Punjab-Haryana High Court
Abnash Chander And Anr. vs State Of Punjab And Ors. on 29 November, 1996
Equivalent citations: (1997)115PLR619
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Present writ petition is under Article 226/227 of the Constitution of India, seeking directions against the respondents, i.e. State of Punjab; Financial Commissioner; Collector (Agrarian), Ferozepur, and Tek Chand son of Lekh Raj deceased (now represented by his legal representatives), respondents Nos. 1 to 4 respectively. The case set up by the petitioners is that respondent No. 4 Tek Chand was a big landlord and he owned land measuring 1020 Standard Acres and 9 Units in different villages of Ferozepur District. The surplus area case of respondent No. 4 Tek Chand deceased was decided by the Collector, Ferozepur, vide order dated 18.9.1963 under Punjab Security of Land Tenures Act, 1953 (for short 'the old act'). Learned Collector vide annexure P-2 declared the land measuring 673 Standard Acres 14-1/2 Units surplus and out of this area the land measuring 72 Standard Acres, 3/4 Units, which was brought under 'garden' between 15.4.1953 to 30.7.1958 was ordered not to be utilised for resettlement of tenants. Certain tenants of village Khuyvan Sarvar appealed against the said order of the Collector. The Commissioner, Jalandhar Division, Jalandhar accepted the appeal and remanded the case to the collector vide order dated 6.1.1966 for determining the tenant's permissible area. After the remand the collector vide order dated 7.4.1969 (Annexure P-2) decided the case of respondent No. 4. Exemption of the area under orchard was kept intact. The petitioners purchased 492 Kanals 3 Marlas of land in village Chak Dastool Sahib from respondent No. 4 Tek Chand deceased under two registered sale deeds dated 27.1.1972 and 24.3.1972. Out of the area so purchased, area measuring 31 Kanals 6 Marlas was the permissible area of Tek Chand and the remaining area was out of the area exempted from utilisation. Mutation of the land purchased by the petitioners was sanctioned in the year 1972 and the petitioners entered into actual physical possession thereof. Thereafter the petitioners made lot of improvements on the land and spent Rs. 2.5 lacs. They also built residential house on the land in question. Thereafter the Punjab land Reforms Act (for short 'the New Act') came into force on 2.4.1973 and as per Section 3(1) of this Act the appointed date is 24.1.1971. On 3.12.1975 Tek Chand filed an appeal against the order of the Collector dated 7.4.1969 (Annexure P-2) and the Commissioner accepted the appeal vide order dated 14.6.1976 and remanded the case to the Collector for fresh decision. The Collector vide order dated 4.5.1977 again decided the surplus area of respondent No. 4 and he in an illegal manner reduced the limit of the area exempted from utilisation from 72 standard Acres 3/4 units to 19 standard Acres and 12 Units and thereby included the area purchased by the petitioners in the surplus pool of respondent No. 4. The petitioners alleged that no notice was given to them in spite of the fact that they were the bona fide purchasers and they have been shown as landowners in the revenue record. They were interested and the necessary parties. Under the law it was obligatory for the Collector to issue notice before passing the impugned order dated 4.5.1977, as the case had been remanded to him for fresh decision. By not doing so, the Collector had violated the principles of natural justice and passed prejudicial orders against the petitioners at their back without affording them any opportunity. This order dated 4.5.1977 is annexure P-3. The petitioner further claimed that the land measuring 72 Standard Acres 3/4 units being a garden, which was set up by respondent No. 4 Tek Chand deceased between 15.4.1953 to 13.7.1958 was exempted from utilisation as ordered by the Collector previously vide order dated 18.9.1963 (Annexure P1) and the said order of the Collector was never challenged by the State by way of appeal or otherwise. Even while passing the order (Annexure P3) the Collector agreed with the order (Annexure P-1) to that extent. As per Section 4(5) of the New Act, the bona fide transferees for consideration are required to be protected. The Collector after remand illegally decided the case under the old Act i.e., the Punjab Security of Land Tenures Act; rather he ought to have decided the surplus area case of respondent No. 4 under the New Act, i.e. Punjab Land Reforms Act, 1972, so far as these provisions are inconsistent. Petitioner's case further is that on 22.6.1977 they filed an appeal against the order Annexure P-3 of the Collector and the Commissioner dismissed the appeal vide order (P-5) on 22.12.1977. Vide order (P7) even the Financial Commissioner dismissed the revision and in this manner the orders Annexures P-3, P5 and P-7 are being challenged in the present writ petition mainly on the ground that the petitioners are the bona fide purchasers; that the area ought to be exempted from utilisation being a garden, which was set up between 15.4.1953 to 30.7.1958 and the Collector could not reduce this area from 72 Standard Acres 4 Units to 19 Standard Acres and 12 Units, as per wishes of respondent No. 4. The surplus area case of respondent No. 4 ought to be decided as per the new provisions of Punjab Land Reforms Act, 1972; that the petitioners are the bona fide purchasers of the land from respondent No. 4 and they had made considerable improvements on the land and that the order of the Collector has been passed at the back of the petitioners and in this manner all the three authorities have illegally decided the surplus area case of respondent No. 4. In these circumstances, the orders (Annexure P3, P5 and P7) ought to be quashed.
