Ranjit Singh, J.@mdashThis order will dispose of Civil Writ Petition Nos. 3911 of 1983 (Kaushalya Devi v. State of Haryana and Ors.), 3912 of 1983 (Parmod Kumar through L.Rs. v. State of Haryana and Ors.) and 4756 of 2000 (Smt. Kaushalya Devi and Ors. v. State of Haryana and Ors.). The facts are being taken from Civil Writ Petition No. 3911 of 1983.
2. The petitioner, who is a big landowner, is aggrieved against the order declaring 123.89 ordinary and 52.39 standard acres of her land surplus. Having failed in appeal and revision, she has impugned this order through the present writ petition.
3. The petitioner, a big land owner, was owner of 342.89 ordinary acres equivalent to 130.74 standard acres of land in village Fatehabad, District Hisar. In surplus proceedings initiated against her, the petitioner selected 60 ordinary acres which was less than 30 standard acres as her permissible area in the year 1958. This was done in a prescribed manner in form `E''. Subsequently, the petitioner again made fresh selection of permissible area immediately after consolidation in April, 1966. Petitioner had sold some area before 1958, which was not included in the permissible area. The lists which the petitioner had submitted in form `E'' in the year 1958 and 1966 are attached with the petition as Annexures P-5 and P-6, respectively.
4. The Collector declared 204.93 ordinary acres (75.44 standard acres) of land owned by the petitioner as surplus vide his order dated 20.10.1961. 23.79 standard acres was declared as tenants permissible area. An appeal against this order was filed by some tenants and the Commissioner set-aside the order passed by the Collector on 6.7.1971. The Commissioner remanded the case back to the Collector for re-determination of the surplus area. This time, the Collector on 13.2.1976 declared 30 standard acres as permissible area of the petitioner and gave benefit of 9.94 standard acres (65.36 ordinary acres) on account of Banjar land. 123.89 ordinary acres (52.39 standard acres) land was, thus, declared surplus by the Collector through his order dated 13.2.1976. The petitioner has made a grievance against this order on the ground that Collector had passed the order without application of mind and without going through the relevant jamabandies for the year 1951-52. The petitioner accordingly filed an appeal against this order before the Commissioner, who dismissed the same on 29.6.1978. The petitioner pleads that this order is cryptic and is without reasons. Petitioner then filed a revision before the Financial Commissioner. The petitioner also produced jamabandies for the year 1951-52 to show that land measuring about 120 ordinary acres was Banjar on the appointed date, i.e., 15.4.1953. The Financial Commissioner again has dismissed the revision on 31.1.1983. The petitioner, thus, filed this writ petition to impugn the orders passed by the Collector, Commissioner and Financial Commissioner.
5. On 18.8.1983, the petitioner filed amended writ petition which was allowed and dispossession stayed. The writ petition was finally admitted on 31.1.1984 and the stay granted was continued. Reply to the amended writ petition is filed on behalf of respondent Nos. 1 to 4 as well as by some of the private respondents. In the reply filed, the State has pointed out that from the form `E'' attached with the petition, it cannot be ascertained as to when it was submitted in the year 1958. It is further pointed out that this was also a composite selection by Prem Swarup, Chandra Vati, Pramod Kumar and Kaushalya Devi. They all selected 218-6 ordinary acres ,i.e., 54 acres, 5 Kanals and 5 Marlas each, which is equivalent to 28.75 standard acres. It is also disclosed that all these persons have mentioned that they have 240 acres of land in their possession, out of which they have reserved 218-1/4 for self cultivation and 22-1/4 acres as Ghair Mumkin, water-course, pond and abadi and accordingly pleaded that there is no surplus area with them. It was also pleaded that 1/4th of the share in the joint khata owned by them was Banjar, Pond area, School abadi and grave yard. The reply filed by the State would further mention the list of the permissible area (Ex.P6) and area totaling 240 ordinary acres, in which the petitioner has 1/4th share. It does not show that it is the same area which was selected as per form `E'' filed by the petitioner. It is, thus, stated that such selection could not be permitted because the reservation/selection once made cannot be changed. The official respondents have, thus, justified the order passed by the Collector, who had left 30 standard acres as permissible area of the petitioner giving benefit of 9.14 standard acres (65.36 ordinary acres) on account of Banjar land after perusing the relevant jamabandies. In the reply, it is also mentioned that benefit of Banjar area could be given only to the extent of share of the petitioner, which was 1/16th against the land of 125 acres demanded as Banjar by the land owner.
