IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No. 1371 of 2009 DATE OF DECISION : 07.02.2011 Sodhi Har Avtar Singh (Now Dead) through LRs .... APPELLANT Versus State of Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Dr. Balram Gupta, Senior Advocate, with Mr. R.K.S. Brar, Advocate, for the appellant. * * * SATISH KUMAR MITTAL , J. ( Oral ) Big land-owner Sodhi Har Avtar Singh (who has died during the pendency of the appeal) had filed this Letters Patent Appeal against the order dated 30.5.2009, passed by the learned Single Judge, whereby the writ petition (CWP No. 8810 of 2009) filed by the appellant, challenging the order dated 18.3.1998 (Annexure P-7), passed by the Collector (Agrarian), Anandpur Sahib, as well as the orders dated 28.2.2001 (Annexure P-9); and 22.4.2008 (Annexure P-11), passed by the Additional Commissioner (Appeals), Patiala Division, Patiala; and the Financial Commissioner, Revenue, Punjab, Chandigarh, respectively, was dismissed. We have heard learned counsel for the appellant and have gone LPA No. 1371 of 2009 -2- through the impugned order as well as the aforesaid orders, passed by the authorities under the Punjab Land Reforms Act, 1972 (hereinafter referred to as `the Act'). In this case, in the year 1973, the big land-owner filed return regarding his agricultural land, as required under the provisions of the Act, in which he had shown his two sons as major. Accordingly, vide order dated 30.6.1976, passed by the Collector (Agrarian), no land was declared surplus in the hands of the big land-owner. Subsequently, on a complaint made by one of the tenants of the big land-owner to the effect that one of the sons of the big land-owner was not major, the case was re-opened, and the Collector (Agrarian), vide his order dated 8.6.1977 (Annexure P-1), declared 5-30.07 Hectares of land in the hands of the big land-owner as surplus. The surplus land was allotted to landless persons. Against the said order, the big land- owner filed an appeal before the Commissioner, who vide his order dated 7.8.1984 (Annexure P-3) set aside the order of the Collector (Agrarian) and remanded the case to the Collector (Agrarian) for a fresh decision with regard to the effect of the false affiavit, filed by the big land-owner; and to re-consider the effect of gair mumkin land under forest and the land under tenants. After the remand, the Collector (Agrarian) passed the order dated 18.4.1988 (Annexure P-4), whereby no land in the hands of the big land-owner was declared surplus, and it was ordered that the big land-owner should pay the reasonable compensation to the allottees, who have settled LPA No. 1371 of 2009 -3- upon the land, which was declared surplus vide order dated 8.6.1977. The said order was challenged by the allottees. The big land- owner had also challenged the said order with regard to payment of compensation to the allottees. The Commissioner, vide his order dated 28.11.1994 (Annexure P-5), decided both the appeals. The appeal of the allottees was dismissed. However, appeal filed by the big land-owner was allowed and the order dated 18.4.1988 regarding compensation to be paid to the allottees was set aside. Aggrieved against this order, the allottees filed revision before the Financial Commissioner, who vide his order dated 7.3.1996 (Annexure P-6), set aside the aforesaid orders dated 28.11.1994 and 18.4.1988, passed by the Commissioner and the Collector (Agrarian), respectively, and remanded the matter to the Collector (Agrarian), while observing as under : “In the above context, I set aside the orders of the Commissioner dated 28.11.1994 and the order of the Collector dated 18.4.1988 and remand the case to the Collector (Agrarian), Anandpur Sahib to decide the issue of surplus land holding of Sodhi Har Avtar Singh, respondent No.3, in the presence of the petitioners allottees of land, on merits. The Collector should pass a clear and speaking order regarding the land holding of respondent No.3 on the appointed day, explaining therein if necessary, the basis on which the earlier finding of surplus land measuring 5.30.07 is not sustainable. It would also be necessary to examine whether transfer of land through sale made by the land owner after the appointed day and as borne out by the record was bonafide transfer or whether LPA No. 1371 of 2009 -4- these would count towards his surplus land holding. In the event and to the extent that it is found that the area earlier declared to be surplus should revert to the land owner, the Collector should give specific findings about the compensation due to the allottees, if any, and its money value and whether such claims are sustainable under law.” After the remand, the Collector (Agrarian) passed the order dated 18.3.1998 (Annexure P-7) declaring 5-30.07 Hectares of land in the hands of the big land-owner as surplus. The concluding portion of the said order reads as under : “After hearing the arguments and statements of both the sides and after minutely perusing the file, this comes to light that on the appointed day i.e. 24.1.1971, the ownership of Sodhi Har Avtar Singh son of Kishan Singh was as per the order of Collector dated 30.6.1976 because Sodhi Har Avtar Singh admits that on 24.1.1971, Bikram Singh was 15 years 5 months old and