CWP No.4930 of 1982 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.4930 of 1982 Date of Decision: 7.8.2008 Sardara Singh and others .....Petitioners Vs. Financial Commissioner (Revenue)Punjab and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. K.S. Grewal,Advocate for the petitioners. Mr. N.S. Pawar, Addl.A.G. Punjab. .... RAJIVE BHALLA, J (Oral) The petitioners pray for the issuance of a writ in the nature of Certiorari or any other appropriate writ, order or direction for quashing the orders dated 20.8.1975, 21.11.1978 and 21.9.1982, passed by respondents no.3, 2 and 1 respectively. Proceedings under the Punjab Land Reforms Act, 1972 (hereinafter referred to as `the Act'), for selection of permissible area and declaration of surplus area qua the estate held by Hari Singh, the predecessor in interest of the petitioners culminated in an order dated 20.8.1975, passed by the Collector, Agrarian, Bassi Pathana, declaring 66 K 9 M of Barani land as surplus. Hari Singh filed an appeal, which was dismissed on 21.11.1978. Aggrieved by the aforementioned order, Hari Singh filed a revision before the Financial Commissioner (Revenue) Punjab, Chandigarh. During the pendency of the revision, Hari Singh passed away CWP No.4930 of 1982 2 issueless on 29.5.1981. The mutation of inheritance to the estate of Hari Singh was sanctioned in favour of petitioners no.3 to 8, on the basis of a Will executed by Hari Singh, allegedly executed with the consent of petitioners no.1 and 2. On 27.7.1981, the petitioners filed an application before the Financial Commissioner for impleading them as legal representatives of Hari Singh-deceased. The application was accompanied by application of even date, praying that the surplus area be redetermined in the hands of Hari Singh's legal heirs, as it had not been utilised by the State of Punjab. The learned Financial Commissioner rejected this prayer and held that as the surplus area stood declared, it is protected by the provisions of Section 11 (7) of the Act and, therefore, could not be redetermined upon demise of the big land owner. Aggrieved by the aforementioned order, the petitioners preferred the instant writ petition. Counsel for the petitioners submits that despite declaration of surplus area, Hari Singh continued in possession during his life time and after his demise the petitioners are in possession of the land in dispute. The surplus area, therefore, would have to be redetermined in the hands of his legal heirs i.e. the petitioners no.3 to 8. It is further submitted that the question, whether upon demise of a big land owner, the surplus area is to be redetermined in the hands of his legal heirs was referred to a Full Bench in the present case. A Full Bench of this Court has held that if before utilisation of the surplus area, the big land owner dies, the surplus area would have to be redetermined in the hands of his legal heirs. The judgement of the Full Bench is reported as Sardara Singh V. Financial CWP No.4930 of 1982 3 Commissioner, 2008(2) Law Herald, Punjab and Haryana 961. Counsel for the State of Punjab, accepts that the controversy in the instant case is squarely covered by the judgement of the Full Bench referred to herein above. I have heard learned counsel for the parties and perused the impugned orders. Admittedly, Hari Singh, the big land owner, passed away on 29.5.1981. A mutation of inheritance to the estate of Hari Singh was sanctioned, in favour of petitioners no.3 to 8, on the basis of a Will. The petitioners no.3 to 8 are in possession of the entire estate of Hari Singh, including the land declared surplus. The petitioners contention that on account of the demise of Hari Singh, during the pendency of proceedings for determination of surplus area, the respondents would be required to redetermine the surplus area in the hands of Hari Singh's legal heirs has been answered by a Full Bench of this Court, in their favour in Sardara Singh's case (supra). A relevant extract of the aforementioned judgement reads as follows :- “40. We are of the view that the controversy can be resolved either through reading the plain meaning of words or through harmonious construction, if the plain meaning of words does not yield any result. The majority view had taken the plain meaning of the words and come to the definite conclusion which has been reproduced above. Nevertheless, the minority view is also based on the plain meaning of certain words occurring in Section 11(7). The difference between the CWP No.4930 of 1982 4 two views is with regard to the meaning of “determine” and “determined. The majority view appears to be to take “determine” and “determined” to mean the same thing but the minority view is that “determine” means to decide while “determined” used in Section 11(7) means to put to or come to an end. 41. We may take the assistance of the judgement of the Supreme Court in Ajmer Kaur's case (supra) where the phrase “determine by the Collector” used in Section 11 (7) was read to mean that the order of the Collector had attained finality. In that case the order of the Collector had been passed in 1976 when the land was declared surplus. The appeal was dismissed in 1979. Subsequently, the surplus land had been mutated in favour of the State Government in 1982 and allotted to private individuals in 1983. The landowner had filed an application in 1985 for redetermination in view of the death of his wife but the Supreme Court held that determination by the Collector in 1979 had become final and could not be reopened in 1985. 42. The arguments of the learned counsel for Rattan Devi may not be required to be examined in detail because we are harmoniously constructing Sections 11(5) and 11(7) of the Act. This necessarily implies that Section 11(7) is not be declared otiose or unworkable, as the learned counsel had tried to advance before us. CWP No.4930 of 1982 5 43. We are, therefore, of the considered opinion that in order to harmoniously read the two views in Ajit Kaur's case and to give correct interpretation of the provision of Section11(5) and 11(7) of this Act, we ought to take the aid of Supreme Court's judgement in Ajmer Kaur's case. We hold that until the surplus area has been finally determined by the Collector and appeals/revisions have been dismissed, the death of the landowner would certainly cause affectation to the surplus area which would be required to be redetermined in the hands of his heirs. 44. Resultantly, where the surplus area has not been finally determined and the matter is pending in appeals or revisions before the Revenue Courts or before this Court under Article 226 of the Constitution, or before the Supreme Court of India, death of the landowner would cause affectation of surplus area which would be required to be redetermined in the hands of the heirs of the deceased landowner. Such an interpretation would harmoniously construct the provisions of Section 11(5) and 11(7) and also give a proper interpretation to both the views expressed in Ajit Kaur's case. However, we are unable to uphold the judgements of this Court in Jasbir Kaur's case because Ajit Kaur's case was not at all considered by the Hon'ble Division Bench. As regards Manjit Kaur's case, even though Ajit Kaur's case was CWP No.4930 of 1982 6 considered, the majority view had been entirely over looked.” In view of the binding precedent of the Ho'ble Full Bench, the writ petitions are allowed, the orders dated 20.8.1975, 21.11.1978 and 21.9.1982 are set aside and the matter is remitted to the Collector, Fatehgarh Sahib, for adjudication of the surplus area case of Hari Singh, afresh, in the hands of his legal heirs i.e. petitioners no.3 to 8. No order as to costs. 7.8.2008 (RAJIVE BHALLA) GS JUDGE