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CASE NO.: Appeal (civil)  6489-6490 of 1998

PETITIONER: Ajmer Kaur

RESPONDENT: State of Punjab and ors.

DATE OF JUDGMENT: 07/05/2004

BENCH: BRIJESH KUMAR & ARUN KUMAR.

JUDGMENT: JUDGMENT

ARUN KUMAR, J.

       These appeals are directed against the judgment of the  Punjab and Haryana High Court dismissing in limine a Writ  Petition  filed by the petitioner challenging the order of the  revenue authorities regarding declaration of a portion of land   owner by predecessor in interest of the appellant as surplus  under The Punjab Land Reforms Act, 1972( hereinafter  referred to as the ’Act’).  Briefly the facts are that Daya  Singh, father of the petitioner filed a return regarding his  and  his wife Kartar Kaur’s holding of lands under Section 5 of the  Act.  After scrutinizing the return, the Collector found that the  holding in their hands came to 10.12 hectares of first quality  land.  Out of that they were entitled to 7 hectares of land.   Thus 3.12 hectares of land was found to be surplus which  the land owners were required to surrender.  Daya Singh  filed an appeal against the  said order before the  Commissioner.  One of the objections taken by Daya Singh  in his appeal was that the land held by his wife Kartar Kaur  could not be clubbed with the land held by him.  This  objection was turned down by the Commissioner.  It was  observed that according to Section 3(4) of the Act a "family"  in relation to a person means a person,  wife or husband, as  the case may be, of such person and his or her minor  children.  The appeal was  dismissed by the Commissioner.   Kartar Kaur wife of Daya Singh died on 9th October, 1980.    In 1982, the surplus land was mutated in favour of the State  Government and in 1983 it was allotted to third parties. On 21st June, 1985 Daya Singh filed an application  under Section 11(5) of the Act for re-determination of the  land holding in view of death of Kartar Kaur. The Collector  vide his order dated 23rd July, 1985 disposed of the said  application holding that there was no surplus area of land  with Daya Singh.  The land declared surplus vide earlier  order dated 30th September, 1976 was ordered to be  restored to Daya Singh and the mutation in favour of the  State Government was cancelled.  On 19th May, 1986, the  Collector sought permission from the Commissioner to  review the order dated 23rd July, 1985.  The Commissioner  granted the requisite permission  on 14th August, 1986.  In  view of the permission granted to him, the Collector heard  the matter all over again and vide his order dated 22nd  December, 1986 held that Daya Singh was in possession of  surplus land.  The order dated 30th September, 1976 passed  by the Collector earlier declaring 3.12 hectares of first quality  land as surplus was maintained and the Mutation No. 2760  vide which ownership and possession of surplus land was

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sanctioned in favour of the State Government was restored.   Appeal filed by Daya Singh against the said order was  dismissed by the Commissioner vide his order dated 11th  November, 1987.  On 22nd December, 1987, Daya Singh  died.  Revision filed by Ajmer Kaur (appellant herein)before  the Financial Commissioner against the order of  Commissioner was dismissed on 27th January, 1994.  This  order of the Financial Commissioner was challenged in the  Punjab and Haryana High Court by way of a Writ Petition.   The Writ Petition was however dismissed on 3rd October,  1994 permitting the petitioner to approach the Fianancial  Commissioner by way of a Review Petition wherein she  could raise all the questions sought to be raised in the Writ  Petition.  Thus the matter went back to the Financial  Commissioner  by way of Review applications.  The review  applications were dismissed by the Financial Commissioner  vide order dated 10th March, 1998.  The order of the  Financial Commissioner was again challenged by way of  Writ Petitions filed in the Punjab and Hayana High Court at  Chandigarh.  The Writ Petitions were again dismissed by the  High court vide order dated 30th July, 1998.  The present  appeals are directed against the said orders of the High  Court.         Mr. Manoj Swarup, the learned counsel appearing for  the appellant raised the following points in support of the  appeals :

