C.W.P. No.3540 of 1985 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.3540 of 1985 Date of Decision. 02.11.2011 Bant Singh and others .....Petitioners Versus The Financial Commissioner, Punjab and others .....Respondents 2. C.W.P. No.70 of 1986 Kirpa Singh s/o Khushi Ram .....Petitioner Versus The Financial Commissioner, Punjab and others .....Respondents 3. C.W.P. No.71 of 1986 Bakhtawar Singh son of Shri Fateh Singh .....Petitioner Versus The Financial Commissioner, Punjab and others .....Respondents 4. C.W.P. No.72 of 1986 Ram Chand son of Balu Ram .....Petitioner Versus The Financial Commissioner, Punjab and others .....Respondents 5. C.W.P. No.73 of 1986 Rabi Singh and others .....Petitioners Versus The Financial Commissioner, Punjab and others .....Respondents Present: Mr.Sarjit Singh, Senior Advocate with Mr. Vikas Singh, Advocate and Ms. Shikha Sharma, Advocate for the petitioner. Mr. Anil Kumar Sharma, Addl. A.G., Punjab for respondent Nos.1 to 3. C.W.P. No.3540 of 1985 -2- Mr. Animesh Sharma, Advocate for respondent No.4 in C.W.P. No.3540 of 1985 & C.W.P. No.70 to 72 of 1986 and for respondent Nos.4 to 7 in C.W.P. Nos.73 of 1986. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J. 1. All the 5 cases are connected and they seek to challenge the orders passed by the Financial Commissioner, who disposed of a batch of 5 civil revisions filed under the provisions of the Pepsu Tenancy and Agricultural Lands Act of 1953 (hereafter referred to call as “President’s Act”). The case was in relation to the ownership of lands that had admittedly vested with one Niranjan Singh. The applications had been filed by several persons claiming as tenants under Niranjan Singh and seeking for proprietary rights as having fructified in their favour by virtue of the provisions of the President’s Act. The big land-owner Niranjan Singh appears to have filed a declaration within the stipulated period under the President’s Act reserving 30 standard acres for his self- cultivation. A notification had been made that the Collector, Patiala under Section 6 (1) of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to call as the “Act of 1955”) treating 47.51 standard acres as the property held by the land owner as within his reserved area. The increase from 30 standard acres to 47.51 acres became possible by the new provisions in the Act of 1955 providing for certain exemptions for certain classes of properties and certain exemptions that came through the consolidation proceedings. C.W.P. No.3540 of 1985 -3- 2. Amongst the tenants, one person by name Kirpa Singh applied for grant of proprietary rights under Section 20 of the Act of 1955 read with Section 7-A of the said Act. The prescribed authority passed an order dated 14.11.963 allowing the claim of the tenant in respect of a portion of the land and rejected the claim in respect of the remaining, which formed part of the reserved area of the land of the land owner for self- cultivation. An appeal had been filed by the tenant against the portion of the claim, which was rejected by the prescribed authority to the Collector and the latter allowed the appeal filed by the tenant on the principal ground that due opportunity had not been given to the tenant to lead the whole of his evidence and remanded the matter to the prescribed authority for fresh consideration. The prescribed authority passed an order enlarging the area of entitlement to the tenant for proprietary rights that admitted of 66 Kanals 1 Marla. The prescribed authority held that these lands could not have been reserved by the landowner, while the tenant had proved the substance of tenancy in those Khasra Nos. covered within that extent before the commencement of the 2nd Amendment Act of 1956. He also allowed for proprietary rights to obtain for another 18 Kanals of land on the ground that the tenant proved the substance of tenancy for a period of 12 years preceding the commencement of the President’s Act. The very exercise of reservation of all the lands made by the land owner had also been disputed by the tenant but the prescribed authority did not allow such a contention to be raised as a matter not having been made subject of dispute before the Collector and not the subject of remand. 