2. Two sets of written statement are on the record-one filed by respondents Nos. 1 to 3 who have admitted the factual position as alleged by the petitioners but, however, they have tried to justify the orders (Annexure P3, P5 and P7). Real contest has been given by respondent No. 4, who alleged that the present petition has been filed with a mala fide intention. In fact Tek Chand was the Karta of the joint family consisting of himself and his sons and he employed Gurdarshan Lal father of the petitioners Nos. 1 and 2 as Manager for looking after the lands of his family, in villages Dastool Sahib Wala and Mohkam Khan Wala, Tehsil Ferozepur in the year 1965. A residential house was provided to him. Said Gurdarshan Lal and his family started residing in the house. Gurdarshan Lal showed good results as a farm Manager because of his efficient management. This resulted in bringing closer Gurdarshan Lal to respondent No. 4. Earlier Gurdarshan Lal was appointed on a monthly salary of Rs. 250/- per month and later on his salary was increased. In the beginning of 1972, respondent No. 4 was mentally agitated because of the impending Agrarian Legislation, and in order to save his land from being declared surplus, he ostensibly transferred his land to different persons including his relations and friends. Tek Chand depended upon Gurdarshan Lal who was man of confidence and started executing sale deeds fictitiously in the name of different persons, including the petitioner in order to save his land from being declared surplus. In fact, no money was ever paid to respondent No. 4 in pursuance of the sale deeds being relied upon by the petitioners who, according to this respondent, are not the bona fide purchasers. In fact, the sons of the answering respondents have already filed suits in the Civil Courts challenging the genuineness and validity of the transfers and those suits have been decreed. The petitioners arc not the bona fide purchasers. The case has been rightly decided by the Collector, Commissioner and Financial Commissioner vide orders Annexures P-3, P-5 and P7 and there was no non-compliance of the principles of natural justice and the case of respondent no. 4 has been correctly decided under the Old Act, i.e. the Punjab Security of Land Tenures Act. The provisions of the New Act, i.e. the Punjab Land Reforms Act, are not attracted to the present case and finally respondent No. 4 prayed for dismissal of the writ petition by filing certain annexures, including Annexure R-2, copy of the judgment dated 29.7.1978 passed in Civil Suit No. 56 of 1976 titled Avnash Chander v. Tek Chand.
3. Present Writ Petition has been disposed of with the assistance of Shri Anil Khetarpal, Advocate appearing for the petitioners. Shri P.S. Chhinna, Sr. D.A.G. Punjab appearing for respondent Nos. 1 to 3; and Shri Balraj Bahl, Advocate, appearing on behalf of respondent No. 4.
4. The real contest is between the petitioner and respondent No. 4. A perusal of the written statement filed by respondent No. 4 would show that his main defence is that he executed various sale deeds in order to save his land from agrarian legislation and in his written statement he submitted that sale deeds dated 17.1.1972, 22.2.1972, 8.5.1972, 30.3.1972, 27.3.1973 and 21.3.1972 are some of the sale deeds which have been executed for ostensible consideration. During the pendency of the present writ petition, the petitioners filed Civil Misc. No. 22397 of 1996 and have sought permission to place on record copy of the judgment dated 16.3.1994 passed in R.S.A. No. 747 of 1984. Regular Second Appeal was against the judgment and decree dated 28.10.1980 passed by the Court of Senior Sub Judge, Ferozepur; and the judgment dated 6.3.1984 passed by the Court of Additional District Judge, Ferozepur who affirmed the judgment of the trial Court. The suit was filed by Abhimanyu Ansal and Navin Ansal against the present petitioners and also by impleadings Tek Chand and Gurdarshan Lal as respondents. It was a suit for declaration by the sons of Tek Chand, alleging that the sale deeds executed by their father Tek Chand on 17.1.1972 in respect of the land measuring 100 Kanals 17 Marlas situated in village Dastool Sahib in favour of defendant No. 2, i.e. Gurdarshan Lal for an ostensible consideration of Rs. 50,000/- and the sale effected by defendant No. 4 Tek Chand vide sale deed dated 22.2.1972 in respect of the land measuring 114 Kanals 12 Marlas situated in village Dastool Sahib in favour of Abnash Chander for ostensible consideration of Rs. 40,000/- was illegal as the property was a joint Hindu Family property and defendant No. 4. Tek Chand sold the property without any legal necessity and for benefits of estate. Though this suit was decreed by the trial Court and the first appellate court but in the second appeal both the judgment were set aside by the High Court and I will incorporate the operative portion of this judgment in the later part of this judgment, but at this stage I want to say that this judgment has a great bearing while deciding the present writ petition and in these circumstances the petitioners are allowed to place on record copy of the judgment dated 16.8.1994 was Annexure P-8.
