation of holding and amend the laws relating to ceiling on land holdings. Section 11 of the Act of 1972 provided that the surplus land would vest in the State, and would be deemed to have been acquired by the State Government free from all encumbrances for a public purpose on payment of a certain amount.

16. On 10.6.1980 the Collector (Ceiling) that is the SubDivisional Officer declared 10,027.5 bighas of land as surplus. It was not questioned by Rajinder Singh. Compensation was determined and also paid. The reference was made by the department that the additional land was required to be declared as surplus. On 5.9.1985, Financial Commissioner (Appeals) decided references and did not interfere in the aforesaid declaration of land as surplus, however conclusively held that additional land was required to be declared surplus. The declaration of 10,027.5 bighas of land as surplus vide order dated 10.6.1980 was not sufficient.

The case was accordingly remanded. The limited remand order also attained finality. Ultimately order was passed by the Collector, Rampur Bushahr, Distt. Shimla, on 10.11.1993. It was observed that the compensation of Rs.57,888.80 had been received for the land that had already been declared surplus 11 i.e. 10027.5 bighas. It was also held that in the order dated 10.6.1980, two units of permissible area to the landowner and his minor son were erroneously allowed, therefore, the additional area of one unit given to minor son was declared as surplus. It was held that family of Rajinder Singh was entitled only for one unit and the final draft statement was accordingly published.

17. The area in question has also declared a surplus in 1980 and acquired by State under section 11 of Ceiling Act before the land acquisition was started in 1987 and the order dated 10.6.1980 declaring 10,027.5 Bighas of land as surplus so far as Rajinder Singh was concerned attained finality as it was not questioned by him.

18. As against the order dated 10.11.1993 declaring additional approximately 9000 bighas of land as surplus, the appeal was filed, the same was dismissed by the Commissioner on 30.8.1996. Against the said appellate order revision was filed before the Financial Commissioner and the same was dismissed on 18.1.2002. On 1.8.2013 the Commissioner passed an order upholding the mutation order against which revision was filed before the Financial Commissioner. Ultimately the review petition was also dismissed as not maintainable which the appellant is stated to have questioned.

19. With respect to the present acquisition proceedings out of which appeal arises, notification under section 4 was issued on 9.1.1987 for the acquisition of land for H.P. State Electricity Board for construction of an approach road at Jhakri. The Electricity Board was later on replaced by Nathpa Jhakri Power Corporation (NJPC) and later on by the appellant Satluj Jal Vidyut Nigam. The Land Acquisition Collector passed an award on 24.2.1989 determining the rate of compensation at the rate of Rs.20,000 per bigha. However, it was observed in the award that there was a dispute about the ownership of Rajinder Singh.

Hence, it was ordered that compensation should not be disbursed in view of the pendency of ceiling proceedings. It be deposited in a bank instead of court. A reference was sought under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the LA Act'). The Reference Court vide award dated 23.7.1991 determined the compensation at the rate of Rs.1 lakh per bigha.

20. Another acquisition proceeding was initiated by issuance of notification under section 4 which was published in the Official Gazette for the acquisition of land for the purpose of construction of residential colony for the Jhakri Hydel Power Project. On 11.7.1988 amended notification under section 4 was issued. On 27.2.1991 award was passed according to the classification of the land. On 4.7.1991, a supplementary award was passed.

The references were made to the Court. The Reference Court awarded Rs.1 lakh per bigha vide award dated 27.3.1997.

21. As against the award passed by the Reference Court appeals were preferred before the High Court. It was contended that the land acquisition proceedings were commenced in collusion with the Government officials. The land stood vested in the Government under the Abolition Act. There was no question of acquiring the same. A prayer was made in the appeals to file additional documents under Order 41 Rule XXVII and to amend the written statement. The High Court dismissed the said applications along with appeals.

22. As against the dismissal of the appeals and the applications, C.A. Nos.374152 and 375357 of 2001 were filed in this Court by the appellant. They were decided on 3.5.2001. The judgment of the High Court was set aside. The applications under Order 41 Rule XXVII and Order 6 Rule XVII were allowed. This Court in the final order dated 3.5.2001 observed: "In course of hearing of the appeals it was fairly agreed by learned counsel for the parties that keeping in view the facts and circumstances of the case and the contentions raised it will be apt and proper to remand the matter to the High Court for fresh disposal taking into consideration the averments in the amendment petition and the documents filed as additional evidence.

Such an order in the fact situation of the case will serve the ends of justice. In view of the agreed position fairly stated by learned counsel for the parties and in our view, rightly, we allow these appeals, set aside the judgment of the High court which is under challenge; allow the petitions filed by the appellants under Order 6 Rule XVII CPC and under Order 41 Rule XXVII CPC and remand the matter to the High Court for fresh disposal in accordance with law after giving opportunity of hearing to the parties."

