Punjab-Haryana High Court
The Financial Commissioner, Haryana ... vs Shri Chand And Ors. on 6 September, 2001
JUDGMENT G.S. Singhvi, J.
1. This appeal is directed against order dated 26.4.1991 vide which the learned Single Judge allowed C.W.P. No. 355 of 1980 filed by late Shri Chand and quashed orders dated 14.6.1960, 17.10.1963, 5.7.1978 and 16.11.1979 passed by the Collector (Agrarian), Kaithal, the Sub Divisional Officer-cum-Prescribed Authority, Kaithal and the Financial Commissioner, Haryana respectively with liberty to the authorities to re-determine the surplus area of the writ petitioner.
2. The facts necessary for deciding the appeal are that on the date of commencement of the Punjab Security of Land Tenures Act, 1953 (for short, the 1953 Act), i.e. 15.4.1953, late Shri Chand (hereinafter described as the respondent) now represented by his legal representatives namely, Om Parkash son of Ramji Lal, resident of Village and Post Office, Nauch, Tehsil Guhla, District Kaithal and Satpal son of Shri Telu Ram, resident of village and Post Office, Bhagta, Tehsil Guhla, District Kaithal had 46.19 Acres of land in Village Atela, District Kurukshetra. As a result of consolidation undertaken in the year 1957, his total holding was increased to 68.24 Standard acres. By an order dated 14.6.1960, the Collector decided the surplus area case of the respondent under the 1953 Act and declared 24.55 Acres land as surplus excluding 13.69 Acres which had been leased out to the tenants under the Eat Punjab Utilization of Lands Act, 1949 (for short, the 1949 Act) for a period of 20 yeaRs. The appeal filed by the respondent was disposed of by the Commissioner with the direction that he be allowed to select his permissible area. Accordingly, the Collector permitted the respondent to select his permissible area and vide order dated 17.6.1962, he declared the khasra numbers indicated by the respondent as surplus. Thereafter, the Special Collector pointed out that the land belonging to the respondent which had been given on lease by the Collector under the 1949 Act should also be declared surplus and after taking note of this, the Collector passed order dated 17.10.1963 vide which he declared the surplus area of the respondent to be 38.24 Acres. He also directed that form 'F' be issued to the land owner for his information. The respondent did not challenge orders dated 14.6.1960, 17.6.1962 and 17.10.1963 by filing appeal etc. before the higher departmental authorities, but after almost 30 years from the date of passing of last order, he filed on application dated 15.7.1976 before the Collector for grant of another opportunity to select the permissible area out of the land which had been leased out to the tenants under the 1949 Act and had reverted to the State in the year 1973. Simultaneously, he along with his son Ram Sarup and minor grand sons - Jai Bhagwan and Jagrup and wife of Shri Ram Sarup, namely, Smt. Rajo filed C.W.P, No. 4046 of 1976 with the following prayer:
"(a) an appropriate writ, direction or order be issued declaring the Haryana Ceiling on Land Holdings Act, 1972 as amended up to date by the Haryana Act 17 of 1976 and Ordinance No. 7 of 1976 to be invalid and unenforceable:
(b) an appropriate writ, direction or order be issued declaring Rule 5 of the 1973 Rules as amended upto date and the new form of declaration to be ultra vires the provisions of the Act;
(c) a writ in the nature of a writ of mandamus be issued directing the respondents not to declare any land belonging to the petitioner as surplus and not to take possession of the same, or of any land declared surplus, or tenants permissible area under the Punjab Law and the Pepsu Law, which according to Section 12 of the Principal Act, is deemed to vest in the State;
(d) an appropriate writ, direction or order be issued directing the respondents not to compel the petitioner to file declarations under Section 9 of the act read with Rule 6 and to prepare any statement of permissible surplus area of the petitioners under Section 11 of the Act pending the decision of this writ petition;
(e) a writ in the nature of certiorari be issued calling for the records of respondent No. 1 relating to the directions Annexure P.2 and after a perusal of the same the impugned directions be quashed;
(f) any other suitable writ, direction or order that this Court may deem fit in the circumstances of the case be issued;
((g) an ad interim order be issued staying the operations of the impugned instructions Annexure P.2 till the decision of the writ petition; and
(h) costs of the writ petition be allowed to the petitioneRs. "
3. While issuing notice of motion on 19.7.1976, this Court directed the respondents in the writ petition to maintain status quo qua 13.69 Acres which had been treated as surplus area of the respondent. The writ petition was finally disposed of on 17.3.1977 in the following terms:
"This C.W.P. is dismissed subject to the following directions:
1. Petitioners who have not so far filed their declarations are allowed one month's time from today to file their declarations.
2. Petitioners who have filed their declarations may pursue the remedies available to them under the act.
3. All declarations will be dealt with by the authorities constituted under the Act in accordance with law in the light of the judgment delivered in C.W.P. No. 3530 of 1976.
4. Petitioners apprehending to the dispossession under Section 22 of the Act but claiming to be entitled to the protection of Section 8 are allowed fifteen days time from today to file applications before the Collector seeking protection. Meanwhile their possession will not be disturbed.
