http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5

CASE NO.:

Appeal (civil) 6489-6490 of 1998

PETITIONER:

Ajmer Kaur

RESPONDENT:

State of Punjab and ors.

DATE OF JUDGMENT: 07/05/2004

BENCH:

BRIJESH KUMAR & ARUN KUMAR.

JUDGMENT:

JUDGMENT

ARUN KUMAR, J.

These appeals are directed against the judgment of the

Punjab and Haryana High Court dismissing in limine a Writ

Petition filed by the petitioner challenging the order of the

revenue authorities regarding declaration of a portion of land

owner by predecessor in interest of the appellant as surplus

under The Punjab Land Reforms Act, 1972( hereinafter

referred to as the 'Act'). Briefly the facts are that Daya

Singh, father of the petitioner filed a return regarding his and

his wife Kartar Kaur's holding of lands under Section 5 of the

Act. After scrutinizing the return, the Collector found that the

holding in their hands came to 10.12 hectares of first quality

land. Out of that they were entitled to 7 hectares of land.

Thus 3.12 hectares of land was found to be surplus which

the land owners were required to surrender. Daya Singh

filed an appeal against the said order before the

Commissioner. One of the objections taken by Daya Singh

in his appeal was that the land held by his wife Kartar Kaur

could not be clubbed with the land held by him. This

objection was turned down by the Commissioner. It was

observed that according to Section 3(4) of the Act a "family"

in relation to a person means a person, wife or husband, as

the case may be, of such person and his or her minor

children. The appeal was dismissed by the Commissioner.

Kartar Kaur wife of Daya Singh died on 9th October, 1980.

In 1982, the surplus land was mutated in favour of the State

Government and in 1983 it was allotted to third parties.

On 21st June, 1985 Daya Singh filed an application

under Section 11(5) of the Act for re-determination of the

land holding in view of death of Kartar Kaur. The Collector

vide his order dated 23rd July, 1985 disposed of the said

application holding that there was no surplus area of land

with Daya Singh. The land declared surplus vide earlier

order dated 30th September, 1976 was ordered to be

restored to Daya Singh and the mutation in favour of the

State Government was cancelled. On 19th May, 1986, the

Collector sought permission from the Commissioner to

review the order dated 23rd July, 1985. The Commissioner

granted the requisite permission on 14th August, 1986. In

view of the permission granted to him, the Collector heard

the matter all over again and vide his order dated 22nd

December, 1986 held that Daya Singh was in possession of

surplus land. The order dated 30th September, 1976 passed

by the Collector earlier declaring 3.12 hectares of first quality

land as surplus was maintained and the Mutation No. 2760

vide which ownership and possession of surplus land was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5

sanctioned in favour of the State Government was restored.

Appeal filed by Daya Singh against the said order was

dismissed by the Commissioner vide his order dated 11th

November, 1987. On 22nd December, 1987, Daya Singh

died. Revision filed by Ajmer Kaur (appellant herein)before

the Financial Commissioner against the order of

Commissioner was dismissed on 27th January, 1994. This

order of the Financial Commissioner was challenged in the

Punjab and Haryana High Court by way of a Writ Petition.

The Writ Petition was however dismissed on 3rd October,

1994 permitting the petitioner to approach the Fianancial

Commissioner by way of a Review Petition wherein she

could raise all the questions sought to be raised in the Writ

Petition. Thus the matter went back to the Financial

Commissioner by way of Review applications. The review

applications were dismissed by the Financial Commissioner

vide order dated 10th March, 1998. The order of the

Financial Commissioner was again challenged by way of

Writ Petitions filed in the Punjab and Hayana High Court at

Chandigarh. The Writ Petitions were again dismissed by the

High court vide order dated 30th July, 1998. The present

appeals are directed against the said orders of the High

Court.

Mr. Manoj Swarup, the learned counsel appearing for

the appellant raised the following points in support of the

appeals :

1. The order dated 23rd July, 1985 passed by

the Collector on application under

Section 11(5) of the Act holding that

there was no surplus land had become

final and the same could not be reviewed

or reopened by the Collector particularly

after 90 days in view of Section 81 of the

Act.

