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2013 DIGILAW 1236 (PNJ)

Parthvi Singh through L. Rs. v. State of Punjab

2013-09-13

RAMESHWAR SINGH MALIK

body2013
JUDGMENT Rameshwar Singh Malik, J. 1. This order proposes to dispose of three identical writ petitions bearing CWP Nos. 4367, 4368 and 4369 of 1992, because all the three cases are based on identical facts qua the same piece of land. However, for the facility of reference, the facts are being culled out from CWP No. 4367 of 2992 (Parthvi Singh and others v. State of Punjab and others). The facts, which are necessary for disposal of these writ petitions can be put into narrow compass. Late Sh. Hazari Lal was the big land owner. Surplus area proceedings were initiated against him and land measuring 2 Std. Acres (2 units) came to be declared surplus in his hands at the first instance on 22.3.1961. This order attained finality between the parties vide order dated 26.9.1969. Pursuant to the orders dated 26.9.1969, when the possession was sought to be taken from big landowner late Sh. Hazari Lal, he filed his objections, which came to be dismissed by Special Collector (Agrarian), Ferozepur, vide order dated 14.12.1988 (Annexure P-1). Feeling aggrieved, three separate appeals were filed before the Commissioner, Ferozepur Division, Ferozepur. First appeal was filed by late Sh. Hazari Lal himself. 2. During the pendency of this appeal, Hazari Lal died on 24.3.1990. His legal representatives were brought on record. However, all the three appeals were dismissed by the Commissioner, Ferozepur Division, vide order dated 26.6.1991 (Annexure P-2). He did not accept the contention raised on behalf of the petitioners that possession of only 8 kanals 19 marlas was taken, vide Rapat No. 271 dated 15.3.1989 (Annexure P-3) and the balance land still remained in the physical possession of the legal representatives of late Sh. Hazari Lal-big land owner. Petitioners challenged the above said orders passed by the Commissioner by way of three revision petitions before the Financial Commissioner. The plea raised on behalf of the petitioners did not find favour with the Financial Commissioner as well, who dismissed all the three revision petitions, vide one common order dated 3.12.1991 (Annexure P- 4). Hence, these three writ petitions. 3. The writ petitions were admitted and dispossession of the petitioners was stayed, vide order dated 3.4.1992 passed by the Division Bench of this court. Respondents filed their written state-ment. That is how, this court is seized of the matter. 4. Hence, these three writ petitions. 3. The writ petitions were admitted and dispossession of the petitioners was stayed, vide order dated 3.4.1992 passed by the Division Bench of this court. Respondents filed their written state-ment. That is how, this court is seized of the matter. 4. Learned Senior counsel for the petitioners, at the very outset fairly states that so far as the land measuring 8 kanals 19 marlas, possession whereof was taken from the petitioners, vide Rapat No. 271 dated 15.3.1989 (Annexure P-3) was concerned, they had no claim, because this piece of land measuring 8 kanals 19 marlas came to be vested in the respondent-State after taking the possession thereof. However, so far as the remaining land measuring 13 kanals 3 marlas was concerned, possession whereof was admittedly not taken by the State authorities and it remained in the physical possession of the petitioners. He further submits that once the possession of the land measuring 13 kanals 3 marlas could not be taken by the respondent State, irrespective of the reasons, before the death of big land owner late Sh. Hazari Lal, his legal representatives i.e., the petitioners herein, would be entitled for re-determination of the surplus area, if any, in their hands. 5. He also relies upon the categoric averments taken in paras 3 and 7 of the writ petition, which have not been denied by the respondents in the corresponding paras 3 and 7 of their written statement to the effect that possession of the land measuring 13 kanals 3 marlas could not be taken before the death of big land owner namely; late Sh. Hazari Lal, predecessor-in-interest of the petitioners. To buttress his contention, learned Senior counsel for the petitioners relies upon a Full Bench judgment of this court in Sardara Singh and others v. Financial Commissioner and others, 2008 (2) RCR (Civil) 744, Finally, he prays for setting aside the impugned orders, by allowing the present writ petition. 6. Per contra, learned counsel for the State submits that the possession of the land measuring 13 kanals 3 marlas, numbers whereof have been given in para 3 of the written statement could not be taken, because the stay granted by this court, vide order dated 16.2.1989 (Annexure R-1) passed in CWP No. 2016 of 1989 was operating in favour of the petitioners. He further submits that since the possession could not be taken because of the stay order, which was issued by this court at the instance of the petitioners, the petitioners will not be entitled to protect their possession only because of the stay order granted by this court. He further submits that it was none of the fault of the respondent-State. Once the possession qua 8 kanals 19 marlas land was taken from the petitioners, there would have been no difficulty for the State in taking the possession of remaining area measuring 13 kanals 3 marlas as well, had the stay not been operating in favour of the petitioners. He prays for dismissal of the writ petition. 