IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1701 of 1985 (O&M) Date of decision:18.10.2011 Hardev Kaur w/o Gurdev Singh, Village Paharpur, Tehsil Nabha, District Patiala. ....Petitioner versus State of Punjab, through Secretary to Government, Punjab, Revenue Department, Chandigarh, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Sarjit Singh, Senior Advocate, with Mr. Vikas Singh, Advocate, and Ms. Shikha Sharma, Advocate, for the petitioner. Mr. S. S. Sahu, Assistant Advocate General, Punjab, for respondents 1 and 2. Mr. Ashwani Talwar, Advocate, for respondents 3 and 4. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. 1. The writ petition challenges the order passed by the Financial Commissioner rejecting the plea of the legal heirs of the original owner whose holding was reported as in surplus of the permissible area under the Pepsu Tenancy and Agricultural Lands Act of 1955 (for short, 'the 1955 Act'). The order passed by the Financial Commissioner was on a revision filed by certain allottees Civil Writ Petition No.1701 of 1985 (O&M) - 2 - of the land after the property had been declared as surplus for the first time on 08.12.1959 by the Collector. This order of the Financial Commissioner in revision was a reversal of the decision taken through the order passed by the Commissioner on 08.12.1980 whereby he held that between the time when the Collector had determined the surplus and the time when the matter was brought up before him for consideration, in the interregnum the landowner Ganda Singh had died in the year 1978. The property had fallen to succession to his wife and children. The surplus was, therefore, directed to be redetermined in the hands of the legal heirs by the Commissioner but set aside by the Financial Commissioner. 2. The learned senior counsel appearing on behalf of the legal heirs of the original owner has essentially two contentions to make: (i) the order passed by the Commissioner on 08.12.1980 was in exercise of his power as an authority representing the State under Section 32-D of the 1955 Act. According to him, the order passed cannot be revised by the Financial Commissioner. The Financial Commissioner lacked competency and jurisdiction to pass the said order; and (ii) the issue of vesting the property with the Government would arise only on the determination of surplus by the Collector and this date must be understood as the date when the proceedings of the Collector attained finality. So long as the issue of determination of the particular land as falling within the surplus was not finally adjudicated and it was still a matter pending in any other Civil Writ Petition No.1701 of 1985 (O&M) - 3 - higher forum, the succession would cause an affectation on the determination of surplus as laid down by a Full Bench of this Court in Sardara Singh and others Versus The Financial Commissioner and others-2008(3) PLR 297. 3. In support of the first contention about the lack of competency, the contest entered by Shri Talwar appearing on behalf of certain allottees of the property is that the proceedings have commenced in the year 1958 and they have gone through several tosses of ping-pong, to borrow an imagery for the continuance of tussle existing between parties, the Financial Commissioner was justified in exercising his own jurisdiction by the fact that the order passed by the Commissioner on 12.03.1968 which was one of the orders passed by him in the long volley of litigation was without jurisdiction, void and non est, especially after the draft statement had been finalised under Section 32-D(6) of the 1955 Act. 4. The contentions of parties are required to be seen in the light of the better particulars through the impugned proceedings. Initially the Collector (Agrarian) had declared 0.77 standard acres as surplus with Ganda Singh. On hearing the objections of the landowner, there was a redetermination done and by order dated 02.05.1962, the extent of surplus was redetermined as 0.60 standard acres. The landlord again had objections to point out that the property which was banjar land had been included in computing total area of land held by the landowner. This objection was rejected Civil Writ Petition No.1701 of 1985 (O&M) - 4 - on 21.08.1967. On appeal filed by the landowner, the case was remanded by the appellate authority for fresh determination on 12.03.1968. By order dated 22.04.1970, an extent of 6.59 standard acres had been declared as surplus. On an appeal filed to the Commissioner, he remanded the same on 08.07.1970 for a consideration of the landlord's objections that the surplus area must be determined in one compact block. This order of remand by the Commissioner was the subject of a further appeal to the Financial Commissioner and by order dated 29.04.1971 dismissed the landlord's appeal. The Collector then redetermined the surplus land as 6.67 standard acres as one compact block by his order dated 13.11.1972. The landlord as well as the tenants had been aggrieved by this adjudication, namely, against this decision that led to a fresh remand holding that the surplus area which had been allotted to the tenant should be kept intact and that the area be determined surplus in one block. A fresh draft statement was served on the landlord on 06.02.1975 in which 72 bighas 13 biswas comprising in khasra Nos.929 to 940 and 927 valuing 6.76 standard acres was shown as surplus. The landowner filed his objections on 19.03.1975. Although the objection by the landlord was found to be time barred, the objections of the landlord had been considered and it was essentially on his claim that the surplus area had been valued as banjar whereas the same was chahi and nehri lands. The Collector Agrarian, Nabha, therefore, made verifications of the entries for Civil Writ Petition No.1701 of 1985 (O&M) - 5 - kharif 1956 (30.10.1956), according to Section 32 NN of the Act. The properties in khasra Nos.927, 929, 930, 931 and 933 were found to be chahi, 932 was nehri and 934 to 940 were banjar qadim. The objections of the landlord were, therefore, found to be not tenable. 