Punjab-Haryana High Court
Smt. Dayawanti & Others vs The State Of Haryana And Others on 11 July, 2011
Author: Ranjit Singh
Bench: Ranjit Singh
Civil Writ Petition No.7074 of 1991 :1 :
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
DATE OF DECISION: JULY 11, 2011
Smt. Dayawanti & others
..Petitioners
VERSUS
The State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT 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?
PRESENT:Mr. L.N. Verma, Advocate,
for the petitioners.
Mr. Harish Rathee, Sr. DAG, Haryana
for the State.
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RANJIT SINGH, J.
In these bunch of seven writ petitions bearing Nos.7074 of 1991, 14314 of 1990, 5779 of 1992, 9547 of 1992, 12152 of 1993, 6203 of 1997 and 1732 of 2002, a common question of law arises and accordingly these petitions are being disposed of through this common order.
The issue of law, which commonly arises in these cases, is the delay on the part of State to invoke the revisional jurisdiction of Financial Commissioner under Section 18(6) of the Haryana Ceiling on Land Holdings Act, 1972 (for short "the Act") for setting aside the order passed by the Prescribed Authority, which had held that there was no surplus area with the land owners-petitioners in these Civil Writ Petition No.7074 of 1991 :2 : respective cases. The Financial Commissioner has remanded the case back to the Prescribed Authority to redetermine the surplus land with these respective petitioners. For convenience, facts have been taken from CWP No.7074 of 1991.
Devki Nandan, husband of petitioner No.1 and father of petitioner Nos.2 to 4, had submitted his Declaration Form under Section 9 of the Act before Sub Divisional Officer (C)-cum-Prescribed Authority, Sirsa on 13.8.1976 for decision of his surplus area case. As per the Declaration Form verified by Tehsildar that Devki Nandan owned 695 kanals 11 marlas of land in village Kuttabarh and 48 kanals of land in village Alika. His total holding accordingly was 743 kanals 11 marlas ordinary equivalent to 1167 kanals and 6 marla of `C' category. After taking into consideration un-command area, the remaining area worked out to be 820 kanals 17 marlas of `C' category.
Devki Nandan and his family had sold following lands on different dates:-
"89 kanals 2 marlas land through sale deed dated 25.1.1972, 70 kanals and 1 marla land through sale deed dated 10.4.1972, 75 kanals 11 marlas land through sale deed dated 10.4.1972, 38 kanals 14 marlas through sale deed dated 24.12.1973."
Thus, the family had sold total area of 273 kanals 8 marlas equivalent to 342 kanals 6 marlas.
Civil Writ Petition No.7074 of 1991 :3 :
Smt.Pushpa Devi, sister of Devki Nandan had obtained a civil court decree in her favour on 19.4.1972 in regard to land measuring 45 kanals 18 marlas and another land measuring 190 kanals 17 marlas through a civil court decree dated 7.4.1972. This was as per her entitlement to inherit being daughter of Puran Chand and, thus, being eligible to inherit the property alongwith his brother Devki Nandan in equal share. The Prescribed Authority treated and held all the sales as bonafide but declined to consider the two decrees in favour of Smt.Pushpa Devi. After allowing 432 kanals of `C' category to Devki Nandan as his permissible area, he declared 46 kanals and 11 marlas land as surplus in his hands on 22.5.1982. The respondent-State did not file any appeal under Section 18(1) of the Act before the Collector or a revision which it could file before the Commissioner under Section 18(4). This order, thus, acquired finality. After lapse of six years, the State filed a revision directly before the Financial Commissioner under Section 18(6) of the Act challenging the order whereby the sales made by the declarants were held to be bonafide. The Financial Commissioner accepted this revision on 27.2.1990 and remitted the case back to the Prescribed Authority. This order is challenged by the petitioners on the ground that it is wholly arbitrary and capricious and against the provisions of law.
The respondents in reply would justify the order passed by the Financial Commissioner and has also pointed out that the proceedings are now pending before the Prescribed Authority. As per the respondents, State was fully justified and had right to invoke the provisions of Section 18(6) of the Act.
Civil Writ Petition No.7074 of 1991 :4 :
Mr.L.N.Verma, counsel for the petitioners has made two- fold submission to challenge the order passed by the Financial Commissioner. He would first submit that exceptional remedy provided under Section 18(6) of the Act could not be availed by the State without first exhausting the remedy of appeal provided under Section 18(1) and of revision provided under Section 18(4). Counsel would contend that legislature in its wisdom has made an exceptional provision in the form of Section 18(6) to meet the exceptional situations. As per the counsel, there may be a case where land owner may have managed to retain more area than permissible by fraudulent means and with this aim and object Section 18(6) was made to arm the Financial Commissioner with unfettered powers to interfere in such fraudulent designs of such dishonest and crafty landowners and to see that the surplus pool is not whittled down by fraudulent means. In short, the counsel would challenge the action of the State in directly invoking the suo-motu revisional jurisdiction of the Financial Commissioner without having had a resort to the remedy of appeal and revision before the Collector and the Commissioner respectively.
