Punjab-Haryana High Court
State Of Punjab And Others vs Manjit Kaur @ Malkiat Kaur And Others on 2 September, 2013
Bench: Jasbir Singh, G.S.Sandhawalia
LPA No.1469 of 2013(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA No.1469 of 2013(O&M)
Date of decision: 02.09.2013
State of Punjab and others
.....Appellants
versus
Manjit Kaur @ Malkiat Kaur and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice G.S.Sandhawalia
Present: Mr.K.K.Gupta, Additional Advocate General, Punjab
Advocate for the appellants
Jasbir Singh, J. (Oral)
State of Punjab has filed this appeal against judgment dated 15.5.2012, passed by the learned Single Judge, allowing CWP No.12534 of 2004 filed by respondent Nos.1 to 19. There is a delay of 374 days in filing the appeal. We have seen the application filed. Except stating that file continued to roam in one office or the other, no explanation has been given for such a huge delay. It appears that the government offices are moving at snail's pace.
Be that as it may, without going into question of condonation of delay, we preferred to hear the State counsel on merits of the case.
As per facts on record, against a big land owner, namely, Banarsi Dass, proceedings were taken up under the provisions of Punjab Security of Land Tenures Act, 1953. Land was declared surplus in his hands vide order dated 23.5.1960. Effect to that order was not given in the revenue record. The big land owner sold some portion of the land, so declared surplus, to respondent Nos.1 to 16. Respondent Nos.17 to 19 are Krishan Gopal 2013.09.13 15:14 I attest to the accuracy of this order High Court Chandigarh LPA No.1469 of 2013(O&M) 2 the legal heirs of big land owner. Throughout entries continued in the name of the big land owner. Thereafter, in the name of the vendees.
Consolidation proceedings were conducted in the village in the year 1967-68. During those proceedings, declaration of surplus land was noted. However, no land was allotted in the name of the State government. Rather land was allotted to the big land owner and his vendees.
New Act, known as Punjab Land Reforms Act, 1972 was notified in the meantime. Even under that Act, no proceedings were taken up, to get possession of the land. As per admitted fact, possession remained with the big land owner/ his vendees throughout. Big land owner also died in the meantime.
In the year 1999, State Government initiated the proceedings and mutation was entered in the name of the State Government on 29.12.2000. At that stage, legal heirs of deceased -big land owner and vendees came to this Court by filing above said writ petition. Same is the position in the connected three appeals bearing LPA Nos.1467, 1468 and 1470 of 2013.
It is a fact that when determination of surplus land was made, notice was not given to the vendees. Taking of the same and by relying upon ratio of the judgment of this Court in Full Bench of this Court in Harchand Singh v. Collector Agrarian, Bhatinda, 1979 PLJ-70, it was said by the learned Single Judge, that authorities' action, in not re-considering the effect of consolidation upon the surplus land declared, was not justified as per law. It was further said that the big land owner had died during the interregnum and in view of the ratio of the Full Bench of this Court in Ajit Krishan Gopal 2013.09.13 15:14 I attest to the accuracy of this order High Court Chandigarh LPA No.1469 of 2013(O&M) 3 Kaur and others v. The Punjab State and others, 1980 PLJ-354, it was incumbent upon the authorities to re-determine the area in the hands of the big land owner. In that regard, it was said as under by the Single Judge:-
"It is also admitted case of the parties that the possession of the area declared surplus was not taken by the State Government nor it has been utilized. During this period consolidation proceedings had taken place and new Act namely Punjab Land Reforms Act, 1972 has come into force. On enforcement of the Punjab Land Reforms Act, 1972, the big land owner and the petitioners were not afforded opportunity for land reservation under Sections 5, 5A and 5B of the Act. Rather notice (Annexure P-6) for possession was issued after about 40 years of alleged declaration of surplus area. The said notice was required to be issued to the petitioners as well as the heirs of big landlord keeping in view the statutory consolidation proceedings and consequent increase/decrease of the holding, the area in possession of the petitioners, being vendees as well as petitioners No.3 to 5 being legal heirs of Banarsi Dass, original owner.