5. At the time when the objections were considered by the Collector, he had also to contend that an objection taken by the daughter of Ganda Singh, namely, Hardev Kaur, who claimed that she had got a piece of land from her father through a document dated 09.04.1958 and after her purchase, she had reclaimed the land. The objection at her instance was rejected by the Collector holding that the property claimed by her had been already allotted to Bajru tenant and after his death, Shadi and Kesar, being the heirs, were in possession. The proceeding Ganda Singh had been effected subsequent to 21.08.1956 and hence, invalid under Section 33FF. 6. In so far as there are references made to the provisions of the Act, namely, Section 32 NN and 32 FF, I have no doubt that the relevant provisions have been properly understood and applied. Section 32NN refers to the manner of evaluation of the land and the relevant period for such evaluation. Section 32NN is reproduced as follows:- “32NN. For the removal of doubts it is hereby declared that for evaluating the land of any person at any time under this Act, the land owned by him immediately before the commencement of the Pepsu Tenancy and Civil Writ Petition No.1701 of 1985 (O&M) - 6 - Agricultural Lands (Second Amendment) Act 1956, or the land acquired by him such commencement by inheritance or by bequest or gift from a person to whom he is an heir, shall always be evaluated for converting into standard acres as if the evaluation was being made on the date of such commencement, and that the land acquired by him after such commencement in any other manner shall always be evaluated for converting in standard acres as if the evaluation was being made on the date of such acquisition.” The evaluation with reference to the entries in khasra girdawari was, therefore, properly done. As far as the effect of sale by the landowner, Section 32FF declares as follows:- “32-FF- Save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance or up to 30th July, 1958 by a landless person, or a small landowner, not being a relation as prescribed of the person making the transfer or disposition of land, for consideration up to an area which with or without the area owned or held by him does not in the aggregate exceed the permissible limit, no transfer or other disposition of land effected after 21st August, 1956, shall effect the right of the State Civil Writ Petition No.1701 of 1985 (O&M) - 7 - Government under this Act to the surplus area to which it would be entitled but for such transfer or disposition : Provided that any person who has received any advantage under such transfer or disposition of land shall be bound to restore it, or to make compensation for it, to the person whom he received it.” In this case, the transfer in favour of the daughter was made on 09.04.1958 which shall be totally discarded having regard to the language of the above Section that makes ineffective transfers made after 21.08.1956. The draft statement made on 06.02.1975 was, therefore, made final. 7. At the time when the appeal was pending before the Commissioner, it appears that Ganda Singh died and the appeal was sought to be prosecuted by two of his sons. It was contended before the Commissioner that the land had not been utilized and as laid down by this Court in a decision reported in 1980 PLJ 354, the case was required to be remanded for fresh determination. It was contended that the allotment of land to the tenants, namely, Shadi Ram and others were on the basis of order passed on 02.05.1962 which had been set aside by the Commissioner vide his order dated 12.03.1968 and the utilization according to the learned counsel commenced when the surplus area was declared and completed with the issuance of the certificate and delivered possession. Since there was no longer a validly declared surplus area, it was contended that Civil Writ Petition No.1701 of 1985 (O&M) - 8 - Shadi Ram had no overriding rights over the land allotted to them. 8. This contention of the landlord was contested on behalf of the tenant by urging that the properties which had been originally declared as surplus, namely, 933 min, 934, 935 and 936 min was in the year 1962 and taken over by the State Government on 15.03.1964. This property had been allotted to the father of Kesar Ram and Shadi Ram on 27.12.1964 itself and the possession had also been delivered to him. In the appeal filed by Ganda Singh on 22.04.1970, his only objection was that the property in khasra Nos.933 to 937 were to be included in the surplus area and qua these numbers, the tenants' rights had fructified and Ganda Singh's rights over the land got extinguished, consequent to the delivery of possession and the rights claimed by Shadi Ram and Kesar Ram. The Commissioner upheld the contention of the sons of Ganda Singh to hold that the original allotment to the tenants which had been made after the declaration of surplus through order dated 02.05.1962 itself had been set aside on 12.03.1968 and, therefore, the right of Kesar Ram and Shadi Ram, who were the allottees of surplus land also stood extinguished, the original order on the basis of which allotment was made having been no longer in force. For all intents and purposes, the Commissioner held that the possession of Kesar Ram and Shadi Ram were merely tenants at will and even in the order dated 22.04.1970, the Collector had not declared the khasra numbers that were held by the tenants as allotted to them. Civil Writ Petition