Sukhcharan Singh vs State of Punjab

Swaran Singh Bopara, K.C. IAS.

This is a Revision Petition under section 18 of the Punjab Land Reforms Act, 1972, directed against the order dated 4.3.1986 passed by the Commissioner, Ferozepur Division, Ferozepur, whereby he dismissed the appeal of the petitioner and sustained the order of the Collector, Fazilka dated 11.11.1976.

Brief facts of the case are that surplus area case of Inder Singh, father of Petitioner was decided by Collector, Ferozepur on 23.9.1961, against which an appeal was preferred before Additional Commissioner, Jalandhar, who accepted the appeal vide his order dated 4.5.1963 and remanded the case to Collector (Agrarian), Fazilka for fresh decision. Sh. Sukhcharan Singh was minor and was represented by Smt. Jaswant Kaur, his mother, natural guardian as father of Sh. Sukhcharan Singh had already died. Smt. Jaswant Kaur failed to attend the Court, on which date the case was decided ex parte by Collector, Fazilka. After allowing 30 standard acres as permissible area of landowner, land measuring 23 standard acres 12 units was declared surplus on 30.1.1964. Against that order, again an appeal was filed before Commissioner, Jalandhar Division, which was accepted on 5.7.1976 on the plea that no notice was given to landowner by the then Collector, before deciding the case. After many adjournments the case was finally fixed by the Collector for 11.11.1976, on which date neither landowner nor his counsel was present. Accordingly, ex parte proceedings taken against the landowner and case was decided by Collector, Fazilka whereby after leaving area to an extent of 30 standard acres and permissible area of landowner, remaining land to the extent of 25 standard acres and permissible area of landowner, remaining land to the extent of 25 standard acres 103/4 units was declared surplus in village bhadur Khera and benefit of increase in land due to consolidation was given to landowner. In addition to above, 11 killas of land in village Bhitiwala, Tehsil Muktsar owned by landowner, was also declared surplus.

The petitioner, not satisfied, by order of the Collector Agrarian, Fazilka dated 11.11.1970, preferred an appeal before Commissioner, Ferozepur division, Ferozepur, who dismissed the appeal on 4.3.1986 with observation that there was no substance in the appeal. Hence present revision petition.

Shri Ravinder Chopra, Counsel for the petitioner, started with the argument that Inder Singh was big landowner and his surplus area was determined to the extent of 23 St. Acres 12 Units by Collector''s order dated 23.9.1961. This order was challenged before the Commissioner who remanded the case. Collector then redetermined the surplus area on 30.1.1964. Surplus area is still unutilized. It is in continuous possession of the petitioner who is son of Inder Singh. Inder Singh has since died and, therefore, surplus area case has to be decided afresh under the new Act. These facts were hotly contested by Sh. O.K. Puri, who stated that this is not the surplus area case of Inder Singh but is of the petitioner himself ab initio. It is petitioner''s surplus area which was decided by Collector''s order dated 23.9.1991 and which was challenged before Commissioner and later remanded. It is not a question of Inder Singh''s heirs making a claim. Sukhcharan Singh is alive and he had no adult sons on 24.1.1971, the appointed date. Hence the ruling which was quoted by Shri Ravinder Chopra i.e. 1983PLJ319 is not applicable to the present case. Surplus area case does not have to be redetermined of the heir, Shri Puri asserted. It has to be with relevance to a positive claim of the petitioner that there were more people in the family who were entitled to separate shares. Shri Ravinder Chopra thereupon discovered that he was on a wrong foot. He gave up plea contained in para 5 of his petition and based himself entirely on the law point.

The law point involved is that after the case was remanded, surplus area was redetermined by Collector''s order dated 11.11.1976. Meanwhile, the new Act had come into operation. Shri Chopra''s assertion is that order of Collector dated 11.11.1976 is wrong because on that date surplus area under section 28 of Punjab Land Reforms Act, 1972 has to be decided not under provisions of the old Punjab Law but specifically under provisions of existing law i.e. the Punjab Land Reforms Act. After hearing the two counsel carefully I have gone through section 28 of the Punjab Land Reforms Act and the cited judgment of Justice S.S. Kang. Section 28 of Punjab Land Reforms Act is reproduced into for easy reference :

"28. Repeal and Saving (1) The Punjab Security of Land Tenures Act, 1953 and the Pepsu Tenancy and Agricultural Lands Act, 1955, in so far as these are inconsistent with the provisions of this Act, are hereby repealed.

