LPA No.1323 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.1323 of 2009 (O&M) Date of decision: 9-7-2010 Rajinderpal Singh Athwal ............Appellant Versus District Collector and others . ......... Respondents CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. R.S. Athwal, Petitioner present in person. Mr. Jaswinder Singh, D.A.G., Punjab. Mr. Munish Jain, Advocate for respondent No.4 (N.P.) 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. Present case has very interesting history and involves substantial questions of law of vital importance. Initially CWP No.17936 of 2008 titled as Rajinderpal Singh vs. District Collector and others was preferred before learned Single Judge of this Court raising grievances that respondent No.4 has illegally acquired/purchased about 1200 acres of land in Chhoti Bari Nangal, LPA No.1323 of 2009 (O&M) -2- H. Bast No.339, Tehsil Kharar after coming in force the Punjab Land Reforms Act, 1972; likewise the respondent No.4 has acquired about 37 acres in village Paroul and about 50 acres in village Majrian, Tehsil Kharar; the land in name of respondent No.4 is more than the permissible area as prescribed under the Punjab Land Reforms Act, 1972 (for brevity, ‘the Act’). Under the provisions of Punjab Land Reforms Act, 1972 no person can hold land beyond the permissible area. Any land beyond the permissible area would be surplus land in the hand of the person and shall be taken in possession by the State Government and that surplus land shall be utilized by the State by allotting it to the eligible persons mentioned in the Act. The further contention of the petitioner is that despite of making representations/complaints nothing was done by the Revenue authorities against respondent No.4-Company. 2. Learned Single Judge vide order dated 22.9.2009 dismissed the writ petition by observing that order dated 22.7.2004 passed by Collector by which case against respondent No.4 was directed to be consigned has not been challenged in the writ petition and it is debatable as the petitioner has locus-standi to assail the exemption that has been granted to respondent No.4. 3. Feeling aggrieved from the order dated 22.9.2009 passed by learned Single Judge, present LPA No.1323 of 2009 is preferred. On 20.01.2010, statement was made by the appellant/writ petitioner that present petition is in the nature of Public Interest Litigation (PIL). Having recorded the statement of the appellant matter was directed to be listed to the appropriate Bench hearing the PIL. However, LPA No.1323 of 2009 (O&M) -3- Hon’ble the Chief Justice vide order dated 29.1.2010 directed to list the present case (PIL) before us. 4. Mr. Munish Jain, Advocate had appeared for respondent No.4 on 20.1.2010, 15.2.2010, 17.3.2010, 18.5.2010 and 24.5.2010. However on 26.5.2010, Mr. Munish Jain, Advocate reported no instructions. Without commenting on the conduct of respondent No.4, we proposed to hear Counsel appearing before us for rest of the respondents. 5. In the nutshell, brief facts of the present case are that respondent No.4 is having about 1200 acres of land which is beyond the permissible area under the Punjab Land Reforms Act, 1972 and despite of the fact that respondent No.4 is having almost 1200 acres of land no action is being taken against them declaring the surplus land in his hand and to take possession of the surplus land as per the provisions of Punjab Land Reforms Act, 1972. The further case of the petitioner is that substantial portion of the land, in the possession of respondent No.4, falls within the area notified under Section 4 of the Indian Forest Act (as applicable to the State of Punjab) and also falls in the area where provisions under Sections 4 and 5 of the Punjab Land Preservation Act, 1900 are in force. It is further alleged that neither respondents No.1 to 3 nor State Government has any authority to grant exemption to the petitioner to retain land beyond permissible area. 6. Respondents No.1 to 3 filed their reply to the writ petition in the shape of affidavit of Rajesh Dhiman, Tehsildar, District S.A.S. Nagar, Mohali. In the reply-affidavit in paragraph No.3 learned LPA No.1323 of 2009 (O&M) -4- Tehsildar has contended as under:- “Actual facts are that in fact a report was prepared by Naib Tehsildar, Majri and the same was sent to the office of then S.D.M.- cum-Collector (Agrarian), Kharar, who while dealing with the said report, served notice no.184 of 12.02.2004 upon respondent No.4 in response to which respondent No.4 submitted that “We undertake to use the land falling beyond the permissible area under the provisions of Land Reforms Act for the purpose of project to create industrial and urban infrastructure as committed in the agreement. Dated 03.11.2003 executed between respondent No.4 and the Hon’ble Governor of Punjab through the Principal Secretary (Industries and Commerce)”. It was further submitted by respondent No.4 that in no circumstances, the land beyond the permissible area be used in contravention of section 3(5) of the Land Reforms Act i.e. for agricultural purpose or for any other purpose subservient to agriculture. The above said version of respondent No.4 was thoroughly taken into consideration in a meeting convened by Financial Commissioner (Revenue) where Principal Secretary (Industries & Commerce) was also present. Taking into consideration the above said agreement dated 03.11.2003 entered into by the State Government with respondent No.4, in the said meeting, it was decided that if respondent No.4 gives an undertaking to the effect of above said version then the case LPA No.1323 of 2009 (O&M) -5- shall be decided on merits. Accordingly, the above said report of the Naib Tehsildar Majri was decided and it was ordered by the then S.D.M.