23. After the case was remitted to the High Court, appeals have been dismissed vide impugned judgment and order dated 25.2.2008. Aggrieved thereby the appeals have been preferred by Satluj Jal Vidyut Nigam.

24. The Reference Court decided 72 land reference cases wherein it was held that the respondents were neither the owner nor in possession of the land under acquisition, and the land in question stood vested in the State of Himachal Pradesh. The award was challenged by way of Regular First Appeal and the same is stated to be pending in the High Court.

25. Civil Appeals arising out of SLP [C] No.9281/2014 arise out of a common judgment dated 18.9.2013 passed by the High Court. Writ petitions were filed before the High Court by one of them by Sita Devi & Ors. being CWP No.2931/2010 with respect to a redetermination of compensation. They were decided by a common judgment and order dated 18.9.2013 and it has been held that notwithstanding the fact 15 that Rajinder Singh may not have a title, the status of the appellants had been held to be that of bona fide transferees earlier and that order has attained finality and was not questioned in appropriate proceedings. Thus, they were entitled to the redetermination of compensation under section 28A of the LA Act. Satluj Jal Vidyut Nigam has filed the appeals impugning the judgment in the year 2014.

26. It was urged on behalf of the appellant that the respondent Rajinder Singh has received compensation 3 times with respect to the same land. Firstly, in 196667 he had received a sum of Rs.28,019 as compensation due to the vesting of entire land in the State Government and the Compensation Officer had determined the same under the Abolition Act. The land, in any event, had vested in the State. The second time the compensation of Rs.57,388/had been received in the year 198081 under the Ceiling Act, 1972. For the third time, the respondent has received compensation in a sum of Rs.60 lakhs. The respondent has committed a serious fraud. It was also urged that Rajinder Singh has filed W.P. No.256/1979, the High Court dismissed the writ petition and observed that the respondent has acted unfairly knowing fully well that the land had already vested in the State and made other observations regarding successive litigations preferred by the respondent and the withdrawal of RFA No.9/1973.

27. Learned Additional Solicitor General appearing on behalf of the appellants further urged that as per the principle, fraud vitiates, the respondents are not entitled to any compensation. They could not be permitted to take advantage of the continuance of wrong entry. There was no title left with Rajinder Singh as the land had vested automatically in the State under the Abolition Act. The LAO had also directed not to pay the compensation owing to the ceiling case in which Late Rajinder Singh has already received the compensation and land had been declared surplus. The question involved is not of determination of title under sections 18 and 30 of the LA Act but the title stood extinguished is apparent from Section 27 and ceiling proceedings of which evidence has been permitted to be adduced by this Court.

Even the LAO and the Reference Court have ordered that there was no title with Rajinder Singh, as such, compensation was not to be paid. The effect of previous proceedings and the overall conduct of Rajinder Singh ought to have been taken into consideration by the High Court. The observation made by the High Court that it could not go into the question of the title of Rajinder Singh in the proceedings is wholly incorrect as it is the serious case of fraud, the title has already been adjudicated conclusively and lost in other proceedings. It was not a case of an adjudication of title in the present proceedings. The effect of Section 27 proceeding and that of ceiling Act case was required to be considered. The High Court could not have permitted the perpetuation of fraud while dismissing the first appeal after this Court has remitted the matter to it.

28. It was further urged that the observation made by the LAC in his award in 1989 not to make payment of compensation, due to ceiling case was wholly legal and valid. Even the Reference Court has held in the cases that there was no title with the respondents and the appeal against the same R.F.A. is pending in the High Court. The High Court ought to have exercised the supervisory power as there was an error apparent on the face of the record and to prevent abuse of process of law. When the principle of 'fraud vitiates' is attracted, the label of proceedings is not material and the court is bound to look into same and relegation to a remedy of the civil suit could not be said to be appropriate in the facts of the instant case.

29. It was contended by learned senior counsel on behalf of LRs. of Late Rajinder Singh that the question of the preexisting right of the State cannot be gone into in these proceedings. The land in question did not vest in the State under the Abolition Act. Even if the amendment of pleadings and additional evidence had been allowed by this Court, the preexisting right of the State over the property cannot be gone into in proceedings under section 18 or 30 of the LA Act. It was not open to the State Government to question the title of the land18 owners in reference proceedings. The State had filed an appeal against the reference order which was dismissed on 3.6.2004 as barred by limitation.

It was also contended that the land did not vest in the State as it was under personal cultivation. Under the Abolition Act, there was vesting of land which was under tenancy only. Land in question was not within the purview of the term 'land' as defined in section 2(5) in the Abolition Act, as such, there was no vesting of the same in the State. Though, 1011 bighas and 6 Biswas of land in village Jhakri vested in the State and mutationorder was made on 27.2.1962. However, certain other lands which were under personal cultivation had been excluded, later on, the Compensation Officer also passed an order determining compensation on 12.4.1966 which was in respect of tenancy land and not in respect of land under personal cultivation or the land not assessed to land revenue. Tenants have been given the rights over the land mentioned in the order dated 12.4.1966 passed by the Compensation Officer.

