Punjab-Haryana High Court
Smt. Taran Bai And Others vs The Financial Commissioner (Revenue) on 5 August, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No.17332 of 1994 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
CWP No.17332 of 1994
Date of Decision : 5.8.2013
Smt. Taran Bai and others .....Petitioners
Vs.
The Financial Commissioner (Revenue),Punjab and others ....Respondents
...
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK ...
Present : Mr. S.C. Chhabra, Advocate for the petitioners.
Mr.Rajesh Mehta, Addl.A.G., Punjab, for the State.
Mr. Naresh Prabhakar, Advocate for respondent no.4.
...
RAMESHWAR SINGH MALIK, J The present writ petition is directed against the order dated 16.9.1993 (Annexure-6) passed by the Financial Commissioner (Appeals), Punjab, whereby he accepted the revision petition of respondent no.4 against the order dated 14.3.1989 (Annexure P-3) passed by the Commissioner, Ferozepur Division, Ferozepur, who has held that Collector (Agrarian), Fazilka has rightly decided the surplus area case of respondent no.4.
Facts first. Respondent no.4 suffered two sale deeds dated 30.6.1976 and 1.7.1976 selling land measuring 115 kanals 2 marlas in favour of predecessor-in-interest of petitioners no.1 to 4 and in favour of petitioners no.5 and 6. The land sold by respondent no.4 was shown to be free from all encumbrances, which was situated in village Sappanwali, Distt. Ferozepur. Initially, surplus area case of respondent no.4 was decided on 31.8.1977. Vide CWP No.17332 of 1994 2 his order dated 28.10.1987 (Annexure P-1), the Financial Commissioner (Appeals), Punjab, remanded the matter back to Collector (Agrarian) for fresh decision keeping in view the direction issued. In compliance of the above said orders dated 28.10.1987 (Annexure P-1), Special Collector (Agrarian) decided the case afresh vide order dated 27.4.1988 (Annexure P-2) in favour of the petitioners, holding that the area sold by respondent no.4 should have been put in his reserved area, because respondent no.4 was not entitled for double benefit, as he had already sold the above said land for due consideration in favour of the petitioners. Accordingly, putting the above said sold area measuring 115 kanals 2 marlas of village Sappanwali in the reserved area of land owner-respondent no.4, the equivalent area from his reserved area of village Karnikhera was ordered to be put in the surplus pool. Aggrieved, respondent no.4 filed his appeal before the Commissioner, Ferozepur Division, Ferozepur, who dismissed the same vide order dated 14.3.1989 (Annexure P-3). This order of the Commissioner was challenged by respondent no.4 before the Financial Commissioner, which was allowed vide impugned order dated 16.9.1993 (Annexure P-6), setting aside the inclusion of the sold land in the permissible area of land owner-respondent no.4. Hence this writ petition.
Notice of motion was issued and dispossession of the petitioners was stayed. Written statement was filed on behalf of respondent no.4. Respondents no.1 and 2 filed their separate written statement.
Learned counsel for the petitioners submits that the petitioners were bonafide purchasers for due consideration. Once respondent no.4 had suffered two above said sale deeds in favour of the petitioners, he was out of picture and would have no control on that part of land, which was sold by him. No provision of Punjab Land Reforms Act, 1973 (for short `the Act') supports CWP No.17332 of 1994 3 the claim of respondent no.4. The Financial Commissioner proceeded on an erroneous approach while passing the impugned order, which was contrary to the record. Cogent findings recorded by the Collector and Commissioner were not even reversed by the Financial Commissioner. He finally prays for setting aside the impugned order dated 16.9.1993 (Annexure P-6) by allowing the present writ petition.
Per contra, learned counsel for respondent no.4 submits that respondent no.4 did not commit any illegality, while selling the above said land measuring 115 kanals 2 marlas, vide above said two sale deeds dated 30.6.1976 and 1.7.1976. Inspite of the above said sale deeds having been suffered by him, respondent no.4 was entitled to ignore them and the sold area measuring 115 kanals 2 marlas could not have been included in his reserved area. In support of his contention, he relies upon the judgement of the Hon'ble Supreme Court in Lajpat Rai and others Vs. State of Punjab and others, 1981 PLJ 316 and two judgements of this court in Harbans Singh and others Vs. Ajit Singh and others, 1975 PLJ 85 and Bansi Lal Vs. Waryam Singh and others, 1970 PLJ 234. He prays for dismissal of the writ petition.
