Punjab-Haryana High Court
Shashi Kumar And Others vs Financial Commissioner on 17 March, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: March 17, 2011
(1) LPA No.730 of 2009
Shashi Kumar and others ...Appellants
Versus
Financial Commissioner, Haryana and others ...Respondents
(2) LPA No.731 of 2009
Shashi Kumar and others ...Appellants
Versus
Financial Commissioner, Haryana and others ...Respondents
(3) LPA No.732 of 2009
Shashi Kumar ...Appellant
Versus
Financial Commissioner, Haryana and others ...Respondents
(4) LPA No.733 of 2009
Shashi Kumar and others ...Appellants
Versus
Financial Commissioner, Haryana and others ...Respondents
(5) LPA No.734 of 2009
Shashi Kumar and others ...Appellants
Versus
Financial Commissioner, Haryana and others ...Respondents
2
(6) LPA No.735 of 2009
Shashi Kumar and others ...Appellants
Versus
Financial Commissioner, Haryana and others ...Respondents
(7) CWP No.10684 of 2001
Surta etc. ...Petitioners
Versus
State of Haryana and others ...Respondents
(8) CWP No.15051 of 2001
Bangi Ram and another ...Petitioners
Versus
State of Haryana and others ...Respondents
(9) CWP No.18577 of 2001
Shashi Kumar and others ...
Petitioners
Versus
State of Haryana and others ...Respondents
(10) CWP No.12353 of 1991
Om Parkash and others ...Petitioners
Versus
State of Haryana and others ...Respondents
(11) RSA No.2747 of 2009
Nathi Ram and another ...Appellant
Versus
3
Shashi Kumar ...Respondent
(12) RSA No.2748 of 2009
Surta and others ...Appellant
Versus
Chhavi and others ...Respondents
(13) RSA No.2749 of 2009
Dauli ...Appellant
Versus
Shashi Kumar ...Respondent
(14) RSA No.2750 of 2009
Mam Chand and others ...Appellant
Versus
Divya ...Respondent
(15) RSA No.2755 of 2009
Doli ...Appellant
Versus
Pardeep Kumar and others ...Respondents
(16) RSA No.2756 of 2009
Nathi Ram and another ...Appellants
Versus
Pardeep Kumar and others ...Respondents
(17) RSA No.2757 of 2009
Sauni Devi ...Appellant
4
Versus
Pardeep Kumar and others ...Respondents
(18) RSA No.2758 of 2009
Surta ...Appellants
Versus
Pardeep Kumar and others ...Respondents
(19) RSA No.2759 of 2009
Sohan Lal and others ...Appellants
Versus
Pardeep Kumar and others ...Respondents
(20) RSA No.2760 of 2009
Kreshni Devi and others ...Appellants
Versus
Pardeep Kumar and others ...Respondents
(21) RSA No.2761 of 2009
Puran ...Appellant
Versus
Pardeep Kumar and others ...Respondents
(22) RSA No.2762 of 2009
Mam Chand and others ...Appellant
Versus
Pardeep Kumar and others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE GURDEV SINGH
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1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: M/s R.D.Bawa, Randhir Bawa, Samuel Gill and
Shashi Gupta, Advocates for the appellants
in LPA Nos.730 to 735 of 2009.
Mr. A.K.Chopra, Sr. Advocate, with
Mr. Harminder Singh, Advocate, for the petitioners
in CWP Nos.12353 of 1991, 15051 and 18577 of
2001.
M/s L.N.Verma and Kiran Pal Singh, Advocates,
for the petitioner in CWP No.10684 of 2001.
Ms. Shubhra Singh, DAG, Haryana for the State.
Mr. Bhag Singh, Advocate,
for the appellants in RSA Nos.2747 to 2750 and 2755
to 2762 of 2009.
HEMANT GUPTA, J.
This order shall dispose of aforementioned 22 cases arising out of surplus land case of Om Parkash (since deceased). All other cases except CWP Nos.10684 and 15051of of 2001 and CWP No 18577 2001 pertain to the sanctioning of mutation either on account of purchase of land as tenant's permissible area or the setting aside of the said orders. The three writ petitions, mentioned above, are the cases in which the issues regarding surplus land of Om Parkash is to be examined.
Learned counsel for the parties agree that decision in the said three writ petitions would govern the remaining cases as well and such cases can be disposed of in terms of the decision in the aforesaid writ petitions.
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CWP Nos.10684 of 2001 and 15051 of 2001 are by some of the tenants, who are claiming right to purchase land as the tenant's permissible area of big land-owner Om Parkash. The petitioners therein have challenged the orders dated 29.09.1997, 12.10.1999 & 24.03.2000 passed by the Special Collector, Commissioner and the Financial Commissioner, respectively. CWP No.18577 of 2007 is filed by the legal heirs of deceased - Om Parkash challenging the aforesaid orders, which are also subject matter of challenge in the aforesaid two writ petitions.
