Chand Kaur vs State of Punjab

V.K. Jhanji, J.—In this petition, challenge is to orders dated 5.11.1980, 15.10.1981, 25.5.1982 and 5.2.1982 (Annexures P1, P2 and P4 to P5) passed by the Collector (Agrarian), Commissioner, Ferozepur Division, Ferozepur, Financial Commissioner (Appeals) and Collector (Agrarian), Bhatinda, respectively whereby land measuring 15 kanals 12 marlas inherited by Naib Singh son of Gurdit Singh from his mother, Sant Kaur, has been ordered to be added to his land holding for determination of surplus area in his hands.

In brief, the facts are that Naib Singh son of Gurdit Singh owned land measuring 327 kanals 4 marlas. Collector vide order dated 4.11.1976 declared land measuring 1.4618 hectares as surplus. In appeal preferred by the land owner, Commissioner vide order dated 21.12.1977 upheld the order of the Collector, but observed that since some more land has come to Naib Singh by way of inheritance from his mother, the Collector should take note of the same and ascertain his surplus area accordingly. After remand, landowner, Naib Singh and also his sisters, namely, Chand Kaur, Gurnam Kaur, Narain Kaur, Chaitan Kaur, Mukhtiar Kaur and Biro @ Balbir Kaur (petitioners herein) put in appearance before the Collector Agrarian. Petitioners (sisters of Naib Singh) contended that Sant Kaur had bequeathed her property in their favour, being her daughters, on the basis of Will dated 9.3.1974 and therefore, mutation No. 2313 sanctioned on 8.6.1976 in favour of their brother, Naib Singh, showing that he had inherited 1/7th share from his mother, is not binding on them. Petitioners in order to prove that their mother had bequeathed her property in their favour, produced before the Collector judgment and decree dated 21.8.1980 of the Civil Court whereby validity of the Will had been upheld. Collector Agrarian vide his order dated 5.11.1980, Annexure P1, held that decree dated 21.8.1980 is collusive and liable to be ignored because the same is hit by the provisions of Section 4(5) of the Punjab Land Reforms Act, 1972 (in short the Act). Accordingly, area measuring 1.8201 hectares of first quality in the hands of Naib Singh, landowner, was declared surplus. Landowner was asked to give his choice of surplus area. Petitioners took the matter in appeal before the Commissioner, Ferozepur Division, Ferozepur, who did not find any illegality in the order of the Collector and held that the decree is collusive and not binding because of provisions of Section 4(5) of the Act. Petitioners preferred revision petition before the Financial Commissioner who also held that the Will and Civil Court decree are collusive and were obtained for the purpose of diminishing the surplus area. At this stage, it deserves to be noticed that after decision dated 15.12.1980 of the Commissioner, Ferozepur Division, Ferozepur (and before order dated 25.5.1982 passed by the Financial Commissioner), the Collector Agrarian vide order dated 5.2.1982 declared as surplus the land comprised in Khasra No. 108(289), 109(2511) and 110 min (121) total measuring 661 kanals equal to 1.8201 hectares of first quality land, and included the same in surplus pool. Petitioners have challenged the orders impugned in this petition on the ground that the Authorities below acted erroneously in ignoring Civil Court decree merely on the inference that the decree was obtained collusively.

Upon notice, respondents have filed written statement in which they have stated that on the record available on the surplus area file, there is only a photostat copy of unregistered Will dated 9.3.1974 executed by Sant Kaur in favour of petitioners. Respondents have stated that after the death of Sant Kaur, mutation No. 2313 was sanctioned in favour of Naib Singh and six daughters, i.e. petitioners, in equal share on the basis of natural succession. Respondents have further averred that at the time of sanctioning of mutation, no mention was made in regard to Will dated 9.3.1974. Respondents have admitted that petitioners had filed civil suit in the Court of SubJudge, Bhatinda, to the effect that they are owners in possession of 1/4th share of 436 kanals 5 marlas, which was decreed, but it is contended that the same has rightly been ignored by the Collector, Commissioner and Financial Commissioner being collusive. Respondents have further stated that possession of the surplus area was taken on behalf of the State on 10.4.1982 and allotment thereof was made to one Makhan Singh vide order dated 28.4.1982. Respondents, thus, have stated that the writ petition may be dismissed.

Learned counsel appearing on behalf of the petitioners has contended that judgment and decree dated 21.8.1980 has not conferred any new right on the petitioners but has declared the rights which came into being in favour of the petitioners on the death of Sant Kaur on the basis of Will dated 9.3.1974. Reference in this regard has been made to a judgment of the Supreme Court in Gurdit Singh and others v. State of Punjab and others, 1974 PLJ 374.

