Vijay Kumar vs Deputy Commissioner, Jalandhar

C.D. Cheema, FC.

This is a remand case from the Hon''ble Punjab and Haryana High Court. While disposing of Civil Petition No. 7100 of 1995 titled Vijay Kumar etc. v. The Deputy Commissioner, Jalandhar the Hon''ble High Court has ordered as under :

"Learned counsel for the parties are agreed that the appeals in question namely Nos. 11 and 12 of 1994 pending before the Commissioner, Jalandhar Division, Jalandhar be transferred to the file of Sh. M.S. Chahal, Financial Commissioner, Revenue, Punjab who shall finally dispose of the said appeals within two months from today.

We order accordingly.

Learned counsel for the parties are further agreed that approximately 1/3rd of the crop on the land in dispute has already been cut by the petitioners. The petitioners undertake to furnish security for the value of the said crop, which we prima facie assess at Rs. 3 lacs to the satisfaction of Financial Commissioner which will be accepted after notice to the added respondents. The counsel for added respondents states that added respondents undertake to furnish security for the value of the remaining 2/3rd crop standing on the land in dispute which we prima facie assess at Rs. 6 lacs to the satisfaction of the Financial Commissioner which will also be accepted after notice to the petitioners.

In view of the agreed stand taken by the counsel for the parties, added respondents will be at liberty to cut the crop standing on the land in question as today after furnishing security within one week and the petitioners undertake not to interfere in the cutting of the crop by the added respondents.

The added respondents undertake to return the physical possession of the land in dispute to the petitioners subject to the result of the orders passed by the Financial Commissioner in the appeals without the added respondents'' having any right to claim stay of dispossession either in writ petition or in any other proceedings, in case the appeals are decided against them.

The assessment of the crop for which security has been undertaken to be furnished is tentative and the actual amount of mesne profit shall be determined by the appropriate authorities.

In view of the undertaking the clear statements given by the counsel for the parties, the writ petition is disposed of in the above terms. The Financial Commissioner is, however, directed to ensure the receipt of record and hearing of the appeal within the stipulated period. Parties through their counsel are directed to appear before the Financial Commissioner on 1.6.1995.

Copy of order be given Dasti."

30.5.1995

S/d M.S. Liberhan, Judge.

S/d T.H.B. Chalapathi, Judge.

In Civil Misc. No. 6547 of 1995 (in RECWP No. 7100 of 1995) Hon''ble Punjab and Haryana High Court has clarified vide order dated 14.7.1995 that the Financial Commissioner Revenue (by designation) will hear and dispose of the appeals in question.

Keeping in view the above orders the counsel for the petitioners as well as respondents appeared in the court on 1.6.1995 and filed applications on behalf of appellants No. 1 to 9 and respondents No. 4 and 31 and furnished security amounts. On receiving the requisite securities the respondents were permitted to cut the crops as ordered by the Hon''ble High Court. The record of the case was also called for through special messenger. An immediate letter was also written to the Deputy Commissioner, Jalandhar for assessment of the actual amount of mesne profit as desired by the Hon''ble High Court. To clarify further, the counsel for both the parties were asked to guarantee that the parties would not transfer or alienate their title or dispose of the property for which they have tendered papers. Both the counsel for the respective parties, stated at the bar and undertook that their parties would not part with title or alienate or transfer land in any manner during the pendency of the case and assured their full cooperation to the court. In view of the undertaking, they were directed that parties would not dispose of the land or transfer the title of the land for which they have filed their papers, in any manner till the disposal of this case. A report has already been received from the Sub Divisional Officer (Civil), Nakodar vide his letter dated 30.6.1995 whereby he has reported mesne profit of each field in respect of Tehsil Nakodar at the rate of Rs. 3453/ after deduction of price of seed, labour charges, irrigation etc. As per this report wheat crop was cut in 301 kanal 13 marla leaving the balance of 370 kanal 17 marla out of total area i.e. 672 kanal 10 marla. The mesne profit of said area was worked out to Rs. 1,30,200/ and Rs. 1,60,025/ respectively.

Since the facts and issues involved in all these three cases are the same including the petitioners and respondents, by and large, these are being disposed of by one single order, copy of which be placed in each file.

