7.                  Determination of permissible and surplus area – (1) On the basis of the information given in the declaration furnished under section 5 or the information obtained under section 6, as the case may be, and after making such inquiry as he may deem fit, the Collector shall, by an order determine the permissible area and the surplus area of a landowner or tenant, as the case may be.

 

“[(2)] If any person referred to in sub-section (1) of section 5 fails to furnish the declaration or files a declaration containing which is false or which he knows or has reason to believe to be false or which he does not believe to be true, he shall be punishable with the imprisonment which may extend to two years, or with fine which may extend to two thousand rupees or with both].

 

(3) [--]

 

(4) For the purpose of determining the surplus area of any person,--

(i) any judgement decree or order of a Court or other authority obtained [on or after the appointed day] and having the effect of dismissing the surplus area of such 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 person under the Punajb Law, the Pepsu law or this Act;

 

COMMENTS

            Tenant’s Permissible area –If the petitioner was tenant on the appointed day and had continued to be a tenant continuoudly it would be manifestly unfair to deprive him of tenants permissible area merely because he subsequently purchased a part of the tenancy. Whether he in fact was entitled to tenants permissible area, is a metter to be examined by the Collector. Raja Ram vs. State of Punjab, 1992 LLT 26(F.C.Punjab)

 

            Purchase of land – It is not known whether, for purposes of assessment, the land so purchased under Section 18 of the Punjab Security of Land tenures Act was included in the land owner’s total holding or not, and if included, as alleged by the petitioner, the reasons for doing so and ignoring the purchases. I therefore, direct that the Collector may examine this aspect carefully and carry out a review of the order dated 22.11.1976 in which he must hear not only the petitioner but the departmental authorities, the landowner and the tenants-purchasers with an opportunity to them to lead evidence in cases the purchases were based only on account of the landowner and not on the evidence  on entries in the revenue record. Until this examination is done, the surplus area should not be utilised. Devi Lal vs. State etc., 1988 PLJ 202

 

            Absence of notice – No notice whatsoever was given to the petitioners though they were tenants on the appointed day i.e. 24.1.1971. The surplus area case of the big landowner was filed under the New Act as he died on 8.8.1985 and the surplus area was to be re-determined in the hands of the legal heirs but the Special Collector(Agrarian) Fazilka, vide his order dated 26.5.1987 upheld the order dated 28.9.1962 which was passed under the Old Act whereas he should have determined the surplus area in the hands of legal heirs of the big landowner under the New Act. He should have decided it on merits. Waryam Ram etc. vs. The State of Punjab etc., 1991 PLJ 35

 

            Re-opening of case – The area was declared  surplus in the year 1960/1980 and these orders have not been set aside. The surplus area under the tenancy of Jagat Ram was allotted to him on 24.3.1982 and he deposited the purchase amount on 30.3.1982 in the Treasury. It has been held in C.W. No.8230 of 1976 as reported in 1980 PLJ 571 that after deposit of first intalment the tenant becomes the landowner. After the deposit of Rs.5900/- in the Treasury on 30.3.1982 the allottee, Jagat Ram, became the landowner. Due to death of the original landowner in the year 1984 this aspect of the case cannot be reopened as the land stood utilized during the life-time of the landowner who did not challenge this order either in appeal or revision. Jagat Ram (now deceased) rep. By his sons vs. State and another, 1990 PLJ 548

 

            Withdrawl of the notice – The Collector had withdrawn notice under Section 9(1) of the Punjab Land Reforms Act vide his order dated 23.1.1984. There is nothing on the file to show that the petitioners are relations of the landowners and there is also finding of the Collector that the petitioners are not related to the landowners in any way. The petitioners purchased the land by a valid order and the Collector had rightly withdrawn notice under the Punjab Land Reforms Act. Moreover, the petitioners were not before the learned Commissioner at the time of passing of the order adversely affecting their case. The Commissioner could not pass the order against the petitioners adversely affecting their interest without affording opportunity of being heard to them. Keeping in view the above discussion and facts and circumstances of the case, I agree with the contentions raised by counsel for the petitioners in Revenue Officer. Gurdarshan Singh alias Darshan Singh vs. State of Punjab etc., 1990 PLJ 311

 

            Separate permissible unit – the Commissioner has rejected the plea of the petitioner Om Parkash that he be given tenants’ permissible area on the ground that Om Parkash is the adopted son of the land owner Mohari Ram and, therefore, cultivation by Om Parkash becomes self-cultivation by the landowner, in that view of the matter it was incumbent on the Commissioner to determine the claim that the petitioner was adult on the appointed day and, therefore, entitled to a separate permissible unit. Om Parkash vs. State of Punjab, 1992 LLT(22) (F.C.Punjab)

 

            The eldest son of the landowner Manmohan Singh was major on the appointed date. But he was granted citizenship of Australia on 8.6.1973. Certificate is on the file of the Collector on the date of decision of the case by the Collector(agr.) in the year 1976. Manmohan Singh was not a citizen of India as such, no benefit of additional unit being son of the landowner be given to him. The landowner had sold approximately 19 acres of land in village Sadhowal in the year 1973-74. As the sale was made after appointed date so this is to be ignored and the land will be counted in the hands of big landowner. Similarly any land subsequently acquired by the landowner will also be counted towards his total holdings. The Collector(agr.) has given benefit of adult son to Harpreet Singh, who attained majority in the year 1979. This is wrong as the benefit of adult son is to be counted as on 24.1.1971 and no afterwards. As mentioned in the order of the Collector(Agr.) Garhshankar dated 30.1.1980 the landowner had concealed material facts in his affidavit dated 19.2.1976 filed in connection with the proceedings before the Collector(Agr.) under the Land Reforms Act. This may be looked into and all the land standing in the names of his sons should be counted and appropriate action be taken under Section 23 of the Land Reforms Act, 1972. This is a fit case to impose a cut of 2 hectares as envisaged in the Act.