No.1701 of 1985 (O&M) - 9 - The Commissioner held that even the order of the Collector making a draft statement final by order dated 28.08.1975 had been stayed by the Commissioner through his order dated 17.09.1975. The Commissioner, therefore, held that it could not be contended that the area comprised in khasra Nos.933 min, 934, 935 and 936 min had been utilized so far. 9. This order of the Commissioner directing a fresh determination on the basis of succession operating in favour of the heirs was a further subject of contention before the Financial Commissioner. The validity of the order of the Commissioner was assailed by the allottees, namely, the tenants to contend that, one, the draft statement had become final and published in the official gazette, and thereafter no person shall be entitled to question it before any authority in terms of language contained under Section 32-D(6). The order passed by the Collector after several rounds of remand on 28.08.1975 could not have been made the subject of appeal to the Commissioner at all in the first place. Since the said draft statement had passed to a stage of finality, it was not appealable under Section 32-D(3). The provision for an appeal against the order of a Collector was permissible only in respect of the order of a Collector issued under sub section (2) of Section 32-D which deals with a draft statement issued on the advice of the Pepsu Land Commissioner, appointed under Section 32-P or on the basis of information given in return under Section 32-B or declaration Civil Writ Petition No.1701 of 1985 (O&M) - 10 - made under Section 32BB(1) or on the basis of information obtained by the Collector under Section 32BB(3). The order passed by the Collector which he declared as final on the basis of which a gazette notification had also been issued cannot be a subject of further appeal to the Commissioner. The Financial Commissioner, therefore, upheld the contention of the tenants to hold that the appeal which had been filed to the Commissioner was not against a draft statement dated 06.02.1975 but against an order dated 28.08.1975 which made the statement final. He, therefore, held that the order of the Commissioner itself cannot be considered as one having been passed under Section 32-D(3), but it should be considered as an order under Section 39. 10. The question as to whether the order passed by the Collector making the draft statement final could have been made, a further subject of appeal to the Commissioner and whether the Commissioner had a power to redetermine the surplus taking note of the death of Ganda Singh could be examined from the effect of the order of the Collector. It must also be noticed that when the Collector was passing an order on 28.08.1975, the Punjab Land Reforms Act had already been passed. 11. Section 8 of the Punjab Land Reforms Act makes provision for vesting of unutilized surplus area in the State Government. The repeal provisions under Section 28 repeals the Punjab Security of Land Tenures Act of 1953 (Punjab law) and the Civil Writ Petition No.1701 of 1985 (O&M) - 11 - Pepsu Tenancy and Agricultural Lands Act of 1955 (Pepsu law). Section 28 of the Punjab Land Reforms Act of 1972 contains two portions, the first portion that repeals the Punjab law and the Pepsu law. The second portion reserves the operation of the Pepsu law under certain circumstances. Section 28 is reproduced:- “28. Repeal and Saving.-(1) The Punjab Security of Land Tenures Act, 1953 and the Punjab Tenancy and Agricultural Lands Act, 1955, in so far as these are inconsistent with the provisions of this Act, are hereby repealed. (2) The repeal of the enactments mentioned in sub- section (1), hereinafter referred to as the said enactments, shall not affect,- (i) the proceedings for the determination of the surplus area pending immediately before the commencement of this Act, under either of the said enactments, which shall be continued and disposed of as if this Act had not been passed, and the surplus area so determined shall vest in and be utilized by the State Government in accordance with the provisions of this Act: Provided that such proceedings shall, as far as may be, be continued and disposed of, from the stage these were immediately before the commencement of this Act, and the cases pending before the Pepsu Land Commission Civil Writ Petition No.1701 of 1985 (O&M) - 12 - immediately before the date of commencement of this Act shall stand transferred to the Collector of the district concerned for disposal. Provided further that nothing in this section shall affect the determination and utilization of surplus area, other than the surplus area referred to above, in accordance with the provisions of this Act; (ii) the previous operation of the said enactments or anything duly done or suffered thereunder; (iii) any right, privilege, obligation or liability acquired, accrued or incurred under the said enactments, in so far as such right, privilege, obligation or liability is not inconsistent with the provisions of this Act and any proceeding or remedy in respect of such right, privilege, obligation or liability may be instituted, continued or enforced as if this Act had not been passed: Provided that such proceeding or remedy shall, as far as may be, instituted, continued or enforced in accordance with the procedure specified by or under this Act.” The second portion of Section 28 specifically deals with the proceedings which are pending before the commencement of the Punjab Land Reforms Act of 1972 (for short, 'the 1972 Act') where under the Pepsu Law the land had not been finally disposed of. The Section requires the proceedings would be continued and disposed Civil Writ Petition No.1701 of 1985 (O&M) - 13 - of as if the 1972 Act had not been passed and