The brief facts of this case are that the surplus area case of the landowner Sh. Mohinder Singh adopted son of Nihal Singh resident of village Kang Khurd, Tehsil Nakodar was originally decided under the provisions of Punjab Security of Land Tenures Act, 1953 by the Special Collector (Agrarian), Nakodar on 13.2.1961. Subsequently an application for review was filed by the landowner and prayed that his banjar land should be excluded from his total land. Accordingly, the case was taken up with the Commissioner, Jalandhar Division for allowing permission to review which was allowed vide his order dated 4.3.1966. The case was reexamined and statements in form `D'' revealed that the landowner had 46.4. standard acres banjar (17.5 St. Acre in village Bharewali Tehsil Amritsar and 28.15 St. Acre in village Kang Khurd, Tehsil Nakodar). The total holdings of the landowner was determined 61383/4 St. Acre, after leaving the tenants'' permissible area 181/2 St. Acre, area under the orchard 12.6 St. Acre and 30 St. Acres as permissible area with the landowner, the remaining area measuring 55321/4 St. Acres was declared surplus by the Special Collector, Chandigarh vide his order dated 29.4.1966, as under :

Village and District

Area declared surplus

i. Kotha

5 63/4 St. Acres

ii. Kashal Garh

4 6 St. Acres

iii. Kang Khurd (Jalandhar)

423 13 St. Acres

iv. Bhardewali (Amritsar)

119 81/2 St. Acres

Total

553 21/4 St. Acres

When the case of surplus area situated in village Kang Khurd was put up for the allotment, the Naib Tehsildar found that an area measuring 211141/2 St. Acres `wellrunfarm'' was exempted by the Board being `B'' class for three years under Rule 8 of the Punjab Security of Lands Tenures Act, 1955. The area measuring 73 141/2 St. Acres had already been sold by the landowner under the Govt. instructions dated 6.3.1967 and area measuring 2612 St. Acres donated under the `Bhu Dan'' Scheme. The remaining land measuring 1114 St. Acres allotted to the allottees vide detailed orders dated 29.2.1968. No appeal or revision petition was filed and this order was final. Later on the landowner sold the land of wellrunfarm to the petitioners before the commencement of Punjab Land Reforms Act, 1972 without any approval. For utilising the area of wellrunfarm under the Punjab Utilisation of Surplus Area Scheme, 1973, notice under Section 9(1) of the Punjab Land Reforms Act, 1972 was issued on 16.8.1993 to Brij Bhupinder Singh son of Mohinder Singh adopted son of Nihal Singh, village Kang Khurd (landowner). In response to this notice objections were not filed by the landowner and proceedings under Section 9(ii) of the Act, ibid were initiated to take the possession of the surplus area. The Sub Divisional Officer (Civil)cumCollector (Agrarian) Nakodar vide his order dated 23.5.1994 allotted the land under the provisions of Section 6C of the Punjab Utilisation Area Scheme, 1973 to 44 eligible persons. Feeling aggrieved with the above allotment order of the Collector, the present petitioners filed two appeals No. 11 of 1994 against proceedings under Section 9(1) and 12 of 1994 against allotment of land before the Commissioner, Jalandhar Division stating that in Jamabandi these vendees are small landowners but no notice was given to them by the Collector under Section 9(1) of the Punjab Land Reforms Act, 1972. They approached the Chief Minister on 4.7.1994 who ordered that the petitioners should not be dispossessed from the land in question. This order of the Chief Minister was conveyed to the Deputy Commissioner, Jalandhar vide order dated 5.7.1994. Similarly the Commissioner, vide two separate orders dated 5.9.1994, ordered the maintenance of `status quo'' till the decision of the cases. On the other hand the petitioners filed civil writ petition No. 7100 of 1995 wherein the prayer was that the petitioners be permitted to enjoy their legally constituted rights over agricultural land in their possession without any interference of the respondents. A further prayer was made that during the pendency of the writ petition they be permitted to cut the crops standing on the land and their dispossession be stayed. The counsel for the respondents filed three connected petitions Misc. No. 36, 37 and 38 of 199495 for the transfer of Misc. No. 119 of 1994, Appeal No. 11 and 12 of 1994 from the Court of Commissioner to any other court due to strong pressure working in the matter and got the stay from this Court on 24.5.1995. On the basis of copy of order dated 30.5.1995 passed by the Hon''ble High Court the Appeals No. 11 and 12 of 1994 alongwith Misc. Appeal No. 119 of 1994 were forwarded to this court. On the request of counsel for the respondents these petitions Misc. No. 36, 37 and 38 of 199495 for the transfer of cases were allowed to be withdrawan and dismissed being infructuous vide order dated 17.10.1995. Similarly Judicial Appeal No. 119 of 1994 (contempt petition) pending before the Commissioner, Jalandhar Division, Jalandhar was also received in this court, which was also disposed of being infructuous on the receipt of copy of the order dated 12.10.1995 passed in C.O.C.P. No. 1298 of 1994 by Hon''ble High Court, 31.10.1995. Vide this order directions were given for the disposal of appeals at the earliest, preferably within one month of the receipt.

