Punjab-Haryana High Court
Mahabir Parshad & Another vs Financial Commissioner on 29 January, 2014
Bench: Hemant Gupta, Fateh Deep Singh
IN THE PUNJAB & HARYANA HIGH COURT
AT CHANDIGARH
Date of Decision: 29.01.2014
LPA No.18 of 1993
Mahabir Parshad & another ...Appellants
Versus
Financial Commissioner, Haryana & others ...Respondents
LPA No.19 of 1993
Umesh Chander & another ...Appellants
Versus
Financial Commissioner, Haryana & others ...Respondents
Present: Mr. I.K.Mehta, Senior Advocate, with
M/s Ranjit Mehta, Advocate, for the appellants.
Mr. D. Khanna, Addl. AG, Haryana,
for respondent Nos.1 to 3.
Mr. Som Nath Saini, Advocate,
for LRs of respondent No.4.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
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?
HEMANT GUPTA, J.
This order shall dispose of aforementioned two appeals i.e. LPA No.18 of 1993 arising out of CWP No.5518 of 1991 and LPA No.19 of 1993 arising out of CWP No.18950 of 1991, directed against the common judgment passed by the learned Single Bench on 09.04.1992.
However, for facility of reference, the facts are taken from LPA Kumar Vimal No.18 of 1993. Challenge in the writ petition is to the order dated 2014.02.10 12:36 I attest to the accuracy and integrity of this document Chandigarh LPA No.18 of 1993 & 2 LPA No.19 of 1993 11.12.1990 passed by the Financial Commissioner, Haryana, wherein it was held that though after the death of land-owner, the surplus area is required to be re-determined in terms of Section 10-A(b) of the Punjab Security of Land Tenures Act, 1953 (for short 'the Act'), but such re-opening shall be after invoking the powers under Section 5-C of the Act, as the original land- owner has failed to furnish the declaration under law.
The brief facts leading to the present appeal are that one Suraj Mal was owner of land situated in Villages Bharokha, Shamsabad, Kharian, Shergarh, Dhanar, Harni and Majukhera. He did not furnish any declaration as required under the Act before he died on 16.01.1969. The Collector has not passed any order declaring any land of Suraj Mal as surplus before his death or even thereafter. However, on 02.02.1970, the sitting tenant on the land owned by Suraj Mal filed an application for purchase of land under Section 18 of the Act. It was asserted that the land-owner has not filed declaration under the Act and he had more than 60 acres of land on 15.04.1953, therefore, the purchase application should be allowed keeping in view the non-filing of declaration and his land holding on the appointed date.
The Collector passed an order on 16.03.1979 on the declaration submitted by Tara Chand son of Suraj Mal to the effect that on scrutiny of declaration form submitted by the land-owner, the land is less than the area of one unit and, thus, no further proceedings are required to be taken on such declaration form. Another declaration was filed by Mahabir Parsad another son of Suraj Mal before the Collector, Sirsa, as he was holding land in Sirsa and Dabwali Sub Divisions. He sought one primary unit and two additional units in view of his land holding measuring 490.11 acres of 'C' category on Kumar Vimal 2014.02.10 12:36 I attest to the accuracy and integrity of this document Chandigarh LPA No.18 of 1993 & 3 LPA No.19 of 1993 the prescribed date i.e. 24.01.1971 under Section 9 of the Haryana Ceiling on Land Holdings Act, 1972 (for short 'the Ceiling Act'). On 15.05.1984, the Collector passed an order holding that there is no surplus land in possession of the land-owner. It was also ordered that in case there is any surplus declared under the Act, then that will remain so and will be utilized as per Utilization Scheme.
It is thereafter, the Collector passed an order on 27.01.1987 that proceedings under Section 5-C of the Act should be initiated, as the land- owners have not got determined their land under the Act. Such order was affirmed on 11.08.1988 by the Commissioner and later by the Financial Commissioner on 11.12.1990, subject matter of challenge in the writ petition. The learned Single Judge has also dismissed the writ petition holding that Section 33 of the Ceiling Act has taken care of all situations where proceedings had been concluded, pending or could be commenced under the Act. Therefore, the order passed by the Collector for determination of the surplus area after taking into consideration the effect of non-filing of declaration in terms of Section 5-C of the Act cannot be said to be unjustified. Consequently, the writ petition was dismissed with the following observation:
"Faced with this situation, learned counsel submitted that even if the proceedings for declaration of surplus area could continue, penalty as envisaged under Section 5-C of the Punjab Act could not be imposed, as it would amount to imposition of penalty on the heirs. The contention lacks merit. Penalty would be imposed on the big land-owner for his having failed to furnish declaration, as required by the Punjab Act and the heirs will have the benefit of provisions of Section 10-A(b) of the said Act on account of death of the land-owner."