The undisputed facts are that Om Parkash, big land- owner was holding land in different villages namely Jagadhri, Mandebri, Sugh, Galoli, Dasani and Farrakhpur. He submitted his selection in Form 'E' in accordance with Rule 3 (6) of the Punjab Security of Land Tenures Rules, 1956 (for short 'the Rules') and sent the said form under registered post on 19.06.1958 to the Collector, Ambala. It was pleaded by him in earlier writ petition (CWP No.873 of 1987) that forms were sent to the Collector for the reason that no Special Collector was appointed till the expiry of six months. After the said selection, the Collector passed an order on 09.07.1960. The said order reads as under:
"Present land owner with counsel. According to Form 'D' the land owner owned 101 SA 7-1/8 units of land on 15.04.1953 and he owns 120 SA 6-1/2 units at present. Adding area 1 SA 1-1/8 units in village Mandebri and 5 SA 9-1/2 units in Farrakhpur owned by the land owner on 15.04.1953 which has been subsequently sold, the total area with the land owner comes to 127 SA 1-1/8 units. Out of this, the following area is under tenants as shown in the Form 'D' relating to the land owner:-7
Jagadhri 1 SA 4-1/2 units
Mandebri 62 SA 19-1/2 units
Sugh 1 SA 5-1/2 units
Galoli 36 SA 2-1/4 units
Dasani 2 SA 11-1/4 units
Farrakhpur 5 SA 9-1/2 units
119 SA 14 units
In addition 6 units of land are under orchard in Village Mandebri. Deducting area under the tenants and the orchard the area remained with the land owner is less than his permissible area. There is, therefore, no surplus area with the land-owner. The case be filed.
Announced: 09.07.1960 Sd/-
Collector, Jagadhri"
In the said order, no surplus area was found with the land-owner as after deducting the tenant's permissible area and the area of orchard, the land with the land-owner was found to be less than the permissible area. After the said order was passed, some of the tenants filed applications for purchase of land under Section 18 of the Punjab Security of Land Tenures Act, 1953 (for short 'the Act'). The learned Assistant Collector, vide its order dated 29.01.1969, disposed of the applications, as the area sought to be purchased by some of the tenants was within the reserved area of the Om Parkash. In appeal against the said order by the tenants, the learned Collector remanded the cases to the Assistant Collector to examine the question that whether the tenants are liable to purchase land if the reservation is not made according to law and whether such land belongs to the permissible area of the land-
owner. The Collector passed an order on 23.12.1969 that the land-
owner has sent his selection form with the Form A and C to the Collector in the year 1958 but the landowner has sold land in Village Binat, Tehsil Thanesar, District Karnal. Therefore, this 8 case was to be decided by Special Collector. It was incumbent upon landowner to send his forms to Special Collector under Section 5A and 5B of the Act and under Rules 3 and 4 of the Rules and the forms have been sent wrongly, therefore, no action is required on those forms. In the appeal against the said order, the leaned Commissioner on 15.4.1970 directed the parties to appear before the Special Collector for re-decision. After the said order, the learned Special Collector passed an order on 12.09.1972 declaring 14-standard acres as the land surplus in the hands of big land-owner. The appeal against the said order was dismissed by Commissioner on 22.10.1973. But the learned Financial Commissioner, vide its order dated 18.12.1974, returned the matter to the Special Collector after rejecting appeal of the landowner. The learned Financial Commissioner directed the Special Collector to look into three points delineated by him in the said order. The purchaser of land measuring 194 Kanals 14 Marlas situated in Village Binat from landowner filed a writ petition before this court (CWP 6859 of 1974). This court set aside the order of Special Collector on September 13, 1978 so as to decide the claim of the purchaser as well. The Special Collector thereafter re-determined the surplus case of the Om Parkash on 06.08.1979. The appeal was dismissed on 21.01.1981. The Financial Commissioner dismissed the revision on 22.10.1986.
The order passed by the Financial Commissioner was challenged before this Court in CWP No.873 of 1987 by Om Parkash. This Court remitted the matter to the Financial Commissioner for re-
decision in accordance with law and in the light of observations 9 made therein, as the order passed by the Financial Commissioner was found to be without any reasons. The learned Financial Commissioner accepted the revision on 16.09.1995. The relevant extract from the said order reads as under:
5. The second point in which I find a lot of merit is the argument that it is during the purchase proceedings of the tenant that the surplus area case of the land owner was proposed to be opened. This is a very doubtful proposition to my mind. Even if it was to be opened, it could not have been done without the approval of the higher authority. Admittedly, no approval has been obtained while reviewing the surplus area case of the landlord, which had acquired finality on 9.7.1960.
The written arguments submitted by the respondents do not seem to carry much conviction. I am firmly of the view that on these two counts alone, the revision petition should succeed. The orders dated 6.8.1979 and 20.01.1981 of the Assistant Collector and the Commissioner are accordingly set aside. I remand the case back to the Special Collector for de novo determination by issuing notices to both the parties." The present round of litigation is based upon the order passed by the Special Collector on 29.09.1997 after the aforesaid order of the Financial Commissioner. The learned Special Collector held to the following effect:
"I am fully in agreement with the learned counsel for landowner. The order dated 16.09.1995 is very much clear. In order dated 09.07.1960 surplus area case of the landowner was decided and held that total area of the landowner was 127 SA 1-1/8 units. Out of this the following areas was under tenants:-
Village Area
SA Units
Jagadhri 1 6-3/4
Mandebri 62 12-3/4
Sugh 1 5-1/2
Galoli 36 2-1/4
Dasani 2 11-1/4
Farrakhpur 5 9-1/2
119 14
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In addition to 6 units of land as under orchard in village Madabri, reducing area under the tenants and the orchard the area with the land-owner remains less than his permissible area. Thereafter, during purchase proceedings it was detected that the landowner also holds land in village Mandi and Bint falling in other district. The position regarding these two villages is as under:
Village Area Remarks
SA Unit
Mandi 1 1-1/2 Purchased by tenants under
Section 18 of the Act.
