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2006 DIGILAW 1214 (PNJ)

Buta Singh v. State Of Punjab

2006-03-22

J.S.NARANG

body2006
Judgment J.S.Narang, J. 1. The land in question was shown in the name of Mangal Singh only, father of the petitioners. Resultantly, surplus area proceedings had been initiated against him under the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as the "Pepsu Act"). It has been averred that Mangai Singh did not own or hold any land in excess of the permissible limit as defined under the Pepsu Act. However, surplus area proceedings had been initiated against him under the aforesaid Act. It has also been averred that the land comprised in Khasra Numbers 1672/246/8-11 and 1690/403-48-10 Nehri had been recorded in possession of the tenants, indicative from khasra girdwaris for kharif 1955. No notice was issued to the tenants and that the petitioners being in possession of the substantial portion of the land had also not been served with any notice. The Collector Agrarian declared 12.24 standard acres of land as surplus in the hands of Mangai Singh, vide order dated December 19, 1963. This order was contested by way of an appeal which perhaps was dismissed and further the revision petition was also dismissed which was challenged by way of civil writ petition which also had been dismissed (the detail of the appeal/revision and the civil writ petition has not been disclosed in the petition). The fact averred is that the surplus area so declared continued to remain in possession of the petitioners till the coming into force of the Punjab Land Reforms Act, 1972 (hereinafter referred to as the "Reforms Act"). A notice under Section 9 of the Reforms Act had been served upon the petitioners for surrendering the possession of the surplus area. The same was contested and the petitioners field an appeal against the order dated December 19, 1963 on the premises that the petitioners were in possession of the land, therefore, were entitled to be heard before assessment of the surplus area. The appeal was dismissed vide order dated May 2, 1978 passed by the learned Commissioner, Ferozepur Division, Ferozepur. It has been categorically noticed that the order of the Collector had been challenged by Mangal Singh by way of an appeal which was dismissed on May 18, 1964 and that the revision filed against the same was also dismissed on August 20, 1964. A civil writ petition was filed by Mangal Singh which was dismissed on May 23, 1974. It has been categorically noticed that the order of the Collector had been challenged by Mangal Singh by way of an appeal which was dismissed on May 18, 1964 and that the revision filed against the same was also dismissed on August 20, 1964. A civil writ petition was filed by Mangal Singh which was dismissed on May 23, 1974. The claim of the appellants, that they were minor when the order was passed and that they being in possession since the passing of the order dated December 19,1963, they were apparently required to be heard before the assessment of the surplus area, it has been observed by the learned Commissioner that if the plea of the appellants is accepted that they were minors at the time of the passing of the impugned order, Mangal Singh, was their natural guardian and he never claimed that the appellants were owners of the land to the extent of half share. The status of the petitioners was also claimed as tenants but this ground was also rejected by the learned Financial Commissioner upon the revision petition filed by Mangal Singh. The plea set up is that the land in question was coparcenary property of the petitioners along with their father Mangal Singh and Smt.Kartar Kaur, mother of the petitioners. This plea could have been taken by Mangal Singh at the first instance but no such plea had ever been taken at any stage up to the decision of civil writ petition filed by Mangal Singh before this Court. 2. The petitioners filed revision petition, which had been dismissed by the learned Financial Commissioner vide order dated March 13,1981 by upholding the view of learned Commissioner. This order has been challenged in the present petition. The plea set up is that the impugned orders are contrary to the law laid down by this Court which has been further affirmed by the Hon ble Supreme Court. It is the contention that the authorities were primarily required to see that not only the land is shown to be in the ownership of the land owner but it must be under his personal cultivation. Where any such land is not in personal cultivation, the mischief contained in the provision for assessing the surplus area would not be applicable. It is the contention that the authorities were primarily required to see that not only the land is shown to be in the ownership