CWP No.7526 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 5.1.2011 CWP No.7526 of 1989 Rajinder Kaur and others .....Petitioners Vs. Financial Commissioner (Revenue) Punjab and others ....Respondents CWP No.9854 of 1989 Ripudaman Kaur (deceased) through her legal representatives .....Petitioners Vs. Financial Commissioner (Revenue), Punjab and others ....Respondents CWP No.9226 of 2002 Pushpinder Singh and others ....Petitioners Vs. Financial Commissioner (Appeals) Punjab and others ....Respondents CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.R.S.Chauhan, Advocate for the petitioners. Ms.Anupal, AAG, Punjab for respondents no.1 and 2. Mr. P.N. Aggarwal, Advocate for respondents no.3 to 6 and legal representatives of respondents no.2, 8 and 18. .... RAJIVE BHALLA, J This order shall dispose of CWP Nos.7526 of 1989, 9854 of 1989 and 9226 of 2002, as they involve adjudication of identical questions CWP No.7526 of 1989 2 of fact and law. The petitioners in CWP Nos.7526 and 9854 of 1989 pray for issuance of a writ in the nature of Certiorari for setting aside the order dated 28.11.1986, passed by the Financial Commissioner, Revenue Punjab, Chandigarh, whereas the petitioners in CWP No.9226 of 2002, pray for issuance of a writ in the nature of Certiorari for setting aside the order dated 25.2.2002, passed by the Financial Commissioner Appeals, Punjab. Bhagwan Devi was admittedly a big landowner. The Collector declared 409 S.A. and 14 Units of land belonging to Bhagwan Devi as surplus, vide order dated 22.5.1962. Bhagwan Devi passed away on 1.7.1964 but before her demise executed a registered will dated 4.10.1957 in favour of the petitioners. The petitioners approached the Collector for redetermination of surplus area on the plea that they have inherited the land in dispute.. The Collector, Agrarian, Ferozepur, forwarded a request to the Commissioner, Jalandhar Division, Jalandhar, for permission to review the order dated 22.5.1962. The Commissioner granted permission to review, vide his order dated 12.5.1965. As land was situated in different districts, the case was transferred to the Special Collector, who vide order dated 15.1.1969, held that each of the seven legatees of Bhagwan Devi is entitled to an independent unit of land. This order was challenged by respondents no.2 to 18, allottees of surplus area, before the Commissioner, Jalandhar Division, Jalandhar, who dismissed the appeal on 18.8.1969. The Collector, thereafter, vide order dated 24.4.1972 declared 17 Standard Acres and 2.1/4 Units as surplus. Respondents no.2 to 18 filed an appeal before the Commissioner, which was dismissed on 3.9.1976. A revision filed by respondents no.2 to 18 before the Financial Commissioner CWP No.7526 of 1989 3 (Appeals), Punjab was dismissed on 15.12.1983. On 9.3.1984, the State of Punjab filed an application for review of these orders. The Financial Commissioner allowed the application for review, set aside the order dated 15.12.1983 and all other orders by holding that in view of Section 10-A(b) of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as `the Act'), the petitioners are not entitled to reopen surplus area proceedings that have attained finality in 1962 or to an independent unit, on the basis of the registered Will dated 4.10.1957, as a will cannot be equated with inheritance. Counsel for the petitioners submits that the impugned order is illegal and void, as the order dated 15.1.1969 passed by the Special Collector holding that the petitioners are entitled to a separate unit each, on the basis of Will dated 4.10.1957 was not impugned before any forum. The Financial Commissioner had no jurisdiction to set aside this order, much less by exercising the power of review. It is further submitted that power of review is confined to correction of errors on the face of record but the Financial Commissioner transgressed the limits of his jurisdiction and proceeded to decide the matter as if he were hearing an appeal or a revision. It is further submitted that Section 10-A (b) of the Act does not exclude inheritance by way of a Will, as such an interpretation would be violative of the rights of parties. It is submitted that as Section 19-B(1) of the Act, provides that a person, whether as landowner or tenant acquires, after commencement of this Act by way of inheritance or by bequest or gift from a person to whom he is an heir any land such a person is required to file a return of his landholding before the Collector, it is apparent that devolution of property by a Will is not excluded from the purview of Section 10-A(b) CWP No.7526 of 1989 4 of the Act. It is further argued that a combined reading of Sections 10-A (b), Section 10-B and 19-B(1) of the Act clearly establishes that a