Punjab-Haryana High Court
Ujagar Singh And Others vs The State Of Haryana And Others on 15 May, 2012
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
L.P.A. No. 617 of 2012 ( O&M )
DATE OF DECISION : 15.05.2012
Ujagar Singh and others
.... APPELLANTS
Versus
The State of Haryana and others
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE T.P.S. MANN
Present: Mr. Gaurav Singh Hooda, Advocate,
for the appellants.
***
SATISH KUMAR MITTAL, J.
This Letters Patent Appeal has been directed against the order dated 18.10.2011, passed by the learned Single Judge, whereby the writ petition (Civil Writ Petition No. 55 of 1986) filed by five sons of Swaran Singh along with Swaran Singh, a big land owner in whose hands the land in question was declared surplus, challenging the allotment of the surplus land in favour of respondents No.3 to 5 under the provisions of Haryana Utilisation of Surplus and other Area Scheme, 1976 (hereinafter referred to as `the Scheme of 1976'), has been dismissed.
In the present case, undisputedly, vide order dated 14.11.1966 (Annexure P-1), passed by the Collector (Agrarian), Ambala, 6 standard acre-10 ¾ Units of land of Swaran Singh, the big land owner, was declared as surplus. This order was never challenged by the big land owner and thus, LPA No. 617 of 2012 ( O&M ) -2- it became final. However, thereafter, sons of the big land owner, i.e. appellants No.1 to 4 and father of appellants No.8 to 10, filed a civil suit against their father Swaran Singh claiming 1/5th share each in the disputed land on the basis of private partition and on 30.10.1969, they obtained a collusive decree. Subsequently, with the enforcement of the Haryana Ceiling on Lands Holdings Act, 1972 (hereinafter referred to as `the Act of 1972'), the land in question, which was declared surplus, stood absolutely vested in the State free from all encumbrances in view of Section 12 (3) of the Act of 1972. Four years after the enforcement of the Act of 1972 on 22.12.1972, the big land owner had filed a writ petition (CWP No. 4324 of 1976) on the plea that the land which was earlier declared surplus and was not utilised till the date of enforcement of the Act of 1972, was to be re-determined under the provisions of the Act of 1972, as his three sons were also entitled to separate units because they had become major. The said writ petition was dismissed on 17.3.1977.
Subsequently, vide order dated 23.1.1978 (Annexure P-4), passed by the Sub Divisional Officer (Civil)-cum-Allotment Authority, Ambala, under the Scheme of 1976, the surplus land in question was allotted to respondents No.3 to 5 (the eligible tenants) and possession of the same was also delivered to them. After allotment, five sons of the big land owner along with their father filed the instant writ petition challenging the allotment of surplus land in favour of respondents No.3 to 5, alleging that LPA No. 617 of 2012 ( O&M ) -3- allotment made by the authorities in favour of respondents No.3 to 5 was without any notice to them (petitioners in the writ petition), hence the same was not binding on them. The respondent-State as well as the allottees contested the writ petition. It was alleged that in the year 1976, the big land owner himself had filed writ petition (CWP No. 4324 of 1976) challenging the utilisation of his surplus land, but the said writ petition was dismissed on 17.3.1977. It was further contended that the collusive decree obtained by sons of the big land owner on the basis of private partition, without disclosing that the land was declared surplus, was of no consequence and does not effect the order of the Collector (Agrarian) declaring the land surplus and vesting the said land in the State under section 12 (3) of the Act of 1972 with effect from the appointed day, free from all encumbrances. Therefore, the big land owner and his sons could not have claimed any benefit and challenge the allotment on the ground that before coming into force of the Act of 1972, the surplus land was not utilised by the State.
The learned Single Judge, after considering various contentions raised by learned counsel for the appellants, dismissed the writ petition, while holding that the land in dispute, which was declared surplus by the Collector (Agrarion) vide order dated 14.11.1966, absolutely vested in the State free from all encumbrances under Section 12 (3) of the Act of 1972. It was further held that the legal heirs of the deceased big land owner cannot claim any right on such land on the basis that they are entitled to an LPA No. 617 of 2012 ( O&M ) -4- individual ceiling limit as on the day of coming into force of the Act of 1972, the said land was not utilised by the State. It was also held that clause (2) of Section 12 of the Act of 1972 extinguishes the rights of the land owner from the date, it was declared surplus. Sub clause (3) states that the area declared as surplus under the Punjab law which has not so far vested shall also be deemed to have vested in the State Government with effect from the appointed day. It was further held that the collusive decree obtained by sons of the big land owner before coming into force of the Act of 1972 is of no consequence, as in view of Section 23 of the Punjab Security of Land Tenures Act, 1953, such decree was invalid and inoperative.
