Shiv Lal vs Financial Commissioner (Development), Punjab and Others

D.K. Mahajan, J.—This petition under Articles 226 and 227 of the Constitution of India is directed against the order of the Financial Commissioner refusing to set aside the order of the Collector declaring the petitioner''s land as surplus. Sadhu Ram who was a big landowner owned land in villages Gharaunda, Shajanpur and Garhilal-Karan in Tahsil Karnal. In the year 1953 he reserved land for his personal cultivation u/s 5 of Punjab Security of Land Tenures Act, 1953 (hereinafter to be referred to as the Act) in village Gharaunda, on 20th January, 1960 he sold land measuring 109 bighas and 8 biswas to Shiv Lal petitioner for a sum of Rs. 24,000/-. The sale was of the land in village Shahjanpur and was effected by a registered deed of sale. The Collector declared this land as surplus area of Sadhu Ram for purposes of the Act. This was done on 12th May, 1960. According to Shiv Lal he came to know of this order on 1st July, 1962, though he appeared in the proceedings before the Special Collector for determination of surplus area and his statement was recorded. His stand before the Special Collector was that the land forming subject matter of his sale-deed could not be declared surplus because the land had been sold to him on the representation that it was sold out of the reserved area and that fraud had been practised on him. It appears that the Special Collector did not believe this part of his statement and declared the area sold to him as surplus though at the time when this declaration was made no intimation was sent to Shiv Lal. On 3rd July, 1962, Shiv Lal applied for review of this order. The review application was dismissed on 5th October, 1962. He accordingly preferred an appeal against the order dated 12th May, 1960, on 23rd October, 1962, on the ground that he had come to know of the order on 1st. July, 1962. According to rules, appeal can be preferred within six months from the date of the order and the period can be extended for sufficient came. He applied for extension of the period of limitation on the basis of the plea that he had no knowledge of the order prior to 1st July, 1962. His appeal was dismissed by the Commissioner on the ground that it was barred by time His plea that he had knowledge of the order only on 1st July, 1962, was not determined He moved the Financial Commissioner in revision and before the Financial Commissioner he raised the contention that Sadhu Ram had died and as the land had not been utilised and he had left a large number of heirs, in the altered circumstances the land could not be declared surplus in view of the provisions of section 10-A and section 10 B read together. No decision was given by the Financial Commissioner on this part of the contention of the petitioner and the revision petition was rejected. The Financial Commissioner passed the following order on 17th September, 1963:

It is urged on behalf of the petitioner that a bona fide purchase has been made on consideration by Shiv Lal without knowledge that the particular area was excluded by Sadhu Ram deceased from his surplus area. On examination of the Collector''s order it is found that Shri Sadhu Ram deceased landowner reserved his permissible area in 1953 and no change in this reservation has been made. In these circumstances, in my opinion the revision on ground of fraud or misinformation to the vendee does not lie in this court and is not a matter where relief can be sought here. The revision petition is accordingly dismissed.

Announced.

It is against this order that the present petition has been directed.

The principal contention that has been advanced before me by the learned counsel for the petitioner is that in view of the provisions of sections 10-A and 10-B the order of the Special Collector declaring the petitioner''s area as surplus area should have been quashed by the Financial Commissioner. Sections 10-A and 10 B are in these terms-

10-A. (a) The State Government or any officer empowered by it in this behalf shall be competent to utilise any surplus area for the resettlement of tenants ejected, or to be ejected, under clause (i) of sub-section (1) of section 9.

(b) Notwithstanding anything contained in any other law for the time being in force and save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance no transfer or other disposition of land which is comprised in a surplus area at the commencement of this Act, shall affect the utilization thereof in clause (a).

(c) For the purposes of determining the surplus area of any person under this section, any judgment, decree or order of a Court or other authority, obtained after the commencement of this Act and having the effect of diminishing the area of such person which could have been declared as his surplus area shall be ignored.

Explanation.- Such utilization of any surplus area will not affect the right of the landowner to receive rent from the tenant so settled.

Certain provisions of the principal Act. to have retrospective operation.- Section 10-A of the principal Act, as amended by this Act (Punjab Act 14 of 1962), and clause (5a) of section 2 of the principal Act, shall always be deemed to have been inserted in the principal Act on the 15th day of April, 1953.

10-B. Saving by inheritance not to apply after utilisation of surplus area. - Where succession has opened after the surplus area or any part thereof has been utilised under clause (a) of section 10 A, the saving specified in favour of an heir by inheritance under clause (b) of that section shall not apply in respect of the area so utilised.

It is common ground that the land has not so far been utilised and it appears to me on the plain reading of the aforesaid provisions that the petitioner''s land cannot be now declared as surplus because the heirs of Sadhu Ram who are more than half a dozen will succeed to his estate and in the hands of each of the heirs the area would not be more than the permissible area under the Act. That being so, I am of the view that there is considerable force in this petition. I accordingly allow this petition, quash the order of the Financial Commissioner upholding that of the Commissioner and the Special Collector declaring the area sold to Shiv Lal as surplus area. As there is no representation for the State, there will be no order as to costs.