- (1.) Kulwant Rai was a big landowner. Kundan Lal was a tenant under him. Kulwant Rai died in 1960. He was succeeded amongst other by Inderjit and Ravi Raj, his sons. Kundan Lal became a tenant under Inderjit and Ravi Raj. The Collector, Abohar, took up the cases for the determination of the surplus areas of Inderjit and Ravi Raj. He did not issue any notice to Kundan Lal. He did not hear him and declared 5.64.55 Hectares of land surplus with each of the two brothers Inderjit and Ravi Raj. Before the passing of the orders on 20th of September, 1976, Kundan Lal had died on 19th June 1976. He left behind his son Vijay Kumar, widow Smt. Durga Bai, daughters, namely Nirmal Devi, Chand Kumari, Usha Rani and Kumari Vimple, who have joined as petitioners in the present writ petition. Before the passing of the orders, the Collector did not associate or hear any of these petitioners, who were heirs of Kundan Lal.
(2.) Mr. G.L. Nagpal, the learned counsel for the petitioners, has argued that Kundan Lal was a tenant on the land in dispute since 1955. He was a tenant on this land on 24th of January, 1971, which is the prescribed date under the provisions of Punjab Land Reforms Act (hereinafter called 'the Act'). He contended that the landowner has not been given absolute discretion to select his permissible area under Section 5 of the Act. The priorities for such selection have been given. Sub-section (2) of Section 5 of the Act which is relevant for the determination of the controversy between the parties is reproduced below :- "5. (1) xxx xxx xxx xxx (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." It is thus clear that the landowner has to first include the lands mortgaged without possession and then the lands under his self-cultivation in his permissible area. After including such lands, if still there is some scope, only then he can include the area under the tenants in his permissible area. So, the tenant has a vital interest in determination of the surplus area of his landowner. He can, if he is associated with the proceedings regarding surplus, show to the Collector that a particular piece of land should or should not be included in the permissible area.
(3.) The learned counsel has also contended that when the State takes over the land declared surplus, all the rights of the tenants in such land are extinguished, by virtue of the provisions of Section 8 of the Act. The relevant portions of Section 8 are reproduced below :- "Notwithstanding anything contained in any law, custom or usage for the time being in force, but subject to the provisions of Section 15, the surplus area, declared as such under the Punjab law or the Pepsu law, which has not utilized till the commencement of this Act and the surplus area declared as such under this Act shall, on the date on which possession thereof is taken by or on behalf of the State Government, vest in the State Government free from all encumbrances and in the case of surplus area of a tenant, which is included within the permissible area of the landowner, the right and interest of the tenant in such area shall stand terminated on the aforesaid date xxx xxx xxx". The effect of the declaration of the surplus area of the landowner is that the lands declared surplus with him are included in the surplus pool. On the State taking over possession of the surplus area the land vests in the State Government free from all encumbrances which will include the rights of tenancy over such lands. There is merit in both the contentions of the learned counsel. Since by the taking over of the possession of the land included in the surplus area, the same comes to vest in the State and the rights of tenants on this land are extinguished, the interest of the tenants by the determination of surplus area are vitally affected. Similarly, the tenants can, if given an opportunity, assist the Collector in determining the permissible area of their landowner. The tenant can show to the Collector whether a particular area sought to be included in the permissible area or the surplus area should be allowed to be so included. The tenants' rights are vitally affected by the land being included in the permissible or surplus area. The language employed in Sections 5 and 8 as also Section 7 of the Act does not exclude the application of the principles of natural justice. The decision of the Collector affects the civil rights of the tenants. So, a tenant is entitled to be associated with the proceedings for determination of the surplus area of the landowner. In the present case, the Collector did not associate and hear Kundan Lal or present petitioners before the declaration of the surplus area of Inderjit and Ravi Raj. So, the order dated 20th September, 1976, determining the areas of these landowners is clearly illegal.;