30. It was also contended that the land under personal cultivation was mentioned in the revenue records as 'Banjar Kadim' which could not be said to be 'land' within the meaning of Abolition Act nor it vested in the State Government. The area of Village Jhakri which was left with Rajinder Singh was 2119 bighas and 19 Biswas. The said land did not vest in the State. After remand of the case from this Court 19 under Section 27 of Abolition Act, the writ petition was withdrawn and civil suit No.15/1970 was filed and the same was dismissed by the High Court. The suit was also withdrawn in appeal as such there was no adjudication of the rights in the previous rounds of proceedings.

31. Learned counsel on behalf of the respondents further contended that at the time of land acquisition neither the land was finally declared surplus nor possession was taken under the Ceiling Act, as such it did not vest in the State unless the possession was taken. The acquisition of land under the LA Act is protected under the Ceiling Act. The statement made by the counsel on behalf of the Power of Attorneyholder of Rajinder Singh during the course of the first appeal withdrawing Suit No.15/1970 was incorrect.

As the order passed by the Collector in ceiling case declaring the land surplus had been set aside by the Financial Commissioner. As such an incorrect statement was made before the High Court; maybe it was made in ignorance of the facts. Earlier vide order dated 10.6.1980, 10027.5 bighas of land was declared surplus and vide order dated 10.11.1993, additional 9679 bighas total 19706.5 bighas was declared as surplus. Even if compensation was collected, it would not make any difference as the land did not vest in the State unless possession was taken.

32. Following questions arise for consideration:

(i) whether land has vested in State under the Abolition Act, and effect of acceptance of compensation under the said Act?

(ii) Effect of the proceedings under the Ceiling Act?

(iii) Effect of withdrawal of Civil Suit No.15/1970 in appeal.

(iv) Whether the question of right, title or interest of Late Rajinder Singh or his successors to obtain compensation can be considered in the proceedings under sections 18 and 30 of the LA Act? Particularly, on the basis of the principle "fraud vitiates".

(v) Whether the respondents who are claiming on the basis of patta /transfer made by Rajinder Singh, are bona fide transferees and entitled to compensation? Question No.1: In Re. the effect of the H.P. Abolition of Big Landed Estates, Act, 1953

33. After Independence was achieved, in order to bring the agrarian reforms, the Abolition Act was enacted in the State of Himachal Pradesh which came into force on Republic Day w.e.f. 26.1.1955.

The Abolition Act has been enacted to provide for the abolition of the big landed estates and to reform the law relating to tenancies and to make provisions for matters connected therewith in Himachal Pradesh. 'Estate', 'landowner' and 'holdings' have been defined in section 2(3) of the Abolition Act and have the meanings respectively assigned to these words in the Punjab Land Revenue Act, 1887 as in force in Himachal Pradesh immediately before 26.1.1950.

34. The terms 'estate', 'landowner' and 'holding' have been defined under sections 3(1), 3(2) and 3(3) of the Punjab Land Revenue Act, 1867are extracted hereunder:

"3. Definition: In this Act, unless there is something repugnant in the subject or context;

(1) "estate" means any area-

(a) for which a separate recordofrights has been made; or

(b) which has been separately assessed to land revenue, or would have been so assessed if the landrevenue had not been released, compounded for or redeemed; or

(2) "landowner" does not include a tenant or an assignee of land revenue, but does not include a person to whom a holding has been transferred, or an estate or holding has been let in farm, under this Act for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof , or in the enjoyment of any part of the profits of an estate;

(3) "holding" means a share or portion of an estate held by the landowner or jointly by two or more landowners."

35. Estate means any area for which a separate record of rights has been made; or which has been separately assessed to land revenue or would have been so assessed if the land revenue had not been released, compounded for or redeemed. Definition of 'landowner' does not include a tenant or an assignee of land revenue, and holding means a share or portion of an estate held by the landowner or jointly by two or more persons.

36. The word 'holding' as defined in the Punjab Land Revenue Act, 1887 would mean an estate which means any area for which a separate record of rights has been made or which has been separately assessed to land revenue, or would have been so assessed to land revenue in case it had not been released, compounded for or redeemed, or has been declared to be an estate by the State Government. Thus, expression 'holding' would include the area of an estate also if it is assessed or would have been assessed but for release, compounding or redeeming of land revenue. As per the definition of the estate in section 3(1) of the Punjab Act, estate means any area for which separate record of rights has been made. The expression landowner used in Section 27 has to be understood as defined in section 3(2) of the Punjab Act. Similarly, the definitions of 'estate' and 'holding' in the Punjab Act assume significance.

