CIVIL WRIT PETITION NO.4881 OF 1982 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 16, 2009 Sudershan Kumar and others .....Petitioners VERSUS State of Punjab and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. O. P. Goyal, Sr.Advocate with Mr. Varun Sharma, Advocate, for the petitioners. Mr. P. C. Goyal, Addl.A.G., Punjab, for the State. **** RANJIT SINGH, J. (ORAL) In this amended writ petition filed by the petitioners, prayer is to quash the order dated 14.9.1982, Annexure P-9, passed by the Financial Commissioner, Punjab, Chandigarh, dismissing the revision petition filed by the petitioners under Section 84 of the Punjab Tenancy Act. Prayer further is for quashing order dated 28.12.1961 (Annexure P-2) passed by Collector, Jalandhar, declaring 21 standard acres and 14-3/4 units of land of Late Smt.Devki as surplus. Challenge is also made to the allotment letter issued to CIVIL WRIT PETITION NO.4881 OF 1982 :{ 2 }: respondent Nos.4 to 10 annexed with the petition as Annexures P-11 to P-20 and for quashing the proceedings initiated by respondent No.3 for delivery of possession of this surplus area concerning to the respondent-tenants. The facts, in brief, are that Smt.Devki is a widow of Mansukhrai and mother of Nikki. She inherited land after the death of her husband in three villages i.e. Samarai, Daduwal and Pandori Masharkati, Tehsil Phillaur, District Jalandhar. Mansukhrai had died long ago. Smt.Devki had no male issue and had only one daughter, named, Nikki (now deceased). The present petitioners are sons of said Nikki. Surplus area of the case of Smt.Devki came to be decided after coming into force of the Punjab Security of land Tenure Act, 1953 (for short, “the Tenure Act”) on 27.6.1960. Twenty one standard acres 14-3/4 units were accordingly declared surplus with her. Copy of this order is annexure P-1. Smt.Devki had already sold some area to third person, namely, Sh.Sudesh Kumar, who challenged the order dated 27.6.1960 through an appeal before Commissioner, Jalandhar Division, Jalandhar, pleading that he had purchased part of land in question on 17.3.1958. He accordingly prayed that he be heard before surplus case was decided. The Commissioner, Jalandhar Division, Jalandhar, accepted the appeal on 1.9.1961 and set-aside the order dated 27.6.1960. He remanded the case back to Collector, Agrarian, for passing order afresh after affording an opportunity of hearing to vendee, Sudesh Kumar. The case was accordingly taken up by Collector Agrarian, who again declared the same area as surplus vide his order dated 28.12.1961. Copy of this order is annexed with CIVIL WRIT PETITION NO.4881 OF 1982 :{ 3 }: the petition as Annexure P-2. A perusal of Annexure P-2 would show that though the area in total declared as surplus remained the same but some of the khasra numbers are different from those as mentioned in Annexure P-1. The Collector took a view that the area sold by Smt.Devki, except the one purchased by Sudesh Kumar, was to be included in her permissible area. It was now Smt.Devki's turn to file an appeal before the Commissioner, Jalandhar Division, Jalandhar, which, however, was rejected on 20.9.1962. During the period between the passing of orders, Annexures P-1 and P-2, some area declared surplus was allotted to tenants. Reference here may be made to a fact that the Punjab Government took a policy decision in the year 1966 to exempt surplus area sold to land less persons and small land owners from utilization. This policy instructions are annexed with the petition as Annexure P-3. While making allotment to the tenants, no notice was issued to land owner, Smt.Devki. It is averred that possession of the area so allotted was also not handed over to allottees. Rather, on the other hand, it is specifically stated by the petitioners that possession of the area declared surplus pursuant to both orders, Annexures P-1 and P-2, remained with Smt.Devki and later on with Smt.Nikki and now with the petitioners, who are sons of Smt.Nikki. It is also pointed out that the allotment of land, which has been made pursuant to the order passed by Collector, Agrarian on 27.6.1960, was subsequently set- aside. Thus, this allotment also came to an end. Though the area was subsequently declared surplus on 28.12.1961 but no fresh allotment was made in favour of any tenant. Smt.Devki had executed CIVIL WRIT PETITION NO.4881 OF 1982 :{ 4 }: a registered will on 9.5.1969, bequeathing 2/9th share of her property in favour of her daughter, Nikki and 2/9th share in favour of her grand sons, Jai Dev, Sat Dev and Sudershan Kumar. In the year 1972, Punjab Land Reforms Act came into force with effect from 2.4.1973. The Tenure Act was, thus, repealed by virtue of Section 38 thereof. At that stage, no surplus area case regarding holdings of Smt.Devki was pending under the Tenure Act. Smt.Devki died on 1.9.1973 and her land was inherited in accordance with the will that she had left. Initially, the mutation was wrongly sanctioned of the entire land in favour of Smt.Nikki on 9.11.1973. Subsequently, the petitioners filed a civil suit, which was decreed on 5.5.1978. Mutation thereafter was sanctioned on 28.2.1979 in favour of the petitioners regarding the land of Smt.Devki in accordance with the registered will. On 15.11.1977, a letter was sent to Sub Divisional Officer (Civil)-cum-Collector Agrarian, Phillaur, for commencing fresh proceedings for declaration of surplus area regarding the holdings of Smt.Devki (deceased), under the Tenure Act. Collector, Agrarian, started fresh proceedings for re-processing the surplus area case of Smt.Devki. Notice was issued to Smt.Nikki, who accordingly appeared before