CIVIL WRIT PETITION NO.1904 OF 1991 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 13, 2011 Sudesh Inder Singh .....Petitioner VERSUS State of Punjab and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Gaurav Chopra, Advocate, for the petitioner. Mr. Deepak Gupta, Advocate, for respondent No.3. **** RANJIT SINGH, J. This order will dispose of Civil Writ Petition Nos.1904 and 2580 of 1991. The petitioner, a big land owner is still fighting to retain land which was declared surplus with him long ago in the year 1976. CWP No.1904 of 1991 Collector Agrarian Bathinda had declared 0-26 hectare of land of the petitioner as surplus on 30.9.1976. The Collector separated the surplus land suo motu from the land owned by the land CIVIL WRIT PETITION NO.1904 OF 1991 :{ 2 }: owners and thereafter issued a notice under Section 9(1) of the Punjab Land Reforms Act, 1972 (for short “the Act”). This notice was received by the brother of the petitioner on behalf of the petitioner. Before the possession could be taken, the petitioner obtained a stay of dispossession from Commissioner on 10.2.1977. Accordingly, the petitioner alleges that before taking possession of the land under Section 9(1) of the Act, it was wrongly allotted to respondent No.3 by the Collector on 30.8.1983. The copy of the allotment order is annexed with the petition as Annexure P-1. The petitioner had then challenged the allotment made in favour of the allottee by filing appeal before the Commissioner. The ground was that no notice was served personally upon the petitioner and in the absence of notice and without taking possession, the land could not have been allotted to the allottee. The appeal filed by the petitioner was dismissed by the Commissioner on 23.7.1985. The petitioner impugned this order before the Financial Commissioner, who also dismissed the same on 13.11.1990. The petitioner accordingly has filed this writ petition to impugn these orders passed by the Commissioner as well as by the Financial Commissioner on the ground that these are illegal and against the provisions of the Act. The ground of attack as raised by the petitioner is that no notice under Section 9(1) of the Act was served personally upon the petitioner and the land was allotted without taking possession. Plea, thus, is that the land did not vest in the State and is still in the ownership of the petitioner and allotment is only a paper and sham transaction. CIVIL WRIT PETITION NO.1904 OF 1991 :{ 3 }: Reply is filed. The facts as alleged in the writ petitions are disputed. As per the reply, the possession of the area declared surplus was taken on 27.5.1977 vide Raprat No.445 and at that time, no stay order was produced by the petitioner. The respondents have also denied the averment that notice under Section 9(1) of the Act was not served upon the petitioner and in this regard copy of the notice is enclosed with the reply to urge that the land was rightly allotted to respondent No.3 under the Punjab Utilisation Scheme, 1973 on 30.8.1983. The respondents accordingly would plead that the order passed by the Commissioner and Financial Commissioner are perfectly legal and justified and hence the writ petitions be dismissed. CWP No.2580 of 1991 In this case, land measuring 1.5856 hectare of petitioner Balwinder Singh was declared surplus on 18.12.1975. A notice under Section 9(1) was issued on 22.12.1975, which was received back with the report dated 18.2.1976 that the petitioner had got a stay order in his favour. The petitioner in fact had obtained a stay on 18.12.1975 in an appeal before the Commissioner, which, however, was dismissed on 26.9.1978. It is stated that notice under Section 9 (1) of the Act thereafter was served on 15.1.1976, whereas there was already a stay passed by the Commissioner in operation. Grievance is that no fresh notice was served after dismissal of the appeal for delivery of possession and in the absence of this notice, the land would not vest in the State and the possession thereof continues with the petitioner. Here again the petitioner would urge that the land was wrongly allotted by the Collector to respondent No.3 on 30.8.1983, CIVIL WRIT PETITION NO.1904 OF 1991 :{ 4 }: which the petitioner impugned by filing appeal before the Commissioner. The ground of challenge as raised is the same in this case as well. It is pleaded that in the absence of notice and without taking possession, the land could not have been allotted to respondent No.3. The appeal filed before the Commissioner against the order of allotment, however, was dismissed on 23.7.1985. Revision filed before the Financial Commissioner is also dismissed on 13.11.1990 and these two orders have been impugned through this writ petition. Plea in response to this challenge in this case also is the same as raised in Civil Writ Petition No.1904 of 1991 and that is how these writ petitions have been heard together and are being decided through this common order. Mr.Gaurav Chopra, learned counsel appearing for the petitioners in both the cases has raised an identical argument to submit that the petitioners would continue to be the owners of the land till they were divested of the same by taking possession. Once the possession was not taken, the land would not vest in the Government and hence could not have been allotted. He accordingly pleads that the order of allotment is illegal and without jurisdiction against which the petitioners can maintain a challenge. The Commissioner as well as Financial Commissioner have noticed that