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PUNJAB & HARYANA HIGH COURT
Bal Raj Tuli and A.S.Bains JJ.
Harbans Singh
Versus
Ajit Singh
Letter Patent Appeal No. 536 of 1972,
Civil MISCELLANEOUS No. 3636 of 1974,
Decided On : NOVEMBER 18, 1974
PUNJAB SECURITY OF LAND TENURES ACT, 1953 - SECTION 5-B(1), 10-A - LANDLORD'S SELECTION OF PERMISSIBLE AREA - SALE OF LAND TO THIRD PARTY - EFFECT ON SURPLUS AREA DETERMINATION - NO POWER TO CHANGE SELECTION - ALIENATION NOT INVALID - NO INCLUSION IN RESERVED AREA - FRAUD NOT ESTABLISHED - NOTICE TO PURCHASER NOT REQUIRED - ORDER DECLARING SURPLUS AREA NOT VOID - VOIDABLE ONLY - REMEDY BY APPEAL.
Fact of the Case:
Landowners sold part of their land to appellants before submitting forms A and E to the Collector, Surplus Area, selecting their permissible area. The Collector ignored the alienations and declared surplus area. The Additional Commissioner accepted the appellants' appeal, holding that the landowners had committed fraud by not including the sold land in their reserved area. The Financial Commissioner rejected the landowners' revision petition. The landowners' challenge to the Additional Commissioner's order was allowed by a Single Judge.
Finding of the Court:
The Collector has no power to change the selection of permissible area made by a landowner under Section 5-B(1) of the Act. Alienation of land after April 15, 1953, is ignored for determining surplus area. The sale of land to the appellants was valid, and they could seek remedies against the landowners for any fraud, but the selection of permissible area could not be changed. No fraud was established merely because the landowners sold the land to the appellants shortly before filing form E. Notice of proceedings for determining reserved and surplus area was not required to be issued to the appellants as purchasers of the land. The order declaring surplus area was not void but voidable and could be challenged by appeal.
Issues: 1. Whether the Collector has the power to change the selection of permissible area made by a landowner under Section 5-B(1) of the Act? 2. Whether the alienation of land after April 15, 1953, is considered for determining surplus area? 3. Whether the sale of land to the appellants was valid and what remedies were available to them? 4. Whether fraud was established merely because the landowners sold the land to the appellants shortly before filing form E? 5. Whether notice of proceedings for determining reserved and surplus area was required to be issued to the appellants as purchasers of the land? 6. Whether the order declaring surplus area was void or voidable?
Ratio Decidendi: 1. The Collector has no power to change the selection of permissible area made by a landowner under Section 5-B(1) of the Act. This is supported by Division Bench judgments in Mota Singh v. Financial Commr., Punjab, and Darshan Singh v. State of Punjab. 2. Alienation of land after April 15, 1953, is ignored for determining surplus area, as per Section 10-A of the Act. 3. The sale of land to the appellants was valid, and they could seek remedies against the landowners for any fraud under the law, but the selection of permissible area could not be changed. 4. Fraud was not established merely because the landowners sold the land to the appellants shortly before filing form E. There is no provision in the Act giving power to the Collector or any other officer to change the selection made by a landowner under Section 5-B(1) of the Act. 5. Notice of proceedings for determining reserved and surplus area was not required to be issued to the appellants as purchasers of the land, as per Rule 6 of the Punjab Security of Land Tenures Rules. 6. The order declaring surplus area was voidable, not void, and could be challenged by appeal, as held in Dhaunkal v. Man Kauri.
Final Decision: The appeal was dismissed, and the parties were left to bear their own costs.
BAL RAJ TULI, J.
1. Ajit Singh and Smt. Mohinder Kaur are landowners in villages Tungpain and Sultanwind, Tahsil and District Amritsar (hereinafter called the landowners ). They owned 106 standard acres 10 3/4 units of land at the commencement of the Punjab Security of Land Tenures Act, 1953, (hereinafter called the Act ), out of which land measuring 43 standard acres 14 ½ units was Under ah orchard. They sold away 31 standard acres 10 - units of land to different vendees between 1955 and 1958, which sales were ignored by the Collector while determining their surplus area. A part of that land had been sold in favour of Gurbux Singh and Harbans Singh sons of Ch. Hari Singh (hereinafter called the appellants ) on April 24, 1958. On June 16, 1958, the landowners submitted forms A and E to the Collector, Surplus Area, selecting their permissible area. They did not include the land sold in favour of the appellants in their reserved area but showed it as surplus. On March 14, 1961, the Collector, Surplus Area, decided the case by ignoring the alienations made by the landowners and declared 25 standard acres 11 ¼ units of land as surplus. Against that order, the appellants filed an appeal which was accepted by the Additional Commissioner, Jullundur Division, on March 6, 1964, on the ground that the landowners had played a fraud on the appellants who had paid full price for the area purchased by them bona fide. He was of the opinion that the landowners should not have allowed the area purchased by the appellants to go to the surplus area and that the fact of sale of that area was not brought to the notice of the Collector. Consequently, he held that the area purchased by the appellants formed part of the permissible area of the landowners and directed that necessary adjustments should be made. The landowners filed a revision petition before the Financial Commissioner which was rejected. The landowners then filed C. W. No. 1008 of 1965 in this Court which was allowed by a learned Single Judge on September 15, 1972, and the orders of the Additional Commissioner and the Financial Commissioner dated March 6, 1964, and November 24, 1964, respectively were quashed. The present appeal under Clause 10 of the Letters Patent is directed against that order of the learned Single Judge.
2. The learned counsel for the appellants has vehemently argued that the landowners should not have been allowed to play a fraud on the appellants and the land sold in their favour should have been included in the reserved, area of the landowners. There is no provision in the Act empowering the Collector to change the selection of area made by a landowner as his permissible or reserved area. There is also no jurisdiction in the Collector, dealing with the case, to determine whether any fraud had been committed by the landowner with any person by selling his land. The matter has been put beyond any dispute by a Division Bench of this Court in Mota Singh V/s. Financial Commr., Punjab, 1968 Punj LJ 338, wherein it was "held :-
"(1) The proposition that a landowner, who held land beyond the limit of 30 standard acres is, after the coming into force of the Act under a duty to disclose to the would be vendee that some of his land is likely to be declared surplus under the Act, is not warranted in law.
(2) Where a landowner in the Punjab had sold some land from his holding to third parties and the question for determination and utilisation of his surplus area came up before the authorities set up under the Act, the land which had been transferred to the vendees would be included in surplus area and can be utilised for the resettlement of tenants but the permissible area selected by the land-owner under Section 5-B (1) of the Act cannot be included in surplus area."
3. A similar view was taken by another Division Bench in Darshan Singh V/s. State of Punjab, 1970 Pun LJ 622, wherein it was held :-
"(1) Where the landowner has either reserved his permissible area und
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