Punjab-Haryana High Court
Jasbir Kaur And Anr. vs Financial Commissioner (Appeals) And ... on 23 November, 1995
Equivalent citations: (1996)113PLR635
Author: T.H.B. Chalapathi
Bench: T.H.B. Chalapathi
JUDGMENT T.H.B. Chalapathi, J.
1. The petitioners are seeking to quash the orders of the respondents passed under the Punjab Land Reforms Act, 1972.
2. The facts leading to the filing of these writ petition's may briefly be sum-marised as follows One Smt. Sant Kaur was the owner of the land in dispute. She filed a declaration on Form 'A' under the provisions of the Punjab Land Reform Act before the Collector Agrarian on 19.11.1973. The said declaration showed that the landowner had one daughter namely Bachitar Kaur and 6ne adopted son Jagjit Singh and that the total holding of the family was 24.86.03 ordinary hectares. The Collector passed order dated 3.6.1976, determining the surplus area of the landowner Sant Kaur as 5.25.267 hectares. The said order was challenged by the landowner before the Commissioner. Patiala Division, Patiala who allowed the appeal and remanded the matter to the Collector for fresh determination. The landowner sold 16 Kanals 6 Marias of land under registered sale-deed dated 27.4.1972 in favour of the 1st petitioner for a valuable consideration of Rs. 16,000/-. She also sold another land measuring 80 Kanals 10 Marias under registered sale-deed on the same date for a valuable consideration to the 2nd petitioner. Thus the petitioners are bonafide purchasers of the land in dispute. The landowner also executed a registered Will on 30.9.1976 bequeathing her property to her grand-sons namely Major Singh, Satpal Singh and Ranjit Singh.
It is further stated in the writ petition that Sant Kaur adopted her daughter's son namely Jagjit Singh in the year 1972 as she was not having any son. The said Jagjit Singh was described as the son of Hardit Singh who is the husband of Sant Kaur. The said Jagjit Singh also filed a suit for declaration that he was owner in possession to the extent of 2/3 share in the agricultural land situated in village Amarpura and also in joint possession to the extent of 1/3rd share in the house in village Amarpura, and that the said suit was decreed by Sub Judge 1st Class, Bassi on 31.3.1975, holding that Jagjit Singh was the adopted son of Sant Kaur.
While determining the surplus area of the landowner Sant Kaur, the Collector ignored the sale-deeds in favour- of the petitioners on the ground that the consideration was less and on the further ground that the sale was in favour of the grand-daughters but the said order was set aside by the Commissioner by his order dated 30.7.1979 and the matter was remanded. After remand, the original landowner Sant Kaur died on 3.2.1980 but the Collector declared the surplus area on 23.7.1980 ignoring the registered sale deeds and the Will executed by Sant Kaur and determined the surplus area in the hands of Sant Kaur. According to the petitioners, the surplus area bad to be determined in the hands of legal heirs after the death of Sant Kaur as Sant Kaur died during the pendency of the proceedings for determination of the surplus area. Against the said order of the Collector dated 23.7 1980 an appeal was preferred to the Commissioner, who again remanded the matter to the Collector. Thereafter, another order was passed by the Collector on 30.8.1991, determining the surplus area of the landowner ignoring the sale deeds executed by the landowner on 27.4.1972. A further appeal Was filed before the Commissioner and the Commissioner without dealing with the contentions and calling for the records, dismissed the appeal filed by the petitioners on 11.5.1994. Therefore, the petitioners filed this writ petition challenging the orders of the Collector dated 30.8.1991 confirmed by the Commissioner by his order dated 11.5.1994.
3. The main contention of the learned counsel for the petitioners is that. Sant Kaur, the original landowner died on 3.2.1980 and during her life time, she executed a registered Will in favour of the grand-sons and that the registered sale deeds of the year 1972 cannot be ignored simply because they were executed in favour of the grand-daughters of the landowner. It is for the authorities to see whether they are real transactions or not and whether the consideration was paid to the vendor under registered sale deeds. It is further contended by the learned counsel for the petitioners that Sant Kaur died during the pendency of the proceedings before the Collector after remand of the matter and therefore the surplus area has to be determined in the hands of the legal heirs of the original landowner and when the property was inherited by the grand-sons of the original owner under a registered Will, the same has to be given effect to and the surplus area has to be determined in the hands of the legatees under law. and though this point was taken before the authorities below, the same was not dealt with. Therefore, the impugned orders are liable to be set aside.
4. We have gone through the respective contentions of the learned counsel for the parties.
5. There is no dispute that the original landowner Sant Kaur died on 3.2.1980. There is also no dispute that Sant Kaur executed a registered will during her lifetime and apart from that she executed two sale-deeds in favour of the petitioners. The beneficiaries under the Will are the grand-sons of Sant Kaur. The order was passed by the Collector on 30.8.1991.A reading of the said order clearly shows that the Collector proceeded to determine the surplus area of the land in the hands of Sant Kaur. The Collector in his order observed as follows :-
"So far as the death of Sant Kaur landowner is concerned, it does not make any difference in the declaration of surplus area and the proceedings do not become infructuous."
He referred to a decision of the Supreme Court in Bhikoba Shankar v. Mohan Lal Punchand, AIR 1982 S. C. 865. That was a case under Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961. While dealing with the provisions of the said Act the Supreme Court observed as follows :-
"The proceedings commencing with the return filed by Bhikoba could not be dropped merely because he died before a notification was issued Under Section 21 of the Act. The proceedings have to be continued and the surplus land in the hands of Bhikoba as on the appointed day should be determined and taken possession of in accordance with law. The heirs of Bhikoba are entitled to participate in the said proceedings representing the estate of Bhikoba. They would be entitled as heirs at law only to such land that may remain after surrendering the surplus land as may be determined under the Act."
