C.W.P. No. 4321 of 2004 1 In the High Court of Punjab and Haryana at Chandigarh C.W.P. No. 4321 of 2004 Date of decision: 02 -07-2008 Gopal Singh (deceased) now represented through his legal representatives (1) Daljit Singh Padda (2) Ranjit Singh and (3) Ramanjit Singh Padda. ........... Petitioner Vs. Financial Commissioner and others .....Respondents .... Coram: Hon'ble Mr. Justice K.S.Garewal Hon'ble Mrs. Justice Daya Chaudhary Present: Mr. Karminder Singh, Advocate for the petitioner Mr. N.S.Virk, Additional Advocate General, Punjab K.S.GAREWAL, J. This petition was filed by late Gopal Singh who left village Bhoma, Tehsil Batala, District Gurdaspur for about 3 decades. His land was being looked after by his grand son who was appointed his attorney. Apparently in 1960 an exchange had taken place between Gopal Singh and Bakshish Singh, whereunder khasra No.35//17/3 (2 Kanals-12 Marlas) was given by Bakshish Singh to Gopal Singh. Apparently this land was shared equally between Bakshish Singh and his brother Sohan Singh. Therefore, Gopal Singh's share was 2 Kanal and 12 Marlas, being half of 5 Kanal and 4 Marla in khasra No.35//17/3. However, in the proceedings under the Punjab Land Reforms Act half share of Bakshish Singh in khasra No.35//17/3 was declared surplus on July 1, 1975 by the Collector vide order Annexure P-1. C.W.P. No. 4321 of 2004 2 The petitioner's case is that Sohan Singh, brother of Bakshish Singh, had fraudulently got declared 2 Kanals 12 Marlas as surplus which was in fact Gopal Singh's ownership and he had received the same in exchange in 1960. In 1989 the Collector had issued a notice to the petitioner to explain his position. The petitioner's attorney appeared before the Collector and clarified the position that the petitioner had 2 Kanals 12 Marlas from Bakshish Singh and not from Sohan Singh, therefore, it could not be declared as surplus. The petitioner filed an appeal before the Commissioner wherein he also pleaded that he had no knowledge about the proceedings before the Collector, Agarian. He had obtained land in exchange in 1960 and this could not be declared surplus as being a part of the surplus land of Sohan Singh. The Commissioner dismissed the appeal. The matter came before the Financial Commissioner who decided the case on July 18, 2002. The case was decided in the absence of the counsel for the petitioner. It was held that:- “ the petitioner had obtained only the ½ share of Sohan Singh whereas the Collector Agrarian has declared the ½ share of Bakshish Singh surplus. Accordingly the petition is dismissed. The Collector Agrarian may now take over possession of the area declared surplus after rectifying the error in his order dated 1.7.1975.” Under the Punjab Land Reforms Act, land is declared surplus as per its ownership on the appointed day. Any transfer of land before the appointed date has to be excluded from the holding and cannot be declared surplus. In the present case land was transferred by Bakshish Singh through an exchange in 1960. If this position is correct then the land which had C.W.P. No. 4321 of 2004 3 been taken by the petitioner in exchange could not be declared surplus in the hands of either Bakshish Singh or his brother Sohan Singh. The Financial Commissioner had not considered this factor in his order. Therefore, quite clearly petitioner's land has been ordered to be taken over as surplus land of Bakashish Singh without adverting to the provisions of Punjab Land Reforms Act which protect alienations made before the appointed day from being considered. The order of the Financial Commissioner is set aside. Matter is remanded back to the Commissioner for fresh decision, which shall be taken after verifying if the exchange had really taken place in 1960. In case it is found that land had been exchanged in 1960, this factor shall be taken into consideration and the surplus area shall be redetermined. ( K.S.GAREWAL) JUDGE (DAYA CHAUDHARY) JUDGE July 02, 2008 RSK NOTE: Whether to be referred to the Reporter or not?