the surplus area determined, however, shall be vested and utilized by the State Government in accordance with the 1972 Act. The rights and privilege under the old Act also would continue to remain. This would mean that any right which the tenant had obtained under the Pepsu law would continue to govern the rights of parties. The second portion of Section 28 also makes possible the transfer of the proceedings which are pending under Pepsu law to the Collector under the 1972 Act. This would mean that the order passed by the Collector itself must be understood as an order passed under the Punjab Land Reforms Act of 1972. The 1972 Act provides for appeal, review and revision through Section 18 in the same manner as provided under the Pepsu Tenancy Act of 1887. Consequently, the revision to the Financial Commissioner itself would be perfectly competent. This would, therefore, dispose of the first objection taken by the learned senior counsel appearing for the petitioner that if the decision was rendered by the Commissioner in appeal there was no further provision for a revision to the Financial Commissioner. 12. The issue that would stand unresolved still is whether the surplus land could be stated to have been unutilized at the time when death occurred. It is an admitted case that after determination of surplus in the year, 1962, the property that was taken as surplus was allotted to the tenants on 22.12.1964. The order of the Civil Writ Petition No.1701 of 1985 (O&M) - 14 - Commissioner records the fact that the tenant had paid the entire compensation amounting to Rs.484.09 and accepted by the landlord. The Commissioner, therefore, reasoned that the rights of the landlord had been extinguished through his life time under Section 32-E of the Pepsu Act. Since land itself had been utilized by the allottees, the death of the landowner in the year, 1978 would make no difference and the decisions of this Court relating to the effect of death and the inheritance as contemplated under Section 11(7) of the 1972 Act would not come into effect. Before the Commissioner, it was also argued that after the Collector passed an order on 28.08.1975 directing draft declaration to be made final, the landlord preferred appeal only on 08.09.1976 that was nearly after one year whereas the time limit for preferring the appeal was only 30 days. The Financial Commissioner observed that the Commissioner, even apart from the fact that he was entertaining an appeal beyond the period of limitation had committed an error in fact in holding that khasra Nos.933, 934, 935 and 936 min had not been declared as surplus. On the other hand, the said properties had been actually allotted to the tenants and the landowner had himself stated that he had no objection that the said properties being treated as surplus. The issue of succession arises only in cases where a property remains unutilized. In this case, the Financial Commissioner's order brings out the fact that after the draft statement was made final declaring the surplus area made by the Collector on 02.05.1962, a Civil Writ Petition No.1701 of 1985 (O&M) - 15 - gazette publication had been issued on 25.05.1962. If a final statement had been issued, the issue of reopening matters through successive orders was simply not possible in the light of the language of Section 32D(5). The Financial Commissioner has himself noted the fact that this crucial issue had been somewhere omitted to have been seen. I must state that if the landlord came by consideration of Commissioner for making alternative lands for retention within his permissible area after the gazette notification, he was getting the benefit of consideration purely by way of grace and not under any provisions of law. A draft statement that is made final that culminates in publication in the gazette brings a terminus quo and no further right could have been claimed by the landlord seeking for reappraisal. For the same reason, if a property had been allotted to the tenants subsequent to such gazette notification, there is no question of reopening the same and to bring an argument that the property remained unutilized. It would mean complete subversion of scheme of the Act where the property after a gazette notification had also been actually allotted to the tenants and tenants had paid compensation for the same and the landlord had also received the same. These facts have been brought out in the order of the Financial Commissioner. All that could be stated about the order dated 02.05.1962 was although the original order of declaration was a treatment as surplus of an extent of 0.77 standards acres, an extent of 0.17 standards acres came under choe and could not have been Civil Writ Petition No.1701 of 1985 (O&M) - 16 - declared as surplus. When the Collector was, therefore, making a modification, the order could have had effect only to the extent of 0.60 standards acres. This order could not have been corrected by the Commissioner in the year 1968 as it was done. I agree with the observations of the Financial Commissioner that all the further proceedings before the Collector and the Commissioner that had been taken by the invalid and non est. The order of the Financial Commissioner itself should be taken appropriately as an order which was to set right the several errors that had come about after a gazette notification had been made. I would uphold in toto the order passed by the Financial Commissioner and would find no error in a reappraisal in the order passed by the Financial Commissioner. 13. I had called for the original file from the Government and examined the records. The facts brought out in the order of the Financial Commissioner stands fully justified by the contents in the files. 14. The writ petition is dismissed. (K. KANNAN) JUDGE