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2004 DIGILAW 414 (PNJ)

Bakhshish Singh v. State Of Punjab

2004-04-02

ASHUTOSH MOHUNTA

body2004
Judgment Ashutosh Mohunta, J. 1. The challenge in this petition under Articles 226/227 of the Constitution of India is to the order dated 7.12.1983 passed by the Financial Commissioner (Appeals), Punjab, whereby the petitioners have not been held entitled to the allotment of the land declared surplus in the hands of their father Chuhar Singh (respondent No. 5) and the same has been directed to be allotted to the other private respondents. 2. The undisputed facts of the case are that Chuhar Singh (Respondent No. 5), who is the father of the petitioners, was the owner of 467 Kanals 4 Marlas of land situated in village Ghullowal as per Jamabandi for the year 1952-53. He gifted away 203 Kanals 1 Marlas of land to his sons, namely, Bakhshish Singh, Sarwan Singh and Baldev Singh (petitioners herein) during their minority. On the basis of the said oral gift, an entry with regard to that was made in the revenue record by the Patwari of the village on 26.12.1952. However, the mutation in this regard was ultimately rejected on 25.2.1954. After consolidation, Chuhar Singh owned 406 Kanals and 2 Marlas of land. The petitioners filed a civil suit in the year 1969 for a declaration that they are owners in possession of 203 kanals and 1 Maria of land on the basis of the gift deed dated 26.12.1952. The suit was decreed by the Sub Judge Ist Class, Dasuya and consequently, the said land was entered in the revenue record in the names of the petitioners. When the proceedings for declaration of surplus were started in the village in the year 1967, the collector Agrarian, vide order dated 8.7.1969 declared 15 standard Acres and 14 1/4 units of land belonging to Chuhar Singh as surplus. His appeals to the higher authorities as well as a petition under Article 227 of the Constitution of India before this court were dismissed. Thereafter, Chuhar Singh (Respondent No. 3) was allowed to select the permissible area of 30 standard acres under Section 5(1) of the Punjab Land Reforms Act, 1972 (for short the 1972 Act) vide order dated 24.12.1995 passed by the Collector Agrarian, Dasuya and 18 standard Acres and about 12 units of land were declared as surplus. Thereafter, Chuhar Singh (Respondent No. 3) was allowed to select the permissible area of 30 standard acres under Section 5(1) of the Punjab Land Reforms Act, 1972 (for short the 1972 Act) vide order dated 24.12.1995 passed by the Collector Agrarian, Dasuya and 18 standard Acres and about 12 units of land were declared as surplus. In the mean time, the petitioner applied to the Collector, Agrarian on 27.10.1974 to reopen the case of the surplus area of Chuhar Singh as according to them, they had become owners of 203 kanals and 1 Maria of land on the basis of the civil court decree passed in their favour. However, their application was rejected by the collector on 3.10.1974. This appeal to the Commissioner, Jalandhar Division, was dismissed on 8.3.1976. Their revision to the financial Commissioner as well as the writ petition before this court were also dismissed on 22.4.1976 and 6.1.1977 respectively. The area declared surplus in the hands of the Chuhar Singh on 24.12.1975 was allotted to respondent Nos. 6 to 28 through their predecessors-in-interest. However, the possession of the same was not delivered to them. The possession of the land remained with Chuhar Singh and the petitioners. On 16.1.1978 the petitioners filed an application before the collector Agrarian, Dasuya for being allotted 165 Kanals and 2 Mafia of land of their father, which had been declared surplus on the ground that they are landless and they are tenants under him for the last 15 years. In support of their claim they produced Khasra Girdawari entries since the year 1962. After perusing the revenue record the collector agrarian vide order dated 25.6.1979 allowed the application of the petitioner and cancelled the respondent Nos. 6 to 28 (through their predecessors-in-interest). A copy of the order dated 25.6.1979 passed by the collector Agrarian, Dasuya is placed on record an Annexure-P3. The appeal filed by the predecessors-in-interest of respondent Nos. 6 to 28 was dismissed by the Additional Commissioner, Jalandhar Division, vide order dated 15.1.1984. However the Financial Commissioner, Appeals Punjab, vide order dated 7.12.1983 (Annexure P-6) accepted the revision petition filed by Bishan Dass and others (Respondent Nos. 6 to 28) set aside the orders dated 26.6.1979 (Annexure P-3) and 15.1.1981 (Annexure P-5) passed by the Collector Agrarian and the Additional Commissioner, respectively, and held the respondent Nos. 6 to 28 allottees in possession of the land in question. 