Krishna Kumari & Anr Vs. State of Haryana
& Ors [1998] INSC 569 (27 November 1998)
M.K.
Mukherjee, & S.Saghir Ahmad., S. Saghir Ahmad
ACT:
HEAD NOTE:
Section
10A of the Punjab Security of Land Tenures Act, 1953 provides that the State
Govt. or any officer authorised by it may utilise any surplus area for the
resettlement of tenants ejected or to be ejected under clause (1) of
sub-section (1) of Section 9. The further implication of this Section is that
if the surplus area, in the meantime, is acquired by the State Govt. under any
law for the time being of force, or it passes to an heir by inheritance, the
surplus area so acquired or inherited would not be available for utilisation.
It was this statutory provision which was sought to be invoked by the appellants
who contended that the surplus area, on the death of the original owner, namely
Banarsi Das, was inherited by the and, therefore, it could not be utilised in
any was, not even by allotment of this area in favour of Mangat Ram, which was
liable to be cancelled, but they lost before all the authorities and have
ultimately landed in this Court.
Leave
granted.
Banarasi
Das, father of the appellants, was the owner of considerable land in Village Kanthal
Kalan, Dera Kalan, Dera Khurd, District Kurukshetra, Haryana. An area of 137 Kanals
8 Marlas of land was declared as surplus under the Punjab Security of Land
Tenures Act, 1953 (hereinafter referred to as the "Punjab Act"),
which was later replaced by the Haryana Ceiling on Land Holdings Act, 1972
(hereinafter referred to as the "Haryana Act").
Banarsi
Das died on 12th
January, 1971 leaving
behind Smt. Dropadi Devi (wife) and the present appellants (daughters), as his
heirs, who inherited the property left by him. Since each of them got land
which was less than 30 standard acres and since the land in question had not
been utilised, they gave an application under Section 10A(b) of the Punjab Act,
that their land may be taken out of the surplus pool. This application, which
was filed before the Collector (Agrarian), Karnal, on 4.7.1972 was registered
as Case No. 2441/Agr., which came ultimately to the court of S.D.O. (Civil), Karnal
for decision, During the course of the proceedings, report of the Patwari, Teja
Singh, dated 21.9.1972 and that of the Naib Tehsildar, Tarif Singh, of the same
date, were placed on record which were to the effect that on the surplus lands
of Banarsi Das, no tenant had been re-settled. Consequently, S.D.O. (Civil), by
his order dated 30.11.1972, exempted the land held by the appellants and Smt. Dropadi
Devi, who has since died, from the surplus pool.
On
16.12.1977, the appellants gave an application to the Collector for
cancellation of the allotment order made in favour of Mangat Ram on 13.7.1976,
which was registered as Case No. 54/Agr. Mangat Ram, it may be stated, is the
father of respondent No.3. This case was decided on 13.6.1978 by the Collector
(Agrarian), Karnal, and the allotment made in favour of Mangat Ram was
cancelled on the ground that the land had not been utilised and had already
been exempted from the surplus pool as indicated by the S.D.O. in his order
dated 30.11.1972. Mangat Ram challenged the order in appeal before the
Collector, Karnal, who, by his order dated 8.8.1983 allowed the appeal and
remanded the case to Collector (Agrarian) for a fresh decision. Aggrieved by
this order, the present appellants filed an appeal before the Commissioner, Ambala
Division, who, by his order dated 26.9.1984 dismissed the appeal. The
appellants then filed a Revision before the Financial Commissioner, but the
Revision was dismissed on 28.2.1990.
The
proceedings remanded to Collector, Karnal were ultimately decided by him on
17.8.1992. The application of the present appellants for releasing the land
from the surplus pool was rejected and the allotment order passed in favour of Mangat
Ram was upheld. It was found by the Collector that an area of 40 Kanals 16 Marlas
had already been allotted to Mangat Ram on 21.2.1964 and possession over the
allotted land was also delivered to him on 17.3.1964.
It was
found that since the surplus land had already been utilised before the death of
Bansarsi Das, there was no occasion to cancel the allotment made in favour of Mangat
Ram in 1964. This judgment was challenged by the appellants in an appeal filed
before the Commissioner, Ambala Division but the appeal was dismissed on
20.1.1993. The Revision filed, thereafter, before the Financial Commissioner, Haryana
was dismissed on 21.1.1997. The appellants then agitated the matter in a Writ
Petition before the Punjab & Haryana High Court which, by the impugned
judgment, dismissed the Writ Petition on 14.8.1997.
