KARTAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner, being a member of Scheduled Caste was allotted a land of 23 kanals 18 Marlas under rule 11 of Nazool Lands (Transfer) Rules, 1956 in village Jakhepal Hambalwas, District Sangrur in the year 1971. Subsequently, he paid all the instalments to the Government as stipulated and a Certificate of Transfer was issued by the Collector, Sangrur District on 24. 7. 1972 (vide Annexure P-1), Thereafter on 14. 7. 1981, the District Collector, Sangrur cancelled the allotment of Nazool land in favour of the petitioner on the ground that the petitioner in violation of the terms and conditions of the transfer, mortgaged the land with possession in favour of one Rana Singh son of Amar Singh in the year 1978 for a consideration of Rs. 5500/ -. The petitioner filed an appeal to the Commissioner Patiala Division against the order of cancellation of the allotment in his favour. The Commissioner dismissed the said appeal. A further revision to the Financial Commissioner was also dismissed on 24. 9. 1981 (vide Annexure P-6 ).

(2.) CHALLENGING the order of cancellation of allotment in favour of the petitioner, the petitioner filed this writ petition for issuing a writ of certiorari to quash the orders of the Collector cancelling the allotment as confirmed by the Commissioner and the Financial Commissioner.

(3.) RULE 7 prohibits the transfer of land by the allottee except with the express permission in writing of the State Government for a period of 10 years from the date of allotment. The said rule permits the alienation of the land temporarily in favour of Punjab Scheduled Castes Land Development and Finance Corporation and Scheduled Banks for securing a loan with a view to improving the land. Under the agreement, which is annexed as Annexure P-8, the Collector is empowered to resume the possession of the land by evicting the transferee therefrom. Admittedly, when the allotment was cancelled, the mortgage said to have been executed by the petitioner was redeemed and the petitioner continued to be in possession of the land. In fact the petitioner has been in possession of land prior to 1971 as a lessee and thereafter in his own right as an allottee under the Nazool Lands (Transfer) Rules, 1956. There is no dispute about the fact that the petitioner mortgaged the land in June 1978 and redeemed the same on 1. 6. 1980. Thus only for a period of two years, he was out of possession and that too he did not mortgage the entire land allotted to him. He only mortgaged a part of the land so as to enable him to raise the money for performance of the marriage of his grand daughter. From 1980 till now the petitioner continued to be in possession of the land and there is no dispute about it. When the cancellation order was passed, the petitioner was in possession of the land. Clause 5 of the agreement (vide Annexure P-8) imposes the Collector to resume possession of the land by evicting the transferee therefrom. When the order of cancellation was passed, the transferee was not in possession of the land. So, there was no question of resuming the possession of land by evicting the transferee. The Nazool Lands (Transfer) Rules, 1956 do not provide for resumption, though they impose a bar to alienate the property within 10 years from the date of allotment without the express permission in writing of the State Government. The agreement which the petitioner entered with the Government (vide Annexure P-8) provides that the Collector may resume the possession of the said land by evicting the transferee therefrom. But the use of the word 'may' in the agreement gives a discretion to the Collector either to resume or not to resume the land depending upon the circumstances of the case. It is a discretion vested in the Collector to be exercised in a judicious manner depending upon the facts of each case. In the present case I do not find that the circumstances warrant the drastic step of resumption of the land. As already observed, the petitioner mortgaged a part of the land only to raise a loan for performing the marriage of his grand daughter and he redeemed the mortgage even before the authorities initiated the proceedings for cancellation of the allotment and he continued to be in possession. Both on the date of the initiation of the proceedings by giving a Show Cause Notice and also on the date when the order of cancellation was passed, the petitioner had been in possession of the land and even now he is in possession of the same. In these circumstances, I am of the opinion that the resumption of the land is not justified. This Court while admitting the case also directed a status quo to be maintained. Thus, it is clear that till now the petitioner has been in possession of the land. I am also of the opinion that it is unjust to evict the petitioner when he has been in possession of the land which has been transferred to him under the Nazool Lands (Transfer)Rules, 1956 for over 25 years. In this view of the matter, I am of the opinion that the writ petition deserves to be allowed.