Prithvi Raj vs State of Punjab

H.S. Bedi, J.—By the present judgment, I propose to dispose of CWP Nos. 9088, 9090, 10452, 11414 and 10483 of 1991. The facts have been taken from CWP No. 10483 of 1991.

The petitioner, along with his real brothers, is owner of land jointly held by them in various villages of Tehsil Fazilka, District Ferozepur. As the petitioner was a big landowner, proceedings for declaration of his surplus area were initiated by the Special Collector, Agrarian, Fazilka, in the year 196061. The Special Collector vide his orders dated 20th March, 1961, declared some area of the petitioner surplus under the provisions of the Punjab Security of Land Reforms Act, 1953 (hereinafter called the ''old Act''). The declaration of surplus area was thereafter reviewed by the Collector after securing permission from the Commissioner and an order was passed on 17th November, 1970 once again declaring the same area as surplus. Dissatisfied with the order aforementioned the petitioner approached the Commissioner by way of an appeal and the same was accepted vide orders dated 16th December, 1974 and 25th March, 1975 and the matter remanded to the Collector for redecision. While the matter was pending before the Collector the petitioner moved an application praying that before deciding his surplus area case his holding be separated from the joint holding of his brothers as provided by Section 24A(1) of the old Act. The Collector dismissed the application vide order dated 20th June, 1980, stating that it was not necessary to separate the area under Section 24A(1) of the old Act or under Section 13(1) of the Punjab Land Reforms Act, 1972 (hereinafter called ''the Act'') before the determining the surplus area. Aggrieved by the order of the Collector, the petitioner once again filed an appeal before the Commissioner and the same was accepted on 19th January, 1981, and the case remanded to the Collector with a direction to him to separate the joint holding before declaring any area surplus. It was been averred by the petitioner that even or remand and despite the specific directions, the Collector again did not decide the application under Section 24A(1) of the old Act and ordered the petitioner to file a selection of the area which he wished to maintain as his own. Dissatisfied with the order of the Collector, the petitioner again filed an appeal before the Commissioner which was again accepted vide order dated 15th April, 1982 and the case was sent back to the Collector with the specific direction to separate the joint khata of the petitioner so as to determine as to which Khasra number would be retained by each individual owner. It appears that the Collector did not comply with the directions of the Commissioner and once again affirmed his order dated 1st June, 1972, vide order dated 28th September, 1984 appended as Annexure P.1 to the petition. Aggrieved by the order of the Collector, the petitioner filed an appeal before the Commissioner, who dismissed the same vide his order 27th May, 1985, a copy whereof has been appended as Annexure P2 to the petition. The revision filed by the petitioner before the Financial Commissioner has also been dismissed vide order dated 13th November, 1990.

The stand taken by the petitioner in the writ petition is that the Collector had not complied with the orders of the Commissioner repeatedly given directing him to separate the joint holding of the petitioner before declaring the surplus area and, as such the order passed inter se between the parties ought to have been complied with by the subordinate officer. It has also been urged that on coming into force of the Act, the case of the petitioner for determination of surplus area was to be considered under the provisions of this Act. The respondent''s stand on a reading of the impugned orders as also of the written statement is that as per the provisions of Section 24A(1) of the old Act which corresponds to Section 13(1) of the Act it was not necessary separation could be done even thereafter. It has also been argued that by virtue of Section 28 of the Act, the proceedings for determination of the surplus area which were pending at the time of coming into force of the Act, were to be completed under the provisions of the Act.

After hearing counsel for the parties, I am of the view that the writ petitions deserve to succeed.