Shri Rajinder
Sachar, Senior Counsel, appearing for the appellants, has contended that there
was no utilisation of surplus land under the Punjab Act till the death of Banarsi
Das on 12.1.1971 and, therefore, the land, in question, was inherited by the
appellants along with their mother Smt. Dropadi Devi who being the small
farmers were entitled to an exemption of their land from the surplus pool. It
is also contended that since the provisions contained in the Punjab Act and the
Rules framed thereunder with regard to the utilisation of surplus area were not
complied with, the land in question shall not be deemed to have been utilised.
The land, after the death of Bansarsi Das, was inherited by the appellants and
since inheritance is saved under Section 10-A(b) of the Punjab Act, the area
which constituted the land of the appellants was liable to be excluded from
surplus area or there has to be re-determination of surplus area under the Haryana
Act as succession had opened on 12.1.1971 on the death of Banarsi Das, that is,
ten days before 24.1.1971, which is the relevant date under that Act and the
land devolved upon them by inheritance.
Learned
counsel for the respondents, on the contrary, has contended that after the land
was declared surplus, it was fully utilised by an allotment made in favour of Mangat
Ram to whom possession was also delivered in 1964. Mangat Ram remained in
possession over the area in question throughout his life by personally
cultivating the land and after his death. respondents No.3 has been in
possession as has also been found by all the authorities below. It is contended
that the findings recorded by the Collector, karnal as also by the
Commissioner. Ambala Division and the Financial Commissioner, to the effect
that the land was allotted to Mangat Ram in 1964 and possession was also
delivered to him on 17.3.1964. are findings of fact which cannot be questioned
in these proceedings particularly as the High Court had summarily dismissed the
Writ Petition on this very ground, namely, that the findings, which were
questioned before it, were findings of fact.
Section
10-A and 10-B of the Punjab Act provide as under:- "10-A. (a) The State
Government or any officer empowered by it in this behalf, shall be competent to
utilize any surplus area for the resettlement of tenants ejected. or to be
ejected, under clause (i) of sub-section (1) of section 9.
(b)
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 surplus area at the commencement of
this Act. shall affect the utilization thereof in clause (a).
Explanation - Such utilization of any surrplus
area will not affect the right of the land-owner to receive rent from the
tenant so settled.
(c)
For the purposes of determining the surplus area of any person under this
section, any judgment, decree or order of a court or other authority, obtained
after the commencement of this Act and having the effect of diminishing the
area of such person which could have been declared as his surplus area shall be
ignored.
10-B. Saving
by inheritance not to apply after utilization of surplus area. - Where
succession has opened after the surplus area or any part thereof has been
utilized under clause (a) of section 10-A, the saving specified in favour of an
heir by inheritance under clause (b) of that section shall not apply in respect
of the area so utilised.
While
Sub-clause (a) of Section 10-A authorises the State Government or any officer
empowered by it in that behalf to utilise any surplus area for the resettlement
of tenants ejected, or to be ejected, under Section 9(1)(i) of the Act, Clause
(b) creates an exemption in favour of land which, in the meantime, is inherited
by the heirs on the death of the land owner. The land so inherited cannot be utilised.
But if the land has already been utilised, then the exemption will not be
available to the heirs as provided by Section 10-B.
Part
IV of the Rules made under the Punjab Act deals with the resettlement of
tenants ejected or liable to ejectment. Rule 13 indicates the procedure for
dispossession of tenants liable to ejectment under Section 9(1)(i). Rule 14
provides for resettlement of tenant on the application of the landowner. Rule
15 provides for resettlement on the application of the tenants. Suo motu
proceeding for resettlement of tenant can be initiated by the circle Revenue
Officer under Rule 16. Rule 17 indicates the procedure which is to be followed
by the Circle Revenue Officer while Rule 18 provides for the procedure for
allotment of land. Rules 20-A, 20-B, 20-C and 20-D, which are relevant for
purposes of the present case, provide as under:- "20-A. Issue of
certificates. - Every tenant shall be given a certificate in Form K-6
describing clearly the land allotted to him. A copy each of the certificate
shall be sent landowner on whose land the tenant is to be resettled, and
another copy shall be retained on the file for record.
