Hari Chand vs Financial Commi., Revenue, Pb., Chd.

S.S. Kang, J.—This writ petition under Articles 226/227 of the Constitution of India has been filed by Shri Hari Chand, assailing the order of the Financial Commissioner, Punjab, dated October 28, 1976, dismissing his revision petition and seeking a writ of prohibition restraining respondent No. 3 from taking further action in pursuance to the purchase applications in respect of the land in dispute.

A broadbrush factual backdrop will help delineate contours of the forensic controversy.

Special Collector, Punjab, vide order dated 5th May, 1961 declared 50 Standard Acres 31/2 Units of land in the hands of Hari Chand petitioner as surplus. The petitioner owned lands in a number of villages, one of them being Ban Karanpur. 19 Standard Acres and 141/2 Units of land in village Ban Karanpur were declared surplus. Nathu Ram and otherstenants, filed an application before the Special Collector for review of his earlier order declaring the petitioner''s land surplus. This application was allowed and an area measuring 17 Standard Acres 81/2 Units in village Ban Karanpur was found to be in possession of Nathu Ram and others in the year 195253 and as such the same was excluded from the surplus area of Hari Chand. The result was that only 2 Standard Acres of land in village Ban Karanpur were declared surplus. Hari Chand filed an appeal against this order before the Commissioner. It was argued that before deciding the application for review the Special Collector had not given any notice and had not heard Hari Chand petitioner. His surplus area had been changed. The order was passed in violation of principles of natural justice and was liable to be set aside. This plea did not prevail. The learned Commissioner held that the rights and interest of the petitioner had not been in any way adversely affected. Out of the land, which had already been declared surplus, the tenants'' permissible area excluded. The petitioner rather gained by the order. The petitioner''s revision petition was dismissed by the Financial Commissioner. Aggrieved, the petitioner filed the present writ petition.

During the pendency of this writ petition an application C.M. No. 2532 of 1983 was moved by the petitioner to raise certain additional grounds on the authority of a recent Full Bench decision of this Court in Ranjit Ram v. The Financial Commissioner, Revenue, Punjab and others, 1981 PLJ 259. This application was allowed and the petitioner was allowed to plead that he had two sons, namely Kewal Krishan and Ram Dass, both of whom were major on the appointed date. Under Section 5(1) of the Punjab Land Reforms Act, 1972 he was entitled to select separate permissible area for each of his two adult sons and for that purpose, the area already declared surplus under the Punjab Security of Land Tenures Act, 1953, could also be included. Furthermore, the petitioner had not been divested of the ownership of part of the area declared surplus by the Special Collector, Punjab, and the same was no longer surplus and the petitioner was entitled to include the same for carving out separate permissible area for each of his sons. The respondents filed a reply in which they controverted the legal plea raised by the petitioner. It was pleaded that the purchase applications of respondents Nos. 4 to 17 and 24 to 34 had been allowed and the petitioner had been divested of the ownership of this land. However, the purchase applications filed by respondents 18 to 23 were still pending.

Shri U.S. Sahni, learned counsel for the petitioner, has argued that the order of the Special Collector, allowing the application and excluding 17 Standard Acres and 81/2 Units from the surplus area was void ab initio. The same had been passed in violation of the principles of natural justice. This argument cannot be accepted. The land in village Ban Karanpur had already been declared surplus. Nathu Ram and other tenants, who were old tenants of this land, moved an application that the land comprising in their tenancy could not be declared surplus, which had been done without notice to them. Their plea was accepted and the land measuring 17 Standard Acres and 81/2 Units, which was under the tenancy of the old tenants, was excluded from the surplus area. Thereby the petitioner did not lose anything. Rather to some extent he gained by this order. The landowner had better rights in the land which formed part of the permissible area of the sons than in the land declared surplus. The application had been filed under section 18 of the Punjab Security of Land Tenures Act, 1953, which requires a notice only to the persons who are likely to be adversely affected. Since in the present case the petitioner was not adversely affected, nonissuance of the notice to the petitioner did not in any way vitiate the order of the Special Collector. The decision of the Financial Commissioner against this order is valid and legal.

The applications of respondents Nos. 4 to 17 and 24 to 34 had been allowed by the competent authority before 24th January, 1971 i.e. the date of the enforcement of the Punjab Land Reforms Act. The had already deposited the purchase price of the land and had become owners thereof. The petitioner, therefore, had been divested of the ownership of the surplus land, which had been purchased by respondents Nos. 4 to 17 and 24 to 34.

However, the position of the land, for the purchase of which respondents Nos. 18 to 23 have filed applications under Section 18 of the Punjab Security of Land Tenures Act, and which applications are still pending, is different. The petitioner had not been so far divested of the ownership of that land. Regarding this land the petitioner''s case is fully covered by the Full Bench decision of this Court in Ranjit Ram''s case (supra). It has been observed therein that a landowner whose land has been declared surplus under the Punjab Security of Land Tenures Act, 1953, or under the Pepsu Tenancy and Agricultural Lands Act, 1955, and who has not yet been divested of the ownership of the surplus area before the enforcement of the Punjab Land Reforms Act, 1973, is entitled to select the permissible area for his family and for each of his adult sons in view of the provisions of Section 4 read with Section 5(1) of the Punjab Land Reforms Act. The petitioner''s case qua respondents Nos. 18 to 23 is fully covered by this decision so far as this land is concerned as respondents Nos. 18 to 23 had not purchased the same. Their applications are still pending. The petitioner was not divested of his ownership by 24th January, 1971.

The petitioner has pleaded that at the time of the enforcement of the Punjab Land Reforms Act he had two major sons and each of them was entitled to a separate unit. The respondents have admitted that the petitioner had one major son at the material date.

The writ petition is dismissed qua respondents Nos 4 to 17 and 24 to 34. However, the same is allowed qua respondents Nos 1 to 3. The case is remanded to the Collector, Dasuya, to decide the matter as to whether the petitioner''s sons were major on 24th January, 1971. If so, then he should carve out separate permissible area for each of the adult sons from the land, which is sought to be purchased by respondents Nos. 18 to 23. Before deciding the case, the Collector shall give adequate opportunity to the parties to lead evidence. No costs.