JUDGMENT
M.M. Kumar, J.
1. This petition filed under Articles 226/227 of the Constitution prays for quashing order dated 3.7.1962 passed by the Special Collector-II, Punjab, issuing a declaration that land measuring 8.09 standard acres belong to Sh. Rupinder Singh as surplus. The petitioner is a vendee of 36 bighas of land out of 8.09 acres of land that was declared surplus by the Special Collector. The revision filed by the petitioner after purchase of land challenging order dated 3.7.1962 was dismissed by the Commissioner, Patiala Division, Patiala on 31.10.1977 (Annexure P-2), which has also been made subject matter of challenge in the instant petition. Another revision filed before the Financial Commissioner was also dismissed being not maintainable on 3.3.1983 (Annexure P-3). The aforementioned order has also been challenged by the petitioner in this petition.
2. Brief facts of the case necessary for deciding the controversy raised in this petition are that Rupinder Singh s/o Amla Singh defendant-respondent No. 5 owned 2.98 standard acres of land, which was mortgaged with possession situated at village Fatehgarh Chhanan. He also owned 49.03 standard acres of land in village Dialgarh, Jejian, Tehsil Sunam, Distt. Sangrur, out of which 10.94 standard acres was mortgaged with possession by him and the remaining 38.09 acres was with the land owner. On 28.8.1958, the land owner fled a declaration under Rule 19(1) of the Pepsu Tenancy and Agricultural Lands Act, 1958 (for brevity ‘Pepsu Act’) for an orchard and for a grazing ground for the flock of sheeps. However, the Pepsu Land Commissioner rejected the claim of the land owner vide his order dated 25.10.1961. The Special Collector-II, Punjab, vide his order dated 8.3.1962 determined the total area with the land owner to be 38.09 standard acres by ignoring the area under mortgage before 21.8.1956. He allowed the land owner to retain 30 standard acres as permissible area and ordered issuance of draft statement showing 8.09 standard acres as surplus area with the land owner. The surplus area of 8.09 standard acres was comprised in Khasra No. 47/5, 6, 7, 12/1, 13, 14, 15, 16 and 17 min. The total area is 64 kanals and 15 marlas situated in village Dialgarh Jejian as surplus area with the land owner. The draft statement prepared and alleged to have been served on the land owner on 10.5.1962 but no objection was received. On 3.7.1962, the draft statement was made final and the area of 8.09 standard acres was declared surplus. It has been averred that summon was issued to the land owner-respondent No. 5 by sending a registered letter, which came back undelivered with the report that he did not reside there.
3. The petitioner has further asserted that after the declaration of surplus area in the year 1962, no attempt has been made to take possession of the surplus area. It has further been averred that since possession of the surplus area has not been taken, he has bona fide purchased 36 kanals 14 marlas of land on 30.5.1974. Claiming that he has no relationship with the land owner-respondent No. 5, the petitioner has asserted that he is a small land owner.
4. In the written statement filed by Collector, Agrarian Sunam-respondent No. 4, the stand taken is that land owner-respondent No. 5 was actually served through his Mukhtiar-i-Am Chand Singh on 10.5.1962 and no objection was submitted and the draft statement was finally published in the Punjab Government Gazette. It is also conceded that possession of the land from the petitioner had not been taken because of the fact that there has been stay order operating at every stage. However, nothing has been said about the possession prior to the purchasing of land by the petitioner on 30.5.1974. It means possession was not taken of the entire land from 1962 to 1974.
5. On the analysis of the facts stated above, the short question, which requires determination is whether possession of land declared surplus under Section 32-D and E of the Pepsu Act, if not taken till the enforcement of the Punjab Land Reforms Act, 1972 (for brevity the ‘Punjab Act’), then the surplus area is required to be re-determined under the Punjab Act.
6. Mr. Sarjit Singh, learned counsel for the petitioner has argued that once it is conceded position that the possession of the area declared surplus under the Pepsu Act has not been taken till 1974, then the same cannot vest in the State because on 2.4.1974 Punjab Act has come into force and there would be requirement of law for re-determination of the surplus area. In support of his submission, the learned counsel has placed reliance on a judgment by Constitution Bench in the case of Ujjagar Singh v. Collector, Bhatinda, 1996 P.L.J. 505. The learned counsel has also placed reliance on the Full Bench judgment of this Court in the case of Ranjit Ram v. The Financial Commissioner, Revenue, Punjab and Ors., 1981 P.L.J. 259 and a Division Bench judgment in the case of Gurdev Singh v. The Collector Agrarian, Mansa, 1981 P.L.J. 503. The learned counsel has also placed reliance on Section 32-E(a) and argued that the provisions itself is plain that in case any surplus area of the land owner is not included within the permissible limit of such land owner, such area shall, on the date on which possession is taken by or on behalf of the government be deemed to have been acquired by the State Government for a public purpose.
