Punjab-Haryana High Court
Swaran Singh vs State Of Punjab And Ors. on 17 September, 2002
Equivalent citations: (2003)133PLR376, 2003 A I H C 565, (2003) 2 ICC 77, (2003) 1 PUN LR 376, (2003) 2 RECCIVR 285
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT V.K. Bali, J.
1. This order be read in continuation of the reference that was made by one of us (V.K. Bali, J.) on 21st February, 1994 as the facts of the case and the reasons, why this bunch of writ petitions has been referred to a Larger Bench, have been given in the said order in sufficient details.
2. By this order, we propose to decide four connected Civil Writ Petitions bearing Nos. 11706, 11724, 11725 and 11726 of 1990, as common questions of law and fact are involved in all these writ petitions. Learned counsel representing the parties also, suggest likewise. The facts stated in the reference order pertain to Civil Writ Petition No.11724 of 1990.
3. Narration of the facts given in the reference order dated 21st February, 1994 would clearly reveal that insofar as delivery of possession to the tenant is concerned, the same stands admitted. ,The rival contentions of the parties only pertain to non-execution of Qabuliatnama and, effect of the same. Whereas, it is, briefly put, the case of the petitioner-landowner that execution of Qabuliatnama is an essential feature in the process of utilisation of the land, the contention raised by learned counsel representing the respondent-tenants is that execution of Qabuliatnama is a mere formality and that being so, non-execution of the same would not be enough to hold that the land has since not been utilised. We would have given a deep consideration to the rival contentions of learned counsel representing the parties but in view of the authoritative judgment of Hon'ble Supreme Court in Krishna Kumari and Anr. v. State of Haryana and Anr., (1998)2 P.L.J. 497 we do not think it necessary to deal with all the relevant statutory provisions and other judicial precedents mentioned in the reference order. The precise question, i.e. the effect of execution or non-execution of Qabuliatnama came to be determined by Hon'ble Supreme Court in Krishna Kumari's case (supra).
4. Facts of the case aforesaid reveal that one Banarsi Das was a big landowner. An area of 137 kanals 8 marlas of land was declared as surplus under the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as 'the Act of 1953), Banarsi Das died on 12th January, 1971 leaving behind Smt, Dropati Devi (wife) and daughters as his heirs (hereinafter referred to as 'the landowners'), who inherited the property left by him, Since each of them got land which was less than 30 standard acres and since the land in question had not been utilised, they gave an application under Section 10A(b) of the Act of 1953 that their land may be taken out of the surplus pool. This application was filed before the Collector (Agrarian) on 4th July, 1972. During the course of the proceedings, the concerned revenue officials submitted report to the effect that on the surplus land of Banarsi Dass, no tenant had been re-settled. Consequently, S.D.O, (Civil) by his order dated 30th November, 1972 exempted the land held by the landowners for surplus pool. On a later date, they also made an application before the Collector for cancellation of the allotment made in favour of Mangat Ram on 13th July, 1976, the Collector cancelled the allotment made in favour of Mangat Ram on the ground that the land had not been utilised and had already been exempted from surplus pool as indicated by the S.D.O. in his order dated 30th November, 1972, This order was challenged in appeal by Mangat Ram before the Collector, who by his order dated 8th August, 1983 allowed the appeal and remanded the case to the Collector (Agrarian) for a fresh decision. The landowners then filed appeal before the Commissioner, which was dismissed, Revision carried out before learned Financial Commissioner against the order, aforesaid also met with the same fate. The proceedings after remand turned, in favour of Mangat Ram, as application of the landowners for releasing the land from surplus pool was rejected and the allotment order passed in favour of Mangat Ram was upheld, It was found by the Collector that an area of 40 kanals 16 marlas had already been allotted to Mangat Ram on 21st February, 1964 and possession over the allotted land was also delivered to him on 17th March, 1964, This judgment was challenged by the landowners before learned Commissioner and Financial Commissioner and ultimately before this Court but with no favourable result. Aggrieved, the landowners filed an appeal before the Hon'ble Supreme Court.
