Karnail Singh vs State of Punjab

Gokal Chand Mital, J.

13 standard acres and 71/4 units of land were declared surplus by the Collector, Rampura Phul, vide order dated 22nd April, 1959, in the hands of Mukand Singh under the Punjab Security of Land Tenures Act, 1953 (hereinafter called `the 1953 Act''). In spite of declaration of the surplus area, no proceedings were taken either for taking possession or for allotting the surplus area to an ejected tenant or a landless farmer till 15th February, 1983, when a notice was issued under Section 9 of the Punjab Land Reforms Act, 1972 (hereinafter referred to as `the 1972 Act''), for taking possession. In pursuance thereto the State Government took possession on 28th March, 1983 and the Collector Agrarian, Rampura Phul, vide order Annexure P 3 dated 30th March, 1983 allotted certain area out of the surplus area in the hands of Mukand Singh to Bhag Singh.

When sons of Mukand Singh came to know of the aforesaid, they took the matter in appeal before the Commissioner and argued that on 11th January, 1983 Mukand Singh had died and, therefore, the question of surplus area had to be redetermined in their hands in accordance with the 1972 Act and if any surplus area was found in their hands only then question of making allotment could arise.

The learned Commissioner came to the conclusion that the actual date of death of Mukand Singh was not correctly stated and he appeared to be alive on 28th February, 1983, and thus dismissed the appeal. On revision to the Financial Commissioner, it was found that Mukand Singh died on 11th January, 1983, as copy of the death certificate was produced before him and since on the date of death the possession was of the land owners, that is before the Utilization of the surplus area, the matter has to be reassessed in the hands of the legal heirs. The revision was allowed and the allotment orders were quashed, vide order dated 12th March, 1987, copy Annexure P. 1.

Against the aforesaid order, Karnail Singh, son of the allottee, came to this Court in petition under articles 226/227 of the Constitution of India.

At the motion hearing, Sher Singh and others v. Financial Commissioner of Planning, Punjab and others, AIR 1987 S.C. 1307 : 1987 RRR 164, was cited for the proposition that by the declaration of the surplus area, the land gets vested in the State Government and it does not matter whether possession is taken by the State Government or allotment is made under the utilization scheme. The case was admitted to D.B.

Before we proceed to consider the decided case and the provisions of the 1972 Act, it is necessary to bear in mind the found facts of the case.

On 22nd April, 1959, the Collector Surplus Area had declared 13 standard acres and 71/4 units in the hands of Mukand Singh. Mukand Singh died on 11th January, 1983 and he remained in possession of the land which was declared surplus. On 25th February, 1983, notice under Section 9(1) of the 1972 Act was issued and when the landowners failed to deliver possession within the notified time, the Collector took possession on 28th March, 1983, in exercise of powers under Section 9 (2) of the 1972 Act, and the order of allotment was made on 30th March, 1983. Under Section 8 of the 1972 Act, the land vests in the State Government free from all encumbrances only on the date on which possession thereof is taken by or on behalf of the State Government. In this case when possession was taken, that is on 28th March, 1983, the landowner had died and it has to be seen whether the matter of surplus area had to be redetermined in the hands of his heirs or the taking of possession after the death of landowners was in accordance with law.

The matter stands concluded in favour of the heirs of the landowner in view of Financial Commissioner, Haryana v. Smt. Kela Devi 1980 P.L.J. 121, a decision of the Supreme Court, Smt. Ajit Kaur v. The Punjab State (Full Bench) 1980 PLJ 354, and Ranjit Ram v. The Financial Commissioner (Full Bench), 1981 PLJ 259, and the same view was taken in Sher Singh''s case (supra). In Sher Singh''s case (supra) view has not been taken contrary to the aforesaid decisions, which is clear from the following observations contained therein :

"All that the Act contains by way of exception is what is seen in Section 10 (A) (b). If at the time of commencement of the Act, the land is acquired by the Government under the relevant acquisition laws or when it is a case of inheritance, the owner could claim exclusion of such land from his land for fixation of his ceiling under the Act. The second exception itself is further fettered by the provision in Section 10B that where succession had opened after the surplus area or any part thereof had been utilised under Section 10 (A) (a), the saving specified in favour of an heir by inheritance would not apply in respect of the area so utilised. To put it short, the Government had under the Act an unfettered right without time limit to utilise the land for resettlement of tenants subject to the two exceptions mentioned above".

If the case falls in any of the two exceptions noticed in the quoted portion then the Government loses the right to utilise the land for resettlement of tenants. These exceptions also come into being only before the land is utilised. If after utilisation land is acquired or the landowner dies his heirs cannot take benefit and seek redetermination of the surplus area.

The learned counsel without reading the aforesaid quotation wanted to read earlier part of the judgment contained in the same paragraph which is as follows :

"It is true that along with the order declaring the land of an owner as surplus, a corresponding right and duty accorue to the Government to utilise the surplus area for the resettlement of tenants. In other words, the rights on the land declared as surplus get vested in the Government, to be distributed amongst the tenants for resettlement. This is an indefeasible right that the Government secures. The appellant is not well founded in his contention that he could get back the land, if the surplus had not been utilised. There is nothing in the Act which imposes any time limit for the Government to utilise the purpose mentioned in the Act. Nor is there any provision enabling the owner of the land to claim back the land and to get it restored to him if utilization is not made by the Government within a specified period".

If the above question is read disjunctively with the quotation noticed earlier, the matter can be sought to be confused but if whole of para 9 of the reported judgment is read and understood then the matter is clear and plain that the Government has indefeasible right to utilise surplus area without limitation of time and the landowner cannot claim it back but this right is subject to two exceptions that if before acquisition part of the land of the landowner is acquired by the State Government or he dies then the surplus area has to be redetermined so that on redetermination whatever if found surplus can be utilised for the resettlement of the tenants.

Now adverting to the facts of the case, which are distinguishable from Sher Singh''s case (supra), the landowner died on 11th January, 1983 and it is thereafter that notice under Section 9 (1) of the 1972 Act was issued directing the landowner to deliver possession and it is thereafter that on 28th March, 1983 the possession was taken in purported exercise of powers under Section 9 (2) of the 1972 Act and allotment to the father of the petitioner before us was made thereafter on 30th March, 1983. Therefore, the surplus area declared was not utilised before the death of the landowner nor its possession was taken by the State Government. Even if possession had been taken by the State Government before the death of the landowner in whose hand the area was declared surplus by virtue of Section 8 of the 1972 Act, the land would have vested in the State Government free from all encumbrances from the date of taking of possession. Since even possession was not taken before the date of death, taking of possession on 28th March as also the order of allotment dated 30th March, 1983 are without jurisdiction and were rightly set at naught by the learned Financial Commissioner.

For the reasons recorded above, the writ petition is devoid of merit and is dismissed but with no order as to costs.