UDMI Vs. HARYANA STATE

JUDGEMENT

(1.) Udmi appellant is a landowner of village Paniwala-Mota, Tehsil Sirsa, District Hissar, where he owned an aggregate area of 248 Bighas 18 Biswas of land on 15th April, 1953, the date of commencement of the Punjab Security of Land Tenures Act, 1953. He sold 37 Bighas 13 Biswas of land on 27th September, 1957 and 59 Bighas 16 Biswas of land on 1st October, 1957. These two sales were pre-empted by his sons, respondents 5 to 7, who obtained decrees on 13th February, 1958 and 15th March, 1958, respectively, with regard to those two sales. On 17th January, 1961, the Collector, Surplus Area, Sirsa, declared 21.29 standard acres of land of the appellant as surplus. Udmi and his sons, respondents 5 to 7, filed appeals against the said order which was accepted and the case was remanded to the Collector for fresh decision with a direction that the sons of Udmi should be treated as tenants if they were able to prove that they were in continuous possession of any land belonging to Udmi prior to 15th April, 1953, and that area should not be declared as surplus. After remand, the learned Collector came to the conclusion that Udmi had gifted about 100/120 Bighas of land in favour of his sons in 1954 and from that time onwards the sons were in cultivating possession of the same without paying any lagan. The possession of the sons of Udmi prior to 15th April, 1953, was not proved. The learned Collector, therefore, affirmed his earlier decision of 17th January, 1961, and declared 21.9 standard acres as surplus. The appeal against that order was dismissed by the learned Commissioner, Ambala Division, on 10th September, 1962, and his revision met the same fate at the hands of the Financial Commissioner, Revenue, Punjab, on 11th January, 1963. The appellant then filed C.W. 520 of 1963 in this Court which was dismissed with costs by a learned Single Judge on 4th January, 1967. The present appeal under Clause 10 of the Letters Patent is directed against that order.

(2.) The only point urged by the learned Counsel for the appellant is that the learned Collector should have declared the land which he had sold on 27th September, 1957 and the 1st October, 1957, the possession of which had been taken by his sons, respondents 5 to 7, by obtaining pre-emption decrees, as surplus and not the land that was in his possession. The learned Counsel relies on the judgment of Narula, J., in Bhool Chand and others V. The State of Punjab and others, 1968 PunLJ 360, wherein the learned Judge held that "the area of land which has been sold by petitioner No. 1 to respondent Nos. 4 to 10 after 15th April, 1953, could not be included in the permissible area of petitioner No. 1 and had to be included in the surplus area of the said petitioner". The facts of that case were that Bhool Chand petitioner No. 1 was the original landowner who transferred 3/4th of his land to his three sons, petitioner Nos. 2 to 4, mutations in respect of which were effected during April and May, 1955. Out of his remaining holding petitioner No. 1 sold some land to respondent Nos. 4 to 10 during the year 1955 and 1956 and in 1958 submitted the prescribed form 'E' under the Act making selection of his permissible area. In so doing, he did not include either the land transferred to his sons or the land sold to respondent Nos. 4 to 10 in his proposed permissible area. The Collector, Ferozepore, without issuing a notice to petitioner Nos. 2 to 4 declared 13 standard acres 15-3/4 units as his surplus area. The land transferred to the sons and the land sold to respondent Nos. 4 to 10 were included in the permissible area of petitioner No. 1 and the request of petitioner No. 1 to include the land transferred to respondent Nos. 4 to 10 in the surplus area was turned down by the Collector. On these facts, the learned Judge came to the above conclusion, following the Division Bench judgments in Bhagat Gobind Singh V. Punjab State and others, 1962 PunLJ 125, and Mota Singh V. Financial Commissioner, Punjab and others, 1968 PunLJ 338. The observation of Narula, J., set out above, has to be considered in the light of the facts of that case and does not lay down any general principle of law as contended for by the learned Counsel for the appellant. In the case before the learned Judge, as well as in the cases before the Division Benches, the landowner had selected his permissible area by submitting the necessary form with the result that the area selected by the landowner had to be given to him as his permissible area, but the same rule cannot be applied to a landowner who fails to select his permissible area in accordance with the provisions of sub-section (1) of Section 5-B. In that case, the Collector has been given the power to select the permissible area for the landowner and at that stage the landowner cannot insist that the Collector should select the permissible area for the landowner according to his wishes. In such a case, the power of the Collector to select the permissible area for the landowner is not to be fettered by another opportunity to the landowner to make a selection of this permissible area which is not the intention of the Legislature. In the instant case, the appellant never made any selection of his permissible area with the result that the Collector had the unfettered power and authority to select the permissible area for the appellant and to declare the remaining area as surplus. The argument of the learned Counsel that the area in the possession of his sons and not the area in his own possession should have been declared as surplus has, therefore, no merit.

(3.) For the reasons given above, this appeal is dismissed but without any order as to costs. I agree. Appeal dismissed.