5. The question that came to be considered by Hon'ble Supreme Court was with regard to utilisation or non-utilisation of the land before the death of Banarsi Das on 12th January, 1971, Taking into consideration Section 10-A and 10-B of the Act of 1953 as also Rules 20-A, 20-B, 20-C and SO-D of the Punjab Security of Land Tenures Rules, 1956 (hereinafter referred to as "the Rules of 1956"X it was held as under: -
"The statutory provisions quoted above indicate that the surplus land has to be allotted to a tenant already ejected or likely to be ejected for resettlement. After allotment of the surplus area to a tenant, a certificate in Form K-6, describing clearly the land allotted to him, is issued, copies whereof are sent to the Patwari concerned as also the landowner on whose land the tenant is to be resettled, Thereafter, possession of the allotted area is delivered to the tenant who is bound to take possession within a period of two months of the date on which demarcation of the land is made at the site in his presence or within such extended period as may be allowed by the Circle Revenue Officer. Once a tenant has been resettled, he becomes the tenant of the landowner and becomes liable to pay rent to that owner. Rule 20-C(c) further requires that the tenant so resettled, shall execute, a Kabuliyat or a Patta on the Proforma given in Annexure 'C' appended to the Rules in favour of the landowner, But the execution of Kabultyat or Patta has to be daw before the tenant is put in possession of the-land. Resettlement has to take place in the manner indicated in the above provisions. Once the process is completed, the surplus land shall he treated to have been utilised within the meaning of Section 10-A(a) of the Punjab Act. [Emphasis (in italics) supplied]"
6. The contention of learned counsel representing the landowners, based upon Financial Commissioner, Haryana and Ors. v. Smt. Kela Deyi and Anr., 1980 Rev.L.R. 351 and some other decisions, was that the process of utilisation did not move beyond the stage of allotment in favour of Mangat Ram and, therefore, the land shall not be treated to have been utilised as neither possession was taken over by him nor did he execute any Qabuliatnama in favour of Banarsi Das till the time of letter's death on 12th January, 1971. Even though, the question of delivery of possession in favour of Mangat Ram was a question of fact and had been returned in favour of Mangat Ram by all the authorities, it was once again discussed and conclusion arrived at that Mangat Ram, indeed, had taken possession in 1964. Contention of learned counsel representing the landowners with regard to non-execution of Qabuliatnama was then noticed by Hon'ble Supreme Court. Learned counsel had relied upon the findings recorded by the Commissioner, Ambala Division in his judgment dated 20th January, 1993 and Financial Commissioner in his judgment dated 21st January, 1997, which read thus:-
"Regarding the execution of Qabuliatnama under Rule 20-C, the respondent counsel has relied upon 1990 P.L.J. 485 and 1991 P.L.J. 714 which lay down that after delivery of possession execution of Qabuliatnama or Patta Nama is mere technicality and the utilisation cannot be assailed on this ground when the other conditions are complete, I find these two rulings quite relevant to the instant case."
"It is possible that in the process of allotment and utilisation of surplus land some of the technicalities like execution of Kabuliat Nama or delivery of possession within two months of the date of allotment may not have been fully complied with. But these are mere technicalities and a poor tenant cannot be deprived of his right to allotment of surplus land merely because some of these technicalities about; delivery of possession and utilisation of land had not been complied with."
7. On the basis of the findings, reproduced above, it was further the contention of learned counsel representing the landowners, that the same are wholly contrary to law laid down in Smt. Kela Devi's case (supra). He contended that if "Kabuliat" was not executed by Mangat Ram in favour of Banarsi Das at the time of delivery of possession, one of the steps for utilisation of surplus land, indicated in Rule 20-C was not followed and, therefore, the land could not be treated to have been utilised prior to the death of Banarsi Das in 1971. It is contended that the requirements indicated in Rule 20-C are mandatory in nature and, therefore, they had to be followed. If "Kabuliyat: was not executed, the land, it is contended, cannot be treated to have been utilised.
8. On the contention of learned counsel, as noted above it was observed by the Supreme Court that "we are not prepared to accept this contention."
9. The reasons that followed for not accepting the contention aforesaid read as follows :-
"Undoubtedly, all the requirements, indicated in Rule 20-C are mandatory in character and, therefore, clause (c) of Rule 20-C will also be mandatory for the reason that the first part of this clause contains in imperative terms and the tenant shall execute a ' 'Kabuliat" or ' 'Patta'' in favour of the landowner and the second part which is equally imperative says that it shall be done before possession is delivered to the tenant. It is obvious that if the second mandatory step was delivered by the Revenue Circle Officer himself as required by Rule 20-B, there is no reason to believe that the first mandatory step, immediately preceding the second step, was not taken particularly as possession would not have been delivered to Mangat Ram without execution of "Kabuliat". In fact, delivery of possession being the official act of the Circle Revenue Officer as indicated in Rule 20-B, a presumption has to be raised that all antecedent formalities were duly complied with."