-cum-Collector (Agrarian) that the case file is consigned and further action against respondent No.4 will be taken, only if, respondent No.4 takes any action against the above said undertaking. Accordingly the case was decided and consigned vide order dated 22.07.2004 Thus in view of the above said, it is pertinent to mention here that the objection raised by the petitioner through the present petition has already been decided/proceedings closed and petitioner never initiated any action against the order dated 22.07.2004 in the court of appellate authority, thus the order dated 22.07.2004 is deemed to have attained finality and the petitioner has got no right to reagitate the matter and to invoke the extra ordinary writ jurisdiction of this Hon’ble Court under Article 226/227 of the Constitution of India. A copy of order dated 22.07.2004 is annexed as Annexure R/1 with this reply.” 7. Respondent No.4-Company also filed reply to the writ petition and it has been contended by the respondent No.4 that M/s Quark Infrastructure Private Ltd. was incorporated on 6.12.1999, however, later on its name was changed to M/s Fauja Singh Infrastructure Pvt. Ltd. On 20.01.2000; the company is a wholly owned subsidiary of M/s F.E. Holdings Mauritius Ltd. and both the companies have common and same Directors. It has been further LPA No.1323 of 2009 (O&M) -6- contended that Government of Punjab has formulated the Industrial Policy, 2003 to boost the industrialization in the State with the object of inflow of foreign investment; the company negotiated with the State Government and ultimately an agreement dated 3.11.2003 was executed between the company and the State of Punjab and Government vide the said agreement agreed to grant exemption to the company, its affiliates, subsidiaries and associates from the relevant provisions of any Agricultural Land Regulations including provisions of Punjab Land Reforms Act, 1972. The further contention of the company is that exemption for the payment of stamp duty is also granted to the company to facilitate the company to facilitate land; Notice under Section 5 of Punjab Land Reforms Act was issued to the company which was contested by the company and undertaking was given by the company that land beyond the permissible area shall not be used for agriculture or horticulture purposes and State Government has already granted exemption to the company and thereon matter was heard and file was directed to be consigned against the company vide order dated 22.7.2004 passed by the learned Collector (Agrarian), Kharar. 8. From the perusal of the record and having heard petitioner present in person and Deputy Advocate General, Punjab, we find that following undisputed facts have emerged:- i) respondent No.4 is 100% funded by a foreign company M/s F.E. Holdings Mauritius Ltd. and the Directors of M/s F.E. Holdings Mauritius Ltd. and respondent No.4- company are common and same. LPA No.1323 of 2009 (O&M) -7- ii) company now owns and is in possession of more than 1200 acres of land which is undisputedly beyond permissible area as provided under Section 4 of the Punjab Land Reforms Act. iii) Land is still agriculture land. There is nothing on record to suggest that land use was ever changed. iv) No master plan is ever made for the area in question. After filing of the writ petition, notice under Section 5 of the Act was issued by the Deputy Commissioner, S.A.S. Nagar, Mohali exercising the power of Collector under the Act in which no order on merit was passed rather file was directed to be consigned vide order dated 22.7.2004. v) State of Punjab has entered into an agreement with the company on 3.11.2003, the relevant portion of the same is as under:- “3.3 Land Use (Phase I and II) 3.3.1. The State Government shall sanction the Land Use/Land use change for phase I and II of the Project in accordance with the Area Allocation Plan appended as Schedule “A”, subject to clause 8.2.2. Subsequent change of land use will be al- lowed only with the sanction of the State Government. 3.3.2. In case any land purchased by Quark for Phase II is Forest Land covered under the LPA No.1323 of 2009 (O&M) -8- provisions of Forest Conservation Act, 1986, Quark shall not use the said land for any non-forest purpose without approval of the Central Government. 3.3.3. The State Government understands that the land requirement of Phase II is large and the land purchased and to be pur- chased by Quark will include land under agriculture use, and will exceed the ceiling limit for agricultural land holdings applica- ble in the State under the provisions of Punjab Land Reforms Act, 1972. The State Government therefore agrees to regularize such holding by changing the land use in accordance with the Area Allo- cation Plan. The State Government fur- ther agrees to grant exemption to Quark from the relevant provisions of any agricul- ture land regularory laws including the Punjab Land Reforms Act, 1972 applica- ble in the State and from filing of any dec- laration required for agricultural land hold- ings under any applicable Act or Rules, bought for the purposes of the Project. Any delays in filing of such declarations during the interim period after purchase till LPA No.1323 of 2009 (O&M) -9- the date of change of land use shall be specifically exempted and it is agreed that Quark shall not be liable to any penal con- sequences and damages etc. on this ac- count. 