(2) The repeal of the enactments mentioned in subsection 1, hereinafter referred to as the said enactments, shall not effect.

(i) the proceedings for the determination of the surplus area pending immediately before the commencement of this Act, under either of the said enactments which shall be continued and disposed of as if this Act had not been passed and the surplus area so determined shall vest in and be utilised by the State Government in accordance with the provisions of this Act :

Provided that such proceedings shall, as far as may be, be continued and disposed of, from the stage these were immediately before the commencement of this Act, in accordance with the procedure specified by or under this Act, (and the cases pending before the Pepsu Land Commission immediately before the date of commencement of this Act shall stand transferred to the Collector of the district concerned for disposal.)

Provided further that nothing in this section shall affect the determination and utilisation of surplus area, other than the surplus area referred to above, in accordance with the provisions of this Act;

(i) the previous operation of the said enactments or anything duly done or suffered thereunder;

(ii) the previous operation of the said enactments or anything duly or suffered thereunder;

(iii) any right, privilege, obligation or liability acquired, accrued or incurred under the said enactments, in so far as such right, privilege obligation or liability is not inconsistent with the provisions of this Act and any proceeding or remedy in respect of such right, privilege, obligation or liability may be instituted, continued or enforced as if this Act had not been passed:

Provided that such proceedings or remedy shall, as far as may be instituted, continued or enforced in accordance with the procedure specified by or, under this Act.

The impact on my mind of proviso to section 28(2)(i) is the same as it made on the mind of Hon''ble Justice S.S. Kang. My task in this case is easier as only the law point has to be clarified. The task of Justice Kang was at the same time made more complex and also easy by the fact that petitioners in that case had more adult members in the family. Hon''ble Justice Kang has split the matter into two parts to make it more clear. I cannot do better than reproduce para 5 of his judgment :

"Mr. U.S. Sahni, learned counsel for the petitioners, has raised two points, (1) that by enforcement of the New Act on 24.3.1973, the provisions of the 1953 Act stood repealed and in accordance with the proviso to section 28 of the New Act, the proceedings for determination of the surplus area pending before the Collector had to be decided in accordance with the provisions of the New Act, and (2) alternatively, the land declared surplus under the 1953 Act had not yet been utilised and its possession was still with the petitioners. Therefore, Jagjit Singh, petitioner, has a right to select permissible area for his two sons namely Randhir Singh and Raghbir Singh."

Then Justice Kang comments that there is merit in both the contentions of the learned counsel. He has further repeated this clarification towards end of para 6 in the following words :

"A bare perusal of the proviso to section 28 makes clear it that the proceedings pending for determination of the surplus area under the 1953 Act have been decided in accordance with the New Act after 24.3.1973." (2.4.1973?)

In this view of the matter, I have no doubt in my mind that the Landowner has to prove nothing to have his case decided after coming into operation of the New Act. It is his entitlement to select his permissible area afresh and if he has any more claims, he is free to take up the same. Justice Kang has referred to the ratio of Ranjit Ram''s case which is a Full Bench decision of Punjab and Haryana High Court cited as 1981PLJpage 259. I would like to quote from this judgment also :

"35. For the reasons recorded above, I summarise the following inevitable conclusions :

(i) That the surplus area declared under the Punjab Law or the Pepsu Law, or any part thereof, of which possession was not taken by the State before the commencement of the Act (the Land Reforms Act), can be taken possession of under Section 9 of the Act and the moment the possession is taken over by the State, it would vest in the State from that date by virtue of section 8 for being utilised under section 11 of the Act;

(ii) that landowner who owns land more than the permissible area under the Act on its commencement would be entitled to select permissible area for himself as also for his adult sons as provided in section 5(1) of the Act but while making such selection, the landowner shall not be entitled to include any area declared surplus under the Punjab Law, the Pepsu Law or this Act, as provided by section 5(2)."

This ruling makes it further clear and makes my decision easy as it says that the landowner would be entitled to select permissible area for himself as provided in section 5(1) of the Act. The averment of learned counsel for the State that this privilege is available to the landowner only, if he can prove that he has adult sons, does not hold water. I, therefore, accept the revision petition and the impugned orders are set aside. The case is remanded to Collector Agrarian, Fazilka, before whom it will come up on 14.12.1992. Collector Agrarian will do well to refer to my order in R.O.R. No. 82886, Baljit Singh & others v. State of Punjab.

Announced.