6. The learned counsel for the petitioners contended that there is a difference between the Maharashtra Agricultural Land (Ceiling on Holdings) Act and Punjab Land Reforms Act. According to him under the provisions of the Maharashtra Act the land vests in the State Government whereas under the Punjab Act it vests only when the Government took possession of the land and that the land has been utilised and till such time the landowner continues to be the owner of the land and on his death, the surplus land has to be re-determined in the hands of the legal heirs of the original owner. He relied upon a decision of the Full Bench of this Court in Ranjit Ram v. Financial Commissioner, Revenue, Punjab & Ors; (1981)83 P.L.R. 492 (F.B.), wherein it has been held as follows :-
"... Since landowner has been given right to get permissible area for his adult son as well, omission of the landowner to file the declaration would not take away the right of his entitlement to get permissible area for his adult son in addition to the permissible area of the family. Collector is duty bound while passing an order Under Section 7 of the Reforms Act to allow permissible area for the adult son as well. It is clear that the entitlement of the landowner to get permissible area for his adult son is out of the land of the landowner held or possessed by him whether already declared surplus or not'. Sub-section (2) of Section 5 of the Reforms Act is only procedural section and an omission by the landowner of not filing a declaration Under Section 5 of the Reforms Act would not take away his right for getting permissible area for his adult son when the Collector has been enjoined upon Under Section 7 of the Reforms Act to pass an order determining the permissible area and the surplus area of the landowner. It may be appropriately observed at this place that the permissible area and surplus area is to be determined keeping in view the provisions of Section 4 read with the provisions of sub-section (1) of Section 5 of the Reforms Act. The combined reading of the said provisions would provide guidelines to the Collector to determine the permissible area or the surplus area of the landowner. I have already come to conclusion that the remaining provisions of Section 5, which deal with the procedure for selection, are procedural and the same cannot, be made use of by the Collector Under Section 7 so as to nullify the mandatory provisions of Section 4 and Section 5(1) which define permissible area and surplus area. If the Legislature intended to exclude the land which has already been declared surplus from the operation of the provisions of Section 5(1) of the Reforms Act, but on the contrary I find that the landowner has been entitled to select separate permissible area in respect of his adult son out of the land owned or held by him. As already observed, till the landowner is divested of the rights of ownership, he continues to hold and own the land."
7. There appears to be much difference between the Maharashtra Agricultural Land (Ceiling on Holdings) Act and the Punjab Land Reforms Act. It has been held in Ajmer Singh (died) v. The State of Punjab & Anr., (1992)102 P.L.R. 576 as follows :-
"... It is not disputed that the original landowner Ajmer Singh died during the pendency of the present petition and also that during all these years the land was not utilised. That being so, the ratio of decision in Ranjit Ram's case (supra) clearly covers the case of the petitioners and, therefore, the land in hand of the present owners has necessarily to be assessed for computing the surplus area, if any, under the Punjab Land Reforms Act, 1972."
8. It is also useful to refer to the decision in Karnail Singh v. State of Punjab, 1989 PLJ 95, wherein it is held as follows :-
"Now adverting to the facts of the case which are distinguishable from Sher Singh's case (supra), the landowner died on 11.1.1983 and it is thereafter that notice Under Section 9(1) of the 1972 Act was issued directing the landowner to deliver possession and it is thereafter that on 28.3.1983 the possession was taken in purported exercise of powers Under Section 9(2) of the 1972 Act and allotment to the father of the petitioner before us was made thereafter on 30th March, 1983. Therefore, the surplus area declared was not utilised before the death of the landowner nor its possession was taken by the State Government. Even if possession had been taken by the State Government before the death of the landowner in whose hand the area was declared surplus by virtue of Section 8 of the 1972 Act, the land would have vested in the State Government free from all encumbrances from the date of taking of possession. Since even possession was not taken before the date of death, the taking of possession on 28.3.83 as also the order of allotment dated 30.3.1983 are without jurisdiction and were rightly set at naught by the learned Financial Commissioner."
In Sukhdarshan Singh v. State of Punjab & Ors., 1991 (2) All India Land Laws Reporter 409, a Single Judge of this Court following Ranjit Ram v. The Financial Commissioner, Revenue, Punjab & Ors., (1981)83 P.L.R. 92 (F.B.), held that if the landowner dies during the pendency of the suit and the State has not taken over the possession of the surplus area, the surplus area is to be re determined afresh under the Punjab Land Reforms Act.
9. Thus this Court has consistently taken the view that the land will not vest in the Government until the landowner exercises his right to select the permissible area and the Government takes possession of the surplus area after selection of the permissible area by the landowner and till the land has been utilised by the Government. Thus the decision of the Supreme Court while interpreting the Maharashtra Agricultural Land (Ceiling on Holdings) Act is not applicable as the provisions of the said Act are not pan materia with the Punjab Land Reforms Act and we are, therefore, of the opinion that' since the landowner died during the pendency of the proceedings for determination of the surplus area, it is incumbent on the authorities to re-determine the surplus area of the land in the hands of the heirs of the original landowner. Thus, we are of the opinion that the writ petitions are to be allowed and the matter is to be remanded to the Collector for re-consideration of the matter afresh in the light of the facts and circumstances of the case and while re-determining the surplus area in the hands of the legal heirs of the original landowner, the authorities will also consider the bona fides or otherwise the nature of the sales said to have been effected by the landowner, and the authorities will decide the case afresh on all the points that may be raised before them.
10. The writ petitions are accordingly allowed and the matter is remanded to the Collector for fresh disposal in accordance with law in the light of the observations made herein before after affording reasonable opportunity to the parties.