FATEH CHAND Vs. STATE OF HARYANA

JUDGEMENT

(1.) Fateh Chand petitioner in this case is a displaced person from West Pakistan, who has settled in Hissar district and was allotted 181.98 standard acres of land in villages Hijrawan Khurd, Kabrer. Sanyana and Basin in that district. The proceedings for the determination of surplus area were taken up and in 1961, the Collector, Surplus Area, Hissar, after deducting tenant's permissible area and also the area acquired by the State Government, declared 81.38 standard acres as his permissible area by his order dated 21st September, 1961 (Annexure 'A' to the writ petition). As there was some error in the order of the Collector dated 21st September, 1961, in respect of the area acquired by the State Government, the petitioner filed an appeal to the Commissioner, Ambala, who by his order dated October 15, 1962, remanded the case for re-determination of the surplus area after making proper allowance for the area acquired by the State Government. After remand, the Collector allowed the petitioner 100 ordinary acres as his permissible area instead of 50 standard acres and declared 209.30 ordinary acres as his surplus area by his order dated July 15, 1963 (Annexure 'C' to the writ petition). The petitioner filed an appeal in the Court of the Commissioner which was accepted on 14th January, 1964, and the case was remanded to the Collector to record a fresh and lucid order. But in his order dated 14th of January, 1964, the Commissioner affirmed that the petitioner was entitled to 100 ordinary acres and not 50 standard acres as his permissible area. After remand, the Collector passed an order on 12th of February, 1964, again declaring 209.30 ordinary acres as surplus area as had been done by him in his previous order dated July 15, 1963. In view of the decision of this Court in Nemi Chand Jain v. The Financial Commissioner, Punjab and another, 1963 PunLJ 137, the petitioner made an application before the Collector on April 25, 1964, to reconsider the case as banjar qadim and banjar jadid lands had not been kept out of consideration while declaring the surplus area of the petitioner. Banjar qadim and banjar jadid lands were not "land" according to the definition in Section 2(8) of the Punjab Security of Land Tenures Act No. 10 of 1953 and the learned Collector examined the Patwaris of the villages where the lands of the petitioner were situated and after considering their statements and the revenue records came to the conclusion that land measuring 45.05 standard acres equivalent to 201.51 ordinary acres belonging to the petitioner was banjar qadim and banjar jadid. After allowing the benefit of this land and keeping out of consideration the tenants permissible area, he found that the land left with the petitioners was 2.62 standard acres less than his permissible area and, therefore, ordered that no part of his land be declared surplus. This order was made on May 4, 1964, and a copy of it is Annexure 'G' to the writ petition.

(2.) Sunder Singh respondent No. 4, who had taken no part in the proceedings relating to the declaration of surplus area so far, filed an application on May 19, 1964, before the Collector for review of his order of May 4, 1964. This review application was dismissed by the learned Collector on November 20, 1964. Thereafter, on 12th January, 1965. Sunder Singh filed an appeal against the order dated May 4, 1964 of the Collector Which was accepted by the learned Commissioner Ambala Division, on October 26, 1965, with the result that his order dated May 4, 1964, was set aside and his earlier order dated February 12, 1964, was restored. The petitioner filed an appeal before the learned Financial Commissioner against the order of the Commissioner which was rejected on July 30, 1966. The present writ petition has been filed for a writ of certiorari to quash the impugned orders of the Commissioner dated January 14, 1964 and October 26, 1965 and of the Financial Commissioner dated July 30, 1966.

(3.) The learned counsel for the petitioner has argued that the petitioner was entitled to 50 standard acres as his permissible area which he should have been allowed to reserve and not 100 ordinary acres. Reliance has been placed on the Full Bench judgment of this Court in Khan Chand v. State of Punjab and others, 1966 PunLJ 138 which supports his submission. In view of this judgment, the petitioner is entitled to a permissible area of 50 standard acres and since he was not allowed to reserve 50 standard acres, fresh determination will have to be made by the Collector of his surplus area. It has also been urged by the learned counsel for the petitioner that 44.05 standard acres of his land was banjar qadim and banjar jadid on 15th April, 1953, when the Punjab Security of Land Tenures Act came into force and was not, therefore, 'land' as defined in Section 2(8) of the said Act, as has been held in Nemi Chand Jain's case. The decision in Nemi Chand's case was approved by their Lordships of the Supreme Court in Amar Sarjit Singh v. The State of Punjab and another, 1968 PunLJ 19 (Civil Appeal No. 165(N) of 1968, decided on 2nd of September, 1968. The petitioner is entitled to the exclusion of the banjar qadim and banjar jadid land if there was any on 15th of April, 1953.