Civil Writ Petition No.5659 of 1982 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 11, 2009 Harkarnail Singh & others ...Petitioners VERSUS Financial Commissioner, Appeals, Punjab, Chandigarh & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.B.R.Mahajan, Advocate, for the petitioners. Mr.P.C.Goyal, Addl.A.G.Punjab, for respondent Nos.1 & 2. None for L.Rs. of respondent No.3. ***** RANJIT SINGH, J. The petitioners, who are the L.Rs. of late Hardit Singh, have filed this writ petition for quashing of order, Annexure P-7, passed by the Financial Commissioner rejecting the application filed by the petitioners for re-determining the area earlier declared surplus Civil Writ Petition No.5659 of 1982 : 2 : with their father Hardit Singh on the ground that the area so declared surplus had not been utilised till the death of late Hardit Singh. Petitioner Nos.1 to 4 are sons of Hardit Singh, whereas petitioner No.5 is his widow. He owned a land in Chak No.8/60 in Tehsil Nankana Sahib of District Sheikhupura, now in Pakistan. After partition, Hardit Singh migrated to India and was allotted agricultural land in village Tripari, District Ambala (now District Rupnagar) as a displaced person. Surplus area case of late Hardit Singh was first decided by Collector, Ambala on 18.4.1959, but it had to be decided afresh as the surplus was required to be determined after excluding the value of Banjar Qadim land. Accordingly, the Collector Agrarian, Kharar declared 8 standard acres and 4/1-2 units of land with Hardit Singh as surplus on 6.10.1960. Order in this regard is Annexure P-1. The counsel submits that area so declared surplus, however, was never utilised by re-settlement of tenants thereon. It appears that the small area measuring 9 Bighas and 3 Biswas was allotted to respondent No.3 sometime in the year 1970. As per the petitioners, the possession of the same, however, was never delivered to respondent No.3. The petitioners would also plead that allotment of this land could have been made only after taking possession of the surplus. The petitioners, thus, plead that the allotment in favour of respondent No.3 was pre-mature and without jurisdiction. In support of the plea that possession was not delivered to the allottees, reference is made to an application filed by respondent No.3, Annexure P-2. On the basis of this application, Civil Writ Petition No.5659 of 1982 : 3 : notice was issued to late Hardit Singh to hand over the possession of the land declared surplus within ten days of receipt of the notice. This order dated 27.11.1974 is annexed with the petitioner as Annexure P-3. Late Hardit Singh filed objections against this order, which were rejected by Collector Agrarian as time barred. This order is dated 5.1.1976. Hardit Singh filed an appeal against this order before Commissioner, Patiala Division, Patiala, which was allowed on 3.3.1976 and the case was remanded to Collector Agrarian for deciding it afresh. On remand, the Collector Agrarian, Kharar again dismissed the objections of the land-owner late Hardit Singh on 21.4.1976. Order for utilisation of the surplus area under the rules was accordingly made. Late Hardit Singh thereafter filed an appeal against this order, which was dismissed on 15.1.1979. He accordingly filed a revision before the Financial Commissioner, Punjab on 16.5.1979. This revision was admitted and dispossession of the land-owner from the land in question was stayed. During the pendency of the revision petition, Hardit Singh died on 25.8.1979 and accordingly the present petitioners were impleaded as L.Rs. of late Hardit Singh in the revision pending before the Financial Commissioner, which was allowed. On account of death of late Hardit Singh, the present petitioners moved another application on 28.12.1981 pleaded that the surplus area at the hands of the petitioners is required to be re- determined as the area declared surplus at the hands of Hardit Singh had not been utilised. In this regard, the petitioners sought support from the ratio of law laid down in Smt.Ajit Kaur and others Vs. The Punjab State and others, 1980 P.L.J.354. The Financial Civil Writ Petition No.5659 of 1982 : 4 : Commissioner, however, did not accept this plea of the petitioners and by taking some additional evidence through Teja Singh, respondent No.3, on record and without notice to the petitioners held that land stands already utilised, though the possession of the same had never been delivered to Teja Singh. The copy of this order is annexed with the petition as Annexure P-7. Aggrieved against the same, the petitioners filed the present writ petition before this court. While issuing notice of motion, dispossession of the petitioners was stayed. Writ petition was then admitted and that is how it has now come up for hearing. A written statement on behalf of State has been filed. As per the stand of