In answer to these submissions, Mr. S.K. Bhanot, DAG Punjab, has contended that judgment and decree of the Civil Court has rightly been ignored by the Authorities under the Act as the same has the effect of diminishing the surplus area of big landowner. Reference in this regard has been made to subsection (5) of Section 4 of the Act.

Learned Counsel for the parties have been heard at length.

Subsection (5) of Section 4 provides that in determining the permissible area, any land which was transferred by sale, gift or otherwise, other than a bona fide sale or transfer, after the appointed day but before the commencement of the Act, shall be taken into account if such land had not been transferred and the onus of proving the transfer as bona fide shall be on the transferor. The appointed day under the Act means 24.1.1971 and the date of commencement of the Act is 2.4.1973, meaning thereby that except the bona fide transfers after the appointed day but before the commencement of the Act, all transfers shall be ignored while determining permissible area of the landowner. In the present case, on the appointed day, big landowner, Naib Singh owned land measuring 327 kanals 4 marlas. Collector vide order dated 4.11.1976 declared land measuring 1.4618 hectares as surplus, but in appeal, when it was brought to the notice of the Commissioner that some more land has come to Naib Singh by way of inheritance from his mother, the Commissioner directed the Collector to take notice of the said inheritance and ascertain the surplus area of the landowner. It is only on remand when the proceedings were pending before the Collector for redetermination of the surplus area of Naib Singh that the petitioners set up decree dated 21.8.1980 vide which the Civil Court had upheld the Will allegedly executed by Sant Kaur in favour of petitioners. Thus, there had been no transfer of land by Naib Singh after the appointed day, i.e. 24.1.1971 and before the commencement of the Act i.e. 2.4.1973. The obvious conclusion is that subsection (5) of Section 4 has no application to the transfer made vide decree dated 21.8.1980.

Faced with this situation, learned Counsel appearing on behalf of respondents contended that judgment and decree dated 21.8.1980 had the effect of diminishing the surplus area of Naib Singh, big landowner, and the same cannot be taken into account for determining the surplus area of the big landowner. Reference in this regard has been made to subsection (4) of Section 7 of the Act. I do find merit in this contention of the counsel.

Subsection (4) of Section 7 provides that for the purpose of determining the surplus area of any person, and judgment, 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, shall be ignored. A Full Bench of this Court in Smt. Jaswant Kaur and another v. The State of Haryana and another, AIR 1977 P&H 221, while interpreting subsection (4) of Section 12 of the Haryana Ceiling on Land Holdings Act (26 of 1972) which is identical to subsection (4) of Section 7 held that the "Section 12(4) does not purport to set aside or reverse any decision of a Court. It does not purport to declare a decision to be null and void. All that it does is to declare that a decree having the effect of reducing the surplus area of a person shall be ignored if made after the appointed day. Just as a transfer inter vivos which is not bona fide has to be ignored for the purpose of determining the surplus area, it is enacted that a decision having the effect of reducing the surplus area should also be ignored. The Legislature has not provided for any saving in favour of decrees obtained bona fide as distinguished from collusive decrees for the simple reason that it would be inappropriate for revenue authorities to go into the question whether the decree of a Civil Court is collusive. The only effect of S. 12(4) is that a decree obtained after the appointed day cannot be taken into account in determining the surplus area of a person. Section 12(4) does not affect the validity of the decision in any other manner. The rights of persons who are parties to the decision such as they are, remain unaffected inter se."

Judgment and decree dated 21.8.1980, passed after the appointed day, has the effect of reducing the surplus area of big landowner and therefore, in the light of binding precedent of the Full Bench of this Court in Smt. Jaswant Kaur''s case (supra), I am of the view that the Authorities under the Act have rightly ignored the same while determining the surplus area of big landowner. The Judgment in Gurdit Singh''s case (supra), cited by the counsel for petitioners, has no application to the facts of the present case. In the said case, while dealing with Section 32DD(b) of the Pepsu Tenancy and Agricultural Lands Act, their Lordships of the Supreme Court held that when a transfer or mutation is made on account of fraud or mistake and if a suit is filed for a declaration that the transfer or mutation was made on account of fraud or mistake and a judgment obtained, certainly the judgment would not have the effect of diminishing the area of a person which could have been declared as a surplus area within the meaning of Section 32DD(b) of the Act. This is, however, not the position in this case. On the death of Sant Kaur, land was mutated in favour of all the heirs including Naib Singh, big landowner, but subsequently by collusive judgment and decree dated 21.8.1980 suffered by the big landowner, his surplus area was sought to be reduced.

Resultantly, the writ petition being without any merit shall stand dismissed. No costs.