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Section 5 – The Punjab Land Reforms Act,1972

The Punjab Land Reforms Act,1972

Section 5. Selection of permissible area and furnishing of declaration by certain persons

(1) Every person, who on the appointed day or at any time thereafter, owns or holds land as landowner or mortgagee with possession or tenant or partly in one capacity and partly in another in excess of the permissible area, shall select his permissible area and intimate his selection to the Collectors concerned, through a declaration to tbe furnished in such form and manner and within such period as may be prescribed and if such person had an adult son, out od the land owned or held by him, subject to the condition that the land so selected together with the land already owned or held by such son, shall not exceed the permissible area of each such son:

Provided that where land is situate in more than one patwar circle, the declaration shall be supported by an affidavit in the prescribed form.

(2) In making the selection, such a person shall include, firstly land mortgaged without possession and, secondly, land under self-cultivation on the date of commencement of the period prescribed for furnishing the declaration under sub-section (1), but shall not include area declared surplus under the Punjab law, the Pepsu law or this Act, other than the area which was exempt from utilization by the State Government immediately before such commencement.

COMMENTS

Consolidation proceedings During the consolidation proceedings, which took place in the year 1964, they had been given the benefit of the aforesaid transfer of land and area measuring 486 Kanals 1 Marla had been allocated on their qurrah. It was alleged by them that the surplus area case of their father having been decided on their absence by the Collector(Agrarian) was ex parte qua them and thus liable to be reviewed. The Collector vide his order dated 13th February,1975 rejected the aforesaid application on the ground that the earlier order of the Collector, Bhatinda dated the 9th January,1961 whereby the surplus area case of the landowner was decided had been upheld both by the Financial Commissioner and the Punjab and Haryana High Court on the 26th April,1963 and the 19th April,1973 respectively. State of Punjab vs. Harbans Singh and others,1989 PLJ 52

Reassessment ” In Ranjit Rams case a Full bench of this Court has held that if a landowner whose land had been declared surplus dies before the land had been utilised the land ws to be reassessed in terms of Section (5)1) of the Punjab Land Reforms Act,1972, in the hands of his adult sons. Sawaran Singh vs. State of Punjab and others,1993 PLJ 329

It is clear that the possession of the area declared surplus under the old Act continues to be with the landowner i.e. the petitioner till toda. It implies that the surplus area had not been utilised. That being so, the Collector was to re-determine the area under the new Act afresh in terms of the authorities cited by the petitioner. Behari Lal vs, State,1992 LLT 38(F.C.Punajb)

It shall however, be open to the authorities to re-assess the land in the hands of Surinder Kaur, who as referred above is daughter-in-law of Ajmer Singh, under the provisions of Punjab Land Reforms Act,1972. It is, therefore, made clear; that if any such exercise is done, the vendees from Ajmer Singh shall also be heard. Ajmer Singh vs. State of Punajb,1992 PLJ 583

On behalf of the appellants, it was stated that the land, which was declared surplus, remained in the possession of Inder Singh, the landowner till his death, which took place on the 26th November,1983. After his death the appellants who are his legal heirs have been in possession of the land as owners. The disputed land had not been utilized by the State Government, with the result that the appellants, a fresh divested of its possession. After the death of the father of the appellan
ts, a fres
h cause of action again accrued to them and their rights are protected in view of the Full Bench judgment of the Punjab and Haryana High Court reported in 1980 PLJ 354. Since Inder Singh and three adults sons on the appointed day, they are entitled to take benefit of Section 11(5) and (7) of the Punjab Land Reforms Act. In pursuance of the remand order of the High Court, the father of the appellants filed objections which were accepted by the Collector (Agrarian) by his order dated the 9th November,1983 and the notice was withdrawn. The appeal filed by the State before the Commissioner had been accepted erroneously and the case remanded to the Collector with the direction that the case should be kept pending till decision of the Supreme Court in Ranit Rams case. The order of the Commissioner in any case deserved to be set aside as no surplus land remained in the hands of the legal heirs of Inder Singh. Gurdev Singh and others vs State of Punjab and another,1988 PLJ 317.

