K. Kannan, J. - (1.) THE petitioner stakes a claim to the property in Khasra No.41/4 8 kanal of land as a property held by him as a tenant before the notified date from the landowner, whose holding was subsequently declared a surplus under the Punjab Security of Land Tenures Act. The petitioner and the 6th respondent were tied in a contest relating to allotment of surplus area under the Haryana Utilization of Surplus Area Scheme, 1976. The petitioner claimed that he fell within the category 'CC' in Para 4 of the Scheme and contended that the allotment made to 6th respondent as a landless person in category 'G' was erroneous and against the terms of the Scheme, which provided inter se priority amongst categories in the order in which they appeared given under the Scheme. As a person belonging to category 'CC', he was entitled to a preferential consideration over the 6th respondent. He also contended that the 6th respondent was not a landless person and that he had inherited some property from his father when he died on 07.05.1980 and when the application itself had been invited by the State and submitted only in the year 1982.
(2.) THE petitioner's contention was rejected by the authorities under the Act, principally, on the ground that the 6th respondent was a landless person, who belonged to the Scheduled Castes category, while the petitioner owned property to an extent of 32 kanal 13 marlas as an owner and was in possession of 58 kanal 12 marlas as mortgagee and non -occupancy tenant. This assertion by the State as being an owner and a person in possession was denied by the petitioner but the appeal to the Collector was dismissed on the ground that the appeal was filed with a delay of 8 days and the Commissioner affirmed the decision of the Collector and held that the petitioner was the owner of the land as mentioned by the allotment authority and dismissed the petitioner's claim. In the manner of categorization made under the Scheme of 1976, it is necessary to reproduce category 'CC', category 'F' and category 'G': Category CC: -A tenant on the permissible area of the landowner or have been tenant of the small landowner, on or before the appointed day and the land under his tenancy falls in the surplus area of the landowner under the Act. Category F: -A tenant settled on the surplus area by the landowner before 1968, who is not: - (i) the landowner's relation of the category specified in clause (a) of section 2 of the Punjab law or the rules made thereunder; or (ii) the landowner's relative of the category specified in the rule made under sub -clause (iii) of clause (g) of section 2 read with section 52 of the Pepsu law; or (iii) the landowner's relation of the category specified in the rules made under clause(s) of section 3 read with section 31 of the Act. Category G: - A landless person. Clause 7 in the Notes accompanying the Para 4 is also relevant: 7. Inter se priority amongst categories. Inter se priority amongst the eligible categories shall be in the same order in which these have been listed in paragraph 4, that is, category A will take precedence over category B and category B will take precedence over category BB and son on. Paragraph 7 refers to the principles and the procedure of allotment and sub para (v) clause (d) is also reproduced: (v)(d) Category D to I - Two hectares of 'C' category land or land of equivalent value subject to the condition that the area allotted plus the area, if any, already held by the allottee shall not exceed two hectares of 'C' category land or land of its equivalent value; (vi) the allotment authority shall first satisfy the requirement, of applicants in a village, falling in categories A, B (BB) and C (C and cc) in that order by allotment to them of the area available in the same village;
(3.) FROM a reading of all these provisions, it is clear that if the petitioner is able to show that he is in a category, which is above category 'G', he shall be entitled to priority. Although, he contended that he belonged to category 'CC', which refers to a tenant within the permissible area, it transpired that the property was not held by the petitioner within the permissible area of the landowner but he was a tenant of the property declared as surplus. The proof of his status as a tenant in relation to the property in Khasra No.41/4 8 kanal is established by the Jamabandi for the year 1968 -69. If he was in category 'F', which is above category 'G', to which the 6th respondent claimed and as per the condition under Para 7 Clause (d)(vi) the entitlement could be refused only if it is shown that the petitioner already held an extent in excess of 2 hectares of 'C' category land. Though the impugned orders state that he owned 32 kanal 13 marlas of land as an owner and 58 kanal 12 marlas as a non -occupancy tenant, the petitioner has specifically denied the same in the writ petition and has asserted that he owned merely 14 kanal 16 marlas of salibi land on the appointed date namely 24.01.1971. Although, the State has denied the contention and has stated that the petitioner was in possession of 32 kanal 13 marlas as evidenced by revenue entries, it has not been substantiated by production of any document showing his ownership or possession. A negative fact cannot be proved by the petitioner and if an assertion is made by the State that the petitioner was disqualified by ownership of 'C' category land in excess of 2 hectares, it cannot be accepted without any proof being adduced by the State. I will, therefore, reject the plea that the petitioner was not entitled to allotment and being a person higher in category than the 6th respondent, the petitioner was entitled to consideration for allotment of 8 kanal of land in khasra No.41/4. The allotment in relation to the remaining extent of the property in favour of the 6th respondent would not be required to be disturbed and the petitioner's claim is allowed only to the extent of the property in khasra No.41/4 (8 kanal).;