20-B.
Delivery of possession. –
(1)
After orders of allotment of any surplus area have been passed the Circle
revenue Officer, shall move the Collector for passing necessary orders
directing the landowner or the tenant, as the case may be to deliver possession
of the land in his surplus area to the Circle Revenue Officer, who shall be
deemed to be an officer empowered by the Government, under section 19-C, for
the purpose of delivery of possession.
(2)
Every tenant resettled on the surplus area shall be bound to take possession of
the land allotted to him within a period of two months of the date on which
demarcation of the land is made at site in his presence or within such extended
period, as may, for reasons to be recorded in writing, be allowed by the Circle
Revenue officer. The possession of the land shall be delivered to the tenant by
the Circle Revenue Officer himself.
(3)
The possession of the land on which a tenant is resettled shall ordinarily be
given after the crops are cut. If, however, the Circle Revenue Officer deems it
necessary to deliver possession of the land to any tenant before the crops are
cut a statement showing the crop and the area under the same shall be prepared
by the Patwari before the possession is taken by the tenant. A copy of the
statement shall be furnished to the landowner as well as to the tenant.
20-C.
Conditions of resettlement. –
The tenant
who is resettled under this part-
(a) shall
be tenant of the landowner in whose name the land in question stands in the
revenue records;
(b)
shall be liable to pay the same amount of rent as is customary in that estate
for such land subject to the maximum fixed under section 12 of the Act; and
(c)
shall in respect of the land upon which he is resettled execute a Qabuliyatt or
a Patta as given in Annexure 'C' appended to the Punjab Security of Land
Tenures Rules, 1953, in favour of the landowner before he is put in possession
of the land.
20-D.
Consequences of not taking possession. –
In
case, a tenant does not take possession of surplus area allotted to him, for
resettlement within the period specified in sub-rule (1) of rule 20-B, thee
allotment shall be liable to be cancelled and the area allotted to such tenant
may be utilized for resettlement of another tenant.
The
statutory provisions quoted above indicate that the surplus land has to be
allotted to a tenant already ejected or likely to be ejected for resettlement.
After allotment of the surplus area to a tenant, a Certificate in Form K-6,
describing clearly the land allotted to him, is issued, copies whereof are sent
to the Patwari concerned as also the landowner on whose land the tenant is to be
resettled. Thereafter, possession of the allotted area is delivered to the
tenant who is bound to take possession within a period of two months of the
date on which demarcation of the land is made at the site in his presence or
within such extended period as may be allowed by the Circle Revenue Officer.
Once a tenant has been resettled, he becomes the tenant of the landowner and
becomes liable to pay rent to that owner, Rule 20-C(c) further requires that
the tenant so resettled, shall execute a Kabuliyat or a Patta on the Proforma
given in Annexure 'C' appended to the Rules in favour of the landowner. But the
execution of Kabuliyat or Patta has to be done before the tenant is put in
possession of the land. Resettlement has to take place in the manner indicated
in the above provisions. Once the process is completed, the surplus land shall
be treated to have been utilised within the meaning of Section 10-A(a) of the
Punjab Act.
In
Financial Commissioner, Haryana State and other vs. Smt. Kela Devi and another, (1980) 1 SCC 77 =
AIR 1980 SC 309 = 1980 (1) SCR 1120, it was indicated by this court as under:-
"........ Rule 20-C provides, inter alia, for the execution of a "qabuliyat"
or "patta" by a resettled tenant. It would thus appear that while
allotment of land is an initial stage in the process of utilisation of the
"surplus area", it does not complete that process as it is necessary
for the allottee to obtain a certificate of allotment, take possession of the
land within the period specified for the purpose, and to execute a "qabuliyat"
or "patta" in respect thereof. The process of utilisation
contemplated by Section 10-A of the Act is therefore complete, in respect of
any "surplus area" , only when possession thereof has been taken by
the allottee or the allottees and the other formalities have been completed,
and there is no force in the argument that a mere order of allotment has the
effect of completing that process." The Court further observed as under:-
"........ Rule 20-D of the Rules..... provides that in case a tenant does
not take possession of the "surplus area" allotted to him for
resettlement within the period specified therefor, the allotment shall be
liable to be cancelled and the area allotted to him may be utilised for the
resettlement of another tenant. It cannot therefore be doubted that a completed
title does not pass to the allottee on a mere order of allotment, and that
order is defeasible if the other conditions prescribed by law are not
fulfilled." This decision was considered by a Constitution Bench in Ujjagar
Singh (dead) by L.Rs. vs. The Collector, Bhatinda & Anr., (1996) 5 SCC 14 =
AIR 1996 SC 2623 = JT 1996 (6) S.C. 713, and was approved. The Constitution
Bench also considered a Full Bench decision of the Punjab and Haryana High Court in Ranjit
Ram vs. The Financial Commissioner, Revenue, Punjab & Ors. (1981) 83 P.L.R.