 

            The order of Collector Agrarian dated 12.5.1976 continues to be the basic order with regard to determination of surplus area quantum. It is matter of fact and is conceded by the counsel for the State also that Chanan Ram, petitioner, was not given notice. This is his legal right. On this ground alone I have to remand the case to Collector Agrarian, Abohar, to give a hearing to the petitioner and pass an order on the validity or otherwise of the relief claim by Chanan Ram. Collector Agrarian, Abohar, is directed to give the petitioner an early hearing. Chanan Ram vs. State of Punjab and others, 1991 PLJ 794

 

            The petitioners have not been granted opportunity of hearing only on the ground that the sales had taken place after the “appointed day”. The fact remains that the petitioners had got registered sale deeds in their favour. They were in actual physical possession of the land. By the impugned action they were likely to be deprived in their land. The civil rights were bound to be affected. Sabar Khan and others vs. Financial Commissioner(Appeals) Punjab and others, 1993 PLJ 208

 

            Sale --  The sale in favour of the petitioner by the original landowner was made in the year 1974 and mutation too was sanctioned on 30th October, 1974, whereas the order of the Collector was made in 1977. I am of the view that the petitioner had a right to show before the authorities below that the sale effected in his favour was bona fide one which entitled him to the retention of the area sold to him. It is also clear from the impugned orders Annexures P-3 and P-4 that the solitary ground on which the Commissioner as also Financial Commissioner had dismissed the revision petition filed by the petitioner  was that they were time barred. I am of the view that the orders impugned before those authorities were made without issuing any notice to the petitioner, and as such, were void in the eye of law. Bhupinder Singh vs. State of Punjab, 1992 PLJ 462

 

            Selection made by the landowner – The decision made by the landowner need not and should not have been honoured for it was not a valid selection because it was made after the prescribed date and it was not made in the form prescribed. The Collector was competent to make his own selection of the permissible area of the landowner and justice and equity demanded that the area in question should be included in the landowner’s permissible area. Hukam Chand etc. vs. State and Hazari Ram, 1988 PLJ 386

 

            Separation of the possession – Where there is a mere separate of  the possession as distinguished from a partition, the entire holding still remains the joint property of all the co-sharers; and though each sharer  holds separate possession of a portion of the holding, and may be allowed to manage such portion and appropriate the whole of its proceeds, he is yet not competent to deal with it in any manner which would be prejudicial to the joint proprietary interest of all the co-sharers in each and every part of the holding. Thus all that she holds in that joint khata is a joint right and this joint right has not been for any exclusive right to any specific khasra numbers. Since none of her rights has been infringed while deciding the surplus area case of Siri Ram, she, in fact, has no locus standi even to file an appeal against the order of the Collector Agrarian dated 6.6.1973 declaring the surplus area of Siri Ram. Apart from this, the petitioner Ved Wanti had no locus standi in filing the appeal or even the present revisions petition when her right has not at all been touched by the Collector vide his order dated 6.6.1973. Ved Wanti vs. State of Punjab and others, 1990 PLJ 124

 

8.                  Vesting of utilized surplus area in the State Government – Notwithstanding anything contained in any law, custom or usage for the time being in force, but subject to the provisions of  section 15, the surplus area declared as such under the Punjab Law or the Pespu Law, which has not been utilized till the commencement of this Act and the surplus area declared as such under this Act, shall on the date on which possession thereof is taken by or on behalf of the state Government, vest in the State Government, free from all encumbrances and in the case of surplus area of a tenant which is included within the permissible area of the landowner, the right and interest of the tenant in such area shall stand terminated on the aforesaid date:

 

            Provided that where any land falling within the surplus area is mortgaged with possession, only the mortgagee rights shall vest in the State Government.

 

COMMENTS

 

            The land  in dispute after being declared surplus in 1962 continues to be surplus and from the date the above quoted provisions of Land Reforms Act came into force, all surplus land stands vested in the State Government from the date of possession thereof is taken by or on behalf of the State Government. Apart from this Section 8 of the Punjab Land Reforms Act vests all the surplus area declared under the Punjab Law in the State Government and no exemption has been provided in the Punjab Land Reforms Act and nor does the Punjab Security of Land Tenures Act contain any provision under which this land can be exempted by any authority. Anokh Singh etc. vs. State of Punjab, 1988 PLJ 331

 

