IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.270 of 1984 (O&M) Date of decision: 29.09.2011 (1) Karam Chand (2) Dewan Chand sons of Mehtab Ram, residents of Mandiwal, Tehsil and District Ferozepur. ....Petitioners versus The State of Punjab, through Secretary (Revenue), Punjab Government, Chandigarh, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Vikas Bahl, Advocate, and Ms. Deepika Kadiyan, Advocate, for the petitioners. Mr. Navdeep Sukhna, DAG, Punjab, for respondents 1 to 4. None for respondents 5 to 9. Mr. Gourav Chopra, Advocate, and Mr. Vinod Khunger, Advocate, for respondents 10 to 12. ---- K.Kannan, J. 1. The petitioners, who claim to be legal representatives of Mehtab Ram, alienee from the landowner, Bakhshi Ram challenges the order of the disposal of lands after the property was declared as surplus by the competent authority under the Punjab Security of Land Tenures Act, 1953. The basis of contention of the petitioners is that Bakhshi Ram was the original owner and he had sold certain portions of his holding on 07.04.1960 to the petitioners' father. The authorities had declared that Bakhshi Ram had owned property in excess of the ceiling area and the property sold by him had also been Civil Writ Petition No.270 of 1984 (O&M) - 2 - included as surplus. Consequently, when the allotments had been made in the year 1963-64, they had included the property over which the petitioners had a rightful claim. They would, therefore, challenge in particular the allotments made in favour of respondents 10 to 12 to an extent of 37 kanal-13 marlas on 05.07.1964 and 28 kanal-18 marlas was allotted to the 12th respondent on 02.11.1963. 2. The principal contest is entered by the allottees stating that the determination of surplus area by the competent authority was made on 12.11.1962 and the said order was challenged as late as in the year 1975. Responding to the contention that the petitioners had not been served with any notices, the counsel appearing on behalf of the allottees would contend that such a plea itself does not arise, for, no notice was required to be sent to persons whose names had not been entered in the revenue records. There had been no mutation of entries in favour of the petitioners or the petitioners' father pursuant to the alleged sale said to have been made by Bakhshi Ram on 07.04.1960. In any event, the petitioners had known about the proceedings and had not participated in the same by making any objections. It was also contended on behalf of the respondents that the petitioners themselves have been set up only by their brother Gehna Ram, who sought to assail the allotments in their favour and finding that such an attempt was foiled, he has set up his own brothers, namely, the petitioners, challenging the allotments. Civil Writ Petition No.270 of 1984 (O&M) - 3 - 3. The counsel for the petitioners states that as purchasers of the land, they were entitled to be heard and after the death of their father, the petitioners as legal heirs ought to have been served with notices. The learned counsel refers to the fact that the Collector failed to note that even if the mutation itself had been sanctioned subsequently, the entries in khasra girdawari for the year 1959-60 clearly showed the sale in favour of the petitioners' father Mehtab Ram. These entries were also relevant which the revenue officials must have taken note of and the Collector could not have taken a decision of surplus without issuing a notice on that basis. The learned counsel for the contesting respondents points out that it is exceedingly suspicious that these khasra girdawaris had been entered in the year 1959-60 itself. The entries could have become possible only after mutation had been effected consequent to a sale and when it is an admitted fact that the mutation had been made only in the year 1964, it was inconceivable as to how the khasra girdawari could have carried the entries in the year 1959-60. The learned counsel points out that the document had not been filed either before the Collector or the Commissioner and they are brought before this Court for the first time. The counsel for the petitioners, however, would make an issue on the fact that the Government has not denied the entries. I cannot accept the plea of the counsel that since the Government has not denied the same, it ought to be true. On the other hand, if the petitioners make a Civil Writ Petition No.270 of 1984 (O&M) - 4 - reference to the entries in khasra girdawari which is maintained by the State and when the correctness is contested by the private individual as a person affected, it cannot be expected that the State could deny the same. The private respondents' contest is that there has been some form of collusion with some officials in the State to allow for such a kind of correction. I cannot place my reliance on khasra girdawari in a situation where it was not referred to anywhere in the proceedings before the Collector or the Commissioner. I would also accept the plea that the entry itself could not have been possible without a mutation having been brought on the basis of the purchase. We have already observed that the mutation relating to sale was only subsequent to the order passed by the Collector in the year, 1962. 4. The learned counsel for the petitioners states that the landowner-Bhakshi Ram had truly played a fraud on the petitioners by not adverting to the sale which he had effected. Originally as seen from the Collector's order, the landowner-Bakhshi Ram had given his selection of his permissible area in the year 1958 in Form 'E'. The learned counsel refers me to Form 'E' to show that the properties were comprised in khasra Nos.183, 189, 43 and 47. The learned counsel refers to the portion of properties that had been purchased by their father which were renumbered in so far as the properties were concerned as comprising within the very same khasra numbers by the landowner and included in R-12/8, R-5/13, Civil Writ Petition No.270 of 1984 (O&M) - 5 - R5-/7/2 and R-12/3. According to him, the property which had been sold previously shown within the permissible area and the purchaser would have been protected by the declaration originally made. However, when the surplus was declared, the landowner had deliberately allowed for exclusion of these properties from out of his permissible limits and they were allowed to be treated as surplus. The counsel for the petitioners points out that when notices had been issued to the alienees of even such person who had purchased the properties subsequent to 1958 only the petitioners' father had been left out. As a matter of fact, in relation to the property allotted to yet another persons, namely, Dera and Sharfu, the petitioners' brother had raised his objection and the objection was also upheld and the allotments were set aside. The same ought to have been done even in respect of the allotments done to respondents 10 to 12. 