Since the plaintiffs are in continuous possession till today, the surplus area is to be re-determined under the new Act i.e. under the Punjab Land Reforms Act which was enforced on 2.4.1973. In support of his contention reference was made to Ranjit Ram vs. The Financial Commissioner, Revenue Punjab and others,1981 PLJ 59. The Suit filed on 22.12. 1975 i.e. after coming into force of the above said Act. No such plea was taken in the plaint by the plaintiff. That being so, he could not be allowed to take such plea for the first time at the time of arguments. Moreover, if he is in continuous possession on account of the stay order passed by the Courts, that will not entitle the plaintiff to claim benefit of the provisions of the above said Act. Balbir Singh vs. State of Punjab and others,1991 PLJ 395

Only sons are entitle for a separate unit and not grandsons The two sons of the landowners have already been given benefit of two separate units and, as such, there is no force in this contention in the argument of counsel for the petitioner that grandson is also entitled. In the definition of family as given in Section 3 of sub-section (4) of Punjab Land Reforms Act,1972 it is mentioned that “family” in relation to a person means the person, the wife or husband, as the case may be of such person and his or her minor children other than a married daughter. In the definition on children of the landowner have been allowed but not grad children. Udham Kaur and others vs State of Punjab and others,1990 PLJ 607.

Notice-Since the land had not been utilised upto the date notice under Section 9(1) was issued so it was incumbent upon the Collector to re-determine the are under the new Act,1972, and benefit of adult sons be given to original landowner who had two adult sons in a family of 8 members on the appointed date. But there is no force in these arguments as the land had been declared surplus under the Punjab Security of Land Tenures Act,1953 well before the commencement of the Punjab Land Reforms Act,1972. So the order of Collector Agarian declaring surplus are attained finality and the case cannot be re-opened in the guise of purchase by the present petitioners. Kuldip Singh and otehrs vs. The State of Punjab,1993 PLJ 249.

Surplus area The determination of surplus area has neither been challanged by the big landowner during his life time and nor by the his heirs at any time. Even after his death his heirs have not staked their claim for re-determination of surplus area. It is a common knowledge that heirs of a big landowner to ask for re-determination of surplus area after his death if they likely to gain on re-determination. However, where the heirs of a big landowner are already big landowners in their own right or have become big landowners after inheritance from a deceased landowner, they may not claim re-determination of surplus area. Hanuman vs. State of Punjab and others,1993 PLJ 134

Res-judicata — The
appellant having been present in all these proceedings these orders were very much in his knowledge. After he failed to prefer an appeal/revision against the orders determining the surplus area within the limitation prescribed under the Act., the petitioners have forefeited the right to challenge the same which operate as re judicata between the petitioners and the State Government. Paro Bai etc. vs. State,1989 PLJ 46

Gift deed — The Commissioner had not gone into the bona fide or otherwise of the gift made favour of Smt. Sukhwinder Kaur and has dismissed the appeal by merely standing that the gift having been made after the appointed day, was not be valid. He has urged that this was contrary to the provisions of Section 5 of the Punjab Land Reforms Act, whereby a bona fide trnasfer even if it be by way of a gift made after the appointed day was to be protected, I find force in the argument of the counsel for the petitioner. It is clear to me that the Commissioner has not given a finding in terms of Section 5 of the Act as it was incumbent on him to give a finding with regard to the bona fides or otherwise of the gift made in favour of Smt. Sukhwinder Kaur. Jagat Singh vs. Punjab State through the Financial Commissioner and Secretary Revenue Punjab, Chandigarh,1992(1) SLJ 1205 = 1992(1) PLR 677 = 1992(1) Rev.LR 308 = 1992 PLJ 281 = 1992(2) LLR 485

Determination of claim The Commissioner has rejected the plea of petitioner Om Parkash that he be given tenants permissible area on the ground that Om Parkash is the adopted son of the landowner Mohari Ram and, therefore,, cultivation by Om Parkash becomes self-cultivation by the landowner, in that view of the matter it was incumbent on the Commissioner to determine the claim that the petitioner was adult on the appointed day and, therefore, entitled to a separate permissible unit. Om Parkash vs. State of Punjab. 1992 LLT 22(F.C. Punjab)