5. Section 20-A will not be enforced so as to prevent Advocates from appearing before any authority or officer functioning under the Act."
4. After the decision of the writ petition, Shri Chand submitted an application dated 18.1.1978 to the Sub Divisional Officer [exercising the powers of the Collector (Agrarian), Kaithal,] complaining that his surplus area case had been wrongly decided. The Sub Divisional Officer forwarded his application to the Commissioner, but the latter refused to entertain the same by making the following observations:
"The surplus case of this land owner was decided on 14.6.1960 against which an appeal was filed before the Commissioner and on remand by the Commissioner, the Collector had again decided on 17.10.62 and accordingly the land owner had made selection from the surplus area. At that time, the land owner did not raise any objection regarding 46 S.A. On the expiry of the lease, the Collector, agrarian, Kaithal vide his order dated 17.10.1963 declared 17.69 S.A. also as surplus area with the land owner and accordingly form 'F' was prepared against which the land owner did not prefer any appeal. After a lapse of 15 years, no reason has been found to review this order and also no cause has been shown in the petition. When the surplus case has been decided taking the total holding of the land owner as 68.24 S.A. there is no reason to review the order taking the total holding of the land owner as 46 S.A. when appeal/revision has bent provided. In accordance with the provisions of Section 12(3) of the Haryana Ceilings of Land Holdings Act, the surplus land has already vested in the State and there is no provision under this Act to review the order and in the above circumstances, under what provisions of law the order of surplus can be reviewed in this case."
5. In the light of the observations made by the Commissioner, the Prescribed Authority, Kaithal passed order dated 5.7.1978 rejecting the application filed by the respondent. Revision filed by him was dismissed by the Financial Commissioner, Haryana vide order dated 16.11.1979. The relevant extracts of the revisional order are reproduced below:
"I would not go into the merits of the petitioner-land owners' case as contained in his communication dated 5.7.1976 addressed to the Collector wherein pointing out that the land which had earlier been taken on lease under the aforesaid 1949 Act had been given back to him in 1973 he had requested that he should be permitted to select his permissible area afresh because 1 find from record that the High Court has issued stay orders concerning it.
The petitioner-land owner's other grievance as contained in his communication dated 18.1.1978 is that he had not been given the benefit of an increase in the value of his land after consolidation. But the pertinent facts in this connection are that the surplus area case of the petitioner was decided as far back as on 14.6.60 and on appeal was remanded for re-decision to the Collector who passed a fresh order on 17.6.63 declaring only such khasra numbers as surplus as had been specifically indicated to him by the petitioner-land owner. If therefore the latter was aggrieved by the Collector's order it was for him to prefer an appeal against it. But apparently the petitioner-land owner did not take any step whatsoever towards having the aforesaid order dated 17.10.63 reversed or modified. He cannot therefore after a lapse of more than fifteen years suddenly seek a review of the aforesaid order dated 17.10.63, Further, the position as at the commencement of the 1972 Act was that the surplus area case of petitioner-land owner already stood finalized and no proceedings for the determination of his surplus area case were pending at the said commencement. Therefore, in accordance with the provisions of Section 12(3) of the said Act, the surplus land in question has already vested with the State Government with effect from the appointed date, namely, 24.1.1971."
In all circumstances, it is clear that revision petition is not merely time-barred and has no merit but is also infructous. It is accordingly dismissed."
6. The respondent challenged orders dated 14.6.1960, 17.10.1963, 5.7.1978 and 16.11.1979 in CWP No. 355 of 1980 by contending that the commissioner had committed a serious illegality by refusing to review orders dated 14.6.1960 and 17,10.1963. He also contended that the benefit of accretion due to consolidation should have been given to him.
7. In the written statement filed on behalf of the appellant, it was averred that the petitioner (respondent herein) cannot challenge orders dated 5.7.1978 and 16.11.1979 because the surplus area declared by the Collector vide order dated 17.10.1963 stood vested in the State Government under Section 12(3) of the Haryana Ceiling on Land Holdings Act, 1972 (for short, 'the 1972 Act') and that order had become final because the petitioner did not challenge the same by filing appeal or revision.
8. The learned Single Judge upheld the plea of the respondent and quashed the orders impugned in the writ petition by making the following observations:
"After hearing the learned counsel for the parties, I am of the view that though technically the respondents' counsel may be right that in 1976 the petitioner had challenged the 1960 order declaring his area surplus, no fresh petition could lie, but for two facts: (1) that the order of the Sub Divisional Officer refusing to review the order of the Collector and the order of the Financial Commissioner came later than the filing of the earlier writ petition and (2) the petitioner being still in possession, I would not hold that the second petition is barred. I am also swayed by the fact that according to the two judgments of the Supreme Court, referred to above, the petitioner's holding had to be seen on 15th April, 1953 and not what he came to hold after consolidation. The declaration of the surplus area on that basis was wholly without jurisdiction. Once it is held that the declaration of surplus area was wholly without jurisdiction, the order would be a nullity and no land would come to vest in the State under Section 12(3) of the 1972 Act."