6. Almost identical stand is taken by the private respondents, who have filed reply. In addition, it is pointed out that initially the petitioner had not filed appeal against the order passed by the Collector on 20.10.1961. The appeal was filed by the tenants, which led to remand of the case for fresh decision. It is, thus, urged that petitioner apparently was satisfied with the order passed by the Collector. The private respondents have also justified the orders passed by Collector, Commissioner and Financial Commissioner.
7. The petitioner has attacked the impugned order primarily on three grounds. The counsel would first contend that as per jamabandi for the year 1951-52, it is clearly established that 120 ordinary acres of Banjar land was owned by the petitioner on the appointed date, i.e., 15.4.1953. The finding that this land was 65 ordinary acres is termed as erroneous. The plea of the petitioner is that for determining the Banjar land, jamabandi for the year 1951-52 was required to be scrutinized and the action of authorities in getting Chhant prepared by the Patwari is an approach, which is clearly misdirected vitiating the entire proceedings. The second ground of attack is that the permissible area was selected by the petitioner in the year 1958 and again in April, 1966 and accordingly it was not proper for the authorities to select an area for the petitioner and not to allot her the area as selected by her. The order passed by the Collector is challenged on the ground that he would not have any power to change the selection made by the land owner u/s 5-B(1) of the Punjab Security of Land Tenures Act (for short "the Act"). In this regard, reliance is placed on number of judgments. It is submitted that the land sold by the land owner cannot or could not have been included by the Collector in the reserved area of the land owner. The petitioner states that she has been deprived of her valuable land measuring about 124 acres which is worth Rs. 7.00 lacs.
8. In support of his submission that permissible area as selected by the land owner u/s 5-B(1) of the Act cannot be included in the surplus area even where the land owner had transferred some land after 15.4.1953, when a land owner in Punjab had sold some land from his holdings to third party and the question of determination and utilisation of the surplus area came up before the authorities, it is held that the land, which had been transferred to the vendees, would be included in the surplus area and can be utilised for re-settlement of the tenants but the permissible area selected by the land owner u/s 5-B(1) of the Act cannot be included in surplus area. In Harbans Singh and Gurbakhsh Singh v. Ajit Singh and Ors. 1975 PLJ 85, it is held that the selection made by landowner u/s 5-B(1) cannot be changed by Collector or Commissioner or Financial Commissioner. This was also a case where landowner has shown land sold a couple of months earlier in Form `E'' as surplus area. It was further held that the vendee cannot insist that the land sold should be included in the reserved area of the landowner and that Collector has no justification in determining whether fraud was committed by the landowner on vendee. Again in Ajit Singh and Anr. v. Financial Commissioner, Revenue, Punjab and Ors. 1972 PLJ 738, it is observed that area sold by the landowner cannot legally be treated as part of the permissible area of the land owner. Reference is made to the case of Lajpat Rai and Ors. v. The State of Punjab and Ors. 1981 PLJ 316 in this regard, where it is held that Collector has no authority to vary or amend either u/s 5-B(2) or under any other provision of the Act the selection of permissible area made by landowner u/s 5-B(1).
