Punjab-Haryana High Court
Sarup Singh And Ors. vs The Financial Commissioner And Ors. on 29 July, 1997
Equivalent citations: (1998)118PLR342
JUDGMENT N.K. Kapoor, J.
1. This judgment shall dispose of LPA No. 488 of 1986 and Civil Writ Petition Nos. 5841 to 5844 of 1993. Facts are being adverted to from Civil Writ Petition No. 2451 of 1979.
2. Sarup Singh and Ors., the present appellants, sought issuance of a writ of certiorari, mandamus or any other appropriate writ, order or direction for quashing of orders annexures P-3 and P-4 passed by Commissioner and the Financial Commissioner, Haryana, respectively.
3. Facts leading to the present dispute are that one Shri Diwan Singh son of Shiv Lal, father of the appellants (petitioners in the writ petition) owned land in three villages on the crucial date i.e. 15.4.1953 as per details given below:-
S.A. Units _______________________________________________________________________ (1) Village Bedwa, District Rohtak. 621 3-3/4 (2) Village Kheri Barkesh. District Hissar 0 13-1/4 (3) Village Sisai Kaliwaran Distt. Hissar 4 1/4 _______________________________________________________________________ Besides it, Diwan Singh owned land is village Parta and Badalgarh in district Hissar. The lands of the aforesaid two villages were, however, transferred by him in favour of his sons Sarvshri Sarup Singh and Ghasi Ram in the year 1951 i.e. before 15.4.1953 and so the same was not taken into consideration for evaluating his permissible/surplus area. Diwan Singh died on 5.1.1960. On the basis of will the land was mutated in favour of Ram Devi, his daughter and Smt. Rizkan Devi, wife of Sarup Singh and Smt. Indra Wati, wife of Ghasi Ram in equal shares. Collector Surplus Area vide order dated 29.8.1960 evaluated the total land left by Diwan Singh to be 71.10 standard acres equivalent to 133.42 ordinary acres and as the same had come to the share of three persons, namely, Ram Devi, Indra Wati and Rizkan Devi, it was held that each one of them held land within the permissible limits.
4. A complaint was filed before Collector Surplus Area, Rohtak making a grievance that the earlier decision of the Collector Surplus Area is not according to law and so deserves to be re-examined by the authorities. Matter remained pending for a pretty long time with the authorities at Rohtak and finally the original complaint alongwith report of the Naib Tehsildar Agrarian was sent to Special Collector for an appropriate action for the reason that as the earlier case had been decided by the Special Collector, action if any, can now further be taken by the same authority. Special Collector, Punjab with a view to review its earlier order dated 29.8.1960 approached the higher authority-the Commissioner for permission vide communication dated 3.3.1977. Permission was granted vide office order dated 29.4.1977. Aggrieved by the order of the Commissioner permitting the Special Collector to review its earlier order dated 29.8.1960 Sarvshri Sarup Singh, Ghasi Ram and Ram Devi, the present appellants, filed, a revision petition before the Financial Commissioner challenging the order of the Commissioner sanctioning review by the Special Collector. The revision petition was dismissed by the Financial Commissioner holding that no revision petition is maintainable against the order of Commissioner permitting the Collector to review its earlier order vide order dated 17.2.1979.
5. Still feeling dissatisfied the petitioners filed the writ petition, which was dismissed by the learned Single Judge vide judgment dated 17.3-1986.
