Punjab-Haryana High Court
Balkar Singh And Others vs State Of Punjab And Others on 16 January, 2014
Bench: Hemant Gupta, Fateh Deep Singh
LPA No.2137 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
LPA No.2137 of 2013 (O&M)
Date of Decision: 16.01.2014
Balkar Singh and others ..... APPELLANTS
(Through Mr. M.L.Saggar, Senior Advocate
with Mr. B.S.Dhaliwal, Advocate
VERSUS
State of Punjab and others
..... RESPONDENTS
LPA No.2027 of 2013
Sucha Singh ..... APPELLANT
(Through Mr.R.B.S.Chahal, Advocate)
VERSUS
State of Punjab and others
..... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
HEMANT GUPTA, J. (ORAL)
This order shall dispose of LPA No.2137 of 2013, tiled as Balkar Singh and others Vs. State of Punjab and others and LPA No.2027 of 2013, titled as Sucha Singh Vs. State of Punjab and others directed against the judgment of learned Single Bench of this Court in CWP No.7016 of 1995. The two appeals have been filed by the appellants, who are different allottees of the surplus land declared in the hands of Pritam Kumar Vimal Singh. Since the issues raised are common arising out of the same 2014.01.30 12:01 I attest to the accuracy and integrity of this document Chandigarh LPA No.2137 of 2013 (O&M) 2 judgement, therefore, both the appeals are taken up for hearing together.
As noticed by learned Single Bench, the case has a chequered history. We shall recapitulate the same in brief.
Pritam Singh, the writ petitioner was in possession of land measuring 95.12 standard acres, which was initially a temporary settlement but subsequently in respect of part of the land, allotment on quasi- permanent basis was made in the year 1958. There is an order passed by the Managing Officer on 12.06.1963 to the effect that 55.12 standard acres allotted on quasi permanent basis and 35.13 ¼ standard acres on temporary basis. It was also recorded therein that temporary allotment will be made permanent after verification of claim from Pakistan. Such process of allotment of land to Pritam Singh was a separate process in lieu of the land left by him after partition of the country. Simultaneously, the question as to whether, the land in his possession is surplus under the then applicable provisions of Pepsu Tenancy Agricultural Lands Act, 1955( for short 'the Pepsu Act') was being considered. The Collector passed an order on 18.07.1961 declaring land measuring 55.89 standard acres as surplus. An appeal filed against such order was dismissed by the Commissioner on 13.08.1962. The revision was dismissed by the learned Financial Commissioner on 18.04.1964. Pritam Singh challenged the aforesaid order by way of writ petition before this Court in Writ petition No.835 of 1964, which was allowed on 23.09.1968. The operative part of the order reads as under:
"For the reasons given above, this petition is accepted, the order dated 18.07.1961 (Annexure 'A') of the Collector, Agrarian, Rajpura, order Kumar Vimal 2014.01.30 12:01 dated 13.08.1962 (Annexure 'B') of the Commissioner, Patiala Division I attest to the accuracy and integrity of this document Chandigarh LPA No.2137 of 2013 (O&M) 3 and the order dated 18.04.1964 of the learned Financial Commissioner Planning, Punjab (Annexure 'H'), are quashed and the Collector, Agrarian, is directed to determine afresh the surplus area in the hands of petitioner No.1 in accordance with law. In the circumstances, I leave the parties to bear their own costs."
In the said writ petition, the predecessor-in-interest of the appellants were the respondents being respondents No.4 to 30. The said order has attained finality as no appeal was filed either by the land owner or by the allottees. Pritam Singh died on 30.03.1983. The Collector considered the issue of surplus land in the hands of Pritam Singh vide order dated 27.05.1993 (Annexure P-10) and declared the land measuring 59.89 standard acres as surplus. The argument that the surplus land is to be re- determined keeping in view the fact that Pritam Singh has died and the land in hands of the each of the land owner was not accepted. Such order passed by the Collector was affirmed by the Commissioner on 17.11.1993 (Annexure P-11) and later by the Financial Commissioner on 17.08.1994 (Annexure P-12). The present writ is directed against the orders Annexures P-10, P-11 and P-12.
