Punjab-Haryana High Court
Bal Krishan (Through Lrs) And Others vs State Of Haryana And Others on 3 September, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No.15250 of 1992 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
CWP No.15250 of 1992
Date of Decision : 3.9.2013
Bal Krishan (through LRs) and others .....Petitioners
Vs.
State of Haryana and others ....Respondents
...
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK ...
Present : Mr.D.S. Bali, Sr. Advocate with Mr. Yadvinder Singh, Advocate for the petitioners.
Mr. Rajiv Prashad, DAG, Haryana for the State.
Mr. Adarsh Jain, Advocate for respondents no.5 and 6.
...
RAMESHWAR SINGH MALIK, J Feeling aggrieved against the order dated 3.7.1992 and mutation Annexure P-8 dated 5.11.1992, petitioners have approached this court by way of present writ petition under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari, for quashing the impugned order and mutation.
Facts first.
One Kewal Ram s/o Tulsi Ram was a big landowner having about 69 Std. Acres of land. Proceedings under the Punjab Security of Land Tenures Act, 1953 (for short `the Land Tenures Act') were initiated. Vide order dated 11.1.1961 (Annexure P-1), an area of 39 Std. Acres and 8.1/4th units was Sahni Greesh 2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 2 declared surplus in the hands of Kewal Ram. Kewal Ram was having the land in more than one villages as recorded in the order dated 11.1.1961 (Annexure P-1). Out of the above said surplus area, measuring 39 Std. Acres, (8.1/4 units), the area measuring 10 Std. Acres (2.1/2 units) was situated in village Pansara, which is equivalent to 105 kanals and the subject matter of present litigation.
Sh.Kewal Ram died on 22.7.1964. His estate was inherited by his sons namely; Ram Sarup, Ram Lal, Raja Ram, Praj Raj and Tara Chand. Claiming themselves to be small land owners, above said sons of late Sh. Kewal Ram moved for determination of their rights as small land owners. Their application was considered and accepted by the Special Collector, vide order dated 31.8.1964 (Annexure P-2). The above said sons of late Sh. Kewal Ram sought the ejectment of tenants namely; Antu and Mangal (private respondents herein) sons of Roda and they were ordered to be ejected vide order dated 5.12.1980, after having been proceeded ex-parte. They moved an application on 11.12.1980 seeking setting aside the eviction order, but their application was dismissed vide order dated 6.3.1981.
Aggrieved, they filed two separate appeals before the Collector, Ambala, and the same were dismissed vide order dated 18.10.1982 (Annexure P-3). Thereafter, above said Mangal and Antu filed their application for granting proprietary rights (`P. Rights' for short). The Collector (Agrarian)- cum-Prescribed Authority, Jagadhri, vide his order dated 19.1.1987 granted P. Rights to the above said tenants, without issuing any notice to the petitioners and also ignoring the above said orders dated 31.8.1964 (Annexure P-2). Annexure P-4 was passed proceeding on an assumption that pursuant to the order dated 11.1.1961 (Annexure P-1), declaring the surplus area in the hands Sahni Greesh 2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 3 of original big land owner late Sh. Kewal Ram, the surplus area had been utilised. However, on the strength of the order dated 19.1.1987 (Annexure P-4), when above said Mangal and Antu threatened the possession of the petitioners, they filed application for setting aside the above said order dated 19.1.1987. Notice was issued to Mangal and Antu etc. Both the parties were heard and the Collector (Agrarian)-cum-Prescribed Authority, Jagadhri, came to the conclusion that the order dated 19.1.1987 (Annexure P-4) was liable to be reviewed in the interest of natural justice.
After recording his conclusion, as aforesaid, vide order dated 30.3.1987 (Annexure P-5), Collector (Agrarian) sought the permission of the Commissioner, Ambala, for reviewing the above said order dated 19.1.1987. The permission sought by the Collector (Agrarian)-cum-Prescribed Authority, Jagadhri, vide order dated 30.3.1987 (Annexure P-5) was granted by the Commissioner, Ambala, vide his order dated 6.6.1992 (Annexure P-6). Consequently, a report was sought from Kanungo, who submitted the same on 2.7.1992 recording therein that the area declared surplus in the hands of big land owner late Sh. Kewal Ram, vide order dated 11.1.1961 (Annexure P-1), would vest in the State Government as per Section 12(3) of the Haryana Ceiling on Land Holdings Act, 1972 (for short `the Ceiling Act'). The S.D.O. (Civil)-cum-Prescribed Authority, Jagadhri, vide his endorsement dated 3.7.1992 approved the proposal of Kanungo, thereby ordering for vesting the area in the State Government. The report of the Kanungo dated 2.7.1992 as well as the impugned order dated 3.7.1992 by the Prescribed Authority, Jagadhri, is Annexure P-7. The impugned mutation Annexure P-8 was sanctioned on the basis of above said order Annexure P-7. Hence, this writ petition.