SA Unit
Bint 47 15-3/4 Under old tenant 30 14-1/4
sold upto 30.7.58 8 13-3/4
Banjar 6 3-3/4
47 15-3/4
In the light of the above discussions, even if areas of other two villages is counted in the total holdings of the landowner, the position remains the same i.e. with No Surplus Area. Therefore, after allowing 30 SA of permissible area as per his choice, the remaining area is declared as tenants permissible area. I order accordingly.
The order passed by the Special Collector was affirmed in appeal on 12.10.1999 by the learned Commissioner.
The learned Commissioner found that two points remain to be decided. Firstly, the preparation of form 'F' and Secondly, what is the effect of death of landowner. It found that the merits of the case are not affected by not preparing Form 'F' and that no such plea has been raised on behalf of the landowner that the calculations made are incorrect in any manner. In respect of the consequences of death of the landowner on 19.07.1992, the learned Commissioner found that the heirs of the landowner from 1992 till 1997 had not moved any application before the Special Collector nor took any other proceedings to obtain the benefit of reopening of the case of surplus. Therefore, the legal heirs of the 11 landowner had no right to make such claim in an appeal for the first time. In respect of plea of the tenants in the appeal that the order dated 09.07.1960 is a nullity, it found that the High Court and the Financial Commissioner have held this order to be valid and that the rights of the tenants are not affected, as the tenant's permissible area would remain intact. The Financial Commissioner has dismissed the revision in limine on 24.03.2000.
The legal heirs of the landowner in their writ petition No.18577 of 2001 have sought setting aside of the orders dated 29.09.1997, 12.10.1999 and 24.03.2000. It is specific pleaded case of the legal heirs of the landowner that the order dated 09.07.1960 has attained finality and could not be reopened specially in the purchase proceedings initiated by the tenants. The relevant averments in paragraph 13 of the writ petition read as under:
"(a) Because, the order dated July 9, 1960 Annexure P/1 having attained the finality, could not be re-opened especially in the purchase proceedings initiated by the tenants.
(b) Because, although respondent No.3, in para No.4 of his order, Annexure P/4 has found and held that the order dated July 9, 1960 had attained finality and the said decision cannot be re-opened and no change could be made by the Special Collector, Haryana in the same, yet he erred in dismissing the appeal filed by the landowner-petitioners.
(c) Because, the order, Annexure P/1 having not been challenged by anyone including the tenants and the State, the authorities are to workout their rights within the ambit of the said order and under no provision of law, the same could be re-
opened."
During the course of arguments, the parties were ad- idem in respect of selection made by the landowner in form "E" on 12 19.06.1958 i.e. after the insertion of Section 5A, 5B and 5C in the Act vide Punjab Act No.46 of 1957. The said fact is admitted in the written statement filed on behalf of Special Collector, Haryana in the present set of writ petitions and noticed in the order dated 23.12.1969 passed by the Collector, attached in earlier writ petition filed by land-owner. It is also recorded in the order dated 30.11.1987 passed by the Division Bench of this Court in the said writ petition as well as in the order passed by the Special Collector on 29.09.1997.
Mr. A.K.Chopra, Senior Advocate, appearing on behalf of the legal heirs of the landowner argued that the proceedings for the declaration of surplus land of the landowner shall be deemed to be pending on the date of commencement of The Haryana Ceiling of Land Holdings Act, 1972 ( for short "the Haryana Act"), therefore, the surplus area case of Om Parkash has to be decided in terms of Section 33(2)(ii) of the Haryana Act read with Section 10-A(b) of the Act. It is argued that the order passed by the Special Collector is not sustainable as the surplus area of the land owned by Om Parkash is required to be re-determined after his death on 19.7.1992 as on the said date, the land was not utilized. It is argued that the land can be said to be utilized only when possession is handed over to the tenants after allotment of land and on completion of other formalities. The order of allotment itself does not amount to the completion of the process of utilization. Reliance is placed upon the Hon'ble Supreme Court judgment reported as Financial Commissioner, Haryana and others Vs. Smt. Kela Devi and another AIR 1980 SC 309; 13 Krishna Kumari and another Vs. State of Haryana and another 1999 (1) SCC 338 and upon Full Bench judgment of this Court in Smt. Ajit Kaur and others Vs. The Punjab State and others 1980 PLJ 354.
It is also argued that the order passed by the Financial Commissioner on 16.09.1995 remanding the case to the Special Collector for de novo determination is deemed permission for re- determination of surplus case of the landowner Om Parkash. Thus no part of land would be available for purchase by the tenants as the surplus land area is to be determined in the hands of legal heirs of Om Parkash and not as in the hands of Om Parkash. Reliance is placed upon Antu Vs. Naresh Saran 2001 (2) RCR (Civil) 790 (DB-Pb); Anoop Singh and others Vs. The State of Haryana and others 2008 (2) RCR (Civil) 626 (DB-Pb) and Sardara Singh and others Vs. The Financial Commissioner and others 2008 (2) RCR (Civil)744 (Full Bench- Pb).
It is argued that the order dated 09.07.1960 has been passed by the Collector though the surplus case of the landowner was required to be decided by Special Collector in terms of Rule 4B of the Rules as the land of deceased big landowner was situated in more than one district and that proceedings for declaration of surplus land of Om Parkash shall be deemed to be pending also for the reason that form "F" has not been prepared. Reliance is placed upon Gurdial Singh (died) by his LRs Vs. State of Haryana 1993 (1) RRR 541(SB-PB) and Anoop Singh and others Vs. The State of Haryana and others 2008 (2) RCR (Civil) 626 DB - Pb.
