IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.4858 of 1983 (O&M) Date of decision: 04.10.2011 Shmt. Kamlesh Rani widow of Parkash Chand of Village Thathal, Tehsil and District Hoshiarpur, now resident of House No.526, Sector 36-B, Chandigarh. ....Petitioner versus The State of Punjab, through the Secretary, Revenue Department, Punjab Government at Chandigarh, and others. ....Respondents II. Civil Writ Petition No.5531 of 1983 (O&M) Himat Kumar alias Hemant Kumar, and others ....Petitioners versus The State of Punjab, through the Secretary, Revenue Department, Punjab Government at Chandigarh, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Prem Nath Aggarwal, Advocate, for the petitioners. Mr. Navdeep Sukhna, DAG, Punjab, for the respondents. ---- 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 subject of challenge in both these writ petitions is the issue of assessment of surplus under the Punjab Land Reforms Act of 1972 (in short, 'the 1972 Act') and the relevant rules framed thereunder. In CWP No.4858 of 1983, the petitioner is the widow Civil Writ Petition No.4858 of 1983 (O&M) - 2 - of one Prakash Chand, who was the landowner, whose holdings came under the scanner of Punjab Land Holdings Act. Initially, action had been taken against Prakash Chand but when he was reported to have died on 18.12.1975, the proceedings had been dropped and the case was taken up after mutations in the revenue records. When the mutations had taken place after the inheritance had opened to his legal heirs, the total holdings by the petitioner and the four children had been assessed at 19.7319 hectares of first quality and after allowing for 7 hectares being the permissible area, the rest of the land of 12.7319 hectares of the first quality had been declared as surplus. Against this order, an appeal has been filed before the Commissioner, Jalandhar Division. The appeal was also dismissed on 29.09.1978. She had preferred a revision before the Financial Commissioner which was also dismissed. A review petition also came to be dismissed. In CWP No.5531 of 1983, the eldest son Himat Kumar, two minor sons of Prakash Chand and the major daughter of Prakash Chand, are the petitioners challenging the assessment made as regards surplus. 2. The learned counsel for the petitioners would point out to the fact that the properties had been situate in Hoshiarpur and Garhshankar tehsil of Hoshiarpur District as per para-1 of Schedule- B of the Punjab Land Reforms Rules in respect of the lands situate in the above said tehsils, the coverage area shall be reduced by 25%. Admittedly, the lands were situate in the Village Thathal and the Civil Writ Petition No.4858 of 1983 (O&M) - 3 - Nalohian in Tehsil and District of Hoshiarpur. The contention is that the total chahi land had been wrongly taken as 58 kanal and 2 marlas whereas according to the Goshwara/Chart prepared by the Revenue Officers as on record of the Collector, Hoshiarpur, they were only 14 kanals-6 marlas. This wrong reference was on account of the fact that prior to the death of her husband, the total extent had been given as 58 kanals-2 marlas as per jamabandi for the year 1971-72, but it was not relevant. As per the Punjab Land Reforms Rules, 1973 (for short, the 1973 Rules'), Rule 12 requires the relevant revenue records for determining whether the property at chahi cultivation was only the khasra girdawari record of the year, 1970. The petitioner has also some grievance about the reckoning of the extent of barani land. While 778 kanals-17 marlas had been taken as barani, the actual extent should have been considered as 822 kanals-13 marlas as barani. 3. The petitioner would also contend that 41 kanals-3 marlas comprised of four killas as gair mumkin and were kharkana, lying vacant in rabi and kharif year of 1970. They should have been valued as kharkana and not as barani. In the manner of application of Section 4(2) of the 1972 Act, where land consists of two or more classes, the permissible area shall be determined on the basis of relevant valuation of such classes of land subject to the condition that it does not exceed 21.8 hectares. In this case, the properties were comprised of 4 classes and even if all the holdings of the Civil Writ Petition No.4858 of 1983 (O&M) - 4 - petitioner were to be clubbed together, the petitioner and children were entitled to 21.8 hectares and not merely 7 hectares as allowed to them. If such a reckoning were to be made, it shall be seen that there was no surplus land at all. 4. As regards the first contention of the application of 25% reduction in the coverage area for the lands which were situate in Schedule-B of the 1973 Rules, I would hold that the objection is well founded. Schedule-B reads as follows:- SCHEDULE 'B' (See sub-rule (4) of rule 9) (1) Where land is irrigated by water drawn from a privately owned tubewell, pumping set or bore, the area of land having assured irrigation and capable of yielding at least two crops in a year shall be determined as follows:- (i) in the case of tubewell or pumping set or bore worked with 3 H.P. or more but less than 5 H.P. Motor-3 hectares per tubewell or pumping set or bore; (ii) in the case of a tubewell or pumping set or bore worked with a 5 H.P. or more but less than7-1/2 H.P.-5 hectares per tubewell or pumping set or bore; (iii) in the case of tubewell or pumping set or bore worked with not less than 7-1/2 H.P. motor-5 hectares per tubewell or pumping or bore; Civil Writ Petition No.4858 of 1983 (O&M) - 5 - Provided that in the case of Sunam and Barnala Tehsils of the Sangrur district, the Bhatinda district, the Faridkot district, Hoshiarpur, Garhshankar and Balachaur tehsils of the Hoshiarpur district. The Pathankot tehsil of the Gurdaspur district, the Rajpura tehsil of Patiala district and National Extension Service Blocks, Khuian Sarvar and Abohar in the Ferozepure district, the Ropar district except Chamkaur Sahib National Extension Service Block, the coverage of area shall be reduced by 25 per cent.” The issue of application of these Rules has been considered also in a decision of this Court in Malkiat Singh Versus The State of Punjab and others in CWP No.443 of 1986, decided on 04.05.2005, where this Court had set aside, in a similar situation of lands being in the specified tahsils, the order and remitted the matter to the Collector (competent authority) for making a fresh calculation. I would find the omission to refer to the benefit of reckoning under Rule 9(4) of the Punjab Land Reforms Rules read with Schedule-B was erroneous and the respective petitioners in the above writ petitions are entitled to a fresh reckoning on such basis. Further in the manner of reckoning, the declaration of the Collector had not become final and all the petitioners have become majors. A fresh reckoning will have to be made for determination of the permissible area. Section 7 of the Punjab Land Reforms Act sets out the power of the Collector Civil Writ Petition No.4858 of 1983 (O&M) - 6 - to determine the permissible area. In terms of the said Section, the respective holdings of the petitioner would require to be reappraised and each of the adult members other than wife or husband shall be taken to be a separate unit, due regard being had to the definition of family under Section 3(4) dealing with 'permissible area'. Although the learned counsel for the petitioners has referred to certain decisions relating to error in procedure of not serving notices to minor children through their guardians or appointing guardians, I will not make them as relevant now, since I am putting the matter before the Collector (competent authority) for fresh determination. The character of lands as Banjar Qadim/Kharkana will have to be examined in the context of the revenue entries for the year relevant year 1970 as per Rule 13 of the Punjab Land Reforms Rules. 5. The impugned orders are set aside and remitted to the Collector for fresh determination in the light of the observations made above. 6. The writ petitions are disposed of as above. (K. KANNAN) JUDGE 04.10.2011 sanjeev