Sahni Greesh2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 4
Notice of motion was issued and dispossession of the petitioners was stayed vide order dated 9.12.1992 passed by a Division Bench of this court. Respondents no.1 to 4 filed their joint written statement, whereas a separate written statement was filed by the private respondents. The writ petition was admitted for regular hearing and the stay was ordered to continue, vide order dated 15.3.1994 passed by a Division Bench of this court. That is how, this court is seized of the matter.
Learned Senior counsel for the petitioners submits that the order dated 31.8.1964 (Annexure P-2), became final in favour of the petitioners, minus the area measuring 4 Bighas and 4 Biswas, which was initially allotted in favour of the tenants, whereupon, Mohan Lal s/o Kanshi Ram was settled. Late Sh. Kewal Ram, although contested the case qua this area measuring 4 Bighas and 4 Biswas, but the writ petition bearing CWP No.1322 of 1969 filed by Mohan Lal was allowed by this court, vide order dated 15.4.1980 and LPA No.511 of 1980 filed by the petitioner was dismissed by a Division Bench of this court, vide order dated 23.1.1985, which became final between the parties.
Learned Senior counsel for the petitioners would contend that minus the land measuring 4 Bighas and 4 Biswas, which was subject matter of CWP No.1322 of 1969 filed by Mohan Lal, which was decided in his favour, petitioners were entitled to the remaining land measuring 105 kanals, particulars of which were given even in the impugned order Annexure P-7. He further submits that the orders Annexure P-4 also became final. Private respondents Antu and Mangal neither challenged the order Annexure P-5 nor they challenged the order Annexure P-6, which had also become final against them. He next contended that the impugned order was, in fact, was no order in the eyes of law, being totally non speaking and cryptic order and that too, Sahni Greesh 2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 5 without affording any opportunity of being heard to the petitioners. Finally, he prays for setting aside the impugned order by allowing the present writ petition. In support of his contention, he relies upon two judgements of this court in Naresh Saran and others Vs. Financial Commissioner, Haryana and others AIR 1991, Punjab and Haryana 15 and Som Nath Vs. State of Haryana and others, 1993 PLJ 89.
Per contra, learned counsel for the private respondents submits that the impugned order was factually correct and legally justified. The case of the petitioner was totally misconceived and the writ petition was liable to be dismissed.
Learned counsel for the State also supports the arguments raised by learned counsel for the private respondents and prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that in the given fact situation of the present case, the instant writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.
Consequent to the order dated 11.1.1961 (Annexure P-1) declaring 39 Std. Acres (8.1/4 units) as surplus and the subsequent death of the big land owner late Sh. Kewal Ram on 22.7.1964, order dated 31.8.1964 came to be passed, vide Annexure P-2 by the Special Collector. This order dated 31.8.1964 (Annexure P-2) was passed by the competent authority on the application moved by the petitioners, who were the sons of original big land owner late Sh. Kewal Ram. Since the petitioners inherited the estate of their Sahni Greesh 2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 6 father late Sh. Kewal Ram, they were held entitled to retain the unutilised area in view of the provisions of Sections 10-A and 10-B of the Land Tenures Act, vide order dated 31.8.1964 (Annexure P-2). It is important to note here that this order dated 31.8.1964 was never challenged by anybody, including the State and the private respondents and it became final. Since there is not even a passing reference of this order Annexure P-2 in the impugned order Annexure P-7, the same is illegal on the face of it and cannot be sustained.
The order dated 18.10.1982 passed by the Collector, Ambala, dismissing the appeal of the private respondents, against the ejectment orders passed at the instance of the petitioners, also became final between the parties, because the private respondents did not challenge it any further. Similarly, when the order dated 19.1.1987 (Annexure P-4) was sought to be set aside by the petitioners, their plea was accepted by the Collector (Agrarian)-cum- Prescribed Authority, Jagadhri, vide its order dated 30.3.1987 (Annexure P-5). The relevant observations made in operative para 4 of the order dated 30.3.1987 (Annexure P-5), read as under :-
"4. After hearing both the learned counsel for the parties, going through the documents on the file, I am fully convince that the learned counsel for Bal Krishan etc. has proved his case by citing various rulings of Hon'ble Punjab and Haryana High Court. The learned counsel for Mangala etc. has fallen to rebut the same and has not given a single ruling or authority in support of his contention. I agree with the cogent arguments of the learned counsel for Bal Krishan etc. that even the procedure for allotment of land on committee, has not been followed and N.T. Agririan has tried to conceal Sahni Greesh 2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 7 facts in collusion with Mangala etc. I think it is a fit case to be reviewed in the interest of natural justice. I, therefore, send this case to the learned Commissioner, Ambala Division, Ambala for grant of necessary permission to review the order dated 19.1.1987 in case Manglu etc. versus State of Haryana etc."