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Mr. L.N.Verma, Advocate on behalf of the tenants, argued that Order dated 9.7.1960 cannot be said to be void or without jurisdiction only for the reason that the same was passed by Collector and not by Special Collector and that surplus land case cannot be reopened for the said reason though the selection of the landowner should have been made known to the parties. It is also the case of the tenants that selection of a permissible area, once made by the landowner, cannot be changed either by the act of parties or by operation of law except with the written consent of the tenants affected by the change. Learned counsel also relied upon a Division Bench judgments of this Court reported as Brij Lal and others Vs. State of Haryana and others 2001 (1) PLJ 148 and Kamla Devi and others Vs. State of Haryana and others 2010 (2) SLJ (P&H) 811. It is argued that the land vests with State on the commencement of Haryana Act, therefore the surplus land area case cannot be re-determined.
After having heard learned counsel for the parties at some length, we find that the following questions arise for consideration:
(i) Whether the order dated 09.07.1960 passed by the Collector in respect of surplus area of Om Parkash is final and operative?
(ii) Whether the land was un-utilized on 19.07.1992 i.e. the date of death of Om Parkash, therefore the surplus land area was required to be re-determined in terms of Section 33 of the Haryana Act read with Section 10-A of the Act.
(iii) Whether the tenant's permissible area determined in order dated 9.7.1960 vests with 15 tenants and stand utilized on the said date itself?
To consider the respective arguments of the learned counsel for the parties, the relevant provisions of the Punjab Security of Land Tenures Act 1953 and Rules framed there-under and the provisions of the Haryana Ceiling of Land Holdings Act, 1972 need to be extracted. Such provisions read as under:
The Punjab Security of Land Tenures Act 1953 "5-A. Declaration Supported By Affidavits To Be Furnished By Certain Landowners And Tenants - Every landowner or tenant, who owns or holds land in excess of the permissible area and where land is situated in more than one Patwar circle, shall furnish, within a period of six months from the commencement of the Punjab Security of Land Tenures (Amendment) Act, 1957, a declaration supported by an affidavit in respect of the land owned or held by him in such form and manner and to such authority as may be prescribed. 5-B. Selection of Permissible Area and Consequences of Failure to Select: (1) A landowner who has not exercised his right of reservation under this Act, may select his permissible area and intimate the selection to the prescribed authority within the period specified in Section 5-A and in such form and manner as may be prescribed:
Provided that a landowner who is required to furnish a declaration under Section 5-A shall intimate his selection alongwith that declaration.
(2) If a landowner fails to select his permissible area in accordance with the provisions of sub-section (1), the prescribed authority may subject to the provisions of Section 5-
C, select the parcel or the parcels of land which such person is entitled to retain under the provisions of this Act:
Provided that the prescribed authority shall not make the selection without giving the landowner concerned an opportunity of being heard.
5-C. Penalty For Failure To Furnish Declaration - (1) If a landowner or tenant fails to furnish the declaration supported by an affidavit as required by Section 5-A, the prescribed 16 authority not below the rank of Controller may, by order, direct that the whole or part of the land of such landowner or tenant in excess of ten standard acres to be specified by such authority shall be deemed to be the surplus area of such landowner or tenant and shall be utilized by the State Government for the purpose mentioned in Section 10-A:
xxx xxxx "10-A. Surplus Area For Resettlement of Ejected Tenants -
(a) The State Government or any officer empowered by it in this behalf, shall be competent to utilize any surplus area for the resettlement of tenant ejected, or to be ejected, under clause
(i) of sub-section (1) of Section 9.
(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 utilization thereof in clause (a).
Explanation - Such utilization of any surplus area will not effect the right of the landowner to receive rent from the tenant so settled."
The Punjab Security of Land Tenures Rules 1956 "3. Form, etc. of declaration, under Section 5-A of the Act
- (1) The declaration supported by an affidavit required to be furnished under Section 5-A of the Act shall be furnished by a land-owner in Forms A and C and by a tenant in Forms B and C, either personally or by registered post (acknowledgement due) to:
(a) the Collector of the district, if his land is situated in such patwar circles as are comprised within one district: and
(b) the Special Collector, if his land is situated in such patwar circles as are comprised in more than one district."
"4-B. Prescribed authority under sub-section (2) of Section 5-B and Section 5-C of the Act - for the purpose of sub- section (2) of Section 5-B and Section 5-C of the Act, the prescribed authority shall be :-
(i) the Collector, if the lands owned or held by a land-
owner or tenant are situate in patwar circles comprised in one district; and 17
(ii) the Special Collector, if the lands owned or held by a landowner or tenant are situate in patwar circles comprised in more than one district."
"6. Assessment of surplus area, with landowners and tenants -
xxx xxx xxx (7) (i) The Collector or the Special Collector shall prepare a statement in form F and forward immediately a copy thereof to the landowner or tenant concerned under cover of an endorsement prescribed in the Form and it shall be served upon the landowner or tenant as if it were a summons in the manner prescribed in Section 90 of the Punjab Tenant Act, 1887.
(ii) The Special Collector shall also forward a copy of Form F prepared by him to the Collector of every district in which the surplus area of the landowner or tenant is situate."
The Haryana Ceiling of Land Holding Act, 1972 "12. Vesting of surplus area - (1) The surplus area of a landowner shall, (from the date on which it is declared as such shall be deemed to have been acquired by the State Government for a public purpose) (vide Act No.17 of 1976) and all rights, title and interest (including the contingent interest, if any, recognized by any law, custom or usage for the time being in force) of all persons in such area shall stand extinguished and such rights, title and interest shall vest in the State Government free from any encumbrance:
(2) The right and interest of the tenant in his surplus area which is included within the permissible area of the landowner shall stand extinguished.