Learned counsel for the appellants has vehemently argued that penal provisions contained in Section 5-C of the Act cannot be extended at Kumar Vimal 2014.02.10 12:36 I attest to the accuracy and integrity of this document Chandigarh LPA No.18 of 1993 & 4 LPA No.19 of 1993 the time of finding as to whether the legal heirs have any surplus land in their possession. It is contended that Section 5-C of the Act would not be applicable when re-determination is required to be conducted in terms of Section 10-A of the Act. Reliance is placed upon Full Bench judgments of this Court in Smt. Ajit Kaur & others Vs. The Punjab State & others 1980 PLJ 354 and Ranjit Ram Vs. The Financial Commissioner, Revenue, Punjab & others 1981 PLJ 259.
On the other hand, learned counsel for respondent No.4 argued that the land holding of Suraj Mal alone as on 15.4.1953 is required to be considered, as on that date, any part of land owned by him was surplus or not, in view of the non filing of declaration required even during the extended period in terms of Section 5-A of the Act. Therefore, the respondents are entitled to purchase land after applying the default provisions as contained in Section 5-C of the Act. Reliance is placed upon Supreme Court judgment in Smt. Bhagwanti Devi & another Vs. State of Haryana & another AIR 1994 SC 1869.
At this stage, it will be necessary to reproduce the relevant provisions of the Act. The same are as under:
The Punjab Security of Land Tenures Act, 1953 "5. RESERVATION OF LAND - (1) Any reservation before the commencement of this Act, shall cease to have effect and subject to the provisions of Sections 3 and 4 any landowner who owns land in excess of the permissible area may reserve out of the entire land held by him in the State of Punjab as landowner, any parcel or parcels not exceeding the permissible area intimating his selection in the prescribed form and manner to the patwari of the estate in which the land reserved is situate or to such other authority may be prescribed.
xx xx (3) A landowner shall be entitled to intimate a reservation within six months from the date of commencement of this Act, and no reservation so intimated shall be varied subsequently whether by act of parties or by Kumar Vimal 2014.02.10 12:36 I attest to the accuracy and integrity of this document Chandigarh LPA No.18 of 1993 & 5 LPA No.19 of 1993 operation of law, save with the consent in writing of the tenant affected by such verification or until such time as the right to eject such tenant otherwise accrues under the provisions of this Act.
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-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 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;
Provided that no such order shall be made without giving the landowner or tenant concerned an opportunity of being heard. (2) Where a landowner or tenant who is required to furnish a declaration under Section 5-A fails so to do, the prescribed authority may in respect of him obtain the information required to be shown in the declaration through such agency as it may deem fit.
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).
10-B. SAVING BY INHERITANCE NOT TO APPLY AFTER UTILIZATION OF SURPLUS AREA - Where succession has opened after the surplus area or any part thereof has been utilized under clause (a) of Section 10-A, the saving specified in favour of an heir by inheritance, Kumar Vimal 2014.02.10 12:36 I attest to the accuracy and integrity of this document Chandigarh LPA No.18 of 1993 & 6 LPA No.19 of 1993 under clause (b) of that section shall not apply in respect of the area so utilized."
We have heard learned counsel for the parties and found that the orders passed by the Authorities and affirmed by the learned Single Bench to take into consideration, the provisions of Section 5-C of the Act at the time of determination of the surplus area in the hands of Suraj Mal - since deceased, are not sustainable in law.