2. Section 11(5) of the Act conferred a right

on the land owner which could not be

defeated by sub-section (7) of Section 11

of the Act.

Regarding the first point it was contended that at the

most the respondents (Revenue authorities) could take the

benefit of a period of ninety days to file review against the

order dated 23rd July, 1985 whereby declaration of surplus

land was re-determined and it was held that there was no

surplus land in the hands of Daya Singh. The Collector

sought review after about nine months which was clearly

barred by time. In reply the learned counsel for respondents

submitted that there is power to condone delay with the

authorities in exercise of which time to seek review can be

extended. In support of the submission, our attention was

invited to Section 82 of the Act which contains provision

regarding review of orders of revenue authorities.

According to sub-clause (b) of Section 82(1) "no application

for review of an order shall be entertained unless it is made

within ninety days from the passing of the order or unless the

applicant satisfies the Revenue Officer that he had sufficient

cause for not making the application within that period." We

have considered the rival contentions. In our view the bar of

limitation does not come in the way of the Collector re-

determining the permissible land holding of Daya Singh. A

bare reading of clause (b) of sub-section (1) of Section 82

shows that review can be made even after expiry of period of

ninety days where the Revenue Officer is satisfied about

cause for delay. The fact that the Commissioner granted

permission to the Collector to review his order suggests that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5

the hurdle of limitation had been successfully crossed.

Coming to the second point a conflict is suggested

between sub-sections (5) and (7) of Section 11 of the Act.

We would like to quote the relevant provisions :

"Section 11 :

(1)\005\005\005

(2)\005\005\005

(3)\005\005\005

(4)\005\005\005

(5) Notwithstanding anything contained in any

other law for the time being in force and save in the

case of land acquired by the State Government

under any law for the time being in force or by an heir

by inheritance, no transfer or other disposition of land

which is comprised in the surplus area under the

Punjab law, the Pepsu law or this Act, shall affect the

vesting thereof in the State Government or its

utilization under the Act.

(6) \005\005..

(7) Where succession has opened after the

surplus area or any part thereof has been determined

by the Collector, the saving specified in favour of an

heir by inheritance under sub-section(5) shall not

apply in respect of the area so determined."

According to sub-section (5) no transfer or other

disposition of land which comprised in the surplus area shall

affect the vesting thereof in the State Government or its

utilisation under the Act. However, exception is created in

cases of :

(1) acquisition of land by the State Government;

(2) inheritance, that is, devolution of interest in the

land on account of death etc. in the family which

will be a case of involuntary transfer.

Sub-section (7)seems to take away the benefit

conferred by sub-section (5) regarding reopening of

determination of surplus land in cases specified in the said

sub-section. According to sub-section (7) where succession

opens after the surplus area or any part thereof has been

determined by the Collector,the exception provided in sub-

section (5) shall not apply in respect of the surplus land.

It is argued that sub-section (7) takes away the right

conferred by sub-section (5), therefore the same has to be

ignored. In support of his contention the learned counsel for

the appellant relied upon a Full Bench decision of the Punjab

and Haryana High Court in Ajit Kaur and ors. Vs. State of

Punjab and ors. (1980) Punjab Law Journal 354. The said

judgment indicates that the Full Bench posed a conflict

between the two provisions and tried to resolve the same.

In our view, it is not necessary for us to enter into the

controversy regarding the alleged conflict between the

provisions of sub-sections (5) and (7) of Section 11 of the

Act. In the circumstances of the case, we feel that these

appeals can be decided on the basis of the fact that the

initial order whereby the Collector declared 3.12 hectares of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5

land as surplus was passed on 30th September, 1976. The

appeal against the said order filed by Daya Singh, land

owner, was dismissed on 27th March, 1979. Kartar Kaur wife

of Daya Singh, along with whom Daya Singh had filed a joint

return with respect to the lands, died on 9th October, 1980.

