BHOOL CHAND Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Bhool Chand petitioner No. 1 was the original landowner. He transferred three-fourths of his land to his three sons petitioner Nos. 2 to 4. Mutations in respect of the said transfers were effected during April and May, 1955. Out of his remaining holding, petitioner No. 1 sold some land to respondent Nos. 4 to 10 during the years 1955-56. In 1958, petitioner No. 1 submitted the prescribed form "E" under the Punjab Security of Land Tenures Act, 1953 (Punjab Act X of 1953), (hereinafter called the Act) making selection of his permissible area. In so doing, he did not include either the land transferred to his sons or the land sold to respondent Nos. 4 to 10 in his proposed permissible area. By his order dated January 31, 1962 (Annexure B) the Collector, Ferozepur, without giving any notice of the proceedings for determination of surplus area of petitioner No. 1 to petitioner Nos. 2 to 4, declared 13 Standard Acres and 15-3/4 Units as his surplus area. The land transferred to the sons and the land sold to respondent Nos. 4 to 10 was included in the permissible area of petitioner No. 1. The request of petitioner No. 1 to include the land transferred to respondent Nos. 4 to 10 in the surplus area was turned down by the Collector in the following words :-

(2.) In the return of the State, three main defences have been taken viz.,

(3.) Before dealing with the second main issue it appears to be appropriate to dispose of at this stage the solitary objection of the respondents to the decision on the first point in favour of the petitioners. The objection is to the effect that the petitioners gave up this plea before the Commissioner and cannot, therefore, now raise it after petitioner No. 1 had made a revised selection. I find no force whatever in this contention. The deposition of petitioner No. 1 contained in his affidavit in this respect has to be believed, as the same remains unrebutted. No better testimony in support of the petitioner's claim in this respect can possibly be available. The conduct of the petitioner in reasserting the same grounds and specifically stating that those grounds had definitely been urged before the Commissioner while submitting his revision petition to the Financial Commissioner supports this view. In any event, petitioner No. 1 cannot be deprived of his fundamental right (to possess his land and to settle tenants of his own choice thereupon) save by authority of law. The impugned order is contrary to the law. Whereas the law confers on petitioner No. 1 the right to settle the tenants of his own choice on the land left with him after the transfer to respondent Nos. 4 to 10, the State seeks to deprive petitioner No. 1 of that right by including the land which no more belongs to him in the petitioner's permissible area. Order to that effect being wholly without jurisdiction and contrary to law and calculated to infringe the fundamental rights of the petitioner under Article 19(1)(f) of the Constitution, there is no question of the petitioner having waived the said right by his having exercised a fresh selection before the Commissioner which any one in his position might have had to do, if permitted, to avoid as much as possible the rigour of the law laid down in Pritha Singh's case which at that time appeared to hold the field.