Dismissed
Rattan Devi and Ors. v. State of Pb. and Ors.
Punjab & Haryana HCCWP/5338/1982
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of 1982. ::-1-:: IN THE HIGH COURT FOR THE…
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of 1982. ::-1-:: IN THE HIGH COURT FOR THE…
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CWP No. 5338 of 1982. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH.
C.W.P. No. 5338 of 1982 . Date of Decision: 01st December, 2008 .
Rattan Devi [deceased] through Lrs & Ors. Petitioners through Mr. Sudhir Mittal, Advocate
Versus
State of Punjab & Ors. ..Respondents through Mr. G.S.Attariwala, Addl.AG, Punjab. Mr. M.S.Bedi, Advocate.
CORAM:
HON'BLE MR. JUSTICE SURYA KANT.
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?
SURYA KANT, J. [ORAL)
In this Civil Writ Petition, besides the orders dated 22nd November, 1982 [Annexures P-4 and P-5] passed by the Collector, Dasua – respondent No.2, the petitioners also seek quashing of the Rapat Roznamcha Nos. 158 and 159 dated 25th November, 1982 [Annexure P-6].
The facts giving rise to this case have a chequered history. Kishan Singh son of Gopala was husband of petitioner No. 1 [now represented by her legal heirs] and father of petitioner No. 2. He was a 'big land-owner' under the Punjab Security of Land Tenures Act, 1953 [ in short 'the Punjab Law']. His land measuring 72 kanals 8 marlas was declared surplus under the Punjab Law but it appears that the same could not be utilized. The surplus case of Kishan Singh was thereafter taken up by the Collector [Agrarian], Dasua –
CWP No. 5338 of 1982. ::-2-::
respondent No. 2 under the Punjab Land Reforms Act, 1972 [for short 'the 1972 Act'] and land measuring 6.467 standard hectares equivalent to nearly 18 acres was declared surplus in the hands of Kishan Singh vide order dated 23rd June, 1976 [Annexure P-1].
Admittedly, the aforementioned order dated 23rd June, 1976 was not challenged by Kishan Singh before any Forum till his death on 16th June, 1978 or by his legal heirs thereafter. It was only on receipt of a notice regarding allotment of the surplus land that the legal heirs of Kishan Singh filed objections under Section 9 of the 1972 Act on 13th August, 1982, followed by a review application for the recall/review of the said order dated 23rd June, 1976. The objection petition as well as the review application were dismissed by the Collector vide order dated 22nd November, 1982 [Annexure P-4]. The Collector also passed another order of the even date directing the petitioners to deliver possession of the surplus land to different allottees who are impleaded as respondents NO. 3 to 8. Entries in the Rapat Roznamcha regarding delivery of possession in favour of respondents No. 3 and 4 were thereafter made on 25th November, 1982 [Annexure P-6].
Aggrieved at the aforementioned orders and the Rapat Roznamcha that the petitioners have approached this Court.
It appears that when this case along with some connected matters came up for motion hearing, one of the contention raised on behalf of the petitioners was as to whether or not the surplus area case of their predecessor-in-interest - Kishan Singh was liable to be re-opened for the reason that since the big land-
CWP No. 5338 of 1982. ::-3-::
owner had died even before the utilization of the surplus area or delivery of its possession, his legal heirs were entitled for redetermination of the surplus land in their hands. The importance of the issue led to its reference firstly before a larger Bench and then to the Full Bench.
The Full Bench vide its judgment dated 26th March, 2008 rendered in CWP No. 4930 of 1982 [ Sardar Singh & Ors v Financial Commissioner [Revenue], Punjab and others] answered the reference as follows:-
“We are, therefore, of the considered opinion that in order to harmoniously read the two views in Ajit Kaur's case and to give correct interpretation of the provision of Section 11(5) and 11(7) of this Act, we ought to take the aid of Supreme Court's judgment in Ajmer Kaur's case. We hold that until the surplus area has been finally determined by the Collector and appeals/revisions have been dismissed, the death of the landowner would certainly cause affectation to the surplus area which would be required to be redetermined in the hands of his heirs.