of the land owner but it must be under his personal cultivation. Where any such land is not in personal cultivation, the mischief contained in the provision for assessing the surplus area would not be applicable. It is further the case that the Revenue Authorities have wrongly held that no tenant had been recorded in the revenue record. In fact the tenancy had been created in regard to the land comprised in Khasra No. 1672 and 1690 and that the land was also in possession of the tenants. Further, some portion of the land was in possession of the petitioners as well, at the time when the surplus area was assessed in the hands of Mangal Singh. It is further the case, that the land in question, after having been assessed as surplus, had not been utilized and that the petitioners being the adult children are entitled to the relief accordingly. 3. The stand of the government is that Mangal Singh, the land owner, did not file any return under Section 32-B of the Pepsu Act. The Collector Agrarian, Bathinda obtained information under Section 32C through the Revenue agency. So far as field numbers 1672 and 1690 are concerned, it has been recorded in the khasra girdwari for kharif 1956 that the said area is in possession of the tenants. The statements of Sarv Shri Kehar Singh and Gopal Singh had been recorded in the surplus area file. Subsequently, these fields were shown under the cultivation of Buta Singh, Gurdev Singh sons of Mangal Singh, land owner. After consolidation some area is shown since Rabi 1961 to be under the cultivation of Buta Singh and Gurdev Singh, petitioners i.e. sons of Mangal Singh. It is obvious that the aforestated portion of the land has not been in continuous possession of the tenants and in fact came into possession of sons of Mangal Singh. Thus, by virtue of Section 2(g) of the Pepsu Act and the Rules of 1958 framed thereunder, is to be considered self cultivation of Mangal Singh. Thus, the Collector Agrarian, Bathinda correctly declared surplus area in the hands of Mangal Singh, measuring 12.24 standard acres. Thus, by virtue of Section 2(g) of the Pepsu Act and the Rules of 1958 framed thereunder, is to be considered self cultivation of Mangal Singh. Thus, the Collector Agrarian, Bathinda correctly declared surplus area in the hands of Mangal Singh, measuring 12.24 standard acres. It is also the stand that Mangal Singh as land owner had challenged the aforesaid by way of appeal and revision before the learned Commissioner and learned Financial Commissioner respectively. Thereafter, challenged the orders aforesaid by way of C.W.P. No. 1617 of 1965 which was dismissed by this Court vide order dated May 23, 1974. It is also the stand of the government that the possession of the land measuring 5.48 standard acres, after having been declared as surplus, was taken and delivered to Sarv Shri Piara Chand, Joginder Singh tenants (allottees) on August 7, 1964 i.e. much before the commencement of the Reforms Act. A notice under Section 9(1) of the Reforms Act in regard to the unallotted area measuring 5.47 standard acres was issued to Mangal Singh vide communication No. 1708/Agri dated November 20, 1974. It is thereafter that the appeal had been filed by the petitioners, which was dismissed by the learned Commissioner and the revision petition was also dismissed. It was not necessary to give notice to the petitioners as they were alleged to be in possession of the area as sons of Mangal Singh, land owner. They were never ever recorded as owners in the revenue record on the requisite date i.e. August 21, 1956. The order dated December 19, 1963 had been earlier challenged and that the status of the land owner determined by the Collector Agrarian had been upheld up to this Court. The orders so passed by the revenue authorities as also by this Court would be res judicata qua the claim of the petitioners. It is nowhere claimed by the petitioners that they are entitled to claim the permissible area as adult sons pursuant to the Reforms Act. The petition therefore, merits dismissal. 4. I have heard learned Counsel for the parties and have also perused the paper book as also the orders impugned before this Court. It is nowhere claimed by the petitioners that they are entitled to claim the permissible area as adult sons pursuant to the Reforms Act. The petition therefore, merits dismissal. 