It is argued that Pritam Singh has invoked the jurisdiction of this Court and of the Supreme Court, time and again but such writ petitions were not noticed when the order was passed by the learned Single Bench in CWP No.835 of 1964. The reference is to the following writ petitions i.e. CWP Nos.1386 of 1962 and 1166 of 1966 before this Court. It is also pointed out that Pritam Singh has filed a writ petition No.12 of 1963 before the Hon'ble Supreme Court, which was withdrawn on 29.03.1963 also and the writ petition No.768 of 1973 which was dismissed on 24.09.1986. It is Kumar Vimal 2014.01.30 12:01 I attest to the accuracy and integrity of this document Chandigarh LPA No.2137 of 2013 (O&M) 4 thus contended that keeping in view that the earlier writ petitions filed by Pritam Singh, the order passed by the learned Single Bench on 23.09.1968 is not sustainable. In fact, Mr. Chahal argued that the said order has been obtained or managed by Pritam Singh by suppression of facts. Though before the Learned Single Judge, the argument raised was that the said order is "procured" order.
The learned Single Bench has ordered that after the death of Pritam Singh, the question as to whether the land is surplus or not is required to be considered in the hands of his legal representatives as land owners. It was also observed that the land may not be surplus as Pritam Singh and also his son Kuldip Singh have died, therefore, keeping in view the number of legal representatives any land may not be surplus but still Collector was given opportunity to redetermine the surplus area in the hands of the legal heirs of Pritam Singh.
Mr. Saggar, learned counsel for the appellants in his arguments referred to the judgment of the Supreme Court in Ujjagar Singh (dead) by L.Rs Vs. The Collector, Bhatinda, (1996) 5 SCC 14 to contend that land vests in the State on the day, the same is declared surplus in terms of Section 32E of the 'Pepsu Act'. Therefore, the land allotted to the appellants pursuant to the declaration of the land as surplus on 18.07.1961 in the year 1963 or so is protected and will not revert back either to the land owner or to the State. Reference is also made to Hon'ble the Supreme Court judgment reported as AIR 1994 SC 853, S.P. Chengalvaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others to contend that the non-disclosure of Kumar Vimal the previous writ petitions filed by Pritam Singh amounts to fraud on Court 2014.01.30 12:01 I attest to the accuracy and integrity of this document Chandigarh LPA No.2137 of 2013 (O&M) 5 and thus orders passed by the learned Single Judge on 23.09.1968 cannot be made basis of reopening surplus case of Pritam Singh.
Mr. Chahal apart from supporting the arguments raised by Mr. Saggar argued that the land in the hands of Pritam Singh was on quasi permanent basis and thus, such land is to be taken into consideration for determining surplus area in the hands of Pritam Singh in terms of Section 51(1) (b) of the Act. It is contended that whenever the land is allotted, it is on quasi permanent basis but if the land is leased, it is temporary basis. Therefore, since the Sanad have been issued in respect of land in question, the allotment was on quasi permanent basis and the entire land has to be taken into consideration for determining the surplus land in the hands of Pritam Singh. It is contended that since the order passed by this Court on 23.09.1968 is to redetermined surplus area in the hands of Pritam Singh, therefore, the surplus area has to be declared in his hand alone and not in the hands of legal heirs of Pritam Singh as has been ordered by the learned Single Bench. Learned counsel for the appellant Mr. Chahal has relied upon Hon'ble the Supreme Court judgment reported as 1987 PLJ 149, Bhagwan Singh and others Vs. The State of Punjab and others as also Full Bench of this Court reported as 1980 PLJ 354, Smt. Ajit Kaur and others Vs. The Punjab State and others and that of learned Single Bench of this Court in CWP No.5662 of 1986 (O&M) decided on 17.01.2012 Smt. Niranjan Kaur and others Vs. Financial Commissioner in support of the argument that land in respect of which, Sanad (Deed of Conveyance) has been issued is governed by the provisions of the Pepsu Act.