6. With a view to seek reversal of the judgment of the learned Single Judge, counsel for the appellants argued that as the matter with regard to the determination of surplus area stood finalised vide order of Special Collector dated 29.8.1960 the learned Single Judge in fact erred in law in holding that this order could be permitted to be reviewed despite the fact that no such provision existed in the Haryana Ceiling of Land Holdings Act, 1972 at the time when permission to review the order was granted by the Commissioner. Since the Punjab Security of Land Tenures Act; 1953 (hereinafter referred to as 'the Act') stood repealed as per Section 33 of the Haryana Ceiling, on Land Holdings Act, 1972 permission to review an order which had attained finality is indeed unjustifiable. Even as per Section 33(2)(ii) only such proceedings for determination of surplus areas as are immediately pending before the commencement of this Act can be continued and disposed of as if this Act had not been passed. There being no pending proceedings merely filing of a frivolous complaint some time in the year 1970 i.e. after a gap of about 10 years from the passing of the order and the granting of permission by the Commissioner in 1977 is indeed an abuse of the process of the Court which is set in motion with a view to harass the petitioners. Otherwise too, a settled position is not normally to be unsettled unless there are valid reasons to reopen the same. The judgments relied by the learned Single Judge either are not applicable or otherwise distinguishable on facts of the present case: Learned Single Judge has also erred in law in brushing aside the appellant's objection for non-grant of opportunity to them while allowing the review of the order. Before any review could be ordered it was incumbent upon the authorities to issue notice to the concerned parties permitting them to raise all conceivable objections with regard to the maintainability of such a petition. Counsel drew support from the decision of this Court in Hawa Singh and Ors. v. The State of Haryana and Ors.,1980 P.L.J. 577.
7. We have heard the learned counsel for the appellants and have also perused the judgment of the learned Single Judge and the orders passed by the authorities. Factual aspect is not in dispute i.e. Diwan Singh, predecessor-in-interest of the present appellants, owned land in various villages which exceeded the permissible limits as described under the provisions of the Act. Precisely on this account proceedings for separation of surplus area/permissible area of Diwan Singh was initiated by the Collector Surplus Area. Before the matter could be determined Diwan Singh died on 5.1.1960. Since he bequeathed his property in favour of his daughter Ram Devi and his two daughters-in-law Indra Wati and Rizkan Devi, Special Collector under mistaken impression determined the total holding qua the aforesaid persons and so came to the conclusion that as each one of them have less than 30 standard acres of land, their individual holding is below the permissible limit. Case was consequently filed.
8. Whether testamentary disposition by an erstwhile owner entitle the recipients to hold the land and scuttle the mandate of Section 10-A of the Act is the core issue which is under scrutiny. As per scheme of the Act total holding of an owner is to be determined as on 15.4.1953 and after permitting him to retain permissible area to the extent as per Section 2 of the Act the remaining area is to be declared by the authorities. Under Section 10-A area declared surplus is to be utilised for resettlement of tenants ejected, or to be ejected under Clause (1) of Sab-section (1) of Section 9. As per Section 10-A, Sub-clause (b) 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 surplus area, at the commencement of this Act, shall affect the utilisation thereof in Clause (a). For the purpose of present case, it can be noted that the protected exceptions are, the land which has been acquired by the State Government under any law for the time being in force or by an heir by inheritance and no other transfer or other disposition of land. Concededly, in the present case the appellants do not claim to have inherited the property as heirs of Diwan Singh (though the appellants are in fact his legal heirs). Strangely, except for Ram Devi, one of the appellants the other alleged aggrieved persons, namely, Smt. Indra Wati and Rizkan Devi, the other beneficiaries of the will have not come forward to challenge the offer of the Commissioner permitting the Special Collector to review the order dated 29.8.1960. Thus, two of the appellants, namely, Sarup Singh and Ghasi Ram in fact had no cause to approach-this Court in the writ petition, much less to prefer the appeal.
9. Counsel for the appellants when pressed to answer as to whether order of Special Collector dated 29.8.1960 conforms to the provisions of the Act expressed his inability to defend but all the same persisted that even if it be taken that some illegality or irregularity had been committed by an authority the only course open to an aggrieved person or to the authority was to assail its correctness by preferring an appeal, review or revision as they deem proper. Since, none of the remedies were availed within the stipulated time/period the decision had attained finality and could not be a matter of re-examination long after the expiry of period of limitation. We are not impressed with the reasoning given by the learned counsel for the appellant. The Collector Surplus Area is expected to determine the permissible/surplus area of a landowner who owns or holds land exceeding the permissible limits in terms of the Act. Since in the instant case total land owned by Diwan Singh was evaluated to be 71.10 standard acres, Diwan Singh held more than permissible limits and after his death area had to be evaluated in the hands of heirs who have succeeded by natural succession and not otherwise. Any other mode of transfer or disposition is impermissible in view of Section 10-A of the Act. Precisely for this reason the authorities became alive on receipt of a complaint by a few persons, who were residents of village Bedwa.