(3) The area declared surplus or tenant's permissible area under the Punjab law and the area declared surplus under the Pepsu Law, which has not so far vested in the State Government, shall be deemed to have vested in the State Government with effect from the appointed day and the area which may be so declared under the Punjab law or the Pepsu law after the appointed day shall be deemed to have vested in the State Government with effect from the date of such declaration. (Vide Act No.40 of 1976)."
33. Repeal and Savings - xxx xxx (2) (ii) the proceeding for the determination of the surplus area pending immediately before the commencement of this Act, under the provisions of either of the said enactments, which 18 shall be continued and disposed off as it this Act had not been passed, and the surplus area so determined shall vest in and be utilized by the State Government in accordance with the provisions of this Act.
The Scheme of the Act including the scope of Sections 5-A, 5-B & 5-C, inserted by Punjab Act No.46 of 1957 came up for consideration before the Hon'ble Supreme Court in a judgment reported as Lajpat Rai and others Vs. The State of Punjab and others AIR 1981 SC 1401. In the aforesaid case, one of the question decided is in respect of the effect of intimation in Form 'E' made to the Collector. It was held that intimation in Form 'E' is about a selection of the permissible area under sub- Section 1 of Section 5-B. The Hon'ble Court held to the following effect:
"6. In relation to contention (a) the following propositions emerge from the various provisions of law just above set out:
(i) Reservation of land was envisaged only in section 5 (1) of the Act and had to be intimated within six months from the date of commencement of that Act, i.e. on or before the 15th October, 1953.
(ii) No provision was ever made in the Act or the rules framed thereunder for a reservation of land by a landowner who had failed to send an intimation thereof on or before the 15th Octobe, 1953.
(iii) What was provided by section 5-B was, inter alia, that a landowner who had not exercised the right of reservation under the Act could select his permissible area and send intimation thereof in Form E to the prescribed authority within a period of six months from the 11th December, 1957, i.e. on or before 11th May, 1958. 'Reservation' was something different from the 'selection' of permissible area. The two terms were not only not synonymous but were mutually exclusive.
'Selection' of permissible area was allowed only to a landlord who had not exercised his right of 'reservation'.
(iv) Form E was meant only for intimation of selection of permissible area under sub-section (1) of Section 5-B and 19 not for reservation under sub-section (1) of Section 5 which could be made only through an intimation in the Form in Annexure 'B' to the 1953 Rules."
In the present case, the landowner has submitted his selection of permissible area to the Collector on 19.6.1958 as provided in Section 5-B of the Act. It is thereafter, the Collector passed an order on 09.07.1960. It was found by the Collector that after giving benefit of tenant's permissible area and the area of orchard, there is no surplus land of the landowner. With the said background, the questions raised in the present cases are taken up for examination.
Question No.1 It is the specific case of the legal heirs of the landowner Om Parkash in the writ petition that the order dated 09.07.1960 is final though during the course of arguments, an argument was raised that such order is not final. The legal heirs of the landowner cannot be permitted to travel beyond the case pleaded. But still we have examined the contention on merits as well.
It is the case of the landowners that their surplus land case was required to be decided by Special Collector since the land was located in two districts, whereas the same has been decided by the Collector. It is the pleaded case of the landowner in previous writ petition No.873 of 1997 that the form 'E' was sent on 19.06.1958 by registered post to the Collector for the reason that no Special Collector was appointed. Rule 4B contemplates submission of the selection by a big landowner to the Collector or the Special Collector. The Collector under the Act means the Collector of the District or any Officer not below the rank of Assistant Collector; 20 whereas Special Collector means an Officer assigned the duties to perform the functions by notification in respect of such area as may be specified in the notification. The issue required to be examined is "Whether the order passed by Collector is without jurisdiction and thus a nullity? or Whether it is mere irregularity not affecting the merits of the determination or causing prejudice to any of the parties, therefore, cannot be ignored?".
In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, the plaintiff had undervalued his suit and presented the same to the wrong forum. The decree in such suit, lead to filing of appeal before the court of different jurisdiction then if the suit was filed before proper court. The Court held:
"12. The question, therefore, is, can a decree passed on appeal by a court which had jurisdiction to entertain it only by reason of undervaluation, be set aside on the ground that on a true valuation that court was not competent to entertain the appeal? Three High Courts have considered the matter in Full Benches, and have come to the conclusion that mere change of forum is not a prejudice within the meaning of Section 11 of the Suits Valuation Act. Vide Kelu Achan v. Cheriya Parvathi Nethiar, AIR 1924 Mad 6 (FB), Mool Chand v. Ram Kishan, AIR 1933 All 249 (FB) and AIR 1949 Pat 278 (FB). In our judgment, the opinion expressed in these decisions is correct."
In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, (1996) 1 SCC 435, the Court observed that:
"In our opinion, even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact, be effective inter parties until it is successfully avoided or challenged in a higher forum. Mere use of the word 'void' is not determinative of its legal impact. The word 'void' has a 21 relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise and in this case, the only complaint about the initiation of the suo motu proceedings by the Board was, that it was not initiated on intimation by the State Land Board about the non-filing of the statement as required by Section 85(7) of the Kerala Land Reforms Act. In our opinion, this is not a case where the infirmity is fundamental. It is unnecessary to consider the matter further."
