Charanjit Singh and ors. vs State of Punjab and ors.

J.S. Sekhon, J.

The petitioner are sons, of Sarwan Singh, respondent No. 2. They are Hindu Jats and are governed by the Hindu Law in the matter of inheritance and succession. They constituted a joint Hindu family and owned some land in the revenue estate of villages Moranwali and, Rajo Majra located I in Tehsil Malerkotla, District Sangrur. The partition of the joint Hindu family land took place early in 1956. The entire land of village Moranwali, measuring 32.72 Standard Acres fell to the share of the petitioners and the land measuring 16. 11 Standard Acres of the village Rajo Majra was retained by their father, respondent No. 2. It was alleged that the petitioners. are in peaceful possession and cultivation of land of village Moranwali, while their father Sarwan Singh is cultivating his land located At village Rajo Majra. During the Consolidation proceeding in the year 1956, the petitioners made an application under Section 30 of the Past Punjab Holdings (Consolidation & Prevention of Fragmentation) Act 1948, which was accepted by the Consolidation Officer and subsequently mutations Nos. 232 and 233 were entered on 4th September, 1956 and sanctioned in favour of the petitioners on l4th September, 1956. On the basis of these mutation orders, the petitioners were allotted different plots during consolidation proceedings. Thus the petitioners maintained that they and their father were small landowners under the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as the Pepsu Act), but the proceedings for declaring the surplus area under the Pepsu Act were started without giving any notice to the petitioners. The Special Collector II Punjab, vide his order dated 28th August, 1963, declared 2.72 Standard Acres of land located at village Moranwali and the entire land of village Rajo Majra as surplus. The objection raised by the father of the petitioners that the land had been partitioned vide mutation Nos. 232 and 233 sanctioned on 14th September, 1956 between him and the sons were ignored by the Special Collector. The appeal and the revision filed against the order of the Special Collector were also dismissed by the Commissioner and the Financial Commissioner respectively on 28th November, 1963 and 15th July, 1964, vide their respective orders, Annexures, P7 and P9. The petitioners and respondent No. 2, however, continued in actual physical possession of the entire land in accordance with their shares as the authorities under the Pepsu Act did not take any steps for taking the possession of the land. Later on, the Authorities under the Punjab Utilisation of Surplus Area Scheme, 1973, started utilization proceedings, upon which the petitioners filed objections before the Collector, Malerkotla, inter alia contending that the land in question was never declared as surplus area and the orders of the officers passed under the Papsu Act being without jurisdiction were void and nonest. The Collector, however, rejected their objections vide order Annexure P4, dated 3rd September, 1973, without going into the merits of these objections, but on the ground that as the order of the Special Collector declaring the above referred area surplus in the hands of Sarwan Singh has become final, no further action was called for. The petitioners then filed appeal/revision before the Commissioner, Patiala Division and the Commissioner vide his order dated 16th June, 1975, Annexure P2, recommended the case to the Financial Commissioner for modifying the order of Special Collector in order to exclude the area which vested in the petitioners vide mutation Nos. 232 and 233. The Financial Commissioner, however, rejected" the reference vide his order dated 26th July, 1979, Annexure P1, mainly on the ground that it would amount to reviewing the order of his predecessor.

Under these circumstances, the petitioners have invoked the extra. ordinary jurisdiction of this Court under Article 226 of the Constitution of India, for quashing the above referred orders of the different Authorities, by contending that the partition between the petitioners and their father on the basis of which mutation Nos. 232 and 233 were sanctioned on 14th September, 1956 had been wrongly ignored, as the provisions of Section 32KK of the Pepsu Act came into force on 30th October, 1956, i.e. after the above referred partition. It was also maintained that no notice was given to the petitioners by the Special Collector even though the names of the petitioners as owners in possession of the suit property figured in the revenue records since 14th September, 1956. Thus it was maintained that the order of the Special Collector, Annexure P6, being without jurisdiction and void ab initio, was not required to be, challenged till the petitioners were aggrieved from, the Act of the concerned, Authorities in the year 1973, when they started taking steps to take possession. of the land. It was also maintained that the land in dispute having not been utilised under the Pepsu Act, or under the present Coiling Law, the petitioners were entitled to the permissible area separately from their father being adult sons under Sections 4 and 5 of the Punjab Land Reforms Act, 1972.

