Gurdip Singh & Ors. v. The Financial Commissioner, Appeals, Punjab & Ors.

Judgment

1. This Letters Patent Appeal has been directed against the order dated 19.4.2011, passed by the learned Single Judge, whereby the writ petition (Civil Writ Petition No. 1535 of 1987) filed by appellants (sons of Pal Singh, the big land owner), challenging the order dated 17.12.1986 (Annexure P-12) passed by the Financial Commissioner, Appeals, Punjab, has been dismissed.

2. The brief facts of the case are that the land measuring 55 Kanals, situated in village Gadriwala, Tehsil Zira, District Ferozepur, belonging to Pal Singh (father of the appellants) was declared surplus under the provisions of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as `the Act'). Out of the said area, 44 Kanals of land LPA No. 1681 of 2011 ( O&M ) -2- was allotted to Kartar Singh (now deceased), husband of respondent No.3 and father of respondents No.4 and 5, and its possession was delivered to him on 20.6.1969 as re-settled tenant. It is pertinent to mention here that the

said order of allotment was challenged by the big land owner, but the said petition was dismissed under the Punjab Security of Land Tenure Rules, 1956 (hereinafter referred to as `the Rules of 1956').

3. On 15.3.1978, Kartar Singh filed an application before the Collector (Agrarian), Zira, for conferment of proprietary rights regarding the aforesaid land under Para 13 of the Punjab Utilisation of Surplus Area Scheme, 1973 (hereinafter referred to as `the Scheme of 1973'). The said application was opposed by the appellants on the ground that the land in question had never vested in the State under the Punjab Land Reforms Act, 1972 (hereinafter referred to as `the Land Reforms Act'), because it was never utilised under Section 10-A of the Act and the Rules of 1956, as Kartar Singh allottee was neither given possession of the land nor he was in possession of the said land, either on 24.1.1971, when the said Act came into force, or on 4.7.1973, when the Scheme of 1973 came into force.

4. The Collector (Agrarian), vide his order dated 2.7.1979 (Annexure P-9), dismissed the application of Kartar Singh, while holding that upto Rabi, 1976, the land in question remained in possession of the appellants, therefore, Kartar Singh could not be declared to be `allottee', and the land in question could not be deemed to be utilised before coming into LPA No. 1681 of 2011 ( O&M ) -3- force of the Land Reforms Act, therefore, it did not vest in the State, and no proprietary rights could be conferred on Kartar Singh.

5. Feeling aggrieved against the said order, Kartar Singh filed appeal before the Additional Commissioner, Ferozepur Division, Ferozepur. At that stage, on an application filed by Kartar Singh, copies of judgments dated 5.12.1978 and 3.3.1981 in the case between the parties, passed by the Civil Courts, as well as copies of Rapat Roznamcha Nos. 381 dated

20.6.1969 and 357 dated 17.6.1975 were taken on record as additional evidence. The Additional Commissioner, vide his order dated 2.2.1983 (Annexure P-10) allowed the appeal, and remanded the matter to the Collector Agrarian, while holding that before coming into force of the Land Reforms Act, the land in question was utilised and Kartar Singh being allottee of the surplus area as re-settled tenant was entitled to conferment of proprietary rights on the land in question.

6. The Additional Commissioner, after taking into consideration the documentary evidence available on record, came to the conclusion that out of 55 Kanals of surplus land of Pal Singh, Kartar Singh was allotted 44 Kanals of land under the provisions of the Rules of 1956 and its possession (except Khasra Nos. 16 and 18 of Rectangle No. 68) was delivered to him vide Rapat Roznamcha No. 381 dated 20.6.1969. It was also found that Kabuliatnama was executed in favour of the land owner before delivery of possession. It was also found that possession of the aforesaid two Khasra Numbers was subsequently delivered to Kartar Singh vide Rapat LPA No. 1681 of 2011 ( O&M ) -4- Roznamcha Nos. 299 dated 29.4.1975 and 357 dated 17.6.1975 under the orders of the Collector. It was further held that the land in dispute was utilised before the death of Pal Singh, who died in the month of March,

1978. It was found as a fact that after the allotment, though possession of the land was delivered to Kartar Singh on 20.6.1969, but later on, he was forcibly dispossessed, and again he was put into possession on the said land in the year 1976. But the said temporary dispossession is having no effect, and his possession on the land in question shall be deemed to be continuous possession till the enforcement of the Scheme of 1973 and the surplus land stand utilised before coming into force the Land Reforms Act. Thereafter, Kartar Singh became “allottee” according to the provisions of the Scheme of 1973 and the land stood vested in the State. Thus, he was held entitled for conferment of proprietary rights on the land in question under Para 13 of the Scheme of 1973.