5. The learned counsel for the respondents contends that this incident clearly points out to the collusion between respondents 6 and 7, who were Gehna Ram and Kanshi Ram, who were the real brothers of the petitioners. After having the allotments made to Dara and Sharfu set aside, they had actually made an attempt to implead themselves and seek for setting aside the allotments made to the respondents 10 to 12 as well. The Commissioner rejected the plea and only after such a rejection was made, the petitioners had been set up to raise their objections. The counsel for the respondents points out that if the knowledge of the proceedings were to be Civil Writ Petition No.270 of 1984 (O&M) - 6 - imputed to the petitioners, the petitioners ought to have certainly known about the same when their brothers challenged the allotments and sought for impleadment. When their attempt was repulsed in the year 1968, there was simply no reason why the petitioners did not immediately take notice of the same and object to the allotments and challenge the declaration of surplus. There was no justification whatever for the laxity of the petitioners from the years 1968 to 1975, when they filed an appeal against the order of declaration of surplus before the Commissioner in the year 1975. 6. The learned counsel for the petitioners, would point out to the fact that the Commissioner actually accepted the contention in his order dated 10.11.1975 that the petitioners were entitled to the notice and there had been a fraud practiced by Bakhshi Ram, he had, therefore, condoned the delay in filing the appeal and directed the matter to be decided by the Collector afresh. That is, precisely the right which the petitioners claiming for now. The counsel for the respondents points out that this order had been passed ex parte and, therefore, an application was filed being setting aside the ex parte order passed on 10.11.1975. The Commissioner reappraised his own finding and found that the earlier order passed by him had been without notice to the respondents and the appeal filed by the petitioners was required to be heard on merits. Adverting to the merits subsequently, the Commissioner accepted the contention of the respondents and relied on the decisions rendered by this Court Civil Writ Petition No.270 of 1984 (O&M) - 7 - relating to the persons, who were entitled to notice and found that the petitioners was not entitled to such notice. 7. The issue on entitlement to notice or otherwise would require to be examined with reference to decisions of this Court. The counsel for the petitioners refers to the decision in Dharam Vir Versus Financial Commissioner, Haryana 1980 PLJ 403 that held that the expression “owner” would include his transferee as well and if a transferee had not served with notice of the proceedings, there was no question of limitation when the transferee had challenged the same by an appeal, after he came to know about it. This proposition had been authoritatively laid down by a Full Bench in Harnaik Singh Versus State of Punjab 1971 PLJ 727. Yet another decision in Hardev Singh Versus The State of Punjab (DB) 1971 PLJ 283 reiterates the same proposition that notice has to be issued to persons mentioned in Form D. These decisions were pitted against certain other decisions by the counsel for the respondents as to how the rule as to notice has to be understood. The decision of a Full Bench ruling in Ashok Kumar Versus The State of Haryana and others- 1974 PLJ 456, was cited to contend that where parties have known about the continuance of proceeding, they shall not be heard to complain about want of notice. This is in the context of the objection by the respondents that the allotments had been made to the respective respondents 10 to 12 in the year 1963-64 and possession had already been delivered to them but a challenge to Civil Writ Petition No.270 of 1984 (O&M) - 8 - such allotments was made for the first time only in the year 1975, after their brothers failed in their attempt to set aside the allotments. The learned counsel for the respondents also refers to the decision in Hardev Singh and others Versus The State of Punjab and others- 1971 PLJ 2, that held that only such persons, whose names might be mentioned in Form 'D' prepared by the Patwari or whose names were shown in the relevant revenue records available with the Circle Revenue Officer, would require to be served with notices. 8. It is not the petitioners' contention that either their names or their father's name had ever been entered and mutation effected in their names. The reference to the petitioners’ father in khasra girdhawari was extremely suspect, as I have already held above. I also see the force of the arguments raised by the respondents that the petitioners have been set up only after the attempt of their brother, who is arrayed as the 6th respondent, failed to secure the relief, challenging the allotments in favour of the respondents 10 to 12. The proceedings of the Commissioner, Ferozepur Division, has adverted to this issue and has entered a finding on the fact that the Patwari has not included the names of Gehna Ram or the other legal representatives of Mehtab Ram in the revenue records and they had known all along that the property purchased by them was declared as surplus area of Bakhshi Ram. Civil Writ Petition No.270 of 1984 (O&M) - 9 - 9. The learned counsel for the respondents also refers to a judgment of the Hon'ble Supreme Court in Lajpat Rai and others Versus the State of Punjab and others-1981 PLJ 316, that held in relation to the proceedings under the Punjab Security of Land Tenures Act of 1953 that inclusion of even the transferred land in the surplus area of the transferor would not affect the right of ownership of transferee and the authorities would be entitled to settle tenants on such lands. Even the authority to the effect that the allotment itself will not be rendered invalid is another way of saying that the transferee's right would have to be independently considered. In this case, the transfer has come about subsequent to the crucial date of 30.07.1958 which would be relevant for exclusion if the sale had taken place before the said date. For any transaction subsequent to the same, issuance of notice would still be relevant, but, in this case, we have already examined that even such notice could not be a relevant issue, for, the transferees had not obtained mutation and the authorities could not be faulted for proceeding to determine the surplus even without notice to alleged transfers. 10. There is no scope for intervention in the impugned proceedings and the challenge to the same is rejected. The writ petition is dismissed. (K.KANNAN) JUDGE 29.09.2011 sanjeev