Later in Rafique Bibi v. Sayed Waliuddin,(2004) 1 SCC 287, the court held:
"6. What is "void" has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail.
7. Two things must be clearly borne in mind. Firstly, "the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be 'a nullity' and 'void' but these terms have no absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results...
8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior 22 court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings."
In view of the judgments referred to above, we find that the manner of furnishing selection and the decision by the Collector or Special Collector after the landowner has furnished declaration, is matter of procedure. The matter was required to be decided by Special Collector only for the reason, that the landowner has land in more than one district. Such procedure was more for the purpose of utilization of the surplus land for resettlement of tenant on such land. The furnishing of forms is to facilitate the declaration of the surplus land of the landowner and its utilization by the competent authority. At best, it is a case of irregular exercise of jurisdiction not affecting the merits of the controversy. Such decision has not caused any prejudice to any of the parties. Therefore, the decision of the Collector in respect of surplus land case of the big landowner cannot be said to be without jurisdiction and nullity and cannot be ignored or said to be illegal or void for the reason that the same was passed by the Collector and not by the Special Collector.
The Financial Commissioner in the order dated 16.09.1995, as reproduced above, has categorically found that opening of surplus area case of the landowner during purchase proceedings is a doubtful proposition. The surplus area case could not be opened without the approval of the higher authorities and no approval has been obtained and the order dated 09.07.1960 has attained finality. The said order passed by the Learned Financial 23 Commissioner has not been challenged by any of the parties. There is no permission granted for review of the order dated 09.07.1960 nor sought at any stage. It was the order of the Collector, while dealing with purchase application filed by the tenants, it was observed that the matter was required to be decided by Special Collector. Therefore, the remand of the case by the Learned Financial Commissioner to the Special Collector for de novo determination cannot be deemed to be re-opening of the surplus area case, but such remand is in respect of purchase proceedings by the tenants to be decided in terms of the observations of the Financial Commissioner. The said order cannot be read to mean that surplus area case of the landowner has been permitted to be re-opened for re-determination.
The argument that the order dated 09.07.1960 is not valid and operative since form 'F' was not prepared is again not tenable. It is the stand of the Special Collector in the written statement filed that form 'F' was not required to be prepared as that Special Collector is required to forward a copy of the form 'F' only in case any surplus area is found. Rule 6 (vii) of the Rules provides for the preparation of a statement in form 'F' and to forward to the Collector of every District in which the surplus area of the landowner is situated. The long title of form 'F' shows that it is the statement showing the particulars of the area declared surplus with a landowner. The different columns specified in the form 'F', relate to permissible area of the landowner and the area declared surplus with the landowner. The purpose of form 'F' is 24 to apprise the Collector that the area within his jurisdiction is available for utilization for resettlement of tenants on such area.
The judgments of Full Bench in Sardara Singh case and of Division Bench in Anoop Singh and Gurdial Singh, are of no assistance to the arguments raised by the learned counsel for the landowner. In Anoop Singh's case (supra), reliance was placed upon other judgments i.e. Hardev Singh Vs. The State of Punjab, 1971 PLJ 283 (DB), S. Balwant Singh Chopra Vs. Union of India 1971 PLJ 315 (FB) and Dharam Vir Vs. The Financial Commissioner, Haryana, 1980 PLJ 403 (SB) etc. to return a finding that for limitation for filing objections and appeal commences from the date of service of form 'F' and not from the date of order, even if the landowner is present at the time of finalization of his surplus land area. In all such cases, there was an order declaring surplus land. But in the case of the landowner - Om Parkash, no land was declared as surplus. Therefore, the cases referred to by the learned counsel for the landowner are, thus, clearly distinguishable. Such judgments will be applicable where land has been declared surplus but form "F" has not been prepared.
In the present case, there is no surplus area in the hands of the landowner. Since no surplus area was declared or available for settlement of ejected tenants from the land of other landowners, the form 'F' was not required to be prepared and has been rightly not been prepared.
Question No.2 25 The prime argument of learned counsel for the legal heirs of Om Parkash is that surplus area case of the landowner was pending on 19.07.1992 i.e. the date of death of Om Parkash, therefore, the surplus land area is required to be re-determined in terms of provisions of Section 33 (2) (ii) of the Haryana Act read with Section 10-A of the Act.
In Bhagwanti Devi v. State of Haryana, AIR 1994 SC 1869, the question raised and decided is vesting of land with State after enactment of Haryana Act. It was held:
"4. No doubt under 1953 Act, there is no specific provision which provided for vesting of the surplus lands, declared thereunder. The Collector had power to take possession of the surplus lands and utilize them under East Punjab Area Utilization of Lands Act, 1949, by their allotment to the tenants for cultivation. But for the exemption granted under Rule 8 of the Rules, the appellants had no right to remain in possession. Having got the benefit of Rule 8 and remained in possession of the surplus land and utilized the same for the purpose of cultivation in a modern farm, it is not open to appellants to contend that the land having remained unutilized and continued to be in their possession and enjoyment, Section 12(3) does not divest them of their title. The language of Section 12(3) is unequivocal and clear. According to it the surplus lands declared under the Act stand vested in the State. Even otherwise the non-utilisation of surplus land till date of vesting i.e. on 23-12-1972 is not material. The object of the Act and Section 12(3) of 1972 Act was redistribution of surplus land among the landless ryots and agricultural labour and to confer title on them. The Act enabled the owner of the surplus land to recover rent from the lessee and enjoy the income till date of vesting and no more..."26
In Amar Singh v. Ajmer Singh, 1994 Supp (3) SCC 213, it was held that the land would vest in State even if it remains unutilized under the Punjab Act. It was held to the following effect:
"4. ... There is no provision under the Haryana Act to reopen the surplus determined under the Punjab Act. Based on wholly erroneous assumptions the learned Judge allowed the writ petition. The Letters Patent Bench of the High Court mechanically dismissed the appeal in limine.