I have heard the learned counsel for the parties and also gone through the pleadings of the parties. I have also taken into consideration the rulings cited by the learned counsel.

(i) Sh. P.N. Aggarwal, Advocate, counsel for the petitioners raised the first issue that surplus area case of one Mohinder Singh resident of village Kang Khurd, Tehsil Nakodar had been decided on 29.4.1966 under the provisions of the Punjab Security of Land Tenures Act, 1953. A `wellrunfarm'' measuring 211 141/2 St. Acres was exempted under Rule 8 of the Punjab Security of Land Tenure Rules, 1955 for 3 years. Later on this land was purchased by the petitioners with consideration between the period from 24.1.1973 (Appointed day) and before the commencement of the Punjab Land Reforms Act, 1972 i.e. before 2.4.1973. These bona fide sales are recorded in the Jamabandi and the petitioners are the small landowners. The present appeal is against the issuance of notice under section 9(1) of the Punjab Land Reforms Act, 1972 only to the big landowner which is prior to the allotment of the land in question. Impugned order under section 9(1) has been passed by the Collector without any notice or information to the petitioners. Therefore, they had no opportunity at all to appear and make their submissions before the Collector and produce documents etc. The notice of proceedings under this section should have been served on the petitioners as the small landowners were in possession of the land which have been vested in favour of Punjab State through Mutation No. 1880 sanctioned on 29.9.1993. In support of this contentions the counsel also placed reliance on 1981PLJ Page 159 head note (B).

``(b) Punjab Land Reforms Act (10 of 1973), section 9 Collector under duty; (1) to issue notice to : (a) landowner, or (b) tenant, or (c) any person in possession; and (2) to afford opportunity to show cause against taking possession of land taking of possession of land under section 9 by Collector only after providing such opportunity Provisions of section 9 not complied with by Collector order illegal''''.

In this connection the counsel also referred the rulings 1986 PLJ Page 161 (full bench authority) and 1994PLJPage 52.

(ii) Sh. Mohinder Singh big landowner expired on 28.2.1979 leaving one son and seven daughters. Succession was in favour of all the daughters. The notice under section 9(i) was issued to the son only on 16.8.1993. It is a dispute between vendees and Govt. Even the present allottees have no locus standi in the appeal. At this moment land cannot be said to be surplus area nor could it be taken into possession by the State for its utilisation on the basis of earlier declaration of surplus area made on 29.4.1966. Now the surplus area is to be redetermined under the provisions of new Act. The counsel cited 1989PLJPage 95, 1989PLJPage 503 and ROR No. 764/8384 decided on 1.2.1993 by learned Financial Commissioner Taxation.

(iii) The third issue raised by the learned counsel is that order dated 29.4.1966 was passed with the old Khasra Nos. There is no order under section 13(2) of the Punjab Land Reforms Act, separating the surplus area forming new khasra numbers after consolidation of holding of the village otherwise a reference of the order must have been made in the notice issued under section 9(1) of New Act, 1972. The counsel cited 1988PLJPage 56(a) in this connection

(III) Judicial Appeal No. 12 of 1994

(i) Second Appeal has been filed under Section 18 of the Punjab Land Reforms Act, 1972 against the order dated 23.5.1993 passed by the Sub Divisional Officer (Civil)cumCollector Agrarian, Nakodar whereby he allotted the surplus area to the respondents No. 11 to 54. The counsel argued on the main point that the order under Appeal is not maintainable on the grounds that some respondents do not belong to village Kang Khurd and some are not in cultivating profession. The learned counsel read out para 6 of the grounds taken in appeal. Just as respondent No. 11 is a contractor, respondent No. 14 is shopkeeper, respondent No. 15 is in Govt. service at Ludhiana etc. The learned counsel contended that allottees are not eligible persons as the legal position is as under :

Section 7(2)(ii) of the Punjab Land Reforms Act, 1972

``A tenancy (on or after the appointed day) in any land which has been or could have been declared as surplus area of such under a person under the Punjab Law, the Pepsu Law or this Act; shall be ignored.''''