bequest by way of a Will has to be honoured by authorities under the Act and if the land has not been utilised during the life time of the testator, the surplus area has to be redetermined in the hands of the legal heirs of the deceased big landowner. Another argument pressed into service is that even if the Will is ignored, as the land was not utilised during the life time of the big landowner, the authorities are required to determine surplus area in the hands of the legal heirs of the deceased., in accordance with the law laid down in Ajit Kaur and others Vs. Punjab State and others 1980 PLJ 354. It is prayed that in view of the infirmities in the impugned orders, the writ petition should be allowed and the orders holding that the petitioners are entitled to separate unit should be affirmed. With respect to CWP No.9226 of 2002, counsel for the petitioners submits that though writ petitions impugning the order passed by the Financial commissioner were pending before this court, authorities under the Act have proceeded to assess surplus area, in accordance with the provisions of the Punjab Land Reforms Act, 1972. The matter eventually came up for consideration before the Financial Commissioner who has refused to keep proceedings in abeyance to await the outcome of the matter before this court and has directed the Collector Agrarian to implement the order dated 28.11.1986. Counsel for the private respondents and counsel for the State of Punjab submit that the language employed by Section 10-A(b) leaves no ambiguity that surplus area cannot be redetermined on the basis of a Will that comes into effect after the declaration of surplus area. Reliance for this CWP No.7526 of 1989 5 argument is placed upon State of Haryana Vs. Sampuran Singh 1975 PLJ 383 (S.C.), Mahan Singh and another V. Haryana State and others, 1978 PLJ 180, Bhan Singh and others Vs. Budh Singh and others (DB) 1980 PLJ 596 State of Punjab V. Gurcharan Singh and others 1991 PLJ 421. It is further argued that as petitioners were not entitled to reopen surplus area on the basis of a Will, executed by the big landowner, the Financial Commissioner rightly reviewed and set aside the illegal order passed by the Collector. It is further submitted that even otherwise the petitioners are not legal heirs of Bhagwan Devi, as her daughter died issueless and her daughter's husband remarried. The petitioners are the progeny from the second marriage. It is argued that private respondents were allotted the land in dispute and as the land stands utilised, there is no question of reopening of surplus area proceedings, whether on the basis of devolution of interest by way of a Will or on the plea of natural succession. I have heard counsel for the parties and perused the impugned orders. The basic issues that arise for adjudication are ; (a) whether the Financial Commissioner has committed an error of jurisdiction while accepting the application for review; (b) whether the petitioners were entitled to pray for reopening of surplus area proceedings that concluded on 22.5.1962; and (c ) whether on the basis of the will or on the basis that the land was not utilised during the life time of the big landowner, the petitioners can claim reopening of surplus area proceedings. Section 24 of the Act confers the power of review in terms of Section 82 of the Punjab Tenancy Act, 1887. Section 24 of the Act and Section 82 of the Punjab Tenancy Act, 1887 read as follows :- CWP No.7526 of 1989 6 “Punjab Security of Land Tenures Act, 1953 - Section 24. Appeal, review and revision. - The provision in regard to appeal, review and revision under this Act shall, so far as may be, be the same as provided in sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1887 (Act XVI of 1887) “Punjab Tenancy Act, 1887 : Section 82. Review by Revenue Officer – (1) A Revenue Officer, as such may either on his own motion or on the application of any party interested, review and on so reviewing modify reverse or confirm any order passed by himself or by any of his predecessors in office : provided as follows :- (a) when Commissioner or Collector thinks it necessary to review any order which he has not himself passed and when a Revenue Officers of a class below that of Collector proposes to review any order whether passed by himself or by any of his predecessors in office, he shall first obtain the sanction of the Revenue Officer to whose control he is immediately subject; (b) no application for review of an order shall be entertained unless it is made within ninty days from the passing of the order, or unless the applicant satisfies the Revenue Officer that he had CWP No.7526 of 1989 7 sufficient cause for not making the application within that period; (c ) an order shall not be