3. Both the owner and tenant went in appeal to the Collector again C.W.P. No.3540 of 1985 -4- against the said order. While the contention of the tenant was that the prescribed authority had not given a finding on the validity of the reservation made by the land owner, the land owner contended that the prescribed authority had not examined as to whether the tenant had been in continuous possession of the particular parcels of land for which proprietary rights had been claimed and that further the compensation amount had itself not been properly calculated. The respective objections of the parties found favour of the Collector, who again remanded the matter by his order dated 30.12.1966 for fresh decision on (i) whether the reservation made by the land owner was valid and if so, whether the same was covered by Section 7-A(2) of the Act of 1955 and (ii) whether any particular parcel of land had been held by the tenant for 12 years continuously to be favoured with a proprietary right in respect thereof. The compensation was also required to be recalculated keeping in view the objections of the land owner that after consolidation, the rate of land revenue had also changed. The prescribed authority passed a detailed order on 29.01.1971 holding that (i) the reservation made by the land owner was valid since the application of the land owner had been made on 11.05.1954 within the stipulated period of six months; (ii) Banjar land could be included in the reserved area and such reservation was not defective on that score; (iii) the area reserved and notified on 26.04.1963 was 47.51 standard acres since the valuation of the land had increased during the period after reservation and after consolidation operations had taken place. Dealing with the second issue of whether the tenant had been in continuous possession for more than 12 years preceding the crucial date namely C.W.P. No.3540 of 1985 -5- 3.12.1953 i.e. after the commencement of the President’s Act, he found that the tenant had not proved his possession and that he was not entitled to proprietary rights in Khasra No. reserved by the land owner. However, the prescribed authority found that in respect of some other land, the tenant had proved his continuous possession measuring 12 Kanals and 18 Marlas from Kharif 1956, which comprised the unreserved area of the land owner and granted to him the proprietary rights in respect of that land. He also directed suitable calculation as regards compensation to be done by the Collector. 4. This order of the prescribed authority was sustained by the Collector in appeal and in revision by the Financial Commissioner. At the backdrop of factual details, the points urged by the learned Senior Counsel appearing on behalf of the petitioner, as was done before the Financial Commissioner, were: (i) the reservation was not valid since the area could not have been reserved to the extent of 47.15 standard acres; (ii) Banjar land could not have been included in the reserved land; (iii) reservation under the President’s Act could not have exceeded 60 standard acres; (iv) the land held by the tenant for a period of 12 years before the President’s Act had been substantiated by appropriate evidence on record from 1941; (v) in column IV(a) of Form 7-A to be filled in by the land owner, the reserved area was considered to be an area under personal cultivation and the permissible extent being 30 standard acres, the land owner could not have been reserved a larger extent and such a larger extent could not have been allowed to remain with the land owner to prevent a tenant from acquiring proprietary rights in respect thereof. C.W.P. No.3540 of 1985 -6- 5. Since I am examining the validity of the quasi-judicial orders, the permissible contours of judicial reappraisal could only be to see whether there is any error in application of law or a misjudgment of facts brought before it, which were clearly off the mark. The Financial Commissioner’s order brings out clearly the following: When the notification of reservation was made by the Collector on 16.04.1963 after the consolidation proceedings were over, the valuation of land had increased but the total land remained the same. There was no bar against inclusion of the Banjar land within the selected area, for the definition of land under Section 32-N(3) included Banjar land and this is applicable to whole of Chapter IV-A of the Act of 1955. The Financial Commissioner reasoned that it is no moment of reckoning that Banjar land provided was valued only in the year 1957 and since the Collector’s order had been passed after 1957 i.e. in the year 1963, the contention that the definition of Banjar land contained under Section 32-N(3) does not apply to the proceedings. Acquisition of proprietary rights is bound to be rejected, for the issue in this case is whether definition would be applicable to proceedings to which Chapter IV-A applies. This point has been squarely answered by a Division Bench of this Court in Abdul Latif Khan Vs. The State of Punjab and others 1971 PLJ 197 where the Court held that for the purposes of Pepsu Act, 1955, land would include Banjar land