Ram Jash vs Financial Commissioner (Appeals), Punjab

G.S. Singhvi, J.—Order dated 2.9.1993 (Annexure P4) passed by the Financial Commissioner (Appeals), Punjab, is under challenge in this writ petition filed by the petitioners Ram Jash and Ganesha Ram, who were tenants of the landowner Sheo Karan (father of respondents No. 3 and 4). The petitioners have prayed for quashing of the order dated 2.9.1993.

Surplus area of land of Sheo Karan was determined by the Collector vide order dated 9.6.1962 passed under the Punjab Security of Land Tenures Act, 1953 (for short `the Old Act''). The Collector declared 32 Standard Acres of land as surplus. Sheo Karan did not challenge the order dated 9.6.1962 and, therefore, qua him the order dated 9.6.1962 became final. The petitioners challenged the order of the Collector on the ground that the tenants permissible area was not left by the Collector. The petitioners pleaded that they were in cultivating possession before 195253 and, therefore, the tenants permissible area could not be declared surplus. This appeal was accepted and the case was remanded to the Collector Agrarian, Fazilka, for fresh decision. Before the matter could be decided afresh, Sheo Karan died and, therefore, on 24.8.1983 the Special Collector directed that the case be filed and a direction was given to prepare the surplus area of the legal heirs of Sheo Karan. In the meantime proceedings were initiated qua Sheo Karan under the Punjab Land Reforms Act, 1972 (for short `the new Act''). Sheo Karan filed declaration in Form `A''. The competent authority took into consideration the fact that the landowner had three adult sons and declared that after leaving 2.5329 hectares of first quality land as tenants permissible area, no surplus area was left with Sheo Karan. The order dated 4.2.1980 (Annexure P1) also became final because it was not challenged by the landowner during his lifetime. Subsequently, on an application filed by the petitioners, the Collector (Agrarian), Abohar, passed order dated 9.5.1985 under old Act declaring that the tenants were in cultivating possession before 1970 and, therefore, the area under their cultivation had to be left as tenants permissible area. At the same time, the Collector (Agrarian) declared that 0.3608 hectares of first quality land situated in village Maujgarh was surplus. He directed that for utilising the surplus area the proceedings under Section 9(1) of the New Act be initiated. Respondents No. 3 and 4 filed an appeal against the order dated 9.5.1985 declaring 8.1051 hectares of first quality land as tenants permissible area. The Commissioner, Ferozepur Division, dismissed the appeal by holding that surplus area of the landowner had been determined under the New Act vide order dated 4.2.1980 during the lifetime of the owner and, therefore, his heirs were not entitled to any further benefit. On a further appeal filed by respondents No. 3 and 4, the Financial Commissioner (Appeals), Punjab passed the impugned order and remanded the case to the Collector (Agrarian), Abohar for fresh decision after quashing the order dated 9.5.1985 and 19.10.1987.

The main argument of Shri Ravinder Chopra, learned counsel for the petitioners, is that when the order dated 4.2.1980 passed under the New Act had become final, it was not open to the Financial Commissioner to have ignored that order. The learned counsel argued that while determining the surplus area of the landowner under the New Act by taking into consideration the land in his possession as on 24.1.1971, the Collector had passed the order leaving out the tenants permissible area and as that order has become final, the same was binding on the heirs of the landowner. Learned counsel argued that the land forming part of the tenants permissible area cannot be declared surplus. Shri Chopra further argued that the area declared surplus under the Old Act was to be treated as inherited by the heirs of Sheo Karan and, therefore, the Financial Commissioner (Appeals) has committed a serious illegality in passing the impugned order.

A perusal of the order (Annexure P1) dated 4.2.1980 shows that after considering the declaration made by the landowner (late Sheo Karan), the Collector (Agrarian) has observed:

".. The area held by son of Shiv Karan including Shiv Karan landowner comes to 38.6285 hectares of first quality. Out of this area measuring 8.4659 hectares of Ist quality has already been declared surplus under the Punjab Security of Land Tenures Act, 1953. This area shall remain surplus and shall not be affected by the provisions of the Punjab Land Reforms Act, 1972. After declaring the land already declared surplus, the net assessable holding of the applicant comes to 30.1626 hectares of first quality land. Out of this area measuring 2.5329 hectares of Ist quality is under tenants before 1970. The landowner, his two sons and daughterinlaw (widow of Bhagirath son of Shiv Karan) are entitled to 4 units i.e. 28 hectares of Ist quality land. The sons of the landowner and his daughterinlaw are grownup and hence there is no need of any proof about their majority. Accordingly, after allotting 28 hectares of first quality of land as permissible area of the landowner the remaining area measuring 2.1626 hectares of Ist quality is declared as TPA and his case is filed.

