CIVIL WRIT PETITION NO.5582 OF 1982 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MARCH 04, 2009 Hans Raj .....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. S. C. Khunger, Advocate, for the petitioner. Mr. P. C. Goyal, Addl.A.G., Punjab, for the State. **** RANJIT SINGH, J. (ORAL) The petitioner owned land measuring 12.0042 hectares of first quality in villages Chak Lakhowali, Sarian and Chak Singhewala situated in Tehsil Fazilka, District Ferozepur on 24.1.1971 i.e. on the appointed day. The wife of the petitioner, namely, Jamna Devi inherited land measuring 18.6996 hectares of first quality in village Chak Singhewala, Tehsil Fazilka from her father, Mohri Ram, through a Will executed in her favour. The petitioner's family consisted of eight members and he accordingly was permitted to retain an area to the extent of 11.20 hectares of first quality land. Collector (Agrarian), CIVIL WRIT PETITION NO.5582 OF 1982 :{ 2 }: Fazilka, vide his order dated 3.11.1976 clubbed the area owned by Smt.Jamna Devi, wife of the petitioner with that of the petitioner and after allowing 11.20 hectares of first quality land as permissible area, declared the land measuring 18.4467 hectares of first quality as surplus at the hands of the petitioner. Copy of the order dated 3.11.1976 is annexed with the petition as Annexure P-1. Having declared the land so surplus, the Collector, Fazilka, directed the petitioner to furnish the details of the surplus land on 11.11.1976. The petitioner, however, suffered a dislocation and fracture of one of his bones and he accordingly sent a medical certificate to the Court of Collector, Fazilka. The Collector, Fazilka, however, ignored the same and took this case as one where the petitioner had not made selection of his permissible area and accordingly exercised the choice in his discretion in terms of the legal position vide his order dated 15.11.1976. Copy of this order is annexed with the petition as Annexure P-2. The petitioner has placed on record the medical certificate as Annexure P-3. Aggrieved against the same, the petitioner filed an appeal before the Commissioner, Ferozepur Division, Ferozepur, which was dismissed on 14.7.1978. Copy of this order is annexed with the petition as Annexure P-4. The petitioner thereafter filed a revision against this order, which was dismissed on 23.8.1982. The petitioner accordingly has impugned the orders dated 3.11.1976, 15.11.1976 and those passed by the Commissioner and Financial Commissioner being arbitrary, illegal, erroneous and without jurisdiction. The writ petition was admitted on 10.2.1983 and interim order, staying dis-possession of the petitioner from the area declared CIVIL WRIT PETITION NO.5582 OF 1982 :{ 3 }: surplus passed on 20.10.1982 was continued. Reply in this case has been filed. It is disclosed that no mention is made of the medical certificate alleged to have been furnished by the petitioner, when order dated 15.11.1976 was passed. Otherwise generally the contents of the petition have been admitted. Replying to the contention that the land of wife of the petitioner could not have been clubbed with that of the petitioner, it is stated that Jamna Devi was not entitled to a separate unit as the land owned by her was clubbed with the land of her husband in accordance with law. As per the stand in the written statement, the petitioner was given an opportunity to furnish details of the surplus land but he failed to turn up on 11.11.1976 and accordingly the Collector made a choice of his permissible area on behalf and in terms of the law. Learned counsel for the petitioner has raised two fold submissions before me. He would first contend that the petitioner suffered a fracture on 2.11.1976. The case for declaring the area of the petitioner as surplus was taken up and was adjourned to 15.11.1976, on which date the petitioner could not appear on account of he having suffered a fracture and the Collector himself selected the land as permissible area for the petitioner. The petitioner had placed on record the copy of the medical certificate showing that he had been medically advised not to move for a period of six weeks. It is in this background, the petitioner contends that he could not appear before the Collector to select his permissible area on 15.11.1976. Inspite of giving opportunity to the petitioner, the Collector was harsh in making selection for him instead of waiting for CIVIL WRIT PETITION NO.5582 OF 1982 :{ 4 }: his arrival. The petitioner also contends that the action of the Collector in clubbing the land of petitioner's wife with him to determine the area of surplus at his hands is totally unfair, illegal and unjustified. It is conceded that wife of the petitioner, Jamna Devi, had inherited land measuring 18.6996 hectares of first quality from her father, Mohri Ram. However, Smt.Lajwanti widow of Hirde Narain son of Mohri Ram filed a civil Suit No.7 of 1965 in the Court of Sub Judge, Fazilka against Jamna Devi, wife of the petitioner. She claimed her share in the land left by her father-in-law i.e. Mohri Ram on the ground that she had no means of livelihood as her husband Hirde Narain had also died during the life time of Mohri Ram. This suit was compromised on the intervention of the village Panchayat and pursuant to this compromise, a decree in respect of land measuring 166 kanals 12 marlas was passed in favour of Lajwanti, respondent No.5 and against Jamna Devi, wife of the petitioner by Sub Judge, Fazilka on 21.2.1966. Accordingly, it is contended that the land measuring 166 kanals 12 marlas could not have been included in the land of the petitioner while determining his surplus area but the same has been done. In this regard, the counsel would draw the attention to the provisions of Section 7 of the Punjab Land Reforms Act, 1972 (for short, “the Act”) with special emphasis on sub-section (4), which reads as under:- “(4) For the purpose of determining the surplus area of any person.