CHAND KAUR Vs. FINANCIAL COMMISSIONER REVENUE

JUDGEMENT

(1.) The appellant, Smt. Chand Kaur was a big landowner on April 15, 1953, when the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act), came into force. She was the owner of 41 standard acres 2-3/4 units of agricultural land in the revenue estate of village Orang, tehsil Muktsar, district Ferozepore, out of which she was entitled to retain 30 standard acres as her permissible area. On December 22, 1953" she inherited another area of 41 standard acres 2-3/4 units from her co-widow, Smt. Sahib Kaur. On March 4, 1958, Smt. Chand Kaur sold an area measuring 56 bighas 18 biswas to Kaka Singh and Ram Chand. Respondents 3 to 5 instituted a suit for pre-emption of that land and obtained a decree on May 5, 1959. In due course, the Collector (Surplus Area) Ferozepore, by his order dated May 11, 1961, declared 30 standard acres as the appellant's permissible area and the remaining 52 standard acres 5-1/2 units as her surplus area. The Collector also held that the appellant, having already given her option for the specific fields to be included in her permissible area, the area sold by her not having been included in the permissible area, could not be included therein and it should form part of the surplus pool. Against that order of the Collector, respondents 3 to 5 went in appeal which was accepted by the Additional Commissioner by his order dated December 10, 1962. The learned Additional Commissioner directed that the area sold by the appellant and pre-empted by respondents 3 to 5 should be included in her permissible limit. The appellant filed an appeal against that order which was dismissed by the learned Financial Commissioner by order dated December 26, 1963. The appellant then filed C.W. 530 of 1964 in this Court challenging the orders of the Additional Commissioner and the Financial Commissioner, referred to above. That petition was dismissed by the learned Single Judge on April 16, 1971, and the present appeal under clause 10 of the Letters Patent is directed against that order.

(2.) The appellant did not exercise her right to reserve the permissible area under Section 5(1) of the Act nor did she exercise her right under Section 5B(1) with the result that the Collector had to make the selection for her under Section 5B(2) of the Act. At that time, it was not incumbent on the Collector to act on the choice made by the appellant and the matter could be considered by him judiciously and objectively. It was held by a Division Bench of this Court in Udmi v. The Haryana State and others, 1970 PunLJ 531, that when the landowner fails to select his permissible area in accordance with the provisions of sub-section (1) of Section 5B of the Act, 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 his permissible area which is not the intention of the Legislature. What the Collector could do but failed to do, the Appellate Authority, that is, the Additional Commissioner could do. The Additional Commissioner selected the permissible area for the appellant which decision was upheld by the Financial Commissioner. It cannot, therefore, be said that there is any error of law apparent on the face of the order of the two Tribunals and the learned Single Judge rightly did not upset those orders.

(3.) It has been argued by the learned counsel for the appellant that the area sold by the appellant to Kaka Singh and Ram Chand on March 4, 1958, was not entirely out of the area originally owned by her but a part of it was out of the area which she inherited from her co-widow in December, 1953, and that area she could alienate before any part of it was declared surplus. Reliance is placed on a judgment of this Court in Sampuran Singh v. The State of Punjab and others, 1968 2 ILR(P&H) 283. In that case, the facts were that Sampuran Singh owned 450 bighas and 9 biswas of land out of which he transferred one-half to his mother by gift in 1951. On the coming into force of the Act with effect from April 15, 1953, he was a small landowner. His mother died on February 19, 1958, with the result that the land measuring 225 bighas 4-1/2 biswas, which he had gifted to his mother, came back to him by inheritance from her and he became a big landowner as his holding came to exceed 30 standard acres. In June, 1958, he mortgaged part of his holding with possession and on February 11, 1959, he made a gift of 182 bighas of land to one of his sons by a registered gift deed. In consequence of those transfers, the holding in his hand was reduced to an area less than 30 standard acres; in other words less than the permissible area and he again reduced himself to the status of a small landowner. The Collector considered his holding on April 28, 1964, and declared an area measuring 117 bighas 5 biswas, equal to 13 standard acres 11-3/4 units surplus in his hands by ignoring the transfers made in June, 1958, by way of mortgages with possession and the gift in favour of the son made in February 1959. That order was upheld by the Commissioner and the Financial Commissioner. Sampuran Singh filed C.W. 525 of 1966 challenging the orders of the Collector, the Commissioner and the Financial Commissioner. That petition came up for hearing before Harbans Singh, J. (as my Lord the Chief Justice then was) and J.N. Kaushal, J. Both the learned Judges differed on the point with regard to the validity of' the transfers by way of mortgage and gift made in June, 1958, and February, 1959. The writ petition was then referred to a third Judge and Mehar Singh, C. J., who heard the case, agreed with Harbans Singh, J., while referring to Section 19-B of the Act, observed as under :-