10. Provisions contained in Sections 80 to 84 of the Punjab Tenancy, Act, 1887 apply to the provisions of the Punjab Security of Land Tenures Act, 1953 in view of Section 24 of the Act. So, the authorities under the Act had power to review its earlier order. Precisely for this reason the Special Collector sought permission of his su-perior-the Commissioner to review the earner order dated 29.8.1960.
11. Objection raised by the appellants with regard to the grant of permission is two fold, firstly that no opportunity had been granted to the appellants to contest the same and secondly, the power of review stood deleted under Section 18 of the Haryana Ceiling on Land Moldings Act, 1972, earlier, the power of review existing under Section 24 of the Act by implication/Section 33 of the Act stands repealed-.
12. A perusal of the communication sent by the Special Collector seeking review of the order reveals that proceedings for review of the order had been initiated by the authorities way back in the year 1970 - time when provision for review existed under Section 18(3) of the Haryana Ceiling on Land Holdings Act as well. Whether filing of a complaint by a person and the action initiated by the authorities under the Act would amount to a pending proceeding is a question which goes to the root of the matter. We need not dilate upon the same as this precise objection had been examined by this Court on few earlier occasions in Chanan Mal Newar and Ors. v. State of Haryana and Ors., (1977)79 PLR 92, Ishar Singh v. The State of Punjab and Ors., (1981)83 PLR 314 and Smt. Kartar Kaur v. State of Haryana and Ors., (1985-1)87 PLR 174. Decision of this Court in Chanan Mal Newar's case (supra) in-, deed is appropriate. The Court while examining the meaning of word 'pending' made reference to the observations in Fordham v. Clagett, (1881-82)20 Chancery Division 637, wherein it was held as follows:-
"What is the meaning of the word 'pending'? In my opinion it includes every insolvency in which any proceeding can by any possibility be taken.
That I think is the meaning of the word 'pending*. Where the insolvent is dead and all the estate is gone it is not pending, but as long as he is alive the matter is pending in that sense. A cause is said to be pending in a Court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending. 'Pending' does not mean that it has not been tried. It may have been tried years ago. In fact, in the days of the old Court of Chancery, we were familiar With cases which had been tried fifty or even one hundred years before, and which were still pending. Sometimes, no doubt, they require a process which we call reviving, but which the Scotch call waking up; but nevertheless they were pending suits, and all such causes have been transferred to the High Court of Justice under the words 'causes which shall be 'pending' in the 22nd section of the Judicature Act, 1873, when the word 'pending' is used in this large sense."
13. In the context of the present case aggrieved persons had sought review of the earlier order passed by the Special Collector and so it can be taken that steps to seek review of the order have been put into motion. It is a different matter that the authorities for reasons best known to them took their own time, in this case almost 7 years before formally approaching the Commissioner for the necessary permission in terms of Section 82 of the Punjab Tenancy Act. So, we are of the view that as the steps for review had been initiated the authorities rightly came to the conclusion that the matter was pending which view has also been affirmed by the learned Single Judge. Thus, once it is held that some proceedings for determination of surplus area were pending before the authorities under the old Act, the same are to be continued and disposed of as if the Haryana Ceiling on Land Holdings Act has not been passed.
