CWP No.6103 of 1988 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.6103 of 1988 Date of decision:09.03.2011 Hukam Chand and another ..... Petitioners Versus Financial Commissioner (Appeals) Punjab, Chandigarh and others ..... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.A.K.Chopra, Senior Advocate with Mr.Harminder Singh, Advocate for the petitioners. Mr.S.S.Sahu, AAG, Punjab for the respondents. ***** RAJIVE BHALLA, J.(ORAL) The petitioners sole prayer is that as the land in dispute was sold to them before it was declared surplus, it should be included in the permissible area of the big landowner. Counsel for the petitioners submits that out of 40 kanals of land purchased by the petitioners, 25 kanals of land has been included in the permissible area of the big landowner but for reasons that are neither tenable nor discernible 15 kanals and 7 marlas of land, have been included in the surplus area. It is further submitted that if land purchased by the petitioners is included in the permissible area, of the big landowner, it would not affect the rights of the State as equal land owned by the landowner would be declared surplus. It is further submitted that as the big landowner did not make a selection, he had no right to make a fresh selection under sub-rule 2-A to Rule-5 introduced CWP No.6103 of 1988 -2- by the Punjab Land Reforms (Second Amendment) Rules, 1976. It is further submitted that sub-rule 2-A to Rule-5 of the Rules, provides an opportunity to a big landowner to make a fresh selection only if the landowner has not furnished a declaration or the declaration so furnished is false to the knowledge of the big landowner. As the big landowner had already filed his declaration he had no right to make a fresh selection under sub rule-2-A to Rule 5 of the Rules. The finding that the Collector had no power to modify the choice made by the landowner is legally incorrect. It is prayed that the impugned order should be set aside and the land purchased by the petitioners should be included in the permissible area of the big landowner. Counsel for the State of Punjab submits that the Collector has no jurisdiction to vary the choice made by the landowner and to include land purchased by the petitioners in the permissible area of the big landowner. The Collector, the Commissioner and the Financial Commissioner have therefore, rightly rejected the petitioners prayer that their land be excluded from surplus area. It is further submitted that while purchasing the land in dispute, the petitioners were aware that the land is likely to be declared surplus and therefore, cannot invoke any equity in their favour. I have heard counsel for the parties and perused the impugned orders. As is apparent from the record, the big landowner filed a declaration of his landholding in Form-A, on 22.09.1973. The big landowner however did not select his permissible area. The petitioners CWP No.6103 of 1988 -3- purchased 40 kanals of land on 30.05.1974 during surplus area proceedings and thereafter filed an application for grant of an opportunity of hearing. The big landowner taking advantage of sub rule 2-A of Rule 5, introduced by an amendment in the year 1976, filed a fresh declaration on 26.05.1976 setting out khasra numbers selected as permissible and surplus area. Pursuant to this selection 15 kanals of land purchased by the petitioners prior to the selection was declared surplus. The petitioners filed an appeal against this order which was dismissed. A revision filed against this order was also dismissed. The petitioners filed a writ petition wherein orders passed by revenue officers were set aside and the Collector was directed to grant an opportunity of hearing to the petitioners. The Collector once again rejected the petitioners plea for inclusion of their land in the permissible area on the ground that the selection made by the big landowner cannot be altered by the Collector. An appeal and a revision filed by the petitioners was dismissed by the Commissioner and the Financial Commissioner. As is apparent from the facts, the original declaration filed by the big landowner did not contain khasra numbers selected as permissible/surplus area. Before declaration of surplus area, the big landowner sold land to the petitioners. The big landowner filed a fresh declaration under sub rule 2-A to Rule-5 of the Rules by including a part of the land sold to the petitioners in surplus area. The question that arises for adjudication is whether the big CWP No.6103 of 1988 -4- landowner had any right to make a fresh selection under sub rule2-A to Rule 5 of the Rules. Sub rule 2-A to Rule-5 of the Rules reads as follows: - “(2-A) If any person referred to in sub-Rule(2) failed to furnish the declaration within the period specified in sub-rule 2 or furnished a declaration, 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 furnish a declaration within a period of thirty days from the date of commencement of the Punjab Land Reforms (Amendment) Act, 1976.” A plain reading of sub rule 2-A clearly establishes that only such person may make a fresh selection as has not filed a declaration or has filed a declaration which is false or which the big landowner knows or has reason to believe to be false. The big landowner admittedly filed a declaration on 22.09.1973. The big landowner has neither pleaded and nor has it been held, that the initial declaration was false or incorrect. The finding recorded by the Financial Commissioner that the fresh selection is valid as the landowner has merely completed an incomplete declaration, disregards the import of sub rule 2A to Rule 5 as it grants a right to file a fresh declaration under sub rule-2A to a person who has not filed a declaration or where the declaration so filed is false. The finding, in my considered opinion, cannot be sustained for another reason. The Act empowers the Collector where the landowner does not file a declaration, to select his permissible/surplus area. It would also be necessary to mention that while dismissing the petitioners revision, CWP No.6103 of 1988 -5- the Financial Commissioner has held that the sale deed executed by the petitioners is bonafide. A relevant extract from the order passed by the Financial Commissioner (Appeals), Chandigarh reads as follows: - “Although it does not seem from the record of the case that the purchase made by the petitioner was collusive, there is no reason to consider that the Collector and the Commissioner acted illegally or outside their jurisdiction or even committed a material irregularity in including the disputed area in the surplus area of the landowner.” In view of what has been stated hereinbefore, the writ petition is partly allowed, the order dated 11.05.1988, passed by the Financial Commissioner (Appeals), Chandigarh, is set aside and the matter is remitted to the Financial Commissioner (Appeals), Chandigarh, for adjudication afresh and in accordance with law. Parties are directed to appear before the Financial Commissioner (Appeals), Chandigarh,on 02.05.2011. 09.03.2011 [ RAJIVE BHALLA ] shamsher JUDGE