6 to 28) set aside the orders dated 26.6.1979 (Annexure P-3) and 15.1.1981 (Annexure P-5) passed by the Collector Agrarian and the Additional Commissioner, respectively, and held the respondent Nos. 6 to 28 allottees in possession of the land in question. It is the order dated 7.12.1983 passed by the Financial Commissioner, Appeals Punjab, which is under challenge in the present writ petition. 3. I have heard the learned counsel for the parties and have gone through the case file. 4. It is the admitted fact that the petitioners have been shown to be cultivating land measuring 165 Kanals 1 Maria as tenants under their father Chuhar Singh (Respondent No. 5) from Kharif 1963 onwards, as per the entries made in the Khasra Girdawaries. Under proviso to sub para "C" of the Punjab Utilisation of Surplus Area Scheme, 1973, a tenant cultivating the surplus area is to be allotted land cultivated by him and he has got a preferential right of or allotment in comparison to other persons. As already mentioned above, in the present case the petitioners have been shown to be in cultivating possession of the surplus land in the hands of their father Chuhar Singh (Respondent No. 5) in the revenue record since the year Kharif 1963. They have also been in possession of this land since, then. The civil court has also passed a decree in their favour and thereby they have been declared to be the owner thereof. On the other hand, though the surplus land in the hands of Chuhar Singh had been allotted to respondent Nos. 6 to 28 but they have not been shown to have been handed over the possession thereof. Even otherwise, the said respondents have not been shown to be the tenant under Chuhar Singh at any point of time. As per the scheme of the utilisation of the surplus land, the petitioners have got preferential right over respondent Nos. 6 to 28 for being allotted the surplus land in the hands of their father Chuhar Singh. 5. Even otherwise, the said respondents have not been shown to be the tenant under Chuhar Singh at any point of time. As per the scheme of the utilisation of the surplus land, the petitioners have got preferential right over respondent Nos. 6 to 28 for being allotted the surplus land in the hands of their father Chuhar Singh. 5. The definition of family given in Sub-section (4) of Section 3 of the Punjab Land Reforms Act, 1972, is to the following effect:- "Family in relation to a person means the person, the wife or husband, as the case may be, of such person and his or her minor children, other than a married minor daughter." Aforementioned definition of the family under the 1972 Act shows that it includes only the minor children and not the major children. On the date of declaration of surplus land, the petitioners were adults. There is no dispute with regard thereto. Being the adult sons of Chuhar Singh, even otherwise they were entitled to a separate share from the property of their father. In this way, in case they are given separate share from the property of their father even then the land in the hands of Chuhar Singh does not become surplus. 6. Similarly, under Sub-section (13) of Section 3 of the 1972 Act, the definition of Self-cultivation has been given. The same is reproduced hereunder:- "Self cultivation means cultivation by a landowner either personally or through any member of his family or through his brother, or through a servant or hire labour upon the personal supervision of the landowner or supervision of a member of his family, subject to the condition that the servant or hired labour is paid wages in cash or kind or partly in cash and partly in kind but not as share of the produce." A perusal of the aforementioned definition shows that any member of family is covered therein. However, according to the definition of family as given in Sub-section (4) of Section 3 of the 1972 Act, it includes only the minor children and not the adults sons of the landowner. The petitioners being adults, arent thus, covered under the definition of self- cultivation quoted above. 7. However, according to the definition of family as given in Sub-section (4) of Section 3 of the 1972 Act, it includes only the minor children and not the adults sons of the landowner. The petitioners being adults, arent thus, covered under the definition of self- cultivation quoted above. 