3.3.4. The State Government has decided not to levy any charge for change of land use on land falling within the Chandigarh Periph- ery Area for Phase II in recognition of the benefits that are likely to accrue to the State from the Project. Quark shall be bound to use the entire land acquired by it directly or through the State Government, for implementation of Phase II, in terms of this Agreement. In case Quark is unable to so utilize the land or portions of land re- main unutilized for any other reason, or Quark sells any portion of the land for pur- poses not related to the project, to any third party, Quark or such third party, as the case may be, shall be liable to pay change of land use charges, waived ear- lier, at the rate applicable at the time such liability is to be determined. Third party shall also be liable to make an application to the State Government for approvals of LPA No.1323 of 2009 (O&M) -10- change of land use. Determination of utili- zation of land by Quark shall only be as- sessed at the completion of the Project.” 9. The very vital question of law surfaced in the present petition should be answered by this Court:- As to whether State Government can grant exemption to any company/person to hold land beyond the permissible area in violation of Sections 4, 14 and 27 of the Act? 10. To answer above said question, we deem it proper to reproduce Sections 4, 5, 7, 8, 9, 11, 14 and 27 of the Act:- 4. Permissible area – (1) Subject to the provisions of section 5, no person shall own or hold as landowner or mortgagee with the possession or tenant or partly in one capacity and partly in another in excess of the permissible area. (2) `Permissible area’ shall mean in respect of – a) land under assured irrigation and capable of yielding at least two crops in a year (hereinafter in this Act referred to as `the first quality land’) seven hectares; or (b) land under assured irrigation for only one crop in a year, eleven hectares; or (c) barani land, 20.5 hectares; or (d) land of other classes including banjar land, and area to be determined accordingly to the prescribed scale with reference to the intensity of irrigation, productivity and soil LPA No.1323 of 2009 (O&M) -11- classification of such classes having regard to the respective valuation and the permissible area of the classes of land mentioned at (a), (b) and (c), above subject to the condition that the area so determined shall not exceed 21.8 hectares. Provided that— (i) where land consists of two or more classes, the permissible area shall be determined on the basis of relative valuation of sub classes of land, subject to the condition that it does not exceed 21.8 hectares; (ii) where the number of member of a family exceeds five, the permissible area shall be increased by one-fifth of the permissible area for each member in excess of five, subject to the condition that additional land shall be allowed for not more than three such members. (3) Notwithstanding anything contained in sub-section (2), where any land is comprised in an orchard on the appointed day, such land shall, for the purpose of determining the permissible area, be treated as barani land. (4)(a) Where a person is a member of a registered co-operative farming society, his share in the land held by such society together with his other land, if any, or if such person is a member of a family, together wit the land held by every member of the family LPA No.1323 of 2009 (O&M) -12- shall be taken into account for determining the permissible area; (b) Where a person is a member of a family, the land held by such person together with the land held by every other member of the family, whether individually or jointly, shall be taken into account for determining the permissible area. (5) In determining the permissible area any land which was transferred by sale, gift or otherwise, other than a bona fide sale or transfer, after the appointed day but before the commencement of this Act, shall be taken into account as if such land had not been transferred and the onus of proving the transfer as bona fide shall be on the transfer. (6) For the purpose of valuation of land one and quarter hectares of banjar land shall be treated as equivalent in value to one hectare of barani land. (7) For evaluating the land of any person at any time under this Act, the land owned by him immediately before the commencement of this Act as well as the land acquired by him after such commencement by inheritance, bequest or gift from a person to whom he is an heir shall be evaluated as if the evaluation was being made on the appointed day and the land acquired by him after such commencement in any other manner shall be evaluated as if the evaluation was being mad on the date of such acquisition. LPA No.1323 of 2009 (O&M) -13- 5. Selection of permissible area and furnishing of declaration by certain persons.