7. The appellants (sons of Pal Singh, big land owner) challenged the said order by filing revision petition before the Financial Commissioner, Punjab. After hearing learned counsel for the parties, the said revision petition was partly allowed. It was held that out of 44 Kanals of land, 28 Kanals 12 Marlas of land stood utilized on 20.6.1969 and to that extent, Para 13 of the Scheme of 1973 was applicable to it. Regarding the remaining land measuring 15 Kanals 8 Marlas, it was held that physical possession of the said area was not delivered to Kartar Singh on 20.6.1969. LPA No. 1681 of 2011 ( O&M ) -5- However, in the Rapat Roznamcha dated 20.6.1969, there is some mention of compensation in respect of the said land. In view of this fact, it was observed that if the conditions of Rule 20-B (3) of the Rules of 1956 had been satisfied and compensation assessed by the Circle Revenue Officer was paid before the appointed day i.e. 24.1.1971, then such land must be considered to have been utilised and it would not be open for the land owner or any adult son to claim a separate permissible unit from the said land. It was further held that if those conditions had not been satisfied before the appointed day, i.e. 24.1.1971, such a claim would have to be considered in view of the ratio of the Full Bench decision of this Court in Ranjit Ram v. The Financial Commissioner, Revenue, Punjab and others, 1981 PLJ 259. Since it was a question of fact, therefore, the matter was remanded to the Collector to determine this limited point.

8. Against the aforesaid order of the Financial Commissioner, two separate writ petitions, one (Civil Writ Petition No. 1535 of 1987) by the appellants and the other (Civil Writ Petition No. 1813 of 1987) by Kartar Singh, were filed. The learned Single Judge, vide the impugned order dated

19.4.2011, has dismissed both the writ petitions.

9. Against the said order, only the sons of the big land owner have filed the instant Letters Patent Appeal. No appeal has been filed by the legal representatives of Kartar Singh.

10. We have heard the arguments of learned counsel for the LPA No. 1681 of 2011 ( O&M ) -6- appellants and gone through the impugned order as well as the orders passed by the revenue authorities.

11. Learned counsel for the appellants argued that the Financial Commissioner has committed grave illegality while coming to the conclusion that 28 Kanals 12 Marlas of land was utilised prior to the appointed day i.e. 24.1.1971. He submits that the land could be said to have been utilised, if the mandatory provisions of Rules 20-A, 20-B and 20-C of the Rules of 1956 were complied with. According to the learned counsel, in this case, the re-settled tenant did not execute the Kabuliatnama, as required in Rule 20-C (c) of the Rules of 1956, therefore, it cannot be presumed that land in question stood utilised. Learned counsel has submitted that according to clause (c) of Rule 20-C, prior execution of Kabuliatnama or Patta before delivery of actual possession is mandatory requirement to complete the utilisation of the surplus land. He submits that in this case, the alleged allottee did not execute the Kabuliatnama or Patta after allotment of surplus area and also did not enter into actual possession of the land in question at any time before 24.1.1971, the appointed day, when the Land Reforms Act came into force, or on 2.4.1973, when the Scheme of 1973 came into force. Thus, the learned Single Judge has not properly appreciated the issue raised by the appellants. In support of his contention, learned counsel relied upon the decision of the Hon'ble Supreme Courr in Financial Commissioner, Haryana and others v. Smt. Kela Devi and another, 1980 LPA No. 1681 of 2011 ( O&M ) -7- PLJ 121 and a Division Bench decision of this Court in Amrik Singh (died) through his Legal Representatives and others v. The State of Punjab and others, 2010 (1) RCR (Civil) 125.