"There is another reason for not accepting this argument of the learned counsel for the appellants. It is indicated in Section 9(1)(vii) that if the tenant does not execute the "Kabuliat" is specified in Annexure 'C' appended to the Punjab Security of Land Tenures Rules, 1953. It is in the form of a statement made by the tenant that he has taken the land belonging to "X" for cultivation to whom he would pay the rent per agriculture year regularly in time. The tenant also gives the undertaking that he would not:
(i) fail, without sufficient cause, to cultivate the land comprised in my tenancy, in the manner to the extent customary in the locality in which the land is situate;
(ii) use the land comprised in my tenancy in a manner which may render it unfit for the purpose for which I hold it; and
(iii) sublet the tenancy or a part thereof, "
"Note:- This qabuliyat or patta should be executed by the tenants in duplicate, who will give one copy to the landowner concerned and retain the other.''
10. It was further held that Kabuliyat is a document which is executed in favour of landowner and on being executed, is given to the landowner. The landowner, therefore, has to have it in his possession.... Moreover, .......had Mangat Ram not executed the Kabuliyat or Patta in favour of Banarsi Das, he would have been, by now, evicted from the land in question in view of the provisions contained in Section 9(1)(vii) of the Punjab Act. He would not have been allowed to continue in possession from 1964 till this date or at least till the death of Banarsi Das in 1971 without any proceedings being initiated for his eviction. Since Mangat Ram was in possession throughout, he shall be treated to have had a valid title to remain in possession which can be traced to the allotment of land followed by delivery of possession after completion of all other formalities including execution of "Kabuliyat" or Patta.
11. Contention of learned counsel representing the landowners that Qabuliatnama was not on record and, therefore, it must he held that it was not executed by Mangat Ram was also repelled, It was observed that "we cannot, merely because the "Kabuli' yat' is not on record, hold that Kabuliyat or Patta was not executed by Mangat Ram. Moreover, Kabuliyat is executed in duplicate. The original is handed over to the landowner while the copy is retained by the tenant. There is no requirement under the Act or the Rules that a copy of "Kabuliyat" shall also be placed on record."
12. Judgment of Supreme Court in Krishna Kwnari's case (supra), thus, clearly reveals that even if execution of Kabuliyatnama may be a necessary step for utilisation of the land under the provisions of the Act of 1953 and the Rules framed thereunder, a presumption of execution of Kabuliyatnama would arise for the reasons enumerated above based upon that Kabuliyatnama has to be executed before possession is handed over to the tenant. While referring the matter to the Larger Bench, requirement of execution of Kabuliyatnama as stipulated in Rule 20-C of the Rules of 1956 was also taken into consideration. It was further noted that in the present set of cases it was not even disputed that the tenants were put in possession long years back. The presumption that arises in execution of Kabuliyatnama when possession has been taken over by the tenants- was, however, not noticed. Once, it has been authoritatively held by the Supreme Court that presumption of execution of Kabuliyatnama is drawn, when it is proved that possession of the land, which was declared surplus, has been taken over by the tenants, no necessity arises to deal with the other issues, referred to in the order dated 21st February, 1994. It is significant to mention here that even non-availability of Kabuliyatnama on the record has also been discussed by Hon'ble Supreme Court and it has been held that there is no requirement under the Act or the Rules that a copy of Kabuliyat shall also be placed on record.
13. Shri P.N. Aggarwal, learned counsel representing the petitioner, however, contends that insofar as facts of the present case are concerned, it was an admitted position that Qabuliatnama was not executed. We, however, find no merit in the contention of the learned counsel, as noted above. The reliance of learned counsel for us to hold that in the present case it is an admitted position that Kabuliyatnama was not executed is based upon paragraphs 14 and 21(ii) of the writ petition and the averments made in the corresponding paras of the written statement filed on behalf of the respondents. Paragraph 14 and relevant averments made in paragraphs 21 (ii) of the writ petition read as follows:-
"14. That during hearing of the case before the Collector (Agrarian), Jalandhar, it was admitted on behalf of the alleged allottee and by the Naib Tehsildar, Surplus Area, appearing on behalf of the State Government that no Qabuliyat or Patta was executed by the alleged allottees in favour of the landowner - Petitioner. It was also found as a fact by the Collector (Agrarian), Jalandhar, that the petitioner had three adult sons on the "appointed day", i.e., 24th January, 1971.
