NATHU Vs. FINANCIAL COMMISSIONER PUNJAB

JUDGEMENT

(1.) Nathu and Smt. Harnamo wife of Dalip, both residents of village Nathaur, district Hissar, in their writ petition under Articles 226 and 227 of the Constitution of India have prayed for quashing the orders of - (1) The Collector, Surplus Area, Sirsa (Annexure 'A'); (2) The Commissioner, Ambala Division (Annexure 'B'); and (3) The Financial Commissioner, Punjab, respondent Nos. 1 to 3 declaring 51.11 Ordinary Acres equivalent to 15.87 Standard Acres as surplus area. They have further prayed that the proceedings initiated by the Naib Tehsildar, respondent No. 4, for dispossessing them from the surplus area sodeclared be also set aside. The facts as alleged by them may briefly be noticed here. Petitioner No. 1 was holding 135.96 Ordinary Acres (equivalent to 42.39 Standard Acres) of land nearly half as owner and the other half as tenant. In the year 1956 he acquired occupancy rights in the land which he was holding as occupancy tenant on the 15th April, 1953, when the Punjab Security of land Tenures Act, hereinafter referred to as the Act, came into force. Out of the ownership land, nearly half was in possession of Dalip and others as tenants. Petitioner No. 1 had mortgaged 52 Bighas and 14 Biswas out of his ownership land in favour of third party and finally sold the same in favour of petitioner No. 2. The Collector, respondent No. 1 under the provisions of the Act on 5th September, 1961, by his order, copy annexure 'A', declared 51.11 Ordinary Acres equivalent to 15.87 Standard Acres out of the entire holding of Nathu Petitioner No. 1 as surplus area. The appeal preferred by petitioner No. 1 was dismissed by respondent No. 2 on the 7th March, 1962, copy annexure 'B'. The revision petition against his order also was dismissed by the Financial Commissioner, respondent No. 3 in limine on the 19th July, 1963, as verbally told by the learned counsel for the petitioner during the course of arguments. petitioner No. 2 was not made a party to the above proceedings before any one of these three respondents. She was also not given any opportunity to state her case. Respondent No. 4 directed petitioner No. 1 to deliver possession of the surplus area on the 9th February, 1965. The petitioners alleged that the impugned orders were improper, illegal, unconstitutional and without jurisdiction as petitioner No. 1 was not a big landowner at the time of the commencement of the Act, that the area held by the tenants under him could not be included within the area liable to be declared surplus and that the subsequent sale of 52 Bighas and 14 Biswas of his land in favour of petitioner No. 2 was valid as at the time he was only a small landowner. They further averred that petitioner No. 1 was entitled to own 30 Standard Acres of land as an owner apart from any land held by him as a tenant.

(2.) The respondents in their written statement pleaded that according to the entries in the revenue records Nathu petitioner owned 56.90 Ordinary Acres equivalent to 17.69 Standard Acres of land on the 15th April, 1953, and subsequently an area of 79.06 Ordinary Acres equivalent to 24.76 Standard Acres was acquired by him as an owner through occupancy rights and thus his entire holding came to 135.96 Ordinary Acres equivalent to 42.39 Standard Acres at the time of the Assessment of surplus area. They admitted that 24.85 Ordinary Acres out of the above land was under the cultivation of Dalip as tenant which had been excluded by respondent No. 1 while passing this impugned order. It was also conceded that 52 Bighas and 14 Biswas of land stood mortgaged in favour of the third person but further explained that the said mortgage was redeemed and the land forming subject matter of the mortgage after redemption was sold in favour of petitioner No. 2. The sale came into existence after the commencement of the Act and so was ignored. According to them petitioner No. 2 was not the landowner on the 15th April, 1953, and she was not required to be heard. They maintained, that the petitioner No. 1 was entitled to retain 60 Ordinary Acres of land which was in fact left with him.

(3.) The learned counsel for the petitioners argued that petitioner No. 1 should have been allowed to retain 30 Standard Acres of land and not 60 Ordinary Acres as was done by respondents Nos. 1 to 3. In this connection he referred me to sub-section (3) of Section 2 of the Act which gives the definition of "Permissible Area" in the following terms :-