5. Learned counsel for Ajmer Singh-respondent, has contended that although the surplus proceedings against Maru Ram was finalised in the year 1961/1962 but the possession of the surplus land remained with Ajmer Singh, respondent, till 1981 when the same was handed over to the appellant. Simply because the surplus land declared under the Punjab Act was not utilised and it remained in possession of Ajmer Singh-respondent would not make any difference so far as the position in law is concerned. The language of Section 12(3) is unequivocal and clear. According to it the surplus land declared under the Punjab Act stood vested in the State. The non-utilisation of surplus land till the date of vesting (23-12-1972) is of no consequence and makes no difference. The view we have taken is supported by the judgment of this Court in Bhagwanti Devi v. State of Haryana-(1994 Supp (3) SCC 101(II)"
Similar is the view taken In Ram Swarup v. S.N. Maira, (1999) 1 SCC 738. It was held to the following effect:
"That apart, even on the question of interpretation of Section 12(3) of the Haryana Ceiling on Land Holdings Act, 1972, we also find that the High Court has committed an error. The provisions no doubt were brought on to the statute-book in the year 1976 by which time the original surplus-holder had died but the legislature having given the said provisions retrospective effect w.e.f. 23-12-1972, 27 as such the rights of the parties will have to be governed treating the provisions on the statute-book on 23-12-1972. The landholder having died much thereafter, in the eye of law, the lands in question vested with the State on 23-12- 1972. Death having occurred much later in 1976, the legal heirs cannot claim any right on the basis that they are entitled to an individual ceiling unit as the land has not been utilised. The High Court obviously has not considered the effect of giving retrospectively to the provisions of Section 12(3)."
A Division Bench of this Court in Bharat Bhushan Vs. State of Haryana and others 1990 PLJ 563 has considered somewhat similar circumstance where the landowner died after coming into force of Haryana Act on 23.12.1972. It was held that heirs of the landowner had no interest whatsoever in the land on the appointed day i.e. 24.01.1971 and cannot maintain the surplus area in their hands, which devolved on them on death of landowner, needs to be re-determined. It was held to the following effect:
"In Shive Narain and others Vs. The State of Haryana and another, 1982 PLJ 314 also the matter was discussed and it was held that if the area is declared surplus under Punjab Security of Land Tenures Act and the landowner dies after coming into force of the Haryana Ceiling on Land Holdings Act which came into force on 23.12.1972, heirs of the landowner had no interest whatsoever in the land on the appointed day 24.01.1971 and they cannot maintain that surplus area in their hands which devolved on them on the death of the landowner needs to be redetermined. Similarly, in Ram Singh Vs. State of Haryana 1982 PLJ 102, it was held that the surplus area case stood finalized during the life time of landowner and shall stand vested in the State with effect from 24.01.1971 and no benefit will accrue to heirs of landowner under provisions of Punjab Security of Land Tenures Act."28
From the aforesaid judgments, it transpires that where an order declaring land surplus has attained finality, but the land has not been utilized under the Punjab or Pepsu law, the same would statutorily vest in the State in terms of Section 12 (3) of the Haryana Act.
The judgments of Hon'ble Supreme Court referred to by Mr. Chopra such as Smt. Kela Devi and Krishna Kumari's cases (supra), are distinguishable and are not applicable to the facts of the present case. In Kela Devi's case while considering the provisions of the Act, it was held that mere allotment of land to other tenants did not amount to utilization of surplus area when resettled tenants have not taken the possession under the allotment orders. In Krishna Kumari's case, it was held that the possession can be delivered to a resettled tenant after execution of Qubuliat or patanama, which was found to be not executed. The said question of utilization arose as the proceedings in respect of surplus area were pending at the time of commencement of the Haryana Act and, therefore, the surplus area case has to be decided under the Punjab Act in terms of Section 33 (2)(ii) of the Haryana Act.
The Full Bench of this Court in Smt. Ajit Kaur's case dealt with vesting of land with the State Government under the Punjab Land Reforms Act, 1973. Such vesting is from the date possession is taken by or on behalf of the State Government. The said judgment has no applicability to the present case, as under the Haryana Act, applicable in the present proceedings, there is statutory vesting of land with the state. In Antu's case, in respect of the question for re-determination of permissible area for each 29 heir of the landowner on his death before utilization, it may be noticed that the surplus area was not declared in the said case before the enactment of the Haryana Act. Therefore, the surplus area was required to be determined in terms of Section 10A of the Act read with Section 33(2)(ii) of Haryana Act. Similarly, the Division Bench in Anoop Singh's case also dealt with the utilization of the surplus area declared after the enactment of the Haryana Act. The facts on record are otherwise. The said proposition does not arise for consideration in the present case Therefore, the said judgments are of no help to the arguments raised by learned counsel for the landowners.
