Jasmer Singh Bhatti vs State of Punjab

A.L. Bahri, J

Jasmer Singh Bhatti in this petition filed under Article 226 of the Constitution of India prays for issuance of a writ of certiorari quashing orders Annexures P2 and P3 passed by Collector Agrarian, Rajpura, and the Financial Commissioner (Appeals) Punjab whereby some of his land was declared to be surplus.

The petitioner owns some agricultural land in village Jeoli and Tardak, Tehsil Dera Bassi, District Pataila. His wife Shmt. Reshmi Devi also owns some land. His son Bandhupal Singh was born on 22nd September, 1962, and was a major when he filed this petition. There was no land in his name. The total holding of the petitioner and his wife was 15.98.06 hectares out of which 0.03.38 was Gair Mumkin leaving a balance of 15.95.28 ordinary hectares. Since the entire land was Barani, in terms of standard hectares it was 5.42.19. In this manner, the petitioner claimed to be a small landowner under the provisions of the Punjab Land Reforms Act.

The petitioner was holding another piece of land measuring 141 Bighas 4 Biswas, entered in the revenue record in the ownership of Shmt. Angoori Devi, respondent No. 5. The petitioner was neither the tenant nor mortgagee of this land. However, he claimed to have become owner of this land by virtue of a Will left by Jai Singh, father of Shmt. Angoori Devi, who was the original owner. The petitioner also claimed adverse possession over this land for more than 12 years. There was dispute regarding this piece of land between the petitioner and Smt. Angoori Devi in the civil court. The suit filed by the petitioner was dismissed and the appeal was stated to be pending in the court of Additional District Judge Patiala.

The case of surplus area of the petitioner was decided by Collector Agrarian on June 4, 1976, declaring the petitioner to be a small landowner. A copy or the order is Annexure P1. This order was not challenged in appeal. The Collector also declared Shmt. Angoori Devi, respondent, to be a small landowner while including the land in dispute in the possession of the petitioner as owned by Shmt. Angoori Devi. The petitioner made two sale deeds, one on June 22, 1976 and the second on August 31, 1976, in favour of Gurbax Singh and Ujagar Singh in respect of 44 Bighas of land. These vendees were not related to the petitioner in any manner. The vendees are Jat whereas the petitioner is a Rajput. In this manner, the holding of the petitioner was further reduced by about 1.5 standard hectares. Collector Agrarian Rajpura, vide his order dated January 4, 1977, reviewed his earlier order AnnexureP1 whereby the petitioner was declared to be a small landowner. An appeal was filed against the said order before the Commissioner which was accepted and the case was remanded to the Collector Agrarian for a fresh decision after hearing the petitioner, his wife and Smt. Angoori Devi. The Collector, vide his order Annexure P2 dated October 31, 1980/January 30, 1981, declared 133 Bighas 11 Biswas of land, equal to 3. 77. 24 standard hectares, in the hand of the petitioner as surplus, wrongly coming to the conclusion that the petitioner was a tenant of Shmt. Angoori Devi in respect of land measuring 141 Bighas 4 Biswas. When the case was pending before the Collector, the son of the petitioner became major after completion of 18 years of age. The matter was brought to the notice of the Collector, in writing, on October 1, 1980, and in this manner, the petitioner was entitled to have a separate unit of land for his adult sons. However, the Collector did not allow the same nor did he give credit to the petitioner in respect of sales of 44 Bighas of land. Before reviewing the order P1, the Collector did not obtain prior permission of the Commissioner as required by law.

Written Statement was filed by Collector Agrarian Rajpura on behalf of official respondents. It was admitted that the petitioner and his wife Shmt. Reshmii Devi were landowners. However, it was denied that the son of the petitioner was major. As per Jamabandi for the year 196970, Jasmer Singh petitioner was shown as owner of 121 Bighas 19 Biswas of land in village Jeoli out of which 8 Bighas of land was Gair Mumkin. In addition, the petitioner also possessed 2 Bighas 4 Biswas of Barani land of Patti Shamlat Didar Singh which included 11 Biswas to Gair Mumkin land and 1 Bigha, 8 Biswas of land of Mandir Shivala Deviwala as Mohtmim. 18 Biswas of land being Gair Mumkin was excluded. In this manner, the petitioner held and possessed 125 Bighas 3 Biswas of Barani land, excluding 1 Bigha of Gair Mumkin land, in village Jeoli. The petitioner and his wife as held land measuring 46 Bighas 6 Biswas and 67 Bighas 14 Biswas respectuicaly in village Tarak out of which 2 Biswas of land was Gair Mumkin and 113 Bighas 18 Biswas of land as Barani. The total land of the petitioner and his wife in the two villages, thus, came to 239 Bighas 1 Biswa of Barani land, equal to 20.15.37 ordinary hectares. By conversion into quality of land, it came to 68524 hectares.

