Judgment:
S.D. Anand, J.
1. It being common ground that the fate of this litigation would turn upon the interpretation of Rule 20-C of the Punjab Security of Land Tenures Rules, 1956 (hereinafter referred to as 'the Rules'), we do not feel called upon to go into the nitty gritty of the factual aspect.
2. Suffice would it be to notice that the land under reference was held to be surplus in the hands of land owner Mst. Gurdeep Kaur d/o Gurbax Singh (hereinafter referred to as 'the land owner'), vide order dated 16.12.1959 passed by the Collector, Amritsar. The land owner died on 18.5.1967. Before her death, she had executed a registered gift deed dated 4.3.1959 in favour of her nephews Sarv/Shri Amrik Singh, Tirlok Singh and Anokh Singh i.e. petitioners before this Court. (Amrik Singh is presently represented by his legal representatives, in terms of order dated 28.3.2008 passed by this Court in Civil Misc. No. 599 of 2008). That gift deed was in respect of 3/4th share of Mst. Gurdeep Kaur in the property. By means of a testamentary disposition dated 4.3.1959 itself, she bequeathed remaining l/4th share in favour of the petitioners.
3. It is respondent No. 4-Sadhu Singh (hereinafter referred to as 'the tenant') who was resettled by the competent authority on the land aforementioned in terms of provisions of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as 'the Act'). The tenant filed a plea for the purchase of the land upon which he had been resettled in terms of the Act. The matter is pending consideration at the hands of the competent authority after a number of hierarchical forensic vicissitudes.
4. The pure and simple plea raised on behalf of the petitioners is that the surplus land of the land owner could not be said to have been validly utilised in view of the fact that the tenant did not execute a Qabuliat Nama in favour of the land owner, in compliance with the provisions of Rule 20-C of the Rules which were averred to be mandatory in character. Reliance, in support of the view, was placed upon a judgment rendered by the Apex Court in Financial Commissioner, Haryana and Ors. v. Smt. Kela Devi and Anr. 1980 P.L.J. 121 and Krishana Kumari and Anr. v. State of Haryana and Anr. 1998(2) P.L.J. 497.
5. In support of the contention, sustenance was drawn from the fact that although the petitioners had made a specific averment in the petition about the non execution of a Qabuliat Nama, the plea had not been denied in the corresponding para of the written statement which (written statement) only talked of the fact that the execution of a Qabuliat Nama was not mandatory in character and absence thereof could not be termed fatal to the aspect of utilisation of surplus land.
6. In resistance, it was argued on behalf of the tenant that the non-execution of a Qabuliat Nama cannot be said to be fatal in character and that, in any case, the averment in para 17 of the written statement filed by the official respondents cannot be taken to mean an admission about the non-execution of a Qabuliat Nama. In order to further the point that the fact of the tenant having been put into possession of the land is valid enough to justify an inference that the act of execution of a Qabuliat Nama had been done because that act had to precede the delivery of possession to the tenant. In order to buttress the point aforementioned, reliance was placed upon a Division Bench ruling rendered by this Court and reported as Swaran Singh v. The State of Punjab and Ors. 2002(2) P.L.J. 455.
7. Before we proceed to undertake the adjudicatory exercise, we would like to notice the provisions of Rules 20-A, 20-B, 20-C and 20-D of the Rules, which are reproduced hereunder:
20A. 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 to the Patwari concerned as well as the 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 deemed 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 lands 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 Qabuliyat 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, the allotment shall be liable to be cancelled and the area allotted to such tenant may be utilized for resettlement of another tenant.
8. The above noticed provisions indicate that the land declared surplus in the hands of a big land owner has to be allotted to a tenant, already ejected or likely to be ejected, for resettlement. After the allotment thereof, a certificate in form K-6 has to be issued. That certificate is required to clearly indicate the land allotted to the tenant. Copies thereof are forwarded to the Patwari concerned and also the land owner. The possession of the allotted area is, thereafter, delivered to the tenant.
9. The tenant is bound to enter into possession of the land within a period of two months with effect from the date on which that land is demarcated on the spot in his presence. The period is otherwise extendable at the discretion of the Circle Revenue Officer. The moment the tenant is settled on a surplus land, the relationship of tenant and the landlord comes into being between him and the landlord. The tenant thereby becomes liable to pay the rent to the land owner. Rule 20-C(c) of the Rules would require that the tenant who was resettled shall execute a Qabuliat Nama, on the proforma given in Annexure-C, appended to the Rules, in favour of the land owner. Once the process of resettlement is concluded in the manner indicated in Rules 20-A to 20-C of the Rules, the surplus land shall be treated to have been utilised within the meaning of Section 10-A(a)of the Act.
10. Annexure P-2 is a copy of the order dated 20.8.1990 passed by the Collector, Baba Bakala, in terms of the order dated 15.3.1989 of the Commissioner, Jalandhar Division, Jalandhar remanding the matter to the Collector for a fresh decision. It is apparent from a perusal thereof that the matter related to the controversy about the utilisation/purchase of the land declared to be surplus in the hands of the land owner Mst. Gurdeep Kaur. In the course thereof, the Patwari, Agrarian, is noticed to have conceded that no Qabuliat Nama or patta had been executed by the tenant. ('Shri Jaswant Singh, Patwari Agrarian who represented State fairly and frankly admitted that no qabuliyat nama or patta has been executed with the tenant in any case.'). (There were a number of similar matters which came to be disposed of by that order).
