KAMLA DEVI Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) By way of this order we shall dispose of L.P.A. Nos. 1312, 1447 and 1448 of 2011 as they arise from the same impugned order and involve adjudication of common questions of fact and law. The appellants impugn order, dated 09.05.2011, allowing the writ petition, filed by respondent Nos. 5 to 9, whereby orders passed by revenue officers, dismissing the petition for ejectment, as well as orders affirming this order in appeal and revision, have been set aside and the appellants have been ordered to be evicted from the land in their possession.

(2.) Counsel for the appellants submits that the writ petition was allowed without affording an opportunity, to their counsel, to address arguments. An application, filed for affording an opportunity of hearing was also dismissed. On merits, counsel for the appellants submits that the impugned orders are contrary to settled law and are against admitted facts. The appellants are, admittedly, in possession as tenants on the land declared tenants permissible area, on 02.09.1960. The order declaring the land as tenants permissible area has attained finality, without challenge whether by the big landowner or by his legal heirs/donees, in any proceedings, including the writ petition that has been allowed. The rights of the appellants to purchase the land under Section 18 of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as 'the 1953 Act') stood crystalized on 02.09.1960, and any subsequent transfer of the land by the big landowner or his subsequent death cannot affect rights accrued under order dated 02.09.1960. The impugned orders have, in essence, nullified order dated 02.09.1960 by applying judgments and principles that apply to surplus area and not to rights of tenants, in possession of tenants permissible area. A tenant, in possession of tenants permissible area, has a right to purchase land under Section 18 of the 1953 Act, duly protected by Section 15 of the Punjab Land Reforms Act, 1972 (hereinafter referred to as 'the 1972 Act'). An application for purchase, which is the subject matter of LPA Nosl284 of 2011 and 1450 of 2012, was pending before eviction petitions were filed. The eviction petitions were not maintainable as after declaration of tenants permissible area, a landowner can only claim rent. The revenue officers rightly rejected the application for eviction by holding that the landowner may claim rent. The learned Single Judge has reversed these findings by assigning an interpretation to tenants permissible area and to the provisions of the 1953 and 1972 Acts, that is contrary to established law. The learned Single Judge has wrongly held that the applications for purchase were filed, after the applications for eviction were filed. The applications for purchase were filed on 21.06.1972, whereas applications for eviction were filed on 15.06.1981. The concept of "utilisation" by taking possession and the consequent "vesting" does not apply to tenants permissible area as a tenant is already in possession, as held by the Hon'ble Supreme Court in Mala Singh v. Financial Commissioner,1988 PunLJ 378 and Division Bench judgments, of this Court in Bhag Singh and another v. Financial Commissioner and others, 1989 PunLJ 541, Han Chand and others v. The Financial Commissioner and others, 2000 2 RCR(Civ) 547, Antu v. Naresh Saran, 2001 2 RCR(Civ) 790, Shashi Kumar and others v. Financial Commissioner, Haryana and others, 2009 4 RCR(Civ) 508. The learned Single Judge has ignored these judgments and erred, while holding that as the land has not vested and possession has not been taken, by the State, the landlord could transfer the land and in view of enactment of the 1972 Act may reserve land for his adult sons. The learned Single Judge has ignored that tenants permissible area stands "utilised" on the date of its declaration as such. The learned Single Judge has erred by placing reliance upon a Division Bench judgment and drawing an artificial distinction between the words "holdings" and "owns" and ignoring Section 16 of the 1953 Act while holding that there is no fetter on the landowner's right to transfer property, even if it is declared tenants permissible area or surplus area. The learned Single Judge has ignored the legal position that after declaration of tenants permissible area, the land stands utilised and, therefore, cannot be transferred by the landlord, in derogation to the rights of a tenant. The judgments referred to in support of these conclusions do not apply to the case in hand. The landowner may at best receive compensation when the application for purchase is allowed and till such time may receive rent from a tenant.

(3.) Counsel for the private respondents submits that the impugned order is legal and valid. The appellants were, admittedly, tenants of the big landowner and after the land was gifted to them became tenants of the respondents. The mere fact that the respondents are in possession of tenants permissible area does not absolve them of their obligation to pay rent, or nullify the right of the landlord to seek their ejectment if they fail to pay rent. The ejectment has been rightly ordered, in accordance with Section 9 read with Section 14-A of the 1953 Act. The defence taken by the appellants that as the land is in their possession as tenants permissible area and as they have filed applications for purchase, they are not obliged to pay rent to Faqir Chand, has been rejected, even by revenue officers. The orders passed by the Commissioner and the Financial Commissioner holding that the tenant cannot be evicted, have been rightly set aside. It is further submitted that if a tenant continues to occupy land that is tenants permissible area but refuses to pay rent or purchase the land, such a tenant would necessary invite eviction. The findings recorded while allowing the writ petition are legal and valid and as surplus area was never declared in the hands of the private respondents whether after the land was gifted to them or after the death of a big landowner, the impugned order is legal and valid.