Dayal Singh vs Secretary to Government, Punjab, Revenue Department

T.H.B. Chalapathi, J.—The petitioners are invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India for issuance of a writ of mandamus directing the respondents to finalise the transfer of the land in dispute in their favour on the ground that they had been holding the said land since the year 194849 and that they are entitled to have the land transferred in their favour by virtue of the policy of the Government enunciated from time to time.

According to the petitioners, the land in dispute was evacuee property and thus vested in the Central Government and that the Central Government transferred the land to the State of Punjab and the State of Punjab issued instructions in Memorandum No. 7841JN(LV)61/2699 dated August 29, 1961, for the disposal of the said land by way of allotment. In pursuance of the said policy decision, the petitioners have been allotted the land which had already been in their possession by the Tehsildar, Ferozepur, in September, 1964, and the allotment orders have been issued. Subsequently, the State Government changed the policy and in accordance with the said policy, the evacuee land which stood transferred to the State of Punjab had to be allotted to persons belonging to Scheduled Castes, Rai Sikhs, landless agriculturists and agricultural workers upto a limit of ten ordinary acres. On the ground that the petitioners do not belong to Scheduled Castes, Rai Sikhs or exservicemen, the respondents were trying to dispossess the petitioners from the land and allot the same to others without finalising the transfer of the lands in favour of the petitioners. Therefore, the petitioners have approached this Court seeking a writ of mandamus directing the respondents to transfer the land in their favour in pursuance of the policy of the State Government.

In the written statement filed by the respondents, preliminary objection was taken that the writ petition is not maintainable as the petitioners have got an alternative remedy of approaching the Deputy Commissioner and then to file appeal before the Commissioner against the order of the Deputy Commissioner and to the State Government against the order of the Commissioner and the petitioners having failed to avail those remedies, they cannot be permitted to approach this Court. It is further stated in the written statement that in pursuance of the Government instructions contained in letter No. 5699R171/8830 dated December 23, 1971, land can be allotted only to Rai Sikhs and exservicemen, therefore, allotment of the evacuee agricultural land in favour of the petitioners who are not members of Scheduled Castes, Rai Sikhs or exservicemen was not in order and, therefore, no proprietary rights can be conferred on the petitioners. According to the respondents, the petitioners 1 to 9 belong to Kamboj Sikhs while petitioner No. 10 belongs to Jat Sikh and, therefore, they are not governed by the instructions contained in letter of the State Government dated December 23, 1971. The respondents, therefore, pray that the writ petition be dismissed.

It is not controverted in the writ petition that the petitioners have been in possession of the land since 194849. It is also not disputed that the petitioners made the land cultivable and brought it into cultivation. It is not the case of the respondents that the petitioners are not landless agriculturists. There is also no dispute of the fact that the land had been allotted to the petitioners because of their occupation/possession in the year 1964 by the Tehsildar, Ferozepur. It is also not in dispute that the Tehsildar, Ferozepur, issued the allotment orders in favour of the petitioners on the basis of the orders passed by a committee constituted for the purpose of allotment of land by the Government in its Memorandum No. 3355JN(IV) 62/2330 dated May 11, 1962. When the respondents did not take steps for conveying the property in favour of the petitioners, they approached this Court seeking the relief as stated above.

In my view, the preliminary objection taken by the respondents in their written statement cannot be sustained. It is no doubt true that the petitioners could have approached the Deputy Commissioner for transfer of the land and if any orders would have been passed by the Deputy Commissioner against them, then they could have preferred the appeal before the Commissioner and the Government but the allotment was made in the year 1964 and it was only in the year 1974 that the Punjab Government issued a press note dated September 4, 1974, declaring its policy in regard to the transfer of evacuee agricultural land. When the petitioners apprehended their dispossession and allotment of land to others, they approached this Court in the year 1991. The writ petition is pending in this Court since then. More than fifteen years have elapsed after filing of the writ petition. When the matter is pending since a long time, it is not just and proper to dismiss the writ petition on the ground of availability of an alternative remedy to the petitioners of approaching the Deputy Commissioner, then to file an appeal before the Commissioner and to the Government. When the facts are admitted and when the point to be decided is purely based on the interpretation of the policy of the State Government enunciated from time to time, it is not in the interest of justice to dismiss the writ petition after a lapse of nearly twenty years on the ground that the petitioners have alternative remedy. It clearly amounts to do injustice to the petitioners particularly when there was no controversy on the facts and the only point to be decided relates to interpretation of the policy of the State Government.