(ii) The learned counsel also referred to para 6(c) of the Punjab Utilisation of Surplus Area Scheme, 1973 for defining who is eligible for allotment as held in 1986PLJPage 193, reproduced below :

(a) Punjab Utilisation of Surplus Area Scheme Para 6(c) proviso eligibility for allotment on priority basis only if sitting tenant cultivating land on appointed day i.e. 24th January, 1971 Tenant inducted after appointed day Not entitled to preferential right under proviso to para 6(c).

(iii) The learned counsel further averred that all the applications for allotments have been written in one hand and submitted without any affidavit within limited period and verified by the revenue officials on the same day which proves that the allotments are bogus.

(iv) The learned counsel finally contended that both appeals are within time from the date of constructive knowledge i.e. from 4.7.1994 when they got a copy of Jamabandi for the year 198990 and then they met the Chief Minister on 5.7.1994, who issued order of stay regarding eviction of petitioners. After collecting the copy of order on 1.8.1994 and other particulars regarding sitting tenants both appeals were filed before the Commissioner. Even if the appeals are time barred, Financial Commissioner has wide powers to treat them as revision petitions keeping in view the citations 1966PLJ 209, 1970PLJ Page 115. The counsel urged that great injustice has been done with the bona fide vendees at the instance of the son of the big landowner and they are being harassed. The bona fide sales must be recognised under section 4(5) of the Punjab Land Reforms Act, 1972 and the order of the Collector be set aside. Mainly the learned counsel requested that the following relief be given to the petitioners :

(i) Sitting vendees be served through notice under Section 9(1).

(ii) Allotment orders dated 23.5.1994 be set aside and then Collector proceed further .

Sh. Rajinder Sharma, Advocate, counsel for the legal heirs of respondent No. 7 reiterated the ground No. 5 of appeal No. 11 and requested that after the death of big landowner, unutilised surplus area could not be taken by the State. The surplus area is to be redetermined under the provisions of the Punjab Land Reforms Act, 1972. In support of his contention he placed reliance on 1991PLJPage 80.

Miss Monika Jalota, Junior Advocate for Sh. G.S. Jaiswal, Advocate, counsel for the respondent Nos. 2 to 6 and 8 to 10 urged that surplus area should be redetermined under the New Act. She also supported the grounds taken by both the counsel earlier regarding this.

Sh. Gurnam Singh Nagra, Advocate counsel for the allottees, rebutting the arguments putforth by the counsel for the petitioners, urged that the allottees have been allotted land by the Collector Agrarian vide his under dated 23.5.1994 and they have paid full price of land in question and they are also in possession of this land. The Hon''ble High Court, while disposing of C.W.P. No. 7100 of 1995 titled Vijay Kumar etc. v. State ordered that appeal Nos. 11 and 12 of 1994 pending before the Commissioner, Jalandhar Division, Jalandhar are transferred to Financial Commissioner, Revenue for disposal within stipulated period. One contempt petition C.O.C.P. No. 1298 of 1993 has also been disposed of vide order dated 12.10.1995 by the Hon''ble Punjab and Haryana High Court.

(i) The learned counsel pointed out that it is wrong to say that new khasra Nos. were not given for surplus area. He brought to the notice of this court the order dated 29.2.1968 vide which new khasra Nos. have been indicated. The learned counsel further argued that there is no evidence to prove how many persons were uprooted as the petitioners No. 1, 8 to 11, 22, 23 and 28 are already in England. The petitioner No. 34 is still in the village. Moreover the combined appeals are not maintainable.