- (i)any judgment, decree or order of a court or other authority obtained on or after the appointed day and having the effect of diminishing the surplus area of CIVIL WRIT PETITION NO.5582 OF 1982 :{ 5 }: such a person; (ii) a tenancy created (on or after the appointed day) in any land which has been or could have been declared as surplus area of such a person under the Punjab law, the Pepsu law or the Act; shall be ignored.” It is, thus, prayed that for the purpose of determining the surplus area of any person, any judgment, decree or order of the Court or other authority obtained on or after the appointed day and having the effect of diminishing the surplus area of such person, is to be ignored. Concededly, the case of surplus area of the petitioner was taken up in the year 1976 and the land at his hands was declared surplus on 3.11.1976. Much prior to this date, the decree had been passed on 21.2.1966, whereby 166 kanals 12 marlas of land had already been decided in favour of Smt.Lajwanti and against Jamna Devi, wife of the petitioner. This land accordingly could not have been taken into consideration for determining the surplus area of the petitioner. Learned counsel for the petitioner would refer to the impugned order, Annexure P-1, which will clearly show that the land measuring 166 kanals 12 marlas, which was transferred, has been taken into consideration while determining the surplus area of the petitioner. While doing so, the Collector was of the view that there was absolutely nothing on record to show that any mutation with regard to this transfer was sanctioned. He accordingly ignored the decree passed by Sub Judge on record and, thus, considered this land available with the petitioner for being determined as surplus. This apparently is clearly in violation of the provisions of Section 7(4) CIVIL WRIT PETITION NO.5582 OF 1982 :{ 6 }: of the Act, reproduced above. The impugned order to this an extent as such, can not be sustained. I am, however, not impressed with the submission made by counsel for the petitioner that there was inability on the part of the petitioner to select his permissible area. The petitioner had suffered an injury concededly on 2.11.1976. The land was declared surplus on 3.11.1976. This happened in the presence of counsel for the petitioner. Even otherwise, the selection was to be made by the petitioner on 15.11.1976. There is nothing to indicate that the petitioner was not in that physically unfit condition so as not to appear or instruct his counsel in this regard when the order dated 15.11.1976 was made. In view of this, I do not find any infirmity in the action of the Collector to select the permissible area on behalf of the petitioner. Since the order declaring the surplus area in the hands of the petitioner is being set-aside now, the entire exercise is required to be re-done by the Collector. It is in this context, learned counsel for the petitioner contends that the petitioner can now be given a choice to select his permissible area. I am afraid that this prayer of the petitioner can not be fully accepted. Once the petitioner has failed to reserve or select his permissible area within the prescribed time, it would not be now fair to grant him an opportunity to select his permissible or reserve area. Learned counsel in this regard has drawn my attention to the case of Gurcharan Singh and others Vs. Prithi Singh and others, 1974 P.L.J. 166. This was also a case where the land owners failed to reserve or select permissible area within the prescribed time. The Collector was held entitled to CIVIL WRIT PETITION NO.5582 OF 1982 :{ 7 }: determine the defaulter's permissible and surplus area. However, it was still observed that while doing so, the Collector must act judicially and while exercising his discretion should not ignore altogether the wishes of land owner. It is further observed that he may include transferred area in permissible area or surplus area consistent with equities of the case. I think that would be a fair approach to be adopted in the present case. Therefore, while allowing this writ petition and quashing the order to an extent that the land at the hands of the wife of the petitioner was wrongly included in the surplus area of the petitioner and while exercising discretion by the Collector, the same is required to be determined afresh. A direction is also issued to the Collector to keep in view the ratio of law laid down in Gurcharan Singh's case (supra) in mind while determining the permissible area or area, if any left, after re-doing all exercise in the light of observation made above. The writ petition is accordingly allowed. The parties, through their counsel, are directed to appear before the Collector on 2.4.2009, who shall now re-do the exercise in the light of the observations made out. The petitioner would be entitled to now urge and prove before the Collector that the land measuring 166 kanals 12 marlas had indeed been transferred from the name of Jamna Devi and was, thus, not available for being considered as surplus at the hands of the petitioner. March 04,2009 ( RANJIT SINGH ) khurmi JUDGE