IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No.136 of 2007 Date of decision: 4.11.2008 Pritam Kaur and another -----Appellant Vs. State of Punjab and others -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE L.N.MITTAL Present: Mr. Rajesh K.Dadwal, Advocate for the appellant. Mr. Shailendra Jain, Advocate for respondent Nos.6 to 8, 10 and 11. Adarsh Kumar Goel, J 1. This Letters Patent Appeal has been filed against the judgment of learned Single Judge dated 24.8.2005, dismissing Civil Writ Petition No.5379 of 1995, against which Review Petition was also filed being R.A.No.272 of 2005, which was dismissed on 27.4.2007. LPA No.136 of 2007 2. The appellant-petitioners purchased 23 Kanals 12 marlas of land on 6.3.1972. The said land had been declared surplus area on 23.9.1970 (Annexure R-1 on record) under the provisions of the Punjab Security of land Tenures Act, 1953 (in short, ‘the 1953 Act’). 3. After coming into force of Punjab Land Reforms Act, 1972 (in short, ‘the 1972 Act’), proceedings under the said Act were taken and vide order dated 30.6.1976 (Annexure P.1), surplus area was declared under the provisions of the said Act, after excluding the surplus area which had already been declared, which had been purchased by the appellant-petitioners. There are, certain observations in the said order to the effect that area which was sold by the big land owner after the appointed date i.e. 24.1.1971, was included in the permissible area. In fact, in the calculation, the area which was held to be permissible area, did not include the area sold to the appellant-petitioners which had been declared surplus vide order dated 23.9.1970 and had vested in the State. The appellant-petitioners challenged the order dated 30.6.1976 by filing a suit, taking the plea that they were bonafide purchasers. This plea was rejected and suit was dismissed on 18.8.1980. The said decree was, however, set aside in appeal on 2 LPA No.136 of 2007 16.10.1981 on the ground that the Civil Court had no jurisdiction. The plaint was returned to the appellant-petitioners. 4. The appellant-petitioners, then filed an application before the Assistant Collector for setting aside the allotment of the land purchased by them, which had already been declared surplus and which stood allotted vide orders dated 7.10.1976 and 11.2.1978 in favour of contesting private respondents. The said application was dismissed by the Assistant Collector vide order dated 31.1.1983 (Annexure P.2). The Assistant Collector held that he had no jurisdiction to set aside the allotment. The said order was affirmed in appeal by the Collector vide order dated 25.10.1983 (Annexure P.3). The Collector held that the only remedy available with the appellant-petitioners was to challenge allotment before a higher forum i.e. before the Commissioner. 5. The appellant-petitioners thereafter filed a revision petition before the Commissioner, which was dismissed on 16.6.1987 (Annexure P.5). It was observed that the appellant- petitioners did not challenge the allotment letter and only took the plea that they were bonafide purchasers. Thereafter, the appellant- petitioners approached the Financial Commissioner, who vide order dated 27.7.1994 (Annexure P.6) held the revision petition to 3 LPA No.136 of 2007 be not maintainable. The review against the said order was also dismissed on 23.3.1995. Even when the review petition was pending, apprehending dispossession, the appellant-petitioners filed writ petition in this Court, which has been dismissed by the learned Single Judge. 6. We have heard learned counsel for the parties and perused the record. 7. Only contention which has been raised by the learned counsel for the appellant-petitioners is that a perusal of order Annexure P.1 shows that area which was sold to the petitioners was included in the permissible area. Relevant observations are as under:- “An area measuring 2-40, 85 hectares of first quality land has already been declared as surplus with the owner under the old Act. That this area is to be excluded from the total area of this landowner. After the appointed day is 24.1.1971 this landowner sold an area measuring 2.36.58 hectares of first quality land. This area of 2.36.58 hectares is to be included in the permissible area to which this land owner is entitled to under the Punjab Land Reforms Act, 1972. This landowner is therefore entitled to keep an area measuring 4.63.42 hectares of first quality 4 LPA No.136 of 2007 land out of his total permissible area measuring seven hectares of first quality land.” 8. No doubt, there is some confusion in the above observations. It is, however, clear from the initial observations that the area which was declared surplus under the old Act, was excluded from the total area of the land owner. Learned Single Judge, after examining the record, recorded the following finding:- “To know the factual position, original record was summoned and the same has been perused with the assistance of counsel for the parties in court today. It is apparent from the orders Annexure R.1 and R.2 that to determine surplus area, proceedings were initiated against Asa Ram, the big land owner, in the year 1966 and vide order dated September 25, 1970, and report made by Tehsildar Annexure R2 (at page 58 of the paper book), land failing in Khasra No.95//19 and 96//5 alongwith other Khasra numbers were declared surplus. Those orders have become final and thereafter it was not open to the big landowner to sell that very land to the petitioner. After coming into existence of Punjab Land Reforms Act, 1972 (for short the new Act), area was re-determined afresh in the hand of legal heirs of the big landowner. Proceedings in that regard were initiated on October 5 LPA No.136 of 2007 17, 1973 and were concluded on June 30, 1976 (Annexure P.1). Perusal of order, referred to above, clearly indicates that when surplus area in the hands of respondent Nos. 8 and 9 was determined, area to the extent 2.40.85 hectares (first quality), which had already been declared surplus, was excluded from the holding of the big land owners. After making calculations of the remaining area, in their hands, area to the extent of 3.18.62 hectares (first quality) was declared surplus. Contention of counsel for the petitioners that vide order Annexure P.1 as the land in dispute was not included and shown in area declared surplus, it can reasonably be presumed that the same was left as a part of permissible area of the land owners, is devoid of any justification. Perusal of files pertaining to declaration of surplus area under the Punjab Security of Land Tenures Act, 1953 (for short the Old Act) and the new Act clearly indicates that the land in dispute bearing area declared surplus under the old Act and the same was excluded when calculations were made afresh for determination of surplus area under the new Act. Records reveal that with the declaration form filed by respondent Nos. 8 and 9, they had shown land in dispute bearing Khasra No.95//19 and 96//5 as their ownership. However, when area, was calculated, as per order Annexure P.1 area already declared surplus was excluded from the 6 LPA No.136 of 2007 calculation. From this fact, it is very clear that the area in dispute was not left as a part of permissible area of respondent No.8 and 9, as such no benefit of the same can be given to the petitioners.” 9. Admittedly, the land purchased by the appellant- petitioners was out of area which was declared surplus under the old Act The said area could not have been sold after the appointed date i.e. 24.1.1971. The said surplus area vested in the State under the provisions of the 1972 Act and was accordingly allotted to the contesting respondents. Allotment in favour of contesting respondents has not been set aside and no right could be acquired by the appellant-petitioners in respect of area which was vested in the State and was allotted to the contesting respondents. 10. Accordingly, we do not find any ground to interfere with the view taken by the learned Single Judge. 11. The appeal is dismissed. (Adarsh Kumar Goel) Judge November 4,2008 (L.N.Mittal) ‘gs’ Judge 7