9. On the other hand, counsel for the respondents would refer to Dharam Pal and Ors. v. State of Haryana and Ors. 2002 (1) PLJ 188 to say that the land declared surplus under the Punjab Act stood vested in the State u/s 12(3) and nonutilisation of the surplus land till date of vesting is of no consequence and makes no difference. It is further held that land once declared surplus under the Act, even if remained unutilised, would be deemed to have vested in State or acquired for a public purpose. In this regard only, reliance is placed on the case of Smt. Bhagwanti Devi and Anr. v. State of Haryana and Anr. 1994 PLJ 245. Reference is also made to the case of Gopal and Ors. v. State of Haryana and Ors. 1997 (2) PLJ 441, where again a similar view is taken by observing that surplus area determined and declared before 24.1.1971 stands automatically vested in the State u/s 12(3) and heirs of landowner cannot inherit surplus area on the death of landowner. Reliance is also placed on some judgments passed by the Financial Commissioners, where it is observed that the landowner cannot be allowed to reduce the surplus area by making sales.
10. First ground of attack made by the petitioner is that full benefit of banjar land was not given to her while declaring her surplus area. As per the petitioner, 120.91 ordinary acres area was banjar in each case on 15.4.1953, against which only 65.86 ordinary acres has been allowed. Reference in this regard is made to the jamabandi for the year 1951-52. The counsel for the respondents, on the other hand, would say that this question actually is a question of fact where there is a concurrent finding of facts recorded by all the revenue officers and as such would not call for any interference in exercise of writ jurisdiction. It is noticed that collector had not agreed with the actual banjar land of the petitioner as declared owned by the petitioner on the appointed date, but had got the `Chhant'' done from the revenue officers. Thereafter, it was actually found that 65.86 ordinary acres/9.94 standard acres was the banjar land as on 15.4.1953. The Financial Commissioner has also observed that this difference was on account of the fact that counsel for the petitioner had taken into account the full area of banjar land owned by all the share-holders, whereas ownership of the petitioner in each case was confined to 1/16th share and, thus, figures of 65.86 ordinary acres was correct. The finding returned by the revenue officers and up held by the Financial Commissioner, as such, does not call for any interference, especially so when basically it is a dispute regarding facts which is being raised.
11. Counsel for the petitioner has made strained efforts to submit that the selection made by the big landowner could not have been changed by the Collector. In this regard, the petitioner seeks an advantage of sale made by her prior to 30.7.1958, which, according to her, is not to be included in the permissible area of the petitioner. The Financial Commissioner, however, viewed that the petitioner did not make any reservation or selection of the area so sold by her and as such this area sold by her was to be included in her permissible area in the absence of any reservation or selection made by her. In this regard, reliance is placed on Jahangir Singh v. State of Haryana and Ors. 1979 PLJ 277.
12. This issue again basically would revolve around finding of fact, i.e., if any selection was made by the petitioner or not. If it is found that the petitioner has made any valid selection, then only the judgments referred to by the counsel for the petitioner would need discussion. In this regard, the petitioner mainly relies upon Annexures P-5 and P-6. It can be noticed that Annexures P-5 and P- 6 are composite selection done by four different big land owners, namely, Prem Singh, Pramod Kumar, Kaushalya Devi and Chandra Wati. There was some dispute about the date of selection etc. when the original record was summoned. Annexure P-5 contains date 19.6.1958, whereas Annexure P-6 is dated 20.4.1966. Initially, the land of the petitioner was declared surplus on 30.10.1961. The petitioner did not file any appeal against this order and rather appeal was filed by Mansa Ram and other tenants. Thus, the selection, which made on 20.4.1966, was not available before the Collector while passing the order dated 30.10.1961. The case was remanded for fresh decision on 6.7.1971. It was then found that due to consolidation, the holding had increased by 8.76 ordinary acres. Total land sold was noticed to be 141.74 ordinary acres equivalent to 68.44 standard acres. When order dated 30.10.1961 was made, the petitioner had not pleaded that the area sold by her be not included in the permissible area. Thus, 204.93 ordinary acre equivalent to 75.44 standard acres were declared surplus. The petitioner did not file any appeal against the order. It is only when the Collector was considering the case after remand that a plea was raised to exempt the land sold by the petitioner from being included in her permissible area. The plea was declined by the Collector while passing the order dated 13.2.1976, which is impugned in the writ petition. Till date, no buyer has come forward to challenge the order. Even the petitioner did not plead before the Collector that she had selected her permissible area by excluding the land sold and that this, thus, cannot be changed by the Collector. It has also not been pointed out before me that the land selected by the petitioner as her permissible area did not include the land sold. In addition, the action of the petitioner in not raising this plea initially when order dated 30.10.1961 was passed, would directly stare at her and also the fact that the impugned order was not appealed against.