The counsel would next submit that the State had a limited period to file appeal which could be done only within 15 days and thereafter to invoke revisional jurisdiction within 30 days of the order in appeal. Instead, State has sat over the issue for a long period of six years before invoking the jurisdiction under Section 18 (6) of the Act. This delay on the part of the State has remained unexplained and the case of surplus had acquired finality. The delay in itself would be enough to interfere in this power exercised by the Civil Writ Petition No.7074 of 1991 :5 : Financial Commissioner. Plea also is that power under Section 18(6) must be exercised judiciously and not arbitrary.
Since the issues in these writ petitions are being decided on this limited ground without going in detail the factual position, it may not be very essential to notice the facts in detail in each of the writ petition. It would suffice if reference is made to the date of the orders and the exercise of revisional jurisdiction to notice the delay in making the approach and whether in such cases the State had filed appeal or revision prior to filing petition under Section 18(6) or not.
In CWP No.1732 of 2002, the Prescribed Authority has passed an order on 31.3.1977 to hold that petitioner was entitled to two units of area one primary unit for himself and his family and one separate unit for his adult son. Since total area of his land measuring 63.84 ordinary acre was found less than even the permissible area i.e.. 68 acres, the authority had held that the petitioner had no excess area. No appeal or revisional was filed in this case under Section 18 (1) and 18(4) respectively. After a lapse of nearly 23 years, the State filed a petition under Section 18(6) before the Financial Commissioner to declare land measuring 410 kanals 15 marlas to be surplus for utilising under the Scheme. This order is challenged on the identical grounds as noticed above.
In CWP No.6203 of 1997, the Prescribed Authority had decided the surplus area case of the petitioner on 26.6.1980 allowing one primary land and another separate unit for adult son, whereby no excess area was left in the surplus pool. After expiry of nine years and without offering any explanation, the State had approached the Financial Commissioner, who on 31.1.1989 has allowed this petition Civil Writ Petition No.7074 of 1991 :6 : without even serving a notice against the land owner Kaushalya Devi, who had died during the pendency of revision petition and without getting the legal representatives impleaded. This order is also challenged on similar grounds.
In CWP No.12152 of 1993, again the Prescribed Authority had held the petitioner to be a small land owner declaring that he had no surplus area in his hand through order dated 15.7.1980. The Financial Commissioner holding ex-parte proceedings against the petitioner had allowed the revision after expiry of seven years and set aside the order on 26.5.1988. He has remitted the case back to Prescribed Authority for ascertaining the choice of the petitioner regarding permissible area. The Financial Commissioner had misconceivedly treated application for setting aside ex-parte to be a review application and did not even recall the order by dismissing the said application. These orders are accordingly challenged.
Order in CWP No.5779 of 1992 was passed by the Prescribed Authority on 15.2.1977. An area measuring 109 kanals of Smt.Reshma was taken into consideration and 52 kanals 8 marlas land was declared surplus with the petitioner. Thereafter this order was reconsidered on the basis of a civil court decree dated 8.11.1977 for excluding this area from the petitioner on the basis of a civil court decree in favour of Smt.Reshma. This order was passed on 9.1.1979. The State did not file any appeal or revision but approached the Financial Commissioner under Section 18(6) in the year 1991-92, which is now challenged through the writ petition.
In CWP No.14314 of 1990, the Prescribed Authority has held that there was no surplus area in the hands of the petitioner by Civil Writ Petition No.7074 of 1991 :7 : allowing one primary unit to Prithvi Singh (Petitioner No.1) and two separate units to petitioner Nos.2 to 4 (the adult sons of petitioner No.1). The area already declared surplus under the Punjab Security of Land Tenure Act was to remain intact. Two residents of the village, who are desirous of getting allotment of surplus area filed an application before the Prescribed Authority alleging that the surplus area of the petitioner was wrongly decided. Some others had filed an appeal before the Collector on 20.9.1979. This was treated as their complaint. It was sent by Prescribed Authority for reference to respondent No.2. The case was ultimately referred to Financial Commissioner, who on 19.10.1987 passed an order initiating the suo-motu proceedings sending back the case to the Prescribed Authority for fresh decision vide his ordered 29.8.1990.
