Punjab-Haryana High Court
Ram Karan And Another vs The State Of Haryana And Others on 5 November, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.20585 OF 2009 (O&M) :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: NOVEMBER 05, 2012
Ram Karan and another
.....Petitioner
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 judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Mani Ram Verma, Advocate,
for the petitioners.
Ms. Kirti Singh, DAG, Haryana,
for the State.
*****
RANJIT SINGH, J.
Brij Bhan was a big land owner of some ancestral land and some part of his land was put in surplus pool. The land declared surplus of big land owner, Brij Bhan, was mutated in favour of the State of Haryana. As per the petitioners, this was wrongly done. The petitioners alongwith one Ram Bhaj, predecessor of respondent Nos.6 to 11 filed a petition under Section 8 of the Haryana Ceiling on Land Holdings Act, 1971 (for short, "the Haryana Act") for exemption of land measuring 16 kanals comprised in Rectangle and Killa No.28/3-4, situated in the revenue estate of Village Kutana, Tehsil and District Rohtak from the surplus pool. The claim made in this application was that Harphool, father of the petitioners and Mehar CIVIL WRIT PETITION NO.20585 OF 2009 (O&M) :{ 2 }:
Chand son of Bhundu purchased the abovesaid land vide registered sale deed dated 6.6.1956 in the ratio of 3/4th share and ½ share respectively from Sh.Brij Bhan son of Shish Ram and Subh Ram son of Ranjit Singh in the ratio of 2/3rd share and 1/3rd share respectively. The mutation of the same was sanctioned on 21.9.1956. Mehar Chand sold his 1/4th share to Harphool vide registered sale deed dated 20.3.1962 and the mutation of this was also sanctioned. Harphool, father of the petitioners, became absolute owner of the abovesaid land.
After the death of Harphool, the petitioners and Sh.Ram Bhaj, heirs and successors inherited the property of Harphool and, thus, became owner in possession of the land in equal share i.e. 1/3rd each. A mutation in this regard was sanctioned on 14.11.1987. In view of Section 8 of the Haryana Act, the land sold by big land owner before 30.7.1958 would be exempted from the surplus pool and the vendee being to be absolute owner of the land, claiming that the aforesaid land was sold on 6.6.1956 and so it would be exempted from the surplus pool and so could not be utilized under the scheme framed under the Haryana Act. The application filed by the petitioners, however, was rejected by S.D.O (Civil) (respondent No.5) vide his order dated 29.4.1999. Aggrieved against this, the petitioners approached the Collector, who accepted the appeal, vide order Annexure P-2. The State thereafter filed an appeal against the order passed by the Collector and the Commissioner had accepted the same on 26.4.2002. The revision filed by the petitioners has been rejected by the Financial Commissioner on 22.5.2003. CIVIL WRIT PETITION NO.20585 OF 2009 (O&M) :{ 3 }:
Against the order passed by the Financial Commissioner the petitioners filed a civil suit for declaration and injunction. The petitioners, however, would concede that the said remedy, as invoked by them, was wrong and based on the wrong advice of the counsel. The Civil Court concededly did not have any jurisdiction to deal with the surplus proceedings. It appears that the petitioners had pursued the civil suit for quite some time. The petitioners have not mentioned the facts in this regard in a clear manner. Apparently, the suit was withdrawn at the appellate stage and thereafter, the present writ petition has been filed on 20.4.2009.
As per the petitioners, except for the Collector various revenue authorities have seriously erred in rejecting the plea of the petitioners. The petitioners would urge that as per Section 8 of the Haryana Act, land sold before 30.7.1958, would be safe from the surplus pool. In support, he has relied upon the Full Bench decision in the case of Shmt. Jaswant Kaur and another Vs. The State of Haryana and another, 1977 PLJ 230 and two Single Bench decisions in the cases of Ajmer Singh Vs. The State of Haryana and others, 1987 PLJ 535 and Narpat Singh Vs. The State of Haryana and others, 1985 PLJ 221.
State has filed a reply, contesting the claim made by the petitioners in the writ petition. The State has also raised a plea of delay and laches and accordingly has prayed for dismissing the writ petition on this ground. On merits, it is pointed out that Brij Bhan was a big land owners and his land measuring 21-13 ¼ Village Kotana was declared surplus on 3.8.1960 by the Collector. Killa No.28/3, 4 CIVIL WRIT PETITION NO.20585 OF 2009 (O&M) :{ 4 }: measuring 16 kanals was part of this surplus land of Brij Bhan and this was keeping in view the revenue record at that relevant time. The sales made by big land owner were ignored at the time of passing of the order. It is urged that as per Sections 6 and 16 of the Punjab Security of Land Tenures Act (for short, "the Punjab Act"), the land declared surplus under the said Act had vested in the State of Haryana. As per Section 12(3) of the Haryana Act, the State has become owner of the said surplus land declared under the Punjab Act.