11. There can, thus, be no escape from the factual position that no Qabuliat Nama, at all, came to be executed by the tenant in favour of the land owner. At the same time, in that very order, the Collector had recorded a finding of fact that the tenant had entered into possession of that land. ('It is abundantly proved that the possession of the land has come to the tenant and mere affirmation of Amrik Singh in the affidavit that land continues in his possession cannot be believed in face of the documentary evidence to the contrary. Therefore till the patta name is not executed making tenant eligible to purchase the land the present relationship of landlord and tenant paying the rent would continue.')
12. It would be pertinent to notice here that the petitioners herein had made a precise averment, in the course of the petition, that no Qabuliat Nama ever came to be executed by the tenant in favour of the land owner. The relevant averment appears in para 17 of the petition which is extracted hereunder for facility of reference:
That admittedly, no qabuliat Nama or Patta has been executed by the alleged allottee or his successors-in-interest. Even Shri Jaswant Singh, Patwari Agrarian, who represented the State has admitted before the Collector, Land Reforms, Baba Bakala, respondent No. 3, that no such Qabuliat Nama or Patta has been executed, and this fact is mentioned even in the order dated 28.2.1990 passed by respondent No. 3.
13. In the corresponding para of the written statement, all that the respondents No. 1 to 3 averred was that the execution of a Qabuliat Nama by the tenant in favour of the land owner was mandatory but that 'in case the possession is delivered to the allottee and fail to get the patta nama executed from the allottee, the question of cancellation of allotment due to non execution of pata nama does not arise at all at this belated stage.'. Insofar as the tenant is concerned, it is evident from the record that no written statement came to be filed. It can, thus, be validly inferred that the tenant did not offer any denial to the relevant averment made by the petitioners.
14. The Apex Court pronouncement in Kela Devi's case (supra) makes it clear that the execution of a Qabuliat Nama is a pre-condition before it can be averred that the process of utilisation of surplus land is concluded. The following observations made by the Apex Court in the context are quoted hereunder:
In order to understand the full meaning and effect of the provisions of Section 10-A, it is necessary to make a cross reference to rules 18, 20-A, 20- and 20-C of the Punjab Security of Land Tenures Rule, 1956 (hereinafter referred to as the Rules). Rule 18 deals with the procedure for allotment of 'surplus area' to other resettled tenants. Rule 20-A provides for the issue of certificates of allotment of lands to them, and rule 20-B provides for delivery of possession and makes it obligatory for the resettled tenant to take possession of land allotted to him within a period of two months or such extended period as may be allowed by the officer concerned. 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 utilization 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 utilization 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.
15. A similar view was taken by the Apex Court in Krishna Kumari's case (supra). In that case too, it was held that the requirement indicated in Rule 20-C of the Rules is mandatory in character. In that case, there was a controversy about the factum and effect of execution/non execution of a Qabuliat Nama. While dealing with that point, the Apex Court observed as under:
Undoubtedly, all the requirements, indicted 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 landowner 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 Circle Revenue Officer as indicated in Rule 20-B, a presumption has to be raised that all antecedent formalities were duly complied with.
16. The portion underlined to the above judicial pronouncement was relied upon by the learned Counsel for the tenant to build up an argument that the present is a fit case where a presumptive inference may be drawn that the Qabuliat Nama had been executed.
17. The learned Counsel was not on a firmer footing when he drew sustenance from the underlined portion for the drawal of an inference. In that case, there was no finding of fact that the Qabuliat Nama had not been executed.
18. In the case before this Court, however, the facts are entirely different. In the matter before us, respondents cannot even raise a plea that a Qabuliat Nama ever came to be executed. It is a case wherein the Patwari, Agrarian is noted in the course of the order dated 28.2.1990 (Annexure P-2) to have conceded that no Qabuliat Nama ever came to be executed. It is the tenant who was best circumstanced to concede or deny the averment made by the petitioners that no Qabuliat Nama ever came to be executed. It already stands noticed by us that the tenant did not file the written statement. Insofar as the official respondents are concerned, they did not, at all, make a positive averment that a Qabuliat Nama ever came to be executed by the tenant in favour of the land owner. Those respondents only confined themselves to the legality of the execution or non-execution of a Qabuliat Nama. In that view of things, the facts in the case before this Court are different from those involved in Krishna Kumari's case (supra).
19. The plea on behalf of the respondents that since the possession had been handed , over to the tenant, an inference about completion of all antecedent formalities can be validly raised is not valid in the light of the above noted discussion.
20. The further plea raised by the learned Counsel for the private respondent was that a presumption should be drawn against the petitioners because they had not applied for the ejectment of the tenant from the land aforementioned. The plea raised thereby is that if the tenant had not been resettled on the land in accordance with the provisions of Rule 20-C of the Rules, there is no reason why the petitioners would have been charitable enough to refrain from applying for the ejectment of tenant.
21. We find the plea to be illogical in view of the fact that the petitioners are very much contesting the application filed by the tenant to purchase that land. In view of the continuity of that litigation, the plea does not advance the case of the tenant-respondent.
22. Insofar as the Division Bench ruling rendered by this Court in Swaran Singh's case is concerned, that too does not come to the aid of the respondents because of the fact that, in the present case, there is material available on record (Annexure P-2) that no Qabuliat Nama ever came to be executed.
23. In the light of fore-going discussion, we conclude that the land declared to be surplus in the hands of the land owner is not proved to have been utilised during the life time of land owner. It would thus be incumbent upon the competent authority to redetermine the character of the land in the hands of the petitioners in the context of the gift deed dated 4.3.1959 and the will dated 4.3.1959 in terms of the provisions of the Act. 24. The petition shall stand allowed accordingly. The impugned order dated 5.8.1991 passed by the Financial Commissioner (Appeals), Punjab (Annexure P-4) shall stand quashed.