Now the question arises, once the area has not been utilized nor the possession has been taken whether surplus area case should be determined afresh under the Punjab Land Reforms Act, 1972 in view of the death of the landlord or his heirs should be allowed the permissible land as per the provisions of Punjab Security of Land Tenures Act, 1953. Krishan Gopal 2013.09.13 15:14 I attest to the accuracy of this order High Court Chandigarh LPA No.1469 of 2013(O&M) 4 That it would be appropriate to mention here that the provisions under the Pepsu Tenancy and Agricultural Lands Act, 1955 and Punjab Security of Land Tenures Act, 1953 are identical.
The above question stands answered by the Full Bench of this Court in the case of Ajit Kaur and others Vs. The Punjab State and others, 1980 PLJ-354. Relevant para 16 of the judgment reads as under:
"16. In view of the admitted facts, as narrated above, the writ petition under Articles 226/227 of the Constitution has to be allowed. The surplus area in the hands of the original landowner Pakhar Singh had been declared and determined by the Collector in 1959 and after remand in 1963 under the Punjab Law. As the said Pakhar Singh died in 1965 before the Act of 1973 came into force, his heirs were entitled to the protection of the saving as embodied in Section 10A of the Punjab Law and the surplus area was required to be redetermined in their hands treating each heir as a separate landowner for the purpose of determination of permissible area and surplus area to the extent of 11 standard acres and 5½ units out of the surplus area so declared. No order regarding surplus area was passed by the Collector under the Act of 1973 and as such, sub section (7) of Section 11 of the Act of 1973 is not attracted. The Krishan Gopal 2013.09.13 15:14 I attest to the accuracy of this order High Court Chandigarh LPA No.1469 of 2013(O&M) 5 learned counsel for the petitioners has not prayed for any relief in respect of 8 standard acres and 10½ units of land out of the surplus area which was utilized during the life time of Pakhar Singh, landowner. It is not disputed that the land of Pakhar Singh, after devolution in the hands of his heirs, is not in excess of permissible area. Consequently, the orders of the Collector, Agrarian, Samrala, Annexure P-1 and P-2 and the order of Commissioner, Annexure P-4 are quashed. In view of the circumstances of the case, there will, however, be no order as to costs."
The Full Bench of this Court in the case of Ranjit Ram vs. The Financial Commissioner, Revenue, Punjab, 1981 PLJ 259, has held that since the area was declared surplus but never utilized and in the meantime big landowner expired then his area is required to be re-determined in the hands of his legal heirs also.
Admittedly, in the present case also the State had not taken the possession of the land from the big landowner or from his legal heirs. This fact has been admitted in paras 20 and 22 of the written statement. The claim of the respondent- State is that State is entitled to take possession in due course of law. It is also admitted that Banarsi Dass has died but his exact date of death is not available on record nor it has been pointed out by learned counsel for the petitioners or counsel for the Krishan Gopal 2013.09.13 15:14 I attest to the accuracy of this order High Court Chandigarh LPA No.1469 of 2013(O&M) 6 respondents-State."
Counsel for the appellants has failed to indicate any legal infirmity in the order passed. The writ petitions have been allowed taking note of established law on the subject. It is not in dispute that possession of the land, declared surplus, was not taken up by the State Government, till today. In the revenue record, land continued to be shown in the name of big land owner/ his vendees. Effect of consolidation, conducted in the meantime and land allotted to the big land owner was also noticed by the learned Single Bench. Accordingly direction was given in the writ petition to the District Collector, Agrarian to take a decision afresh after affording opportunity of hearing to the affected persons.
Under the circumstances, no case is made out for interference at the instance of the appellants.
The appeal and the application for condonation of delay are dismissed.
(Jasbir Singh)
Judge
02.09.2013 (G.S.Sandhawalia)
gk Judge
Krishan Gopal
2013.09.13 15:14
I attest to the accuracy of this
order
High Court Chandigarh