CWP No.5815 of 1991 & connected matters IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: November 28, 2011 (1) CWP No.5815 of 1991 Kulip Singh and another …..Petitioner Versus The Financial Commissioner (Appeals), Punjab and another ….Respondents (2) CWP No.1653 of 1993 Maina Devi through LRs …..Petitioners Versus State of Punjab and another ….Respondents (3) CWP No.1079 of 1994 Mahabir and another …..Petitioners Versus Financial Commissioner (Appeals), Punjab and others ….Respondents (4) CWP No.8122 of 1995 Dalip Ram and others …..Petitioners Versus Financial Commissioner (Revenue), Punjab and others ….Respondents (5) CWP No.1371 of 1992 Gurbax Singh and another …..Petitioners Versus - CWP No.5815 of 1991 & connected matters Financial Commissioner (Revenue), Punjab and another ….Respondents (6) CWP No.16956 of 1992 Parkash Kaur and another …..Petitioners Versus Financial Commissioner (Revenue), Punjab and others ….Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN Present: Mr. Gaurav Chopra & Mr. Akash Chopra, Advocates for the petitioners in all the writ petitions except CWP No.16956 of 1992. Mr. C.M. Munjal, Advocate for the petitioners in CWP No.16956 of 1992 Mr. S.S. Sahu, AAG, Punjab for respondents No.1 & 2 in CWP Nos.5815 of 1991, 1371 of 1992, 1079 of 1994, 8122 of 1995, for respondent No.1 in CWP No.1653 of 1993 and for respondents No.1 to 3 in CWP No.16956 of 1992. Mr. C.M. Munjal, Advocate for respondents No.3 to 5 in CWP No.8122 of 1995 & CWP No.1079 of 1994. None for respondent No.2 in CWP No.1653 of 1993. None for respondent No.4 in CWP No.16956 of 1992. K. KANNAN, J(ORAL) All these writ petitions are at the instance of the purchasers from the original land owners against whom action had been taken under the Punjab Security of Land Tenures Act, 1953 (henceforth referred to be as “the Act”). The original land owners Baljit Singh is reported to have died. Land has held to be in surplus under the Act and declared as such by the proceedings initiated in the year 1960. The Government - CWP No.5815 of 1991 & connected matters however did not proceed to make utilization of the surplus land till after coming into force the Punjab Land Reforms Act, 1972. In the meanwhile, the land owner Baljit Singh had transferred some of his property to Sucha Singh on 15.04.1968. All the petitioners in the above writ petitioners are the subsequent purchasers either from Baljit Singh or Sucha Singh on various dates after the declaration of surplus land under the Act. The proceedings are sought to be questioned at the instance of these purchasers by pointing out the fact that since the Government had not utilized the land under Section 8 of the 1972 Act. The contention is that without serving notice proceedings for surplus holding could not have been taken. Their objection was rejected by the authority constituted under the Punjab Land Reforms Act, 1972 on a singular reasoning that the persons who were approaching were themselves not the original owners against whom the action had been taken under the Act and being the purchasers they cannot be heard on their objections. The learned counsel appearing on behalf of the petitioners would refer to Sections 6, 8 and 9 of the 1972 Act for an understanding of where the property would become vested in the State and whether the petitioners could lose their right by the only fact of their status as purchasers from the land owners. Section deals with vesting of unutilized surplus land in the State Government. It is necessary to reproduce the same. Section 8 of the Punjab Land Reforms Act reads as under: - CWP No.5815 of 1991 & connected matters 8. Vesting of unutilized surplus area in the State Government.- Notwithstanding anything contained in any law, customs or usage for the time being in force, but subject to the provisions of Section 15, the surplus area declared as such under the Punjab Law or the Pepsu law, which has not been utilized till the commencement of this Act and the surplus area declared as such under this Act, shall, on the date on which possession thereof is taken by or on behalf of the State Government, vest in the State Government, free from all encumbrances and in the case of surplus area of a tenant which is included within the permissible area of the landowner the right and interest of the tenant in such areas shall stand terminated on the aforesaid date: Provided that where any land falling within the surplus area is mortgaged with possession, only the mortgagee rights shall vest in the State Government.” A reading of the Section would show that the vesting would take place in respect of the property declared as surplus under the Punjab Law, which had not been utilized till the commencement of the Act and the surplus land would be declared on the date on which possession thereof is taken by or on behalf of the State Govt. The vesting takes place on the date of the possession being taken by the Government. - CWP No.5815 of 1991 & connected matters Admittedly such an act had not come about the power to take possession is provided through Section 9. Section 9 reads as under:- 9. Power to take possession of surplus area.