BAKHSHISH SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE challenge in this petition under Articles 226/227 of the Constitution of India is to the order dated 7.12.1983 passed by the Financial Commissioner (Appeals), Punjab whereby the petitioners have not been entitled to the allotment of the land declared surplus in the hands of their father Chuhar Singh (respondent No. 5) and the same has been directed to be allotted to the other private respondents.

(2.) THE undisputed facts of the case are that Chuhar Singh (respondent No. 5), who is the father of the petitioners, was the owner of 467 Kanals 4 Marlas of land situated in village Ghullowal as per Jamabandi for the year 1952-53. He gifted away 203 Kanals 1 Marla of land to his sons, namely, Bakhshish Singh, Sarwan Singh and Baldev Singh (petitioners herein), during their minority. On the basis of the said oral gift, an entry with regard to that was made in the revenue record by the Patwari of the village on 26.12.1952. However, the mutation in this regard was ultimately rejected on 25.2.1954. After consolidation, Chuhar Singh owned 406 Kanals and 2 Marlas of land. The petitioners filed a Civil suit in the year 1969 for a declaration that they are owners in possession of 203 Kanals and 1 Marla of land on the basis of the gift deed dated 26.12.1952. The suit was decreed by the Sub-Judge Ist Class, Dasuya, and consequently, the said land was entered in the revenue record in the names of the petitioners. When the proceedings for declaration of surplus area started in the village in the year 1967, the Collector Agrarian, vide order dated 8.7.1969 declared 15 Standard Acres and 14-1/4 Units of land belonging to Chuhar Singh as surplus. His appeals to the higher authorities as well as a petition under Article 227 of the Constitution of India before this court were dismissed. Thereafter, Chuhar Singh (respondent No. 5) was allowed to select the permissible area of 30 Standard Acres under Section 5(1) of the Punjab Land Reforms Act, 1972 (for short 'the 1972 Act') vide order dated 24.12.1975 passed by the Collector Agrarian, Dasuya, and 18 Standard Acres and about 12 Units of land were declared as surplus. In the meantime, the petitioner applied to the Collector, Agrarian, on 27.10.1974 to reopen the case of the surplus area of Chuhar Singh as according to them, they had become owners of 203 Kanals and 1 Marla of land on the basis of the civil Court decree passed in their favour. However, their application was rejected by the Collector on 3.10.1974. Their appeal to the Commissioner, Jalandhar Division, was dismissed on 8.3.1976. Their revision to the Financial Commissioner as well as the writ petition before this Court were also dismissed on 22.4.1976 and 6.1.1977, respectively. The area declared surplus in the hands of Chuhar Singh on 24.12.1975 was allotted to respondent Nos. 6 to 28 through their predecessors-in-interest. However, the possession of the same was not delivered to them. The possession of the land remained with Chuhar Singh and the petitioners. On 16.1.1978 the petitioners filed an application before the Collector Agrarian, Dasuya, for being allotted 165 Kanals 1 Marla of land of their father, which had been declared surplus on the ground that they are landless and they are tenants under him for the last 15 years. In support of their claim, they produced Khasra Girdawari entries since the year 1962. After perusing the revenue record, the Collector Agrarian vide order dated 25.6.1979, allowed the application of the petitioner and cancelled the allotment of the surplus land in favour of respondent Nos. 6 to 28 (through their predecessors-in-interest). A copy of the order dated 25.6.1979 passed by the Collector Agrarian, Dasuya, is placed on record as Annexure P3. The appeal filed by the predecessors-in-interest of respondent Nos. 6 to 28 was dismissed by the Additional Commissioner, Jalandhar Division, vide order dated 15.1.1981. However, the Financial Commissioner, Appeals, Punjab, vide order dated 7.12.1983 (Annexure P6) accepted the revision petition filed by Bishan Dass and others (respondent Nos. 6 to 28) set aside the orders dated 26.6.1979 (Annexure P3) and 15.1.1981 (Annexure P5), passed by the Collector Agrarian and the Additional Commissioner, respectively, and held the respondent Nos. 6 to 28 allottees in possession of the land in question. It is the order dated 7.12.1983 passed by the Financial Commissioner, Appeals, Punjab, which is under challenge in the present writ petition.

(3.) IT is the admitted fact that the petitioners have been shown to be cultivating land measuring 165 Kanals 1 Marla as tenants under their father Chuhar Singh (respondent No. 5) from Kharif 1963 onwards, as per the entries made in the Khasra Girdawaries. Under proviso to Sub-para 'C' of the Punjab Utilisation of Surplus Area Scheme, 1973, a tenant cultivating the surplus area is to be allotted land cultivated by him and he has got a preferential right for allotment in comparison to other persons. As already mentioned above, in the present case the petitioners have been shown to be in cultivating possession of the surplus land in the hands of their father Chuhar Singh (respondent No. 5) in the revenue record since the year Kharif 1963. They have also been in possession of this land since then. The Civil Court has also passed a decree in their favour and thereby they have been declared to be the owner thereof. On the other hand, though the surplus land in the hands of Chuhar Singh had been allotted to respondent Nos. 6 to 28, but they have not been shown to have been handed over the possession thereof. Even otherwise, the said respondents have not been shown to be the tenant Under Chuhar Singh at any point of time. As per the scheme of the utilisation of the surplus land, the petitioners have got preferential right over respondent Nos. 6 to 28 for being allotted the surplus land in the hands of their father Chuhar Singh.