492, and observeed as under:- "According to us, the majority judgment of
the Full Bench, has correctly appreciated the scope of the three enact-ments
referred to above, Once the lands declared as surplus under the Pepsu Act did
not vest in the State Government, as possession thereof had not been taken,
there has to be a fresh determination in respect of the area which the
appellant is entitled to hold in the light of the Punjab Act." Relying
upon the above statutory provisions specially the decision of this court in
Financial Commissioner, Haryana State and others vs. Smt. kela Devi and another
(supra) and the Constitution Bench decision in Ujjagar Singh (dead) by L.Rs. vs.
The Collector, Bhatinda & Anr. (supra) which approved the earlier decision
in Financial Commissioner, Haryana State and others vs. Smt. Kela Devi
(supra), it is contended by Mr. Rajinder Sachar that in the instant case, the
process of utilisation did not move beyond the stage of allotment in favour of Mangat
Ram and, therefore, the land shall not be treated to have been utilised as
neither possession was taken over by him nor did he execute any Kabuliyat in favour
of Banarsi Das till the time of latter's death on 12.1.1971. On that date,
succession to Banarsi Das opened and the land came to be inherited by the
appellants as also their mother who has since died. It is also contended that
the Haryana Act, under which the relevant date is 24th of January, 1971, would
not affect the rights of the appellants as they had already inherited the
surplus land before the relevant date and consequently their application for
cancellation of the allotment, made in favour of Mangat Ram, was liable to be
allowed.
Whether
all the steps indicated in the Rules, referred to above for utilisation of
land, were observed and followed or not, is a question which has been
considered by all the authorities before whom the matter was agitated and they
have concurrently held against the appellants and have recorded the finding
that possession of the land allotted to Mangat Ram was delivered to him. We
would normally have not entered, in the present proceedings under Article 136
of the Constitution, into those questions of fact, but Mr. Sachar has
Vehemently contended that all the steps for utilisation of surplus land were
not taken, specially possession thereof was not delivered to Mangat Ram and,
therefore, the mandatory requirements indicated in the Act and the rules were
violated which has impelled us to scrutinise the findings in the light of the
arguments raised before us as also the material brought on record through
various affidavits by the parties in this case.
Collector,
Agrarian, Thanesar, Distt. Kurukshetra, in his judgment dated 17.8.1992 has
recorded the following findings:- "Allotment made in favour of Mangat Ram
has been admitted by the petitioners themselves in their application dated
16.12.77 and in this application they have made a request to the collector,
Agrarian, Karnal that the allotment may be cancelled and possession may be
delivered back to them. When the petitioner themselves admit the possession of Mangat
Ram so this land cannot be said to be unutilised. I am in agreement with the
contention of the counsel for the respondent Ram Dia, legal heir of Mangar Ram.
Land was allotted to Mangat Ram on 21.2.64 and the possession had been
delivered vide report rozmancha no. 219 dated 17.3.64 which has been admitted
by the petitioners themselves in their application and all the Courts have
admitted this as such. Therefore, the land stood utilised at the time of death
of big land owner and for the reason this case does not fall within the ambit
of Section 10 A(b) of Punjab Security of Tenures Act. So far as thee question
of report of Teja Singh Patwari and that of Naib Tehsildar Agrarian dated 21st September, 1972 is concerned, in which they have
said that the land was not utilised, it is found from the record that on the
basis of the facts aforequoted, the lands stands utilised. The report has no
basis nor this report is on the basis of record.