It is also pointed out that Ram Karan and Ram Sanehi sons of Harphool filed an application before SDO, Rohtak, for exemption of 16 kanals land from the surplus pool. This application, however, was rejected. As per the State, when the land was declared surplus, no appeal under the provisions of Punjab Act was ever filed and no such appeal or any proceedings were pending, when the Haryana Act was enforced in 1972. The proceedings had been completed under the Punjab Act and hence, these can not be reopened under the Haryana Act. It is then disclosed that this application is filed by the petitioners after a lapse of 39 years and the case can not be reopened at this belated stage. The orders passed by the authorities accordingly are justified and it is pleaded that the writ petition be dismissed.
State counsel has also referred to and relied upon the observations made in Smt.Bhagwanti Devi & Anr. Vs. State of Haryana & Anr., 1994 (2) R.R.R. 358.
The land in this case was declared surplus on 3.8.1960. CIVIL WRIT PETITION NO.20585 OF 2009 (O&M) :{ 5 }: The effect of Section 12(3) of the Haryana Act is that the surplus area automatically vested in the State. In fact, the surplus case of the big land owners had been finalised under the Punjab Act and under Section 16 of this Act, any transfer of land after 1.2.1955 is not to be considered valid. It is perhaps because of this reason that no appeal was filed against the order dated 3.8.1960, vide which the land was declared surplus and this order had, thus, acquired finality. This order is now challenged after 36 years. Reference can be made to Bhagwanti Devi's case (supra), wherein it has been held that the cases decided under the old Act can not be reopened as the entire surplus land had vested in the State. The respondents had also relied upon the instructions No.1827-AR(2)-97/14237 dated 29.9.97, which provided that the cases decided under the old Act are not to be reopened. The land declared surplus under the Punjab Act had vested in the State and the same stood utilized.
The question of staying the operation of Section 8 of the Haryana Act in this case would arise only if the petitioners had contested the case of surplus and it had not acquired finality, when the Haryana Act came into being. In this regard, the observations relied upon by the State counsel in Shmt.Bhagwanti Devi's case (supra) may be relevant. In this regard, the Court has observed as under:-
"No. doubt under 1953 Act, there is no specific provision which provided for vesting of the surplus lands, declared thereunder. The Collector had power to take possession of the surplus lands and utilise them under East Punjab CIVIL WRIT PETITION NO.20585 OF 2009 (O&M) :{ 6 }:
Area Utilisation of Lands Act, 1949, by their allotment to the tenants for cultivation. But for the exemption granted under Rule 8 of the Rules, the appellants had no right to remain in possession. Having got the benefit of Rule 8 and remained in possession of the surplus land and utilised the same for the purpose of cultivation in a modern farm, it is not open to appellants to contend that the land having remained unutilised and continued to be in their possession and enjoyment, s.12(3) does not divest them of their title. The language of s.12(3) is unequivocal and clear. According to it the surplus lands declared under the Act stand vested in the State, Even otherwise the non-utilisation of surplus land till date of vesting i.e. on December 23, 1972 is not material. The object of the Act and s.l2(3) of 1972 Act was redistribution of surplus land among the landless ryots and agricultural labour and to confer title on them. The Act enabled the owner of the surplus land to recover rent from the lessee and enjoy the income till date of vesting and no more. Section 32 of Haryana Act admittedly declared all exemptions under Rule 8 as of no avail w.e.f. January 24, 1971 in that it expressly states thus :
"As from the appointed day exemption granted in relation to the utilisation of surplus area under orchards, tea- estates or well run farms by virtue of the provisions of the rules framed or purported to have been framed under the CIVIL WRIT PETITION NO.20585 OF 2009 (O&M) :{ 7 }:
Punjab Law, shall stand withdrawn".