37. The 'land' has been defined in section 2(5) of the Abolition Act thus:

"(5) "land" means land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes -

(a) the sites of buildings and other structures on such land,

(b) orchards,

38. The 'landlord' has been defined in section 2(6) of Abolition Act to mean a person under whom a tenant holds land, and to whom the tenant is or but for a contract to the contrary, would be liable to pay rent for the land. Chapter II of the Abolition Act deals with the rights of occupancy of a tenant. Acquisition of proprietary rights by tenants has been dealt with in Chapter III from sections 9 to 27. Section 9 provides for the appointment of Compensation Officer. Section 11 deals with the right of the tenant to acquire the interests of the landowner.

A tenant other than a subtenant can apply under section 11 for the acquisition of right, title, and interest of the landowner in the land of tenancy held by him under the landowner. Section 12 deals with the determination of the amount of compensation payable by a tenant for the acquisition of the right, title and interest of the landowner. Section 15 deals with the acquisition by the State Government of the rights of the landowner. Same is extracted hereunder:

"15.

(1) Notwithstanding anything contained in the foregoing provisions of this Chapter but subject to the provisions of clause (d) and clause (g) of subsection (1) of Section 54, the State Government may by notification in the Gazette declare that as from such date and in respect of such area as may be specified in the notification, the right, title and interest of the landowner in the lands of any tenancy held under him by a tenant shall stand transferred to and vest in the State Government free from all encumbrances created in such lands by the landowner.

(2) With effect from the aforesaid date -

(a) the landowner shall cease to have any right to collect or to receive any rent or any share of the land revenue in respect of such lands and his liability to pay the land revenue in respect of the lands shall also cease;

(b) the tenant shall pay direct to the State Government the rent he was liable to pay to the landowners before the date of the notification; and

39. Section 16 of Abolition Act deals with payment of compensation to the landowners for the acquisition of their rights. Section 16 is extracted hereunder:

"16. The landowner whose right, title and interest in lands have been acquired by the State Government under Section 15 shall be entitled to compensation which shall be calculated as far as practicable according to the provisions of sections 12 and 13."

40. Interest on compensation is payable under section 18 of Abolition Act. Section 19 deals with the claims for compensation and determination of such claims and in case of a dispute, it has to be referred to civil court under section 20. Where the landowner is minor, it has to be deposited with the Collector or in any bank selected in this behalf by the State Government as provided in section 22. The Compensation Officer shall have the powers of a civil court under the Code of Civil Procedure for the purposes enumerated therein. Section 26 deals with the power to frame rules to carry out the purposes of the Chapter.

41. Section 27 of the Abolition Act deals with the vesting of rights of ownership in the Government. The right of the landowner whose landholding exceeds the annual land revenue of Rs.125 per year, the right, title and interest of such owner shall be deemed to be transferred and vested in the State Government free from all encumbrances. The vesting of such holding of the landowner is automatic in case revenue of the landholding is exceeded by Rs.125 per year. However, the only saving grace is provided under section 27(2) to the extent the land is under the personal cultivation of the landowner. The rights of intermediaries get automatically vested in the State Government under section 27(1), the landowner is entitled to receive compensation under section 27(3) to be determined by the Compensation Officer having regard to the provisions of sections 17 and 18 of the Abolition Act. Section 27 is extracted hereunder:

"27.

(1) Notwithstanding anything contained in the foregoing provisions of this 26 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 be deemed to have been transferred and vested in the State Government free from all encumbrances.

(2) Nothing contained in subsection (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 subsection (1) by the State Government, shall be entitled to receive compensation which shall be determined by the Compensation Officer having regard to Sections 17 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 I.

(4) The right, title and interest of the landowner acquired under subsection (1) or (2) shall be transferred by the State Government on the payment of compensation in accordance with Schedule I 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." It is apparent from section 27 that it contains nonobstante clause and it is applicable to the land as defined in section 2(5) which 27 is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture.

The definition is inclusive and wide and it covers the sites of buildings and other structures on such land, orchards, and ghasnies too. Thus, the definition of land being inclusive is very wide and in case the land revenue of the holding of Zamindar exceeds Rs.125 per year except for the land under personal cultivation, entire land holding would vest in the State Government and such vesting is automatic.

42. A reading of section 27 makes it clear that on the abolition of estates except for the land which is under personal cultivation of the landowner, vests in the State. Vesting is automatic and would not depend upon the payment of compensation and this has already been held by this Court vide order dated 17.9.1969 in the case filed by Late Rajinder Singh. It is crystal clear that vesting of the land is not confined to the land held under the tenancy right. The expression used in section 27 is "landowner" who holds the land. Thus, there is no scope for the submission that section 27 is applicable only to a land held by the tenant in tenancy.