The counsel
for the petitioners contend that the report rozmancha no. 219 dated 17.3.64 has
been fabricated because two kinds of papers are used in it and page no.29 is
not pasted on its serial.
Roznamcha
has been fabricated afterwards.
In
this respect the counsel for the respondents while arguing has submitted that
the report roznamcha has been properly prepared.
Reference
of this report has been made by Collector, Agrarian, Karnal in his order dated
13th June, 1978, Collector Agrarian, Karnal in his order dated 27th October,
1982, Collector Karnal is his order dated, 8th August, 1983 and by the
Financial Commissioner, Haryana in his order dated 28.2.1990 but the
petitioners never expressed any doubt as to this report roznamcha nor raised
any objection ever although this document is important one in this case. Now
describing this report roznamcha as wrong is not justified. In addition to this
the Expert who has been produced with regard to this report roznamcha, he does
not know how to write and read Urdu. Then how can he express his opinion about
this document? The Collector, Karnal has also written in his order dated 8th
August, 1983 to the effect "that it is an admitted fact that Mangat Ram
son of Kalu Ram was allotted 40 Kanals 16 marlas of land on 21.2.1964 as 'B'
category tenant possession whereof was given vide report no 219 dated
17.3.1964. Appellants were issued from US-3 on 9th September, 1976. The petitioners also have admitted the possession
of Mangat Ram in their application dated 16.12.1977 from where it is proved
that possession was delivered to Mangat Ram vide report roznamcha No. 219 dated
17.3.1964." Regarding From K-6, the finding is to the following effect:-
"Counsel for the petitioners has also raised an objection that there is no
Form K-6 on the file whereas one copy of Form K-6 is given to the land owner as
per Section 20 of the Punjab Security of Land Tenures Act and one copy is given
to the allottee and one copy is retained on the file but Form K-6 has never
been issued.
Counsel
for the respondents has drawn my attention to index form of file No. 332/Anti Agr.
In
this form reference to Form K-6 is made. He submitted that the petitioners have
deliberately got removed this form because by showing this missing they want to
take benefit. I am in agreemtn with the contention for the counsel for the
respondents.
In the
index form in file No. 332/Anti Ar., Form K-6 has been referred to which is
prepared in Urdu and this file was consigned to the record room vide Goshwara
No. 1388. If Form K-6 was not there at the time of consigning this file in the
record room, then it was not possible to assign Goshwara on this file. In
addition to this report no. 219 dated 17.3.64 makes a reference to Form K-6.
Therefore, this argument is not acceptable though in this case From K-6 has not
been issued or that other formalities having been completed, rather the land
had been allotted as per the rules. Possession was given to the allottee on 21.3.1964,
Form K-6 was issued, vide form US-3 the proprietory rights were conferred on
the allottee. So far as writing of Kabuliatnama is concerned, in this respect
also the arguments of counsel for respondents is justifiable that it is the
duty of the big land owner to get executed the Kabuliatnama but the big land
owner had made on efforts in this respect.
Therefore,
from all the facts above noted, it is clear that 40 Kanals 16 marlas area of
big land owner Banarsi Das was allotted on 21.2.1964 to Sh. Mangat Ram son of Kalu
Ram, possession whereof had been given to Mangat Ram and until today this area
is under cultivation of Ram Dia, legal heir of Mangat Ram, whose name appears
in jamabandi and Girdawari. The petitioners themselves admitted possession of Mangat
Ram at the spot in their application dated 16.12.1977 and had made a prayer
before the Collector that allotment may be cancelled and possession may be
delivered back to them.
Instalments
of surplus land have also been deposited. After the possession was delivered to
Mangat Ram, big land owner Banarsi Das died on 12.1.1971 i.e. the land stood utilised
before the death of big land owner. From US-3 has been issued to the allottee
and proprietary rights has been conferred on him.
The
Commissioner, Ambala Division, in his judgment dated 20.1.1993, has recorded
the following findings:- "As regards the allotment factum, it is proved
from the allotment file No. 332 that this land was allotted to the respondent's
father Mangat Ram.
