Punjab-Haryana High Court
Smt. Ghammo Bai And Others vs State Of Punjab And Others on 2 September, 2013
Bench: Jasbir Singh, G.S. Sandhawalia
CWP No. 5570 of 1988 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 5570 of 1988
Date of Decision:- September 02, 2013
Smt. Ghammo Bai and others ..............PETITIONER(S)
vs.
State of Punjab and others ...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present:- Mr. P.N. Aggarwal, Advocate,
for the petitioners.
Mr. K.K. Gupta, Addl. A.G., Punjab.
JASBIR SINGH, J. (Oral)
This order shall dispose of three writ petitions i.e. CWP Nos. 5570, 5571 and 5572 of 1988 as common question of fact and law are involved in all the three cases. To dictate order, facts are being taken from CWP No. 5570 of 1988.
Mukhtiar Singh, Mohinder Singh and Harbans Singh, sons of Puran Singh were the big land owners. Predecessor-in-interest of the petitioners namely Nathu Ram etc. purchased land in dispute from the above said big land owners on 04.10.1957. Under the provisions of Punjab Security of Land Tenures Act, 1953 (in short 'the 1953 Act'), proceedings to assess surplus land in the hands of big land owners were started. Vide orders dated 18.07.1962 (Annexure P-2) and 29.10.1962 (Annexure P-1), excess land was declared surplus in the hands of the big land owners. When proceedings were going on, vendees of the big land owners put in appearance before the authority concerned and qua them, in both these orders, following observation was made:-
"The Circle Revenue Officer held the investigation Gupta Shivani into this case. The transferees, who appeared before him, 2013.09.25 12:35 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5570 of 1988 2 contended that they were small landowners of below 10 SAs each and their claims may be considered. The claims of the bonafide transferees who purchased the land before 30-8- 1958, shall be taken into consideration at the time of resettlement of tenants. The landowner did not appear before the Circle Revenue Officer."
It was ordered that claims of the vendees to retain land purchased by them will be considered at the time of resettlement of the tenants. On 06.10.1964, the competent officer (Naib Tehsildar, Agrarian) passed an order that the land owned by Nathu Ram etc. shall not be utilized under the provisions of the 1953 Act. Order passed reads thus:-
"Sarvshri Jetha Ram, Nathu Ram, Tahla Ram, Khazan Ram, Panju Ram and Kotu Ram sons of Baggu Ram have purchased the land measuring 32 SA-4-3/4 Units situated in the above village Dila Ram out of the surplus area from Harbans Singh, Mukhtiar Singh and Mohinder Singh sons of Puran Singh, big landowners, by Registry dated 4.10.57, and the details of that area are attached herewith. Moreover, each of the above mentioned vendees has purchased 2/3 share of land measuring 13SA-3-1/4 U by Registry dated 30.1.58 from Kartar Singh, a big landowner. They have also purchased 1/3rd share of this area from Sadhu Ram, Mohana Ram, Pannu ram and Tek Chand sons of Suhawa Ram by Registry. Sadhu Ram and others had purchased this land on 30.1.58 from Kartar Singh, a big landowner, which is within time. In this way an area of 7SA- 9-1/4 U comes to the share of each of the vendees which is less than ten Standard area, and the transactions are earlier Gupta Shivani 2013.09.25 12:35 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5570 of 1988 3 to 30.7.58. They are not related to the landowners. Except this land there is no other land in the State of Punjab in the name of these six vendees-Jetha Ram, Nathu Ran, Tahla Ram, Khazan Ram, Panju Ram and Kotu Ram sons of Baggu Ram. Therefore there will be no utilization of this area under the Security of Land Tenures Act, 1953. Effect be given to it in the Register.
Order has been announced. 6.10.64"
It was specifically noticed that all the vendees named in that order have purchased land before 30.07.1958. They do not own any other land in the State of Punjab. They are the small land owners and are not related to the big land owners. Taking note of above said facts, their land was exempted from utilization under the 1953 Act.
Thereafter, it appears, that after enforcement of Punjab Land Reforms Act, 1972 (in short 'the 1972 Act'), notice under Section 9(1) of the 1972 Act was issued to the big land owners and also to their vendees namely Nathu Ram etc. Vendees put in appearance before the Special Collector, Agrarian and stated that they have purchased the land in question before the cut off date. They being owners of less than 10 standard acres of land and exemption from utilization of land under their possession was granted vide order dated 06.10.1964. Copy of that order was placed on record. Taking note of the same, vide order dated 28.07.1983 (Annexure P-3), notice issued to them was withdrawn.