4. I have heard learned Counsel for the parties and have also perused the paper book as also the orders impugned before this Court. Admittedly, the petitioners had never even been indicated as coparceners as no such claim was ever made by Mangal Singh respondent No. 4, when the surplus area was assessed in his hands qua his land held by him in his individual capacity. This fact stands corroborated from the revenue record. Mangal Singh had never ever raised any such plea that the petitioners were in possession of the land as tenants or in their own right. All kind of pleas set up did not find favour with the appellate authority, revisional authorities and also this Court as C.W.P. No. 1617 of 1965 filed by Mangal Singh was dismissed by this Court vide order dated 23th May, 1974. However, the respondents have fairly admitted that out of the surplus area, an area measuring 5.48 standard acres stands allotted to the tenants (allottees), which would mean that the same stood utilized prior to the passing of the Reforms Act. However, an area measuring 5.47 standard acres continued to be in possession of the petitioners though their status of possession, has not been indicated anywhere. This fact stands admitted by the respondents that notice under Section 9(1) of Reforms Act had been served upon the petitioners. It was too late in the day for the petitioners to have challenged the order dated December 19, 1963, especially when the same stood challenged by Mangal Singh in the capacity of guardian of the petitioners as they were admittedly minors at that time. No claim in regard to their individual right had ever been made by Mangal Singh as none has been disclosed in the instant petition. Learned Counsel for the petitioners has placed reliance upon a judgment of this Court rendered in C.W.P. No. 4504 of 1981 Gajjan Singh through his LRs and Ors. v. The State of Punjab and Ors. decided on March 23, 2005 to the effect that the land if not utilized, though having been declared surplus, can be subjected for a fresh determination of surplus/permissible area in the hands of legal heirs of deceased land owner. v. The State of Punjab and Ors. decided on March 23, 2005 to the effect that the land if not utilized, though having been declared surplus, can be subjected for a fresh determination of surplus/permissible area in the hands of legal heirs of deceased land owner. Reliance has also been placed upon judgments rendered by this Court, which are noticed as under: - 1. Smt. Ajit Kaur and Ors. v. State of Punjab and Ors. (FB) 1980 P.L.J. 355; 2. Karnail Singh v. State of Punjab and Ors. (DB) 1989 P.L.J. 95; 3. Manjit Kaur v. Financial Commissioner (Appeals) Punjab (DB) 1996(3) R.C.R. (Civil) 569; 4. Ranjit Ram v. The Financial Commissioner (Revenue) Punjab and Ors. (1981)83 P.L.R. 492 (FB); 5. Ujjagor Singh (Dead) by LRs v. The Collector, Bathinda. 5. The settled proposition of law which needs to be noticed from the Full Bench Judgment of this Court and approved by the Hon ble Supreme Court, may be referred hereunder and that the relevant para from Ranjit Ram/s case (supra) is quoted as under:- "7. As already observed, even if the land of a landowner has been declared surplus, either under the Punjab Law or under the Pepsu Law, and if the land of landowner has not been utilized and further has not been purchased by the tenants in case of Punjab Law, and if the landowner has not been dispossessed by the Government under the provisions of the Pepsu Law, he continues to be a landowner of the land and also holds the same even though his land has been declared surplus, till he is divested of its ownership by taking possession of the land under Section 8 of the Reforms Act, where it has been provided that the surplus area declared as such under the Punjab Law or the Pepsu Law, which has not been utilized till the commencement of the Reforms Act, shall on the date on which the possession thereof is taken by or on behalf of the State Government, vests in the State Government free from all encumbrances. It would thus be seen that such landowners surplus area shall vest in the State Government on the date of taking of possession by the State Government under Section 8 of the Reforms Act and till then the landowners are not divested of the ownership of the surplus land. It would thus be seen that such landowners surplus area shall vest in the State Government on the date of taking of possession by the State Government under Section 8 of the Reforms Act and till then the landowners are not divested of the ownership of the surplus land. Thus, if a landowner owns or holds land which is beyond the permissible area as defined under Sections 4 and 5 of the Reforms Act, his case shall have to be processed again by the Collector and the determination of the permissible area and the surplus area has to be according to the mandate of Sections 4 and 5 of the Reforms Act. Sub-section (1) of Section 4 of the Reforms Act contains a clear bar that no person shall own or hold land in excess of the permissible area and when the case is reprocessed by the Collector, the permissible area as provided for in Sections 4 and 5 of the Reforms Act has to be allowed to the land