This
fact was also admitted by the appellants in 1972 and 1977 when they requested
the Collector Agrarian to cancel the allotment. The respondent's counsel
however, did not have any convincing reply to the insertion of page in the Roznamcha
bearing the Rapat No. 219. The appellant's counsel has tried to prove this
forgery with the help of handwriting expert as well. Nevertheless, it cannot be
assumed that any forgery or fabrication was done by the respondent side. It was
an old record of 1964 and only the revenue officials of that time could best
prove the fact genuineness or forgery in this regard. The respondent being a
tenant and illiterate person cannot be exempted of doing any forgery or
fabrication of records. The appellants never raised these pleas earlier at the
time of seeking exemption and cancellation of the allotment.
It,
therefore, appears that it is an after-though story to take benefit some
technical ommissions in the procedures. In my opinion the allotment is well
established in favour of the respondent.
As
regards the factum of utilisation the Id. counsel for the appellants relied on
the provisions contained in rule 20-A to 20-C and the judgments cited in his
arguments. the basic point on which he relied was that the requirement of rule
20-A to 20-C were not fulfilled and therefore, there was no utilisation in the
eye of law and if the land was not utilised during the life time of the big
land owner, then his legal heirs were entitled to benefit of section 10-A (b)
of the Act. The Id. counsel basically relied on the judgment of the Hon'ble
Supreme Court of India reported in 1980 PLJ page 121 in case F.C. Haryana
versus Smt. Kela Devi and others. On going through the details of this case, it
is revealed that this verdict related to that piece of land of which possession
was not admittedly given to the tenants/allottee. In this case the Commissioner
and the F.C. had taken a view that the order of allotment of the surplus area
itself amounted to utilisation of that land u/s 10A(a). In this case an area of
8 Kanals in village Ghelab was not allotted to any tenant though it was in the
surplus pool and the possession of this land was also not given to any-one.
This verdict basically pertains to this piece of land. The Hon'ble Court had observed in their judgment
itself, that the controversy before them does not relate to those pieces of
land which had been allotted to various tenants and possession was given to
them. In the instant case the factum of allotment and possession was earlier
admitted by the appellants and therefore, this ruling is not applicable in this
case. The case law referred to in PLJ 1989 page 95, PLJ 1991 page 180, 1982 PLJ
171, 1992 PLJ page 71 and 160 and 1981 PLJ 21 are relevant in cases where the
possession was not delivered to the allottees.
In the
instant case the possession of the respondent is proved from the revenue record
since 1965. As regards the issuance of certificate in form K-6, the same does
not exist on the file as the pages from 33 to 38 of the allotment file are
missing which might have contained the form K-6. It would be, therefore,
improper to assume that Form K-6 was never issued to the tenants." The
Financial Commissioner, in his Judgment dated 21st of January, 1997 recorded
the following findings:- 10.The case of the petitioners is that even though the
surplus area case of their father was decided in April, 1961 and some land was
declared surplus, yet the same had not been utilized till the time of the death
of their father in 1971.
Therefore,
under Section 10(A)(b) of the Punjab Security of Land Tenures Act, 1953, they
were entitled to get exemption from the land being declared surplus as the
successors of the big land owner were small land-owners. The present
petitioners have quite laboriously harped on this issue that the allotment of
the surplus land in favour of Sh. Mangat Ram was fake and forgery was done in
various documents to show that possession of the land had been given to Sh. Mangat
Ram.
11.Even
though he succeeded in creating some doubts about the genuineness of certain
documents about the delivery of possession, yet his arguments lose force
because:- i)According to his own statement contained in application dated
16.12.1977 made before the collector (Agrarian) Karnal, 42 Kanal 14 marla of
land out of surplus pool of Banarsi Das, was allotted to Sh. Mangat Ram father
of respondent No.2 in 1964 and US-3 Form of the land was issued on 9.9.76 while
by that time land stood exempted from the surplus pool, vide Collector order
dated 13.11.72. The prayer was that allotment be cancelled and possession given
to them. This shows that the present petitioners were aware in 1972 when they
applied on the death of their father for exemption of land from the surplus
pool that the land declared surplus had already been allotted to some persons.
