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TMI Blog1998 (11) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to be cancelled, but they lost before all the authorities and have ultimately landed in this Court. 2. Leave granted. 3. 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 Marias 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 ). 4. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ Petition before the Punjab Haryana High Court which, by the impugned judgment, dismissed the Writ Petition on 14.8.1997. 7. Shri Rajinder Sachar, Senior Counsel, appearing for the appellants, has contended that mere 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 Banarsi Das, was inherited by the appellants and since inheritance is saved Under Section 10A 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 10A, 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. 11. While Sub-clause (a) of Section 10A 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)0) of the Act, Clause (b) creates an exemption in favour of land which, in the mean time, 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. 12. 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 resultant of tenant can be initiated by the Circle Revenue Officer Under Rule 16. Rule 17 indicates t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exure '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, the allotment shall be liable to be cancelled and the area allotted to such tenant may be utilized for resettlement of another tenant. 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Haryana High Court in Ranjit Ram v. The Financial Commissioner, Revenue, Punjab and Ors., (1981) 83 P.L.R. 492, and observed as under:- According to us, the majority judgment of the Full Bench, has correctly appreciated the scope of the three enactments 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. 16. Relying upon the above statutory provisions specially the decision of this court in Financial Commissioner, Haryana State and Ors. v. Smt. Kela Devi and Anr., (supra) and the Constitution Bench decision in Ujjagar Singh (dead) by L. Rs. v. The Collector, Bhatinda and Anr., (supra) which approved v. the earlier decision in Financial Commissioner, Haryana State and Ors. v. 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 possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mselves 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 the 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 stand utilised. The report has no basis nor this report is on the basis of record. The counsel for the petitioners contend that the report roznamcha 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 in his order dated 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Possession was given to the allottee on 21.3.1964, Form K-6 was issued, vide form US-3 the proprietary 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 nutrias area of big land owner Banarsi Das was allotted on 21.2.1964 to Sh. Mangat Ram son of Kalu Ram, possession whereof had teen 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. Installments 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 10A(a). In this case an area of 8 Kanals in village Ghelab was hot 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 1989 PLJ 95, 1991 PLJ 180,1982 PLJ 171,1992 PLJ 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 tie form K-6. It would be, therefore, improper to assume that Form K-6 was never issued to the tenants. 21. The Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue 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 of Sh. Mangat Ram and restoration of possession back from him. 12. After going through the arguments of the counsel 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 complied with. But these are mere technicalities and a poor tenant cannot be deprived of his right to allotment of surplu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner'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 20C 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 20C 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. 26. Undoubtedly, all the requirements indicated in Rule 20C are mandatory in character and, therefore, Clause (c) of Rule 20C will also be mandatory for the reason that the first part of this clause contains in imperative terms mat the tenant shall execute a Kabuliyat or Patta in favour of the land-owner and the second part which is equally imperative says mat 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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. 31. 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. 32. Learned counsel for the appellants also assail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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