owner.... If the Legislature intended to exclude the land which has already been declared surplus from the operation of the provisions of the Reforms Act, a clear provision would have been made to that effect in Section 5(1) of the Reforms Act, but on the contrary I find that the landowner has been entitled to select separate permissible area in respect of his adult son out of the land owned or held by him. As already observed, till the landowner is divested of the rights of ownership, he continues to hold and own the land." 6 The Hon ble Supreme court in Ujjagar Singhs case (supra) held as follows: It may be mentioned that in the aforesaid judgment "Punjab Law" refers to Punjab Security of Land Tenures Act, 1953, "Pepsu Law" refers to Pepsu Tenancy and Agricultural Land Act, 1955 and "Reforms Act" refers to Punjab Land Reforms Act, 1972. According to us, the majority judgment of the Full Bench, has correctly appreciated the scope of the three enactments referred to above. Once the lands declared as surplus under the Pepsu Act did not vest in the State Government, as possession thereof had not been taken, there has to be a fresh determination in respect of the area which the appellant is entitled to hold in the light of the Punjab Act. 7. Once the lands declared as surplus under the Pepsu Act did not vest in the State Government, as possession thereof had not been taken, there has to be a fresh determination in respect of the area which the appellant is entitled to hold in the light of the Punjab Act. 7. Thus, if a land owner owns or holds land, which is beyond permissible area as defined under Section 4 and 5 of the Reforms Act, his case shall have be processed again by the Collector and the determination of the permissible area and surplus area has to be according to the mandate of Sections 4 and 5 of the Reforms Act. This observation permits the reprocessing of the determination of the permissible area when he becomes entitled to select separate permissible area in respect of the adult son out of the land owned or held by him. It would be acceptable proposition that till land owner is divested of the right of ownership, he continues to hold and own the land. The dicta of the Full Bench of this Court rendered in Ranjit Ram v. The Financial Commissioner, Revenue, Punjab and Ors. (1981)83 P.L.R. 492(FB) has been approved by the Hon ble Supreme Court in Ujjagar Singhs case (supra). In the aforesaid case, it has been brought to my notice by the learned Counsel for the petitioner, that the big land owner had passed away in 1974, after the coming into force of the Reforms Act and till his death the area declared surplus under the Punjab Act, had not been utilized, therefore, the petitioners have been held to be entitled to fresh adjudication to the extent of their land holdings. 8. In the instant case, the big owner i.e. Mangal Singh is stated to have died on June 28, 1997 and till then the petitioners are admitted to be in possession of the land measuring 5.47 standard acres and the said area remains unallotted as has been specifically mentioned in para 5 of the written statement submitted by official respondents. So far as the area measuring 5.48 standard acres is concerned, the possession thereof already stands delivered to Sarv Shri Piara Chand and Joginder Singh, tenants (allottees) on August 7, 1964 through the revenue agency, obviously before the commencement of the Reforms Act and appointed date indicated. 9. So far as the area measuring 5.48 standard acres is concerned, the possession thereof already stands delivered to Sarv Shri Piara Chand and Joginder Singh, tenants (allottees) on August 7, 1964 through the revenue agency, obviously before the commencement of the Reforms Act and appointed date indicated. 9. In view of the interpretation of the Full Bench of this Court in Ranjit Rams case (supra), which has been approved by the Hon ble Supreme Court and also the subsequent judgments of this Court and also the judgment rendered in C.W.P. No. 4505 of 1981 decided on March 23, 2005, I am of the opinion that the petition deserves to be allowed to the limited extent that the area measuring 5.47 standard acres, though declared surplus in the hands of Mangal Singh, deserves to be re-assessed for determining the surplus area in the hands of the petitioners in accordance with law applicable in this regard. Consequently, the petition is allowed in the above terms. Order of the learned Collector as also the learned Commissioner and learned Financial Commissioner are set aside for fresh assessment of the surplus area in regard to the area indicated above i.e. 5.47 standard acres. No order as to costs. 10. The parties, through their counsel, are directed to appear before the learned Collector, Agrarian on 18.4.2006.