14. Whether concerned persons were entitled to a notice is the other objection which has been pressed by the counsel for the appellants. Reliance for this view has been placed upon the decision of this Court in Hawa Singh's case, (supra), wherein the Court held that as the petitioner had vital interest in the matter, an order passed without hearing them is not permissible in law. This, precise objection again came up for consideration in Ranjit Singh v. State of Punjab, 1984 P.LJ. 190 and the learned Single Judge relying upon the decision of Division Bench in CMP No. 1162 of 1983 Sohan Muni v. The State of Punjab, decided on 11.4.1983 held as under: -
The second contention of the petitioner has also not commended itself to us. Section 18 of the Act provides that the provisions of Section 82 of the Punjab Tenancy Act shall apply to the proceedings for review of any order passed under the Act. Sub-section (1) of Section 82 of the Punjab Tenancy Act reads:
82. Review by Revenue Officers.- (1) A Revenue Officer, as such, may either of his own motion or on the application of any party interested, review, and on so reviewing modify, reverse or confirm any order passed by himself or by any of his predecessors in office:
Provided as follows: -
(a) When a Commissioner or Collector thinks it necessary to review any order which he has not himself passed, and when a Revenue Officer of a class below that of Collector proposes to review any order whether passed by himself or by any of his predecessors in office, he shall first obtain the sanction of the Revenue Officer to whose control he is immediately subject;......
It is evident from the language employed in the statutory provision that the Legislature wanted to exclude the application of principles of natural justice in the proceedings relating to the grant of sanction by the Commissioner to review the orders passed by the subordinate authorities. When the Commissioner permits a Collector to review the orders of the latter's predecessor, he does not act in a quasi-judicial capacity. There is no Us before him There are no adversaries. He does not decide the rights of permission to review an order in an administrative capacity. This order does not directly affect the persons who were parties to the order to be reviewed. Such an order does not in anyway affect the civil rights of the parties. Neither it has any civil consequences.
The observations of the Division Bench, reproduced above, are squarely applicable in the instant case. The petitioner, therefore, cannot assail the impugned order (P-3) on the ground that it was passed by the Commissioner without hearing him.
3. The learned counsel for the petitioner has argued that the impugned order involved threat to the civil rights of the petitioner and further it was quasi-judicial in nature. The petitioners, therefore, had a right to be heard before it was passed. ' This contention is also without merit. The observations of the Division Bench, reproduced above, are a complete answer to this contention of the learned counsel for the petitioner."
15. We respectfully agree to the latter decision in CWP No. 3820 of 1983 decided on 6.3.1984 [Ranjit Singh's case (supra)] as the same follows the earlier division Bench judgment in Sohan Muni's case (supra) We, thus, answer the questions posed by the counsel for the petitioners-appellants holding that no notice need be issued by the authorities while seeking suo motu review of its order by a higher authority. We also hold that as steps had already been initiated by the authorities to review a patently unsustainable order of the Special Collector such a matter would be deemed to be pending and so to be decided on terms of provisions of the earlier Act the Punjab Security of Land Tenures Act, 1953. Appeal being devoid of merit is consequently dismissed.
16. The other four connected writ petitions were admitted and ordered to be heard alongwith LPA No. 488 of 1986. Petitioners in the aforesaid writ petitions are Smt. Ram Devi (deceased) through her legal heir, Smt. Indrawati (deceased) through her legal representatives and Smt. Rizkan (deceased) (now represented by legal heirs), who challenged the order of Financial Commissioner setting aside the ejectment of the tenants by Assistant Collector II Grade in an application filed by the landowners for recovery of rent under Section 14(A)(ii) of the Act. Commissioner vide order dated 27.4.1984 held that as the land forms part of surplus area, the same vests in the State and so the petitioners in this writ petition had no right to ask for ejectment of the tenants. Resultantly, the order of eviction was set aside. Financial Commissioner also found no ground to vary or differ with the order of the Commissioner. In view of what has been held in letters patent appeal, the writ petitions, too, being devoid of merit deserve to be dismissed. We, accordingly, order so. No costs.
17. Since the matter has remained pending for a long time, authorities are directed to move immediately in the matter and determine the surplus area case according to law. Authorities are also directed to put back the tenants in possession of the land who had been ejected by the order passed by the Assistant Collector II Grade which though was set aside by the Commissioner/Financial Commissioner but remained in abeyance on account of the interim direction of this Court. No costs.