Kumar Vimal
We have heard learned counsel for the appellants at great 2014.01.30 12:01 I attest to the accuracy and integrity of this document Chandigarh LPA No.2137 of 2013 (O&M) 6 length and find no merit in both the appeals. It may be noticed that after the order was passed by this Court in the year 1968, Pritam Singh filed an application for restoration of possession which was allowed on 18.04.1969 by the Collector, Rajpura (Annexure P-4). The number of appeals were filed against such order by different allottees. Some of these appeals were dismissed on 21.04.1971 and whereas some other were dismissed earlier on 27.08.1969. Further revision was dismissed by the learned Financial Commissioner on 28.10.1971, copy attached as Annexure P-7.
It may be noticed that record of CWP No.1386 of 1962 or that of CWP No.1143 of 1966 are not available in the record-room of this Court. However, the indication as to the nature of writ petitions are available from the documents produced by the appellants. At page 233 of the paper book of LPA No.2027 of 2013, an interim order dated 10.09.1962 passed in CWP No.1386 of 1962 is available. It is to the effect that "to wait decision of the question of Vires of the new Act. Dis-possession stayed." The said order leads to inference of the writ petition was pertaining to the vires of the Act. It further appears that the reference to the order of the Collector or of the Commissioner was made as the same were passed before filing of the writ petition.
The reference to CWP No.1143 of 1966 is in the reply filed by the State in the writ petition filed by Pritam Singh before Hon'ble the Supreme Court. It is averred that CWP No.1143 of 1966 earlier filed by Pritam Singh, no reference was made that property in his hands is the property of the Joint Hindu Family but that of petitioner No.1 Pritam Singh. Kumar Vimal The challenge in the Supreme Court was to the provisions of Section 32-KK 2014.01.30 12:01 I attest to the accuracy and integrity of this document Chandigarh LPA No.2137 of 2013 (O&M) 7 of the Pepsu Act inserted vide Act No.16 of 1962, wherein the land of Hindu Undivided Family was also to be taken into consideration as that of an individual. It appears that the writ petition filed before the Hon'ble Supreme Court was amended so as to challenge the provisions of the Punjab Land Reforms Act, 1973 as well. However, such challenge remain unsuccessful when the writ petition was dismissed on 24.09.1986.
Both the writ petitions No.1386 of 1962 and 1143 of 1966 were pending or decided at the time the learned Single Bench passed an order on 23.09.1968. The land owner as well as the allottees were represented before the learned Single Bench in the year 1968. There is no reference to the aforesaid writ petitions in the order passed. The mere fact that there is no reference to the aforesaid writ petitions in the order passed by the learned Single Bench will show that both the writ petitions have nothing to do with the orders passed by the learned Single Judge. The writ petitions may be pertaining to the vires of the statue dealing with declaration of surplus area. Therefore, rightly no reference was made to the said writ petitions. Still further, the allottees have not challenged the order passed by the learned Single Bench. The parties including the present appellants have permitted the order to attain finality. Thus, the appellants are estopped to to dispute the legality and validity of the order passed in the present writ petition. It is most unfortunate that the counsel for the appellants have used the words 'procured' before the Learned Single judge and 'managed' or 'obtained' by Pritam Singh before this Court. Apart from such word not being in good taste, it is not open to the appellants to dispute such order as a defence, Kumar Vimal when the order dated 23.09.1968 has attained finality. On the basis of such 2014.01.30 12:01 I attest to the accuracy and integrity of this document Chandigarh LPA No.2137 of 2013 (O&M) 8 order, in fact, Pritam Singh has got an order of restoration of possession, which also attained finality in the year 1971.