7. Mr. A.G. Masih, learned State counsel has argued that no grievance has been made by the land owner-defendant respondent against the order dated 3.7.1965 declaring 8.09 standard acres of land as surplus. The learned counsel has further pointed out that only the petitioner, who is a subsequent vendee of 36 bighas of land vide sale deed dated 13.5.1974 has come forward to challenge the order dated 3.7.1962 by filing the revision petition before the Commissioner, Patiala Division, Patiala and before the Financial Commissioner. The learned counsel has maintained that a declaration could be granted only at the instance of land owner-respondent No. 5.
8. After hearing the learned counsel for the parties, I am of the considered opinion that this petition deserves to be allowed. According to Section 3 of the Pepsu Act, a land owner is permitted 30 standard acres and the same is required to be computed in accordance with the procedure prescribed in Sub-section (2) of Section 3 of the Pepsu Act and Section 32-E of the Pepsu Act provides that vesting of surplus area in the State Government and the same reads as under:-
“32-E. Vesting of surplus area in the State Government.- Notwithstanding anything to the contrary contained in any law, custom or usage for the time being in force and subject to the provisions of Chapter IV (after the date) on which the final statement in respect of a land owner or tenant is published in the official gazette, then
(a) in the case of the surplus area of a landowner, or in the case of the surplus area of a tenant which is not included within the permissible limit of the landowner, such area shall, on the date on which possession thereof is taken by or on behalf of the State Government, be deemed to have been acquired by the State Government for a public purpose and all rights, title and interest shall vest in the State Government free from encumbrances created by any person; and
(b) in the case of the surplus area of a tenant which is included within the permissible limits of the land owner, the right and interest of the tenant in such area shall stand terminated:
Provided that, for the purpose of Clause (a), where any land falling within the surplus area is mortgaged with possession, only the mortgagee rights shall vest in the State Government.”
Section 32-C enabled the Collector to take possession of the surplus area. The aforementioned provision came up for consideration before a Constitution Bench of the Supreme Court in Ujjagar Singh’s case (supra). Holding that the surplus area would vest in the State Government only on taking of possession, their Lordships held as under: –
“On a plain reading of Clause (a) of Section 32-E aforesaid it appears that in case any surplus area of the landowner which is not included with the permissible limit of such landowner ‘such area shall, on the date on which possession thereof is taken by or on behalf of the State Government, be deemed to have been acquired’ by the State Government for public purpose and all rights, title and interest of all persons in such land shall be extinguished and such rights, title and interest shall vest in the State Government free from encumbrances. In other words, in view of the aforesaid statutory provision, only when the possession of the land which has been declared as surplus area is taken over by the State Government, then only it shall be deemed that such surplus area has been acquired by the State Government and all rights, title and interest of person concerned in such land are extinguished and vest in the State Government. As such if the possession of any surplus area of landowner has not been taken by or on behalf of the State Government, it shall not be deemed that such surplus area has been acquired and title of the land owner has been extinguished.”
It is pertinent to mention that similar view was taken by a Full Bench of this Court in Ranjit Ram’s case (supra) while interpreting Section 8 of the Punjab Act and the observation of the Full Bench has been approved by the Constitution Bench.
9. In the present case, it is admitted position that 8.09 standard acres was declared surplus on 3.7.1962 vide Annexure P-1 and the possession had not been taken till 1974, the only ground taken is that the possession was not taken from the petitioner because there was stay order in his favour. Obviously, the stay order in favour of the petitioner could have come into existence after the execution of the sale deed on 30.5.1974 whereas the Punjab Act came into force on 2.4.1973. On the specified date i.e. 2.4.1973 possession of the land was not taken and, therefore, the surplus area is required to be re-determined in accordance with the provisions of Punjab Act.
10. The argument of the learned State counsel that only land owner-respondent No. 5 could have challenged the order dated 3.7.1962 would not require any detail consideration in view of the fact that the petitioner, who has become the co-owner of the land has challenged the same. Every co-owner does not need to agitate his grievance. In the present case, once it is conceded that possession of the area declared surplus has not been taken, then respondent is required to redetermine the same under the Punjab Act.
For the reasons stated above, this petition is allowed. Land owner-respondent No. 5 shall be entitled to redetermination of his area under the Punjab Act and the order Annexure P-1 declaring 8.09 standard acres of land as surplus area is hereby set aside. The petition is allowed in the above terms.