In return filed on behalf of the State of Punjab, it was maintained that Sarwan Singh, respondent No. 2. father of the petitioners, having not reflected the alleged partition of the laud between him and his sons in form 7A wider Section 32D of the Pepsu Act filed on 28th August, 1958, the above referred partition proceedings or the sanctioning of mutations was an attempt to play fraud upon the concerned Authorities in order to save the land from being declared surplus. It was also maintained that the petitioners had no connection with the land which stood in the ownership of their father and the land was rightly. declared surplus in the hands of Sarwan Singh. respondent No. 2. It was averred that as the petitioners had no right or interest in the ownership of the land, there was no necessity to serve them with any notice. The conduct of the petitioners in filing the present Writ petition after a period of nine years was also stressed in order to persuade the Court that no action is called for under the provisions of Article 226 of Constitution.

I have heard the learned counsel for the parties, besides perusing the record. The law is well settled on the point that the Authority concerned under the law is required to give notice. to all the parties whose names figure in the revenue record as owners of the property. In the case in hand, mutations Nos. 232 and 233 were entered on 4th September, 1956 and sanctioned on 14th September, 1956. The Consolidation Officer during consolidation of holdings in the year 1956 had accepted the application of the petitioners and thereafter had allotted different Kurras of land on the basis of the above referred partition of the Hindu family land. It is not disputed that the petitioners and their father during consolidation, proceedings, were allowed separate Kurras of land. Under these circumstances, the names of the petitioners did figure in the revenue record as owners of the land located in the revenue estate of village Moranwali. Strange enough, the Special Collector did not give notice to any of the petitioners even though the perusal of his order Annexure P. 6 clearly shows that Sarwan Singh. respondent No. 2, had raised a specific objection regarding some land having been transferred to his sons i. e the petitioners vide mutation Nos. 232 and 233. However, it appears that Sarwan Singh, respondent No. 2, has not set up a case of the property being a joint, Hindu coparcenary property or that he formed joint Hindu family with his sons. Sarwan Singh, respondent No. 2 then filed an appeal before the Commissioner, which was also rejected without giving any notice to the petitioners. The revision filed by Sarwan Singh, respondent No. 2, before the Financial Commissioner also met with the same fate without giving any notice to the pre sent petitioners. Thereafter, no steps were taken to take possession of the land declared surplus. The petitioners had not brought the certified copies of the mutations on the file. Thus, this Court is at a disadvantage to ascertain whether in these mutations, the case of the petitioners was that they are separating their interest from. their father from the land belonging to the joint Hindu family formed by them with their father. Under these circumstances, it is difficult to hold that the provisions of Section 32KK of the Pepsu Act, inserted vide Section 7 of the Punjab Act (Amendment Act No. 16 of 1956) which came into force w.e.f. 30th October, 1956, would be of any help to the petitioners, although the apex Court in Arjan Singh And another v. The State of Punjab and others, AIR 1970 Supreme Court 703 had held that the provisions of Section 32KK of the Pepsu Act came into force with effect from 30th October, 1956 and not from the date of the principal Act, viz., 6th March, 1955, as held by a Division Bench of this High Court in Arjan Singh and smother v. State of Punjab etc., L.P.A. No. 24 of 1963 decided on 30th March, 1964.

The question then arises whether the factum of partition of the ownership on the basis of which mutations Nos 232, and 233 were sanctioned on 14th September, 1956, could be ignored by the concerned Authority without giving notice to the petitioners. In this regard it is noteworthy that although Sarwan Singh, respondent No. 2, father of the petitioners, while filing statement in Form VIIA under Section 32B of the Pepsu Act, had depicted himself the owner of the entire land, but all the same when a draft statement in Form VII under Section 32D(2) of the Pepsu Act was prepared and served upon Sarwan Singh respondent No. 2 on 20th June, 1963, be did file the objection on l7th July, 1963 before the Special Collector having partitioned the land between him and his sons in the earlier part of 1956 and that the mutations were entered on 4th September, 1956 and sanctioned on 14th September, 1956. Under Section 32FF of the Pepsu Act, all transfers or disposition of land effected after 21st August, 1956, are to be ignored for the purpose of ibis Act. The proviso to this section further provides that any person who has received any advantage under such transfer or disposition of land shall be bound to restore it, or to make, compensation for it, to the person from whom be received it. Thus, under these circumstances, it was incumbent upon the Special Collector to have given notice to the petitioners in order to ascertain whether the partition of the land holdings between the petitioners and their father did take place before the appointed day. Strange enough, no notice was given to the petitioners and the entire proceedings continued at their back.

