Gurcharan Singh vs State of Punjab

G.S. Singhvi, J.—The question that arises for consideration in this petition filed for quashing of the orders dated 16.7.1998, 30.6.1999 and 26.10.1999 passed by the District Collector, Ferozepur (respondent No. 3), the Commissioner, Ferozepur Division, Ferozepur (respondent No. 2) and the Financial Commissioner (Revenue), Punjab respectively is as to whether the petitioners can retain possession of the land allotted to them under the East Punjab Utilization of Lands Act, 1949 (hereinafter referred to as ''the Act'') after the expiry of the statutory period stipulated in Sections 5 and 7 thereof.

Briefly stated, the facts necessary for deciding the question noted hereinbefore are that possession of the land measuring 302 Kanals bearing Khasra Nos. 16M/5/3(0-9), 6(12-4), 15/2(2-12), 16/1(3-0), 25/2(3-8), 17M/1/1(2-13), 2/2(3-18), 6/2(4-0), 7/1(4-0), 8(8-0), 10(8-0), 11(8-0), 12(8-0), 13(8-0), 17M/14(8-0), 15(8-0), 16(8-0), 17(8-0), 18(8-0), 19(8-0), 20(8- 0), 21(7-11), 23(50-8) 26M/1(8-0), 2(8-0), 3 Min Sharak (4-0), 9(4-0), 27M/5/2/3(8-16), 6(7-4), situated in Village Pandori Kharttarian, Tehsil Zira which belonged to the predecessor-in-interest of respondents No. 4 to 55 was taken by respondent No. 3 on the ground that the same was lying uncultivated for more than six crops. Out of that, 73 Kanals 10 Marias of land was allotted to Santa Singh, predecessor-in-interest of petitioners No. 1 and 2, and 74 Kanals 7 Marias of land were allotted to Gurdial Singh son of Jamna Singh in 1963. Since 1964, petitioner No. 3-Nachhatar Singh is said to have been cultivating the land which was allotted to Gurdial Singh, In 1995, the private respondents filed an application u/s 7 of the Act for return of possession of the land belonging to their predecessors. Respondent No. 3 gave notice of the said application to the petitioners and after hearing the parties, he passed order dated 16.7.1998 (Annexure P.3) by which he directed the eviction of the petitioners from the land in dispute and transfer of possession thereof to the private respondents. The relevant extract of that order is reproduced below :

"In this case the land was given on lease on 4.11.1963 and the period of 20 years expired on 4.11.1983 and the land owners are entitled to get back the land. Earlier in cases filed by Harbans Lal etc. against the lessees the SDO (C), Zira had ordered their eviction and the appeals filed by the lessees were dismissed by the Commissioner, Ferozepur Division. Ferozepur on 12.9.1995 except that it was ordered that in the absence of proof of delegation of powers by the District Collector to SDM, Zira, the formal orders regarding delivery of possession be passed by the District Collector and none else and the only duty cast on him is to verify the actual owners of the land and then to deliver the possession to them. Besides, this order related to Harbana Lal etc. owners in whose case they being 200 in number it was not clear whether they were owners or not. In that case the SDO (C), Zira had ordered the eviction of the lessees as Collector. In the instant case, however, copies of the Jamabandis for the year 1988-89 have been placed on record which show that the applicants are the owners in respect of the disputed land as per entry in Column No. 3 and as per entry in Column No. 9 the respondent lessees are liable to pay again at the rate of Rs. 3/- per acre per year on lease for 20 years. As per revenue record, the applicants have been shown to be land owners and the respondents cultivating the land in dispute under them on lease for 20 years which expired on 4.11.1983. The contention of the respondent- lessees that they have become owners on account of their long standing possession is therefore, without any merit. It has been clearly held in Sections 7 and 11 of the East Punjab Utilization of Lands Act, 1949 that after the expiry of the lease the land has got to be restored to the original land owners by the Collector, there being no relationship of any kind between the land owners and lessees. In view of the above discussion, I order the eviction of the respondent-lessee from the land in dispute and order that warrant for transfer of the possession of the same be issued as per entry in the Jamabandi for the year 1988-89."

