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2006 DIGILAW 838 (PNJ)

Beer Pal Singh v. State of Punjab

2006-03-01

J.S.NARANG

body2006
JUDGMENT J.S. NARANG, J. 1. The petitioner had filed return pursuant the provisions of Punjab Land Reforms Act, 1973 (hereinafter referred to as the Act). The Collector Agrarian passed an order dated June 22, 1976, vide which the area measuring 2.30 hectares of the land belonging to the petitioner has been declared surplus. This order was challenged by way of an appeal before the learned Commissioner, who allowed the appeal and remitted the case to the Collector for a fresh decision by way of passing a speaking order and after affording an opportunity of being heard to the petitioner. Subsequently, a detailed order dated June 22, 1976, copy Annexure P3 has been passed by the Collector reiterating the earlier view taken by him. The petitioner has averred that the learned Collector has incorrectly observed that according to, his statement dated June 22, 1976, the landowner is stated to have two bores, in his land in the year 1970. Thus, the second statement cannot be relied upon as the second statement made on June 24, 1976 is against the entries of the revenue record. Thus, the plea for treating the land as Barani land had been rejected. 2. The petitioner filed an appeal against the aforestated order before the learned Commissioner, which has been rejected vide order dated January 27, 1978. Another plea had been raised before the learned Commissioner that some of the land belonging to the petitioner has been mortgaged with possession with some person on the appointed date i.e. January 24, 1971 which should have been excluded at the time of considering the surplus area in his hands. This plea was also rejected by the learned Commissioner. The petitioner being dissatisfied, challenged the aforestated orders in the revisional jurisdiction of the learned financial Commissioner. The plea in regard to the land mortgaged by the petitioner weighed with the learned Financial Commissioner. Resultantly, the matter was remitted to the Collector for a fresh decision. However, an observation had been made by the learned Financial Commissioner that there were two bores according to the statement of the petitioner in the year 1970 in his land. Thus, this observation was not to the liking of the petitioner as the same is contended to be against the facts. 3. However, an observation had been made by the learned Financial Commissioner that there were two bores according to the statement of the petitioner in the year 1970 in his land. Thus, this observation was not to the liking of the petitioner as the same is contended to be against the facts. 3. Learned Collector passed a fresh order on September 10, 1981,copy Annexure P9 vide which he excluded 0.27 hectares of first quality land on the basis of the admission of the fact that afore stated land had been mortgaged with possession. Finally, the area measuring 203 hectares was declared surplus in the hands of the petitioner. Again dissatisfied the petitioner filed an appeal before the learned Commissioner, which was rejected vide order dated November 9, 1983. A plea had been raised before the learned Commissioner that Jagir Singh brother of the petitioner also owned half share in the tubewell, being his joint ownership to the extent of half of the land but this contention was overruled with the observation that this plea had been taken by the petitioner for the first time. The petitioner challenged the order of the learned Commissioner as well as of the Collector by way of revision petition before the learned Financial Commissioner, which has been dismissed in limine vide order dated August 27, 1974, copy Annexure P11. Dissatisfied with the aforestated orders, the present petition has been filed making the orders the subject matter of challenge. 4. The plea taken is that the authorities below have come to an incorrect conclusion that the petitioner had two tubewells in the year 1970 i.e. before June 24,1976, therefore, the land in question cannot be termed as Barani. Whereas the fact of the matter is that the petitioner did not own two bores and that the land” ought to have been treated as Barani” while assessing the surplus area in the hands of the petitioner. 5. On the other hand, learned counsel for the respondent contends that the petitioner had earlier challenged the order of the Collector and the learned Commissioner dated January 27,1978 by way of revision before the learned Financial Commissioner, which was accepted on a limited point and the case was remanded to the Collector for a fresh decision thereon. 5. On the other hand, learned counsel for the respondent contends that the petitioner had earlier challenged the order of the Collector and the learned Commissioner dated January 27,1978 by way of revision before the learned Financial Commissioner, which was accepted on a limited point and the case was remanded to the Collector for a fresh decision thereon. He has drawn my attention to para 3 of the aforestated order, which reads as under: “3 I have heard both the sides and gone through the record. There were two bores according to the statement of petitioner since 1970 in his land. He mortgaged his land with Shamsher Singh, redeemed on 27th May, 1970 and was thus full owner of this land on the appointed day. As regards his land mortgaged with Pritam Kaur which had not been redeemed the lower authorities should have given their findings on its bonafides before assessing his holding which warrants interference. In this view, I accept the revision petition on this limited point and remand the case to the Collector (Agrarian), Samrala.” This order was never challenged any further, Learned Collector returned the finding in regard to the limited point i.e. Whether mortgage with possession in favour of Smt. Pritam Kaur could be considered for reducing the surplus area to the extent of 0.27 hectares of first quality land