JARNAIL SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) SMT . Punjab Kaur was a big landowner. She filed on 19.11.1973 a return in Form-A under Rule 5(1) of the Punjab Land Reforms Rules, 1973 declaring that she owned 475 kanals and 16 marlas of land on 24.1.1971 in village Shekhan Majra Tehsil Kharar District Ropar. The Collector (Agrarian), Kharar by his order dated 18.9.1975 declared an area of 2.06.97 Hectares of first quality land as surplus in her hands. She went up in appeal against the order of the Collector and the Additional Commissioner, Patiala Division by his order dated 10.4.1978 came to the conclusion that the holding of Smt. Punjab Kaur worked out to 7.9867 Hectares and as such she had a surplus area of only .9867 Hectares of first quality land. The order of the Collector was accordingly modified and she was directed to appear before the Collector for adjustment of the surplus area already declared. The order of the Additional Commissioner became final inasmuch as no further appeal or revision was filed against that order. When the file was taken up by the Collector (Agrarian) to carry out the directions of the Additional Commissioner, Jarnail Singh son of the Jagir Singh petitioner No. 1 moved an application stating therein that land measuring 121 kanals 7 marlas had been transferred in his favour and in favour of his eight brothers by Smt. Punjab Kaur on 15.1.1970 and, therefore, she could not file any return in regard to that land. He impleaded his brothers (who are now the petitioners in this court) as the respondents No. 2 to 9, in the application. This application was rejected by the Collector (Agrarian) by his order dated 9.10.1978 on the ground that that was not the stage for the applicant to challenge the order of the Additional Commissioner. Feeling aggrieved by this order, Jarnail Singh petitioner filed an appeal before the Commissioner, Patiala Division who dismissed the same on 4.11.1980 as not competent. It may be mentioned that Jarnail Singh through his counsel conceded before the Commissioner that the appeal was not maintainable against the order dated 9.10.1978 passed by the Collector (Agrarian). He then filed a revision petition before the Financial Commissioner Punjab who dismissed the same on 5.8.1982. It is against these orders that Jarnail Singh and his brothers have filed this petition under Article 226 of the Constitution.

(2.) I have heard counsel for the parties. Learned counsel for the petitioners contended that petitioners No. 1 to 8 became owners of the land in dispute on the basis of a court decree passed by Sub Judge, Kharar on 11.4.1972 and, therefore, they were the owners of the land in dispute and the authorities below grossly erred in law in not affording an opportunity of hearing to them. It was also urged that petitioner No. 9 became the owner on the basis of a Will dated 23.5.1976 executed in his favour by Smt. Punjab Kaur and, therefore, he too ought to have been heard before the surplus area was declared in the hands of the landlady. There is no merit in these contentions. The court decree on the basis of which the land was transferred in favour of the petitioners was passed on 11.4.1972 after the appointed day i.e. 24.1.1971. Similarly, the Will on the basis of which petitioner No. 9 claims to have acquired the property was executed in his favour on 23.5.1976 which too was after the appointed day. Both the transfers had to be ignored as they have the effect of reducing the surplus area in the hands of Smt. Punjab Kaur. This is so provided in Section 7(4) of the Punjab Land Reforms Act, 1972 (for short the Act). The Financial Commissioner was, therefore, right in rejecting the contention of the petitioners. Since the decree obtained by respondents No. 1 to 8 was collusive and was hit by Section 7(4) of the Act, the same was rightly ignored by the Collector (Agrarian) while declaring the surplus area in the hands of Smt. Punjab Kaur. In my view, the learned Financial Commissioner ought not to have gone into this issue and should have rejected the revision petition on the ground that the order dated 10.5.1978 passed by the Additional Commissioner, Patiala declaring the surplus area in the hands of Smt. Punjab Kaur had become final and could not be challenged before the Collector. Anyhow he examined the issue and decided the same correctly. There is no scope for this court to interfere with the said order. It appears from the interim orders that at the time of admission of the writ petition a dispute arose whether the surplus area declared in the hands of Smt. Punjab Kaur had been taken possession of by the State Government and utilised. The petitioners contended that they were still in possession whereas the respondents filed their reply in which a categorical averment had been made that actual physical possession of the surplus area had been taken in accordance with the Rules and the same had been allotted to the tenants on 20.10.1975. Although this plea was pressed at the time of arguments I am of the view that this question does not arise in the present case because the petitioners therein are not the heirs of Smt. Punjab Kaur. Petitioners No. 1 to 8 are claiming to be the owners of the land on the basis of a court decree while petitioner No. 9 has set up a Will in his favour. Since petitioners are not the heirs of Smt. Punjab Kaur they cannot avail of the benefit of the saving clause in view of the provisions of Section 11(5) of the Act. In the result, there is no merit in the writ petition and the same stands dismissed with no order as to costs. Petition dismissed.