Learned counsel for the State supports the contention raised by learned counsel for respondent no.4 and also prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after 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 the present writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record and had not been in dispute at any point of CWP No.17332 of 1994 4 time that respondent no.4 sold agricultural land measuring 115 kanals 2 marlas vide two registered sale deeds dated 30.6.1976 and 1.7.1976. Respondent no.4 suffered these two sale deeds in favour of predecessor-in-interest of petitioners no.1 to 4 and in favour of petitioners no.5 and 6. A categoric averment taken by the petitioners in para 2 of the writ petition that these sale deeds indicated that the land was free from all encumbrances, has not been denied by the respondents. The first sentence of para 2 of the written statement filed by respondent no.4, which is relevant here reads "that para 2 of the petition to the extent of execution of the sale deed is correct". So far as the official respondents are concerned, para 2 of their written statement contains only one sentence and the same reads as follows : "that the contents of para 2 of the writ petition are admitted".
It is also a matter of record that surplus area case of the land owner-respondent no.4 came to be decided for the first time on 31.8.1977 as recorded by the Special Collector (Agrarian) in the order Annexure P-2 at page 23 of the paper book. It is also not in dispute that the land, which was sold by respondent no.4 to the petitioners was situated in village Sappanwali, Distt. Ferozepur. The particulars of the sold land measuring 115 kanals 2 marlas find mentioned at Annexure `C' at page 28 of the paper book. This order dated 27.4.1988 was passed by the Special Collector (Agrarian) and the same is appended at Annexure P-2. In such a situation, how the land owner-respondent no.4 could have been allowed to take the benefit of a clever device adopted by him proceeding on a malafide intention, so as to defeat the object of the Act. Neither the law nor the equity is in favour of land owner-respondent no.4.
During the course of hearing, learned counsel for respondent no.4 and also learned counsel for the State, could not point out any provision of law CWP No.17332 of 1994 5 from the Act i.e. Punjab Act No.10 of 1973, which might support their contention. The appointed day under the Act was 24.1.1971. Knowing fully well about the consequences of the Act, respondent no.4 proceeded in a clever manner and sold the above said big chunk of land in favour of the petitioners for due consideration and pocketed that amount. He wanted to avoid the operation of law by executing the above said sale deeds. Since the proceedings for deciding the surplus area case of respondent no.4, were yet to be initiated against him, it was rightly indicated in the sale deeds that the land was free from all encumbrances, as recorded by the Financial Commissioner in the order dated 28.10.1987 (Annexure P-1).
It has also been recorded in the order Annexure P-1 that in the initial order of the Collector, this land was indicated in the permissible area of the land owner. It is pertinent to note here that at the time of deciding the surplus area case of respondent no.4, petitioners were not granted even an opportunity of being heard, despite they being bonafide purchasers. It was at their instance that the Financial Commissioner remanded the matter back, vide order Annexure P-1, directing the Collector to review his order dated 15.9.1981, after hearing the petitioners. Consequently, both the parties appeared before the Collector (Agrarian). Petitioners in their evidence placed on record the copies of above said registered sale deeds dated 30.6.1976 and 1.7.1976. It was contended on behalf of the petitioners that the land-owner had no right, that first he would sell his reserved area and then to put the same in the surplus pool.
It was the argued case on behalf of the petitioners that the land purchased by the petitioners be directed to be included in the reserved area of land-owner and an equivalent area of land from his reserved area be included CWP No.17332 of 1994 6 in the surplus pool, so that the land owner-respondent may not get double benefit, thereby defeating the very object of the Act. Special Collector (Agrarian) rightly appreciated the above said factual as well as legal aspect of the matter, while passing the order dated 27.4.1988 (Annexure P-2), which deserves to be upheld, in the peculiar fact situation of the present case.
An appeal filed by respondent no.4 was also rightly dismissed by the Commissioner, Ferozepur Division, Ferozepur, vide his order dated 14.3.1989 (Annexure P-3). The relevant observations made by the Commissioner, read as under :-
" I have carefully gone through the record of the case including the impugned order. I have given careful consideration to the arguments of the learned counsels and the State counsel. The land in question was sold to respondents no.2 to 4 vide registered sale deeds dated 30.6.1976 and 1.7.1976. The land was purchased after having paid the price in full. At the time when the land was sold, it was a part of the reserved area of the appellant. However, subsequently the appellant changed the reserved area and put the land in question in the surplus area. Thus, the appellant has tried to play a trick so as to obtain double advantage. This however, cannot be allowed. The Special Collector, Agrarian, Fazilka, has decided the case correctly. There is no merit in the appeal which is hereby dismissed."
