IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.1056 of 2010(O&M) Date of decision: 27.8.2010 Sarup Singh and others …..Appellants versus Financial Commissioner (Appeal-I), Punjab and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.C.M. Munjal, Advocate for the appellants Jasbir Singh, J. (Oral) C.M. No.3163 of 2010 In view of reasons mentioned in this application, which are sufficient to condone delay, it is allowed subject to all just exceptions and 31 days delay in filing the appeal stands condoned. C.M. No.3162 of 2010 This application has been moved under Chapter I-C Rule 3 of Vol.5 of Rule and Order of Punjab and Haryana High Court for impleading legal heirs of deceased Gurjit Singh (petitioner No.8 in CWP No.7079 of 2008). Application is accompanied by an affidavit. Accordingly, the application is allowed subject to all just exceptions and the persons whose names find mention in paragraph No.3 of the application are ordered to impleaded as legal representatives of deceased Gurjit Singh for the purpose of this litigation only. Amended memo of parties is already placed on record. Letters Patent Appeal No.1056 of 2010(O&M) Letters Patent Appeal No.1056 of 2010 This Letters Patent Appeal has been filed against judgment passed by the learned Single Judge on 28.5.2010, dismissing CWP No.7079 of 2008, filed by the appellants. It is apparent from the records that the appellants are the legal heirs of a big land owner, whose land was declared surplus under the Pepsu Tenancy and Agricultural Lands Act, 1955 (in short, the old Act). Thereafter, as per the provisions of old Act, land was allotted to Banta Singh, predecessor-in-interest of respondent Nos.3 to 5. The big land owner and after him, his legal heirs continued to agitate the allotment so made and ultimately after coming into existence of the Punjab Land Reforms Act, in the year 1973, it was alleged by them that since the land declared surplus under the old Act was not utilized by the State government, as such, it is incumbent to re-determine the land in the hands of the legal heirs because in the meantime, the big land owner had died. The matter went upto the Financial Commissioner, who remanded the matter and thereafter, the Collector again took up the matter and decided against the appellants vide order dated 5.5.2003, by observing as under:- “After considering the facts, brought on the file and after hearing the arguments of Ld. Counsel and the submission made by Naib Tehsildar Agr. I have also considered the order of ld. Financial Commissioner and gone through the directions. The area of Jagar Singh original land owner was decided surplus under Pepsu Tenancy and Agriculture Act, 1952. As per Jamabandi 1951-52, Banta Singh in cultivating possession. Banta Singh was not allotted land in other list and he was alone allotted the land. Banta Singh was given 2 Letters Patent Appeal No.1056 of 2010(O&M) possession of the area which was declared surplus of Jagir Singh after deposit of compensation in the Government Treasury. It is ordered that the heirs of Banta Singh be delivered the possession again. Naib Tehsildar Agr should initiate the process for delivering of possession.” A specific finding of fact was given by the Collector that land measuring 69 kanlas 2 marlas was allotted to Banta Singh, who was a sitting tenant under the big land owner since from the year 1951-52. The appellants went in appeal. The Commissioner, vide order dated 10.3.2004 allowed their appeal, primarily on the ground that when possession was delivered to Banta Singh, compensation was not assessed and paid to the big land owner, as per the norms under the old Act. Private respondents went in revision before the Financial Commissioner, who vide order dated 25.3.2008, allowed their revision and set aside the order passed by the Collector. It was again specifically held that Banta Singh was a sitting tenant on the land allotted to him. So far as payment of compensation was concerned, it was said that it was the duty of the Collector concerned, if he has failed to perform that duty, the sitting tenant/ allottee of the surplus land cannot be put to harm. Under above said circumstances, appellants filed CWP No.7079 of 2008, which was dismissed vide the impugned judgment. The learned Single Judge has rightly held that when an allottee of the surplus land is already sitting as a tenant, there was no necessity to first get possession from the big land owner and then hand it over to the allottee concerned. The learned Single Judge dismissed the writ petition filed by the appellants, by observing as under:- “I have heard counsel for the parties, perused the impugned order and find no reason to hold that the Financial 3 Letters Patent Appeal No.1056 of 2010(O&M) Commissioner has committed any error while refusing to direct re-determination of surplus area in the hands of the legal heirs of the big landowner. It is true that, in the State of Punjab, utilisation and vesting of the surplus land, are synonymous with the delivery/taking of possession. It is also legally correct that if before possession is delivered/taken by the State, the big landowner passes away, his legal heirs may validly pray for re-determination of surplus area, in their hands. The question that arises for consideration in the facts and circumstances of the present case is whether the surplus area stood utilized during the lifetime of the big landowner. The Collector has held that Banta Singh was a sitting tenant, in the year 1950-51. The petitioners do not allege or claim that Banta Singh was ejected or vacated the land in dispute. Banta Singh was allotted 69 kanals and 2 marlas of land from the surplus area of the big landowner vide certificate dated 31.01.1974 issued in Form-II. The certificate states that compensation shall be assessed by the prescribed authority, later. Rapat Rojnamcha no.98, records the delivery of actual physical possession of 16 kanals and 4 marlas, to Banta Singh. Rojnamcha no.100 dated 20.11.1974, records the delivery of symbolic possession of the land that was already in his possession as a sitting tenant. The big landowner admittedly, passed away in the year 1982. It is therefore, beyond dispute that surplus area stood utilised, by delivery of possession, both symbolic and actual in the year 1974, prior to the demise of the big landowner in 1982. The petitioners have 4 Letters Patent Appeal No.1056 of 2010(O&M) no right to pray that the surplus area be redetermined on account of demise of the big landowner. An argument that as compensation for the land was neither assessed nor paid during the lifetime of the big landowner, the proceedings for allotment are a nullity merits summary rejection. The allotment was subject to determination of compensation by the Collector, Agrarian. The certificate of allotment dated 31.01.1974 clearly states that compensation would be determined later on. The compensation was deposited on 07.02.1991. The delay in determining the compensation cannot be attributed to Banta Singh or his heirs, so as to negate the utilisation of surplus area. Another argument that as possession was never delivered to Banta Singh the land has not vested in the State is belied by the entries in the Rapat Rojnamchas referred to above. The argument that the Collector has not passed any order in terms of Section 9 of the Punjab Land Reforms Act, 1972, for delivery of possession to the tenant or divesting the landowner of his possession, is rebutted by the entries in the Rojnamchas. In view of what has been stated hereinabove, as surplus area stood utilised, during the lifetime of the big landowner, the Financial Commissioner, rightly held that the petitioners are not entitled to a redetermination of surplus area. The present petition is therefore, dismissed with no order as to costs.” 5 Letters Patent Appeal No.1056 of 2010(O&M) We feel that the order passed is perfectly justified. It has rightly been said that the land, which was declared surplus under the old Act, stood utilized before coming into existence of the Land Reforms Act in the year 1972. Before us, an attempt has been made to argue that a finding that Banta Singh was a sitting tenant with effect from the year 1951-52, was not correct. We have perused the orders passed by the authorities below. Before none of the authorities, this finding was challenged on merits. Neither this ground was taken in writ petition nor it was agitated when matter was heard by the learned Single judge. In appeal for the first time, as such, the same cannot be allowed to be agitated by the appellants. Once, a finding has come that the land was utilized when the old Act was in existence, no case is made out to interfere. Dismissed. (Jasbir Singh) Judge 27.08.2010 (Augustine George Masih) gk Judge 6