The appeal filed by the petitioners was dismissed by respondent No. 2 on 30.6.1999. While doing so, he noticed the contentions urged on behalf of the petitioners and negatived the same by recording the following reasons :

"The learned Counsel for the appellants has put forth only two main contentions that lease period of 20 years has not been recorded in the allotment order dated 27.10.1963 and the entries in Column No. 9 of the Jamabandi is not supported by any record of the competent authority and that the appellant cannot be dispossessed after retaining possession of the land for 32 years and secondly the appellants had made lot of improvements and spent Rs. 10,000/- per acre for making the land fit for cultivation and the Col lector has not afforded any opportunity to the appellants to lead evidence in this regard. I do not find any force in both these contentions. The land in dispute being banjar, its possession was taken by the Collector and the same was leased out for a period of 20 years @ Rs. 3/- per acre to the appellants, Gurcharan Singh, Santa Singh and Gurdial Singh (deceased) by the S.D.O. (Civil)-cum-Collector, Zira vide order dated 27.10.1963 and possession of the land was delivered to the appellants and rapat roznamcha Nos. 86, 87 and 88 to this effect were entered by the patwari halqa. The fact that the land in question was given on lease @ Rs. 3/- per acre to the appellants far 20 years is supported from the entries of Column No. 9 of the Jamabandi for the year 1988-89 wherein in Column No. 3, the respondents have been recorded as owners of the land. Therefore, after expiry of the period of lease the respondents are entitled to take back possession of the disputed land Further, the appellants are not entitled to any compensation for any improvement in the land because there was no relationship of landlord and tenant between the parties and as such the provisions of the Punjab Tenancy Act, 1887 for the grant of compensation for improvement of land is not applicable in the present case, I do not find any illegality or irregularity in the impugned order passed by the District Collector, Ferozepur, and as such the appeal is dismissed."

Feeling dissatisfied with the orders passed by respondents No, 3 and 2, the petitioners invoked the re-visional jurisdiction of the State Government but they could not convince the Financial Commissioner, Revenue, Punjab that they have the right to retain possession of the land- He dismissed the revision petition by a comprehensive and well reasoned order passed on 26.10.1999 (2000(2) PLJ 189). In paragraph 6 of that order the Financial Commissioner dealt with the petitioners'' contention that they cannot be asked to vacate the possession because no lease deed was executed limiting their right to retain possession for 20 years and negatived the same by observing as under :-

"In my view, there is no force in this contention. If the claim of the petitioners is that the land was not on lease with them they should have produced some letter of allotment in support of their claim. But no order of allotment under any other Act under which the land could have been allotted to the petitioners was produced. The absence of Pat-tanama does not obliterate or in any manner detract from the claim of the land owners. The Act does not envisage any such deed. Moreover, the entries in the Jamabandi record that the land is on lease for a term of 20 years and the respondents are owners. By virtue of the proviso u/s 5 of the Act, the period of lease shall not be less than 7 years and more than 20 years In view of this mandatory provision circumscribing the maximum term of lease, the plea of the petitioners regarding non-mention of the period of lease is rendered fallacious and, therefore, untenable: Therefore, I have no hesitation in coming to the conclusion that the land was taken over by the Collector from the respondent for a period of 20 years under the East Punjab Utilization of Lands Act, 1949 and the term of lease in favour of the petitioners was synchronous."

While rejecting the contention of the petitioners that the application filed by the respondents should be rejected because some of the legal representatives of the land owners had not been impleaded as parties, the Financial Commissioner observed as under :-

"Sections 7 and 11 of the East Punjab Utilization of Lands Act, 1949 empower the Collector to hand over the possession to the owners on the expiry of lease and also empower him to conduct the necessary inquiry for the said purposes. Section 7(3) even goes to the extent of providing that where the person to whom possession of land is given cannot be found that there is no agent or person empowered to accept delivery on his behalf, the Collector shall cause a notice, declaring that the land is released, to be affixed on some conspicuous part of the land and the land shall be deemed to have been delivered to the persons entitled for its possession. Thus, it is clear that is it not necessary to identify and locate all the persons who are to be given physical possession, as a condition precedent for taking over the land from the lessees. Thus, the contention of the petitioners that some of the legal representatives of the original owners have not been impleaded as necessary party, is absolutely untenable in this case. The revenue record keeps on getting updated through mutations of transfer/inheritance and other alterations and it is inevitably expected rather presumed that Collector shall hand over the possession to the owners after verifying such information, if any, as he considers necessary."

