HARNEK SINGH Vs. COMMISSIONER

JUDGEMENT

(1.) The interesting and novel question of law that arises in this writ petit ion under Articles 226 and 227 of the Constitution, is about the circumstances in which a Commissioner may grant the requisite, sanction under proviso (a) to sub-section (1) of Section 82 of the Punjab Tenancy Act (16 of 1887), to a Collector to review the order of the predecessor-in- office. The facts which have led to the question being raised, are these. Shrimati Ajmer Kaur, respondent No. 3, owned 58 standard acres 10-1/4 units of land in village Bam, Tehsil Muktsar, District Ferozepore. A larger area is mentioned in the writ petition, but the area which can be worked out from the Orders of the revenue authorities, is the one given by me above. By order, dated February 28, 1962 (Annexure 'A'), the Collector, Ferozepore, declared 28 standard acres and 10-1/4 units of Ajmer Kaur's land, as her surplus area. On July 27, 1962, she submitted an application (Annexure 'B') for excluding from her surplus area, the land which had been in continuous cultivating possession of Harnek Singh, petitioner, as a tenant since before rabi 1953. By order, dated September 6, 1962 (Annexure 'C'), the Collector (who was the same gentleman who had passed the earlier order, dated February 28, 1962) reviewed his previous order, allowed the application of Ajmer Kaur and directed that an area of 28 standard acres 1 unit would be exempted from the surplus area of Ajmer Kaur, thus leaving only 9-1/4 units as her surplus area. Thereafter, the petitioner made an application under section 18 of the Punjab Security of Land Tenures Act (10 of 1953), for permission to purchase the land which had been in his occupation for more than six years, as tenant of Ajmer Kaur. By order, dated December 29, 1964 (Anneuxre 'D'), the Sub-Divisional Officer exercising powers of the Assistant Collector 1st Grade, Muktsar, allowed the application of the petitioner to purchase the land in question. He fixed its value at Rs. 30,350.03 P. and allowed the petitioner to pay the same in ten instalments of Rs. 3035.03 P. each. The first instalment was payable before February 12, 1965, and is claimed to have been paid within time. It would thus appear that by operation of clause (b) of sub-section (4) of section 18 of the Punjab Security of Land Tenures Act, the petitioner became the absolute owner of the area in question on payment of the amount of the first instalment under the order of the Assistant Collector, dated December 29, 1964, before the 12th of February, 1965, if his allegation of having made the payment within time is correct. The third respondent, who contested the proceedings under section 18 before the Assistant Collector, went up in appeal against the order, dated December 29, 1964 to the Collector. By order, dated May 14, 1965 (Annexure 'E'), the Collector dismissed her appeal. Shri Kuldip Singh Virk, Collector, Ferozepore, in that order that he had gone through the Khasra Girdawari and had found that the petitioner had been in cultivating possession of the land in question for more than six years, and that it had also been conceded before him that Ajmer Kaur was a big landowner. He consequently held that the order of the Assistant Collector, in favour of the tenant, was perfectly correct and could not be interfered with. Not satisfied with the appellate order, respondent No. 3 went up in revision to the Commissioner, and the revision petition was heard by Shri H. B. Lall, Commissioner, Jullundur Division on September 19, 1966, and the judgment was reserved by him on that day. The petition was ultimately dismissed by the order of the learned Commissioner (passed on the next day i.e. the 20th of September, 1966), a copy of which is Annexure R-1 to the replication of the writ petitioner. Mr. T.S. Mangat, the learned counsel for Ajmer Kaur, states that his client is proposing to file a petition for revision of the Commissioner's order before the Financial Commissioner. Anything said in this judgment of mine relating to the validity or correctness of the orders of the revenue authorities, which have so far merged in the final order of the Commissioner, dated September 20, 1966, will be, on the merits, subject to the judgment of the Financial Commissioner, in any such petition for revision which might be filed against the Commissioner's order.

(2.) In the meantime, the previous Collector had been transferred and was succeeded by Shri B.R. Azad, respondent No. 2. On March 9, 1966, be made a reference to the Commissioner for granting sanction to review the order of his predecessor-in-office, dated September 6, 1962. A certified copy of the Collector's order of reference has been shown to me by the learned State counsel. It is observed therein as follows :-

(3.) When the petitioner, who had clearly got interest in the order of the Collector, dated September 6, 1962, being upheld, came to know of the sanction for review granted by the Commissioner, he made an application for copy of the order of the Commissioner on May 2, 1966. The application was rejected by the order of Shri H.B. Lall, Commissioner, Jullundur Division, dated the 3rd of May, 1966 (Annexure 'H'), on the ground that the applicant would be heard by the Collector before any order could be passed against him. Thereupon, the petitioner filed an application, dated June 6, 1966 (Annexure 'G'), to the Commissioner to review his order, dated April 11, 1966, on the ground that it had been passed without hearing him and had resulted in grave injustice to him. Complaint was also made in the application of the full facts, not having been disclosed to the Commissioner at the time of the obtaining of the sanction. The application was dismissed by the Commissioner by his order, dated June 8, 1966 (Annexure 'F'). There are no doubt some factual errors in the said order, particularly in connection with the name of the person who had approached the Commissioner for annulling his sanction. But those errors are not material. In substance the Commissioner held that no notice to the party concerned is required by law to be given, before granting the sanction for review, and that the party concerned will have the right to be heard by the Collector, and if necessary to prefer an appeal against his order. After having made another unsuccessful attempt to obtain a copy of the Commissioner's order, dated April 11, 1966, the petitioner came to this Court under Articles 226 and 227 of the Constitution on June 20, 1966. A statement of Shri Naranjan Singh Sahota, P.C.S., Collector, Muktsar, district Ferozepore, dated October 15, 1966, on which the signatures of the Collector have been attested by a Magistrate under his seal on October 16, 1966, has been filed as the purported return to the rule issued in this case on behalf of the official respondents. This cannot be considered to be a proper return as it does not comply with the requirements of rules framed by this Court in that behalf. Return has to be made on an affidavit. The statement in question has not been sworn before anyone. Attestation of the signatures of the person who signed the statement, is no substitute for an affidavit being sworn before a competent judicial authority. In any event, I have gone through the said written statement. In paragraph 8 thereof, it has been averred that the perusal of the revenue records disclosed to the new Collector that the benefit given to the landowner under the tenant's permissible area was wrong, and that there was no continuous tenancy under the landowner and the tenant's permissible area of 28 acres 1 unit was left out erroneously by the first Collector. By order, dated November 2, 1966, I permitted the petitioner to file a rejoinder in reply to the written statement of the Collector, which had not yet been placed on the record before me. In pursuance of the said sanction, Harnek Singh petitioner has filed a replication, dated November 30, 1966, in paragraph 3 of which he has denied the allegation made in paragraph 8 of the Collector's written statement. He has further mentioned in the rejoinder the fact of Ajmer Kaur having gone up to the Commissioner in revision, but the said revision petition having been rejected by the order, dated September 20, 1966 (Annexure R-1 to the replication).