Mr. S.C. Kapoor, learned Senior Advocate appearing on behalf of the petitioner, has urged that the Commissioner had time and again while remanding the case to the Collector for reconsideration directed that the joint holding of the petitioner be separated so as to facilitate the declaration of the surplus area and despite the directions issued to that effect, the needful was not done. He has urged on the strength of a decision of the Supreme Court reported in Jasraj Inder Singh v. Hemraj Multan Chand, AIR 1977 S.C. 1011 that the subordinate Courts are bound by directions of the higher Courts as to hold otherwise would be subversive of judicial discipline and propriety. I find substance in the argument raised. Although under Section 24A(1) of the old Act and Section 13(1) of the Act the Collector while declaring the surplus area in the hands of the landlord is entitled to separate the joint holding either before the declaration thereof or subsequent thereto yet when a decision inter parties is given by the higher authorities the subordinate authority is bound by that decision. The Collector was therefore in law bound to comply with the directions issued by the Commissioner repeatedly in the course of the various remand orders made. Had the State been aggrieved by the various remand orders made by the Commissioner, it was open to it to challenge them before the Financial Commissioner or even the High Court. It will be seen that the Collector vide the impugned order Annexure P1 did not separate the joint holding of the petitioner and has issued notice under Section 9(1) of the Act which authorise the Collector to take possession of an area that has been declared surplus and also for initiating proceedings under Section 13(1) of the Act for separating the share of the petitioner from the joint holding. It is apparent therefore that there has been noncompliance with the order of the Commissioner that the joint holding should be first separated and then only the surplus area declared. In the appellate order Annexure P2 this point has been touched by the Commissioner but he too has fallen into the same error and has held that the order of the Collector needed to be upheld as the Collector "had given a clear direction in the impugned order that the proceedings under Section 9(1) of the Punjab Land Reforms Act, 1972, for utilizing the surplus area would be initiated only after completing the proceedings under Section 13(1) of the Act ibid". This again does not go to the root of the matter as the surplus area had been declared without separating the joint holding. The revision petition filed the petitioner against the order Annexure P2 has been dismissed vide the order Annexure P3 and the learned Financial Commissioner has in fact given practically no reasons for doing so. This is what the Financial Commissioner has to say :

"The main point urged by the counsel for the petitioner was that shares of the cosharers should have been separated first under Section 24A(1) of the Punjab Security of Land Tenures Act, 1953 before finalising the surplus area proceedings. The second plea was that directions given by the Commissioner in his remand order dated 19.1.1981 have not been followed. Third plea was that on the enforcement of Punjab Land Reforms Act, 1972, proceedings under the old Act should have been closed and the case should have been decided under the new Act.

The contentions made by the counsel for the petitioners were rebutted one by one by the counsel for the respondent No. 2, Senior counsel and the counsel for the State. I have carefully examined the pleas made on behalf of the petitioners. It was not incumbent upon the Collector to separate shares under Section 24 before declaring surplus area. That being so, any noncompliance with the directions of the Commissioner for separating shares under Section 24 before declaring the surplus area is not fatal. Third plea that the proceedings under the old Act should have been closed on the enforcement of the new Act has also no force."

It will be seen that the Financial Commissioner had left the question raised by the petitioner unanswered and has not sought to meet the crux of the matter. I am, therefore, of the view that it was incumbent on the Collector to separate the joint holding of the petitioner from his brothers and only thereafter to declare the area surplus.

The second argument which had been raised before the authorities below and once again pressed before me is that on the coming into force of the Act proceedings for the determination of the surplus area were to be made in accordance with the provisions of the Act and not under the provisions of the old Act. In this connection, counsel for the petitioner has cited a decision of this Court rendered in Jagjit Singh v. State of Punjab and another, 1982 PLJ 319 : 1984 R.R.R. 427, in which the Court observed that a perusal of the proviso to Section 28 of the Act would make it clear that the proceedings pending for determination of the surplus area under the old Act have to be decided in accordance with the Act after 24th March, 1973 i.e. the date on which the Act came into force. In view of this judgment, the orders impugned cannot be sustained.

It is clarified that the matter with regard to the separation of the joint holding is a point in issue only in CWP Nos. 10452 and 11414 of 1991, whereas the question of redetermination of the surplus area under the new Act is common to all four cases.

For the reasons recorded above, the present writ petitions are allowed and Annexures P1 to P3 are quashed with no order as to costs. The parties through their counsel are directed to appear before the Special Collector, Agrarian, Fazilka, on 17th March, 1992.