CWP No.7079 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7079 of 2008 Date of decision: 28.05.2010 Sarup Singh and others ...... Petitioners VERSUS Financial Commissioner (Appeal-I) and others .......Respondents CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA. Present: Mr.C.M.Munjal, Advocate for the petitioners. Mr.S.S.Sahu, AAG, Punjab for respondents no. 1 and 2. Mr.Vikram Bajaj, Advocate for respondents no.3 to 5. ***** RAJIVE BHALLA.J The petitioners pray for issuance of a writ in the nature of certiorari for quashing the order dated 25.03.2008, passed by the Financial Commissioner (Appeals-I), Punjab, Chandigarh. The petitioners claim that as the land in dispute was not utilised during the life time of the big landowner, the surplus area has to be re- determined in the hands of his legal heirs. Admittedly, land belonging to Jagir Singh son of Anokh Singh predecessor in interest of the petitioners was declared surplus. Out of this land, 69 kanals and 2 marlas was allotted to Banta Singh (father of the private respondents) on payment of compensation to be assessed by the prescribed authority. After Banta Singh passed away, his son Nachattar Singh, filed an application before the Collector Agrarian, Sub Division, Faridkot, for assessment of compensation. The Collector Agrarian, assessed compensation @ Rs.5,000/- per hectare and fixed Rs.7,750/- as compensation vide order dated 06.02.1991. The compensation was duly CWP No.7079 of 2008 -2- deposited by the sons of Banta Singh on 07.02.1991. The petitioners, who are the sons of the big landowner Jagir Singh, filed an application before the Collector, Agrarian, for redetermination of the surplus area on the plea that before the death of the big landowner, the surplus area had neither been utilised nor had it vested in the State. The private respondents opposed this application by asserting that as possession of the land allotted to Banta Singh was delivered, before the demise of the big landowner, the land stood utilised. The Collector, Agrarian, vide order dated 25.03.1991, accepted the application and ordered re-determination of the surplus area on the ground that the allottee had failed to deposit compensation or to take possession. The private respondents filed an appeal before the Commissioner, Ferozepur Division. The appeal was allowed by holding that surplus area cannot be re-determined as possession has already been delivered to Banta Singh. The petitioners thereafter, filed a revision before the Financial Commissioner. The revision was allowed on 22.01.2002 by remitting the matter to the Collector, Agrarian, to record a clear finding whether the land had been allotted to Banta Singh as a sitting tenant, and if not, whether possession had been delivered to Banta Singh. The Collector, Agrarian, reconsidered the entire matter and vide order dated 05.05.2003, held that the land was allotted to Banta Singh as a sitting tenant as he was in cultivating possession in the year 1951-52. Aggrieved by this order, the petitioners filed an appeal. The Commissioner, Faridkot Division, vide order dated 10.03.2004 accepted the appeal and held that as the allottee had not paid compensation, during the lifetime of the big CWP No.7079 of 2008 -3- landowner, the surplus area would have to be re-determined, in the hands of the heirs of the big landowner. The private respondents filed a revision. The Financial Commissioner (Appeals-I), vide order dated 25.03.2008, accepted the revision and set aside the order passed by the Commissioner by holding that the death of the big landlord does not require a re-determination of the surplus area as Banta Singh was already in possession as a tenant since 1951-52 and therefore, the land stands utilised with the allotment of surplus area. Counsel for the petitioners submits that allotment of surplus area to an allottee cannot be equated with utilization/vesting of the land, in the State. In the absence of any evidence that possession was ever delivered to the allottee, the Financial Commissioner, erred in holding that the land has been utilised and has vested in the State. It is asserted that, in the absence of any order directing delivery of possession under Section 9 of the Punjab Land Reforms Act, 1972, a mere order of allotment does not lead to utilisation and vesting of surplus area. It is further submitted that as compensation was not determined or paid during the lifetime of the big landowner, the heirs of the big landowner have a right to pray for a redetermination of the surplus area, after the demised of the big landowner. Counsel for the private respondents, on the other hand, submits that their father Banta Singh was a tenant on the land in dispute. He was allotted 69 kanals and 2 marlas of land as a sitting tenant, vide allotment order dated 31.01.1974 and therefore, the land stood utilised. The petitioners have no right to urge that on account of death of the big CWP No.7079 of 2008 -4- landowner, surplus area proceedings should be reopened. It is further pointed out that delay by the Collector, Agrarian, in assessing compensation cannot raise an inference that the allotment stands revoked or that the land has not been utilised. It is further submitted that Rapat Rojnamcha no.100 dated 20.11.1974 records the delivery of possession, of land measuring 16 kanals and 4 marlas and Rapat Rojnamcha no.98 dated 20.11.1974 records the delivery of symbolic possession to Banta Singh of the land already in his possession. As the big landowner passed away in 1982, after the land was allotted and utilised, the petitioners have no right to pray for redetermination of the surplus area. I have heard counsel for the parties, perused the impugned order and find no reason to hold that the Financial 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 utilised 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 CWP No.7079 of 2008 -5- 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 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 CWP No.7079 of 2008 -6- 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 re- determination of surplus area. The present petition is therefore, dismissed with no order as to costs. 28.05.2010 [RAJIVE BHALLA] shamsher JUDGE