If this fact had been disclosed, the Collector (Agrarian) Karnal would not have
exempted the land from surplus pool without giving notice to the allottees of
the land.
ii)In
their application dated 16.12.77 the present petitioners were requesting the
Collector (Agrarian) Karnal to cancel the said allotment made in 1964 and
restore the possession to them. This shows that the present petitioners were
admitting the fact that the possession of land had already been given to the
respondents. Their contention is that if possession had actually been given to
the respondents on 17.3.64 as mentioned in Rapt Roznamcha No. 219, the same
should have been reflected in Girdawari of Rabi 1964 or Kharif 1964.
Revenue
record has been produced to show that the respondents were in possession of the
land since 1965. Absence of Girdwari in favour of the respondents for Rabi 1964
or Kharif 1964 cannot be taken to mean that the delivery of possession was fake.
iii)The
plea that entire allotment proceedings of surplus land in favour of Sh. Mangat
Ram was fake, was never raised by the present petitioners at an earlier stage
particularly when they went to Collector (Agrarian) Karnal in December, 1977
for cancellation of allotment of surplus land in favour os Sh. Mangat Ram and
restoration of possession back from him.
12.After
going through the arguments of the Counsels and perusing the record of the case
it becomes apparent that the land of Shri Banarsi Dass declared surplus in April, 1961 had
been allotted and possession given to the allottees. It is possible that in the
process of allotment and utilisation of surplus land some of the technicalities
like execution of Kabuliat Nama or delivery of possession within 2 months of
the date of allotment may not have been fully comlied with.
But
these are mere technicalities and a poor tenant cannot be deprived of his right
to allotment of surplus land merely because some of these technicalities about
delivery of possession and utilization of land had not been complied with. In
this connection the rulings quoted by the counsel for the respondents namely :
1990
PLJ-485 and 1991 PLJ-714, are quite relevant." From the aforesaid
findings, it would be seen that the land in question was, admittedly, allotted
to Mangat Ram in 1964. Possession was also delivered to him over that land.
Form K-6 is indicated to have been issued in the report relating to delivery of
possession. Form K-6 is also indicated in the index of the relevant file. The
index is prepared in the course of official business and every document which
is placed on the record is first indexed. If the document is not on the record,
it would not mean that it was never filed. Form K-6 was issued as far back as
in 1964. Since it has been mentioned in the report for delivery of possession
and is also mentioned in the index, its non-availability on the file would be
of no consequence and it would be treated to have been issued at the relevant
time in terms of the requirement contained in the Rules.
Mr. Sachar
drew our attention to the following findings recorded by the Commissioner, Ambala
Division in his Judgment dated 20th of January, 1993:- "Regarding the
execution of Kabuliatnama Under rule 20-C. the respondent counsel has relied
upon 1990 PLJ 485 and 1991 PLJ 714 which lay down that after delivery of possession
execution of Kabuliatnama or Patta Nama is mere technicality and the utilisation
cannot be assailed on this ground when the other conditions are complete. I
find these two rulings quite relevant to the instant case." as also the
following observations made by the Financial Commissioner, Haryana, in his
judgment dated 21.1.1997:- "It is possible that in the process of
allotment and utilisation of surplus land some of the technicalities like
execution of Kabuliat Nama or delivery of possession within 2 months of the
date or allotment may not have been fully comlied with.
But
these are mere technicalities and a poor tenant cannot be deprived of his right
to allotment of surplus land merely because some of these technicalities about
delivery of possession and utilization of land had not been complied with.
and
contended that these findings are wholly contrary to law laid down by this
Court in Financial Commissioner's case (supra) and, therefore, cannot be
sustained in law. He contended that if "Kabuliyat" was not executed
by Mangat Ram in favour of Banarasi Das at the time of delivery of possession,
one of the steps for utilisation of surplus land, indicated in Rule 20-C was
not followed and, therefore, the land could not be treated to have been utilised
prior to the death of Banarsi Das in 1971. It is contended that the
requirements indicated in Rule 20-C are mandatory in nature and, therefore,
they had to be followed.
If
"Kabuliyat" was not executed, the land, it is contended, cannot be
treated to have been utilised. We are not prepared to accept this contention.
