Boota Singh vs Punjab State

B.B. Mahajan, F.C.

This is an appeal under Section 18 of the Punjab Land Reforms Act, 1972 against the order of Additional Commissioner, Ferozepur Division, Ferozepur dated the 9th December, 1981 vide which he partially accepted the appeal of respondent No. 2.

The brief facts of the case are that the petitioner was holding the land measuring 666 Kanals 19 marlas in village Rampura and Kuharianwali on the appointed day i.e. the 24th January, 1971 which when converted into first quality land come to 18.1492 hectares. After going through the record and hearing the parties, the Collector (Agrarian), Fazilka vide his order dated the 3rd January, 1977 declared 6.0655 hectares of land of the petitioner as surplus. Aggrieved against this order, Gurandittarespondent No. 2 filed appeal before the Commissioner, Ferozepur Division alleging that he was a transferee having purchased land vide two registered sale deeds dated the 20th January, 1975 and the 3rd February, 1976. He urged that he had purchased 32 kanals land comprising Khasra Nos. 11, 12, 13 and 14 of rectangle No. 29 situated in village Rampura and 16 Kanals of land comprising in Khasra Nos. 16 and 25 of rectangle No. 29 for consideration. It was alleged that the landowner at the time of these sales had represented that the land being sold was his reserved area and not surplus area. This appeal was heard by the Additional Commissioner, Ferozepur Division, Ferozepur, who vide his order dated the 9th December, 1981 partially accepted it, set aside the order of the Collector and ordered that the land in dispute should not be included in the surplus area but should be considered a part of reserved area of landowner, which order has now been impugned before me.

I have heard the counsel for the parties, and Naib Tehsildar Agrarian, Muktsar for the State. The counsel for the appellant has stated that order of Additional Commissioner waving the limitation is not correct. There is no specific finding by the learned Additional Commissioner about the date of knowledge of the Collector''s orders on the part of respondent No. 2 who was appellant in that case. This objection does not have much weight. The respondent No. 2 in his appeal before the Commissioner had stated in para 8 of his Memorandum of Appeal that he came to know about the Collector''s orders on the 23rd May, 1977. Since there was no rebuttal the learned Additional Commissioner obviously accepted the contention that respondent No. 2 had come to know about the Collector''s orders on the 23rd May, 1977. As respondent No. 2 who was a transferee before the impugned order dated the 3rd January, 1977 was passed by the Collector had not been issued notice, limitation for appeal in his case started from the date of knowledge as held by the Hon''ble Punjab and Haryana High Court in 1980 PLJ page 573. On that basis the appeal was clearly within limitation as he had applied for a copy of the Collector''s orders on the 3rd May, 1977, copy was ready on the 13th November, 1977 and the appeal was filed on the 29th November, 1977.

On merits, the learned counsel for the appellant has urged that there is no provision in the Punjab Security of Land Tenures Act under which the Collector or Commissioner could change the permissible area of the landowner against his wishes. He has referred in this connection to the judgment of the Hon''ble Punjab and Haryana High Court in 1968 PLJ page 338 in which it was held that the land which had been transferred to the vendees would be included in the surplus area and can be utilised for the resettlement of the tenants but the permissible area selected by the landowner under Section 5B(1) of the Punjab Security of Land Tenures Act, 1953 cannot be included in the surplus area. Similarly it was held by the Hon''ble Punjab and Haryana High Court in 1968 PLJ 360 that area of land which had been sold by the landowner to the transferees after the 15th April, 1953 could not be included in the permissible area of the landowner and had to be included in the surplus area of the landowner. Again it was held by the Hon''ble Punjab and Haryana High Court in 1975 PLJ page 85 that there is no provision in the Punjab Security of Land Tenures Act giving power to the Collector or any other Officer under the Act to change the selection made by a landowner under Section 5B(1) of the Act. There is no jurisdiction in Collector dealing with the case to determine whether any fraud has been committed by the landowner with any vendee by selling his land. The provisions of the Punjab Land Reforms Act in this regard are identical to those in the Punjab Security of Land Tenures Act, 1953 and these rulings will, therefore, apply in the present case as well.