            The tenants were delivered possession in the year 1962 and after passage of time they became eligible for enforcement of P.Rights. There is no bar that the allottee should apply at a given time. As indicated above, after 1962 the land was not available and the judgement of Ranjit Ram’s case 1981 PLJ 259 FB is not applicable in these case. As rightly held by the ld. Commissioner in his impugned order that execution of Patta Nama was a mere technicality after the delivery of possession and upsetting the order by the Collector Agrarian, Jalandhar without obtaining the prior permission of the competent authority is illegal and rightly set aside by the ld. Commissioner. Swaran Singh vs. State of Punjab and another, 1990 PLJ 485

 

            Under Section 8 of the 1972 Act, the land vests in the State Government free from all encumbrances only on the date on which possession thereof  is taken by or on behalf of the State Government. In this case when possession was taken, that is, on 28th March, 1983, the landowner had died and it has to be seen whether the matter of surplus area had to be re-determined in the hands of his heirs or the taking of possession after the death of landowner is in accordance with law. Karnail Singh vs. State of Punjab and others, 1989 PLJ 95

 

SECTION 9

 

9.         Power to take possession of surplus area – (1) The Collector may, by an order in writing after an area has become surplus under the Punjab Law or the Pepsu Law or becomes surplus under this Act, direct the landowner or tenant or any other person in possession of such area to deliver possession thereof, within ten days of the service of the order on him, to such person as may be specified in the order.

 

(2) If the landowner or tenant or any other person in possession of such area refuses or fails without reasonable cause to comply wit the order made under sub-section (1), the Collector may take possession of that area and may, for that purpose use such force as may be necessary.

 

COMMENTS

            Notice – As the petitioner had purchased 32 Kanals out of the entire holding Mool Chand, they received a notice dated October 28, 1975 under Section 9(1) of the Punjab Land Reforms Act, 1972 for delivering the possession of the surplus area. Without determining the surplus area afresh in accordance with the judgement of this Court in CWP No.3211 of 1969, the writ petitioners could not be asked to deliver possession. They could only be asked to deliver possession in case it is found that the area since Mool Chand has died, it would have to be seen whether there is any surplus area in the hands of the heirs of Mool Chand. Roop Singh vs. State of Punjab, 1991 PLJ 560

 

            Applicability of provisions --  If the provisions of Section 14 of the Reforms Act were intended not to apply to the surplus area determined and finalized under the Punjab Act and this provision was only intended for the purpose of declaration of permissible area as contemplated by section 4, 5 and 6 of this Act, the said provision could not have been placed in Chapter II of the Act, the said provision could not have been placed in Chapter II of the Act. A separate provision beyond Chapter II of the Act would have been made. This section again would not have started with a non obstante clause. This leads me to a conclusion that Section 14 which is a part of Chapter II of the Reforms Act applies to a case of the present nature, and if the petitioner is able to establish the conditions imposed by the said section he is entitled to the relief but if otherwise all or any of  the conditions are not satisfied, the order declaring the surplus area of the petitioner’s land under the Punjab Act would stand and the authorities would be well justified in seeking possession thereof in terms of Section 8 and 9 of the Punjab Act. Mahant Sewa Dass Chela Mahant Rattan dass vs. State of Punjab, 1992(2) Rev.LR 562

 

            It is not the case of the State that land in the hands of the petitioner or other heirs of Inder Singh is also surplus. Be that as it may, the earlier order of the Collector cannot be given any effect and the authorities under the Punjab Land Reforms Act can at the most calculate the  land of each of the successors of  Inder Singh and if any of them has land, in excess of the permissible area under the Punjab Land Reforms Act, the same may be declared as surplus, Albel Singh vs. State of Punjab, 1992(2) CLJ 360

 

            Proceedings under Section 9--  Are in the nature of execution proceedings after the surplus area has been determined under Section 5 of  the Act. As far as the petitioner is concerned, his surplus area was originally declared in 1976 and it was on remanded by the Commissioner that the surplus area was re-assessed in 1980 and the surplus area of the appellant was deduced from 0.5235 to 0.2813 hectares of first quality land. The appellant having been present in all these proceedings there orders were very much in his knowledge. After he failed to prefer an appeal/revision against the orders determining the surplus area within the limitation prescribed under the Act, the petitioners have forefeited the right to challenge the same which operate  as res judicata between the petitioners and the State Government. Puro Bai etc. vs. State, 1989 PLJ 46

 

            Notice --   The process-server has himself recorded that the petitioners were away. As they were away he pasted the notice on the doors of their residence and had a proclamation made through the Chowkidar. This is not proper service. Further effort should have been made to serve notice on the petitioners personally and failing that on an adult member of the family. This summary resort to proclamation was not at all appropriate. Pirthi Raj etc. vs. state of Punjab, 1988 PLJ 391

 

            Possession – The surplus area declared was not utilised before the death of the landowner nor its possession was taken by the State Government. Even if possession had been taken by the State Government before the death of the landowner in whose hand the area was declared surplus by virtue of section 8 of the 1972 Act, the land would have vested in the State Government free from all encumbrances from the date of taking possession. Since even possession was not taken before the date of death the taking of possession on 28.3.1983 as also the order of allotment dated 30.3.1983 are without jurisdiction and were rightly  set at naught by the learned Financial Commissioner. Karnail Singh vs. State of Punjab and others, 1989 PLJ 95

 

10.  Amount payable for the surplus area --  (1) The Collector or the officer authorised by the State Government in this behalf shall determine the amount to be paid for the land which has vested in the State Government under section 8, in accordance with the priciples hereinafter set out, that is to say—

 

(i)                  for the first three hectares of land, twelve times the fair rent, subject to a maximum of five thousand rupees per hectare;

 

(ii)                for the next three hectares of land, nine times the fair rent subject to a maximum of three thousand seven hundred and fifty rupees; per hectare; and

 

(iii)               for the reamining land, six times the fair rent, subject to a maximum of two thousand and five hundred rupees per hectare.

