Naranjan Singh vs State of Punjab

B.B. Mahajan, F.C.

This revision petition under Section 18 of the Punjab Land Reforms Act, 1972 and Section 24 of the Punjab Security of Land Tenures Act, 1953 read with Section 84 of the Punjab Tenancy Act, 1887, is directed against the order dated the 13 February, 1984 of the Commissioner (Appeals), Ferozepur Division, Ferozepur, whereby he dismissed the appeal of the petitioner.

Briefly, the facts of the case are that the petitioner held and owned 15.2916 hectares of first quality land on the appointed day i.e. the 24th January, 1971. He contended before the Collector that on 21st October, 1970 two months after the death of his father, his mother Ram Kaur got 21 Killas (equivalent to 6.6698 hectares of first quality) of land from him through Panchayat for her maintenance and thus this land may not be included in his holding. Accordingly, the Collector excluded this 6.6698 hectares of first quality land from the holding of the landowner, leaving 8.6218 hectares of first quality land in the holding of the petitioner. The landowner had 8 members of his family and Collector after allowing 7 hectares for the landowner as his permissible area and 4.20 hectares for the three additional family members @1.40 hectares per additional member found that the landowner had no surplus area. He, therefore, vide his order dated the 7th May, 1976 filed his case. On the 27th December, 1982 the Collector, Agrarian, Bhatinda made a reference to the Commissioner, Ferozepur Division and sought the permission to review the order dated the 7th May, 1976. The Commissioner accorded the permission on the 6th March, 1983. Thereafter the Collector, Agrarian, Bhatinda recorded the evidence of landowner, heard his counsel and concluded that the transfer of 103 Kanals 11 Marlas of land by the petitionerlandowner to his mother through Civil Court decree dated the 3rd July, 1972 was made to save his land from being declares surplus. The Collector found that the landowner had 7 family members and not 8. He, therefore, after allowing 9.80 hectares of first quality land as permissible area with the landowner, declared 5.4916 hectares of first quality land as surplus out of the total holding of 15.2916 hectares of the landowner, vide his order dated the 30th August, 1983. Aggrieved by this, the petitioner preferred an appeal before the Commissioner, Ferozepur Division, Ferozepur, who, after considering the arguments led on behalf of the petitioner and the State and perusing the relevant record, dismissed it, vide his order dated the 13th February, 1984 which has now been impugned before me.

I have heard the counsel for the parties. The main grounds urged by the counsel for the petitioner are :

(a) that the review in this case was not competent on the ground that the Collector in his earlier order dated the 7th May, 1976 had taken an erroneous view of the law and did not ignore the transfer of land in favour of the widowed mother of the petitioner,

(b) that the Civil Court decree dated the 3rd July, 1972 only declared the preexisting right of the widowed mother and was, therefore, not hit by the provisions of Section 7 (4) of the Punjab Land Reforms Act, 1972,

(c) that the Commissioner had wrongly refused to consider the petitioner''s objection regarding the valuation of the land on the ground that these objections had not been raised before the Collector.

In support of his contention at (a) above, the counsel for the petitioner, has referred to the judgment of the Division Bench of the Punjab High Court in Balwant Singh''s case reported in 1966 PLJ page 76 in which it was held that the Financial Commissioner cannot review his order on the ground that he had taken a wrong view of the law. The same rule would obviously apply with equal force to the Collector. The Collector''s order dated the 7th May, 1976 has been reviewed by his successor vide impugned order dated the 30th August, 1983 on the ground that in the earlier order by which the transfer of 103 Kanals 11 Marlas of land in favour of the widowed mother of the petitioner vide Civil Court decree dated the 3rd July, 1972 was held to be bona fide, was erroneous. During the appeal before the Commissioner (Appeals), the A.D.A. appearing on behalf of the State, had referred to Section 7 (4) of the Punjab Land Reforms Act, 1972 under which any judgment decree or order of Court or other authority obtained after the appointed day, having the effect of diminishing the surplus area, shall be ignored. The Commissioner in the impugned order held that a case of patent error of law in the Collector''s order dated the 7th May, 1976 had been clearly made out. The counsel for the State has, however, not shown any authority which may have overruled the view of the Division Bench of the Punjab High Court in 1966 PLJ page 76 referred to above, according to which a review is not permissible on the ground of having taken, a wrong view of the law.

In regard to ground (b) in para 3 above, the counsel for the petitioner has argued that after the death of the petitioner''s father, he and his mother were equal heirs under the Hindu Succession Act. The deceased father had executed a Will in favour of his grandsons. However, subsequently on the intervention of the Panchayat, a settlement was reached by which 103 Kanals 11 Marlas of land was given to the petitioner''s mother. This is less than her share under the Hindu Succession Act. Even if the Will and Court''s decree were to be ignored, the mother would be entitled to half the share in the land. The decree, therefore, does not confer any new right but only declares the preexisting right. He has referred to the judgment of the Hon''ble Supreme Court of India in Gurdip Singh''s case 1974 PLJ page 374 in which it was held that if the effect of the judgment is only to declare that the land never belonged to a person, it has not the effect of diminishing the area of land in his possession and would not have the effect of diminishing his area which could have been declared as surplus within the meaning of Section 32DD (b) of the Pepsu Tenancy and Agricultural Lands Act. Although that judgment is under the Pepsu Act, the provisions of Section 32DD (b) if that Act are identical to the provisions of Section 7 (4) of the Punjab Land Reforms Act, 1972. The declaratory decree had, therefore, been rightly taken into consideration by the Collector in his earlier order dated the 7th May, 1976. The transfer had already taken place by family settlement with the intervention of the Panchayat on the 21st October, 1970 before the appointed day. Even if the settlement which had been reduced to writing vide page 53 of the Collector''s file were to be ignored the decree had been obtained after the appointed day but before the commencement of the Act. The transfer effected thereby was therefore, covered by Section 4 (5) of the Act under which bona fide transfers are saved. There was no ground to hold the transfer in favour of the widowed mother of the petitioner as not bona fide. He has referred in this connection to the judgment of Hon''ble Punjab and Haryana High Court in Jagir Singh case reported as 1980 PLJ page 631 in which it was held that it was the moral and legal duty of fatherinlaw to maintain the widowed daughterinlaw and children of predeceased son and gift of land to son''s widow after the appointed day but before the commencement of the Act was, therefore, held to be a bona fide transfer. The same would apply to the present case also, where the transfer had been effected in favour of the widowed mother of the petitioner with even greater force as not only was it the moral and legal duty of the petitioner to maintain his widowed mother but she had also in the absence of the Will a legal right to inheritance. The counsel for the State has not been able to show any authority to contradict these assertions.

If the transfer made in favour of the petitioner''s widowed mother is taken into consideration, the remaining holding of the petitioner is well within his permissible limit. It is, therefore, not necessary to go into the grown mentioned at (c) in para 3 above.

I accordingly hold that the review in this case was not competent and the decree of the Civil Court dated the 3rd July, 1972 transferring 103 Kanals 11 Marlas of land in favour of the petitioner''s widowed mother being declaratory in nature could not be ignored while determining the petitioner''s surplus area, particularly when the decree had been passed after the appointed day but before the commencement of the Act and the transfer effected thereby had been correctly held by the Collector in his earlier order as bona fide. The petition is accordingly accepted. The impugned orders dated the 30th August, 1983 of the Collector, Bhatinda and that dated the 13th February, 1984 of the Commissioner (Appeals), Ferozepur are set aside and the order dated the 7th May, 1976 of the Collector Agrarian, Bhatinda is resorted.

Announced.