It is applicable to all kinds of land as defined in the Abolition Act held by the landowner and the definition of the land in Abolition Act is inclusive and would include all kinds of land in a town or village which is not occupied by any site of 28 the building. Thus, all land which is not occupied by any building situated in a town or building would vest in the State and a land which has been let for agricultural purpose or for purposes subservient to agriculture or for pasture including the sites of building and other structure of the land, orchard, and ghasnies would vest in the State. Thus, it is apparent that the land which is Banjar, Abadi, Gharat, Kalhu, and GairMumkin are all covered under the definition of land.

43. The big estates were sought to be abolished by the H.P. Abolition Act. When section 27 of the Abolition Act and definition of land is read with 'holding' and 'estate' and 'landowner' as defined in the Punjab Land Revenue Act, 1887 it is clear that the land held by late Rajinder Singh definitely exceeded revenue of Rs.125 per year as is apparent from documents and various orders passed in the case. The object of the Abolition Act is to provide for the abolition of big landed estates and to bring land reform in the law relating to tenancies and to make provisions for matters connected therewith. The land holding of Late Rajinder Singh was a big estate and was definitely covered under the purview of the Act and in particular under section 27 and all the lands vested in the State except the land under his personal cultivation.

44. Thus, we are of the considered opinion that the area under personal cultivation which was saved in favour of Rajinder Singh was 29 64 bighas 12 Biswas only as specified. It is apparent from the order dated 27.2.1962 Khata No.1 Kita measuring 1011 bighas 6 Biswas vested in the ownership of Government of Himachal Pradesh in village Jhakri. In the review on 19.9.1964, there was only partial modification with respect to area 14 bighas 12 Biswas. The land revenue of land at Jakhri as apparent from Jamabandi of 195556 at the time when the Abolition Act came into force was Rs.155.58 it was more than Rs.125 as such the land which was Banjar kadim or otherwise not under personal cultivation had vested in the State.

45. Under the Abolition Act compensation was determined under the provisions of section 27(1) and was ordered to be paid by the Compensation Officer, Mahasu District, Kasumpti vide order dated 12.4.1966. Sum of Rs.28,019 had been paid to Rajinder Singh. Though payment of compensation was not a condition precedent for vesting of land it was automatic, Rajinder Singh was paid compensation also for the land mentioned in the order of Compensation Officer. Even if the compensation was not paid for some land, as that was not under personal cultivation had also automatically vested free from all encumbrances in the State.

46. The subsequent attempt made by Rajinder Singh to claim that the land was not covered under the definition of land, was wholly frivolous, unacceptable and was rightly rejected in C.S. No.15/1970 30 filed by Rajinder Singh. This Court in proceedings under section 27 of Abolition Act vide order dated 17.9.1969 ordered that the land only under personal cultivation was saved and not any other land. The finding recorded in the remand order on the question of law is binding otherwise also the position of law is what was held by this Court in the aforesaid decision.

After this Court remitted the matter for examination of the question which was the land under personal cultivation that would only be saved from vesting. To avoid rigor of the order the writ petition was withdrawn by Late Rajinder Singh with liberty to file a civil suit and Suit No.15/1970 was filed. The stand taken was that the said land was Banjar, Abadi, Gharat, Kohlu, and Gair Mumkin. The stand taken that the land was Ghasni that is wasteland and Banjar land itself indicated that the land was not under personal cultivation and thus as per the case set up in Civil Suit by the plaintiff, Rajinder Singh it was clear that he has abandoned the stand that the land was under personal cultivation and took the aforesaid stand. The said stand itself made clear that the land was not under personal cultivation, at the time of abolition and had vested in the State and we have no hesitation to arrive at the said conclusion based on the case set up by the plaintiff in the course of civil suit No.15/1970.

47. The Banjar land or Banjar Kadim is nonetheless the land as defined in section 2(5) of the Abolition Act. Apart from that, it is clear that ghasni land is also included in the definition of land, no doubt about it that growing of grass is for agriculture purpose. However, the pasture or grassland cannot be said to be under personal cultivation and such land would also vest in the State. The expression used is personal cultivation i.e. the cultivation by dint of his own labour. The agriculture is a wider term than personal cultivation and would include several aspects such as dairyfarming, the use of land as grazing, meadow or pasture land or orchard or other land or for market gardens or nursery grounds. The fructus naturales is the outcome of nature alone but such land cannot be said to be under personal cultivation as envisaged in the Abolition Act.

48. In Jadab Singh & Ors. v. The Himachal Pradesh Administration & Ors. AIR 1960 SC 1008, this Court considered the question of the abolition of estates which was declared invalid as having been passed by the State legislature which was not duly constituted. A validating Act was passed by the Parliament. This Court considered the legislature competence and constitutional validity of the Abolition Act. It was held that in view of Article 240 as it stood before its amendment by the Constitution (Seventh Amendment) Act, 1956, the Parliament was competent to enact the validating Act. The provisions of the 32 Abolition Act did not infringe Articles 19 and 31 of the Constitution of India and the Abolition Act fell within the protection of Article 31A of the Constitution and it was not open to challenge on the ground that it infringed Articles 19 and 31 of the Constitution.

