SHAKTI DEVI Vs. FINANCIAL COMMISSIONER REVENUE

JUDGEMENT

(1.) IN this petition, challenge is to order, Annexure P-2, whereby Special Collector, Agrarian, District Ferozepur, has decided the surplus area case of Jagdish Rai, a big land-owner Under Section 3 (i) of the Punjab Land Reforms Act, 1972. Challenge is also to orders, Annexures P-4 and P-5, whereby the order of the Collector has been affirmed in appeal and revision by the Commissioner and Financial Commissioner respectively.

(2.) THE Collector vide order dated 23. 5. 1977 decided the surplus area case of Jagdish Rai under the provisions of Punjab Land Reforms Act, 1972 (hereinafter referred to as 1972 Act) vide which land measuring 26. 6286 hectares of first quality was declared surplus. Against the order of the Collector, land owner filed an appeal before the Commissioner, Ferozepur Division, Ferozepur, in which the land owner impugned order of the Collector on four counts, namely, (i) that the area which remained in occupation of the tenants on the appointed day, i. e. 24. 1. 197/ has not been left as tenants' permissible area; (ii) the bona-fide transfer have not been accepted; (iii) the value of the land has been wrongly determined inasmuch as the benefit of the land being irrigated by eastern canal has not been given; and (iv) that there was no tubewell in the land as on 24. 1. 1971 and therefore, the Collector was wrong in giving the finding that there was a tubewell on the appointed day. The learned Commissioner finding merit in the grounds raised by the land-owner allowed the appeal and remanded the case for fresh decision. In his order, he gave an opportunity to the land-owner for leading evidence regarding four points which he had raised in appeal. On remand, tenants/heirs of tenants were summoned for determining the tenants' permissible area. On the basis of evidence led by the land-owner and the tenants, the Collector re-determined the tenants' permissible area. No evidence was led with regard of bona-fide transfers. However, on the basis of the record, record Collector excluded half share of land measuring 8 kanals on account of acquisition by the Government. As regards the ground that the value of the land irrigated by eastern canal has not been assessed according to the formula, the Collector, on enquiry, found that the land has already been assessed on the formula asked for after treating it irrigated by eastern canal. In regard to objection that there was no tubewell in the land on 24. 1. 1971, no evidence was produced by the landowner against the report of C. R. O. The report was accepted and the tubewell was counted as per report. The Collector, thus, found that the land-owner was entitled to land measuring 8. 40 hectares (first quality) as his permissible area. After leaving land measuring 4. 2312 hectares (first quality) was declared as surplus. Jagdish Rai was given an opportunity of selection, but he failed to make the selection. The Collector after making such enquiry as he thought fit, determined the permissible area of the land-owner, tenants' permissible area and the surplus area vide Annexures A, B and C annexed to the order. Appeal filed by Jagdish Rai was dismissed by Commissioner, Ferozepur, Ferozepur, on 6. 12. 1989 on finding that there was no illegality or irregularity in the order of the Collector. Revision petition preferred against that order was dismissed by the Financial Commissioner, Revenue, vide order dated 16. 8. 1994. The present petition has been filed impugning the orders of the Collector, Commissioner and the Financial Commissioner.

(3.) AFTER hearing the learned counsel for the parties, we find no merit in this writ petition. Collector while determining the surplus area of the land-owner was required to see the possession as on the appointed day. The Collector on the basis of the record and the evidence produced before him, has allowed tenants' permissible areas to such of the tenants who were able to prove their continuous occupation of the land under their tenancy. As regards the objection regarding non-respecting of selection made by the land-owner Under Section 5 of the Act, it is clear from the orders of the Collector, Commissioner and the Financial Commissioner that the land-owner did not give any selection to the Collector. The Collector in his order has observed "owner in possession has been given an opportunity of selection but he has presented no selection". It was in this situation that the Collector on the basis of the record, set apart owner's permissible area, tenants' permissible area and the surplus area. More so, counsel for the petitioners was unable to point out anything from the record which could show that any selection was made by the land owner. As regards the contentions that before determining the surplus area it was mandatory on the part of the Collector to separate the area of big land-owner from other co-owners, and that the land under the ice-factory and the shelter is outside the purview of definition of 'land' Under Section 3 (5) of the Act, suffice it to say, the pleas involving disputed questions of fact cannot be allowed to be raised for the first time in proceedings under Article 226 of the Constitution. Since the land-owner himself is to be blamed for not raising the pleas before the Collector, now sought to be raised, no fault can be found on this score with the orders of the Authorities under the 1972 Act. The contention that Sub-section (7) of Section 11 of the Act is ultra-vires is also devoid of any merit. A Full Bench of this Court in Ajit Kaur and Ors. v. Punjab State and Ors. , 1980 P. L. J. 354, has held " (1) Sub-section (7) of Section 11 of the Punjab Land Reforms Act, will be attracted only in those cases where surplus area and the permissible area are determined by the Collector under the Punjab Land Reforms Act and subsequent to such a decision the death of a land-owner and the opening of succession in favour of his "heirs will have no effect on the surplus area and the permissible area in the hands of a land-owner were determined under the Punjab Security of Land Tenures Act, 1953, or the Pepsu Tenancy and Agricultural Lands Act, 1955, and thereafter the landowner died resulting in acquisition of the holding by his heirs, the protection to the heirs in the matter of determination of surplus area in their hands, as embodied in Sub-section (5) of Section 11 of the Punjab Land Reforms Act, will be fully available. Sub-section (7) of Section 11 of the Punjab Land Reforms Act will be attracted only in case where the surplus area is declared by the Collector for the first time under the Punjab Land Reforms Act and under the Punjab Security of Land tenures Act or the Pepsu Tenancy and Agricultural Lands Act. If surplus area in the hands of a landowner was declared under the Punjab Security of Land Tenures Act, 1953, or the Pepsu Tenancy and Agricultural Lands Act, 1955, but the landowners died before the enforcement of the Punjab Land Reforms Act, the acquisition by heirs will be saved under Sub-section (5) of Section 11 of the Punjab Land Reforms Act and the surplus area will have to be redetermined in the land of the heirs under the Punjab Security of Land Tenures Act, 1953 or the Pepsu Tenancy and Agricultural lands Act, 1955, or even the Punjab Land Reforms Act, as the case may be. However, once the surplus area was determined by the Collector under the Punjab Land Reforms Act, whether for the first time because no such order had been passed under the previous laws or after the death of the landowner subsequent to the order regarding surplus area, the acquisition of land by the heirs will not be saved under Sub-section (5) and Sub-section (7) will be fully attracted. " It is also relevant to mention that constitutional validity of the whole Act was challenged before the Supreme Court in State of Punjab v. Sucha Singh, 1977 P. L. J. 139. The Supreme Court negatived the challenge to the constitutional validity of the 1972 Act and held that it does not suffer from any of the constitutional infirmities.