It was admitted that the petitioner was in possession of 136 Bighas 15 Biswas of Barani land as tenant of Shmt. Angoori Devi and Mandir Shaivala Deviwala. The petitioner was not paying any rent to Shmt. Angoori Devi or Mandir Shivala Deviwala. The entry with respect to the land of Shmt. Angoori Devi was "Bashara Malkan Bila Malkana". This area comes to 11.52.91 ordinary hectares, and when converted into first quality land it comes to 3.92.00 hectares. The petitioner did not furnish declaration under/Section 5(1) of the Punjab Land Reforms Act intentionally to conceal the land of Shmt. Angoori Devi held by him. It was brought to the notice of the Collector Agrarian Rajpura by Sh. Sahib Singh, Advocate, through an application, that the petitioner cultivated more land that was not considered while passing order dated June 4, 1976. No land with Shmt. Angoori Devi was held to be surplus. The decision in her case will not in way affect the merits of the case of the petitioner. The sales were made by any the petitioner intentionally. The case was remanded by Commissioner Patiala Division to the Collector for a fresh decision. On the appointed day, the petitioner was in possession of surplus land, as discussed above. The fact that the son of the petitioner became major on September 2, 1980, will have no bearing upon the facts of the case, as on the appointed day, the family of the petitioner was in possession of surplus land. Orders passed by the Collector and the Commissioner were valid.

The fate of the writ petition depends upon the nature of the possession of the land belonging to Shmt. Angoori Devi held by the petitioner. Admittedly, on the appointed day, the petitioner was holding such land. The question for consideration is as to whether the petitioner holding was such land of Shmt. Angoori Devi as a tenant or as landowner as defined under the Punjab Land Reforms Act. If it is held that the petitioner was holding the land as landowner of as tenant, such land belonging to Shmt. Angoori Devi the said land had to be taken into consideration while determining surplus area in the hand of the petitioner.

The appointed day as defined under Section 3(1) of the Punjab Land Reformed Act, 1972 is the 24th of January, 1971. Under Section 3 (16) of this Act, the tenant has the meaning assigned to it in the Punjab Tenancy Act, and includes a subtenant and selfcultivating lessee but shall not include a present holder as defined in clause (f) of section 2 of the East Punjab Displaced Persons Land Resettlement Act, 1949. The tenant is defined under the Punjab Tenancy Act as a person who holds the land under another person, and is, or but for special contract would be, liable to pay rent for that land to that other person; but it does not include

(a) an inferior landowner, or

(b) a mortgagee of the rights of a landowner, or

(c) a person to whom a holding has been transferred or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887 for the recovery of an arrears of revenue or of a sum recoverable as arrears; or

(d) a person who takes from the Government a lease of unoccupied land for the purpose of subletting it.

Presentholder as per the aforesaid Act means a person who is in occupation of the land alloted or leased to an allottee or lessee, as the case may be. Since in the revenue record Shmt. Agnoori Devi has been mentioned as the owner, and in the cultivation column, the name of Jasmer Singh, petitioner, is recorded, further entries in the column of lagaan are to be taken into consideration to determine as to whether Jasmer Singh is a tenant of Smt. Angoori Devi or not. It is admitted that the entry under the column of lagaan is as under :

"Bila lagaan Basharah Malkan Bawajah Rishtedari"

This entry at the outset indicates that no rent is payable by the petitioner. There is no evidence of any contract between Smt. Angoori Devi and Jasmer Singh, petitioner, regarding payment or nonpayment of rent of its adjustment otherwise. In Jagjit Singh v. The Financial Commissioner Haryana 1981 PLJ 367, this Court held that where an entry with respect to payment of rent in the revenue record was blank, it would be taken that no rent was being paid. Payment of rent was necessary to create relationship of landlord and tenant. Learned counsel for the respondent has argued that from the entry of the like nature, it should be persuied that in the absence of any contract the person in occupation of the land would be liable to pay rent to the owner although on account of relationship no rent was being paid and a person in possession of the land on account of relationship would be deemed to be a tenant. I am afraid this contention can not be accepted. As already noticed, the payment of rent is a necessary ingredient to determine the relationship of landlord tenant. The payment of rent can be in kind or in cash, or it can be the subjectmatter of a contract to the otherwise. Since in the present case, as already noticed, there is no evidence of contract regarding payment of rent or its adjustment and no rent is mentioned in the revenue records being payable, the petitioner Jasmer Singh could not be held to be a tenant of Smt. Angoori Devi.