The intent of the Abolition Act is that the agrarian reforms by Abolition of Big Landed Estates have to be given the full effect. Once land has vested in the State, it was not open to Rajinder Singh on the basis of continuation of wrong entries in revenue records, to claim any right, title or interest much less compensation under the Ceiling Act as well as under the provisions of the LA Act. Thus, the entire land on the condition being satisfied with the landed holdings of a landowner the annual land revenue of which is Rs.125 or more, land vested in the State and not excess part over and above the land to which the said land revenue is ascribed, with the saving of personally cultivated land.

2. In Re effect of proceedings under the Ceiling Act:

49. We advert to the question as it has relevance though it is not necessary, in view of the findings recorded that land had vested in the State under the provisions of the Abolition Act.

50. The Ceiling Act came into force in 1972 providing a ceiling on agricultural holdings. Section 11 of the Ceiling Act is extracted hereunder:

"11. Vesting of surplus area in the State Government The surplus area of a person 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 on payment of amount hereafter provided and all rights, title, and interests (including the contingent interest, if any), recognised by any law, custom or usage for the time being in force, of all persons in such area shall stand extinguished and such rights, title and interests shall vest in the State Government free from any encumbrance:

Provided that where any land within the permissible area of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee, only the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it."

51. Section 4 deals with the permissible ceiling area and section 6 defines a ceiling area in excess of the permissible area. The provisions of sections 4 and 6 are extracted hereunder:

"4. Permissible area

(1) The permissible area of a landowner or a tenant or a mortgagee with possession or partly in one capacity or partly in another of person or a family consisting of husband, wife and up to three minor children shall be in respect of

(a) land under assured irrigation capable of growing two crops in a year10 acres.

(b) land under assured irrigation capable of growing one crop in a year15 acres.

(2) The permissible area for the purposes of clause (c) of subsection (1) for the districts of Kinnaur and Lahaul and Spiti, Tehsil Pangi and SubTehsil Bharmaur of Chamba district, area of Chhota Bhangal and Bara Bhangal of Baijnath Kanungo Circle of Tehsil Palampur of Kangra district, and area of Dodra Kowar Patwar Circle of Rohru Tehsil and Pandrabis Pargana of Rampur Tehsil of Shimla district shall be 70 acres.

(3) The permissible area of a family under subsection (1) shall be increased by one fifth of the permissible area under subsections (1) and (2) for each additional minor member of a family subject to the condition that the aggregate permissible area shall not exceed twice the permissible area of family under subsections (1) and (2).

(4) Every adult son of a person shall be treated as a separate unit and he shall be entitled to the land up to the extent permissible to a family under subsections (1) and (2) subject to the condition that the aggregate land of the family and that of the separate units put together shall not exceed twice the area permissible under the said subsections:

Provided that where the separate unit owns any land, the same shall be taken into account for calculating the permissible area for that unit.

(5) If a person holds land of two or more categories described in clauses (a), (b) and (c) of subsection (1) and subsection (2) of this section then the permissible area shall be determined on the following basis:

(i) in the areas mentioned in subsection (2) of this section, one acre of land mentioned in clause (a) of subsection (1) shall count as one and a half acres of land mentioned in clause (b) of subsection (1) and seven acres of land mentioned in clause (c) of subsection (1); 1976.

(ii) in the areas other than the areas mentioned in subsection (2) of this section, one acre of land mentioned in clause (a) of subsection (1) shall count as one and a half acres of land mentioned in clause (b) of subsection (1), and three acres of land mentioned in clause (c) of subsection (1):

Provided that on the basis of ratio prescribed in clauses (i) and (ii), the permissible area shall be converted into the category of land mentioned in subsection (2) and in clause (c) of subsection (1) as the case may be, and the total area so converted shall not exceed 70 acres in case of clause (i) and 30 acres in case of clause (ii)].

(6) Where a person is a member of the family, the land held by such person together with the land held by all the members of the family shall be taken into account for the purpose of calculating the permissible area."

"6. Ceiling on landNotwithstanding anything to the contrary contained in any law, custom, usage or agreement, no person shall be entitled to hold whether as a landowner or a tenant or a mortgagee with possession or partly in one capacity and partly in another, the land within the State of Himachal Pradesh exceeding the permissible area on or after the appointed day."