 

Explanation – For the purposes of this sub-section, `fair-rent’ shall mean the value of one fifth of the gross produce of the land determined in the prescribed manner by the Collector or the officer authorised in this behalf by the State Government.

 

(2) For the purposes of sub-section (1), the Collector or the officer authorised by the State Government shall prepare a statement in such form and manner as may be prescribed and shall, after following the prescribed procedure, apportion the amount amongst the persons, including tenants, having interests in the land.

 

(3) where in the surplus area of any person mortgagee rights have vested in the State Government, the amount payable to the mortgagee shall be the mortgage money due to the mortgagee, or the amount payable under this section, whichever is less.

 

(4) The amount shall be payable either in lump sum or in half-yearly instalments not exceeding fifteen in the manner prescribed.

 

Provided that the amount shall be applied firstly to discharge Government dues, secondly to meet the claims of secured creditors and then to pay dues of other claimants.

 

COMMENTS

           

The writ petition in this case has acquired the constitutional validity of the provisions of the Act authorizing the declaration, utilization and taking possession of the land declared surplus without making any provision for payment of compensation for structural improvements, cemented khals, valuable standing timber, garden and crops and the amount provided for the land declared surplus and taken possession under Section 10 is illusory and the provisions are illegal, void and utlra vires Articles 300-A of the Constitution and the inherent right of the petitioner to be paid just compensation. However, what is contended by the learned counsel is that Section 10 of the Act, in effect, does not provide for payment of compensation for structural improvements, cemented khals, valuable under timber, garden and crops and that therefore, that provision is ultra vires of Articles 300-A of the Constitution and the inherent right of the petitioner to be paid just compensation Bal Raj ahuja vs. State of Punjab and another, 1988 PLJ 423

 

11.  Disposal of surplus area—(1) The surplus area, which has vested in the State Government under section 8, shall be at the disposal of the State Government.

 

(2) The State Government may, by notification in the official Gazette frame a scheme for utilizing the surplus area under the Punjab law, the Pepsu law or this Act by –

 

(a)    conferment of rights of ownership or tenants in respect of such land as is comprised in the surplus area of the landowner of such a tenant; and

 

(b)   allotment to tenants, members of  Scheduled Castes and Backward Classes of the landless agricultural workers, of an area not exceeding two hectares of the first quality land or equivalent area, provided that the total area held or owned by any such allottee after the allotment, shall not exceed two hectares of the first land or equivalent area.

 

(3) Any scheme framed by the State Government under sub-section (2) may provide for the terms and conditions on which the rights of ownership are to be conferred on the tenants and also the terms and conditions on which the land comprised in the surpkus area is to be allotted.

 

(4) The State Government may, by notification  in the official Gazette add to, amend, vary or revoke any scheme made under this section.

 

(5) Notwithstanding anything contained in any 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 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) The utilization  of any surplus area before the commencement of this Act will not affect the right of the tenant to purchase land in accordance with the provisions of section 15 of the right of the landowner to receive rent from the tenant settled on the surplus area till the tenant becomes the owner thereof.

 

(7) Where succession has opened after the surplus area or any part thereof 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.

 

COMMENTS

Re-determination of area – In the light of this authoritative pronouncement it appears wholly unnecessary to examine the matter any further and it can safely be ruled  that after the death of a landowner in whose hands some area has been found to be surplus under the provisions of the Act and remained un-utilised till the date of his death or the enforcement of Land Reforms Act (No.10 of 1973) it has to be re-determined in the hands of his heirs. This re-determination has to be made not only when the land of the deceased landowner has actually been inherited by  his natural heirs by way of succession but also on the notional basis that it has been so inherited. Further, in the instant case the State authorities cannot have in both ways, i.e., to ignore the decree Annexure P-2 in the light of section 10-A© during the life time of Kesar Singh and give effect to it after his death. This decree having been ignored in the light of the above-noted provision, had continued to be ignored  while assessing the permissible limits of the heirs of Kesar Singh. On account of his death, the order of the Collector dated December 19, 1960 determining his permissible limit had become inoperative as opined in Sarmukh Singh’ case (supra) and his land had ceased to be his holding as ruled in Smt. Ajit Kaur’s case (supra). Therefore, any land declared as surplus with Kesar Singh vide order dated December 19, 1960 could neither be treated as his land while in the hands of the petitioner nor can it be so taken away by the State authorities for purposes of utilisation under the Act. Piar Kaur vs. State of Punjab, 1989 PLJ 503

 

It has come on the record that Inder Singh dies on the 26th November, 1983 and as the surplus area declared under the old Act had neither vested in the Government nor had it been utilized by it, the area was required to be re-assessed in the hands of the legal heirs of Inder Singh, in view of the ruling reported in 1980 PLJ 354, which would lead to the identical result of the area going out of the surplus pool. Gurdev Singh and others vs. State of Punjab and another, 1988 PLJ 317