In CWP No.9547 of 1992, the Prescribed Authority has held through his order dated 10.5.1978 that there was no surplus area with the petitioner. State had not filed any appeal or revision, but ultimately invoked the jurisdiction of Financial Commissioner on 9.11.1990 and remanded the case to the Prescribed Authority for deciding afresh on 19.3.1991. This order is also put to challenge on the ground of delay and other grounds as noticed.
I have heard the learned counsel for the parties.
Mr.Verma has referred to number of precedents in support of the grounds raised by him to challenge the impugned orders in all the writ petitions. He would first refer to Savitri and Bhagwanti Versus The State of Haryana and others, 1997(2) PLJ 272 to contend that upon failure to avail the remedy of appeal under the Act, High Court would not interfere when the remedy which was Civil Writ Petition No.7074 of 1991 :8 : alternative and efficacious too. On the point of delay, the counsel has referred to judgment in the case of Loku Ram Vs. State of Haryana, 1999(1) PLJ 1, which was a case where the Financial Commissioner had set aside the order passed by the Collector after nearly seven years holding that the order was vitiated by patent illegality. The High Court had refused to interfere with the order passed by the Financial Commissioner. The Supreme Court while setting aside the order passed by the High Court as well as Financial Commissioner had restored the order passed by the Collector on the ground that the order passed by the Financial Commissioner did not disclose any reason to hold period of nearly seven years as reasonable to interfere considering the facts of the case. Division Bench of this Court in the case of Sh.Diwan Hira Lal Kapoor Vs. The State of Haryana and others, 2002(1) PLJ 28 after placing reliance on Loku Ram's case (supra) has held that absence of any reasonable explanation for delay of 8 years in filing the revision petition without giving any reason for not availing remedies of appeal/revision was enough for the Financial Commissioner to decline interference in the revision and had upheld the order passed by the Collector.
To rebut the submission made by the counsel for the respondents that such powers could be exercised by the Financial Commissioner "at any time", the counsel seeks support from Division Bench judgment of this Court in Meghi Singh and others Versus The State of Haryana and others, 1972 PLJ 11. While interpreting the provisions of Section 84 of the Punjab Tenancy Act, where no period of limitation is prescribed by the Statute, this Court while Civil Writ Petition No.7074 of 1991 :9 : interpreting words "at any time" has held that it would mean reasonable time. As per the Division Bench even though the words used in the Section are "at any time", these would mean reasonable time. The relevant observations may need a notice and are as under:-
"It is true that there is no limitation fixed for filing a revision petition in a case of this kind and the words used in the statute are that the Financial Commissioner can at any time call for the record of a case pending before or disposed of by any revenue authority or revenue court subordinate to him. Even though the words used in the section are `at any time' they have already been interpreted to mean `reasonable time'. The delay of two years in the instant case was not considered to be reasonable by the learned Financial Commissioner. This was a matter purely within his discretion and we are not inclined to interfere with his discretion in this respect in the circumstances of this case and in a petition under Article 226 of the Constitution."
In this regard only, the counsel has referred to Ibrahimpatnam Taluk Vyavasaya Collie SanghamVersus K.Suresh Reddy and others, 2004(1) HRR 635. Reference is also made to a Full Bench Decision of Madhya Pradesh High Court in the case of Ranveer Singh (deceased by L.Rs.) & Anr. Vs. State of Madhya Pradesh, AIR 2011 MP 27, where the court has held that merely because the legislature has not fixed an upper limit for Civil Writ Petition No.7074 of 1991 : 10 : exercise of suo motu powers, it will not confer unfettered right on the revisional authority to exercise the suo motu revisional power at any moment of time according to his whims. It is also held that even if no period of limitation is being prescribed, the statutory authority must exercise its jurisdiction within a reasonable period. What would be reasonable period should be judged from the angle that what is the nature of statute itself', rights and liabilities whereunder and other relevant factors.
In fact, some of these judgments have been considered by this Court while deciding CWP No.1853 of 1991 titled Ram Pal and another Vs. Financial Commissioner, decided on 7.7.2011.