The surplus lands were mutated in favour of the State

Government in the year 1982 and the State Government

allotted the same to third parties including the respondents

No..5 to 7 herein in the year 1983. Respondent No.7 has

filed an affidavit stating that he is in possession of the land

allotted to him. Kartar Kaur is said to have made a Will on

15th October, 1979 regarding a portion of land declared

surplus in favour of a Gurudawara which has been

impleaded as respondent No.8 in this appeal. On 15th

October, 1979 when Kartar Kaur made her Will she was left

with no interest or title in the land and therefore she could

not have made a Will with respect thereto. Daya Singh filed

an application for re-determination of the surplus land under

Section 11(5) of the Act only on 21st June, 1985.on the basis

of the fact that Kartar Kaur had died and succession had re-

opened. This application was made almost 5 years after the

death of Kartar Kaur. In our view, this delay in making the

application is fatal for Daya Singh and the application for re-

determination ought to have been dismissed on this ground

alone. Assuming that Daya Singh had a right to make an

application under section 11(5) of the Act but the right had

to be exercised within a reasonable time. It cannot be said

that the right under Section 11(5) can be exercised at any

time at the sweet will of the applicant. The order regarding

determination of surplus land by the Collector has serious

consequences:

1. So far as the land owner is concerned he is

divested of the land.

2. The surplus land vests in the State

Government.

3. The State Government utilizes the surplus land

in accordance with law which includes allotment

of the surplus land to third parties like landless

persons for purposes of cultivation etc.

Permitting an application under Section 11(5) to be

moved at any time would have disastrous consequences.

The State Government in which the land vests on being

declared as surplus, will not be able to utilize the same. The

State Government cannot be made to wait indefinitely before

putting the land to use. Where the land is utilized by the

State Government a consequence of the order passed

subsequently could be of divesting it of the land. Taking the

facts of present case by way of an illustration, it would mean

the land which stood mutated in the State Government in

1982 and which was allotted by the State Government to

third parties in 1983, would as a result of reopening the

settled position, lead to third parties being asked to restore

back the land to the State Government and the State

Government in turn would have to be divested of the land.

The land will in turn be restored to the land owner. This will

be the result of the land being declared by the Collector as

not surplus with the land owner. The effect of permitting

such a situation will be that the land will remain in a situation

of flux. There will be no finality. The very purpose of the

legislation will be defeated. The allottee will not be able to

utilize the land for fear of being divested in the event of

deaths and births in the family of the land owners. Deaths

and births are events which are bound to occur. Therefore,

it is reasonable to read a time limit in sub-section (5) of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5

Section 11. The concept of reasonable time in the given

facts would be most appropriate. An application must be

moved within a reasonable time. The facts of the present

case demonstrate that re-determination under sub-section

(5) of Section 11 almost 5 years after the death of Kartar

Kaur and more than 6 years after the order of Collector

declaring the land as surplus had become final, has resulted

in grave injustice besides defeating the object of the

legislation which was envisaged as a socially beneficial

piece of legislation. Thus we hold that the application for re-

determination filed by Daya Singh under sub-section (5) of

Section 11 of the Act on 21st June, 1985 was liable to be

dismissed on the ground of inordinate delay and the

Collector was wrong in re-opening the issue declaring the

land as not surplus in the hands of Daya Singh and Kartar

Kaur.

The above reasoning is in consonance with the

provision in sub-section (7) of Section 11 of the Act. Sub-

section (7) uses the words "where succession is opened

after the surplus area or any part thereof has been

determined by the Collector\005.". The words "determined by

the Collector" would mean that the order of the Collector has

attained finality. The provisions regarding appeals etc.

contained in Sections 80 \026 82 of the Punjab Tenancy Act,

1887, as made applicable to proceedings under the Punjab

Land Reforms Act, 1972, show that the maximum period of

limitation in case of appeal or review is ninety days. The

appeal against the final order of the Collector dated 30th

September, 1976 whereby 3.12 hectares of land had been

declared as surplus was dismissed on 27th March, 1979.

The order was allowed to become final as it was not

challenged any further. Thus the determination by the

Collector became final on 27th March, 1979. The same

could not be re-opened after a lapse of more than 6 years by

order dated 23rd July, 1985. The subsequent proceedings

before the Revenue authorities did not lie. The order dated

23rd July, 1985 is non-est. All the subsequent proceedings

therefore fall through. The issue could not have been

reopened.

As a result of above discussion, we find no merit in

these appeals. The same are dismissed leaving the parties

to bear their respective costs.