7. Still further, Section 5(1) of the 1972 Act confers right on the landowner to select his permissible area as well as the permissible area for each of his adult son on the appointed day. The appointed day as per definition given in Section 3(1) of the 1972 Act is 24.1.1971. As the petitioners were adults on appointed day, they are, thus covered under the provisions of Section 5(1). For facility of reference, Section 5(1) of the 1972 Act is reproduced hereunder:- "5. Selection of Permissible Area and Furnishing of Declaration by Certain Persons. (1) Every person who on the appointed day or at any time thereafter, owns or holds land as landowner or mortgagee with possession or tenant or partly in one capacity and partly in another in excess of the permissible area and intimate his selection to the collector, and where land is situate in more than one district, to the collector concerned through a declaration to be furnished in such form and manner and within such period of as may be prescribed and if such person has an adult son, he shall also be entitled to select separate permissible area in respect of each such son, out of the landlord or held by him, subject to the condition that the land so selected together with the land already owned or held by such son, shall not exceed the permissible area of each such son." The afore-quoted provision of Section 5(1) of the 1972 Act makes it abundantly clear that the Legislature in its wisdom made each adult son of the landowner eligible to carve out his separate permissible area out of the land held by his father. Moreover, it has been held by the Full Bench of this Court in the case reported as Ranjit Ram v. The Financial Commissioner, Revenue, Punjab, Chandigarh and Ors., (1981)83 P.L.R. 492 (F.B.), as under:- "A landowner whose land has been declared surplus under the Punjab Security of Land Tenure Act, 1953, or under the Pepsu Tenancy and Agricultural Lands Act, 1955. Who has not been divested of his ownership of the surplus area before the Punjab Land Reforms Act, 1973 is entitled to select the permissible area for his family and for each of his adult sons in view of the provisions of Section 4 read with Section 5(1) of the Punjab Land Reforms Act." A glance at the facts of the present case shows that though the surplus land at the hands of Chuhar Singh (respondent No. 5) Dasuya, but as yet the landowner has not been divested of his possession of the surplus land. Moreover, it is the admitted fact that respondent No. 6 to 28 have never been given possession of the land, though in papers they had been issued the allotment letters. The fact that the petitioners who are the sons of Chuhar Singh, were adults on the appointed day i.e. 24.1.1971, is also not disputed at all. It is also the admitted fact that the petitioners, as per the revenue record, have never been tenants under their father Chuhar Singh and in cultivating possession of surplus land. As per Section 11(2) (a) of the 1972 Act, the State Government is required to "frame a scheme for utilizing the surplus area under the Punjab law. The pepsu law or this act by conferment of rights of ownership on tenants in respect of such land as is comprised in the surplus area of the landowner of such tenant..." In the written statements filed by respondent No. 6 to 28 they have admitted that they had never been the tenants under Chuhar Singh (Respondent No. 5) nor they had even been given possession of the alleged surplus land in the hands of Chuhar Singh. According to the scheme of the 1972 Act, the tenants under the landlord have got preferential right for allotment of the land declared surplus in the hands of the landowner. According to the scheme of the 1972 Act, the tenants under the landlord have got preferential right for allotment of the land declared surplus in the hands of the landowner. This becomes all the more clear from Sub-section (3) of Section 11 of the 1972 Act, which is reproduced hereunder for ready reference;- "(3) Any scheme framed by the State Government under Sub-section (2) may provide for the terms and conditions on which the rights of ownership are to be conferred on the tenants and so also the terms and conditions on which the land comprised in the surplus area is to be allotted." As already stipulated above, the intention of the Legislature is to confer the rights of ownership on the tenants of the surplus land and they have to be given preference over and above the persons who are not the tenants thereof. Moreover, it has been held by their Lordships of the Supreme Court in the case reported as Ujagar Singh (Dead) v. L.Rs. Hozara Singh and Ors., A.I.R. 1996 Supreme Court 2623, that "the taking of possession is a must and in the absence whereof it shall be deemed that right, title and interest of the landowner has never been extinguished and the said land which had been declared surplus never vested in the State." 8 In the light of the above discussion. I allow the writ petition and set aside the order dated December 7, 1983 passed by the Financial Commissioner, Appeal, Punjab (Annexure P-6) and the order dated June 25, 1979 passed by the Collector Agrarian (Annexure P-3) and dated January 15, 1981 passed by the Additional Commissioner, Jalandhar Division (Annexure P-5) are restored.