Thereafter, the proceedings under Section 13(1) of the 1972 Act were taken up by the Special Collector, Agrarian to separate share of the big land owners in the joint khewat. Order was passed on 14.08.1984, the land which was purchased and in possession of Nathu Ram etc. was put in the surplus pool. It was decided to issue notice under Section 9 of the 1972 Act to take possession of that land. Similar order was passed qua land possessed by big land owner namely Gupta Shivani 2013.09.25 12:35 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5570 of 1988 4 Mukhtiar Singh under Section 13(1) of the 1972 Act qua joint land owned by Mohinder Singh and purchased by Nathu Ram etc. which was ordered to be included in the surplus pool. Petitioners objected to the said notice. It was stated by them that they are the small land owners, not related to the big land owners, had purchased land before the cut off date and their land was exempted from utilization vide order dated 06.10.1964, as such, possession cannot be taken from them of the land put in surplus pool vide orders dated 14.08.1984 (Annexures P-4 and P-5). Their objection was rejected on 19.06.1985 simply by saying that they had not laid challenge to the above said orders. Petitioners went in appeal, which was also dismissed on the same ground. Relevant order dated 10.06.1986 passed by the Commissioner (Appeals), Ferozepur Division reads thus:-
"I have heard the above arguments and seen the record. The appellants are successors in interest of some of the original vendees. The purchase was made subsequent to coming into force of the Punjab Security of Land Tenures Act and is hit by Section 10-A(iii) of the Act. There are two orders in favour of the appellants. The first one was passed by Naib Tehsildar (Agrarian) on 6-10-1964 and the order passed by Special Collector Fazilka, on 28-7-1983. Both these order suffer from material irregularity. There is no provision under the Law to grant any exemption to the vendee. Both the orders have an effect of reducing the surplus area and such orders have to be treated as illegal and void ab-initio. Reference has been made to instructions of the State Government about such exemption to the bonafide vendees who do not own more than 10 S.As. I am afraid the instructions are mis-interpreted, specially in the light of enactment of Land Reforms Act on 1972. Gupta Shivani 2013.09.25 12:35 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5570 of 1988 5
The instructions issued by the State Govt. in 1967 are merely executive instructions without a force of Law, specially when the Law is to prevail over all executive instructions. The State Government decided that all sales/transfers made to the bonafide vendees who do not own more than 10 SAs of land, shall be examined by the Collector and if the sales are held to be bonafide, the surplus land shall not be utilized for settling the tenants. The precise aim of the instructions was to prevent utilization by inducting tenants where sales was bona-fide. The nature of the land did not undergo a change. It remained surplus area, not utilized, due to executive instructions. However, the Land Reforms Act, 1972, provided that (Section 8) notwithstanding any law, custom and usage, all utilised surplus land declared surplus under the Punjab Act or PEPSU Act or under the Land Reforms Act shall be vested in the State. The provision of law is quite clear and unambigious. The legislation did not provide any exemption to the vendees. The net effect is that vendees have enjoyed stay on surplus land for a period, but nature of surplus land has not changed and all such lands must vest in the State. The Section 8 of the Act of 1972 over-shadows all executive instructions. The present appellants cannot take any benefit after the coming into the force of the Land Reforms Act and as such order passed by Special Collector on 28-7-1983 is void and illegal, as well as earlier order by Naib Tehsildar (Agrarian), dated 6-10-1964.
The proceedings under Section 13(1) were concluded Gupta Shivani 2013.09.25 12:35 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5570 of 1988 6 on 14-8-1984. The surplus area was separated after due notice to the appellants. They did not protest or prefer an appeal. As such, after separation of surplus land notice under 9(1) was in order. The Collector has passed a detailed and proper order setting aside objections by the appellant. I find no reason to interfere with the order passed by the Collector. The appeal therefore, fails.
The appeal is dismissed. The Collector Agrarian, Ferozepure, should allot the land to eligible persons within a month."
It was observed that order dated 06.10.1964 and order dated 28.07.1983, referred to above, were not valid in law. No protection could have been granted to the vendees of the big land owners. It was further stated that executive instructions cannot over-rule the provisions of the Act.
Petitioners went in revision, which was dismissed by the Financial Commissioner (Appeals) on 04.02.1988 on the similar grounds specifically stating that in the year 1964, there was no instruction of the Government to exempt such like lands from utilization. Hence this writ petition.
We have heard counsel for the parties. It is not in dispute that the big land owner Mukhtiar Singh died on 15.03.2004. After enforcement of 1972 Act, fresh proceedings to determine surplus land in the hands of his heirs were not started. When this matter came up for hearing on 06.05.2009, following questions were raised by counsel for the petitioners:-
"(1) When possession of surplus land was not taken under the Punjab Land Reforms Act, fresh steps are required to be initiated for determining surplus area of the land. Reliance has been placed on the judgment of the Hon'ble Supreme Court in Ujjagar Singh (Dead) by L.Rs v. Gupta Shivani 2013.09.25 12:35 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5570 of 1988 7
The Collector Bhatinda and another, 1996 PLJ 505.