the State, out of the surplus land declared at the hands of Hardit Singh, a land measuring 9 Bighas 3 Biswas was allotted to Teja Singh son of Chhajja Singh and physical possession was delivered of 6 Bighas 5 Biswas to the allottee vide rapat No.91 dated 20.11.1970 of Roznamcha Waqiati of Patwari Circle Tripari. It is further stated that the possession of the remaining area measuring 2 Bighas 18 Biswas was given on demarcation. It is also stated that the allotment of the land was made in accordance with law and rules and possession was delivered accordingly. The stand of the State accordingly is that the surplus area was declared during the life time of Hardit Singh and same had been utilised in his life time and as such the Financial Commissioner was justified in holding that the land stood utilised. According to the State, no case for fresh determination, as such, was made out. Written statement on behalf of respondent No.3 was also filed. A preliminary objection is raised that the surplus land was Civil Writ Petition No.5659 of 1982 : 5 : utilised in accordance with law and rules on 21.11.1970 in the life time of Hardit Singh. As per his stand, physical possession of 6 Bighas 5 Biswas out of the allotted land, which was vacant, was delivered to him vide rapat No.91 dated 20.11.1970 of Roznamcha Waqiati of Patwari Circle Tripari. Respondent No.3 also claims the possession of the remaining land which was given by way of demarcation. He (respondent No.3) has disclosed in his reply that respondent sowed and cultivated the land measuring 6 Bighas 5 Biswas, but was forcibly dispossessed by Hardit Singh and his son Harkarnail Singh. He then makes a reference to the civil suit, which he filed for recovery of 1/3rd of the produce of land for 5 crops from Kharif 1970 to Rabi 1972 under Section 77(34) of the Punjab Tenancy Act, 1887. A decree of Rs.341-85P. in favour of answering respondent was accordingly passed. It is also mentioned that the respondent was declared as owner of the land while Hardit Singh and Harkarnail Singh were recorded as tenants. It is stated that this decision of the Assistant Collector still holds the field. Counsel for the petitioners points out that during the pendency of this petition, respondent No.3 Teja Singh has expired on 10.4.1988. He submits that Teja Singh had left behind no legal heir to the knowledge of the petitioners, who could be impleaded in his place. The counsel submits that none has even come forward for being impleaded as legal heir of late respondent No.3. Reference here may be made to provisions of Order 22 Rule 2-B CPC, as amended for States of Punjab, Haryana and Chandigarh, which provide that duty to bring on record the legal representatives of the deceased-defendant shall be of the heirs of the deceased and not of Civil Writ Petition No.5659 of 1982 : 6 : the person who is dominus-litis. The counsel would then refer to Order 22 Sub-rule (3) of Rule 4 CPC, as amended by this court for State of Punjab, Haryana and Chandigarh, where Rule 4(3) stands substituted by providing that where within the time limited by law no application is made under sub-rule (1) the suit shall not abate as against the deceased-defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. Sub-rules (4) , (5) and (6) have been inserted after Order 22 Rule-4 (4)CPC provides that person claiming to be legal representative may apply for setting-aside the decree qua him and if it is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on record, then the court shall set-aside the decree upon such terms as to costs or otherwise as it thinks fit. Sub-rule (5) may also be relevant, which provides that Court must be satisfied prima-facie that had the legal representative been on record a different result might have been reached in the suit. Accordingly, the death of respondent No.3 during the pendency of the writ petition would not detain this court to decide the issue on merits. From the contrasting pleas raised on behalf of the petitioners and the State, it is first required to be determined whether the land, which was declared surplus, stood utilised or not. Counsel for the petitioners would refer to the observations made in the case of Financial Commissioner, Haryana and others Vs. Smt.Kela Devi and another, 1980 P.L.J.121 to indicate the steps which would be essential to complete the utilisation of a land or area declared surplus. It is observed in this case that the allotment of a land is an Civil Writ Petition No.5659 of 1982 : 7 : initiate stage in the process of utilisation of surplus area and it does not complete the process because it is necessary for the allottee to obtain a certificate of allotment, take possession of land within period specified for the purpose and to execute a “Qabuliat” or “Patta” in respect thereof. It is accordingly observed that the process of utilisation