Sonia & Ors. v. State of Punjab

Ms.Anu Pal, AAG, Punjab for respondents no.1 to 4. Mr.S.K.Pipat, Senior Advocate with Mr.M.K.Pundir and Mr.S.N.Saini, Advocates for respondent no.5. ***** RAJIVE BHALLA.J This order shall dispose of CWP Nos. 9022, 9035, 10551 and 10740 of 2002 as they involve adjudication of similar questions of law. For the sake of convenience, facts are being taken from CWP No.10551 of

2002. The petitioners pray for issuance of a writ in the nature of certiorari for quashing the orders dated 02.03.1984, 18.12.1985 and

12.07.2000, passed by the Special Collector, Agrarian, Muktsar, the Commissioner (Appeals) Ferozepur Division Ferozepur and the Financial Commissioner (Appeals-I), Punjab, respectively. Smt.Dwarki Devi, now represented by her legal representative respondent no.5 was a big landowner. She filed a return with respect to her land holding. The Collector, Agrarian, Muktsar, vide order dated

27.01.1976 declared 26.76 hectares of land surplus after leaving a CWP No.10551 of 2002 -2- permissible area of 7 hectares. The appeal filed against this order was dismissed. A revision, filed before the Financial Commissioner (Appeals) was accepted and the case was remanded to the Collector Agrarian, Muktsar, to give Dwarki Devi an opportunity to make a fresh selection, of her permissible area. Prior to this order, the prescribed authority had vide order dated 29.03.1976, allotted land measuring 195 kanals and 5 marlas to Raj Kumar deceased (now represented by the petitioners) and Ashwani Kumar respondent no.6 as sitting tenants, under the Punjab Utilization of Surplus Area Scheme. An amount of Rs.20,777/- determined vide order dated 05.03.1979 by the Collector was paid by the petitioners and respondent no.6, as the price of the land. In compliance with the order passed, by the Financial Commissioner, the Collector, Agrarian, vide order dated 02.03.1984, declared 28.58 hectares of first quality land as surplus after leaving a permissible area of 7.01 hectares, of first quality land. A part of the land in possession of Raj Kumar (deceased) and respondent no.6, as sitting tenants, was included by the landowner in her reserved area. The petitioners, aggrieved by the order dated 02.03.1984, filed an appeal before the Commissioner, Ferozepur, impugning the selection, made by Dwarki Devi, on the plea that, though they are sitting tenants, they have not been afforded an opportunity of hearing. The Commissioner accepted the appeal, remanded the matter to the Collector but while doing so, held that the petitioners are entitled to allotment of 2 hectares only, being joint tenants. Aggrieved by this finding the petitioners filed a revision before the Financial Commissioner (Appeals-I), Punjab, Chandigarh. In the meanwhile, certain vendees from Dwarki Devi also filed revisions before CWP No.10551 of 2002 -3- the Financial Commissioner, challenging the declaration of surplus area. The Financial Commissioner clubbed these cases and dismissed the revisions by a common order. Counsel for the petitioners submits that the petitioners were allotted 195 kanals and 5 marlas, of land, as sitting tenants vide order dated

29.03.1976. The order has neither been impugned nor set aside by any court. The petitioners have also deposited the instalments as ordered by the Collector. The Commissioner therefore, had no jurisdiction to observe, in his order dated 18.12.1985, that the petitioners are entitled to only 2 hectares of land. It is further argued that the Financial Commissioner, has neither dealt with nor adverted to this plea. The Financial Commissioner clubbed the petitioners' revisions with revisions filed by the vendees and dismissed the petitioners' revisions without recording any finding on the pleas raised by the petitioners. It is further argued that while selecting permissible area, a big landowner cannot include the area occupied by a tenant particularly where the tenants have a right to allotment. Counsel for the respondents however submits that the selection made by the landowner is legal and valid. As the entire land is in possession of tenants, the landowner had no option, while selecting her permissible area, to include land in the occupation of a sitting tenant. It is further submitted that as the petitioners predecessor was a joint tenant, with Ashwani Kumar they are entitled to allotment of 2 hectares of land, along with the joint tenant. Even otherwise, as the original order of allotment was based upon a surplus area order that was set aside by the Financial Commissioner on 29.12.1983, the allotment made in favour of the petitioners is a nullity. CWP No.10551 of 2002 -4- I have heard counsel for the parties and perused the impugned orders. The petitioners are admittedly sitting tenants, entitled, under the provisions of the Punjab Lands Reforms Act, 1972 and the Punjab Utilization of Surplus Area Scheme, to allotment of land. Land belonging to their landlord was declared surplus on 27.01.1976. The petitioners were allotted 4 hectares of land as sitting tenants. The order declaring surplus area was eventually set aside by the Financial Commissioner (Appeals) on

29.12.1983 and the matter was remitted to the Special Collector, Muktsar, to enable the big landowner to select her permissible area. The Collector allowed the big landowner to make a fresh selection but without issuing any notice to the petitioners or the other tenants. The big landowner selected the land that forms a part of the petitioners tenancy. The petitioners impugned this order before the Commissioner, Ferozepur, who set aside the order and remitted the matter, to the Collector, Agrarian but while doing so, held that the petitioners are only entitled to allotment of 2 hectares of land. Aggrieved by this finding, the petitioners filed separate revisions before the Financial Commissioner. In the meanwhile, certain vendees from the big landowner challenged the surplus area order. The Financial Commissioner clubbed the revisions, filed by the petitioners, with revisions filed by vendees and dismissed the revisions, including the revisions filed by the petitioners by a common order. A perusal of the order passed by the Financial Commissioner reveals that while dismissing the revisions by a common order, the Financial Commissioner held as follows: - “For detailed reasons given above, the revision petition CWP No.10551 of 2002 -5- is dismissed and accordingly the other connected revision petitions are also dismissed. A copy of the order may be placed on all the cases.” The detailed reasons recorded in the impugned order pertain to the pleas raised by vendees. The Financial Commissioner, apparently failed to discern that the petitioners have impugned surplus area proceedings on an entirely different plea namely the observations recorded by the Commissioner that the petitioners are entitled to two hectares of land only with the joint tenants. The reasons assigned for rejecting the revisions filed by the vendees are neither germane nor relevant for dismissing the revisions filed by the petitioners. In view of this apparent error committed by the Financial Commissioner, the writ petition is partly allowed, the order dated

12.07.2000 is set aside and the matter is remitted to the Financial Commissioner (Appeals-I), Punjab, to decide the revisions filed by the petitioners afresh and in accordance with law, within three months from the receipt of a certified copy of this order. The failure of the Financial Commissioner to decide the plea raised by the petitioners, renders the impugned order dated 12.07.2000 null and void in so far as concerns the dismissal of the revisions filed by the petitioners. Parties are directed to appear before the Financial Commissioner (Appeals-I), Punjab, on 15.10.2010. 14th September, 2010 shamsher [RAJIVE BHALLA] JUDGE