1.        The order dated 23rd July, 1985 passed by  the Collector on application under  Section 11(5) of the Act holding that  there was no surplus land had become  final and the same could not be reviewed  or reopened by the Collector particularly  after 90 days in view of Section 81 of the  Act. 2.         Section 11(5) of the Act conferred a right  on the land owner which could not be  defeated by sub-section (7) of Section 11  of the Act.    Regarding the first point it was contended that at the  most the respondents (Revenue authorities) could take the  benefit of a period of ninety days to file review against the  order dated 23rd July, 1985 whereby declaration of surplus  land was re-determined and it was held that there was no  surplus land in the hands of Daya Singh.  The Collector  sought review after about nine months which was clearly  barred by time.  In reply the learned counsel for respondents  submitted that there is power to condone delay with the  authorities in exercise of which time to seek review can be  extended.  In support of the submission, our attention was  invited to  Section 82 of the Act which contains provision  regarding  review of orders of revenue authorities.   According to sub-clause (b) of Section 82(1) "no application  for review of an order shall be entertained unless it is made  within ninety days from the passing of the order or unless the  applicant satisfies the Revenue Officer that he had sufficient  cause for not making the application within that period." We  have considered the rival contentions.  In our view the bar of  limitation does not come in the way of the Collector re- determining the permissible land holding of Daya Singh. A  bare reading of clause (b) of sub-section (1) of Section 82  shows that review can be made even after expiry of period of  ninety days where the Revenue Officer is satisfied about  cause for delay.  The fact that the Commissioner granted  permission to the Collector to review his order  suggests that

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the hurdle of limitation had been successfully crossed.

       Coming to the second point a conflict is suggested  between sub-sections (5) and (7) of Section 11 of the Act.  We would like to quote the relevant provisions :

"Section 11 : (1)\005\005\005 (2)\005\005\005 (3)\005\005\005 (4)\005\005\005 (5)     Notwithstanding anything contained in any  other 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 the Act.

(6) \005\005..

(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."  

 According to sub-section (5) no transfer or other  disposition of land which comprised in the surplus area shall  affect the vesting thereof in the State Government or its  utilisation under the Act.  However, exception is created in  cases of : (1)     acquisition of land by the State Government; (2)     inheritance, that is, devolution of interest in  the  land on account of death etc. in the family which  will be a case of involuntary transfer.

 Sub-section (7)seems to take away the benefit  conferred by sub-section (5) regarding reopening of  determination of surplus land in cases specified in the said  sub-section.  According to sub-section (7) where succession  opens after the surplus area or any part thereof has been  determined by the Collector,the exception provided in sub- section (5) shall not apply in respect of the surplus land.  

It is argued that sub-section (7) takes away the right  conferred by  sub-section (5), therefore the same has to be  ignored.  In support of his contention the learned counsel for  the appellant relied upon a Full Bench decision of the Punjab  and Haryana High Court in Ajit Kaur and ors. Vs. State of  Punjab and ors.  (1980) Punjab Law Journal 354.  The said  judgment indicates that the Full Bench posed a conflict  between the two provisions and tried to resolve the same.

 In our view, it is not necessary for us to enter into the  controversy regarding the alleged conflict between the  provisions of sub-sections (5) and (7) of Section 11 of the  Act.  In the circumstances of the case, we feel that these  appeals can be decided on the basis of the fact that the  initial order whereby the Collector declared 3.12 hectares of

