Punjab-Haryana High Court
Date Of Decision: 16.9.2013 vs State Of Haryana And Others on 16 September, 2013
Bench: Jasbir Singh, G.S.Sandhawalia
Bhardwaj Deepak Kumar
2013.10.01 13:25
In the High Court of Punjab and Haryana, at Chandigarh
Letters Patent Appeal No. 242 of 2013 (O&M)
Date of Decision: 16.9.2013
Ram Mehar and Others
... Appellants
Versus
State of Haryana and Others
... Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh, Judge.
Hon'ble Mr. Justice G.S.Sandhawalia, Judge. Present: Mrs. Anita Sharma, Advocate for the appellants.
Mr. D.Khanna, Additional Advocate General, Haryana for the respondents.
Jasbir Singh, Judge (Oral) Appellant No.1 was a big land owner. As per provision of the Punjab Security of Land Tenures Act, 1953 (in short "1953 Act"), assessment was made and land to the extent of 1 standard acre & 4 units (14 kanals 4 marlas) was declared surplus. Admittedly, that order has become final. The State authorities failed to take possession of the land so declared surplus. However, on papers, it stood allotted in favour of some persons belonging to Gujjar community.
To save the surplus area, so declared, appellant No.1 entered into a family settlement with his sons i.e. appellants No.2 and 3 on 2.2.1970. As per that settlement, 2/3rd share in the land, owned by the big land owner, was transferred in the names of his two sons i.e. Letters Patent Appeal No. 242 of 2013 (O&M) 2 appellants No.2 & 3. Mutation regarding family settlement was entered on 31.7.1970.
The State of Haryana enacted the Haryana Ceiling of Land Holdings Act, 1972 (in short "1972 Act"), which became enforceable w.e.f. 23.12.1972. To assess surplus land in the hands of a big land owners, cut off date was fixed as 24.1.1971.
As per the provisions of Section 12 of the 1972 Act, the land declared surplus under the 1953 Act shall automatically vest in the State Government. The said provision reads as under:-
"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:
Provided that where any land within the permissible area of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee, only the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it.
(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 Letters Patent Appeal No. 242 of 2013 (O&M) 3 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 shall be deemed to have vested in the State Government with effect from the date of such declaration.(Vide Act No. 40 of 1976).
(4) For the purpose of determining the surplus area under this Act, any judgment, decree or order of a court or other authority, obtained after the appointed day and having the effect of diminishing the surplus area shall be ignored."
Reading thereof makes it very clear that surplus area, declared under the 1953 Act, in the hands of big land owners shall be deemed to have been acquired by the State Government for a public purpose from the date on which it was declared as such. Sub Section 3 of Section 12 of the 1972 Act provides that area declared surplus under the 1953 Act, which has not so far vested in the State Government, shall be deemed to have vested with the State Government with effect from the appointed day. The appellants, in the land declared as surplus under the 1953 Act, have continued in possession on account of lethargic attitude of the authority in not getting possession. In a very clandestine manner, the appellants filed an application seeking exemption of the land, declared surplus, from utilization. Without any authority whatsoever, that application was allowed on 30.1.1995 (Annexure P1) and the area which was declared surplus under the 1953 Act was exempted from surplus proceedings. The State Government came to know about such like Letters Patent Appeal No. 242 of 2013 (O&M) 4 many cases in the year 2003, matter of fraudulent exemption of lands, from the surplus pool was considered in a State Level Conference. Thereafter, during scrutiny, this case was taken up and application was filed to annul that order before the Financial Commissioner in the year 2005. A Bench of Financial Commissioners, Haryana, vide order dated 9.8.2011, entertained that application and set aside the order passed by the authority below on 30.1.1995. Relevant portion of that order reads thus:
"We have perused the record of the case, considered the arguments and contentions raised by both the parties. The operative part of the impugned order reveals that the land has been released on the ground that it was in the possession of the land owner. Mere allotment of the land does not amount to utilization. Allotment is only initial stage in the process. The SCO(C)-cum-Prescribed Authority after giving a benefit of primary Unit and separate unit for two major sons as on 24.01.1971, released the land from surplus pool, whereas section 8(1)(a) of Haryana Ceiling on Land Holdings Act, 1972 clear protects surplus land from any transfer after 30.07.1958. Moreover, as per the judgment in Bhagwanti Vs. State PLJ 1994 page 245. The land declared surplus under the old Act vests in the State w.e.f. the appointment day irrespective of the fact that the same regained in the possession or the previous land owner. So the impugned order dated 30.01.1995 is against the provision of law. The averments of the Counsel for the respondent about delay in filing the revision is rebutted by the A.D.A. For the State on the ground that as per Section 18(6) of Act, 1972 Financial Commissioner may suo moto, at any call for the record of any proceeding as refers any authority subordinate to him for the Letters Patent Appeal No. 242 of 2013 (O&M) 5 purpose of satisfying himself to the legality or propriety of such proceedings or order, and may pass such order in relation thereto as he may deem fit. In this case also an illegal order has been passed by the Prescribed Authority without jurisdiction and against the law settled by the Hon'ble Supreme Court. He further stated that fraud has been committed by the land owners with the help of authorities as the exemption application has been decided within 28 days, which is highly unlikely. He further relied upon Rampartap Vs. State 2002 (2) PLJ 302 and stated that where order is fraudulently passed question of limitation cannot hamper the authorities from interfering with such order. Since respondents had filed the application under section 8 of the new Act, 1972 only after 35 years from passing the surplus order, all proceedings under the old Act, 1953 stood completed and nothing was pending on the appointed day of new Act 1972. The illegality of the order came to the notice of the authority after a state level conference in which wrongly and illegally decided cases were scrutinized and this case was sent by the Commissioner Rohtak on 29.05.2003 and the revision petition was filed in year 2005. So the delay if any stands sufficiently explained.
In view of above discussion, the revision petition is allowed and the impugned order dated 30.01.1995 is hereby set aside."
Hence, the appellants approached this Court by filing Civil Writ Petition No. 21017 of 2011. The learned Single Judge dismissed their writ petition vide order dated 9.8.2012. For delay in moving the application by the State Authorities, it was observed as under:-
"On one hand, the petitioners are accusing the State for having approached the Financial Commissioner Letters Patent Appeal No. 242 of 2013 (O&M) 6 with a delay of about 12 years and on the other side, they have no explanation to offer for approaching the Prescribed Authority with a delay of 35 years. The petitioners who themselves succeeded in getting this order with inordinate delay, can not blame the State for the delay, if any, which is much less as compared to the delay on their part. Once the provisions of Section 12(3) of the Haryana Act have to operate, the issue of its possession or delay, if any, would not be material, especially so when the Prescribed Authority obviously is found to have acted beyond its authority to release this land from the surplus pool without caring to take note of the provisions of Section 12(3) of the Haryana Act."
It was specifically observed that the appellants, who had moved an application for exemption of their land from the surplus pool after 35 years, they cannot object to the filing of an application by the State Government after a period of about 12 years. It was further observed that the order was passed by the authorities on 30.1.1995 without looking into the provisions of Section 12(3) of the 1972 Act. By making reference to various judgments, it was rightly held that on enforcement of the 1972 Act, land declared surplus under the 1953 Act, automatically vested in the State Government. A case cannot be reopened under the 1972 Act to look into validity of land declared surplus under the 1953 Act.
Today, at the time of arguments, counsel for the appellants has failed to refer to any provision under which the land declared surplus in the year 1953 can be saved from utilization. Reference was made to Letters Patent Appeal No. 242 of 2013 (O&M) 7 Section 4 of the 1972 Act. We have gone through the said provision. It has no applicability so far as issue involved in this case is concerned.
Dismissed.
(Jasbir Singh) Judge (G.S.Sandhawalia) Judge September 16, 2013 "DK"