modified or reversed unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of the order; (d) an order against which an appeal has been preferred shall not be reviewed. (2) For the purposes of this section the Collector shall be deemed to be the successor in office of any Revenue Officer of a lower class who has left the district or has ceased to exercise powers as a Revenue Officer and to whom there is no successor in office. (3) An appeal shall not lie from the order refusing to review, or confirming on review, a previous order.” Section 82 of the Punjab Tenancy Act, empowers a revenue officer, including a Financial Commissioner, to either on his own motion or on the application of any party interested, review and on so reviewing modify, reverse or confirm any order passed by himself or by any of his predecessors. Section 82 of the Punjab Tenancy Act, does not define the limits of the power of review and must, therefore, be understood to confer a power to rectify any error apparent on the face of record. An error of jurisdiction based upon a perverse interpretation of statutory provisions that CWP No.7526 of 1989 8 has the affect of diminishing surplus area, if brought to the notice of the Financial Commissioner, can be corrected in the exercise of the power of review. The power of review, though limited in its scope and ambit can be exercised to undo perverse and arbitrary orders. The Financial Commissioner has while accepting the application of review set aside the order dated 15.12.1983 thereby setting at naught orders dated 15.1.1969 and 24.4.1972 passed by the Collector, Agrarian and the Special Collector and all other orders passed in appeal, by recording a positive finding that while passing the impugned orders,his predecessor did not take into consideration the provisions of Section 10-A(b) of the Punjab Security of Land Tenures Act, 1953, that do not entitle a beneficiary under a Will that comes into effect after the declaration of surplus area to pray for reopening of surplus area proceedings that have attained finality. The argument that as Bhagwan Devi executed a registered Will dated 4.10.1957, the Collector and the Special Collector rightly held that the petitioners are entitled to reopen surplus area proceedings and to an allotment of a separate unit each, disregards the provisions of Section 10-A (b) of the Act, which read as follows :- “10-A. Surplus area for resettlement of ejectedly tenants - (a) XXX XXX XXX (b) Notwithstanding anything contained in any other law for the time being in force and save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance, no transfer or other disposition of land which is comprised in a surplus area at the commencement of this Act, shall CWP No.7526 of 1989 9 affect the utilisation thereof in clause (a).” Section 10-A(b) clearly postulates that save in the case of land acquired by the State Government under any law or by an heir by way of “inheritance”, no transfer or “other disposition of land”, which is comprised in the surplus area at the commencement of this Act shall affect the utilisation thereof, in accordance with clause (a) of Section 10-A. The words and expressions appearing in Section 10-A(b) leave no ambiguity as to legislative intent that devolution of interest by way of a testamentary instrument, shall not have the affect of diminishing surplus area, existing on the commencement of the Act and to put it simply a Will recording a devolution of land that has been declared surplus, shall not entitle the beneficiary to pray that surplus area proceedings be reopened or that the land bequeathed to him be excluded from surplus area. While interpreting Section 10-A(b) of the Act, this court held in Mahan Singh and another Vs. Haryana State and others (supra), as follows :- “ As regards the first contention, the same is also without any merit. The short question to be considered is whether the petitioners are entitled to the benefit of the provisions of Section 10A(b) of the Act or not. The said benefit can only be made available if the land is acquired by the State Government under any law for the time being in force or by an heir by inheritance. Disposition of property by will in no sense can be termed as inheritance. Thus Mahan Singh and Pritapal Singh who became owners of the property in view of the will made by Smt. CWP No.7526 of 1989 10 Parbati cannot be termed as heirs by inheritance. That being the case no fault can be found with the finding of the Collector and the learned Financial Commissioner, in this regard.” Section 10-A(b) of the Act came up for consideration before a Division Bench in Bhan Singh and others Vs. Budh Singh and others (supra). While approving the ratio in Mahan Singh and another (supra) it was held as