13. The whole case of the petitioner is based on Annexures P-5 and P-6, which the petitioner claim to be form `E'' containing details of selection made by her on 19.6.1958 and then on 20.4.1966. The selection and reservation of permissible area is regulated by provisions of Section 5, 5-A and 5-B etc. In fact, the operation of these provisions have been succinctly discussed in detail in Lajpat Rai''s case (supra) by the Hon''ble Supreme Court. As per the ratio of law, the propositions, which emerged from the various provisions in this regard, have been set out in this judgment as under:
i. Reservation of land was envisaged only in Section 5(1) of the Act and had to be intimated within six months from the date of commencement of the Act, i.e., on or before 15.10.1953.
ii. No provision was ever made in the Act or Rules framed thereunder for reservation of a land by a landowner who had failed to send an intimation thereof on or before the 15th October, 1953.
iii. What was provided by Section 5-B was, inter-alia, that a landowner who had not exercised the right of reservation under the Act could select his permissible area and send intimation thereof in form `E'' to the prescribed authority within a period of six months from 11th December, 1957, i.e., on or before 11th May, 1958. "Reservation" was something different from the "selection" of permissible area. The two terms were not only not synonymous but were mutually exclusive.
"Selection" of permissible area was allowed only to a landowner who had not exercised his right of "reservation". iv. Form `E'' was meant only for intimation of selection of permissible area under Sub-section (1) of Section 5-B and not for reservation under Sub-section (1) of Section 5 which could be made only through an intimation in the form in Annexure B to the 1953 Rules.
14. In the light of above noted provisions when read with the other provisions of the Act, it can be stated that surplus area is arrived at by excluding the reserved area from the total area of the landowner in a case reservation had been made by him lawfully. Where no areas has been lawfully reserved by the landowner, surplus area is worked out u/s 5-B or 5-C. u/s 5, the landowner is entitled to reserve out of the entire land held by him in the State of Punjab as landowner any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form and manner to the Patwari of the estate etc. It may also need to be noticed that once a reservation has been intimated within six months from the date of commencement of the Act, it cannot be varied either by the act of parties or by operation of law except with the written consent of the tenant effected by such variation. The provisions of the Act would show that if a landowner has failed to reserve land in accordance with the provisions of Section 5, he has another chance to select his permissible area within six months from the commencement of the Punjab Security of land Tenures (amendment) Act in the prescribed manner. If the landowner had failed to select his permissible area in accordance with the provisions of Sub-section (1) of Section 5-B, then the prescribed authority is given power to select the permissible area of the landowner under Sub-section (2) of Section 5-B. In other words, it can be stated that if the concerned landowner has already selected his permissible area in accordance with the provisions of sub-section (1) of Section 5-B, then Sub-section (2) of the section does not come into play at all and there is no occasion for the exercise by the prescribed authority of the power of selection.