-(1) The Collector may, by an order in writing after an area has become surplus under the Punjab Law or the Pepsu law or becomes surplus under this Act, direct the landowner or tenant or any other person in possession of such area to deliver possession thereof, within ten days of the service of the order on him, to such person as may be specified in the order. (2) If the landowner or tenant or any person in possession of such area refuses or fails without reasonable cause to comply with the order made under Sub-section (1), the Collector may take possession of that area and may, for that purpose, use such force as may be necessary. The Punjab law which sections 8 and 9 referred to is the Punjab Security of Land Tenures Act, 1953. The manner of vesting in cases where the property was not utilized by the State and the effect of the owner dying and inheritance to his legal heirs have been the subject of consideration through several decisions and the counsel for the petitioners refers to the decision of the Hon’ble Supreme Court in Ujjagar Singh (dead) by LRs Vs. The Collector, Bhatinda, 1996 AIC (SC) 2636. This judgment considered the correctness of the law laid - CWP No.5815 of 1991 & connected matters down by the Full Bench of this Court in case of Ranjit Ram Vs. The Financial Commissioner, Revenue, Punjab and othes (1981) 83- PLR- 492 dealing with the effect of the property declared as surplus but still unutilized. The Supreme Court was reproducing the view expressed in Ranjit Ram case as follows: “….if the land owner has not been dispossessed by the Government under the provisions of the Pepsu Law, he continues to be a landowner of the land and also holds the same even though his land has been declared surplus, till he is divested of its ownership by taking possession of the land under Section 8 of the Reforms Act, where it has been provided that the surplus area declared as such under the Punjab Law or the Pepsu Law which has not been utilized till the commencement of the Reforms Act, shall on the date or the date on which the possession thereof is taken by or on behalf of the State Government, vests in the State Government free from all encumbrances….. …..It would thus be seen that merely because the case of a landowner had already been processed under the Punjab Law or the Pepsu Law would not be a bar for the application of the provisions of Section 4 read with Section 5 of the Reforms Act….. - CWP No.5815 of 1991 & connected matters It may be mentioned that in the aforesaid judgment “Punjab Law” refers to Punjab Security of Land Tenures Act, 1953 “Pepsu Law” refers to Pepsu Tenancy Agricultural Land Act, 1955 and “Reforms Act” refers to Punjab Land Reforms Act, 1972. According to us, the majority judgment of the Full Bench, has correctly appreciated the scope of the three enactments referred to above. Once the lands declared as surplus under the Pepsu Act did not vest in the State Government, as possession thereof had not been taken, there has to be a fresh determination in respect of the area which the appellant is entitled to hold in the light of the Punjab Act.” The law interpreted in the above case admits no of doubt that if a property is unutilized and it had not taken possession by the Government, the re-determination would require to be done under the Land Reforms Act, 1972. If on that date the property is in the hands of purchaser who has purchased the property even before the appointed date namely on 24.1.1971, then he shall be a person affected by such determination and further proceedings cannot go without joining such a purchaser from the original land owner. If the proceedings were to have continued under the 1953 Act and the property had also been utilized and the under the previous Act and before coming into force the Land Reforms Act, 1972, it should have become possible to ignore the same. On the other hand if the action is sought to be taken under the Punjab - CWP No.5815 of 1991 & connected matters Land Reforms Act, 1972 such of those purchasers who have purchased the property before the appointed date shall be definitely entitled to be heard before a re-determination is done. The distinction which the impugned order makes that Ranjit Ram was dealing with the case of an objection by the land owner and in this case the objections are by the purchasers cannot be stated to be really a valid distinction. The purchasers stepped into shoes of the land owners and the purchasers themselves are statutorily protected. The objections of such purchasers have to be heard before declaration of surplus. All the impugned orders are set aside and notices shall be sent afresh to the purchasers before the re-determination is done. All the matters are consequently sent to the Collector, Agrarian, for determination and disposal in accordance with law. 28.11.2011 (K. KANNAN) vcgarg JUDGE -