 

            The plaintiff not the suit property through  a Will and, therefore, the plaintiffs are not entitled to the benefit of Section 10-A(b) of the Punjab Security of Land Tenures Act. 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 is no sense can be termed as inheritance. Merely because landowner died was of no consequences as regards the rights of the State to utilize the surplus area. State of Punjab vs. Gurcharan Singh and others, 1991 PLJ 421

 

            The surplus area case of respondent No.2, big landowner was finalized on 26.5.1977 and at that time, the petitioners were not tenants on the land. The petitioners came on the land only in year 1984 i.e. after 5 years of its having  been declared surplus which shows connivance of the big landowner beyond doubt . By referring to 1983 PLJ 23 and 1985 PLJ 226, the petitioners cannot equate themselves with the petitioner(s) in those cases. Since the present petitioners were neither tenants on the appointed day nor was the land under their tenancy on 26.5.1977, when it was declared surplus in the case of respondent No.2, their claims were rightly rejected by the Collector. Jagdish vs, State and another, 1991 PLJ 792

 

            After the finality of the case an attempt has been made to re-open the case due to the death of Guru Mahant Rattan Dass. This is not a case of inheritance as the Chela i.e. the present petitioner has stepped into the shoes of his Guru and he cannot have better title than Guru. The land declared surplus in the hands of Guru will remain surplus in the hands of Chela after the death of Guru because it is not a case of natural inheritance. The second plea taken by the Land Reforms Act exemption should have been granted. As the case already been decided under the Punjab Security of Land Tenures Act, 1953 under which no exemption was provided to the religious  and charitable institution and it has not been prved on record that the institution is religious and charitable one, so the plea for granting exemption is not tenable and has no force. Mahant Sewa Dass Chela Mahant Rattan Dass vs. The State, 1991 PLJ 710

 

12.  Bar on future acquisition of land in excess of permissible area – (1) Notwithstanding anything to the contrary in any law, custom, usage, contract or agreement, from and after the commencement of this Act, no person, whether as landowner or tenant, shall acquire or possess by transfer, exchange, lease agreement or settlement any land, which with or without the land already owned, or held by him, in the aggregate, exceeds the permissible area:

 

Provided that nothing in this section shall apply  to land held by a co-operative society  of the land owned or held by an individual member of the society together with his share in the land held by such a society  does not exceed the permissible area.

 

            (2) Any transfer, exchange, lease, agreement or settlement made in contravention of the provisions of sub-section (1) shall be null and void.

 

13.  Power to separate share of landowners in joint lands – (1) Where a person owns land jointly with other persons and his share of such land or part thereof has been or is to be declared as surplus area, the Collector, on his own motion, may, after summary enquiry and after affording to such a person on opportunity of being heard, separate his share of such land or part thereof on the land owned by him jointly with the other persons.

 

            (2) Where, after the declaration of the surplus area of any person and before the utilization thereof, his land has been subjected to the process of consolidation, the Collector shall slao be competent to separate the surplus area of such a person out of the area of Land obtained by him after consolidation in the manner referred to in sub-section (1).

 

COMMENTS

 

            Joint Holding – A joint holding which should be separated in terms of Section 13(1) of the Punjab Land Reforms Act before the permissible and the surplus area can be specified. It does not seem from the orders passed that this has been done. The reply on behalf of the State is that this separation can be done even after determining  the surplus area and further that the landowner has made a selection of the specific khasra numbers to be placed in the surplus area. It does not appear that other co-sharers have been heard on this selection. It is possible that they might object to this selection if they are in possession of the khasra numbers proposed to be declared surplus. It would therefore be desirable if separation in terms of  Section 13(1) is done and the landowner directed to make his selection of the khasra numbers to be included within the permissible area in terms of the order of separation passed. For this purpose, the other co-sharers will also have to be heard before a decision on the selection is made. Pirthi Singh vs. State of Punjab, 1988 PLJ 86

 

Appeal against order of Assistant Collector – To be only before Collector or other competent revenue authority – On behalf of the petitioner, it was mainly contended that since the order of the Assistant Collector 1st Grade was passed only under sub-section (1) of Section 117 of the Act, no appeal lies against such an order before the Court of Additional District Judge and as such the impugned order passed by the Additional District Judge, Bhiwani cannot be legally sustained, in view of lack of inherent jurisdiction of the said Court which dealt with the matter as an appellate Court. There is considerable merit in the contention raised by the learned counsel for the petitioner. No appeal lies against the order of the Assistant Collector 1st Grade passed in this case in as much as the said order was passed only under sub-section (1) of Section 117 of the Act and not under any of the clauses of sub-section (1) of Section 117 of the Act. Appeal against the order of the Assistant collector could only be filed before the Collector or other competent revenue authority and certainly not before the District Judge. Mam Chand vs. Banarsi and others, 1993 PLJ 34 = 1993(2) SLJ 2019

 

Partition – The State can get the land partitioned under Section 13 of the Act, 1972 or under Section 111 of  the Punjab Land Revenue Act, 1887. No right of the petitioners has been infringed and as such the revision petitions sought to be dismissed. The provisions of Section 13(1) of the Act, 1972 allow absolute freedom to the Collector Agrarian to declare the surplus area without separating the joint holding of the co-sharers. Gian Singh vs. State of Punjab and others, 1991 PLJ 224

 

SECTION 14

 

14.  Exemption of lands belonging to religious or charitable institutions – Notwithstanding any judgement, decree or order of any court or authority, the provisions of this Chapter shall not apply to lands belonging to any religious or charitable institution of a public nature in existence immediately before the date of commencement of this Act, but not belonging to the mahant, mohtamim or manager thereof;

 

            Provided that the exemption specified herein shall be admissible till such time only as the land or income therefrom is utilized for the specified purpose of such institutions and shall not be admissible to the lessees of such lands.