Admittedly, no order was passed by the Collector declaring the land of Suraj Mal as surplus during his lifetime even though he has not furnished any declaration even in the extended period in terms of Section 5- A of the Act. Section 5-C of the Act contemplates that the prescribed authority may by order direct whole or part of land of any such landowner in excess of ten standard acres shall be deemed to be the surplus area of such landowner and shall be utilized by the State Government for the purpose mentioned in Section 10-A. Thus the failure of the landowner to submit declaration require an order of the Collector for the purpose of utilizing ten additional standard acres as mentioned in Section 10-A i.e. for resettlement of ejected tenants. The state is competent to utilize surplus land for the resettlement of tenant ejected or to be ejected in terms of Section 10-A(a) of the Act. But clause (b) of the said provision excludes the land acquired or where succession has opened for the purpose of resettlement of tenants. No other disposition of land is permitted to be excluded while considering the case of land surplus in the hands of landowner. In terms of clause (b) of Section 10-A of the Act, the transfer or other disposition of land by an heir by inheritance is protected from the provisions of the Act except in case the land stands utilized in terms of clause (a) of Section 10-A of the Act. Kumar Vimal Section 10-B contemplates that the utilization of land either in terms of 2014.02.10 12:36 I attest to the accuracy and integrity of this document Chandigarh LPA No.18 of 1993 & 7 LPA No.19 of 1993 clause (a) or clause (b) is not affected by the inheritance being opened. Conversely, if inheritance opens before utilization, the issue whether any land is surplus or not, is required to be re-determined in the hands of legal heirs. The utilization of surplus land is a condition precedent for finality of the order of land being declared surplus, but if land has not been declared surplus, then the question whether the land is surplus in the hands of legal heirs is required to be re-determined. In fact, Section 5-C imposes penalty of ten standard acres only for the purpose of utilization in terms of Section 10-A of the Act. The disposition of land by inheritance is protected in terms of Section 10-A of the Act, therefore, the said protection would be available even in respect of Section 5-C of the Act before the utilization of the land.
In Bhagwanti Devi's case (supra), the land was declared surplus under the Act, but the same was not utilized when the Ceiling Act came into force. The Supreme Court held that by operation of sub-section (3) of Section 12 of the Ceiling Act, the surplus land stood vested in the State. Therefore, the argument that land cannot be declared surplus under the Act was negated.
In the present case, there is no order of declaring the land surplus neither on the date when an application for purchase was filed by the tenant nor on the appointed day i.e. 24.01.1971 in terms of Ceiling Act. The land would vest in terms of Section 12(3) of the Ceiling Act only if the same is declared surplus. Since the land was not declared surplus, the same is required to be determined in terms of provisions of the Act in view of Section 33 of the Ceiling Act. Therefore, in terms of Section 10-A(b) of the Act, the inheritance having opened, the surplus area has to be re-determined in the hands of the legal heirs.
Kumar Vimal 2014.02.10 12:36 I attest to the accuracy and integrity of this document Chandigarh LPA No.18 of 1993 & 8 LPA No.19 of 1993
In Ranjit Ram's case (supra) the Court was considering the provisions of the Punjab Land Reforms Act, which came into force on 02.04.1973 and the effect of declaration of land as surplus under the Punjab Act or Pepsu Act, but not utilized. It was observed as under:
"(7) As already observed, even if the land of a landowner has been declared surplus, either under the Punjab Law or under the Pepsu Law and if the land of landowner has not been utilized and further has not been purchased by the tenants in case of Punjab Law and if the landowner has not been dispossessed by the Government under the provisions of the Pepsu Law, he continues to be a landowner of the land and also holds the same even though his land has been declared surplus, till he is divested of its ownership by taking possession of the land under section 8 of the Reforms Act, where it has been provided that the surplus area declared as such under the Punjab Law or the Pepsu Law, which has not been utilised till the commencement of the Reforms Act, shall on the date or the dates on which the possession thereof is taken by or on behalf of the State Government, vests in the State Government free from all encumbrances. It would, thus be seen that such landowners' surplus area shall vest in the State Government on the date of taking of possession by the State Government under section 8 of the Reforms Act and till then the landowners are not divested of the ownership of the surplus land. Thus, if a landowner owns or holds land which is beyond the permissible area as defined under sections 4 and 5 of the Reforms Act, his case shall have to be processed again by the Collector and the determination of the permissible area and the surplus area has to be according to the mandate of sections 4 and 5 of the Reforms Act. ........Since landowner has been give right to get permissible area for his adult son as well, omission of the landowner to file the declaration would not take away the right of his entitlement to get permissible area for his adult son in addition to the permissible area of the family. Collector is duty bound while passing an order under section 7 of the Reforms Act to allow permissible area for the adult son as well. It is clear that the entitlement of the landowner to get permissible area for his adult son is out of the land of the landowner held or possessed by him whether already declared surplus or not. Subsection (2) of section 5 of the Reforms Act is only procedural section and an omission by the landowner of not filing a declaration under section 5 of the Reforms Act would not take away his right for getting permissible area for his adult son when the Collector has been enjoined upon under section Kumar Vimal 2014.02.10 12:36 I attest to the accuracy and integrity of this document Chandigarh LPA No.18 of 1993 & 9 LPA No.19 of 1993 7 of the Reforms Act to pass an order determining the permissible area and the surplus area of a landowner."