—(1) Every person, who on the appointed day or at any time thereafter, owns or holds land as landowner or mortgagee with possession or tenant or partly in one capacity and partly in another in excess of the permissible area, shall select his permissible area and intimate his selection to the Collectors concerned, through a declaration to be furnished in such form and manner and within such period as may be prescribed and if such person had an adult son, out of the land owned or held by him, subject to the condition that the land so selected together with the land already owned or held by such son, shall not exceed the permissible area of each such son: Provided that where land is situate in more than one patwar circle, the declaration shall be supported by an affidavit in the prescribed form. (2) In making the selection, such a person shall include, firstly land mortgaged without possession and, secondly, land under self- cultivation on the date of commencement of the period prescribed for furnishing the declaration under sub-section (1), but shall not include area declared surplus under the Punjab law, the Pepsu law or this Act, other than the area which was exempt from utilization by the State Government LPA No.1323 of 2009 (O&M) -14- immediately before such commencement. 7. Determination of permissible and surplus area – (1) On the basis of the information given in the declaration furnished under section 5 or the information obtained under section 6, as the case may be, and after making such inquiry as he may deem fit, the Collector shall, by an order determine the permissible area and the surplus area of a landowner or tenant, as the case may be. “[(2)] If any person referred to in sub-section (1) of section 5 fails to furnish the declaration or files a declaration containing which is false or which he knows or has reason to believe to be false or which he does not believe to be true, he shall be punishable with the imprison- ment which may extend to two years, or with fine which may extend to two thousand ru- pees or with both. (3) [-- Omitted by Act 22 of 1976] (4) For the purpose of determining the sur- plus area of any person,-- (i) any judgement decree or order of a Court or other authority obtained on or after the ap- pointed day and having the effect of dismiss- ing the surplus area of such person; (ii) a tenancy created on or after the ap- pointed day in any land which has been or could have been declared as surplus area of such person under the Punajb Law, the Pepsu law or this Act; 8. Vesting of utilized surplus area in the LPA No.1323 of 2009 (O&M) -15- State Government – Notwithstanding anything contained in any law, custom 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 Pespu 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 area 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. 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 other person in possession of such area refuses or LPA No.1323 of 2009 (O&M) -16- fails without reasonable cause to comply wit 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. 11. Disposal of surplus area—(1) The surplus area, which has vested in the State Government under section 8, shall be at the disposal of the State Government. (2) The State Government may, by notification in the official Gazette frame a scheme for utilizing the surplus area under the Punjab law, the Pepsu law or this Act by – (a) conferment of rights of ownership or tenants in respect of such land as is comprised in the surplus area of the landowner of such a tenant; and (b) allotment to tenants, members of Scheduled Castes and Backward Classes of the landless agricultural workers, of an area not exceeding two hectares of the first quality land or equivalent area, provided that the total area held or owned by any such allottee after the allotment, shall not exceed two hectares of the first land or equivalent area. (3) Any scheme framed by the State Government under sub-section (2) may provide for the terms and conditions on which the rights of ownership are to be conferred on the tenants and also the terms and conditions LPA No.1323 of 2009 (O&M) -17- on which the land comprised in the surplus area is to be allotted. (4) The State Government may, by notification in the official Gazette add to, amend, vary or revoke any scheme made under this section. (5) Notwithstanding anything contained in any law for the time being in force and 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, no transfer or other disposition of land which is comprised in the surplus area under the Punjab law, the Pepsu law or this Act, shall affect the vesting thereof in the State Government or its utilization under this Act. (6) The utilization of any surplus area before the commencement of this Act will not affect the right of the tenant to purchase land in accordance with the provisions of section 15 of the right of the landowner to receive rent from the tenant settled on the surplus area till the tenant becomes the owner thereof. (7) Where succession has opened after the surplus area or any part thereof has been determined by the Collector, the saving specified in favour of an heir by inheritance under sub-section (5) shall not apply in respect of the area so determined. 14. Exemption of lands belonging to LPA No.1323 of 2009 (O&M) -18- religious or charitable institutions – Notwithstanding any judgement, decree or order of any court or authority, the provisions of this Chapter shall not apply to lands belonging to any religious or charitable institution of a public nature in existence immediately before the date of commencement of this Act, but not belonging to the mahant, mohitamim or manager thereof; Provided that the exemption specified herein shall be admissible till such time only as the land or income there from is utilized for the specified purpose of such institutions