was minor. Therefore, there is nothing seems to be bad with the order dated 8.6.1976 passed by the Collector, Anandpur Sahib because no change has been effected in the land under consideration of the land owner, rather the ownership which was accepted 1 year earlier (30.6.76) out of that an area 5-30-07 is declared surplus because Bikram Singh son of Sodhi Har Avtar Singh was not major. His earlier affidavit was false. Sodhi Har Avtar Singh has not produced any such evidence which could show that the land which was sold after the appointed day was a bonafide sale. During the arguments also, Sodhi Har Avtar Singh did not say regarding this. Therefore, the sold land could not be kept out of the surplus LPA No. 1371 of 2009 -5- land. In case Sodhi Har Avtar Singh wants to show that the land was not sold with malafide intention, then it was required that he was required to produce the record pertaining to the sale of this land and was required to prove that the sale was bonafide as per Section 4 Clause 5 of the Act. The onus to prove this that the sale was bonafide was upto him.” Against the said order, the big land-owner filed appeal. Before the Appellate Authority, it was argued by the appellant that he was not given sufficient opportunity to produce evidence with regard to the bonafide of the sales, which were effected by him after the appointed day i.e. 24.1.1971. Vide order dated 28.2.2001 (Annexure P-9), appeal of the big land-owner was dismissed. Regarding the holdings of land in the hands of the big land-owner (appellant), it was held that the Collector (Agrarian) has rightly calculated the holdings in his hands at the relevant time by taking into consideration the fact that one of the sons of the big land-owner was major at the relevant time, and declared 5.30.7 Hectares of land as surplus in the hands of the big land-owner. With regard to the opportunity granted to the big land-owner to prove bonafide of the sale transactions effected by him after the appointed day, it was observed that sufficient time was granted, but the big land-owner could not produce any evidence to prove those transactions as bonafide one. The said order was upheld by the Financial Commissioner, vide his order dated 22.4.2008 (Annexure P-11). The writ petition (CWP No. 8810 of 2009), challenging the above orders, was also dismissed by the learned Single Judge. LPA No. 1371 of 2009 -6- Learned counsel for the appellant (big land-owner) argued that sufficient opportunity was not provided to the big land-owner to prove the sale transactions, effected by him after the appointed day, as bonafide. He has argued that when the matter was pending before the Collector (Agrarian) and when he was not taking any decision, the big land-owner was compelled to file a writ petition (CWP No. 17534 of 1997) in this Court for getting the order dated 7.3.1996 (Annexure P-6), passed by the Financial Commissioner, implemented, and this Court vide order dated 26.11.1997 directed that the order dated 7.3.1996 be implemented within a period of four months. Learned counsel argued that within the said period of four months, without providing an opportunity, the matter was decided and all the sales effected by the appellant after the appointed day were not taken into consideration, while calculating the surplus land in the hands of the appellant. So far as the calculation of the land is concerned, after considering one of the sons of big land-owner as minor, the total holdings in the hands of big land-owner were taken as 19.20.07 Hectares. The total holding to that extent is not disputed. The only question, which has been raised is with regard to the exclusion of certain sale transactions, in view of Section 4 (5) of the Act, being bonafide transactions. On this issue, when the matter remained pending before the Collector (Agrarian) for two years, undisputedly, no evidence was led by the appellant to prove that those sale transactions were bonafide and liable to be exempted from his holdings, LPA No. 1371 of 2009 -7- while considering his case for surplus area. It is well settled that in order to claim benefit of the bonafide sales, burden lies on the big land-owner to prove that those sale transactions were bonafide. No such evidence has been led by the appellant, when the case was pending before the Collector (Agrarian). The appellate as well as the revisional authorities have considered this argument and thereafter came to the conclusion that the finding recorded by the Collector (Agrarian), while not giving benefit of sale transactions being not bonafide, cannot be taken to be illegal and arbitrary. In spite of having sufficient time, the big land-owner did not lead any evidence in order to establish those sale transactions being bonafide. In our opinion, the argument, which remained before the revisional authority and before this court, is on account of opportunity to lead evidence to establish the sale transactions being bonafide. The matter has already been prolonged for more than 34 years, on one pretext or the other. At this belated stage, we cannot grant further opportunity in this regard. In view of above, we do not find any merit in this appeal. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE February 07, 2011 ( M. JEYAPAUL ) ndj JUDGE