Undoubtedly,
all the requirements indicated in Rule 20-C are mandatory in character and,
therefore, clause (c) of Rule 20-C will also be mandatory for the reason that
the first part of this clause contains in imperative terms that the tenant
shall execute a "Kabuliyat" or "Patta" in favour of the
land-owner and the second part which is equally imperative says that it shall
be done before possession is delivered to the tenant. It is obvious that if the
second mandatory step was taken and the possession over the land was delivered
by the Revenue Circle Officer himself as required by Rule 20-B, there is no
reason to believe that the first mandatory step, immediately preceding thee
second step, was not taken particularly as possession would not have been
delivered to Mangat Ram without execution of "Kabuliyat". In fact,
delivery of possession being the official act of the Revenue Circle Officer as
indicated in Rule 20-B, a presumption has to be raised that all antecedent
formalities were duly complied with.
There
is another reason for not accepting this argument of the the learned counsel
for the appellants. It is indicated in Section 9(1)(vi) that if the tenant does
not execute the "Kabuliyat" in favour of the land-owner, he would be
liable to be ejected. Form of "Kabuliyat" is specified in Annexure
'C' appended to the Punjab Security of Land Tenures Rules, 1953. It is in the
form of a statement made by the tenant that he has taken the land belonging to
"X" for cultivation to whom he would pay the rent per agriculture
year regularly in time. The tenant also gives the undertaking that he would not
:
i) fail,
without sufficient cause, to cultivate the land comprised in my tenancy, in the
manner or to the extent customary in the locality in which the land is situate;
ii)use
the land comprised in my tenancy in a manner which may render it unfit for the
purpose for which hold it; and
iii) sublet
the tenancy or a part thereof.
Note
given at the foot of the Form of Kabuliyat reads as under:- "Note:- This Kabuliyat
or patta should be executed by the tenants in duplicate, who will give, one
copy to the land-owner concerned and retain the other:- "Kabuliyat"
is a document which is executed in favour of land-owner and on being executed,
is given to the landowner. The landowner, therefore, has to have it in his
possession. Surprisingly, there is no averment in the Writ Petition or anywhere
else that "Kabuliyat" was not executed in favour of Banarsi Das.
Moreover, had Mangat Ram not executed the Kabuliyat or Patta in favour of Banarsi
Das, he would have been, by now, evicted from the land in question in view of
the provisions contained in Section 9(1)(vii) of the Punjab Act. He would not
have allowed to continue in possession from 1964 till this date or at least
till the death of Banarsi Das in 1971 without any proceedings being initiated
for his eviction. Since Mangat Ram was in possession throughout, he shall be
treated to have had a valid title to remain in possession which can be traced
to the allotment of land followed by delivery of possession after completion of
all other formalities including execution of "Kabuliyat" or Patta.
It was
next contended on behalf of the appellants that "Kabuliyat" is not on
record and, therefore, it must be held that it was not executed by Mangat Ram
when the land was allotted to him. This argument cannot be accepted in view of
the findings recorded by the authorities below who had also considered the
effect of the so-called forged document, that possession of the land was
delivered to Mangat Ram in 1964 and that he has been in continuous possession
since then. We cannot, merely because the "Kabuliyat" is not on
record, hold that the Kabuliyat or Patta was not executed by Mangat Ram. Moreover,
"Kabuliyat" is executed in duplicate. The original is handed over to
the land-owner while the copy is retained by the tenant.
There
is no requirement under the Act or the Rules that a copy of "Kabuliyat"
shall also be placed on record.
Learned
counsel for the appellants also assailed the findings of the Commissioner, Ambala
Division and those recorded by the Financial Commissioner that there was an
admission of the appellants in their application for cancellation of allotment
made in favour of Mangat Ram that possession over surplus land was delivered to
him. It was pointed out that the application contains a recital that if
possession is found to have been delivered to Mangat Ram, the same may be
restored to the appellants. This, it is alternative which can be legally made.
The
averment contained in the application may not, in the strict sense, be treated
as "admission" of the appellants, but their pleadings do exhibit a
hesitant mind in as much as Mangat Ram, to their knowledge, was in possession
over the land since 1964 and continued to remain in possession uninterruptedly
as a tenant, but they circumsentively, as artificers, say in their application
that IF possession was found with Mangat Ram, the same may be restored to them.
The use of the word "IF" is a deliberate contrivance so as to make
the admission conditional. Even if this is excluded from consideration, the
findings on the question of possession can still be sustained on the basis of
other evidence on record.
No
other plea was raised before us. For the reasons stated above, we find no
merits in the appeal which is dismissed but without any order as to costs.
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