52. The proceedings were initiated under the Ceiling Act and order was passed by Collector (Ceiling) on 10.6.1980 declaring 10,027 bighas 5 Biswas of land as surplus. It was mentioned in the order that the owner had taken compensation of Rs.57,888.80 which was calculated under section 14 of the Act. Voucher details have been given as follows: " V.No. Amount Date of receiving compensation 61 1862060 3.11.80 62 1090000 5.11.80 63 1500000 29.1.81 64 393565 20.3.81 65 960000 31.3.81

53. Now, the factum of withdrawal of the amount of compensation was disputed before us by contending that the compensation under the Ceiling Act had not been received. It passes comprehension that how it lies in the mouth to even contend in view of the clear statement made in the order passed by the competent authority and voucher numbers with the date on which payment had been made. Rajinder Singh did not question order dated 30.6.1980. On the contrary, reference was made by the Settlement Officer with respect to the order of the Competent Authority on the ground that his minor son was illegally allotted one unit. Financial Commissioner has taken the matter in Revision No.224/1982 against the aforesaid order.

It was pointed out by the Settlement Officer that Rajeshwar Singh son of Rajinder Singh was minor and was not entitled to any land independently but was allotted one unit by the Collector (Ceiling). He was minor on the appointed day i.e. 24.1.1971 and Rajinder Singh and his family consisting of children including minor Rajeshwar Singh 37 were entitled to only one unit of permissible area.

The Financial Commissioner in the order dated 5.9.1985 has held against Rajinder Singh that his minor son Rajeshwar Singh could not have been allotted one unit vide order of competent authority dated 10.6.1980, as such one unit more land has been allotted to the family than permissible under the ceiling law. It was also held that without enquiry transfers were held to be bona fide. Thus, the order passed by the SDO was set aside and the case was remanded to pass fresh order to declare the additional land as surplus than the one determined in the earlier order.

The order of Competent Authority dated 10.6.1980 was not questioned by Late Rajinder Singh or his family members nor the order of Financial Commissioner passed on 5.9.1985 was questioned. It was not an order in favour of Rajinder Singh as contended on behalf of the respondents but was against his interest and remand order of 5.9.1985 directing additional land to be declared surplus also has attained finality. After remand, Collector (Ceiling) has declared additional land as surplus and total 19706 bighas 5 Biswas had been declared as surplus. As against the order passed by Collector (Ceiling) dated 10.11.1993, the appeal was preferred to the Commissioner which was dismissed on 30.8.1996. Revision filed against the said order was also dismissed on 18.1.2002 by the Financial Commissioner.

54. The fact is conclusively established that land in question had been declared as surplus and compensation under the Ceiling Act had also been received, even though the land had already vested in the State under the Abolition Act. Once the disputed land had been admittedly declared surplus in Ceiling Act vide order dated 30.6.1980, there was no question of payment of compensation to Rajinder Singh or to his legal representatives in proceedings initiated later on in the year 1987 under the L.A. Act.

The Land Acquisition Collector in 1989 was justified in directing that the compensation determined should not be paid due to the effect of the Ceiling Act and that question was raised in the Reference Court also, it was incumbent upon the Reference Court to go into the aforesaid aspects. It was not fact situation that question of the title has been disputed and decided in reference proceedings but whether Rajinder Singh or his LRs. were entitled to claim compensation in view of the proceedings and that orders passed under the Abolition Act and Ceiling Act were definitely required to be gone into. Thus, we are of the considered opinion that once land has been declared surplus and compensation has been received. It was not open to receive it again in the land acquisition case.

(iii) In Re: Effect of withdrawal of C.S. No.15/1970 in appeal

55. Civil Suit No.15/1970 was dismissed on merits. Thereafter in the first appeal, it was withdrawn by Rajinder Singh before the Division Bench on 23.6.1986. Order dated 23.6.1986 passed by the High Court of withdrawal of C.S. No.15 of 1970 in first appeal No.9/1973 is extracted hereunder: "In the present appeal, the learned counsel for the appellant has given the statement that by an order dated 10.06.1980 passed by the Collector Rampur Bushahar in case State of Himachal Pradesh vs. Rajkumar Rajender Singh, under section 8 of Himachal Pradesh Land Ceiling Act, the disputed land has been acquired by the Respondent and the Appellant has been paid compensation for the same. He has further stated that in the view of this subsequent event he may be permitted to withdraw the suit and the appeal may be dismissed as having become infructuous.

It is not disputed that the land in dispute in this appeal is also the subject matter of dispute in the order dated 10.06.1980 passed by the Collector Rampur Bushahar. As the land in dispute has been acquired and the appellant has been paid the compensation for the same, therefore, we are of the view that due to the subsequent events there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter and on the same cause of action. As a result, we allow the Plaintiff to withdraw the suit with permission to file a fresh suit in respect of the subject matter of the suit on the same cause of action in case there is any necessity to file such a subsequent suit. The suit is dismissed as withdrawn and the present appeal is dismissed as having become infructuous.