(ii) The sale deeds prescribed that the land pertaining the wellrunfarm is a surplus area and the exemption was to be given under the relevant rules 8, 9 and 10 of the Punjab Security of Land Tenures Rules, 1955 by the concerned Committee. After the expiry of exemption period the land was to vest with the Government for the utilisation of the area. But big landowner sold the land to the petitioners. So all of them should be removed. The counsel cited 1995Vol. IIPLRPage 26. The learned counsel averred that the petitioners had already got the benefit of this land. So no notice under section 9(1) was required to be given unless the Collector Agrarian was first of all convinced that the sales were bona fide. The appeals have no merits and deserves to be dismissed.

Learned Senior State Counsel vehemently refuted the arguments of the petitioner stating that :

(i) All the petitioners are the postdated vendees who have purchased the surplus area from the big landowner between a short period from 24.1.73 to 2.4.73. All the 50 transactions could not be termed as bona fide. Because as per synopsis prepared by the counsel for the petitioners, big landowner had sold surplus area inter se among the members of the same family. He quoted an instance of Mehar Chand where the land was sold in favour of Mehar Chand, his wife and son on one date. Therefore all sale transactions cannot be termed as bona fide or made in good faith. The State Counsel referred AIR 1961SC1002, 1990 (2) AI ILR120 (at 127), 1992 (2) AI LLR41 to support his views. In all these authorities the apex court as well as High Court has defined the words `good faith'' and `bona fide''.

(ii) The learned State counsel further elaborated his arguments stating that the surplus area order dated 29.4.66 attained finality since it was neither challenged by the big landowner, nor by someone else. Moreover, all the counsel of the petitioners and respondents deliberately concealed or they may not be aware of the fact that the surplus area case of the big landowner was even decided under New Act vide order dated 11.4.79 by the Collector (Agr.), Nakodar. He invited the attention of the court to a photostat copy of the order in which, while deciding the surplus area case of Mohinder Singh, the Collector after allowing 7 hectares as permissible area, declared 4.4433 hectares as surplus in the hands of the big landowner. The learned counsel further referred to a provision of Section 28(2)(i) of the Punjab Land Reforms Act read with sections 8 and 9 of the New Act that surplus area declared under the Punjab Law or Pepsu Law would remain surplus and would vest with the State Government.

(iii) While rebutting the arguments addressed on behalf of the allottees the learned State counsel submitted that the allotments made in favour of the allottees smack of the fact that it was done in a clandestine manner with a view to oblige the persons of his choice by the competent authority. The counsel showed number of documents in support of his arguments which consist of the applications made by the allottees written by one person, having common contexts and using same ink in writing which proves that the revenue staff took action while sitting at one place and time. Since allotments were also not made as per provisions of the Punjab Utilisation of Surplus Area Scheme, as such the allotments areas also required to be cancelled.

(iv) The learned State Counsel contended that order dated 29.2.1968 through which area to the extent of 73 St. Acres 141/2 units was exempted to those vendees to whom the landowner have sold the surplus area before 1966, in the light of Govt. instructions dated 6.3.1967, and area to the extent of 26.12 St. Acres. towards `Bhu Dan'' should also to be modified since this exemption could not be granted, because the Govt. instructions run contrary to the provisions of law. The counsel referred to authorities as reported in 1990 (I) PLR97, 1990SLR (1)134 (SC) in which it was held that instructions of Govt. which are inconsistent with the statute/rules are liable to be ignored.

The learned State counsel requested the court that the Financial Commissioner has vast powers to interfere in any matter of illegality or irregularity coming to his notice committed by any subordinate authority and referred to full bench decision of the Punjab and Haryana High Court as reported in 1993(1) AILLRpage 91, and urged that the case be remanded back to the Collector with the directions that he should utilize the surplus area declared under the Old and New Act as per provisions of law.