(2) Since the land owner died after determination under the old law, the determination of surplus land was required to be made afresh, under the new law in the hands of heirs. Reliance has been placed on the Full Bench judgment of this Court in Ajit Kaur v. Punjab State 1980 P.L.J. 354;
(3) Since the land was exempted from utilization, the said exemption could not be withdrawn. Reliance has been placed on a Division Bench judgment of this Court in Bhagat Gobind Singh v. Punjab State and others, (1963) 65 PLR 105."
It is not in dispute that till today, the petitioners/the vendees are in possession of the land purchased by them on 04.10.1957. Neither under the old Act, i.e. the 1953 Act nor under the 1972 Act, State Government took possession of the land in dispute.
After reading of paper book, this Court is of the opinion that by passing the impugned orders, grave injustice has been done to the petitioners. It is positive finding of the authorities below that the petitioners/their predecessors-in- interest were not related to the big land owners. They do not own more than 10 acres of land in the State of Punjab. As such, they are the small land owners. Their land was also exempted from utilization vide order dated 06.10.1964 and order dated 28.07.1983 (Annexure P-3). Above facts were ignored when orders under challenge were passed. Perusal of order dated 06.10.1964, as reproduced in the preceding paragraphs of this order, shows that Naib Tehsildar, Agrarian noted above said facts and then ordered that in terms of Government instructions, their land be exempted from utilization. Similarly, in order dated 28.07.1983, placing reliance upon order passed in the year 1964, notice issued to the petitioners under Gupta Shivani 2013.09.25 12:35 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5570 of 1988 8 Section 9 of the 1972 Act was ordered to be withdrawn by the Special Collector. That very officer passed order against them on 14.08.1984 (Annexures P-4 and P-5 respectively) including land under their possession in the surplus pool.
We feel that orders passed are perfectly unjustified. As per instructions issued by the State Government on 22.07.1961, exemption was granted to the vendees who had purchased land upto 30.07.1958. The relevant instruction read thus:-
"It has been decided that the following two categories of surplus area which has been declared so far should not be utilized for resettling tenants thereon. They should be allowed to remain with the occupiers. Separate instructions are being issued to show such areas as utilized in the relevant Performa:-
i) The areas which have been declared surplus in erstwhile Punjab but which have been purchased by landless persons or small landowners who are not the relations of prescribed degree of the vender landowners, between the period 15.4.1953 and 30-7-1958, upto such limit which with other area owned by the person, comes upto 10 standard acres."
It is specifically stated that those vendees who are the small land owners and are not related to the big land owners and have purchased land between 14.04.1953 to 03.07.1958 upto 10 standard acres, land owned by them shall not be put to utilization. It was further stated that separate instructions will be issued showing that land had been utilized. Vide instructions dated 19.07.1966, the benefit given vide instructions dated 22.07.1961 was extended to those vendees also who had purchased land upto 01.02.1967. Taking note of above said instructions, order was passed in favour of the petitioners on 06.10.1964. Similar Gupta Shivani 2013.09.25 12:35 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5570 of 1988 9 benefit was further extended to the subsequent purchasers who are not related to the big land owners and their holding is not more than 10 standard acres vide instructions dated 05.12.1961. The authorities below have wrongly said that such like instructions were not there when land of the petitioners was exempted from utilization in the year 1964. In the face of above said instructions, relief cannot be declined to the petitioners. The petitioners are small land owners, in terms of instructions referred to above, land purchased by them which is in their possession till today should have been deemed to be utilized. Above facts were not taken note of by the authorities concerned when appeal and revision filed by the petitioners was dismissed on 12.06.1986 and 04.02.1988. In the later order, the Financial Commissioner wrongly said that no instruction, to exempt utilization of the surplus land was in existence in the year 1964. Simply because the petitioners have not laid challenge to an order dated 14.08.1964 separating land owned by the big land owner in the separate khewat, is no ground to decline relief to the petitioners which, otherwise, is coming out from the record.
In view of the above, the writ petitions are allowed. Impugned orders dated 14.08.1984 (Annexures P-4 and P-5), 19.06.1985, 10.06.1986 and 04.02.1988 (Annexures P-6 to P-8) are quashed. Orders passed on 06.10.1964 and 28.07.1983 are upheld.
(Jasbir Singh)
Judge
02.09.2013 (G.S. Sandhawalia)
shivani Judge
Gupta Shivani
2013.09.25 12:35
I attest to the accuracy and
integrity of this document
High Court Chandigarh