Appointed day
— The eldest son of the landowner Manmohan Singh was major on the appointed date. But he was granted citizenship of Australia on 8.6.1973. Certificate is on the file of the Collector on the date of decision of the case by the Collector(Agr.) in the year 1976. Manmohan Singh was not a citizen of India and as such, no benefit of additonal unit being son of the landowner be given to him. The landowner had sold approximately 19 acres of land in village Sadhowal in the year 1973-74. As the sale was made after appointed date so this is to be ignored and the land will be counted in the hands of the big landowner. Similarly any land susequently acquired by the landowner will also be counted towards his total holdings. The Collector(Agr.) has given benefit of adult son to Harpreet Singh, who attained majority in the year 1979. This is wrong as the benefit of adult son is to be counted as on 24.1.1971 and not afterwards. As mentioned in the order of the Collector(Agr.) Garhshankar dated 30.1.1980 the landowner had concealed material facts in his affidavit dated 19.2.1976 filed in connection with the proceedings before the Collector(Agr.) under the Land Reforms Act. This may be looked into and all the land standing in the names of his sons should be counted and appropriate action be taken under Section 23 of the Land Reforms Act,1972. This is a fit case to impose a cut of 2 hectares as envisaged in the Act. Gurbachan Singh and another,1991 PLJ 226

With the coming into force of the Punjab Land Reforms Act,1972, it was incumbent on the Collector to have given due notice to the big landowner in whose hands surplus area had been assessed under the old Act and to have considered the objections in the light of provisions of the Punjab Land Reforms Act,1972. As Inder Singh had three adult sons on appointed day, he was competent to retain a separate unit for each of his adult sons. To that extent, surplus area which was declared under the old Act but had not been utilised upped the coming into force of the new Act would have
to suffer reduction to the extent necessary. In this case, the Collector, Sangrur found that no surplus land remained with the landowner after allowing separate permissible area to the adult sons. Gurdev Singh and others vs. State of Punjab and another,1988 PLJ 317

The sole point for determination in this case is whether the date of birth as recordced in the municipal record could be accepted in preference to that recorded in the Matriculation certificate. Gurbachan Singh vs. State of Punjab and another,1990 PLJ 309


Tenants permissible area
— The stand of respondent No.1 is that the contents of sub-para (iv) are not admitted as the case was decided on merits by the lower Courts after giving full weightage to the evidence produced by the petitioners. Respondent No.2 has also given an evasive reply and has stated that there were no other tenants on the land of the petitioners on the appointed day, except Net Ram, who had been allowed his tenants permissible area. It is, therefore, apparent to me that this aspect of the matter has not been adequately dealt with the authorities and the assertions made in writ petition have not been emphatically denied. I am, therefore, of the view that as far as determination of the tenants permissible area is concerned, the matter needs to be gone into once again. The petition is allowed on the limited ground mentioned above, and the orders Annexures P-2 and P-4 are accordingly quashed. A direction is issued to the Collector having jurisdiction in the matter to re-determine the tenants permissible area and thereafter re-assess the surplus area in the hand os the landowner. Sahi Ram vs. State of Punjab through Collector, ferozepur,1992(1) SLJ 928

Benefit of own wrong The surplus land was allotted to them but they could not take possession in view of the stay order granted by the authorities under the Pepsu Act and by the High Court when the order passed by the authorities under the Pepsu Act was challenged in a writ petition. The landowner cannot be allowed to take benefit of his own wrong. He approached the High Court, got a stay order and the allottees could not obtain possession because of the stay. Mr. Tiwari may be right to the extent that the possession could not delivered to his clients because of the stay order granted by this Court. Nevertheless, the fact remains that the landowner was not divested of the ownership of the surplus land and in view of the mandatory provisions of Section 4 read with section 5(1) of the Act, he is entitled to select permissible area for his family and for each of his adult son. Rajinder Singh and another vs. State of Punjab and others,1989 PLJ 168

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