The land already declared surplus under the Punjab Security of Land Tenures Act, 1953 shall remain surplus and shall not be affected by this order."

While passing the order dated 9.5.1985, the Collector (Agrarian), Abohar, took note of the rival arguments, he observed:

"During the course of arguments, the Naib Tehsildar surplus contended that as the surplus area of Lal Chand and Tara Chand has already been determined under the Punjab Land Reforms Act, 1972 and in view of Section 11(7) of the Act, the heirs cannot take the benefit of death of the landowner if the surplus area was determined during the lifetime of landowner. In support of his arguments, the Naib Tehsildar cited 1984 PLJ 214. It has been held in the said judgment that the legal heirs after the death of the landowner cannot take the benefit of redetermination of the surplus area in view of Section 11(7) of the Act.

Arguments heard. I agree with the contention raised by the counsel for Ram Jas, Ganesha Ram and the State counsel. It has been proved by way of documentary evidence that Ram Jas, Ganesha Ram, Dungar Ram were cultivating the land before 1970 and this area has to be left as tenants permissible area. The area measuring 0.3608 hectares of first quality of land situated in village Maujgarh is declared surplus and list of the surplus area is attached. For utilising the land proceeding u/s 9(1) be initiated. Copy of the order be attached with the order vide which the surplus area case of the landowner was determined under the provisions of Punjab Land Reforms Act."

The Commissioner, Ferozepore Division, Ferozepore, before whom appeal was filed by respondents No. 3 and 4 held:

".. It is relevant to recall here that surplus area of Sheo Karan has already been determined under the New Act vide order dated 4.2.80 during his lifetime and as such there can be no redetermination of surplus are under the New Act in the hand of the appellants as legal heirs of Sheo Karan. That being the position, the Special Collector has rightly decided the fate of the area of late Sheo Karan which was declared surplus under the Old Act. He has found that out of the surplus area declared under the Old Act, the land measuring 8.1051 hectares of first quality has been under tenants since before 197071. After declaring the area as tenants permissible area he has rightly declared the remaining land measuring 0.3608 hectares as surplus. Under the law the appellants are not entitled to any further benefit under the New Act, in view of the fact that surplus area of their father has already been determined under the New Act on 4.2.80 during his lifetime."

In the impugned order the Financial Commissioner (Appeals) took the view that there was no surplus area under the under the Old Act as Sheo Karan had died during the postremand proceedings before the Special Collector. The Financial Commissioner observed that while passing the order dated 4.2.1980 the Collector did not take into consideration the unutilised area which had been declared surplus under the order dated 9.6.1962 and the Collector was in error in taking into consideration this part of the land as holding of Sheo Karan while passing the order dated 9.5.1985. On this premise the Financial Commissioner (Appeals) has set aside the orders dated 9.5.1985 and 19.10.1987 and has remanded the case for fresh decision.

In our opinion, the Financial Commissioner (Appeals) was not right in holding that the order dated 4.2.1980 was illegal for the simple reason that the said order was not under challenge. The order dated 4.2.1980 was passed during the lifetime of the Sheo Karan and if at all he felt aggrieved by the said order it was open to Sheo Karan to file appeal against the order dated 4.2.1980. The very fact that Sheo Karan did not challenge the order dated 4.2.1980 shows that the same became final. Subsequently, it was not open to the heirs of Sheo Karan to directly or indirectly challenge the order dated 4.2.1980 while assailing the order dated 9.5.1985. In our opinion, legality of the order dated 4.2.1980 could not be gone into by the Financial Commissioner (Appeals) while passing the impugned order.

As a result of the above discussion, the writ petition succeeds and the same is allowed. The order dated 2.9.1993 (Annexure P4) passed by the Financial Commissioner (Appeals) is declared illegal and is quashed. The parties are left to bear their own costs.