the petitioners in both the cases have never challenged the notice under Section 9(1) nor had challenged the order whereby the land allotted was declared surplus. Both the petitioners have only challenged the allotment letter. The counsel for CIVIL WRIT PETITION NO.1904 OF 1991 :{ 5 }: the respondents in this background has urged that the petitioners would have no locus to challenge the allotment letter as this is an issue between the State and the allottee with which the petitioners would have no concern. The counsel for the petitioners, however, would still maintain that the petitioners would continue to be the owners of the land though declare surplus and can maintain a challenge to the order of allotment. The counsel for the petitioners was asked to show the locus of the petitioners to challenge the allotment letter as apparently this was in matter which was between the State and the allottee. It cannot be disputed that the petitioners in both the cases were issued notice under Section 9(1) of the Act for taking possession. In one case the notice was received by brother of the petitioner, who is petitioner in another case and that, in my view, would be an adequate and a proper notice of service on the petitioner in his case of surplus. In the second writ petition, the originally notice was issued, but it was returned by the Tehsildar on account of stay. The said notice was again served to the petitioner. Once these notices were served on the petitioner, then there was no requirement of serving a fresh notice for taking possession once the stay was vacated upon dismissal of the appeal by the Commissioner. The petitioners in both the cases have never challenged the notice under Section 9(1) of the Act nor the original order whereby the land was declared surplus. They have only challenged the allotment order issued on 30.8.1983. CIVIL WRIT PETITION NO.1904 OF 1991 :{ 6 }: Financial Commissioner has noticed that before allotting this surplus area of big land owners, possession was taken by the State vide Rapat Rojnamcha No.906 dated 22.8.1983 in CWP No.2580 of 1991. It is accordingly held that land vests in the State. The Financial Commissioner has rightly observed that if the petitioners had any grouse against the order declaring land surplus, they should have challenged the same and the notice under Section 9(1) of the Act by filing a revision. The factual position in this regard as would emerge from the record is that notice under Section 9(1) was issued on 22.12.1975 to deliver possession within ten days. This notice was received back with the report of Naib Tehsildar on 18.2.1976 that the petitioners had got a stay in their favour. The appeal pending before the Commissioner was dismissed on 26.9.1978 and thereafter Naib Tehsildar Nathana was directed by the Collector through a letter dated 3.2.1979 to take possession of the surplus area and to sanction the mutation in favour of the State. Copy of the notice under Section 9(1) of the Act was also sent alongwith this letter. The reminders were also issued for compliance and accordingly the possession was taken on 22.8.1983. Mutation No.13142 was also sanctioned in favour of the State on 23.8.1983 and the Collector had allotted the land. It may also need a notice that notice under Section 9(1) to the petitioner in CWP No.1904 of 1991 was sent to the land owner CIVIL WRIT PETITION NO.1904 OF 1991 :{ 7 }: on 19.1.1977 which was received by Balwinder Singh, his brother, who is petitioner in CWP No.2580 of 1991. On 20.5.1977, the Collector sent reminder to Naib Tehsildar for service of a notice under Section 9(1) which had not been received back after compliance. Naib Tehsildar sent a report dated 22.6.1977 to the effect that the possession under Section 9(2) had been taken vide Rapat 445 dated 27.5.1977. Since the Commissioner had granted stay in an appeal filed by the land owner, which was dismissed later, the possession was again taken vide Raprat No.910 dated 24.8.1983. It is thereafter that land was allotted on 30.8.1983. In the background of factual position as noticed, the submission made by the counsel for the petitioners that the possession was never taken is neither made out nor can be accepted. That being a position, the petitioners obviously would have no locus to challenge the allotment made in favour of the allottee as after the land having been declare surplus would vest in the State upon taking of possession thereof. The petitioners would be left with no right or a locus to challenge this allotment. The land will vest in the State once the possession is taken. In support of this proposition reference can be made to Bal Singh Vs. Swaran Singh and others, 1980 PLJ 531. In Sher Singh and others Vs. Financial Commissioner of Planning, Punjab and others, AIR 1987 SC 1307, it is held that the right on the land declared surplus get vested in the Government to be distributed amongst the tenants for re- settlement and that this is an indefeasible right that the Government secures. It is further observed that the land owner could not get back CIVIL WRIT PETITION NO.1904 OF 1991 :{ 8 }: the land, if the surplus had not been utilised. There is no time limit imposed on the Government to utilise the land declared surplus and there is no provision in the Act which enables the land owner to claim back the land declared surplus if not utilised. In view of what is noticed above, there is no merit in the writ petitions and these are accordingly dismissed. July 13, 2011 ( RANJIT SINGH ) ramesh JUDGE