 

            Explanation – For the purpose of this section, `religious or charitable institution’ means –

 

(i)                  a temple;

(ii)                a gurudwara;

(iii)               a gaushala;

(iv)              a wakf as defined in clause (ii) of section 3 of the Wakf Act, 1954 Parliament Act 29 of 1954); or

(v)                any other religious place of the public nature.

 

COMMENTS

 

            The land declared surplus in the hands of Gurur will remain surplus in the hands of Chela after the death of Guru because it is not a case of natural inheritance. The second plea taken by the counsel for the petitioner is that the institution is religious one and under the Land Reforms Act exemption should have been granted. As the case already been decided under the Punjab Security of Land Tenures Act, 1953 under which no exemption was provided to the religious and charitable institution and it has not been proved on record that the institution is religious and charitable one, so the plea for granting exemption is not tenable and has no force. Mahant Sewa Dass Chela Mahant Rattan Dass vs. the State, 1991 PLJ 710

 

            The main plea taken on behalf of the petitioner is that Akhara Braham Buta is religious and charitable Institution of a public nature and this is stands exempted  under Section 14 of the Punjab Land Reforms Act and the tenants-respondents have no right to make applications for purchase under Section 18 of the Punjab Security and Land Tenures Act, 1953 read with Section 15 of the Punjab Land Reforms Act. The respondents do not fulfill the requisition conditions as laid down in Section 18 of the Punjab Security of Land Tenures Act; that Section 15 of the Land Reforms Act cannot overdrive the provisions of Section 14 of the Act; that the respondent is not in possession of the land in dispute from the year 1953. Had they been in possession, the tenants permissible area would have been declared. Akhara Braham Buta vs. Shri Inderjit (since dead) Rep. By his L.Rs., 1991 PLJ 503

 

CHAPTER III

Miscellaneous

 

15.  Saving of certain rights of tenants to purchase land – (1) Notwithstanding anything contained in this Act, a tenant who was entitled to purchase the land comprised in his tenancy, under section 18 of the Punjab Law or section 22 of the Pepsu Law, as the case may be, immediately before the commencement of this Act, shall be entitled  to purchase such land from the landowner on the same terms and  conditions, as were applicable immediately before such commencement;

 

Provided that –

(i) the amount payable by the tenant for the land shall be equivalent to ninety times the land revenue (including rates and cases) payable for such land or five hundred rupees per hectare, which ever is less; and

 

(ii) the procedure for purchase of such land shall be as is specified hereinafter and the period of limitation for exercise of such a right shall be one year from the date of commencement of this Act.

           

            (2) An application for the purpose of land under sub-section (1), shall be made to the Assistant Collector of the first grade having jurisdiction who shall, after going notice to the landowner and after making enquiry in the prescribed manner, determine the amount payable in respect thereof;

 

            (3) The tenant may pay the amount determined under sub-section (2) either in lump sum or in half yearly instalments not exceeding fifteen in the manner prescribed.

 

            (4) On the payment of the entire amount or the first instalment thereof, as the case may be, the tenant shall be deemed to have become the owner of the land and the Assistant Collector shall, where the tenant is not already in possession of the land, put him possession thereof, subject to the provisions of the Punjab Tenancy Act, 1887.

 

            (5) If a default is committed in the payment of any of the instalments, the entire outstanding balance shall on application by the person entitled to receive it, be recoverable on the purchase price.

 

            (6) If the land is subject to mortgage at time of purchase, the  land shall pass to the tenant unencumbered by the mortgage, but the mortgage amount shall be charge on the purchase price.

 

COMMENTS

 

            When the old landowner has died, the entire case had become open and the surplus area had to be re-determined in the hands of his heirs and the benefit thereof could be derived by the vendees too. He was further emphatic that surplus area proceedings would not reflect on proceedings under Section 15 of the New Act and may even wipe them off. Bhag Singh and another vs. Financial Commissioner and others, 1989 PLJ 541

 

SECTION 16

 

16.       Summary eviction and fine – (1) Any person who is in wrongful or unauthorised possession of any land.

 

(a)    the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act; or

 

(b)   to use and occupation of which he is not entitled under the provisions of this Act;

 

may, on an application made within a period of one year of such wrongful or unauthorised possession, and after summary enquiry, be ejected by the Collector, who may also impose on such person a penalty not exceeding one thousand rupees.

 

(2) The Collector may direct that the whole or any of the penalty imposed under sub-section (1) shall be paid to the person who has sustained any loss or damage by the wrongful or unautheorised possession of the land.