A Full Bench of this Court in Harnek Singh and another v. The State of Punjab and others, 1971 PLJ 727, while considering the import of the provisions of Sections 32D and 32FF of the Pepsu Act, had held that even though the landlord had, transferred his land after 21 st August 1956, the transferee had to be given notice of the surplus area proceedings and he must be given an opportunity to be heard.

The matter does not rest here as a Division Bench of this Court in Hardev Singh and others v. The State of Punjab and others, 1971 PLJ 283, had also taken a similar view under the Punjab Security of Land Tenures Act and the Rules framed thereunder, by holding that giving of notice to a transferee is mandatory, especially when the name of the transferee figured in the revenue records and that the failure to give such notice vitiated the entire proceedings.

A Single Bench of this Court in Sher Singh v. The Additional Director, Consolidation of Holdings, Punjab and others, 1971 PLJ 754, had gone to the extent of holding that the decision of the concerned Authority under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948). without giving notice to the persons whose rights were likely to be affected must be deemed to have taken without jurisdiction even though the progeny of those affected were heard before the decision. In that case, both the sons of the petitioner who were living jointly with his father were given notice and were heard by the Additional Director, Consolidation, but still it was held to be no notice given to Sher Singh petitioner in the eye of law.

Again, a Single Bench of this Court in Ajmar Singh etc. b. Financial Commissioner, Punjab, etc., 1972 Cur LJ 522, had taken a similar view that the order passed under 32FF of the Pepsu Act, without giving any notice to the subsequent vendees, is had in law and should be quashed.

Thus, the impugned order, Annexure P6, of the Special Collector and the subsequent orders passed by the Commissioner and the Commissioner, Annexures P7 and P8 respectively, are certainly void ab initio, as notice was given to the petitioners whose names did figure in to the revenue record as owners of the land in dispute. If that is so, then it was not necessary for the petitioners to get these orders set aside till an attempt was made to interfere with their rights of ownership. Thus, the bar or limitation or delay in approaching this Court against these three orders is of no consequence. The decision of a Single Bench of this Court in The State of Punjab v. S Bhagwant Singh, 1972 PLJ 297 can be referred with advantage in this regard. In that case, an Administrative Committee appointed by the ruler of the State of Patiala, had terminated the services of Bhagwant Singh who was serving as Nazim in that State on 2nd April, 1927. The order further directed that his whole of selfacquired and half of ancestral property shall be confiscated. Bhagwant Singh then filed the first representation on 31st August, 1938 regarding the confiscation of his property. Under these circumstances, it WAS held that the bar of limitation is not applicable to those orders which are void ab initio.

In a recent decision of this Court in The State of Punjab v. Dev Raj and others, 1987 RRR 382 (P&H) : 1987 PLJ 164, J.V. Gupta, J., had also taken a similar view that the order of the Collector under Section 32FF and 32KK(b) of the Pepsu Act, was rightly set aside, by the Civil Court as no notice was given to the persons who got a specific portion on the land in dispute on the basis of partition of joint Hindu family property in September 1956.

Consequently, under these circumstances, the order of the Special Collector, Annexure P6, as well as of the Appellate Authority Annexure P7 and that of the Revisional Authority confirming the order Annexure P7 deserve to be quashed being void ab initio due to nongiving of notice to the present petitioners and it is a case which does call for fresh determination of the surplus area by the requisite Authority after giving notice to the petitioners, but in the present case this exercise will be of futile nature, as under the provisions of Sections 4 and 5 of the Punjab Land Reforms Act, 1972 (Punjab Act No. 10 of 1973), the petitioners being the adult sons of Sarwan Singh, respondent No. 2, shall also be entitled to go their permissible area of land, as admittedly the possession of the land declared surplus had not been taken over by the State till now. Moreover, the ownership of the surplus area of land would vest in the State only after its possession has been taken over from the owner under Section 32E of the Pepsu Act. This view is supported from the Full Bench decision of this Court in Ranjit Ram v. The Financial Commissioner, Revenue, Punjab and others, 1981 PLJ 259.

For the foregoing reasons, the impugned orders Annexures P6 P7, P8, P1 and P2 of the concerned Authorities are quashed being void ab initio and the case sent back to the Collector, Agrarian, to redetermine the matter under Sections 4 and 5 of the Punjab Land Reforms Act, 1972, in the light of the above referred observations. The Collector shall also redetermine the surplus area of the petitioners and of respondent No. 2 if need be, in accordance with law. There is no order as to costs in view of the peculiar circumstances of the case.