21(ii). But admittedly in the present case no such Qabuliat or Patta was executed by the alleged allottee(s) or his/their successors-in-interest. The observations of respondent Nos.2 and 3 in this respect that non-execution of Qabuliat or Patta is a mere technicality and a formal defect not fatal are erroneous, illegal and against the binding precedents of the Supreme Court and this Hon'ble Court cited before them on behalf of the petitioner."
14. In paragraph 6 of the reply filed on behalf of the official respondents, it has been mentioned that once the possession was delivered to the allottees-tenants, there was no necessity to execute the Patta by the allottees or successors-in-interest. It has further been mentioned that as no application for the recovery of rent was filed by the landowner, it is presumed that the rent was paid to the landowner. Averments made in paragraph 14 of the petition have, however, been admitted. Insofar as, reply on behalf of the contesting respondents, i.e., the tenants is concerned, it has been averred in the written statement filed on their behalf that the original allottees, i.e., the predecessors-in-interest or respondent Nos.4 to 6 have complied with all the conditions as per rules and thus the utilisation was complete when they originally obtained possession of the land in question, the mere fact that there is no Qabuliatnama executed between the petitioner and the, original allottees will not effect the merits of this case, as the only purpose of execution of Qabuliatnama is to establish a relationship of landlord and tenant between an allottee and the landlord. This relationship clearly stands established between the allottees and the landlord as per the revenue record (Jamabandis and Khasra Girdawaries) since 1961, All the Jamabandis from 1963-64 showing the relationship of landlord and tenant have been annexed with the written statement. While making a reference to overwhelming documentary evidence, copies whereof have already been annexed with the written statement, it has further been averred that it is clearly established that there is a relationship of landowners and tenants. No doubt, in the later part of the same very para, i.e., para No.6, it has been averred that non-execution of Qabuliatnama by predecessor-in-in-terest of respondent Nos.4 to 7 is of no consequence at all. Insofar as, averments made in paragraph 14 of the petition and the corresponding paragraph of the written statement are concerned, it has been pleaded that contents of the said para are incorrect and denied. Respondents had never admitted anything before the Collector (Agrarian) nor there was any admission on behalf of the Naib Tehsildar, Surplus Area, as alleged. It has further been mentioned that Qabuliatnama was to be executed by an allottee before getting the possession and in ease possession' is delivered to an allottee but if there is no Qabuliatnama then it cannot be said that utilisation is not complete, Rather, the utilisation is completed as revenue record since 1961 to date clearly establishes a relationship of landlord and tenants between the private parties to the writ petition. In sub para (ii) of para 21, contentions raised earlier have been reiterated.
15. After carefully examining the pleadings of the parties, reproduced above, we are of the view that insofar as contesting respondents, i.e., tenants are concerned, it cannot be said on the strength of the pleadings that they had admitted non-execution of Qabuliatnama. The tenor of their pleadings would rather demonstrate that they were raising a question of law that non-execution of Qabuliatnama would be of no consequence. In other words, the pleadings made by the contesting respondents can be well interpreted to mean that even if there was no execution of Qabuliatnama, the same shall not make any difference. This, in our view, cannot be said an admission on the part of the contesting respondents that their predecessors-in-interest had not executed Qabuliatnama. They were not even in a position to state as to whether their predecessors-in-interest had executed any Qabuliatnama or not. The Qabuliatnama, if at all, could be executed only by their predecessors-in-interest. Obviously, they would have no knowledge of the fact that their fathers, who were inducted as tenants way back in 1960, had executed Qabuliatnama or not, particularly when about four decades had rolled by then.
