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Bhupinder Singh Vs. State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. Nos. 3329 and 3330 of 1971
Judge
Reported inAIR1980P& H152
ActsPunjab Security of Land Tenures Act; Punjab Security of Land Tenures Rules, 1956 - Rules 6, 6(5) and 6(6)
AppellantBhupinder Singh
RespondentState of Punjab and ors.
Cases ReferredBalwant Singh v. State of Haryana
Excerpt:
.....the reference to the tenants in this rule is clearly to such tenants who were already on the land of the landlord in their capacity as such before the declaration of surplus area by the special collector......of land tenures act, (hereinafter called the act), were necessary parties at the time where the surplus area is sought to be determined afresh after the order determining surplus area in the first instance was set aside. the learned judge was also of the opinion that besides this question, some other questions of importance had also been raised in these two writ petitions and, therefore, referred both these writ petitions for being heard and decided by a division bench. it is under these circumstances that both these writ petitions have been heard by us.3. in order to appreciate the controversy and the questions of law arising between the parties, the facts in brief with reference to civil writ petition no. 3329 of 1971 may be summarised below.4. bhupinder singh, petitioner in civil.....
Judgment:

Habbans Lal, J.

1. This judgment will dispose of Civil Writ Petitions Nos. 3329 and 3330 of 1971, as common questions of law and fact arise in both of them.

2. Both the writ petitions were heard by R.N. Mittal, J., on June 1, 1978. According to the learned Judge, vide order dated June 1, 1978, there was a conflict of decisions of this Court on the question as to whether the resettled tenants to whom land determined once as surplus' area under the Punjab Security of Land Tenures Act, (hereinafter called the Act), were necessary parties at the time where the surplus area is sought to be determined afresh after the order determining surplus area in the first instance was set aside. The learned Judge was also of the opinion that besides this question, some other questions of importance had also been raised in these two writ petitions and, therefore, referred both these writ petitions for being heard and decided by a Division Bench. It is under these circumstances that both these writ petitions have been heard by us.

3. In order to appreciate the controversy and the questions of law arising between the Parties, the facts in brief with reference to Civil Writ Petition No. 3329 of 1971 may be summarised below.

4. Bhupinder Singh, petitioner in Civil Writ Petition No. 3329 of 1971, was a joint landowner in village Gonaina, Tahsil Muktsar, District Ferozepur, along with his brother, Sarupinder Singh, in equal share. After the death of Sarupinder Singh in 1946, one-half of his share was inherited by his mother and the meaning one-half, that is, one-fourth of the total land was mutated in the name of Bhnpinder Singh, petitioner Consequently, Bhupinder Singh, petitioner became the owner of three-fourth of the land out of which he made a number of alienations of different parcels of land in favonr of different persons including Shrimati Pritam Kaur, his mother-in-law, and his two minor sons, the petitioners in the other writ petition, who are pre-emptors of some of the alienees of Bhupinder Singh, petitioner. An area measuring 95 standard acres 9 units out of his total land was declared surplus by the Collector vide his order dated February 27, 1962, ignoring all alienations. In appeal, the Commissioner, vide his order dated March 18, 1964, set aside the order of the Collector and remanded the case for de novo decision. The petitioner was directed to appear before the Collector on April 15, 1964. As he did not put in appearance in spite of service, ex parte order was passed on August 18, 1964, according to which an area measuring 86 standard acres 7 1/4 units was declared surplus. All the alienations made by him were again ignored as being in violation of the provisions of the Act. That order was challenged through two appeals before the Commissioner; one by Bhupinder Singh, petitioner, and the other jointly by Shrimati Pritam Kaur and the two sons, petitioners in the other writ petition. Both the appeals were dismissed by one order, dated Dec 29, 1969, Annexure R. This was challenged through two separate revision petitions by the same parties before the Financial Commissioner. Before the Financial Commissioner, two objections were raised, firstly, that the resettled tenants were not necessary parties and secondly, that the alienees were necessary parties and had not been heard. Both the revision petitions were dismissed by the Financial Commissioner by his order dated May 27, 1971, Annexure S. That order was challenged in these two writ petitions.

5. Mr. Jawanda, the learned counsel for the petitioners, has challenged the impugned orders on the following two grounds:

(1) That notice to the alienees of Bhupinder Singh, petitioner, was essential. As they were not served and were not afforded opportunity of hearing, the orders pertaining to the determination of surplus area of the land cannot be sustained, and

(2) After the determination of surplus area on February 27, 1962 and before the same was set aside by the Commissioner, eligible tenants had been settled on the surplus land. Those tenants were also necessary parties who were also not heard.