5. A perusal of the judgment of the High Court Annexure P-8 would show that it has been held therein that Tek Chand sold the property of his free-will; and that it was not a benami transaction, as alleged by the plaintiffs. Further it has been held in this judgment that the property belonged to Tek Chand and it was not a joint Hindu Family property and that the vendees were the bona fide purchasers. If this is the position, as per the provisions of the Old Act, i.e., the Punjab Security of Land Tenures Act as amended by the Punjab Land Reforms Act, the land which was sold by Tek Chand to the different vendees, including the present petitioners is to be protected by holding that the vendees are the bona fide purchasers for consideration. The material portion of the judgment of the High Court is reproduced as follows :-
"A bare perusal of these two plaints coupled with the earlier award of the arbitrator gave a clear indication that the parties agreed to separate in April 1958 and it is on the basis of this agreement that the award and two decrees of the Court were suffered by Tek Chand. Tek Chand too while appearing in the Court accepted the aforementioned decrees as well as the award made against him. In addition thereto, it has come on record and accepted by Abhimanyu plaintiff that he executed certain sale deeds in respect of the land which fell to his share. With this material finding on record, I am of the view that the Courts below erred in law in not viewing the point in controversy in a correct perspective. The land which has now fallen to the share of the plaintiffs in terms of the Civil Court decree and the award, the same approximately measures 71 ordinary acres. In addition thereto 23 acres of land fell to the share of Smt. Usha Rani. From the remaining land measuring about 105 acres, a number of sale transactions were effected by Tek Chand in between the year 1970-71 to 1973-74, thus leaving almost an equal area with that of the plaintiff. Besides this, there is no evidence on record on the basis of which it could be concluded that the parties remained joint. As per Tek Chand's deposition he is income-tax and wealth tax assessee and in these returns has been showing income as his exclusive property which also belies his assertion that he is still joint with his sons. Besides this, one cannot lose sight of the fact that the plaintiffs as well as Tek Chand filed separate declaration forms as envisaged by provisions of the Punjab Land Reforms Act claiming separate permissible areas. In these declaration forms reference was made to the various sale deeds executed by them after the appointed day i.e. 24.1.1971 wherein too there is no mention that all these sale transactions were benami or sham and executed solely with a view to save their land from falling in the surplus pool. The courts below somehow have chosen to accept the bald assertion of the plaintiffs that all these transactions were executed by them or by their father so as to save the land from the surplus pool. It is difficult to accept this proposition at its face value. It also cannot be accepted that the impugned sale transactions were executed in favour of sons of Gurdarshan Lal - manager of Tek Chand - on account of very cordial relations between them. It is worth noticing that except for these two sale deeds (now subject matter of the present appeal) no other sale transaction has been challenged by the plaintiffs or Tek Chand though sale transactions are stated to have been executed in favour of near relations or Gurdarshan Lal. Thus, I am of the view that there was disruption in the Joint Hindu Family way back in the year 1958 who thereafter had been asserting their individual claims and the finding recorded by the Courts below is consequently reversed.
Similarly, I am unable to accept the conclusion of the Courts below that these sale deeds were executed without consideration and to ward off the stringent effect of the Punjab Land Reforms Act. Since part of the amount was paid as earnest money and the remaining before the Sub Registrar there was no need for the courts below to go into the matter as to whether defendants were possessed of sufficient means to purchase the suit land. How and in what manner a person raises an amount is none of the functions of the Court. All that it has to be seen is whether, in fact, money was paid to the vendor or was tendered before the Sub Registrar at the time of the registration of the sale deed. The evidence led by the plaintiffs that money, in fact, was supplied by Tek Chand is too difficult to swallow. At least, it does not appeal to a reasonable mind. In fact, no evidence has been led by Tek Chand or the plaintiffs that such an amount was withdrawn from any bank account or from the recognised source so that an inference could be drawn by the Court in this regard. The approach of the Courts below is highly conjectural. This finding of the lower, appellate court too is set aside and is held that sales were executed for consideration."
This judgment of the High Court has become final and the effect of the same is that the present petitioners are to be held as bona fide purchasers and the area which was sold in their favour by Tek Chand could not be taken into consideration for determining the surplus area of respondent No. 4 of the present writ petition. The plea of benami on the part of Tek Chand has to be rejected and no reliance can be placed on the judgments of the trial Court as well as the first appellate court. Even otherwise, the provisions of the Punjab Security of Land Tenures Act were repealed by the Punjab Land Reforms Act on account of Section 28 of the New Act so far as the provisions are inconsistent. In these circumstances, it was obligatory on the part of the Collector (Agrarian) to determine the surplus area case of respondent No. 4 Tek Chand as per the new provisions and he could not decide the case under the old Act because the orders have been passed after the enforcement of the New Act. There is no answer to the judgment (Annexure P8) passed by the High Court in the year 1994.
6. In the light of the above discussion, the present writ petition stands allowed and the impugned order (Annexure P3, P5 and P7) are hereby quashed. Directions are given afresh to the Collector (Agrarian) Ferozepur, to redetermine the surplus area case of respondent Tek Chand (deceased) as per the Punjab Land Reforms Act, 1972, and while redetermining the surplus area case, the area which has been purchased by the present petitioners from Tek Chand deceased under the two sale deeds, relied upon by them, must be excluded. There will, however be no order as to costs.