She also rejected the petitioners'' contention that they had become owners of the property in question and held as under :

"Another objection which has been taken by the petitioners is that eviction is against the policy of the Government which envisages grant of ownership rights to such lessees. In this connection, my attention was invited to D.O. letter No. 18/15/Rev-AR(4)-87/782 dated 9.2.1988 from the then Financial Commissioner, Revenue, Shri Tejendra Khanna to the address of all the Deputy Commissioners, wherein it has stated that pending a policy decision in the matter and amendment of relevant Acts, the lessees of such lands belonging to the State Government/Gram Panchayats as well as those belonging to big land owners should not be dispossessed for the present. In this connection, I find that no amendment of the East Punjab Utilization of Lands Act, 1949 has taken place for this purpose. On the contrary. D.O. letter dated 9,2.1988 was withdrawn vide memo No. 18/15/Rev-AR(4)-87/1950 dated 27.3.1990 in so far as it relates to private land owners. Thereafter, vide another memo No. 18/15-87-RFV-AR(4)824 dated 6.3.1991 the instructions were withdrawn even in respect of lands belonging to Gram Panchayats. The petitioners have not been able to controvert these facts. Even otherwise executive instructions cannot take precedence over statutory provisions particularly when the ownership is not of the Government but of private individuals. As already indicated, these instructions stand withdrawn and, therefore, there is no controversy on this score."

Ms. Lisa Gill argued that the petitioners cannot he asked to vacate possession of the land because they were not given the land in dispute on lease in terms of Section 5 of the Act. She relied on the contents of Annexure P.2 and argued that as the land was allotted to the petitioners for an unlimited period, they will be deemed to have become its owners. Learned counsel submitted that the revisional authority has seriously erred in discarding the plea of the petitioners about ownership on the ground that no pattanama was issued in favour of the petitioners. She argued that the absence of pattanama cannot be determinative of the right to hold the property.

In our opinion, the submissions of the learned Counsel are devoid of substance and the writ petition is liable to be dismissed summarily. Sections 5 and 7 of the Act which have bearing on the claim made by the petitioners read as under :

"5. Lease by Collector. - Where the Collector has taken possession of any land u/s 3, he may lease it to any person on such terms and conditions as he may deem fit for the purpose of growing food and fooder crops :

Provided that the period of lease shall not be less than 7 years and more than 20 years.....

Delivery of possession on termination of lease. - (1) Where any land taken possession of by the Collector u/s 3 is on the expiry of the lease to be returned to the owner, the Collector may after making such enquiry, if any, as he considers necessary specify by order in writing the person to whom possession of the land shall be given.

(2) The delivery of possession of the land to the persons specified in any order made under sub-section (1) shall be a full discharge of the Collector from all liability in respect of such delivery but shall not prejudice any rights in respect of the land which any other person may be entitled to by due process of law to enforce against the person to whom possession of the land is so delivered.

(3) Where the person to whom possession of any land is given cannot be found and has no agent or other persons empowered to accept delivery on his behalf the Collector shall cause a notice declaring that the land is released to affix on some conspicuous part of the land.

(4) On issue of the notice referred to in sub-section (3), the land specified in the notice shall be deemed to have been delivered to the person entitled to the possession thereof and the Government or the Collector shall not be liable for any compensation on other claim in respect of the land for any period after the said date."

A conjoint reading of the provisions reproduced above shows that u/s 5, the Collector can lease out the land, of which possession has been taken u/s 3 of the Act, to any person for the purpose of growing food and fodder crops. The minimum period for which such lease can be granted has to be 7 years and the maximum period of 20 years and by virtue of Section 7, the Collector is obliged to return the possession of the land to the owner on the expiry of the lease.