 

17.              Abrogation of pending decrees, orders and notices – No decree or order of any court or authority and no notice of ejectment shall be valid save to the extent to which it is consistent with the provisions of this Act.

 

18.              Appeal, review and revisions --  The provision in regard to appeal, review and revision under this Act shall, so far as may be, the same as provided in sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1987 (Act XVI of 1887).

 

COMMENTS

            After he failed to-prefer an appeal/revision against the orders determining the surplus area within the limitation prescribed under the Act, the petitioners have forefeited the right to challenge the same which operate as res judicata between the petitioners and the State Government, Paro Bai etc. vs. State, 1989 PLJ 46

 

            The time limit for filing appeals under the Punjab Land Reforms Act is governed be Section 81 of the Punjab Tenancy Act, 1887, which is admittedly a special and local law and that being so, the time limit mentioned therein is to be adhered to strictly and cannot be extended by having recourse to the provisions of Limitation Act which is not applicable to cases where the limitation for filing appeals etc. has been prescribed in any special or local law as discussed in para 4 above. Paro Bai etc. vs. State, 1989 PLJ 46

 

19.              Correction of clerical errors – Clerical and arithmetical mistakes in any order passed by any officer or authority under this Act or errors arising therein from any accidental slip or omission may at any time be corrected by such officer or authority either of his own motion or on an application received in this behalf from any of the parties.

 

20.              Court fees --  Notwithstanding anything by contained in the Court-fees Act, 1872 (VII of 1872), every application, appeal or other proceeding under this Act shall bear a court-fee stamp of such value as may be prescribed.

 

21.              Bar of jurisdiction – (1) save as provided by or under this Act, the validity of any proceeding or order taken or made under this Act shall not be called in question in any court or before any other authority.

 

(2) No civil court shall have jurisdiction to entertain any suit, or proceed with any suit instituted after the appointed day, for specific performance of a contract for transfer of land which effects the right of the State Government to the surplus area under this Act.

 

22.              Indemnity – No suit or other legal proceedings shall lie against any authority in respect of anything done in goods faith in pursuance of the provisions of this Act.

 

Note – The section indemnifies all the authorities for their lawful action under the provisions of this Act. The action of the authority, however, must be in good faith and in pursuance of the provisions of this Act. As provided in section 3(22) of the General Clauses Act, 1887, a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not.

 

23.              Penalty for making false statements –- If doing, the course of any proceedings under this Act, any person makes a declaration or a statement or furnishes any information which is false or which he knows or has reason to believe to be false or which he does not believe to be true, he shall be punishable with imprisonment which may extent to [two years] or with fine which may extend to [two thousand rupees0, or with both.

 

COMMENTS

 

            The eldest son of the landowner Manmohan Singh was major on the appointed date. But he was granted citizenship of Australia on 8.6.1973. Certificate is on the file of the Collector on the date of decision of the case by the Collector (Agr.) in the year 1976. Manmohan Singh was no citizen of India and as such, no benefit of additional unit being son of the landowner be given to him. The landowner had sold approximately 19 acres of land in village Sadhowal in the year 1973-74. As the sale was made after appointed date so this is to be ignored and the land will be counted in the hands of the big landowner. Similarly any land subsequently acquired by the landowner will also be counted towards his total holdings. The Collector(Agrs.) has given benefit of adult son to Harpreet Singh, who attained majority in the year 1979. This is wrong as the benefit of adult son is to be counted as on 24.1.1971 and not afterwards. As mentioned in the order of the Collector(Agr.) Garhshankar dated 30.1.1980 the landowner had concealed material facts in his affidavit dated 19.2.1976 filed in connection with the proceedings before the Collector (Agr.) under the Land Reforms Act, 1972. This is a fit case to impose a cut of 2 hectares as envisaged in the Act. Gurbachan Singh vs. Harbans Singh and another, 1991 PLJ 226

 

24.              Mode of recovery – Any amount payable under this Act including the amount of penalty imposed under this Act may be recovered as arrears of land revenue.

 

            Note – under this section any amount payable under this Act including the amount of penalty imposed under this Act is recoverable as arrears of land revenue. For procedure regarding recovery of arrears of land revenue see section 67 to 99 Punjab Land Revenue Act, 1887.

 

25.              Power to remove difficulties --  If any difficulty arises in giving effect to the provisions of the Act, the State Government may, by order published in the official gazette make such provision or give such directions not inconsistent with the provisions of this Act, as appears to it be necessary or expedient for removing such a difficulty.

 

26.              Power to make rules – (1) The State Government may,, by notification in the official Gazette make rules for carrying out the purposes of this Act.

 

            2) Every rule made under this section shall be laid, as soon as may be after it is made, before the House of the State Legislature while it is in session for a total period of ten days which may be comprised in one session or two successive sessions, and if before expiry of the session in which it is so laid or the session immediately following the House agrees in making any modification in the rule or the House agrees that the rule should not be made, the rule shall thereafter have effect only in such modified from or be of no effect as the case may be so, however, that any such modification or annulment shall be without prejudice to the validity of any thing previously done under that rule.

