LAWS(P&H)-2006-3-543

BUTA SINGH Vs. STATE OF PUNJAB

Decided On March 22, 2006
BUTA SINGH Appellant
V/S
STATE OF PUNJAB Respondents

JUDGEMENT

(1.) THE land in question was shown in the name of Mangal Singh only, father of the petitioners. Resultantly, surplus area proceedings had been initiated against him under the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as the "Pepsu Act"). It has been averred that Mangal Singh did not own or hold any land in excess of the permissible limit as defined under the Pepsu Act. However, surplus area proceedings had been initiated against him under the aforesaid Act. It has also been averred that the land comprised in Khasra Numbers 1672/246/8-11 and 1690/403-48-10 Nehri had been recorded in possession of the tenants, indicative from Khasra girdawaris for kharif 1955. No notice was issued to the tenants and that the petitioners being in possession of the substantial portion of the land had also not been served with any notice. The Collector Agrarian declared 12.24 standard acres of land as surplus in the hands of Mangal Singh, vide order dated December 19, 1963. This order was contested by way of an appeal which perhaps was dismissed and further the revision petition was also dismissed which was challenged by way of civil writ petition which also had been dismissed (the detail of the appeal/revision and the civil writ petition has not been disclosed in the petition). The fact averred is that the surplus area so declared continued to remain in possession of the petitioners till the coming into force of the Punjab Land Reforms Act, 1972 (hereinafter referred to as the "Reforms Act"). A notice under Section 9 of the Reforms Act had been served upon the petitioners for surrendering the possession of the surplus area. The same was contested and the petitioners filed an appeal against the order dated December 19, 1963 on the premises that the petitioners were in possession of the land, therefore, were entitled to be heard before assessment of the surplus area. The appeal was dismissed vide order dated May 2, 1978 passed by the learned Commissioner, Ferozepur Division, Ferozepur. It has been categorically noticed that the order of the Collector had been challenged by Mangal Singh by way of an appeal which was dismissed on May 18, 1964 and that the revision filed against the same was also dismissed on August 20, 1964. A civil writ petition was filed by Mangal Singh which was dismissed on May 23, 1974. The claim of the appellants, that they were minor when the order was passed and that they being in possession since the passing of the order dated December 19, 1963, they were apparently required to be heard before the assessment of the surplus area, it has been observed by the learned Commissioner that if the plea of the appellants is accepted that they were minors at the time of the passing of the impugned order, Mangal Singh was their natural guardian and he never claimed that the appellants were owners of the land to the extent of half share. The status of the petitioners was also claimed as tenants but this ground was also rejected by the learned Financial Commissioner upon the revision petition filed by Mangal Singh. The plea set up is that the land in question was coparcenary property of the petitioners along with their father Mangal Singh and Smt. Kartar Kaur, mother of the petitioners. This plea could have been taken by Mangal Singh at the first instance but no such plea had ever been taken at any stage up to the decision of civil writ petition filed by Mangal Singh before this court.

(2.) THE petitioners filed revision petition, which had been dismissed by the learned Financial Commissioner vide order dated March 13, 1981 by upholding the view of learned Commissioner. This order has been challenged in the present petition. The plea set up is that the impugned orders are contrary to the law laid down by this Court which has been further affirmed by the Hon'ble Supreme Court. It is the contention that the authorities were primarily required to see that not only the land is shown to be in the ownership of the land owner but it must be under his personal cultivation. Where any such land is not in personal cultivation, the mischief contained in the provision for assessing the surplus area would not be applicable. It is further the case that the Revenue Authorities have wrongly held that no tenant had been recorded in the revenue record. In fact the tenancy had been created in regard to the land comprised in Khasra Nos. 1672 and 1690 and that the land was also in possession of the tenants. Further, some portion of the land was in possession of the petitioners as well, at the time when the surplus area was assessed in the hands of Mangal Singh. It is further the case, that the land in question, after having been assessed as surplus, had not been utilized and that the petitioners being the adult children are entitled to the relief accordingly.

(3.) I have heard learned counsel for the parties and have also perused the paper book as also the orders impugned before this Court. Admittedly, the petitioners had never even been indicated as coparceners as no such claim was ever made by Mangal Singh respondent No. 4, when the surplus area was assessed in his hands qua his land held by him in his individual capacity. This fact stands corroborated from the revenue record. Mangal Singh had never ever raised any such plea that the petitioners were in possession of the land as tenants or in their own right. All kind of pleas set up did not find favour with the appellate authority, revisional authorities and also this court as C.W.P. No. 1617 of 1965 filed by Mangal Singh was dismissed by this court vide order dated 23th May, 1974. However, the respondents have fairly admitted that out of the surplus area, an area measuring 5.48 standard acres stands allotted to the tenants (allottees), which would mean that the same stood utilized prior to the passing of the Reforms Act. However, an area measuring 5.47 standard acres continued to be in possession of the petitioners though their status of possession has not been indicated anywhere. This fact stands admitted by the respondents that notice under Section 9(1) of Reforms Act had been served upon the petitioners. It was too late in the day for the petitioners to have challenged the order dated December 19, 1963, especially when the same stood challenged by Mangal Singh it the capacity of guardian of the petitioners as they were admittedly minors at that time. No claim in regard to their individual right had ever been made by Mangal Singh as none has been disclosed in the instant petition. Learned counsel for the petitioners has placed reliance upon a judgment of this court rendered in C.W.P. No. 4504 of 1981 Gajjan Singh through his LRs and others v. The State of Punjab and others, decided on March 23, 2005 to the effect that the land if not utilized, though having been declared surplus, can be subjected for a fresh determination of surplus/permissible area in the hands of legal heirs of deceased land owner. Reliance has also been placed upon judgments rendered by this court, which are noticed as under :-