6. Regarding the first contention, there is no dispute that in view of the law settled by a Full Bench of this Court in Harnek Singh v. State of Punjab, 1971 Pun LJ 727, notice to alienees of Bhupinder Singh, petitioner, was essential. However, so far his mother-in law Pritam Kaur and his two minor sons are concerned, they were adequately heard in the matter of determination of surplus area. It is crystal clear from a perusal of the order of the Commissioner, Jullundur Division, Annexure P. 1, dated March 18, 1964, that the determination of surplus area by the order of the Collector, dated February 27, 1962, had been challenged in appeal before the Commissioner not only by Bhupinder Singh, petitioner, but also by Shrimati Pritam Kaur, his mother-in-law, and Rajmohinder Singh and Jasmohinder Singh, his two minor sons, through their mother Shrimati Jatinder Kaur. After hearing all the appellants, the order of the Collector was set aside and direction was issued to the Collector to determine the surplus area afresh after hearing the appellants. The appellants were directed to appear before the Collector on April 15, 1964. Bhupinder Singh, petitioner, put in appearance on April 15, 1964, and was given time to make his selection of land up to May 3, 1964. He was again given time up to May 28, 1964, as is clear from the order, Annexure C, dated August 18, 1964. Thereafter, registered notice was sent to him, but he refused service. Consequently, ex parte decision was given on August 18, 1964, whereby surplus area was reduced from 95 standard acres 9 units to 86 standard acres 7 1/4 units. This decision was again challenged, in appeal, before the Commissioner by Bhupinder Singh, petitioner, and a perusal of the order of the Commissioner, dated December 29, 1969, Annexure R, makes it evident that Shrimatl Pritam Kaur, his mother-in-law and his two minor sons, the petitioners in the other writ petition, who had been impleaded as respondents in the appeal, were allowed to be transposed as appellants at the request of Bhupinder Singh, petitioner. After hearing all the appellants, the appeal was dismissed, Against this order, separate revision petitions were filed by Bhupinder Singh, petitioner, on the one hand and Shrimati Pritam Kaur and the two minor sons on the other, which were disposed of by the Financial Commissioner, vide his order dated May 27, 1971, Annexure S. There is absolutely no doubt that not only Bhupinder Singh, petitioner, but also Shrimati Pritam Kaur and the two minor sons, were fully heard in appeal before the Commissioner and in revision before the Financial Commissioner, So far as the petitioner's mother-in-law and the two minor sons are concerned, they themselves had challenged the determination of the surplus area in the first instance along with Bhupinder Singh, petitioner, and the said decision had been set aside and by order of the Commissioner, they had been directed to appear before the Collector and to be heard in the matter of determination of surplus area de novo. After the redetermination of the surplus area, again they were intimately associated in appeal and revision. In these circumstances, it does not lie in their mouth to challenge the decisions of the authorities under the Act, on the ground of absence of notice or that they were not provided any opportunity of being heard.

7. Faced with this situation, the learned counsel for the petitioners contended that besides the mother-in-law of Bhupinder Singh, Petitioner, and his two minor sons, there were quite a good number of alienees, but they were not issued any notice, nor were they given any opportunity of hearing. None of the said alienees had challenged these decisions and filed any writ petition. Apparently, they did not feel aggrieved. The petitioners in these two writ petitions have no locus standi to challenge the legality and validity of the orders on behalf of the other alienees even if the counclusion was to be reached that they were not issued any notice.

8. The other contention raised by the learned counsel for the petitioners, relates to the question whether the persons who are settled by the authorities under the utilisation of surplus area scheme on the land declared surplus, are necessary parties if the decision regarding determination of surplus area is set aside and the question regarding the existence of any surplus area and the quantification of the same has to be gone into de novo? There is no dispute that those persons who are already in possession of the land as tenants before the declaration of the surplus area under the provisions of the Act, are necessary parties. It is clear from sub-rules (5) and and (6) of R. 6 of the Punjab Security of Land Tenures Rules, 1956. The matter was set at rest by the decision of a Full Bench of this Court in Dhaunkal v. Man Kauri Ram, 1970 Pun LJ 402.