and gair mumkin land. This point is again urged before me by the learned Senior Counsel appearing for the tenants. I am bound by the decision of the Division Bench and there is simply no justification for deviation from the law laid down. Learned counsel’s reference to a decision in Nemi Chand Jain Vs. The Financial Commissioner, Punjab C.W.P. No.3540 of 1985 -7- and another 1963 PLJ 137 that held that banjar jaded and banjar qadim are not “land” within the meaning of Punjab Security Land Tenures Act will obtain no relevance since the said decision was actually considered in Abdul Latif Khan’s case and the Division Bench in the said case took note of the fact that the said decision would apply to cases under the Punjab Act and not to cases under Pepsu Act having particular reference to the definition of standard acre in Section 2(i) of the Pepsu Act, which defined standard acre as a measure of land convertible with reference to the yield from, and the quality of, the soil, into an ordinary acre according to the prescribed scale and Section 2(m) of Pepsu Tenancy and Agricultural Lands Act provided that all other words and expressions used in the Pepsu Act which are not defined in the Punjab Act, shall have the meanings assigned to them under the Pepsu Act. In so far as Section 32-N(3) of the Pepsu Act defines a land to include Banjar Land, it makes a deviation from what the Punjab Act provides. Since the definition of permissible limit includes the land held in possession of land owner or tenant, which he is entitled to retain, the land owner is competent to include the Banjar land as falling with the permissible area and meant to be reserved by him for his personal cultivation. The Bench reasoned that conversion of standard acres into ordinary acres will have to be made first and not vice versa and it followed that Banjar lands has to be first calculated from standard acres to ordinary acres and the question of their conversion into standard acres again does not arise. Learned counsel appearing for the petitioner contends that Nemi Chand Jain was approved by the Hon’ble Supreme Court in Munshi Ram etc. Vs. The Financial Commissioner Haryana C.W.P. No.3540 of 1985 -8- etc. 1979 PLJ 182. It does not really make any difference since it is not the point here that Nemi Chand Jain was not correctly decided. On the other hand, in Abdul Latif Khan, an argument was pressed that if the view proposed to be taken in Abdul Latif Khan doubted the correctness of Nemi Chand Jain, it was bound to be referred to a Larger Bench but the Division Bench rejected such a plea only because it found that the consideration under Pepsu law was different and therefore, there was no need to apply the law laid down in Nemi Chand Jain. I cannot also accept a plea that 32-N applies only to Chapter IV-A that deals with surplus proceedings and does not apply to Chapter II and Chapter IV. This issue has also been considered in Abdul Latif Khan and I am not prepared to allow the issue to be reopened again. As regards the question of whether the petitioners had been in possession of property for 12 years continuously, the learned Senior Counsel would rely on the decision of the Hon’ble Supreme Court in Inder Singh and another Vs. Financial Commissioner, Punjab and others (1997) 11 SCC 206 to point out that 12 years possession is not required to be before 1953 and what is necessary is that he must be shown to have been in continuous possession for 12 years before exercising the right of purchase under Section 22. If a tenant is not liable to ejected under Section 7-A then the requirements of Section 22 for purchase of property will be satisfied if on the day when he filed the application, he proves 12 years possession. In this case, it is not merely an issue of the tenant being unable to adduce proof of possession for 12 years prior to the President’s Act. The prescribed authority had found that there was wide variance with reference to specific Khasra Nos. cultivated but also C.W.P. No.3540 of 1985 -9- the area cultivated by the tenant. This finding of the prescribed authority was confirmed by the Collector. The Financial Commissioner himself was not prepared to re-examine the issue in revision on a pure factual consideration by the prescribed authority and the Collector. I have no reason to reopen the issue on fact again as regards alleged proof of the tenant as having been in possession of 12 years prior to the filing of the petition under section 22. 5. The order of the Financial Commissioner that has considered all the aspect of law and facts would not require to be interfered with. All the writ petitions are dismissed. (K. KANNAN) JUDGE November 02, 2011 Pankaj*