I have considered the arguments adduced by all the learned counsel and the Senior State Counsel in detail and have also gone through the relevant record and the decisions of the lower court as well as Hon''ble Punjab and Haryana High Court. I find that surplus area case of Sh. Mohinder Singh, adopted son of Nihal Singh resident of village Kang Khurd, was decided under the Punjab Security of Land Tenures Act, 1953 on 29.4.1966 whereby an area, measuring 553.2. St. Acres was declared surplus by the Special Collector, Chandigarh. An area measuring 423.13 St. Acres situated in village Kang Khurd was also included in this area out of which a portion of 211.14 St. Acres was covered with a `wellrunfarm'' and this area was exempted for three years under Rule 8 of the Punjab Security of Land Tenures Rules, 1955. An area measuring 73.14 St. Acres had already been sold by the landowner and exempted under the Government instructions dated 6.3.1967, area measuring 26.12 St. Acres was donated under `Bhu Dan'' scheme and remaining area measuring 111.4 St. Acres was allotted to the allottees vide order dated 29.2.1968. The area measuring 211.14 St. Acres of this `wellrunfarm'' is under dispute as this area was sold by the big landowner to the petitioners within short period 24.1.1973 to the date of commencement of the New Act, 1972 i.e. 2.4.1973. These sales are recorded in the Jamabandi for the year 198990 and the mutations are in favour of the petitioners but before the utilisation of area of the `wellrunfarm'' the CollectorSub Divisional Officer (Civil), Nakodar issued the notice on 16.8.1993 under section 9(1) of the Punjab Land Reforms Act, 1972 to only one person, Respondent No. 2 in appeals i.e. Shri Brij Bhupinder Singh, M.L.A. son of Mohinder Singh, now a Minister in Punjab. It is settled law that notice under section 9(1) should be given to the persons in possession of the holdings but in the instant case neither an opportunity was given to the petitioners to raise objections, nor did they evade any summons. In order to appreciate this argument it is essential to look at the provisions made in the New Act, 1972 ibid. Section 9 of the Punjab Land Reforms Act, 1972 is relevant to this point which is as under :

``Power to take possession of Surplus Area : (1) The Collector may by an order in writing, after an area has become surplus under the Punjab Law or the Pepsu Law or become surplus under this Act, direct the landowner or tenant or any other person in possession of such area to deliver possession thereof, within 10 days of the service of the order on him, to such person as may be specified in the order.

(2) If the landowner or tenant or any other person in possession of such area refuses or fails without reasonable cause to comply with the order made under subsection (1), the Collector may take possession of that area and may for that purpose, use such force as may be necessary.''''

Accordingly the action taken by the Collector issuing notice to the son of big landowner was wrong. In a separate contempt petition C.O.C.P. No. 1298 of 1994, Sh. Brij Bhupinder Singh has admitted that he is not concerned with the land in question and he has been wrongly arrayed as respondent in the petition. Even in the record he has been shown neither owner in the jamabandi nor the will of inheritance is in his favour. As per version of his counsel, Mohinder Singh, big landowner has executed the `Will'' in favour of his daughters only. The notices under section 9(1) of the New Act were required to be issued in favour of the petitioners who have been shown as the owners of land in dispute in the Jamabandi for the year 198990. They had every right to agitate in the matter before the authorities. The Collector (Agrarian) in the said notice also issued directions wrongly to the Naib Tehsildar, Shahkot to take action in view of Section 8(a) and to enter the mutation in favour of State Government and make the entry according to para 7(41) of the Punjab Land Record Manual in the concerned Jamabandi. Accordingly the land in question was vested in favour of State through mutation No. 1880 sanctioned on 23.9.1993 and the land was allotted to the allottees vide order dated 23.5.1994 in papers. Actually the possession was not taken according to the rules and regulations. In the contempt petition C.O.C.P. No. 1298 of 1994 it has been mentioned that on 9.11.1994 Sh. Brij Bhupinder Singh alongwith 500 persons came to the land in question with the intention to dispossess the petitioners and actually dispossessed and destroyed the standing crops being aware of stay order issued by the Chief Minister and by the learned Commissioner, Jalandhar Division and thereby caused a loss of Rs. 20 lacs to the petitioners. The fact of the possession having been taken over after the receipt of the order of status quo has been confirmed by the said judgment dated 12.10.1995 of Hon''ble Punjab and Haryana High Court in C.O.C.P. No. 1298 of 1994 :

``Admittedly, the possession was delivered to the allottees much after the order of status quo had been granted.''''

Punjab Land Reforms Act, 1972 clearly states that all actions taken under old Act, 1953 have been saved from the operation of the New Act. So even a person having unauthorised possession has to be evicted in accordance with the law. So far the liability of the landowner or any other person in possession of the surplus area is concerned, the Hon''ble High Court has clarified the position in 1981PLJPage 116 as under :

``Notice of 10 days before taking possession object provide some time to occupant to remove his things and deliver peaceful possession occupant''s failure to remove his things and deliver peaceful possession Collector can use such force as may be necessary.''''

