IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14998 of 1990 (O&M) Date of decision:10.05.2011 & Civil Writ Petition No.15182 of 1990 (O&M) Sewa Singh and others ...Petitioner s versus Financial Commissioner (Appeals), Punjab, Chandigarh and another. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. R.C.Setia, Senior Advocate, with Mr. Vishal Ranjan, Advocate, for the petitioners. Mr. K.S.Sivia, DAG, Punjab, for respondent No.1. None for respondent No.2 ---- 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. (Oral) 1. Both the writ petitions require an adjudication of the validity of the order of the Financial Commissioner that rejected revision applications filed by the landowner. The Financial Commissioner was confirming the earlier orders passed by the Commissioner dismissing an appeal filed by the landowner. The Commissioner had earlier confirmed the orders passed by the Collector on 04.09.1986, under the terms of which the Collector directed purchase applications filed by the tenants to be taken up, after recording the surplus area of the petitioners' father Civil Writ Petition No.14998 of 1990 (O&M) - 2 - Faqir Chand. The area of controversy at the instance of the petitioners was that there had been at no point of time any finalization of surplus area of Faqir Chand. It is contended that at the time when the order was made on 04.09.1986, father Faqir Chand had already expired on 06.11.1984 and the property had fallen through inheritance to his sons and consequently, there could not be a direction for consideration of purchase application of a tenant without deciding the landowner's reserved area. 2. Mr. Setia, learned senior counsel appearing on behalf of the petitioners, would rely on a judgment of the Division Bench of this Court in Jee Ram and others Versus Gobind and others-1971 PLJ 766 to contend that when an application is made under Section 18 of the Punjab Security of Land Tenures Act for purchase and there had been no reservation by the landowner, the first thing that will have to be done by the Collector is to make a reservation for the landowner under Section 5-B of the said Act. It is after the reservation that a tenant would become entitled to purchase the land which is declared surplus and of which he is the tenant, provided he satisfies the remaining requirements of Section 18. It is an admitted position that the property itself has not been declared surplus and the property has not also been taken possession of by the Government to consider the purchase application of the tenant. 3. This assumes significance in the light of the subsequent event of the death of Faqir Chand in the year 1984 when the matter was remanded by the Collector. The learned counsel refers to two decisions which have a direct bearing to the facts at hand. In Ujjagar Singh Civil Writ Petition No.14998 of 1990 (O&M) - 3 - (dead) by his LRs Versus the Collector, Bhatinda and another-AIR 1996 Supreme Court 2623, a 5-Member Bench of the Hon'ble Supreme Court considered the fact of a property remaining in possession of the landowner till the commencement of the Punjab Land Reforms Act and the incidence of vesting as contemplated under the said Act. This decision was rendered in the context of Pepsu Tenancy and Agricultural Lands Act where a claim of tenancy and an enforcement of right to purchase was considered in a situation when the possession remained with the landowner and when a determination had not been made under the Punjab Land Reforms Act. The decision made reference to an earlier ruling of the Hon'ble Supreme Court itself in Financial Commissioner, Haryana Versus Smt. Kela Devi -AIR 1980 Supreme Court 309 that dealt with the situation of a claim under Punjab Security of Land Tenures Act, 1953. Dealing with Section 10-A(a) that enabled the State Government or any officer empowered by it in that behalf to utilize any surplus area for the resettlement of tenants ejected or to be ejected, the Court held that unless the possession had been taken of the surplus area by the State Government or on its behalf, the right, title and interest of the full owner was not extinguished and such surplus area never vested in the State Government. 4. This position is further fortified by a Division Bench of this Court in Jasbir Kaur and another Versus Financial Commissioner (Appeals), Punjab and another-1996 PLJ 205 that dealt with Sections 8, 11, 5(1) and 4 of the Punjab Land Reforms Act. The Division Bench held that vesting of surplus area in Government would not take place till Civil Writ Petition No.14998 of 1990 (O&M) - 4 - (i) land owner exercises his right to select the permissible area; (ii) Government takes possession of surplus area after selection of the permissible area by landowner; and (iii) land has been utilized by the Government. Making reference to the fact of death of landowner during the pendency of proceedings for determination of surplus area, the Bench ruled that it was incumbent on authorities to redetermine surplus area in the hands of the original owners. This situation is directly attracted to this case where no vesting had taken place, for, at no point of time, as I have already observed was there any determination of any holding beyond the permissible area. The only determination was that beyond the landowner's permissible area, the tenant's permissible area had been determined under the Punjab Security of Land Tenures Act. The property had never become vested in the Government yet and if the Collector's direction was that the tenant purchase application must be considered, it was clearly wrong, for, it conflicts with the law laid down by the Hon'ble Supreme Court referred to above and the Division Bench ruling brought through Jasbir Kaur's case referred to above. The directions of the Collector which were approved by the Commissioner and the Financial Commissioner were, therefore, erroneous and they are liable to be quashed. 5. The learned counsel also argues for a position that the purchase application filed by the tenant could not be entertained under Section 18 of the Punjab Security of Land Tenures Act, especially when by the terms of the Land Reforms Act, a determination was required to be made for the permissible area of the sons of Faqir Chand, who was the Civil Writ Petition No.14998 of 1990 (O&M) - 5 - original landowner. If at all, a purchase right could be exercised only after determination of the respective permissible area of the heirs of the landowner. That application would again require to be filed within one year from the date of commencement of the Act. I am not prepared to consider this issue, for, it becomes irrelevant in the light of my earlier holding that after the death of the original landowner Faqir Chand, the sons were entitled to make a declaration and express the reserved area and computation of the permissible area under the Land Reforms Act. The impugned orders are, consequently, quashed. 6. The heirs of the landowner Faqir Chand are at liberty to give a declaration of holding in terms of Sections 4 and 5(1) of the Land Reforms Act of 1972. The competent authority under the Land Reforms Act is also entitled to serve a notice on the landowners if there exists any holding of property beyond the permissible area and if such a notice is issued, the heirs shall have an opportunity to exercise their options under Section 5 before the determination of the permissible area. Under Section 7 of the Land Reforms Act of 1972, any action for entertaining a plea by any of the tenant's for purchase for the property could arise only if there exists surplus area that is finalized in accordance with the Act. The writ petitions are allowed subject to directions given above. (K.KANNAN) JUDGE 10.05.2011 sanjeev