- (1.) The petitioners are Bahadur Ram, his wife and three minor sons. It is alleged that Bahadur Ram formed a joint Hindu family with his sons and this family owned 146 standard acres 3-3/4 units of land in village Khatwan, tehsil Fazilka, district Ferozepore, in January, 1953. This land was being cultivated by several tenants at the time of the commencement of the Punjab Security of Land Tenures Act (hereinafter called the Act) and it formed part of the permissible area of those tenants of Bahadur Ram petitioner and his sons. On January 13, 1953, Bahadur Ram transferred 4/5th share of his entire land to his wife and sons by way of family settlement and the transferees took possession of the land. In March 1958, Bahadur Ram obtained forcible possession of the 4/5th share of the land which he had transferred to petitioners 2 to 5 in January, 1953 and petitioners 2 to 5 filed a suit for the possession thereof. The suit was decreed in June, 1958 and petitioners 2 to 5 again entered into possession. On the basis of the decree, mutation No. 147 was entered in the revenue records on July 12, 1958 and was sanctioned on April 11, 1959 and each of the petitioners came to be recorded as owner of 1/5 the of the land.
(2.) The Collector Surplus, Fazilka, respondent 5, declared 116 standard acres 3-3/4 units of the land as surplus by order dated August 25, 1962, a copy of which is Annexure 'A' to the writ petition. He allowed only 30 standard acres to petitioner 1, Bahadur Ram, and declared the rest of the land as surplus. The petitioners filed an appeal which was dismissed by the Additional Commissioner, Jullundur Division, by order dated June 1, 1963. A copy of this order is Annexure 'C' to the writ petition. The petitioners then filed a revision petition which was dismissed by Shri E.N. Mangat Rai Financial Commissioner, Development, Punjab, by order dated November 19, 1963, a copy of which is Annexure 'E' to the writ petition. This order was not passed in the presence of the parties or their counsel as the revision petition was heard on November 19, 1963 when judgment was reserved. After the receipt of the copy of the judgment, the learned counsel for the petitioners filed an application for review under Section 24 of the Act read with Section 82 of the Punjab Tenancy Act, 1887. This petition came up before Shri E.N. Mangat Rai on February 2, 1964 and the learned Financial Commissioner admitted the same and issued notice to the respondents. He also stayed proceedings for the utilization of the land by the Government. Later on, this review application came up for final hearing before Shri Saroop Krishan, Financial Commissioner, Planning, who had succeeded Shri E.N., Mangat Rai, and was dismissed by order dated April 21, 1964, a copy of which is Annexure 'H' to the writ petition. Feeling aggrieved, the petitioners have filed the present writ petition in this Court.
(3.) The grounds that are pressed before me at the hearing are given in clauses (ii) to (iv) of para 13 of the petition which are reproduced, below :- (ii) that at the time of the commencement of the Punjab Security of Land Tenures Act, the land in dispute was partly under self-cultivation of petitioners 1 and 2 and partly was being cultivated by respondents 6 and 7 and no part of it was comprised in surplus area as the entire land formed part of permissible area of petitioners 1 and 3 and respondents 6 and 7. As no mutation has been entered with regard to the oral family settlement of January, 1953, petitioner 3 was entered in the revenue record as cultivating it as a tenant. The transfer of 4/5th share of the entire land belonging to petitioner 1 in favour of petitioners 2 to 5 was not comprised in any surplus area. According to Section 10-A of the Punjab Security of Land Tenures Act any transfer or other disposition of land which is comprised in the surplus area at the commencement of Punjab Security of Land Tenures Act shall not affect the utilisation thereof and as such, Section 10-A governs transfers and dispositions of only that area which is comprised in surplus area at the commencement of the Act, and similarly any decree which has the effect of diminishing the surplus area of any landowner can be ignored by the surplus authorities. This view has been upheld in 1964 P.L.R. 285. In the present case, as the transfers were not comprised in surplus area of the landowner and the said decree did not diminish the surplus area of the landowner, this transfer and the decree were not hit by the provisions of Section 10-A. In fact, the oral transfer has been effected in January, 1953, before the Punjab Security of Land Tenures Act came into force. Even if it is assumed to be after the 15th of April, 1953, it is a valid transfer in favour of petitioners 2 to 5. This ground was specifically taken as ground No. 2 before the Financial Commissioner, Development, and it was duly argued and fully pressed. As the orders were not announced on that day, the learned Financial Commissioner, Development, omitted to pass any order with regard to this. This necessitated a review application which has also been dismissed wrongly holding that this plea should be deemed to have been decided by the Financial Commissioner, Development, in his order dated 27th November, 1963; (iii) that the learned Collector while assessing surplus area of petitioner 1 did not make a complete enquiry as required by rule 3 of the Punjab Security of Land Tenures Rules, 1956. The Form 'D' prepared by the Patwari of the village has been found to be incorrect by the Financial Commissioner in his order dated 27th of November, 1963. The learned Collector had held that there was no continuous tenant on the land in dispute while the Financial Commissioner has held that Rawat, respondent 7, is a continuous tenant of field No. 308. In fact the Punjab Security of Land Tenures Act nowhere lays down that a tenant must be a continuous tenant from the commencement of the Act to the date of the determination of the surplus area. This is wrong notion which the Collector had while determining the surplus area of petitioner 1. According to Section 2 sub-section (5-a) surplus area does not include a tenant's permissible area and this has to be determined as on 15th of April, 1953 at the time of the commencement of the Act. This enquiry was not made by any of the Revenue Officers and this has caused manifest injustice to the petitioner; (iv) that petitioner 3 and respondents 6 and 7 are in continuous possession of field numbers mentioned in Jamabandi of 1952-53, Annexure 'I' to this petition. Certified copies of Khasra Girdawari and Jamabandi have already been placed on the record of the Financial Commissioner, Planning, and there is an apparent error on the record while holding them not to be continuous tenants except Rawat, respondent 7, for one field No. 308.";