follows : “ Now, it may be observed that the three petitioners obtained this land under a will to the exclusion of their sisters. In Mahan Singh and another Vs. State of Haryana and others, 1978 PLR 553 - 1978 PLJ 180, it was held that a person acquiring land under a will cannot be said to have inherited the same. We are in respectful agreement with this view because it is in accordance with the settled principles of law. The law lays down a special mode of proof for the wills because a will makes departure from the natural devolution of property. Once it is so held, then the provisions of Section 16 of the Act would come into play and the alienation made by the deceased landlord under the will would have to be ignored in proceedings initiated by the tenant under Section 18 of the Act for the purchase of the land. The petition deserves to be dismissed on this short ground alone.” CWP No.7526 of 1989 11 It is, therefore, beyond doubt that in the context of the Act, disposition of property by way of a Will, can not be equated with devolution of interest by inheritance conferring a right upon a legatee to urge that surplus area proceedings be reopened on the basis of a Will that comes into effect after the declaration of surplus area. The Financial Commissioner appraised the order dated 12.5.1965 passed by the Commissioner granting permission to review the order dated 22.5.1962, the order dated 15.1.1969 passed by the Special Collector holding that each of the seven legatees of Bhagwan Devi is entitled to independent unit, the order dated 24.4.1972 passed by the Collector granting a separate unit to each of the legatees, the order passed by the Commissioner dated 3.9.1976 and the order dated 15.12.1983 passed by the Financial Commissioner (Appeals),Punjab and rightly held that these orders suffer from an error apparent on the face of the record, as surplus area proceedings have been reopened in violation of the provisions of Section 10-A(b) of the Punjab Security of Land Tenures Act, 1952. An argument that the Financial Commissioner could not set- aside orders dated 15.1.1969 and 24.4.1972, in view of inordinate delay, merits rejection. The Financial Commissioner was conscious of the delay and only after pointing out gross errors of jurisdiction and perversity in these orders proceeded to exercise his suo-moto power of review. An argument that as the order dated 15.1.1969, passed by the Special Collector holding that the petitioners are entitled to separate units was not challenged before any revenue officer or court, the Financial Commissioner had no jurisdiction to review the order, disregards the provisions of Section 10-A(b) that do not allow reopening of surplus area CWP No.7526 of 1989 12 proceedings on the basis of a testamentary instrument. The Financial Commissioner, therefore, rightly accepted the petition for review and set aside orders that were patently erroneous and without jurisdiction. The last point that arises for consideration is, whether the petitioners can claim reopening of surplus area proceedings, on the ground that the big landowner passed away before utilisation i.e. before possession could be taken. The petitioners, as is apparent from the order passed by the Financial Commissioner are not the natural heirs of Bhagwan Devi, deceased. Bhagwan Devi's daughter died issueless and her husband remarried. The petitioners are children from the second marriage and, therefore, cannot claim inheritance to the estate of Bhagwan Devi. The private respondents, on the other hand, are allottees of this land and as referred to in the order dated 15.1.1969 passed by the Special Collector, Bathinda, the order upon which the petitioners place reliance, a part of the surplus area has been utilised. It is, therefore, apparent that as the surplus area was utilised before the demise of the big land owner, the benefit of the judgement in Ajit Kaur's case (supra) cannot be granted to the petitioners. In view of what has been stated herein above, I have no hesitation in holding that the Financial commissioner was fully justified in reviewing the order passed by his predecessor and holding that the petitioners are not entitled to reopen the surplus area proceedings that attained finality on 22.5.1962, on the basis of the Will dated 4.10.1957 that came into effect after the demise of Bhagwan Devi on 1.7.1964. As regards CWP No. 9226 of 2002, the Financial Commissioner should have awaited the outcome of these writ petitions. However, as the matter has only been remitted, no interference is called for CWP No.7526 of 1989 13 in the impugned order dated 25.2.2002. In view of what has been stated herein above, writ petitions are dismissed with no order as to costs. 5.1.2011 ( RAJIVE BHALLA ) GS JUDGE