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land as surplus was passed on 30th September, 1976.  The  appeal against the said order filed by Daya Singh, land  owner, was dismissed on 27th March, 1979.  Kartar Kaur wife  of Daya Singh, along with whom Daya Singh had filed a joint  return with respect to the lands, died on 9th October, 1980.   The surplus lands were mutated in favour of the State  Government in the year 1982 and the State Government  allotted the same to third parties including the respondents  No..5 to 7 herein in the year 1983.  Respondent No.7 has  filed an affidavit stating that he is in possession of the land  allotted to him.  Kartar Kaur is said to have made a Will on  15th October, 1979 regarding a portion of land declared  surplus in favour of a Gurudawara which has been  impleaded as respondent No.8 in this appeal.  On 15th  October, 1979 when Kartar Kaur made her Will she was left  with no interest or title in the land and therefore she could  not have made a Will with respect thereto.  Daya Singh filed  an application for re-determination of the surplus land under  Section 11(5) of the Act only on 21st June, 1985.on the basis  of the fact that Kartar Kaur had died and succession had re- opened. This application was made almost 5 years after the  death of Kartar Kaur.  In our view, this delay in making the  application is fatal for Daya Singh and the application for re- determination ought to have been dismissed on this ground  alone.  Assuming that Daya Singh had a right to make an  application under section 11(5) of the Act but the  right had  to be exercised within a reasonable time.  It cannot be said  that the right under Section 11(5) can be exercised at any  time at the sweet will of the applicant.  The order regarding  determination of surplus land by the Collector has  serious  consequences: 1.      So far as the land owner is concerned he is  divested of the land. 2.      The surplus land vests in the State  Government. 3.      The State Government utilizes the surplus land  in accordance with law which includes allotment  of the surplus land to third parties like landless  persons for purposes of cultivation etc.

Permitting an application under Section 11(5) to be  moved at any time would have disastrous consequences.   The State Government in which the land vests on being  declared as surplus, will not be able to utilize the same. The  State Government cannot be made to wait indefinitely before  putting the land to use.  Where the land is utilized by the  State Government a consequence of the order passed  subsequently could be of divesting it of the land.  Taking the  facts of present case by way of an illustration, it would mean  the land which stood mutated in the State Government in  1982 and which was allotted by the State Government to  third parties in 1983, would as a result of reopening the  settled position, lead to third parties being asked to restore  back the land  to the State Government and the State  Government in turn would  have to be divested of the land.   The land will in turn be restored to the land owner.  This will  be the result of the land being declared by the Collector as  not surplus with the land owner.  The effect of permitting  such a situation will be that the land will remain in a situation  of flux. There will be no finality.  The very purpose of the  legislation will be defeated.  The allottee will not be able to  utilize the land for fear of being divested in the event of  deaths and births in the family of the land owners.  Deaths  and births are events which are bound to occur.  Therefore,  it is reasonable to read a time limit in sub-section (5) of

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Section 11.  The concept of reasonable time in the given  facts would be most appropriate. An application must be  moved within a reasonable time. The facts of the present  case demonstrate that  re-determination under sub-section  (5) of Section 11 almost 5 years after the death of Kartar  Kaur and more than 6 years after the order of Collector  declaring the land as surplus had become final, has resulted  in grave injustice besides defeating the object of the  legislation which was envisaged as a socially beneficial  piece of legislation.  Thus we hold that the application for re- determination filed by Daya Singh under sub-section (5) of  Section 11 of the Act on 21st June, 1985 was liable to be  dismissed on the ground of inordinate delay and the  Collector was wrong in re-opening the issue declaring the  land as not surplus  in the hands of Daya Singh and Kartar  Kaur.         The above reasoning is in consonance with the  provision in sub-section (7) of Section 11 of the Act.  Sub- section (7) uses the words "where succession is opened  after the surplus area or any part thereof has been  determined by the Collector\005.".  The words "determined by  the Collector" would mean that the order of the Collector has  attained finality. The provisions regarding appeals etc.  contained in Sections 80 \026 82 of the Punjab Tenancy Act,  1887, as made applicable to proceedings under the Punjab  Land Reforms Act, 1972, show  that the maximum period of  limitation in case of appeal or review is ninety days.  The  appeal against the final order of the Collector dated 30th  September, 1976 whereby 3.12 hectares of land had been  declared as surplus was dismissed on 27th March, 1979.   The order was allowed to become final as it was not  challenged any further.  Thus the determination by the  Collector became final on 27th March, 1979.  The same  could not be re-opened after a lapse of more than 6 years by  order dated 23rd July, 1985.  The subsequent proceedings  before the Revenue authorities did not lie.  The order dated  23rd July, 1985 is non-est.  All the subsequent proceedings  therefore fall through.  The issue could not have been  reopened.  

As a result of above discussion,  we find no merit in  these appeals.  The same are dismissed leaving the parties  to bear their respective costs.