Section 6 of the Punjab Land Reforms Act defines landowner'' as under :

"landowner'' shall have the meaning assigned to it in Punjab Land Revenue Act, 1887 (Punjab Act XVII of 1887);

Explanation. In respect of land mortgaged with possession, the mortgagee shall be deemed to be the landowner".

Section 3 (2) of the Punjab Land Revenue Act defines landowner as under:

"land owner'' does not include a tenant or an assignee of land revenue, but does include a person to whom a holding has been transferred, or an estate or holding has been let in farm under this Act for the recovery of an arrear and every other person not herein before in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate".

At the outset it may be stated that owner of the land would be a landowner. However, a landowner as defined may not be owner of the land. Further, a tenant or an assignee of a land revenue will not be a landowner. However, transferee of the holding or an estate or a person who is let in or a person to whom holding has been let in the form of the recovery of arrears would be landowner. Further more, every other person not hereinbefore mentioned in this clause who is in possession of an estate or in enjoyment of part of the profits of an estate would be landowner. It is admitted case of the petitioner that he is in possession of the land of Smt. Angoori Devi and that litigation is pending in civil court. The claim of the petitioner on the basis of a will of Jai Singh, original owner, stands negatived by the civil court and now the matter is stated to be pending in the High Court in appeal. If the appeal is decided in favour of the petitioner he would be owner of the land and, thus, a landowner. That being the position, this piece of land could be included for determination of the surplus area as belonging to the petitioner. Even if he fails in the civil suit, his case is covered in the definition of landowner as reproduced above. He is in possession of the land and enjoying its profits. The authorities were, thus, justified, though on different grounds, in including this piece of land in the area of the petitioner for determination of the surplus area in his hand.

It has been argued on behalf of the petitioner that the impugned order passed by the Collector declaring the petitioner to be a small landowner without obtaining permission of the Commissioner is illegal and without jurisdiction. This contention again can not be accepted. Section 8 of the Punjab Land Reforms Act provides as under :

"The provision in regard to appeal, review and revision under this Act shall, so far as may be, the same as provided in section 80, 81, 82, 83 and 84 of the Punjab, Tenancy Act, 1887 (Act XVI of 1887)".

Section 82 (1) of the Punjab Tenancy Act reads as under :

"A Revenue Officer, as such, may either of his own motion or on the application of any party interested, review, and on so reviewing modify, revise or confirm any order passed by himself or by any of his predecessors in officer :

Provided as follows :

(a) When a Commissioner or Collector thinks it necessary to review any order which he has not himself passed, and when a Revenue Officer of a class below that of Collector proposes to review any order whether passed by himself or by any of his predecessors in office he shall first obtain the sanction of the Revenue Officer to whose control he is immediately subject".

No doubt, as provided by section 82 of the Punjab Tenancy Act, if the reviewing officer is other than the one who had passed the original order he is to obtain permission of the Commissioner or the Financial Commissioner as the case may be, before reviewing the order. In the case of Collector, prior sanction of the Commissioner is necessary for reviewing the order of the previous Collector. In the present case, as the narration of facts would indicate, the order of review passed by the Collector was challenged in appeal and the Commissioner accepted the appeal and sent the case back to the Collector for fresh decision after hearing the petitioner and others. This order could be treated as prior sanction of the Commissioner to the Collector to review the previous order of the Collector. This order of the Commissioner was not challenged before the Financial Commissioner. It is too late in the writ petition to urge that the order of the Collector is without jurisdiction for want of sanction from the Commissioner.

It has been argued on behalf of the petitioner that a fresh opportunity should have been allowed to the petitioner to select his permissible area after the Collector came to the conclusion that the land belonging to Smt. Angoori Devi was to be taken into consideration. This contention can not be accepted for the simple reason that an opportunity was given to the petitioner to select his permissible area and this opportunity was availed of by the petitioner, as is clear from the order of the Collector Agrarian Rajpura, Annexure P 2.

It has further been argued on behalf of the petitioner that after declaration of the petitioner being a small landowner initially by the Collector; he bona fide sold the land measuring 44 Bighas to Gurbax Singh and others and the land covered by the sale deeds which were bona fide made ought not to have been taken into consideration while determining permissible area of the petitioner. This contention again can not be accepted. The land of smt. Angoori Devi was in possession of the petitioner which fact was not disclosed by him when originally he was declared a small landowner. That being the position, subsequent sales made by him could not be ignored.

For the reasons recorded above, finding no merit in the writ petition, the same is dismissed. However, there will be no order as to costs.