16. Shri Ashok Aggarwal, learned Additional Advocate General, who appears on behalf of the respondents, contends that there is no admission at all that any of the pre-cedesors-in-interest of the contesting respondents had not executed Qabuliatnama. He further contends that there was no question of admission inasmuch as the landowners in the application that was filed by them, had not even specifically mentioned that no Qabuliatnama was executed. All that had been stated in the application was that all the formalities to complete utilisation of the land were not fulfilled, in view of the pronouncement of Hon'ble Supreme Court. When there was specific averments in the application made by the landowners, there was no question of a specific admission or denial in the written statement or reply that might have been filed by any of the respondents. He further argues that the admission with regard to non-execution of Qabuliatnama, as noted by the Collector in his order dated 12th May, 1989, has to be read in its correct perspective and if so read, it would not show that the tenants had admitted non-execution of Qabuliatnama at any stage. With a view to appreciate the contention of learned counsel, as noted above, we would like to reproduce the findings of so-called admission with regard to non-execution of Qabuliatnama recorded by, the Collector in his order dated 12th May, 1989, on the basis of which alone the whole case with regard to non-execution of Qabuliatnama is sought to be built. The same read thus:-
"The counsel for the landowner has laid more stress that there is no evidence on the file that Kabuliatnama was ever executed by the tenant in favour of the landowner. This fact has been admitted by the counsel for the tenants and the Naib Tehsildar (Agrarain) appearing on behalf of the State Government."
17. We find considerable merits in the contention of learned Additional Advocate General that the finding that there is no evidence on the file that Qabuliatnama was ever executed by the tenants in favour of the landowners is entirely different than the admission on non-execution of Qabuliatnama. The fact of non-availability of Qabuliatnama has since already been discussed by Hon'ble Supreme Court in Krishna Kumari 's case (supra). We may further mention that execution of Qabuliatnama cannot possibly be in the knowledge of the contesting respondents, who had inherited the tenancy under Section 8 of the Punjab Security of Land Tenures Act, 1953. The knowledge with regard to execution of Qabuliatnama could only be of the original landowner or the original tenants. Concededly, original tenants had died far before the application for re-computing the land in view of the provisions contained in the Act of 1972 came to be filed by the landowners.
18. Learned counsel representing the petitioner also relied upon the findings re--corded in paragraph 7 of the order passed by the Collector. The same read as follows:-
"In the present case, I find that the area measuring 76 kanals 9 marlas was declared surplus with Shri Swaran Singh, landowners in the year I960 and the said land was allotted to tenants and the possession was delivered on 6th February, 1992; but no Qabuliatnama was executed in favour of the tenants by the landowner. This fact has been admitted by the counsel for the tenants and the Naib Tehsildar, Surplus Area, appearing on behalf of the State Government."
19. We may only mention that paragraph 7 deals with the order passed by the Collector after reproducing in the earlier part, the contentions raised by learned counsel representing the parties. In so far as, admission that emanates from the contentions raised by learned counsel representing the parties are concerned, same pertain to only with regard to the non-availability of Qabuliatnama on the records of the case and, therefore, the Collector was not right in observing that no-execution of Qabuliatnama as such has been admitted by the counsel for the tenants and the Naib Tehsildar, Surplus Area appearing on behalf of the State Government. It is, no doubt true that insofar as learned Commissioner and Financial Commissioner are concerned, they determined the matter on the basis that non-execution of Qabuliatnama was only a formality but that does not mean that it is an admitted case of the respondent-tenants that no Qabuliatnama had even been executed between the original landowners and the original tenants.
20. Inasmuch as, the matter on facts needs to be determined in favour of the respondent-tenants in view of the judgment of Supreme Court in Krishna Kumari 's case (supra), we need not go into the other questions mentioned in the reference order. Suffice it, however, to say that Section 8 of the Act of 1972 deals with vesting of unutilised surplus area in the State Government. Provisions of Section 8 of the Act of 1972 dealing with unutilised surplus area are subject to the provisions of Section 15. Section 15 in turn deals with saving of certain rights of tenants of purchase land. None of the judgments relied upon by learned counsel representing the petitioner, reference of which have been made in the reference order, pertain to allotment of surplus area to a tenant and saving rights to a tenants to purchase the land under Section 15. We may only prima facie, observe that it is only the land, which has been utilised which vests with the State Government under Section 8 of the Act of 1972 and insofar as, the unutilised land is concerned, the landowners may be well within their right to ask for re-determination of the surplus area as per permissible limits mentioned in the Act of 1972, but the tenants right to purchase the land cannot whither away. As mentioned above, no necessity arises in the facts and circumstances of the present case to express any opinion on the issue aforesaid and the same is left open.
21. In view of the discussion made above, we find no merit in this petition and the same is dismissed, leaving, however, the parties to bear their own costs.
Sd/- Satish Kumar Mittal, J.