The sanction sought vide above said order was granted by the Commissioner, Ambala, vide order dated 6.6.1992 (Annexure P-6). The private respondents did not challenge either of these orders, which also became final between the parties. However, while passing the impugned order Annexure P-7, neither the Kanungo noticed the above said order dated 30.3.1987 (Annexure P-5), while preparing his report nor the Prescribed Authority took any pain to consider even the relevant orders, referred herein above, which had become final between the parties. Thus, the impugned order cannot be sustained for this reason also.
The impugned order dated 3.7.1992 (Annexure P-7) passed by the Prescribed Authority, Jagadhri, reads as under :-
" Sanction for vesting the area u/s 12(3) in the name of the State is hereby granted. Tehsildar, Jaghadhri may be informed and information regarding the khasras no. be also sent.
Sd/-
S.D.O. (Civil)-cum-
Prescribed Authority, Jagadhri 3.7.1992"
Admittedly, no opportunity of being heard was granted to the Sahni Greesh 2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 8 petitioners. In this view of the matter, this court feels no hesitation to conclude that the impugned order was, in fact, no order in the eyes of law, being in glaring violation of the basic principles of natural justice. Thus, it cannot be sustained.
Further, once the surplus area declared in the hands of big land owner late Sh. Kewal Ram, vide order dated 11.1.1961 (Annexure P-1), could not be utilised till the date of his death on 22.7.1964, the order dated 31.8.1964 (Annexure P-2) was rightly passed by the Special Collector. The petitioners were rightly declared entitled to retain the unutilised area. This is what the true import of Sections 10-A and 10-B of the Land Tenures Act. Similarly, Section 8 of the Ceiling Act saves land which devolved on the heirs of big land owner by way of inheritance. Thus, when the provisions of Sections 10-A and 10-B of the Land Tenures Act as well as Sections 8 and 12 of the Ceiling Act are harmoniously construed, it becomes crystal clear that the petitioners were entitled for retaining the unutilised area, out of the area which was declared surplus in the hands of their father late Sh. Kewal Ram.
So far as the quantity and identification of the land is concerned, it is not in dispute. The petitioners have taken categoric averments in this record in para 5 of their writ petition, which read as under :
"5. That it is submitted with due deference, that the land which is the subject matter of this writ petition (hereinafter referred to as `the land in question') is situate in village Pansara, Tehsil Jagadhri Distt. Yamuna Nagar (previously District Ambala), and is detailed below for ready reference :-
"Khewat No.32// 43-Khasra Nos. 4//11, 12, 23, 5// Sahni Greesh 2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 9 16/2, 16/3, 14/3, 6/2, 14/2, 17/3, 8/5 1/21/2, 3/21/2, 1/1, 10 and 18, total measuring 105 kanals."
In the corresponding para no.5 of their written statement, official respondents no.1 to 4 did not deny the contents of above said para 5 of the writ petition. Para 5 of the written statement filed by respondents no.1 to 4, reads as under :-
"5. That the contents of para no.5 of the petition are admitted to be correct."
These are the same numbers, which have been mentioned in the impugned order Annexure P-7 at page 35 of the paper book. The above said land, which is subject matter of the present writ petition was situated in the revenue estate of village Pansara. Since the Prescribed Authority, while passing the above said impugned order dated 3.7.1992 measurably failed to apply its mind to the factual as well as legal aspect of the matter, the impugned order is patently illegal and cannot be sustained.
During the course of hearing, learned counsel for the respondents and particularly learned counsel for the State could not substantiate from the record that any area, out of the surplus area declared in the hands of late Sh. Kewal Ram-big land owner, was utilised before the death of late Sh. Kewal Ram. So far as the land measuring 4 Bighas and 4 Biswas, which was subject matter of CWP No.1322 of 1969 (Mohan Lal Vs. State of Haryana and others) was concerned, learned Senior counsel for the petitioners has fairly stated that the petitioners would have no claim for those 4 Bighas and 4 Biswas, as the matter stood finalised qua this area in favour of above said Mohan Lal s/o Sahni Greesh 2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 10 Kanshi Ram. Thus, tested from any angle, the impugned order dated 3.7.1992 (Annexure P-7) passed by the Prescribed Authority, Jagadhri, cannot be sustained.