CWP No.12 of 1963 before Hon'ble the Supreme Court was withdrawn, whereas writ petition No.768 of 1973 pertaining to vires of the Pepsu Act and of the Punjab Reforms Act was dismissed. The dismissal of writ petitions challenging vires of a status cannot effect the rights of the land owners in respect of declaration of land as surplus which has to be considered in the light of the orders passed on 23.09.1968. In fact, the perusal of the judgment referred to by learned counsel for the appellants would also show that there is material distinction in respect of vesting of right under the Pepsu Law and the Punjab Act. Under Pepsu Law, the land vest with the State on its being declared as surplus whereas in the Punjab Act, the land has to be utilized. But the orders declaring the land as surplus under the Pepsu Act were set aside by this Court in the year 1968. Therefore, the same could not be treated as vesting of surplus land in the State and, thus, the land not available for allotment. As a consequence of setting aside of the orders of declaring land as surplus, the allotment of "surplus" land cannot be sustained. It is for this reason there is an order of giving possession of land to the big land owner which order has attained finality with the dismissal of the revision petition on 28.10.1971.
The issue before the learned Single Bench was; whether the order of the Collector (Annexure P-10), order of Commissioner (Annexure P-11) and order of Financial Commissioner (Annexure P-12) are illegal and as to whether, the land in the hands of the legal heirs of Pritam Singh has to Kumar Vimal be taken into consideration for determining the surplus area or not. All other 2014.01.30 12:01 I attest to the accuracy and integrity of this document Chandigarh LPA No.2137 of 2013 (O&M) 9 settled issues can not be permitted as disputed at this stage.
The Hon'ble Supreme Court in Ujjagar Singh (dead) by LRs Vs. The Collector, Bhatinda AIR 1996 SC 2623 has approved the Full Bench judgment of this Court in Ranjit Ram Vs. Financial Commissioner Revenue, Punjab 1981 (83) PLR 492. In Ranjit Ram's case (supra), it has been held that if a landowner owns or holds land beyond the prescribed area as depicted in the Punjab Act, his case shall have to be processed again according to the provisions of the Punjab Act. Another Full Bench of this Court in a judgment reported as Sardara Singh & others Vs. The Financial Commissioner & others 2008 (3) PLR 297 while considering the judgment of the Hon'ble Supreme Court in Ajmer Kaur Vs. State of Punjab (2004) 7 SCC 381 concluded as under:
"41. We are, therefore, of the considered opinion that in order to harmoniously read the two views in Ajit Kaur Vs. The Punjab State 1980 PLJ 354 (F.B.) and to give correct interpretation of the provision of Section 11(5) and 11(7) of this Act, we ought to take the aid of Supreme Court's judgment in Ajmer Kaur's case. We hold that until the surplus area has been finally determined by the Collector and appeals/revisions have been dismissed, the death of the land-owner would certainly cause affectation to the surplus area which would be required to be redetermined in the hands of his heirs.
42. Resultantly, where the surplus area has not been finally determined, and the matter is pending in appeals or revisions before the Revenue Courts or before this Court under Article 226 of the Constitution, or before the Supreme Court of India, death of the landowner would cause affectation of surplus area which would be required to be redetermined in the hands of the heirs of the deceased landowner. Such an interpretation would harmoniously construct the provisions of Section 11(5) and 11(7) and also give a proper interpretation to both the views expressed in Ajit Kaur's case. However, we are unable to uphold the judgments of this Court in Jasbir Kaur Vs. Financial Commissioner 1996 PLJ 205 because Kumar Vimal Ajit Kaur's case was not at all considered by the Hon'ble Division Bench.2014.01.30 12:01 I attest to the accuracy and integrity of this document Chandigarh LPA No.2137 of 2013 (O&M) 10
As regards Manjit Kaur Vs. Financial Commissioner (Appeals), Punjab 1996 PLJ 369, even though Ajit Kaur's case case was considered, the majority view had been entirely overlooked."
In view of the aforesaid judgments and the fact that after the orders of declaration of land as surplus under Pepsu Act were set aside, Pritam Singh died, the surplus land has to be re-determined after taking into consideration the land holdings in the hands of legal heirs of deceased Pritam Singh. Learned Single Judge has discussed the various issues raised by the appellants in detail with which we entirely agree.
Consequently, we do not find that any of the reasoning given by the learned Single Judge suffers from any patent illegality or irregularity, which may warrant any interference in the present intra court appeal.
Dismissed.
(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) JUDGE January 16, 2014 jt/Vimal Kumar Vimal 2014.01.30 12:01 I attest to the accuracy and integrity of this document Chandigarh