A combined reading of the above said orders passed by the Special Collector (Agrarian), Distt. Ferozepur and the Commissioner, Ferozepur CWP No.17332 of 1994 7 Division, Ferozepur, would make it clear that they proceeded on a factually correct and legally sound approach, while passing their respective orders and the same deserve to be upheld. However, the Financial Commissioner fell into serious error of law, while accepting the revision petition of respondent no.4, vide impugned order dated 16.9.1993 (Annexure P-6). The relevant operative part of the impugned order passed by the Financial Commissioner, reads as under :-
" I have considered the pleas of the parties and have gone through the record of the case. In my considered opinion, the inclusion of land sold by Inder Mohan to respondents no.2 to 4 in his permissible area is not warranted by law. In my considered opinion, there is no legal provision prohibiting a landowner from disposing of any part of his holding. It is for the purchaser to ensure that the land which he is purchasing is free from all incumbrances and liabilities. It has been held in Supreme Court of India in 1981 PLJ page 316, that a Collector has no authority to vary the selection of permissible area made by a landowner. In the present case, the petitioner when he submitted form `A' had reserved for himself only the land situated in village Karni-Khera. The land in dispute which is situated in village Sappanwali was not reserved by the landowner. Further the purchase was made by the respondent in 1976, when the Punjab Land Reforms Act had already come into force and under the provisions of which, such purchase was liable to be ignored. There is, therefore, CWP No.17332 of 1994 8 no equity in favour of the respondents 2 to 4 to have the land purchased by them in 1976, included in the permissible area of the petitioner, whose right of selection under Section 5 of the Punjab Land Reforms Act cannot be modified to suit the convenience of the transferees. The respondents 2 to 4 as transferees, must be credited with full knowledge of the extent of the land owned by the transferer and the consequent flowing therefrom in view of the provisions of the Punjab Land Reforms Act. It is also obvious that the land was purchased by the respondents 2 to 4, after the submission of the form `A' by Inder Mohan and during the pendency of the surplus area proceedings. At the time of the purchase, the area did not form a part of the area selected by the landowner. The decision dated 31.8.1977 does not help the petitioners as it was set aside in appeal. There is no recital in the sale deeds that the area transferred by sale to respondents 2 to 4, forms part of the permissible area of the vendor. Therefore, the inclusion of the land in dispute in the permissible area of the petitioner deserved to be set aside. The revision petition is accepted and the impugned orders are quashed. The Collector (Agrarian) Abohar is directed to exclude the land sold by the landowner to the respondents 2 to 4 from the permissible area of the petitioner and prepare fresh Annexures accordingly. The parties will appear before him for this purpose on 25.10.1993."
CWP No.17332 of 1994 9When the above said impugned order passed by the Financial Commissioner is examined in the context of peculiar facts and circumstances of the case, it has been found that the Financial Commissioner has proceeded on a wholly misconceived approach, while passing the impugned order. He has misread the facts of the case and misunderstood the relevant provisions of law. Although, the Financial Commissioner was having limited jurisdiction, while deciding the revision petition, yet he passed the impugned order even without setting aside the cogent and concurrent findings recorded by the Collector as well as the Commissioner. The judgement of the Hon'ble Supreme Court relied upon by the Financial Commissioner and also by learned counsel for the respondents in Lajpat Rai's case (supra) was rendered by the Hon'ble Apex Court on a different set of facts and under Punjab Security of Land Tenures Act, 1953. In the present case, respondent no.4 had been proceeding on a dishonest and malafide approach right from day one, when he suffered the above said two sale deeds in favour of the petitioners. In such a situation, as discussed herein above, it is unhesitatingly held that such a dishonest litigant was not entitled for any protection under the Act, particularly when his purpose was to defeat the very object of the Act.
It is pertinent to note here that before coming into force the Act, two enactments, namely; The Punjab Security of Land Tenures Act, 1953 and the Pepsu Tenancy and Agricultural Land Act, 1955 were in force in the State of Punjab. After giving thoughtful consideration to the various aspects of the land reforms measures, which were thought necessary in the interest of social justice and also agricultural production, it was decided by the legislature that the ceiling limits should be suitably reduced. It was considered necessary to withdraw certain benefits, which were allowed under the above said two CWP No.17332 of 1994 10 enactments. The Act was enacted so as to achieve the above said objects. In this view of the matter and giving due regard to the legislative intent behind the enactment of the Act, so as to achieve the above said objectives, this court feels no hesitation to conclude that respondent no.4 has made a dishonest attempt to defeat the objects of the Act for his personal gain and that too at the cost of the petitioners.
Another equally important issue would be, whether a bonafide purchaser, like the petitioners herein, can be left in the lurch, who have been duped by a greedy and dishonest land-owner like respondent no.4 herein. The answer is and has to be an emphatic `No'. A bonafide purchaser must not be made to suffer at the hands of a dishonest person. Petitioners were vigilant enough at the time of purchasing the above said land. It was so recorded in the sale deeds that the land was free from all encumbrances. Ownership of respondent no.4 was not in doubt. They paid due consideration for the land purchased vide above said two sale deeds. Thereafter, respondent no.4 tried to play smart with the State authorities, while not disclosing the factum of above said sale deeds. Under such circumstances, the impugned order passed by the Financial Commissioner cannot be sustained.