In Ajit Kaur's case (supra), the question examined was; whether the land declared surplus under the provisions of the Act, but yet not utilized nor in possession of the Government at the time of the enforcement of the Punjab Land Reforms Act, 1973 vested in the Government for the purpose of its utilization though on account of the death of the original landowner the entire land including the surplus land may have devolved upon the heirs and in consequence thereof the land in the share of each heir as a result of devolution by law may have been reduced so as to fall within the permissible limit. Examining the said question, the Bench held to the following effect:
"5. ......According to this, once the surplus area was utilized under the Act for re-settlement of ejected tenants or others, the subsequent death of the landowner and inheritance by the heirs was not to have any effect on the surplus area already determined. From a combined reading of section 10-A and 10-B, the intention of the legislature was made clear beyond dispute that till the utilization of the surplus area, in fact, by the State, the death of a landowner could result in diminution or reduction of the surplus area already determined or declared as none could manipulate his own death to save himself from the rigours of the law and his heirs were entitled to own land up to the permissible limits in their own right and their interest as landowners had to be given equal weight in the new agrarian economy as was contemplated under the statute. It has been the consistent view of this Court that even if some land of a particular landowner had been declared surplus by the authorities under the Act, after his death, before the surplus area is utilized, his entire land has to be re-considered in the hands of his heirs for the purpose of re-determination of surplus area. Reference may be made to the Division Bench judgments in Financial Commissioner, Haryana and other Vs. Shrimati Kela Devi and another 1969 PLJ 307 and Kulbhushan and others Vs. Faquira and others 1976 PLJ 480."
The majority view of this Court in Ranjit Ram's case (supra) was approved by the Constitutional Bench judgment of the Supreme Court Kumar Vimal 2014.02.10 12:36 I attest to the accuracy and integrity of this document Chandigarh LPA No.18 of 1993 & 10 LPA No.19 of 1993 reported as Ujjagar Singh Vs. Collector, (1996) 5 SCC 14. The Court held as follows:
"5. The learned counsel, appearing for the State of Punjab, could not point out as to how in view of the admitted position that some area had been declared surplus in the year 1961-62 under the Pepsu Act, the possession thereof had not been taken either by or on behalf of the State Government till the coming into force of the Punjab Act, the right, title and interest of the appellant in the land which had been declared surplus under the Pepsu Act was extinguished. The taking of possession was a must, in absence whereof it shall be deemed that right, title and interest of the appellant had never been extinguished and the said land which had been declared surplus never vested in the State; fresh steps for fixation of the ceiling had to be taken in accordance with the provisions of the Punjab Act.
xxx xxx It may be mentioned that in the aforesaid judgment "Punjab law" refers to Punjab Security of Land Tenures Act, 1953, "Pepsu law" refers to Pepsu Tenancy Agricultural Land Act, 1955 and "Reforms Act" refers to Punjab Land Reforms Act, 1972. According to us, the majority judgment of the Full Bench has correctly appreciated the scope of the three enactments referred to above. Once the lands declared as surplus under the Pepsu Act did not vest in the State Government, as possession thereof had not been taken, there has to be a fresh determination in respect of the area which the appellant is entitled to hold in the light of the Punjab Act."
Later in Krishna Kumari v. State of Haryana, (1999) 1 SCC 338, the Court examined the provisions of the Act and observed as follows:
"10. While sub-clause (a) of Section 10-A authorises the State Government or any officer empowered by it in that behalf to utilise any surplus area for the resettlement of tenants ejected, or to be ejected, under Section 9(1)(i) of the Act, clause (b) creates an exemption in favour of land which, in the meantime, is inherited by the heirs on the death of the landowner. The land so inherited cannot be utilised. But if the land has already been utilised, then the exemption will not be available to the heirs as provided by Section 10-B."
In view of the above, we find that the orders passed by the learned Single Judge and by the Authorities that the surplus area of the land Kumar Vimal 2014.02.10 12:36 I attest to the accuracy and integrity of this document Chandigarh LPA No.18 of 1993 & 11 LPA No.19 of 1993 in the hands of heirs of deceased Suraj Mal is required to be determined after applying penalty in terms of Section 5-C of the Act are not sustainable.
Consequently, we allow the present appeals by setting aside the order of the learned Single Judge and the order passed by the Financial Commissioner on 11.12.1990, but reserving the right of the Collector to determine as to whether any land owned by legal heirs of Suraj Mal is surplus or not without reference to penal provisions of Section 5-C of the Act.
(HEMANT GUPTA)
JUDGE
29.01.2014 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2014.02.10 12:36
I attest to the accuracy and
integrity of this document
Chandigarh