SHERA Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) This is a petition under Articles 226 and 227 of the Constitution brought by Shera, Jeesukh and Mangtu against the Financial Commissioner, Punjab; respondent No. 1, Commissioner, Ambala Division; respondent No. 2, the Collector, Hissar; respondent No. 3, and Pehlad son of Mota. The petitioners have challenged the orders passed by respondents 1 to 3 and have prayed for the restoration of an order of the Assistant Collector, First Grade, which is Annexure 'A' to the petition and which is dated the 2nd of November, 1960.

(2.) Pehlad, respondent No. 4, purchased his tenancy area measuring 8 Kanals from one Amrit Lal, the original landowner. Shera and the other petitioners instituted a pre-emption suit and obtained a pre-emption decree on the 14th of May, 1958. The pre-emption money amounting to Rs. 1,250/- was paid by the petitioners to Pehlad, but before actual physical possession of the land could be obtained by the petitioners, the Punjab Security of Land Tenures (Amendment) Ordinance, 1958, inserting Section 17-A in the Punjab Security of Land Tenures Act, 1953, came into force. On the 6th of March, 1959, Pehlad preferred an application under sub-section (2) of Section 17-A of the Act, to the Assistant Collector praying that he be declared as the owner of the land in dispute and the pre-emption money since deposited by him in the Government treasury be refunded to the petitioners. On the 2nd of November, 1960 the Assistant Collector rejected this application on the ground that Pehlad had not been actually dispossessed of the land in dispute in execution of the pre-emption decree, therefore, an application under sub-section (2) of Section 17-A could not lie. Pehlad preferred an appeal to the Collector, Hissar, which was accepted on the 6th of March, 1961. The Collector directed Pehlad to deposit the money received by him under the pre-emption decree for payment to the petitioners. The Collector was of the view that Pehlad had been dispossessed of the rights of ownership in the land as soon as the pre-emption decree was passed. However, it is important to note that it was categorically admitted by Pehlad that actual physical possession of the land was still with him and this, in fact, was a common ground between the parties. Aggrieved by this order, the petitioners preferred an appeal before the Commissioner, Ambala Division. The learned Commissioner came to the conclusion that the word 'dispossessed' contained in Section 17-A means actual and physical dispossession, but that this situation had not arisen and, therefore, the provisions of sub-section (2) of Section 17-A did not come into operation He, therefore, concluded that the application contemplated under sub-section (3) of Section 17-A did not lie.

(3.) Learned Commissioner was of the view that before the pre-emption decree could be executed, Section 17-A had come into force, and by virtue of sub-section (1) of Section 17-A, it was not executable. He, therefore, accepted the appeal and set aside the order passed by the Collector and restored that of the Assistant Collector subject to the modification that Pehlad was deemed to be a full-fledged owner of the land in dispute and Shera and others were only entitled to take payment of the pre-emption money, which they had paid to Pehlad.