The parties are left to bear their own costs of this appeal." It was stated by the counsel for Late Rajinder Singh before the High Court in RFA No.9/1973 that compensation had been received by Rajinder Singh and order had been passed on 10.6.1980 by the Collector, Rampur under the Ceiling Act. The disputed land had been acquired by the State as such, the permission was sought to withdraw the suit and it was prayed that appeal be dismissed as infructuous. In our opinion, factually it was not an incorrect statement but it was correctly made in the High Court that land had been declared surplus and compensation had been received, the fact was supported by vouchers mentioned in the order dated 10.6.1980, and it was totally frivolous contention to the contrary raised by the respondents that compensation had not been received.

It appears that the respondents have no respect for the truth and have tried to hoodwink the court at several stages by making false averments and statements to perpetrate fraud.

56. In essence, after this Court has remitted the matter to the High Court in the proceedings under the Abolition Act this Court has clearly held as per order dated 17.9.1969 in the case of Rajinder Singh that only the land under personal cultivation would be saved. Thereafter he has withdrawn the writ application of 1962, on the ground that disputed question of fact was raised in the writ application. It was in order to avoid adjudication in view observation of this Court made against interest of Rajinder Singh in aforesaid order and the fact that as the land was not under personal cultivation, the writ petition was withdrawn and thereafter in C.S. No.15/1970 that was filed in which, Rajinder Singh had abandoned the case of land being under personal cultivation. On the contrary, raised the plea that it was not the "land" at all and as such it was not within the clutches of the Abolition Act.

57. A Single Bench of the High Court dismissed the suit on merits and has recorded the finding that the land was not under personal cultivation and it had vested in the State and it was the "land" as defined in section 2(5) of the Abolition Act. Thereafter Regular First Appeal which was preferred before the Division Bench was dismissed as infructuous and suit was withdrawn by aforesaid order dated 23.6.1986 on the ground that compensation had been received under the Ceiling Act, and land has been declared surplus. It is clear that once land has been declared surplus and compensation had been paid under the Ceiling Act.

It was not the reason for withdrawal of Civil Suit No.15/1970 by the plaintiff Rajinder Singh that the land was personally cultivated by him. It was not at all open to Rajinder Singh or his LRs. to take inconsistent stands and contend in the present proceedings that land was under personal cultivation. They are estopped from doing it not only by conduct but by way of abandonment of the plea, having not taken it in C.S. No.15/1970. It 42 was not the ground made for withdrawal of suit that land was under personal cultivation. The effect is that order of vesting has attained finality even otherwise withdrawal of suit does not check running of limitation as provided in Order 23 Rule 2 CPC. It is futile and too late in the day to allow the respondent to lay such a claim.

58. As a matter of fact, the withdrawal of civil suit No.15/1970 was made on the statement of learned counsel on behalf of plaintiff Rajinder Singh that disputed land had been declared as surplus in the ceiling proceedings, compensation had been received and under the provisions of the Ceiling Act. The suit was permitted to be withdrawn with liberty to file fresh suit whereas there was no such formal defect. Be that as it may. Once suit has been withdrawn on the ground that land had been declared surplus and compensation had been received it would create estoppel against the plaintiff to contend to contrary and from claiming compensation under the LA Act notwithstanding permission to file suit because as a matter of fact also, the disputed land had been declared surplus on 30.6.1980 and additional land in 1993.

The land declared as surplus in 1980 attained finality, as well as order of the Financial Commissioner on 5.9.1985. Both the orders also attained finality. Thus, the order of remand dated 5.9.1985 having attained finality, and it would not be possible to reopen it at any subsequent stage. Thus, the orders dated 30.6.1980 and 5.9.1985 having attained finality vis a vis to Rajinder Singh and compensation having been received, as the land in question was declared surplus under the Ceiling Act. No right, title or interest survived with Rajinder Singh or his successors to claim compensation under Land Acquisition Act.

59. The proceedings were initiated in the year 1987 for the acquisition of land whereas the order of ceiling was passed earlier in 1980 and 1985 and subsequently the surplus area was increased in 1993. By no stretch of any principle of law, Late Rajinder Singh or his successors could have claimed compensation in the proceedings in question initiated under the LA Act in the year 1987. In our considered opinion the respondents Rajinder Singh and his family were not entitled to claim any monetary compensation under the LA Act for the said land. The amount that had been withdrawn under the LA Act, was wholly impermissible and tantamount to playing fraud upon the legal system.

As a matter of fact, compensation has been taken for the land in the proceedings under the Abolition Act. Even if compensation in respect of certain land was not payable or paid, vesting would not depend upon the same. Land not under personal cultivation of Jagirdars had vested in the State, as such it was not open even to obtain compensation for the very same land either under the provisions of the Ceiling Act which has been received or under the provisions of the LA Act. It was wh