While considering the words "at any time" the Court has observed as under:-
"There is limitation provided for filing an appeal before the authorities and revision before the Commissioner. However, there is no time limitation laid down in Section 18 (6) of the Act. This issue regarding meaning of 'any time' by now has been considered in large number of cases, to which the counsel for the petitioner has invited my attention. Counsel has relied upon two judgments of the Hon'ble Supreme Court in the cases of State of Gurjarat versus Patel Raghav Natha and others AIR 1969 Supreme Court 1297 (1) and Loku Ram versus State of Haryana 2000 (1) RCR (Civil) 141. In Raghav Natha's case (supra), the Hon'ble Supreme Court was dealing with the provisions of Bombay Land Revenue Civil Writ Petition No.7074 of 1991 : 11 : Court. Under Section 211 of the Bombay Land Revenue court, no period of limitation is prescribed but still it was held that power of Commissioner to revise must be exercised within a reasonable time, which must be determined on the facts of the case and the nature of the order, which is being revised.
As already noticed, in Loku Ram's case (supra), the Hon'ble Supreme Court has directly dealt with Section 18(6) of the Act and has observed that the power has to be exercised within a reasonable time. Seven years period was held not reasonable when the order did not disclose or indicate any reason to hold this period to be reasonable on the facts of this case. In Ibrahimpatnam's case (supra), the Court has held that the power has to be exercised within a reasonable period depending upon facts and circumstances of each case. It is further held that dictionary meaning of words 'at any time' would lead to anomalous result. The Hon'ble Court has also noticed that exercise of powers even after decades would lead to anomalous position and to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. It is observed that the orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. It is, accordingly, held that exercise of suo motu power 'at any time' only means that no specific period such as days, months or years are not prescribed reckoning from a particular date. That, however, would not mean that 'at any time' should be unguided and arbitrary. It is, accordingly, held that the word 'at any time' must be understood as within a reasonable time Civil Writ Petition No.7074 of 1991 : 12 : depending on the facts and circumstances of each case in the absence of prescribed period of limitation. While agreeing with the view expressed by a Single Bench and Division Bench of the High Court, the Hon'ble Supreme Court in the case of Ibrahimpatnam (supra) has observed as under:-
"It is also necessary to note that suo motu power was sought to be exercised by the Joint Collector after 13-15 years, Section 50-B was amended in the year 1979 by adding sub-Section (4), but no action was taken to invalidate the certificates in exercise of suo motu power till 1989. There is no convincing explanation as to why the authorities waited for such a long time. It appears that sub-Section (4) was added so as to take action where alienations or transfers were made to defeat the provisions of the Land Ceiling Act. The Land Ceiling Act having come into force on 1-1-1975, the authorities should have made inquiries and efforts so as to exercise suo motu power within reasonable time. The action of the Joint Collector in exercising suo motu power after several years and not within reasonable period and passing orders cancelling validation certificates given by Tehsildar, as rightly held by the High Court, could not be sustained."
Recently a Single Bench of this Court in Fauja Singh versus State of Punjab and others 2009 (3) RCR (Civil) 227 has considered this aspect in the light of provisions of Section 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Civil Writ Petition No.7074 of 1991 : 13 : Act, 1948, no limitation is prescribed under Section 42 to present an application. The Court has taken a view that the aggrieved person can file an application within a reasonable time and not with inordinate delay. In this regard, reliance has been placed on Gram Panchayat, Kakran Versus Addl. Director of Consolidation 1997 (4) RCR (Civil) 498 (SC). It is also observed that even though no period of limitation is prescribed under Section 42 for presenting the application but the party aggrieved is required to move the appropriate authority for relief within a reasonable time and that the application made after inordinate delay is not to be entertained.
Another Single Judge of this Court in CWP No. 4968 of 1986 titled as Banwari Lal (deceased) through LRs versus The State of Haryana and others decided on 22.03.2011 has taken a similar view by observing that even if no period of limitation is provided in a statute for taking any action still it has to be reasonable and not that such power could be exercised at any time.
The view that would emerge from the judgments noticed above is that these powers given under such provisions where even no limitation is prescribed have to be exercised within a reasonable time.
The counsel for the petitioners has made reference to following observations made by Division Bench of this Court in Diwan Hira Lal Kapoor's case (supra) in support of his contention that the respondents could not have invoked the revisional jurisdiction once they had not bothered to file appeal or revision before the Collector. The relevant observations are as under:- Civil Writ Petition No.7074 of 1991 : 14 :
"After hearing the learned counsel for the petitioners and after perusing the record, we find no ground to interfere with the order dated 22.12.1998, Annexure P-8 passed by the Financial Commissioner, Haryana. While dismissing th petition, the learned Financial Commissioner observed that the petitioners did not bother to file any appeal/revision before the Collector/Commissioner against the order dated 16.5.1985 etc. and without exhausting that channel they filed the present revision petition and that too in 1993. Furthermore, the Financial Commissioner while dismissing the revision petition also placed reliance on the judgment of Hon'ble Supreme Court in the case of Loku Ram v.State of Haryana and others, reported as 1999 (1) PLJ 1. Relying on the said judgment of the Hon'ble Supreme Court, the Financial Commissioner held that he was not inclined to exercise the suo motu powers as provided under Section 18(6) of the Act in the present case, considering that the revision petition has been filed after several years and further considering that the petitioners have not availed the remedies of filing appeal/revision before the Collector/ Commissioner. In Loku Ram's case (supra) it was held by the Hon'ble Supreme Court as under:-
"4. Section 18(6) of the Act reads thus:
"Section 18(6) Notwithstanding anything contained in the foregoing sub-sections, the Financial Commissioner may suo motu at any time call for the record of any Civil Writ Petition No.7074 of 1991 : 15 : proceedings or order of any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings or order, and may pass such order in relation thereto as he may deem it."