7. After hearing the learned counsel for the parties at considerable length, careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that these writ petitions deserve to be allowed. To say so, reasons are more than one, which are being recorded hereinafter. 8. It has gone undisputed on record that out of the total area declared surplus in the hands of big land owner, namely; late Sh. Hazari Lal, State authorities could take the possession only qua the land measuring 8 kanals 19 marlas, vide Rapat No. 271 dated 15.3.1989 (Annexure P-3). Possession of the remaining land measuring 13 kanals 3 marlas remained with the petitioners. This material and factual aspect of the matter has been admitted by the respondents, even in their written statement and particularly in para 3 and 7 thereof. It has also been admitted in para 7 of the written statement that the remaining area i.e. 13 kanals 3 marlas could not be utilised during the life time of big land owner namely; late Sh. Hazari Lal. Having said that, this court feels no hesitation to conclude that consequent upon the death of big land owner late Sh. Hazari Lal, his succession would open in favour of the petitioners and they would be entitled for redetermination of the unutilised area in their hands. Since this crucial aspect of the matter has not been properly considered and appreciated by the respondent revenue authorities, the impugned order cannot be sustained. 9. Hazari Lal, his succession would open in favour of the petitioners and they would be entitled for redetermination of the unutilised area in their hands. Since this crucial aspect of the matter has not been properly considered and appreciated by the respondent revenue authorities, the impugned order cannot be sustained. 9. During the course of hearing, learned counsel for the State could not point out any reason, whatsoever, which might have restrained the State authorities from taking symbolic possession of the remaining land, as well i.e. 13 kanals 3 marlas. In fact, no such effort was made on behalf of the State authorities to take possession of the above said land measuring 13 kanals 3 marlas. In the meantime, late Sh. Hazari Lal-big land owner died on 24.3.1990. In such a situation, the case in hand would be squarely covered by the law laid down by the Hon'ble Full Bench of this court in Sardara Singh's case (supra). 10. The relevant observations made by the Hon'ble Full Bench in paras 41 and 42 of the judgment, which can be gainfully followed in the present case, read as follows:- 41. We are, therefore, of the considered opinion that in order to harmoniously read the two views in Ajir Kaur's case and to give correct interpretation of the provision of Section 11(50 and 11(7) of this Act, we ought to take the aid of Supreme Court's judgment in Ajmer Kaur's case. We hold that until the surplus area has been finally determined by the Collector and appeals/revisions have been dismissed, the death of the landowner would certainly cause affectation to the surplus area which would be required to be redetermined in the hands of his heirs. 42. Resultantly, where the surplus area has not been finally determined and the matter is pending in appeals or revisions before the Revenue Courts or before this court under Article 226 of the Constitution or before the Supreme Court of India, death of the landowner would cause affectation of surplus area which would be required to be redetermined in the hands of the heirs of the deceased landowner. Such an interpretation would harmoniously construct the provisions of Section 11(5) and 11(7) and also give a proper interpretation to both the views expressed in Ajit Kaur's case. Such an interpretation would harmoniously construct the provisions of Section 11(5) and 11(7) and also give a proper interpretation to both the views expressed in Ajit Kaur's case. However, we are unable to uphold the judgments of this court in Jasbir Kaur's case because Ajit Kaur's case was not at all considered by the Hon'ble Division Bench. As regards Manjit Kaur's case, even though Ajit Kaur's case was considered, the majority view had been entirely overlooked." No other argument was raised. 11. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that in the given fact situation of the present case, all these three writ petitions deserve to be allowed. Consequently, the impugned orders dated 14.12.1988 (Annexure P-1), dated 26.6.1991 (Annexure P-2) and dated 3.12.1991 (Annexure P-4) are hereby ordered to be set aside. Resultantly, with the observations made herein above, all these three writ petitions stand allowed, however, with no order as to costs.