9. As regards the position of resettled tenants vis-a-vis the question of providing an opportunity of hearing to them in the matter of declaration of surplus area, it was held by my esteemed brother, Jain, J., in Karnail Singh v, Financial Commr. Haryana, 1971 Pun LJ 926, that Rule 6 of the Punjab Security of Land Tenures Rules, 1956 (hereinafter called the Rules), was not attracted and the resettled tenants could not claim any right to be heard even when the question of declaration of surplus area is re-opened end is to be determined afresh though the land already declared surplus was allotted to the re settled tenants.

10. Rule 6(5) and (6) of the Rules, according to which opportunity of hearing must be granted to the landlord or the tenant, as the case may be, ere reproduced below:

'6 (5). In the case of a landowner or tenant who has furnished his forms to the Special Collector under Rr. 3 and 4 the Special Collector shall after giving the landlord or tenant an opportunity of being heard and after such enquiry as he thinks fit, assess his surplus area In doing so, he shall hear any objections made by the landowner or tenant, and in a written order decide such objections. In case no objections are made, or the person affected does not appear, the fact shall be stated in the order.

6 (6). In the case of landowner or tenant who has furnished his Forms to the Collector under Rr. 3 and 4, the Collector shall, after giving the landlord or tenant an opportunity of being heard and after such enquiry as he thinks fit, assess his surplus area. In doing so, he shall hear any objections made by the landowner or tenant, and in a written order decide such objections. In case no objections are made or the person affected does not appear, the fact shall be stated in the order'.

From their close perusal, it is evident that the reference to the tenants in this rule is clearly to such tenants who were already on the land of the landlord in their capacity as such before the declaration of surplus area by the special Collector. Such tenants were considered to be necessary parties and it was imperative to hear them because the scheme of the Act is clear that the land of a tenant who was cultivating the same as such at the time of the enforcement of the Act, could not be resolved by the big landlord at the time of the declaration of surplus area by the Special Collector. However, so far as the resettled. tenant is concerned, he is brought on the surplus land of the landlord after it is declared surplus by the Special Collected. Thus his status as a tenant or a resettled tenant follows the declaration of some area out of the land of the landlord as surplus, once the decision regarding the declaration of surplus area is set aside by a competent authority the status of a resettled tenant automatically comes to an end and in the proceedings for de novo determination of surplus area, he is a stranger and cannot be treated as a necessary party. I have closely perused the judgment in Karnail Singh's case (supra) and find myself in agreement with its ratio.

11. My attention has been drawn to a judgment rendered by me and reported in Balwant Singh v. State of Haryana 1978 Pun LJ 3, wherein I held that the status of a resettled tenant on the surplus area was that of a tenant for all purposes and that it was imperative for authorities to provide an opportunity of hearing to him also even if the order declaring surplus area is set aside and the question of determination of surplus area is to be gone into afresh. A perusal of this judgment shows that the judgment by Jain, J., as reported in Karnail Singh's case (supra), was not brought to my notice for consideration and no argument appears to have been addressed with reference to R. 6(5) and (6) as reproduced above. In Balwant Singh's case (supra), it was held,--

'Once allotment was made to the petitioners as tenants, they had the same status of tenants as others and if they were to be divested of their rights, they had a right to be heard'.

On deeper consideration, I am of the view, that the resettled tenants are not divested of their rights by any specific order to that effect as a result of the setting aside of the order declaring some area to be surplus in the hands of a particular landlord. Once the decision relating to the declaration of surplus area is set aside on account of any legal infirmity or any other valid reason, the status of the resettled tenants as such, comes to an end automatically and unless some area is declared surplus afresh, they have no right to be considered for allotment of the same after re-declaration of the surplus area. May be that while considering the question of surplus area de novo no area may of found as surplus on account of any valid reason or the area declared surplus may be considerably reduced. It is only after the fresh declaration of surplus area, if any; that the right of any person or persons can be considered for the purpose of utilisation of that area by any eligible tenant or ejected tenant. Before that stage, any such person cannot be deemed to be a necessary party for the purpose of declaration of surplus area of a landlord In view of this conclusion, I have no hesitation in holding that the view expressed by me in Balwant Singh's case (supra), should not hold the field. It is consequently held that for the purpose of declaration of surplus area afresh after setting aside of the previous order, any person who was resettled on such surplus area before the setting aside of the same, is not a necessary party and it is not necessary to provide any opportunity of hearing to him under the provisions of the Act.

12. No other point has been canvassed.

13. For the reasons mentioned above, there is no merit in either of the two writ petitions which are dismissed with no order as to costs.

Prem Chand Jain, J.

I agree.

14. Petitions dismissed.


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