 

27.              Exemption of certain lands from the operation of the Act --  The provisions of this Act shall not apply to –

 

(a)                            lands owned by or vested in the State Government otherwise than under the provisions of this Act, or lands taken on lease by the State Government;

 

(b)                            lands belonging to or vested in a local authority or the Punjab Agricultural University or any corporation owned or controlled by the Central Government or the State Government;

 

(c)                            lands owned by or vested in or taken on lease by the Central Government;

 

(d)                            lands owned by the Bhoodan Yagna Board under the Punjab Bhoodan Yagna Act, 1955; and

 

(e)                            lands owned or held by an agricultural co-operative credit society, land Mortgaged Bank, the State or Central Co-operative bank or any other Bank;

 

(f)                              lands owned by an educational institution, recognised by Government which is engaged in the education and research in agricultural sciences and has been conducting such education and research on the appointed day;

 

(g)                            lands owned by an educational trust of public nature in existence on the appointed day];

 

Provided that nothing in this section shall apply to a lease of any of the authorities or institutions referred to above.

 

            Explanation – For the purposes of clause © “bank” means a banking company as defined in section 5 of the Banking Regulation Act, 1949, and includes the State Bank of India constituted under the State Bank of India Act, 1955, a subsidiary bank as defined in the State Bank of India (Subsidiary Bank) Act, 1959, a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and Agricultural Refinance Corporation constituted under the Agricultural Refinance Corporation Act, 1963.

 

28.              Repeal and Saving – (1) The Punjab Security and Land Tenures Act, 1953 and the Pepsu Tenancy and Agricultural Lands Act, 1955, in so far as these are inconsistent with the provisions of this Act, are hereby repeated.

 

(2) The repeal of the enactments mention in sub-section (1), hereinafter referred to as the said enactments, shall not affect—

 

(i) the proceedings for the determination of the surplus area pending immediately before the commencement of this Act, under either of the said enactments, which shall be continued and disposed of as if this Act had not been passed, and the surplus area so determined shall vest in and be utilised by the State Governmrnt in accordance with the provisions of the Act;

 

Provided that such proceedings shall, as far as may be, be continued and disposed of, from the stage these were immediately before the commencement of this Act, in accordance with the procedure specified by or under this Act, [and the cases pending before the Pepsu Land Commission immediately before the date of commencement of this Act shall transferred to the Collector of the district concerned for disposal].

 

Provided further that nothing in this section shall affect the determination and utilisation of surplus area, other than the surplus area referred to above, in accordance with the provisions of this act;

 

(ii) the previous operation of the said enactments or anything duly done or suffered thereunder.

 

(iii) any right, privilege, obligation or liability acquired, accrued or incurred under the said enactments, in so far as such right, privilege, obligation or liability is not inconsistent with the provisions of this Act and any proceeding or remedy in respect of such right, privilege, obligation or liability may be instituted, continued or enforced as if this Act had not been passed.

 

            Provided that such proceedings or remedy shall, as far as may be, instituted continued or enforced in accordance with the procedure specified by or under this Act.

 

COMMENTS

 

            Entitlement to select permissible area afresh – a landowner who owns land more than the permissible are under the Act on its commencement would be entitled to select permissible area for himself as also for his adult sons as provided in Section 5(1) of the Act but while making such selection, the landowner shall not be entitled to include any area declared surplus under the Punjab Law, the Pepsu Law or this Act, as provided by Section 5(2). Sukhcharah Singh vs. State of Punjab, 1993 PLJ 56

 

            The Collector (Agrarian) was not justified in rejecting the application of Harinder Rai petitioner for giving the benefit of section 5 of the Punjab Land Reforms Act on the ground that his appeal having been dismissed by the Commissioner and the case having been taken up in pursuance of the remand order of the Commissioner and the case of Saroj Rani etc., Harinder Rai petitioner could not be permitted to raise the plea of adult son etc. However, in view of the law laid down by the Punjab and Haryana High Court in the judgement reported in 1984 PLJ 385 such a objection could be raised before the Financial Commissioner even if it had not been raised before the Collector. The Collector should have given an opportunity to Harinder Rai to lead evidence on this point. Moreover, as per judgement reported in 1983 PLJ 319, the case of Harinder Rai Petitioner could not have been decided under the Punjab Security of Land Tenures Act, 1953 after the coming into force of the Punjab Land Reforms Act, 1972 with effect from 24.3.1973. The surplus are had to be re-determined under the new Act. Besides, the surplus area having not been utilised prior to the coming into  force of the Punjab Land Reforms Act, it had to be re-determined under the new Act. The utilisation made during the pendency of the litigation would not in any way affect the interest of the petitioners. On this point, I am supported by the judgement of the Punjab and Haryana High Court reported in 1982 PLJ 223. After the coming into force of the new Act of 1972, the petitioner was entitled to  reserve  the land for his adult son and other members of his family, as per the law laid down by the Full Bench of the Punjab and Haryana High Court in Ranjit Ram;s case (1981 PLJ 259). The aforesaid judgement also lays down that where surplus are declared under the old Act had not been utilised before the coming into force of the Punjab Land Reforms Act, 1972 it has to be  re-determined in accordance with the provisions of the Act of 1972. Under Section 5(1) of the Act of 1972, each son of a landowner who was adult on 24.1.1971 had to be allowed a separate unit of 7 hectares while determining the surplus area, if any. Harinder Rai Ahuja vs. The State and others, 1989 PLJ 612

 

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