So far as the judgements relied upon by learned counsel for the respondents are concerned, the same are of no help to them, being distinguishable on facts. It is the settled proposition of law that peculiar facts of each case are to be seen, examined and appreciated first before applying any codified or judgemade law thereto. Sometimes, difference of one additional fact or circumstance can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundrao Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.
CWP No.17332 of 1994 11
Further, it is not even the argued case on behalf of the respondents that the provisions of Punjab Security of Land Tenures Act, 1953, which were the subject matter of consideration before the Hon'ble Supreme Court and this court in all the three judgements relied upon by learned counsel for the respondents, were pari-materia with the provisions of 1972 Act, applicable herein. Besides this, since the fact situation in the cited judgements was altogether different, the same are distinguishable on facts.
In the present case, the above said two sale deeds suffered by respondent no.4 in favour of the petitioners, who were bonafide purchasers, were not protected under the Act, because both the sale deeds were executed after the appointed day. Section 7 of the Act, which is relevant for this purpose, reads as under :-
"Determination of permissible and surplus area - (1) On the basis of the information given in the declaration furnished under section 5 or the information obtained under section 6, as the case may be and after making such inquiry as he may deem fit, the Collector shall, by an order determine the permissible area and the surplus area of a landowner or tenant, as the case may be.
(2) If any person referred to in sub-section (1) of section
5 fails to furnish the declaration or files a declaration containing information which is false or which he knows or has reason to believe to be false or which he does not believe to be true, he shall be punishable with the imprisonment which may extend to two years, or with fine which may extend to two thousand rupees or with both.
CWP No.17332 of 1994 12(3) XXXX (4) For the purpose of determining the surplus area of any person -
(i) any judgement decree or order of a court or other authority obtained on or after the appointed day and having the effect of diminishing the surplus area of such a person ;
(ii) a tenancy created on or after the appointed day in any land which has been or could have been declared as surplus area of such a person under the Punjab Law, the Pepsu law or this Act shall be ignored."
A bare perusal of the above said provisions of law contained in Section 7, would make the intention of legislature crystal clear. A false declaration furnished by any landowner was made an offence punishable with imprisonment which may extend to two years. Even the judgement, decree or order of a court or other authority obtained on or after the appointed day or any tenancy created after the appointed day were liable to be ignored. In this view of the matter, atleast respondent no.4 was not at all entitled to the protection of the kind he was seeking. Any contrary interpretation will lead to defeat the objects, which were sought to be achieved by the Act.
The above said view taken by this court also finds support from the law laid down by this court, under somewhat similar circumstances, in the judgements of, Bhupinder Singh Vs. State of Punjab, 1992 PLJ 462, Satnam Rai Vs. Financial Commissioner, Punjab (Revenue) 1994 (1) RRR 511 and CWP No.17332 of 1994 13 Balbir Singh Vs. F.C. (Appeals), Punjab, 1997(1) RCR (Civil) 288. The relevant observations made by the Division Bench in Balbir Singh's case (supra), which aptly apply in the present case, read as under :-
" To us, it appears that the landowner has made an attempt to find a convenient conduit to flout the provisions of law by not including the disputed land in her permissible area and then disposing of the same by way of sale.
XXX......... When the law has treated all the transfers of land effected after 2.4.1973 as void, the court cannot infuse any life into such dead transactions and cannot interpret the law which would enable the landowner to bypass the salutary provisions of the 1972 Act."
Again, the observations made by this court in Satnam Rai's case (supra), which can be gainfully followed in the present case, read as under :-
" It is no doubt correct that the sales made after the appointed day by a big land-owner cannot affect the declaration of surplus area. It is also true that a land owner cannot be permitted to take advantage of such a sale." Recapitulating the facts of the present case and owing to the objects sought to be achieved by the Act, it is unhesitatingly held that the above said two sale deeds suffered by the land owner-respondent no.4, after the appointed day, were not protected under the Act. The Collector as well as Commissioner recorded cogent findings and the orders passed by them at Annexures P-2 and P-3 deserve to be upheld, whereas the impugned order CWP No.17332 of 1994 14 passed by the Financial Commissioner cannot be sustained, being contrary to the facts, provisions of law contained in para 7 of the Act and the law laid down by this court, discussed herein above.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons noted above, this court is of the considered opinion that the impugned order dated 16.9.1993 (Annexure P-6), being illegal on the face of it, cannot be sustained and the same is hereby ordered to be set aside. The orders passed by the Collector and upheld by the Commissioner are restored.
Resultantly, the instant writ petition stands allowed, however, with no order as to costs.
5.8.2013 (RAMESHWAR SINGH MALIK) GS JUDGE