In Brij Lal's case (supra), the landowner had died before the enactment of Haryana Act and that the surplus land area case of the landowner was required to be decided in terms of Section 10-A of the Act. But, it was held that case does not relate to utilization of surplus area for the settlement of tenants. It was held to the following effect:
"13. .....Indeed there have been no such proceedings initiated at the instance of the tenants. It may be reiterated that the tenants in this case are not seeking resettlement on the surplus area of either Pat Ram or his sons, but are merely seeking to defend their tenancy on the ground that neither Pat Ram nor his sons were small landowners. Therefore, the provision of Section 10-A is not at all applicable to the facts of the present case. There is no other provision in the Punjab Law, which may be relied upon to reinforce the petitioners principal argument that Pat Ram's death brought an end to the surplus area proceedings because his estate was inherited by his sons and each of them was a small landowner entitled to evict the tenants. Whether or not Pat Ram's sons were big or small landowners is required to be redetermined just as the 30 Financial Commissioner had directed. First of all, it has to be seen by the Collector whether Pat Ram's surplus area had been correctly determined. Pat Ram's death shall have no effect on these proceedings. It is only after his permissible area has been fixed that the individual cases of his sons are to be taken up and their respective surplus areas, if any, taken out by including the land owned by them and the land inherited by them."
We do not find any merit in the said argument.
Though at one point of time, the Collector, considering the tenant's request for purchase of land, passed an order that the surplus area case was required to be decided by the Special Collector, but the Financial Commissioner in its order dated 16.09.1995 has found that the order dated 09.07.1960 has attained finality and the surplus area proceedings cannot be reopened in purchase proceedings. Thus no proceedings in respect of surplus land area of the landowner were pending on the date of death of landowner. It was only purchase application of the tenants which was pending when Haryana Act came into force. Therefore, in terms of Section 12(3) of the Haryana Act, the land vests with the State.
Question No 3.
It has been held by Hon'ble Supreme Court in Mala Singh Vs. The Financial Commissioner and others (1994) 1 SCC 195 that with the order declaring tenant's permissible area, the land stood utilized by virtue of such declaration. The relevant extract from the said judgment read as under:
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"8. We have heard learned counsel for the parties. We are of the view that the revisional authorities under the Act and the High Court fell into patent error in holding that the surplus area of Kishan Dutt which was declared tenant's permissible area on January 24, 1971 had not been 'utilized' on September 4, 1991 when Kishan Dutt died. The expression 'utilized' has not been defined under the Act. It has been, however, used in Section 10-A and 10-B of the Act to indicate that the surplus area of a land owner gets utilized on the resettlement of tenants on the said land. Under the scheme of the Act the surplus area of a big landowner could be used for the resettlement of landless tenants and Section 10-A and 10-B of the Act provided that as and when it was done, the said surplus area was taken to be utilized. If the surplus land allotted to the landless tenants under the Act stood utilized, we see no reason why the surplus land which was declared as tenant's permissible area under the Act, be not considered to be utilized. The appellant was an old tenant of the landowner. The land under his possession was declared surplus. He was permitted to continue in the said land by declaring the same as a tenant's permissible area. We are of the view that on January 24, 1971 when the surplus land in possession of the appellant was declared as tenant's permissible area, it stood utilized by virtue of the said declaration. The land-owner, Kishan Dutt, having died after the utilization of the land in dispute, his successors could not take advantage of the fact that they had become small landowners after the death of their father."
A Division Bench of this Court in Antu's case, held that the tenant's permissible area stands utilized with the passing of the order. It was observed:
"11. It is in the context of facts, as have been detailed above, that it was held by this Court that 'as mentioned above insofar as landowner is concerned, he had reserved the permissible area, i.e. upto the brim of ceiling provision under the Act of 1953. It is concerned position and so is recorded in the impugned orders that on some of the land declared surplus, earlier in point of time, old tenants were there. It could also not be disputed at any stage that such 32 land has to be declared as tenant's permissible area..... Surplus area, as mentioned above, does not include tenant's permissible area. It is only non-utilization of surplus area that would come to the rescue of the landlord by dint of the provisions contained in the Act of 1972 and by virtue of judgment of Full Bench in Ranjit Ram's case (supra) insofar as tenants' permissible area is concerned, the same stood utilized by dint of the fact that the tenants had already occupied the same and of which landlord was not in possession. Such land, in our view, stood utilized, the day it was declared to be tenants' permissible area."
Kamla Devi's case (supra) relied upon by Mr. Verma does not deal with the issue, as in the present case. That was a case wherein the question of inclusion of the transferred area within the permissible area of the landowner was considered and decided.
Thus, in respect of tenant's permissible area, the land vests with tenants with the passing of the order in respect of selection of the permissible area of landowner and tenant's permissible area. The tenants are already in possession of the tenanted land. The question of utilization arises only in the event, the ejected tenants are to be resettled on the land declared surplus. Since the land of Om Parkash, either falls within his selected area or the tenant's permissible area, no further action was required by the Authorities under the Act.
In view of the above, we hold as under:
(i) That the order passed by the Collector on 09.07.1960 is final and operative between the parties.
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(ii) The landlord is entitled to retain land as per his selection in form 'E' submitted on 19.06.1958 as his permissible area.
(iii) The tenants within the tenant's permissible area, other than the selected area of the landowner, are deemed to be in possession as owners thereof from the date of the order passed by the learned Collector on 9.7.1960.
With the said observations and directions, CWP Nos.10684 of 2001, 15051 of 2001 and 18577 of 2007 are disposed of accordingly. All other Letters Patent Appeals and Regular Second Appeals will follow the judgment and directions mentioned hereinbefore.
(HEMANT GUPTA)
JUDGE
March 17, 2011 (GURDEV SINGH)
Vimal JUDGE