15. Civil Writ Petition No. 4756 of 2000 also contains an identical challenge as raised in the other writ petitions. This pertains to a land of Prem Sarup, who died during the pendency of the revision before the Financial Commissioner and, thus, his L.Rs. are the petitioners. Prem Sarup had also filed an appeal against the order dated 13.12.1976 before Commissioner, Hisar Division, which was allowed on 29.6.1978 unlike the cases in the other writ petitions and the case was remitted back to the Collector Surplus Area for fresh decision after hearing all the concerned parties. The Collector, Hisar, after hearing the parties, passed an order dated 13.1.1983 (Annexure P-3) in this writ petition and again declared 224.65 ordinary acres of land as surplus in the hands of Prem Sarup and allowed only 56 ordinary acres of area to him as permissible area. Prem Sarup again filed an appeal against this order before Commissioner, Hisar, who dismissed the same on 11.5.1987. Prem Sarup thereafter filed a revision before Financial Commissioner, who after hearing the arguments, reserved the order on 20.9.1989. Prem Sarup died on 28.3.1990. The revision was dismissed by the Financial Commissioner on 6.12.1990 (Annexure P-5 with the petition) and the case was again remitted back to the Collector with certain directions. The successors-in-interest of Prem Sarup challenged the orders dated 13.1.1983, 11.5.1987 and 6.12.1990 through Civil Writ Petition No. 10553 of 1991 before this Court. This writ petition was ultimately dismissed on 22.2.1992 by observing that the case had only been remanded for determination of surplus area and there was, thus, no ground to interfere. A review filed against this order was also declined. The case was then taken up by the Collector to determine the surplus area and the same very arguments, as arising in the other cases, were raised before the Collector for re-deciding the case of surplus. Collector, however, on 8.8.1995 held that the earlier order dated 13.1.1983 had become final and had been up-held by the Commissioner and the Financial Commissioner and so the matter could not be re-opened. The petitioners in this writ petition accordingly followed the course of filing appeal before the Commissioner, which was dismissed on 29.10.1996. Financial Commissioner also dismissed the revision on 29.10.1999, which now are impugned by the petitioners through the said writ petition on the identical grounds as would arise in the other petitions. Thus, all the writ petitions are being disposed together through this common order.
16. Reverting back to the facts in the present case, the petitioner could have made reservation of the land as was envisaged u/s 5(1) of the Act and she had to intimate the same within six months from the date of commencement of the Act, i.e., on or before 15.10.1953. Concededly, no reservation was done by the petitioner. After addition of Section 5-A and 5-B in the Act in the year 1957, the petitioner got an opportunity to make a selection of her permissible area as she had not done reservation of her permissible area u/s 5(1) of the Act. Annexure P-5 attached with the petition is a copy of form `E'', which would obviously indicate that this was the selection of the permissible area made by the petitioner in terms of Section 5-B of the Act. As already noted, this selection of permissible area could be done by the petitioner by sending intimation thereof in form `E'' to the prescribed authority within a period of six months from 11.12.1957, which is the date when the said sections were added to the Act. Thus, this selection could be made by the petitioner on or before 11.6.1958. As per the admitted stand by the petitioner, the form `E'' was submitted on 19.6.1958, i.e., after 11.6.1958. Section 5-B in this regard is clear in its terms and provides that a landowner, who has not exercised his right of reservation under this Act, may select his permissible area and intimate the selection to the prescribed authority within the period specified in Section 5-A and in such form and manner as may be prescribed. This selection made by the petitioner, thus, was not legally in order having been made after the due date prescribed under the Act for making selection of the permissible area. The provisions of Section 5-B(2), thus, would operate in this case, which provides that if a landowner fails to select his permissible area in accordance with the provisions of Sub-section (1), the prescribed authority may subject to the provisions of Section 5-C, select the parcel or parcels of land, which, such person is entitled to retain under the provisions of the Act. As already noted, selection once made cannot be changed and in this background, the selection made by the petitioner on 20.4.1966 (Annexure P-6) would again not be legally in order and, thus, cannot be relied upon. Once there is no reservation and a valid selection in accordance with law, the petitioner would not be entitled to urge that the selection made by her could not have been changed by the Collector. The judgment as relied upon by the counsel for the petitioner, thus, would not require much consideration. Once there was no legally valid selection made by the petitioner, the collector was entitled to make selection of the permissible area of the petitioner in terms of Section 5-B(2). The impugned order, as such, does not suffer from any infirmity on this ground as pleaded. It appears that this perhaps was the reason for which the petitioner did not file an appeal against the order dated 20.10.1961.
17. There is, thus, no merit in the petitions and the same are hereby dismissed.