Resultantly, where the surplus area has not been finally determined, and the matter is pending in appeals or revisions before the Revenue Courts or before this Court under Article 226 of the Constitution, or before the Supreme Court of India, death of the landowner would cause affectation of surplus area which would be required to be redetermined in the hands of the heirs of the deceased landowner. Such an interpretation would harmoniously construct the provisions of Section 11(5) and 11(7) and also give a proper interpretation to both the views expressed in Ajit Kaur's case. However, we are unable to uphold the judgments of this Court in Jasbir
CWP No. 5338 of 1982. ::-4-::
Kaur's case because Ajit Kaur's case was not at all considered by the Hon'ble Division Bench. As regards Manjit Kaur's case, even though Ajit Kaur's case was considered, the majority view had been entirely overlooked.
This reference is decided in above terms”.
In view of what the Full Bench has held in unequivocal terms, it clearly emerges that if the Collector's order declaring the surplus area is subject matter of an appeal, revision or is under challenge before a constitutional Court and meanwhile, if the big land owner dies, the surplus area in the hands of the legal heirs has to be re-determined. As noticed earlier, in the present case, the surplus area in the hands of Kishan Singh was determined by the Collector on 23rd June, 1976. Kishan Singh or his legal heirs did not challenge the said order before any Appellate or Revisional Authority and the order attained finality. The first contention raised on behalf of the petitioners that after the death of Kishan Singh on 17th June, 1978, the surplus area in the hands of his legal heirs is required to be redetermined, stands answered against them by the dictum of Full Bench in Sardara Singh's case [supra].
Faced with this situation, learned counsel for the petitioners contends that since the possession of part of the surplus land was not delivered to the state Government or any allottee and it continues with the petitioners, the determination of the “surplus area” case has not attained finality. He relies upon Section 18 of the 1972 Act to urge that the un-utilized surplus area vests in the State Government only “on the date on which possession thereof is taken
CWP No. 5338 of 1982. ::-5-::
by or on behalf of the State Government”.
In my considered view, there is no substance in the above noticed contention as well. Sub-Sections [5] and [7] of Section 11 of the 1972 Act read as follows:-
“ 11. Disposal of surplus area :-[1]
[5] 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, not transfer or other disposition of land which is comprised in the surplus area under the Punjab Law, the Pepsu law or this Act, shall affect the vesting thereof in the State Government or its utilization under this Act.
[6] xx xx
[7] Where succession has opened after the surplus area or any part there of has been determined by the Collector, the saving specified in favour of an heir by inheritance under sub-section [5] shall not apply in respect of the area so determined”. [Emphasis applied]
After considering the aforementioned provisions, their Lordships of the Supreme Court in Ajmer Kaur v State of Punjab &
Ors., [2004] 7 SCC, 381 have held that where the order passed by the Collector declaring surplus area has attained finality, the same can not be re-opened under Section 11[7] of the 1972 Act. Not only this, even in respect of an application for re-determination of the surplus land under sub-Section [5] reproduced above, it was ruled that such an application has to be moved within a reasonable time and entertaining such an application at a belated stage would defeat
CWP No. 5338 of 1982. ::-6-::
the very object of the reformatory legislation.
Since sub-section [7] of Section 11 of 1972 Act, expressly prohibits re-determination of the surplus area in a case where succession has re-opened after the surplus area case stood decided by the Collector, the contention raised on behalf of the petitioners, is wholly misconceived and can not be entertained.
For the reasons afore-stated, I do not find any merit in this writ petition which is accordingly dismissed. The parties are, however, left to bear their own costs.
December 01, 2008. ( SURYA KANT ) dinesh JUDGE
Rattan Devi through Lrs & Ors.
State of Punjab & Ors.
Surya Kant
As recorded by the court registry
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