In Dasaudha Singh and others v. State of Haryana and others 1973 PLJ 1 the Supreme Court interpreted the provisions of the Act and held that return of possession at the end of the maximum period of lease stipulated in the Act is a must. The relevant observations made in this context are extracted below :

"There can be no manner of doubt that the sole purpose for which the Act was enacted was to ensure that lands such as were capable of producing food or fodder but which owing to the neglect on the part of the owners were not being cultivated should be utilised for cultivation and for growing food and fodder crops.....

The entire scheme of the Act establishes that it was intended to be exhaustive for the purpose for which it was enacted. It is hardly possible to regard a tenant of the Collector under the Act as falling within the definition of a tenant under the Tenancy Act. The whole purpose of the Act would be defeated if the provisions of the Tenancy Act were made applicable to it. If that had been intended there was nothing to stop the legislature from making a provision in the Act itself about the applicability of the Tenancy Act, The High Court appears to be right in coming to the conclusion that from the provisions of the Act no intention can be attributed to the legislature of creating a relationship of landlord and tenant between the Collector and the tenant as defined by the Act of the same nature as was provided for by the Tenancy Act......

Section 7 is silent on the question of compensation. The legislature being fully alive to the matter of compensation, it would be legitimate to assume that it did not intend to make any provision when possession was to be handed over by the tenant to the original owner pursuant to an order made u/s 7. The reason apparently for not making any provisions for compensation one way or the other was that it was clearly contemplated that the tenant would have to give up possession on the expiry of the term of the lease which was for a long period and during which he was expected, as has been observed before, to derive the maximum benefit by means of cultivation of food and foodgrains crops. Since the provisions of the Tenancy Act have been held to be inapplicable to the tenant as defined by the Act we are unable to hold that he was entitled to any compensation before giving up possession in compliance with the order made u/s 7 of the Act.....

It is thus clear that the Collector was empowered to take possession from the owner only for a maximum period of 20 years for which he could have lease it out to a tenant. It was thus clearly contemplated that on the expiry of that period the Collector would restore possession to the owner. The Act nowhere, contemplated that the owner should be completely deprived of his ownership rights. The compensation to which he was entitled u/s 9 was for the temporary deprivation of the exercise of ownership rights for the period during which the possession of the land had been taken over by the Collector and given on lease to a tenant. Section 7(1) when read in this context clearly shows that it was intended to empower the Collector to make an order in writing after the expiry of the lease saying that the possession of the land shall be given to the person named or specified in the order. The words "to whom possession of the land shall be given" contained the mandate under which the Collector derived powers of directing that the possession of the land was to be given by the tenant to the owner whose name was specified in the Collector''s order. The compulsory and the summary process by which that order could be enforced is to be found in Section 11. If the tenant did not comply with the order or direction made u/s 7, the Collector could take or cause to be taken such steps or use or cause to be used such force as was necessary for securing compliance with the order made u/s 7(1)."

In view of the law laid down by the Supreme Court, we hold that the petitioners cannot claim to have become owners of the land in dispute simply because they remained in possession thereof after expiry of the maximum period of lease and the concurrent findings recorded by the District Collector, Ferozepur, the Commissioner, Ferozepur Division, Ferozepur and the Financial Commissioner (Revenue), Punjab rejecting the plea set up by the petitioners do not call for interference by this Court under Article 226 of the Constitution of India. The issuance or non-issuance of pattanama will have to be treated as inconsequential in view of the judgment of the Supreme Court in Dasaudha Singh''s case (supra).

The argument of Mrs. Gill that the land was given to the petitioners and their predecessors for indefinite period, which appears to be based on Annexure F.2. deserves to be rejected because, -

(a) Annexure P.2 is not the letter of allotment but is a copy of the resolution passed by the Gram Panchayat for giving possession of apart of land to Santa Singh. That document cannot be made basis for recording a finding that the precedessors of the petitioners were given land for unlimited tenure;

(b) The possession of the land in dispute could have been given to the predecessors of the petitioners only in accordance with the provisions of the Act and in view of the specific stipulation in Section 5 of the Act that the lease can be granted for a maximum period of 20 years, the petitioners are not entitled to retain possession for an indefinite period.

For the reasons mentioned above, the writ petition is dismissed.

Petition dismissed.