The learned counsel for the respondent No. 2 has pointed out in reply that the landowner had not made any valid reservation or selection in this case. Under Rule 5(2) of the Punjab Land Reforms Rules, 1973 a landowner who held land in excess of the permissible area was required to furnish a declaration within a period of 4 months and 15 days of the date of commencement of the Rules viz. the 4th July, 1974. Under Subrule (2A) of Rule 5 ibid it was provided that if any person fails to furnish the declaration within the period specified in subrule (2) he shall furnish a declaration within 30 days from the date of the commencement of the Punjab Land Reforms (Amendment) Act, 1976. Since the Amendment Act of 1976 was published in the Punjab Government Gazette on the 30th April, 1976 the last date for furnishing the declaration was the 30th May, 1976. The landowner in this case had submitted his declaration only on the 31st May, 1976 i.e. after the expiry of period allowed even by subrule (2A) of Rule 5. What is more important is the fact that even in this declaration he had not selected any permissible area. In Column 6 of the declaration he had merely stated that "I reserve the entire land for myself and my adult sons". Since there was no valid reservation or selection by the landowner, the permissible area of landowner had to be determined by the Collector. In doing so the Collector had unfettered power and authority to make the selection and could not select land sold after the coming into the force of the Act. In this connection he has referred to the judgment of the Hon''ble Punjab and Haryana High Court in 1970 PLJ page 531 in which it was held that where a landowner never made any selection of his permissible area the Collector had unfettered power and authority to select the permissible area for the landowner and to declare the remaining as surplus. In such a case the power of the Collector to select the permissible area for the landowner is not to be fettered by another opportunity to the landowner to make a selection of his permissible area. Since proceedings in appeal are continuation of the original proceedings before the Collector, the learned Commissioner also obviously had unfettered discretion to select the permissible area for the landowner. In making the selection vide impugned order dated the 9th December, 1981 the learned Additional Commissioner has proceeded with due regard to equity by including within the permissible area of the landowner, the area which he had sold to respondent No. 2 for consideration.

I find that there is considerable merit in the contention of the learned counsel for respondent No. 2. The landowner in this case had not made any valid reservation as he had mentioned in the declaration form that he reserved the entire holding for himself and his adult sons. The rulings relied upon by the learned counsel for the appellant relate to cases where the landowner had made reservation or selection but the Collector while declaring his permissible area had departed from that reservation Selection. Where the landowner had no selection or reservation the Collector, and therefore the Commissioner in appeal, had the unfettered discretion as held by the Hon''ble Punjab and Haryana High Court in 1970 PLJ 531. It was not incumbent on the Collector to act upon the choice by the landowner and the matter could be considered by him judiciously and objectively as held by the Division Bench of the Punjab and Haryana High Court in 1972 PLJ page 645. In this case the learned Collector in his order dated the 3rd January, 1977, therefore, wrongly acted on the selection made by the landowner at page 5153 of the Collector''s file (this selection is undated but was obviously made at the time of the opening of impugned order dated 3rd January, 1977 because in the opening para if refers to the decision regarding his surplus area made on the 3rd January, 1977). The learned Additional Commissioner had, therefore, power to select the permissible area of the landowner and while doing so in the impugned order dated the 9th December, 1981 he has acted judiciously by ordering inclusion within the reserve area of the landowner of the area sold by the landowner to respondent No. 2 on the understanding explicitly mentioned in the sale deed that it formed part of his reserved area. The powers of Collector in this regard in Section 7 (1) of the Punjab Land Reforms Act, 1972 are obviously identical to those exercised by the Collector under Section 5 B(2) of the Punjab Security of Land Tenures Act, 1953. The only difference that in the latter case the Collector can direct that the permissible area of the landowner would be reduced to 10 standard acres while in the case of the former there is provision for imprisonment and/or fine, is not material for the present purpose.

Finally, the learned counsel for the appellant has stated that the area sold to respondent No. 2 was under the tenants on the appointed day and has been under tenants since then till it was sold to respondents No. 2 and it should, therefore, have been included in the permissible area of the tenant and not in his permissible area. Since the landowner did not file any appeal against the order of Collector dated the 3rd January, 1977 in which one permissible area of the tenant was determined, he cannot now be permitted to raise this point at this stage. Moreover, the Hon''ble Punjab and Haryana High Court in 1980 PLJ page 507 has held that the plea that the Collector while selecting the permissible area of a landowner cannot include in that the permissible area of the tenant is without any force.

There is thus no force in the appeal and the same is accordingly rejected.

Announced.