9. Sh. Jaswant Singh assailed the impugned order by arguing that the learned Single Judge has committed a serious jurisdictional error by entertaining the writ petition ignoring the fact that orders dated 14.6.1960 and 17.10.1963 had become final because late Shri Chand did not challenge the same by filing appeal or revision. He argued that in the garb of challenging orders dated 5.7.1978 and 16.11.1979, the respondent was not entitled to seek invalidation of orders dated 14.6.1960 and 17.10.1963. Learned counsel further argued that the writ petition ought to have been dismissed as barred by res judi-cata because late Shri Chand and his co-sharers did not challenge orders dated 14.6.1960 and 17.10.1963 in CWP No. 4046 of 1976. Sh. P.C.Mehta, Senior counsel appearing for the legal representatives of the writ petitioner-respondent argued that even though late Shri Chand had not challenged orders dated 14.6.1960 and 17.10.1963 by filing appeal and revision and he had not sought quashing of the same in C.W.P. No. 4046 of 1976, he was not debarred from questioning their legality on the ground of violation of the provisions of the 1953 Act and in any case, he was not estopped from seeking enforcement of his rights under the 1972 Act. Sh. Mehta submitted that the order of the learned Single Judge has been implemented in 1991 and, therefore, the appeal should be dismissed on that ground alone.
10. In support of their respective submissions, learned counsel for the parties relied on the following decisions:
(i) Bhagwan Doss v. State of Punjab and Ors. , 1966 P.L.J. 110,
(ii) Har Chand v. Collector Agrarian, Bhatinda, 1979 PLJ 70;
(iii) Rajinder Singh v. Financial Commissioner, Punjab, 1980 P.L.J.154;
(iv) Ajmer Singh v. State of Haryana, 1990 P.L.J. 116;
(v) Sampuran Singh v. State of Haryana, (1994-2)107 P.L.R. 420 (S.C.);
(vi) Smt. Bhagwanti Devi and Anr. v. State of Haryana, (1994-2)107 P.L.R. 420 (S.C.); and
(v) Bam Sarup v. S.N.Maira, AIR 1999 SC 941.
11. We have given serious thought to the respective arguments and carefully perused the record. In our opinion, the appellants deserve to succeed on the short ground that the learned Single Judge did not have the jurisdiction to entertain the writ petition and quash the orders impugned in the writ petition ignoring the fact that orders dated 14.6.1960 and 17.10.1963 had become final. There is no dispute between the parties that writ petitioner-late Shri Chand did not challenge orders dated 14.6.1960 and 17.10.1963 by filing appeal or revision. It is also not in dispute that those orders were not made subject-matter of challenge in C.W.P. No. 4046 of 1976 filed by late Shri Chand and his co-shares. Therefore, those orders ill be deemed to have become final and it was not open for the writ petitioner to challenge the same in CWP No. 355 of 1980 in the garb of challenging orders dated 5.7.1978 and 16.11.1979 passed on the application dated 18.1.1978 submitted by late Shri Chand to the Sub Divisional Officer after the decision of CWP No. 4046 of 1976. In our considered view, that application was wholly misconceived and was liable to be dismissed being an unwarranted attempt by late Shri Chand to get reopened the surplus area orders which had become final and while examining the legality of orders dated 5.7.1978 and 16.11.1979, the learned Single Judge cold not have quashed orders dated 14.6.1960 and 17.10.1963.
12. We are further of the view that by having refrained from challenging orders dated 14.6.1960 arid 17.10.1963 in CWP No. 4064 of 1976, the writ petitioner will be deemed to have waived/given up his right to challenge the same in subsequent proceedings and the second writ petition sought to have been dismissed as barred by res judi-cata.
13. in so far as orders dated 5.7.1978 and 16.11.1979 are concerned, we are of the view that the reasons assigned by the Commissioner and the Financial commissioner for declining to entertain application dated 18.1.1978 did not suffer from any legal infirmity which could justify exercise of certiorari jurisdiction by this Court. In our opinion, the Commissioner had correctly observed that after a lapse of 15 years there was no reason to review order dated 17.10.1963 passed by the Collector, Agrarian, Kaithal and in that view of the matter, the surplus land had vested in the State Government in terms of Section 12(3} of the 1972 Act. The learned Single Judge has not assigned any reason for upsetting the concurrent finding recorded by the Commissioner, Ambala Division and the Financial Commissioner. Therefore, the order under challenge cannot be sustained.
14. In view of the above conclusion, we do not consider it necessary to deal with the decisions relied upon by the learned counsel for the parties.
15. In the result, the appeal is allowed. The order of the learned Single Judge is set aside and the writ petition filed by late Sh. Shri Chand is dismissed. The order, if any, passed by the concerned authorities during the pendency of the appeal shall be treated as ineffective and inoperative and the concerned authorities shall be entitled to restore the possession obtaining on the date of filing of CWP No. 355 of 1980.