Spinder Singh alias Harminder Singh vs State of Punjab

K.S. Narang, F.C.

This is a revision petition preferred by Spinder Singh alias Harminder Singh, petitioner, u/s 18 of the Punjab Land Reforms Act, 1972 (referred to as "the Act"), read with section 84 of the Punjab Tenancy Act against the order dated 26121978 of the Commissioner, Patiala Division, in his surplus area case.

Brief facts of the case are that Spinder Singh alias Harminder Singh (incorrectly mentioned as Sukhinder Singh) furnished the declaration in Form `A'' u/s 5(1) of the Act ibid. Verification made by agrarian authorities showed that the landowner held land measuring 28.87.12 ordinary hectores of barani agricultural land in village Bhakansu on the appointed date 2411971. He was allowed to retain one unit of 7 hectores of Ist quality land or equal to 20.5 ordinary hectores of barani land as his permissible area, as per his entitlement. During the surplus area proceedings, the landowner revealed that he had earlier sold two pieces of lands measuring 52B7B to Paramjit Singh, Harbans Singh and Ishar Singh, Harjit Singh of Rajpura on 1011974 for consideration of Rs. 40,000/ each, with a view to construct his house and to be able to make improvement on his agricultural land. Though these transactions were effected after 2.4.1973, the date of commencement of the Act ibid, the Collector Agrarian exclude these areas as bona fide sales. The area thus sold on 10.1.1974 was calculated to be of the value of 8.82.70 ordinary hectores. The Collector Agrarian Rajpura, by his order dated 10.4.1975 held that as landowner was left with 20.24.42 ordinary hectores and as it was less than 7 hectores of Ist quality of land, there was no area surplus with the landowner. Under these circumstances, he ordered the surplus area case of landowner to be consigned to record. The State filed an appeal against the order dated 10.4.1975 of the Collector Agrarian (impleading the landowner and the vendees from him as respondents). The Commissioner, Patiala Division, by his order dated 25.10.1978 dismissed the State appeal in default. Thereafter the successor, Collector Agrarian, Rajpura, made a reference to the Commissioner seeking review of the order of his predecessor dated 10.4.1975. The Commissioner after hearing the State representatives and the landowner in person, by his order dated 26.12.1978, allowed the review (of the order dated 1041975 of the Collector Agrarian and directed the Collector Agrarian to decide the case afresh in accordance with law after hearing the landowner, the State and other interested parties, after allowing them the opportunity to produce evidence. Against this order, Spinder Singh landowner has now filed this revision petition.

Main contention of the counsel for the petitioner is that after dis missing in default the appeal of the State Govt. by his order dated 25.10.1978, against the order dated 10.4.1975 of the Collector Agrarian, the Commissioner had acted with the glaring illegality and irregularity in accepting the reference; that he after allowing its review by his order dated 26.12.1978 had reopened the surplus area case of the petitioner which had been consigned to record by the Collector Agrarian on 1041975. This counsel has also invited my attention to the provisions of section 82 (d) of the Punjab Tenancy Act, stressing the point that since an appeal had been preferred by the State and dismissed in default, the matter could not be reviewed thereafter and that the order dated 10.4.1975 of the Collector Agrarian had been merged with the order of the Commissioner dated 25101978, dismissing the State appeal in default. These contentions have been opposed by Shri Aggarwal and Shri Gupta, N. T. Agrarian.

I have heard the parties at length and have gone through the record. There is force in the contentions of the representatives of the State that since the order dismissing in default of nonappearance of the State was not passed on merit, the order of the Collector Agrarian dated 1041975 did not merge in the order dated 25101978 of the Commissioner and the aforesaid order dated 1041975 of the Collector was very much in existence and an independent order which could be reviewed. In support of their contentions, they have cited the ruling reported in A.I.R. 1977 Calcutta 372 (Para 6), A.I.R. 1974 S.C. 1380 (Para 12) and have asserted the point that order dismissing the appeal in default, but not disposing it of on merits, did not merge itself in the order appealed against. The counsel for the petitioner had not given any convincible and cogent reasons to rebut this proposition of law. In this view of the matter I am inclined to hold that the order of the Commissioner dated 2612 1978 does not suffer from any illegality and that he has exercised his jurisdiction correctly in allowing the review of the order dated 1071975 of the Collector Agrarian and remanding the case to him for fresh decision.

I am of the considered view that an order passed by the appellate Court, dismissing an appeal in default, does not merge itself in the order of the lower Court, appealed against unless the appeal is dismissed in default and also in merits.

On merits of the case, the representatives of the State have stated that the Collector Agrarian in his order dated 1041975 did not deal with the disposition of land sold to two sets of vendees, on 1011974, after 3rd April, 1973, the crucial date of the commencement of the Act, 1972 ibid, when he was not even competent to consider their bona fide nature under section 4(5) of the Act, 1972 ibid. These sales clearly were not bona fide transactions being against the express provisions of the Act ibid. In this background I entirely agree with the views of the learned Commissioner, given in para 5 of his impugned order dated 26121978, that it is not clear as to how the Collector Agrarian by his order dated 1041975 had concluded that these sales dated 1011974 were bona fide under the provisions of the Act.

For the reasons given above, the revision petition has no force and is hereby dismissed. The Collector Agrarian, Rajpura, should decide the surplus area case of the landowner afresh, according to law, after hearing the landowner, the State and other relevant parties, with least possible delay.

To be communicated.