Under Section 8 read with Section 11 of the Punjab Land Reforms Act, 1972 the surplus area is to first vest in the State free from all encumbrances and only thereafter is the State Government to utilise the same for distribution for the benefit of the landless persons/tenants as per provisions of the Punjab Utilisation of Surplus Area Scheme, 1973. The State has to be vigilant to ensure that no big landowner cheats or deceives it, or through fraudulent means is able to conceal his surplus area and as such, the interest of the State is directly involved. In the instant case the position is totally different and defective. During proceedings no rules or regulations have been taken into consideration. Under these circumstances the Judicial Appeal No. 11 of 1994 is hereby accepted and the Collector (Agrarian), Nakodar is directed to issue notices under section 9(1) of the New Act, ibid, again to all the petitioners and persons having possession of holdings. The respondents allottees are directed to deliver the possession to the petitioners as per their undertaking given in the High Court in Civil Writ Petition No. 7100 of 1994.

I am also inclined to agree with the learned counsel for the petitioners and the learned State Counsel that allotments made in favour of allottees smack of the fact that it was done by the Collector (Agrarian) in a clandestine manner with a view to oblige and favour the vested interests. The record shows that all the applications mode by the allottees have been written by one person, having common context and using the same ink in writing at one place and time by the staff for verification. However in para 6 of the Appeal No. 12 of 1994, some allottees do not belong to the village Kang Khurd and many of those persons had other professions. So they were not eligible for the allotment of the surplus area. Agreeing with the Senior State Counsel that all the allotments have been made by Collector (Agrarian) in hot shot manner without application of mind. I declare all the allotments as `bogus''.

So far as maintainability of the combined appeals are concerned I agree with the learned counsel for the petitioners that these are maintainable as the Collector has passed the single order dated 23.5.1994 regarding the allotment of land with which all the petitioners have been adversely affected. I am also in agreement with the learned Senior State Counsel that the Financial Commissioner has vast powers to interfere in any matter of illegality or irregularity coming to his notice committed by subordinate authority. The order dated 29.2.1960 vide which the area to the extent of 73.14.14 St. Acres was exempted to the vendees under the instructions dated 6.3.1967 and land measuring 26.12 St. Acres towards `Bhu Dan'' was also to be ignored because the instructions ran contrary to the provisions of law. I, therefore, declare all the sales made before 6.3.1967 as null and void including the land measuring 26.12 St. Acres donated in `Bhu Dan'' being contrary to the provisions of the Act. The order dated 29.4.1966 has attained finality since no appeal or revision has been filed by the big landowner/tenants or any other person. Moreover photostat copy of order dated 11.4.1979 shown by the learned Senior State Counsel in Appeal No. 12 of 1994 also reveals that the surplus area case of Mohinder Singh stands decided under the New Act. Under the provisions of the law, section 28(2)(i) of the Punjab Land Reforms Act, 1972 read with sections 8 and 9 of New Act, surplus area declared under the Punjab Law and Pepsu Law would remain surplus and would vest with State. Agreeing with the learned Senior State Counsel who vehemently opposed the contention of redetermination of surplus area stressing that even the death of big landowner could not change the character of the surplus area finalised in 1966 or 1979, the plea of redetermination of surplus area is rejected.

While disposing of the Misc. Application No. 43 of 1995 regarding remand order Hon''ble High Court dated 30.5.1995 passed in Civil Writ Petition No. 7100 of 1995, I accept the Judicial Appeal Nos. 11 and 12 of 1994 and remand the case to the Collector (Agrarian), Nakodar with the directions that, being the competent authority, he shall reexamine the matter again after issuing notices under section 9(1) of the New Act in accordance with law. The Collector''s order dated 23.5.1994 is also set aside and all the allotments are declared `Bogus''. The Sub Divisional Officer (Civil), Nakodar has assessed the mesne profit at the rate of Rs. 3453/ per acre after deduction of price of seeds, labour charges and irrigation etc. so the affected parties be compensated accordingly.

Announced.