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2017 DIGILAW 660 (PNJ)

Gurmail Dass v. State of Punjab

2017-03-07

MAHESH GROVER, SHEKHER DHAWAN

body2017
JUDGMENT Mr. Mahesh Grover, J. (Oral) - This appeal is directed against the judgment of the learned Single Judge dated 24.1.2007, wherein the appellants as writ petitioners had questioned the notice, issued to them under Section 9 (1) of the Punjab Land Reforms Act, 1972 (hereinafter known as “the 1972 Act”), asking them to deliver possession of the surplus land in their possession, the particulars of which have also been given in the notice mentioned above. The appellants had pleaded that this land measuring 384 bighas 4 biswas was gifted to Baba Sangtia by Baba Alla Singh of Patiala in the Eighteenth Century for rendering his services to the donor. The property devolved upon Mahant Bhajan Dass, the present Mohtmim of Samadh Sangtia. Mukand Ram, the present predecessor in interest of the writ petitioners, was in possession of the land measuring 367 bighas and 12 biswas, out of the total land of 384 bighas and 4 biswas, the subject matter of the writ. In the year 1961, land measuring 31 bighas and 18 biswas was declared surplus under the provisions of Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter known as “the 1955 Act”). Mukand Ram, who was a tenant on this portion of the land, was never issued any notice under the 1955 Act. He preferred a petition under Section 22 of this Act, seeking acquisition of proprietary rights, which were granted to him on 20.3.1963, by treating him as a qualified tenant under Section 20 of the Act. On the strength of this order, compensation was paid and mutation entered in favour of Mukand Ram, to be replaced by another mutation No. 3599 of 8.6.1974 in favour of the State Government, which pertains to the area declared surplus vide order dated 7.6.1961. After the death of Mukand Ram, the present appellants succeeded him to his estate. 2. Learned Single Judge negated the plea of the appellants by referring to Section 32-FF of the 1972 Act, to hold that since the property was declared surplus on 7.6.1961, the subsequent order dated 20.3.1963 under Section 22 of the Act would necessarily have to be ignored to favour the claim of the State, who pleaded ownership by the vesting of the land in them statutorily. 3. 3. Before us, learned counsel for the appellants has placed reliance on Section 32 E of the 1955 Act, which we may extract here below :- 32E – Vesting of surplus area in the State Government- Notwithstanding anything to the contrary contained in any law, custom or usage for the time being in force, and subject to the provisions of Chapter IV after the date on which the final statement in respects of a landowner or tenant is published in the Official Gazette, then - (a) in the case of the surplus area of a landowner, or in the case of the surplus area of a tenant which is not included within the permissible limit of the land owner such area 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 and all rights, title and interest (including the contingent interest, if any, recognized by any law, custom or usage for the time being in force) of all person in such land shall be extinguished, and such rights, title and interest shall vest in the State Government free from encumbrances created by any person; and (b) in the case of the surplus area of a tenant which is included within the permissible limits of the land owner, the right and interest of the tenant in such area shall stand terminated : Provided that, for the purposes of clause (a), where any land falling within the surplus area is mortgaged with possession, only the mortgagee rights shall vest in the State Government.” 4. Perusal of the above provision makes it abundantly clear that the land necessarily has to vest in the State after possession to complete the acquisition. Perusal of the above provision makes it abundantly clear that the land necessarily has to vest in the State after possession to complete the acquisition. The Hon’ble Supreme Court in “Ujjagar Singh (dead) by LRs v. The Collector, Bhatinda, 1996 (3) RCR (Civil) 446 SC” has also observed as follows :- “On a plain reading of clause (a) of Section 32E aforesaid it appears that in case any surplus area of the land owner which is not included within the permissible limit of such land owner ‘such area 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 public purpose and all rights, title and interest of all persons in such land shall be extinguished and such rights, title and interest shall vest in the State Government free from encumbrances. In other words, in view of the aforesaid statutory provision, only when the possession of the land which has been declared as surplus area is taken over by the State Government, then only it shall be deemed that such surplus area has been acquired by the State Government and all rights, title and interest of person concerned in such land are extinguished and vest in the State Government. As such if the possession of any surplus area of land owners has not been taken by or on behalf of the State Government, it shall not be deemed that such surplus area has been acquired and title of the land owner has been extinguished. 4. The stand of the appellant is that in view of the admitted position that the possession of the land which had been declared surplus in the year 1961-62 under the Pepsu Act had never been taken till the Punjab Act came into force in the year 1973 and as the appellant continued in possession thereof throughout, the respondent authorities or the State Government was not entitled to take possession of such surplus area after coming into force of the Punjab Act and the ceiling has to be determined afresh in accordance with the provisions of the Punjab Act. It appears that there is no dispute that when the Punjab Act came into force, the appellant had four adult sons and if the ceiling is fixed afresh in accordance with the provisions of the Punjab Act, the appellant had no surplus land. 5. The learned counsel, appearing for the State of Punjab, could not point out as to how in view of the admitted position that some area had been declared surplus in the year 1961-62 under the Pepsu Act, the possession thereof had not been taken either by or on behalf of the State Government till the coming into force of the Punjab Act, the right, title and interest of the appellant in the land which had been declared surplus under the Pepsu Act was extinguished. The taking of possession was a must, in absence whereof it shall be deemed that right, title and interest of the appellant had never been extinguished and the said land which had been declared surplus never vested in the State. Fresh steps for fixation of the ceiling had to be taken in accordance with the provisions of the Punjab Act.” 5. The fact that whether possession was taken by the State or not in terms of Section 32 E of the 1972 Act, is eloquently silent from the record before us. In any eventuality, correctness of this contention raised by learned counsel for the appellants, needs to be gone into by the competent authority, who has issued the notice. As on today, there is no adverse order against the appellants except the judgment of the learned Single Judge, which they invited by pre-maturely coming to this Court in writ proceedings. 6. We are, thus, of the considered view that in the first instance the competent authority should apply its mind to the facts and the provisions of law including the one, which has been raised before us, to pass an effective speaking order, by giving an opportunity to both the sides. Since the matter has lingered on for a sufficiently long time, we mandate, while remanding the matter back to the competent authority, to determine and conclude it, as expeditiously as possible, but not later than six months, from the date of receipt of certified copy of this order. 7. Till the time the matter is decided, the appellants shall not be dispossessed. 8. The appeals stands disposed of.