The view taken by this court also finds support from the judements of this court in Naresh Saran's case (supra) and Som Nath's case (supra). The relevant observations made in paras 9 and 11 of Naresh Saran's case (supra), which can be gainfully followed in the present case, read as under :-
"9. Respondents no.9 to 13 intheir reply did not controvert the factual averments made in the writ petition. Admittedly, the surplus area was not utilised in the lifetime of the landowner. He died on March 9, 1981. Under Sections 10-A and 10-B of the Act the said holding would cease to be the holding of the said landowner and would stand devolved and distributed between his heirs by operation of law as a result of succession and authorities were required to redetermine the surplus area in the hand of each of the heirs. The order regarding surplus area in the hands of the original landowner was rendered non-existent. In case of death of the original landowner unless surplus area is redetermined, there can be no area as such to vest in the Government under Section 12 of the Haryana Ceiling of Land Holdings Act, 1972 (for short the "Haryana Act'). Sections 8 and 12 of the Haryana Act have to be harmoniously construed. Section 8 saves lands devolved on heirs by inheritance. Under Section 12 of the Haryana Act, surplus land will vest in the State and this will be possible Sahni Greesh 2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 11 only if redetermination of surplus area is made and in so doing permissible area for each heir has to be allowed and the balance will vest in State. Respondent no.2 was swayed away by wholly irrelevant consideration when it is set aside the order of the Collector dated February 7, 1985. The order was passed by the Collector Agrarian after allowing the review petition filed by the heirs of the deceased and owner, but in fact, it will be deemed to be an order determining the permissible area of the heirs of the deceased. The Collector after examining the entire record found that the heirs of the deceased landowner were small landowners and no fault can be found with it. If respondents 1 and 2 had taken note of the fact that the landowner had died and the surplus area case had to be decided afresh in the light of the provisions of Sections 10-A and 10-B of the Act and Sections 8 and 12 of the Haryana Act no fault would have been found with order of the Collector dated February 7, 1985. As also Collector Agrarian was performing his statutory duty, it was incumbent upon him to decide the surplus area case of the heirs of the landowners afresh. The order was passed in conformity with law although a different nomenclature has been given to it.
10. The learned counsel for the respondents raised the following submissions :-
a) Agrarian reforms does not permit that the tenants interest should be ignored;Sahni Greesh
2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 12
b) area sold ought to be included in the permissible area of the landowner;
c) review as permissible on the same ground as envisaged under Order 47 Rule 1 C.P.C. Similarly, the observations made in para 4 of the jugement in Som Nath's case (supra) aptly apply to the facts of the present case and the same read as under :-
"4. It is unfortunate that the Revenue Officer did not appreciate the correct legal proposition. Even if Hotu Ram had made an error in not filing the declaration as enjoined by Section 5-A of the Act within the period prescribed, penalty could be imposed under Section 5-C of the Act and the area could be deemed to be a surplus area, but before it could be utilised, the landowner had died and the heirs of the landowner were entitled to the benefit of Section 10-B of the Act and this fact needed to be gone into. Section 10- B of the Act envisages that if the surplus area is not utililsed and in the meantime, the landowner has died, the order declaring the land as surplus could not be implemented because the surplus land is to be determined qua the heirs of the deceased-landowner. It is not disputed that the land allegedly declared surplus has not been utilised. The heirs of the land owner could not be deprived of the benefit of Section 10-B of the Act after the enforcement of the Haryana Ceiling on Land Holdings Act, 1972 (in short the Sahni Greesh 2013.10.11 13:15 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.15250 of 1992 13 `Ceiling Act) in view of Section 8 of this Act. The land which has been declared surplus and which has not been utilised, the surplus area is to be determined qua the heirs of the deceased landowner. It is not the case of the State that the land vests with the State or that it has been utillised for a certain period. Apart from this, it is unfortunate that the case was re-opened without any justifiable ground. The Collector Agrarian vide his order dated 9th of January, 1970, had found that the landowner was a small landowner. This order was not assailed by the State. The order has attained finality. There was no basis for initiation of suo-moto proceedings, for setting aside the order. The action of the Commissioner and thereafter of the Financial Commissioner cannot be sustained. The order passed by the Collector Agrarian on remand by the Financial Commissioner cannot be sustained on this ground also."
Revering back to the facts of the present case and respectfully following the law laid down in Naresh Sarans' case (supra), it is unhesitatingly held that the impugned order dated 3.7.1992 (Annexure P-7) cannot be sustained.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that in the given fact situation of the present case, instant writ petition deserves to be allowed.
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Consequently, the impugned order dated 3.7.1992 (Annexure P-7) passed by the Prescribed Authority, Jagadhri, is ordered to be set aside. However, the respondent authorities shall be at liberty to redetermine the surplus area, if any, in the hands of the legal representatives of late Sh. Kewal Ram.
Resultantly, with the observations made herein above, the present writ petition stands allowed, however, with no order as to costs.
3.9.2013 (RAMESHWAR SINGH MALIK)
GS JUDGE
Sahni Greesh
2013.10.11 13:15
I attest to the accuracy and
integrity of this document
High Court, Chandigarh