in the hands of the landowner vide order dated September 10,1981. The finding that the petitioner had two bores had been accepted by the learned Financial Commissioner, as is evident from the order dated February 5, 1981 and that the matter stood closed. Thus, the petitioner was not entitled to re-open the entire case before the learned Collector. An appeal had been filed again but it met the fate of dismissal vide order dated November 9, 1983 wherein the plea of one bore and also half share in the bore has been labelled as an afterthought as no such plea had been taken before the learned Financial Commissioner at the time of disposal of the earlier revision vide order dated February 5,1981. The revision against the aforestated order met the same vide order dated 27.8.1984. The revision against the aforestated order met the same vide order dated 27.8.1984. Learned Financial Commissioner has also opined that the plea of half share in the tubewell is an afterthought as no such plea had been raised by the petitioner in the proceedings at the trial, appellate and revisional stage in the last seven years. He has further opined that the learned Financial Commissioner had earlier remanded the case only on the ground that the area mortgaged with Smt. Pritam Kaur had not been considered by the learned Collector. It is only on the basis of the limited extent that the subsequent orders have been passed. Thus, the petition merits dismissal. 6. I have heard learned counsel for the parties at length and have also perused the paper book as also the record which had been requisitioned by my order dated January 18,2006. 7. Learned counsel for the petitioner has drawn my attention to the statement made by the petitioner when the matter had been remitted to the learned Collector for a fresh decision by the learned Commissioner. It is at that time the oral evidence had been produced by the petitioner and first time the plea had been taken that the connection for the second motor had been taken on June 29, 1973. Further, it has been stated by the petitioner that the two bores which had been stated in my earlier statement, one of them belongs to my brother Jagir Singh. This fact, has not been fully established as this plea had not been accepted by the learned Commissioner and thereafter by the learned Financial Commissioner while passing the order dated February 5,1981, copy Annexure P8. Learned Financial Commissioner has categorically observed that there were two bores on the land since 1970, according to the statement of petitioner. Further, the land which had been mortgaged with Shamsher Singh, stood redeemed on May 27,1970, therefore, the petitioner becomes a full owner of the said land on the appointed day. So far as the land mortgaged with Pritam Kaur is concerned, it had been observed that the same had not been redeemed and that this land had not been taken into consideration and no bona fide finding has been returned thereon and that the same required interference. So far as the land mortgaged with Pritam Kaur is concerned, it had been observed that the same had not been redeemed and that this land had not been taken into consideration and no bona fide finding has been returned thereon and that the same required interference. He categorically observed that the revision petition is accepted only on this limited point and the matter is remitted to the Collector Agrarian for a fresh decision accordingly. This order was never ever challenged by the petitioner. Resultantly, the finding with regard to two bores stood accepted by the learned Financial Commissioner vide order dated February 5,1981.Subsequently, the learned Collector gave the finding only in regard to the land mortgaged with Smt. Pritam Kaur and by accepting existence thereof granted the relief accordingly. The petitioner challenged this order by raising the plea that the matter relating to the two bores was to be looked into by noticing that half share belongs to Jagir Singh his brother and that the land ought to have been accepted as Barani and, therefore, no surplus area could be assessed in the hands of the petitioner. The final observation given by the learned Financial Commissioner vide order dated August 27,1984, copy Annexure P11, is that the petitioner had not taken this plea earlier before the trial, appellate and revisional Court, which he had been pursuing for the last over seven years. It is for the first time the plea had been taken after the passing of the order by the learned Financial Commissioner dated February 5,1981. I am of the considered opinion that the observation of the learned Financial Commissioner as also that of the learned Commissioner is absolutely correct to the effect that the learned Financial Commissioner had remitted the case vide order dated February 5, 1981 on a limited point i.e. determining as to whether the mortgage with Pritam Kaur could be taken into consideration while assessing the surplus, area in the hands of the petitioner. Learned Collector has correctly opined thereon by holding that the area measuring 0.27 hectares of first quality land deserves to be excluded from 2.30 hectares of first quality land previously declared surplus. Learned Collector has correctly opined thereon by holding that the area measuring 0.27 hectares of first quality land deserves to be excluded from 2.30 hectares of first quality land previously declared surplus. It is obvious that the learned Collector could not have re-opened the entire case as is evident from the observation of the learned Financial Commissioner made in the order dated February 5, 1981,which was never ever challenged by the petitioner. Resultantly, the finding in regard to having two bores pursuant to the order made in 1981 stood finally accepted vide order dated February 5, 1981 passed by the learned Financial Commissioner. Thus, the learned Commissioner as well as learned Financial Commissioner have correctly opined in this regard. No merit. Dismissed.