the Collector. Smt.Nikki filed objection petition on 20.2.1978, claiming that Smt.Devki had died before the utilization of the surplus land and her legal heirs had inherited the land, whereby each one of them was a small land owner now. She accordingly prayed that a fresh determination of surplus area, if any, at the hands of legal heirs of Smt.Devki, deceased, be made. Another objection petition was also filed by Smt.Nikki alongwith other heirs that no fresh CIVIL WRIT PETITION NO.4881 OF 1982 :{ 5 }: proceedings need to be held to determine the surplus area in the hands of Smt.Devki as she was already dead and land had been inherited by her heirs. Collector, Agrarian, however, brushed aside the objections and proceeded with the case to determine the surplus area afresh at the hands of Smt.Devki. This action was impugned by Smt.Nikki alongwith other heirs by filing a revision before respondent No.2. The stand taken in response to this revision was that no fresh proceedings had been started but these were only to deliver possession of the allotted surplus area to the concerned tenants. The revision petition was dismissed on 14.9.1982 and against this order, the petitioners filed writ petition before this Court. While issuing notice of motion on 5.11.1982, dis- possession of the petitioners from the land in dispute was stayed. During the pendency, notices dated 5.11.1982 were issued, which were not received by the petitioners. Accordingly, they could neither challenge the notices nor the order of allotment issued to respondent Nos.4 to 10, which are now annexed with the petition as Annexures P-11 to P-20. Subsequently, permission was sought to amend the writ petition to challenge the notices as well as the allotment. This amended writ petition came up for hearing before Single Judge of this Court, who vide his order dated 9.3.1998, came to conclude that the land has been utilised. This finding of the Single Judge was primarily based on the contents of written statements, about which the observations were also made by the Financial Commissioner in its order dated 14.9.1982. The findings of the Single Judge in this regard are reproduced below:- “Admittedly, Devki died on 1.9.1973 and the petitioners are CIVIL WRIT PETITION NO.4881 OF 1982 :{ 6 }: claiming her property under a Will executed by Devki. When the orders dated 28.12.1961 became final with the dismissal of the appeal filed by Devki on 20./9.1962, it is not open to the petitioners to challenge the said orders after the death of Devki. Notices issued in the 1977 are notices for determining the area in the hands of Devki or her legal representatives. The surplus area which has been determined in 1961 has already been utilised by allotment to various eligible tenants. When the same was already utilised, the question of re- determination does not arise. There is nothing on record to show that the orders determining the surplus area under the provisions of Punjab Security of Land Tenures Act, 1953 have not been implemented. The learned counsel for the petitioners relied upon a decision of the Full Bench in Ranjit Ram Vs. The Financial Commissioner, (1981 P.L.J. 259), but on the facts of this case, the Full Bench decision has no application to the facts of this case. In that case, the adult sons are entitled to have a permissible area in their own right. Therefore, it was held that if the landowner has a adult son, he shall be entitled to select separate permissible area for his son out of the land of the landowner or held by the landowner. But in this case, Devki had no son. She had only one daughter Nikki. Nikki has no right in the property as such. Therefore, she is not entitled to claim any property during the life time of Devki. Therefore the case of Ranjit Ram (supra) is not applicable to the case on hand. The learned counsel also relied upon a decision in Jagjit Singh and others Vs. State of Punjab and another, (1983 P.L.J. 319). That case also has no application since in that decision, the proceedings under the Punjab Security of Land CIVIL WRIT PETITION NO.4881 OF 1982 :{ 7 }: Tenure Act were pending when the Punjab Land Reforms Act came into force. In such a situation, it has been held that the surplus area has to be decided in accordance with the provisions of Punjab Land Reforms Act. The Financial Commissioner on the basis of the material on record held that the surplus area as determined in the year 1961 has been utilised by allotment to various eligible tenants. In this view of the matter, I do not find any ground warranting interference with the orders under challenge. The writ petition, therefore, fails and is accordingly dismissed.” Aggrieved against the above finding returned by the Single Judge, the petitioners filed a Letters Patent Appeal and the Division Bench of this Court vide its judgment dated 10.8.2004 took a view that the allotment to various eligible tenants did not amount to utilisation of the surplus land and that the land as such, had not been utilized. This finding ofcourse was in the background of the averment made in the written statement filed by the State, in which it was stated that the land stood utilized and was allotted to the tenants, who had also not been impleaded as parties. The L.P.A Bench observed that averment in the written statement would not be enough to hold that the land was utilized. Bench accordingly remanded the case back to Single Judge to grant opportunity to the petitioners to implead the tenants, who were allotted the land and also gave opportunity to the State to place on record the material or the evidence, showing that the land had been utilized. Through an application filed by