12. We have considered the submissions made by learned counsel for the appellants and do not find any force in the same.

13. Undisputedly, 55 Kanals of land belonging to Pal Singh, big land owner, was declared surplus. Out of the said land, 44 Kanals of land was allotted to Kartar Singh, by following the procedure prescribed under the Rules of 1956 and the allottee was re-settled as tenant on the surplus area of the big land owner. Possession of the allotted surplus area (except Khasra Nos. 16 and 18 of Rectangle No. 68) was delivered to him vide Rapat Roznamcha No. 381 dated 20.6.1969. Possession of these two Khasra Numbers was delivered to the allottee in the year 1975. In the year 1976, re- settled tenant got restored the possession of the land from which he was illegally dispossessed. While taking into consideration these facts as well as the judgments dated 5.12.1978 and 3.3.1981, passed by the Civil Courts, the Financial Commissioner came to the conclusion that so far as land measuring 28 Kanals 12 Marlas is concerned, its possession was delivered to Kartar Singh on 20.6.1969, i.e. much prior to the appointed day, and this land stood utilised. Learned counsel challenged the finding with regard to 28 Kanals 12 Marlas, while arguing that in the present case, there is nothing on record to show that any certificate of allotment had been given to Kartar LPA No. 1681 of 2011 ( O&M ) -8- Singh, or that allottee Kartar Singh had executed any Kabuliatnama/Patta in favour of the land owner, which were mandatory requirements for utilisation of surplus area. This contention of learned counsel for the appellants cannot be accepted, because when Kartar Singh filed application for conferment of proprietary rights, no plea was taken by the appellants that no certificate of allotment was issued to the allottee or that he did not execute any Kabuliatnama/Patta. Such pleas were taken by the appellants for the first time before the Financial Commissioner. It is pertinent to mention here that from the very beginning, the appellants were taking the stand that Kartar Singh was never delivered possession of the land in question. Their case was that on the appointed day, when the Land Reforms Act came into force as well as on the day when the Scheme of 1973 came into force, the appellants were in possession of the land in question, therefore, Kartar Singh cannot be declared to be “allottee” within the meaning of the Scheme of 1973, and under Para 13 of the said Scheme of 1973, no proprietary rights could be conferred upon Kartar Singh.

14. Furthermore, in the suit for possession filed by the appellants, the civil court considered the issue with regard to utilisation of the land and came to the conclusion that after completing all the formalities provided in the Rules of 1956, possession of the land was delivered to the re-settled tenant and the surplus land stood utilised. In view of the said finding, it was held that since the land had been utilised under the provisions of the Act, LPA No. 1681 of 2011 ( O&M ) -9- the civil court had no jurisdiction to order for delivery of possession of the said land to the appellants. In appeal filed by the appellants, while considering the effect of the utilisation of the land, the appellate court observed as under :- “Now it is to be seen as to whether the utilisation of the land in dispute was completed validly in accordance with the rules on

20.6.69 and 29.4.75 and if so what is its effect. Ex.D-2 is the copy of the daily diary entry No. 381 dated 20.6.69 which goes to show that actual possession of land except Khasra Nos. 16 and 18 of rectangle No. 68 was delivered to Kartar Singh. It is also mentioned in the report that Kabuliat-nama in favour of the land owner had already been executed by Kartar Singh, therefore, the conditions prescribed in Rule 20-C have been complied with and a relationship of landlord and tenant started between Pal Singh and Kartar Singh from the date. The possession of aforesaid khasra numbers could not be delivered on that date as they were under standing crops. It was on 29.4.75 that under the orders of the Collector the possession of these khasra numbers was delivered to Kartar Singh, vide daily diary entry, copy of which is Ex.D-3. The appellants went in appeal to the court of Commissioner against the order of the Collector vide which the possession was ordered to be delivered to Kartar Singh but the same was dismissed on 15.3.1976 (Copy of order Ex.D-1).” (Emphasis added) The said finding of fact recorded by the civil court is binding on the appellants and now, they cannot be permitted to say that no Kabuliatnama LPA No. 1681 of 2011 ( O&M ) -10- was executed, therefore, the land allotted to Kartar Singh cannot be said to have been utilised under Section 10-A of the Act.

15. Faced with the aforesaid finding, learned counsel for the appellants contends that the said civil court judgment and decree is not binding on the appellants, because the civil court was having no jurisdiction in the matter. This contention cannot be accepted, because before deciding the question of jurisdiction, the civil court had considered the question as to whether the land in question stood utilised under the provisions of the Act and only after coming to the conclusion that the land in question stood utilised, the civil court had held that it was having no jurisdiction. Therefore, the finding recorded by the civil court with regard to utilisation of the land cannot be ignored, because the said finding was recorded after providing opportunity to both the parties to lead their respective evidence. In view of the aforesaid findings recorded by the appellate court, the contention raised by the appellants for the first time before the Financial Commissioner with regard to execution of the Kabuliatnama, which is based upon the plea that no such material has been placed on record by the re-settled tenant, cannot be accepted.