During the course of arguments, learned counsel for the appellants put much emphasis on the fact that when the Act of 1972 came into force, the land in question, which was declared surplus in the hands of the big land owner, was not utilised and subsequently, the same was allotted to the tenants in the year 1978, without giving any notice of hearing to the appellants. It has been argued that till the land was allotted to the tenants and possession thereof was delivered to them, its physical possession was with the appellants, therefore, when the Act of 1972 came into force, under the provisions of the said Act, the land was to be re-determined and the major sons of the big land owner were also entitled for a unit. If that would have been done, then there was no surplus land and the question of allotting LPA No. 617 of 2012 ( O&M ) -5- the same to the tenants could not have arisen. The emphasis of the learned counsel is on the fact that on the appointed day, the land was not utilised, therefore, the big land owner was entitled to select the permissible area for his adult sons also.
The contention of learned counsel for the appellants is without any force. The position with regard to un-utilised surplus area is different in Punjab from the one in Haryana. In Haryana, the provision of Section 12 (3) of the Act of 1972 makes it absolutely clear that the land declared surplus by the Collector (Agrarian) under the provisions of the Punjab Security of Land Tenures Act, 1953, shall vest absolutely in the State on the appointed day free from all encumbrances, irrespective of the fact whether the land was utilised or not by extinguishing all rights and interest of the land owner. Long back, a Full Bench of this Court in Jaswant Kaur v. State of Haryana, AIR 1977 P & H 221, had held that by operation of Section 12 (3) of the Act of 1972, the surplus land stood vested in the State free from all encumbrances on and with effect from December 23, 1972, irrespective of the fact whether the land was utilised or not. The said judgment was approved by the Hon'ble Supreme Court in Jodha Ram v. Financial Commissioner, Haryana, Chandigarh, (1994) 1 SCC 27 and it was held that from the appointed day, all the pre-existing rights, title and interest in the surplus land of the big land owners are extinguished and such land stood vested in the State without any encumbrance and, therefore, the question of LPA No. 617 of 2012 ( O&M ) -6- restoring such land to the big land owner or giving notice to him does not arise. The similar view was expressed by the Hon'ble Supreme Court in Smt. Bhagwanti Devi v. State of Haryana, AIR 1994 SC 1869, where the view taken by the Full Bench of this Court in Jaswant Kaur's case (supra) was re-iterated and followed. In that case, the following observations were made :-
"Therefore, from the appointed day the possession held by appellants of surplus lands become unlawful and entitles the Collector or competent officer to resume possession of them from appellants. Neither Section 12 (3) nor Sections 7 & 9 of the Haryana Act empower the ceiling authority to reopen the proceedings relating to surplus lands which had become final is also made clear by Section 33 (2) (ii) thereof. Section 33 (2) (ii) says that the surplus area determined in the pending proceedings under the Act shall be done under that Act and surplus land shall vest in and be utilised by the State Government in accordance with the provisions of the 1972 Act. Sub-section 2 (ii) of Section 33, no doubt, deals with determination of surplus area pending, proceedings under the Punjab Law as on the notified date and vesting of the surplus area so determined in the State. The legislative intendment, therefore, appears to be that the surplus areas declared under the Punjab Law shall remain to be surplus. If any area that becomes surplus under the Haryana Act since the surplus area was reduced from 31 standard acres to 17-1/2 acres, that surplus area should be redetermined under Section 7 read with Section 9. Therein if a son becomes major and resides separately he is entitled to a separate unit etc. However, it does not appear that the surplus area declared under the Punjab Law LPA No. 617 of 2012 ( O&M ) -7- should be reopened and recomputed under 1972 Haryana Act. No such express provision was engrafted in 1972 Act. Though the family of the appellants have swelled and some of the minors have become majors, the appellants are not entitled to have the surplus area which had become final reopened for recomputation under the 1972 Haryana Act. Thus considered, we find that the High Court was fully justified in dismissing the writ petitions. The appeals are, therefore, dismissed, but without costs."
In view of the aforesaid legal position, we do not find any illegality or infirmity in the order, passed by the learned Single Judge.
No merit. Dismissed.
( SATISH KUMAR MITTAL )
JUDGE
May 15, 2012 ( T.P.S. MANN )
ndj JUDGE