As already stated, it is an admitted position that the petitioners have been in possession of the land since 194849 and they have been allotted the land in the year 1964 in pursuance of the then prevailing policy of the State Government. In the policy of the State Government issued in Memorandum No. 3355JN(IV)62/2330 dated May 11, 1962, the State Government declared its policy in that memorandum. The guidelines for leasing out the land have been enunciated as follows :

"The land should be leased out at the rate of ten acres of Banjar land per family of Rai Sikhs and exservicemen in Ferozepur, Amritsar and Gurdaspur districts who are landless but actual tillers of the soil. Small landowners owning less than ten acres should be allotted so much area as to make their holding equal to ten acres. The claims of the sitting tenants (authorised or unauthorised) before Rabi, 1964 who have made the land cultivable with their efforts should also be considered and they should be given preference if found eligible for allotment of the land. (emphasis added).

The petitioners admittedly are the sitting tenants whether authorised or unauthorised. It is also not in dispute that they made the land cultivable with their own efforts. Therefore, under the policy as envisaged in the year 1962, those persons who are in possession of the land and who made the land cultivable should be preferred for allotment of the land. The learned D.A.G. for the State of Punjab argued that only Rai Sikhs and exservicemen in Ferozepur, Amritsar and Gurdaspur districts are alone entitled to allotment under the policy but not other categories of persons. A similar press note issued by the Punjab Government on September 4, 1974, came to be considered by this Court in Kehar Singh v. State of Punjab and others, 1978 PLJ 87. It has been held in that decision as follows :

"Its perusal shows that Scheduled Castes, Rai Sikhs, landless agriculturists and agricultural workers have been placed in the same position so far as the allotment of land upto the limit of 10 ordinary acres, which may be in their occupation since the prescribed time is concerned. The policy of the Government as envisaged in this press note appears to be that the unauthorised occupants of land belonging to either of the four categories may be allotted land under their occupation on the ground that they have cultivated the same during the prescribed period. The sole qualification for allotment of land is to be determined by its occupation for a prescribed period and the overall limit is that no one shall be eligible to be allotted land more than 10 ordinary acres inclusive of the land which may be in his ownership already and the language in the press note is not capable of interpretation so as to make any distinction between the Scheduled Castes and Rai Sikhs on one side and the landless agriculturists on the other. The only distinction is between the Scheduled Castes on the one side and the other three categories on the other regarding the price to be paid for the land to be allotted to them. Any other interpretation will result in anomalous situation."

As already stated the persons in occupation before 1964 who made the land cultivable with their own efforts should be given preference for allotment of the land but under the circular dated May 11, 1962, and also under the letters of the Punjab Government, the limit of allotment of land is restricted to ten ordinary acres. On a close reading on the circular Annexure R1 and the decision referred to above, I am of the opinion that the petitioners are entitled to allotment of land upto ten acres only as they have been in possession of the property since a long time and they made the land cultivable with their own efforts. This right of the petitioners cannot be taken away by the Government on the ground that the petitioners do not belong to categories of Rai Sikhs or exservicemen. In fact, circular issued in the year 1962 referred to above envisages three categories of people who are entitled to allotment namely, (i) Rai Sikhs and exservicemen; (ii) small landowners owning less than 10 acres of land; and (iii) sitting tenants (authorised or unauthorised) that means persons who have been in possession before 1964. The petitioners'' claim will come under category (iii). They have been in possession of the land prior to 1964 and they made the land cultivable with their own efforts; therefore, they are entitled to allotment of land upto the extent of ten acres including any other land that they have been holding as owners. Therefore, the respondents are not entitled to take possession or evict the petitioners of the land within the limit of ten acres including any land owned by them. The petitioners have filed four allotment orders. This shows that the petitioners have been allotted 36.9 acres, 34.19 acres, 34.4 acres and 39.8 acres of land. Orders of allotment in respect of other petitioners have not been filed along with the writ petition. The allotment of land in excess of ten standard acres in addition to the land owned by them is contrary to the policy decisions of the State Government. Therefore, the State Government can take possession of land over and in excess of ten acres of land including the land owned by them.

I accordingly allow the writ petition in part and direct the authorities to confer proprietary rights on the petitioners upto ten acres of land including the land owned by them, if any, and the remaining land can be taken possession of by the Government after evicting the petitioners. The authorities are directed to determine the excess land in possession of each of the petitioners over and above ten acres including the land owned by them, if any, and take possession of the rest of the land and allot the same to others who are eligible for allotment in accordance with the policy of the State Government. There will be no order as to costs.