16. In Kela Devi's case (supra), the Hon'ble Supreme Court has held that the process of utilisation contemplated by Section 10-A of the Act is complete in respect of any “surplus area”, only when possession thereof has been taken by the allottee or the allottees and the other formalities have LPA No. 1681 of 2011 ( O&M ) -11- been completed. In Krishna Kumari and another v. State of Haryana and another, 1998 (2) PLJ 497, a contention was raised that at the time of delivery of possession, Kabuliatnama was not executed by the re-settled tenant in favour of the big land owner, therefore, the land could not be treated to have been utilised prior to the death of the big land owner in the year 1971. This contention was rejected by the Hon'ble Supreme Court, while observing that undoubtedly, all the requirements, indicated in Rule 20 of the Rules of 1956 are mandatory in character and, therefore, clause (c) of Rule 20-C will also be mandatory for the reason that the first part of this clause contains in imperative terms that the tenant shall execute a “Kabuliyat” or “Patta” in favour of the land owner and the second part which is equally imperative says that it shall be done before possession is delivered to the tenant. It is obvious that if the second mandatory step was taken and the possession over the land was delivered by the Revenue Circle Officer himself as required by Rule 20-B, there is no reason to believe that the first mandatory step, immediately preceding the second step, was not taken particularly as possession would not have been delivered without execution of “Kabuliyat”. In these facts, it was held that delivery of possession being the official act of the Circle Revenue Officer as indicated in Rule 20-B of the Rules of 1956, a presumption has to be raised that all antecedent formalities were duly complied with. In the present case also, a presumption is to be raised with regard to execution of the Kabuliatnama. It LPA No. 1681 of 2011 ( O&M ) -12- is pertinent to mention here that in the present case, the land in question was allotted in favour of Kartar Singh and the appeal filed by the appellants against the order of allotment was dismissed. Furthermore, the civil court has recorded a categoric finding that in the Daily Diary entry No. 381 dated

20.6.69, it has been mentioned that Kabuliatnama in favour of the land owner had already been executed by Kartar Singh. Even the Commissioner in his order has observed that Kabuliatnama was executed before delivery of possession. These findings recorded by the civil court as well as the Commissioner cannot be ignored, and merely on the basis of a contention raised by the appellants for the first time before the Financial Commissioner, a contrary view cannot be taken. Merely by making an averment in the writ petition that no Kabuliatnama was executed, the presumption raised by the official act of the Circle Revenue Officer, cannot be said to have been rebutted.

17. The Division Bench decision of this Court in Amrik Singh's case (supra), relied upon by learned counsel for the appellants, is also not applicable to the facts of the present case. In that case, it was an accepted position that no Kabuliatnama was executed by the re-settled tenant as Patwari (Agrarian) in his order dated 28.2.1990 had categorically mentioned that no Kabuliatnama was executed by the re-settled tenant. The facts in the present case are entirely different. In this case, in the Daily Diary entry No. 381 dated 20.6.1969, it has been clearly mentioned that before delivery of possession, a Kabuliatnama was executed by the re-settled tenant. The civil LPA No. 1681 of 2011 ( O&M ) -13- court has also recorded a finding with regard to execution of the Kabuliatnama and compliance of clause (c) of Rule 20-C of the Rules of

1956. Thus, we do not find any merit in the contention raised by learned counsel for the appellants that the surplus area of the big land owner allotted in favour of Kartar Singh was not utilised and the re-settled tenant was not in possession of the land before the Land Reforms Act came into force on

24.1.1971 or on 4.7.1973, when the Scheme of 1973 came into force.

18. In addition to the aforesaid submission with regard to execution of Kabuliatnama, learned counsel for the appellants also made the following two submissions : (i) Sons of Pal Singh (big land owner) were adult on 24.1.1971 (the appointed day), therefore, they were entitled to separate units of permissible area for themselves; and (ii) Due to the death of Pal Singh in the year 1978, there was inheritance of the land in question, thus the surplus area case requires re- determination in the hands of the heirs of Pal Singh.

19. Both these submissions are without any substance. Since 28 Kanals 12 Marlas of land stood utilised before 24.1.1971, the appointed day, and much prior to the death of Pal Singh, therefore, in view of the Full Bench decisions of this Court in Ajit Kaur and others v. The Punjab State and others, 1980 PLJ 354 and Ranjit Ram v. The Financial Commissioner, Revenue, Punjab and others, 1981 PLJ 259, sons of big land owner cannot claim separate permissible unit from the utilised land. LPA No. 1681 of 2011 ( O&M ) -14- Regarding re-determination of the land in question, in Sudarshan Nath v. State of Punjab, 2000 (2) PLJ 97, the Hon'ble Supreme Court has held that once the area with the original land holder is declared surplus and utilised under the Utilisation Scheme during the life time of the big land owner, his legal heirs are not entitled to claim re-determination after his death. In the instant case, a finding of fact has been recorded that the land in question was utilised before the death of big land owner. Therefore, his legal heirs, i.e. the appellants herein, are not entitled to claim re-determination of the land in question.

20. It is pertinent to mention here that with regard to remand of the case, no argument was raised by learned counsel for the appellants. It appears that the re-settled tenant has also accepted this part of the order of the Financial Commissioner, as against the dismissal of his writ petition challenging that part of the order, no Letters Patent Appeal has been filed by him.

21. In view of the above, the order passed by the learned Single Judge does not require any interference and there is no merit in the instant appeal.

22. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE July 04, 2012 ( T.P.S. MANN ) JUDGE