Important Point
Where admittedly surplus land was allotted to and given in possession to tenant who continued to be in possession, 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. In such a case heirs could not ask for cancellation on the ground that the land passed on to them by way of inheritence on death of land owner and utilization of land was incomplete for want of execution of Kabuliyat by tenant.

Headnote:Punjab Security of Land Tenures Act, 1953 - Section 10-A(b) and 10-B - Cancellation of allotment made to resettled tenant-On ground surplus area passed to heir by inheritance-Land in question admittedly declared surplus and allotted to one M-Possession of land given to M-Subsequent death of original land owner-Heirs applying for cancellation contending that land had not already been utilised - Concurrent findings of lower authorities that M was allotted land, he was in possession till date of application by appellants-Appellants plea that Kabuliyat nama not executed by M in favour of land owner and as such utilization of land not complete-Not sustainable - Had ‘M’ not executed Kabuliyat he would not have been allowed to continue in possession in view of Section 9(1)(vii)-Since M was in possession throughout he shall be treated to have had a valid title traced to allotment of land followed by delivery of possession after completion of all other formalities including execution of Kabuliyat.
       Held : While Sub-clause (a) of Section 10-A authorises the State Government or any officer empowered by it in that behalf of 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 so provided by Section 10-B. (Para 10)
       Provisions of Rules 20A, 20B, 20C and 20D 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. (Para 12)
       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. 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. (Paras 16 & 21)
       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 the 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. (Para 23)
       Further held : It is indicated in Section 9(1)(vii) 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. “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 been 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. (Paras 24 & 26)

Judgment

S. Saghir Ahmad, J.-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 (i) 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 in 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 them and, therefore, it could not be utilised in any way, 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.

2. Leave granted.

3. Banarsi 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”).

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 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, on 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.

5. 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.

6. 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

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1998 Supreme(SC) 1177

Cases Referred (2)