5. No doubt, the section uses the expression 'at any time' but it cannot be indefinite. The power has to be exercised within a reasonable time. While construing the expression 'at any time', this Court in State of Gujarat v. P. Raghav, AIR S.C. 1297 has stated the law thus:
"11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised."
6. Section 18(2) of the Act prescribes a period of 15 days for filing an appeal and Section 18 (4) prescribes a period of 30 days for filing a revision before the Commissioner. When the two sub-sections prescribe a very short period of 15 and 30 days respectively, it will be unreasonable to hold that the Financial Commissioner has unlimited power to entertain a revision after a lapse of several years.
7. The test prescribed by this Court in Raghav's case has been ignored by the Financial Commissioner in Civil Writ Petition No.7074 of 1991 : 16 : the present case. His order does not disclose any reason to hold that a period of nearly seven years is reasonable on the facts of the case. Nor has the High Court gone into the question and decided whether the power has been exercised on the facts and circumstances within a reasonable period. Hence we allow the appeal and set aside the order of the High Court. The order of the Financial Commissioner is also set aside. The order of the Collector dated 18.06.82 is restored. No costs." This proposition as canvassed by the counsel does not appear clearly from the observations noted above.
In Ranveen Singh's case (supra), while commenting on similar provision relating to suo motu revisional power available under Section 50 of MP Land Revenue Code, the Court has held that while determining what should be a reasonable period for exercising suo motu revisional power, one should be guided by aim and objects of the chapter only and should not borrow, the different types of periods of limitations prescribed in other chapters. Limitation prescribed in different chapter of 30 years, 10 years, 5 years etc. was not made applicable for exercise of Suo Motu revisional powers. Rather the provisions of the same chapter were noticed to observe that maximum period of limitation in the chapter was 90 days. Noticing this, the Court has held 90 days being a maximum period for filing revision but since this restriction was not for exercising suo motu power, the authority should exercise this power within a period of 180 days from the date of knowledge of illegality/impropriety or irregularity to serve the aim and object for which this provision is Civil Writ Petition No.7074 of 1991 : 17 : enacted.
On this basis a view is possible that for limitation purposes the period of limitation provided in Section 18 of the Act may have to be kept in view. Of course the Full Bench has also held that non fixing of upper limit for exercising suo motu powers, will not confer unfettered rights to the revisional authority to exercise this power at any moment of time accordingly to his whims. It is observed that doing that would amount to give a sword having no scabbard. After having an order litigant must be permitted to live in peace with understanding that since the order passed in his favour has not been challenged for a considerable long period now it cannot be challenged.
From the catena of decisions referred to herein above, it can be noticed that law is fairly well settled that the suo-motu powers can not be exercised by the revisional authority after the expiry of several years. It has been held in almost every decision that such powers should be exercised within a reasonable period and in most of decision, it is held that it should be exercised within a few months. The view, thus, is clear that suo-motu powers can not be left at the whims and sweet will of the revisional authority to exercise whenever and wherever it wanted to do so.
There is no plea raised before me on behalf of the respondents to explain the delay on the part of revisional authority to invoke its suo-motu powers. There may be instances where the party may approach the Court on some valid grounds to condone the delay either by pleading fraud committed by officials or non-official or on any such or other valid grounds in this regard. Such a case may be Civil Writ Petition No.7074 of 1991 : 18 : one where suo-motu powers could be exercised, though the approach made is a delayed one. There may be some cases where delay is well explained and exercise of suo-motu powers in such like cases may also be upheld. This being not the situation in the present case, the delay in invoking the suo-motu powers would be enough to call for interference in the impugned order.
For the reasons afore-mentioned, all the writ petitions are allowed and the orders passed by the Financial Commissioners are set-aside. Parties are left to bear their own costs.
July 11, 2011 (RANJIT SINGH) ramesh JUDGE