contemplated by Section 10-A of the Act is complete in respect of any “surplus area”, only when possession thereof has been taken by the allottee or the allottees and the other formalities have been completed. The argument that mere order of allotment would have the effect of completing the process was rejected as having no force. The counsel, thus, would contend that land declared surplus with the father of the petitioners was not utilised. To say that the possession of the land was not handed over to respondent No.3, the counsel would refer to application, Annexure P-2, filed by respondent No.3 himself in the year 1972. In this application, respondent No.3 has mentioned as under:- “3. That the possession of the allotted land could not be delivered physically as some crops were standing on it. It was told that actual possession will be surrendered by the respondent after cutting the crops. 4. The respondent has not given up the possession uptill now and is not willing to deliver the possession to the applicant”. Having so averred, respondent No.3 then made a prayer in this application for delivery of actual physical possession to him in the interest of justice. Reference is made to Annexure P-3, which is an order dated 27.11.1974 passed by the Collector Agrarian, Kharar Civil Writ Petition No.5659 of 1982 : 8 : directing the petitioners to hand over the possession of the above- mentioned land to Naib-Tehsildar, Kharar within ten days of the receipt of this notice. The counsel for the petitioners would, thus, urge that till 1972 or for that matter till 27.11.1974, the possession of the land had not been handed over to the allottee. Otherwise there was no reason for the authorities to pass an order of handing over possession to Naib-Tehsildar. These are the orders which the petitioners had challenged before the Commissioner and then before the Financial Commissioner. While dealing with the case, Financial Commissioner had stayed the dispossession of the petitioners. It is, thus, obvious that possession of the land declared surplus was never handed over. There is no other indication from the record to show that any step to complete utilisation of this land declared surplus was ever taken or initiated. During the pendency of the petition before the Financial Commissioner, Hardit Singh died. Thus, it can be seen that the land was not utilised in terms of the law during the life time of Hardit Singh. If that is the factual position, which would emerge from the pleadings on record, then the effect of this is also required to be seen. In this regard, the counsel for the petitioners would rely upon a Full Bench decision of this court in Ranjit Ram Vs. The Financial Commissioner, Revenue, Punjab and others, 1981 P.L.J. 259 to say that where the land owner whose land is declared surplus under the Tenure Act and who is not yet divested of ownership of surplus area before commencement of Land Reforms Act, he is entitled to select the permissible area for his family and for each adult son in view of the provisions of Section 4 read with Section 5(1) of the Land Civil Writ Petition No.5659 of 1982 : 9 : Reforms Act. Counsel for the petitioners would also seek support from the decision of the Hon'ble Supreme Court in the case of Ujjagar Singh (dead) by L.Rs. Vs. The Collector Bhatinda and another, 1996 PLJ 505, where the Full Bench decision of this court in Ranjit Ram's case (supra) has been approved. Similar view is taken by the Hon'ble Supreme Court in the case of Hernek Singh Vs. Financial Commissioner, Appeals, Punjab, AIR 2003 (SC) 2151. There does not seem to be much dispute in this proposition of law. This is otherwise also a settled position in terms of the judgment passed by Full Bench of this court, which had been approved by the Supreme Court. The necessary consequence is that the surplus land declared with late Hardit Singh would re-open on his death as the same had not been utilised during his life time. I have already noticed that the documents on record would clearly show that the land declared surplus with Hardit Singh had not been utilised. Accordingly, the case of surplus at the hands of L.Rs. of Hardit Singh, i.e., the petitioners would have to be re-considered by the competent authority. The present writ petition accordingly deserves to be allowed and is so ordered. The impugned orders passed by the Collector, Commissioner and Financial Commissioner, thus, cannot be sustained and are set-aside. The case is remanded back to the Collector to re-consider the case of surplus at the hands of the petitioners in view of the law laid down and as noticed above. He would take further action in accordance with law in case he finds that any land is still surplus with the petitioners. The parties shall bear Civil Writ Petition No.5659 of 1982 : 10 : their own costs. February 11, 2009 ( RANJIT SINGH ) ramesh JUDGE