the petitioners, the order passed by the LPA Bench has now been placed on record. The relevant observations of the Division Bench, while remanding the case, is as under:- “Be that as it may, the finding recorded by the learned Single Judge regarding utilisation of the land, which as mentioned CIVIL WRIT PETITION NO.4881 OF 1982 :{ 8 }: above, is based upon the averments in the written statement and at the most, order of the Financial Commissioner, is not justified at all. This aspect of the case, in our considered view, needs to be determined afresh, which is possible only by setting aside order of learned Single Judge and remitting the matter for determination of the question, as referred to above. In the proceedings before the learned Single Judge, on remand, the petitioners may choose to implead the tenants, to whom the land was allotted, as party-respondents. The State may also supplement the records in its endeavour to show that the land had since been utilized, if it be a fact, before the Act of 1972 came into being or Devki died. In totality of the facts and circumstances of this case, as fully detailed above, we remand this case for determination of the crucial question pertaining to utilisation of land before the advent of the Act of 1972 or death of Devki.” Thereafter the petitioners have filed an application under Order 6 Rule 17 CPC, seeking amendment of the writ petition by impleading the tenants as respondent Nos.4 to 10. This amendment was allowed and the amended writ petition was taken on record. Notice was issued to the newly added respondents. The State has filed a fresh written statement but the respondent-tenants, chose not to file any written statement. This is how now this amended writ petition is before this Court for a decision. Mr.O.P.Goyal, learned Senior Counsel, would submit that the earlier finding returned by the learned Single Judge was set-aside by the Division Bench by observing that this finding was only on the basis of a written statement filed or as per the order of Financial Commissioner and no material standing in support of this was taken into consideration. The State was given opportunity to file a fresh written statement and the CIVIL WRIT PETITION NO.4881 OF 1982 :{ 9 }: material, which they would have and would wish to place on record in support of their submissions that the land stood utilised. Learned Senior Counsel would point out to the previous statement and the one now filed by the State to urge that no fresh material has been placed on record by the State to show that the land has been utilized. The basis on which the earlier finding came to be recorded that the land has been utilized, was only due to the stand taken in the written statement. That stand of the State was not accepted by the LPA Bench and accordingly the impugned order was set-aside while remanding the case back for fresh decision. Since the State has not been able to place on record any material showing that the land stood utilized and the tenants, who have now been impleaded, have not chosen to file any written statement showing that they are either in possession of the land or that this land has been utilized, the situation is as it was before LPA Bench. The necessary consequences of this have, therefore, to follow. The material, thus, would be deficient to show that this land, which was declared surplus at the hands of Smt.Devki, stood utilized. Reference is made to the cases of Ranjit Ram Vs. The Financial Commissioner, Revenue, Punjab and others, 1981 P.L.J. 259, Smt.Ajit Kaur and others Vs. The Punjab State and others, 1980 P.L.J. 354. In Ranjit Ram's case (supra), it is held that where a big land owner is not divested of land declared surplus under the Tenure Act before commencement of the Punjab Land Reforms Act, he is entitled to select permissible area for his family and for his adult sons. In Ajit Kaur's case (supra), it is held that where surplus and permissible areas were determined under the Tenure Act or Pepsu Tenancy Act and thereafter land owner died, resulting in acquisition of the holding by his heirs, the protection to the heirs in the matter of determining surplus area under Section 11(5) of Punjab Land Reforms Act will be fully available. This question is not disputed by the State. As to when can land be said to be CIVIL WRIT PETITION NO.4881 OF 1982 :{ 10 }: utilized can be seen from Financial Commissioner, Haryana and others Vs. Smt.Kela Devi and another, 1980 P.L.J. 121. As per this case mere allotment does not amount to utilization. For allotment, it is necessary to obtain certificate of allotment; to take possession of land and to execute Patta or Qabuliat. Thus, it can be said that the land, which was declared surplus at the hands of Smt.Devki, was not utilized till the time of her death as the steps as required to be taken in Smt.Kela Devi's case (supra) were not complete. The necessary consequences thereof would be that the land, which was declared surplus with Smt.Devki, will have to be re-determined in terms of the law laid down in Ranjit Ram and Smt.Ajit Kaur (supra). In view of this legal position, the prayer made in the writ petition deserves to be allowed. It is so ordered. The impugned order, Annexure P-1, declaring 21 standard acres 14-3/4 units of land of Smt.Devki as surplus and Annexure P-2, where some changes were reflected while declaring the land of Devki as surplus are hereby quashed. The matter will go back to the competent authority to consider and decide the case of surplus land of the petitioners in view of the law laid down and noticed above. There shall be no order as to costs. February 16,2009 ( RANJIT SINGH ) khurmi JUDGE