Accordingly, even if someone is in possession of surplus land on the appointed day, that possession becomes unlawful and entitles the Collector or the competent officer to resume possession from such person. It is further held that neither Section 12(3) nor Sections 7 and 9 of the Haryana Act empowers the Ceiling Authority to reopen the proceedings relating to surplus land, which had become final as is made clear by Section 33(2)(ii) thereof. The relevant observations of the Hon'ble Supreme Court in this regard are as under:-
"Therefore, from the appointed day the possession held by appellants of surplus lands become unlawful and entitles the Collector or competent officer to resume possession of them from appellants. Neither Section 12 (3) nor Sections 7 and 9 the Haryana Act empower the ceiling authority to reopen the proceedings relating to surplus lands which had become final is also made clear by Section 33(2)(ii) thereof. Section 33(2)(ii) says that the surplus area determined in the pending proceedings under the Act shall be done under that Act and surplus land shall vest in and be utilised by the State Government in accordance with the provisions of the 1972 Act. Sub-
section 2(ii) of section 33, no doubt, deals with determination of surplus area pending proceeding under the Punjab Law as on the notified date and vesting of the surplus area so determined in the State. The legislative CIVIL WRIT PETITION NO.20585 OF 2009 (O&M) :{ 8 }:
intendment, therefore, appears to be that the surplus area declared under Punjab Law shall remain to be surplus. If any area that becomes surplus under the Haryana Act since the surplus area was reduced from 31 standard acres to 17-1/2 acres, that surplus area should be redetermined under Section 7 read with section 9. Therein if a son becomes major and resides separately he is entitled to a separate unit etc. However, it does not appear that the surplus area declared under the Punjab Law should be reopened and recomputed under 1972 Haryana Act. No such express provision was engrafted in 1972 Act. Though the family of the appellants have swelled and some of the minors have become majors, the appellants are not entitled to have the surplus area which had become final reopened for recomputation under the 1972 Haryana Act. Thus considered, we find that the High Court was fully justified in dismissing the writ petitions. The appeals are, therefore, dismissed, but without costs."
This court in Mohan Singh (dead) through Kirpal Singh and others Vs. State of Haryana and others, 2010 (1) R.C.R. (Civil) 497, has categorically held that the land of a big land owner declared surplus under the Punjab Act would stand vested in the State of Haryana on 24.1.1971 in terms of Section 12(3) of the Haryana Act and that the State had a right to utilise the area which formed part of the surplus pool. It is further held that declaration of CIVIL WRIT PETITION NO.20585 OF 2009 (O&M) :{ 9 }:
surplus area under the Punjab Act would vest under the Haryana Act and the same cannot be reopened. The transferees of the land are not entitled to any notice before utilisation. As per the view expressed by the court, the provisions of the Haryana Act are applicable only to surplus area case to be decided under the Haryana Act and not to those cases which were decided under the Punjab Act and the surplus area declared thereunder will be governed by Section 33 of the Haryana Act. Surplus area proceedings cannot be reopened by taking benefit of the provisions of the Haryana Act. The surplus area of big landowner declared surplus under the Punjab Act from the date it was so declared shall be deemed to have been acquired by the State Government for a public purpose. All rights, title and interest of all persons in such area shall stand extinguished and such rights, title and interests shall vest in the State Government from from all encumbrances. It is further held that no authority can pass an order in any proceeding which is inconsistent with the provisions of the Haryana Act. While taking this view, a reliance has been placed on Shmt.Bhagwanti Devi (supra).
As held in Mala Singh Vs. The Financial Commissioner and others, 1994 (1) RRR 337 and Inder Singh and others Vs. The State of Punjab and others, 1978 RLR 566, it has been viewed if the land was declared surplus under the Punjab Act, the provisions of the Haryana Act are not applicable and any such benefit can only be granted if surplus area is decided under the Haryana Act and not otherwise. That being the position, the whole limb of argument addressed by counsel for the petitioners would be CIVIL WRIT PETITION NO.20585 OF 2009 (O&M) :{ 10 }: rendered inapplicable to the facts of the present case.
Another peculiar feature in this case is that this writ petition suffers from delay and latches as well. The orders impugned in the present petition were passed in 1999, 2000, 2002, 2003. The writ petition is filed in April 2009. There is a delay of over six years in making the present approach from the date of order passed by the Financial Commissioner. This delay is not explained in any manner. As already noticed, it is vaguely mentioned that the suit was filed on a wrong advise but apparently it was pursued upto the appellate stage. It is only at the appellate stage that the suit was got dismissed as withdrawn. There is, thus, no justification to explain this inordinate delay in making the present approach. Not only that, the petitioners have otherwise also approached the authorities only after 36 years of the order passed, declaring the land surplus. The petitioners can not be heard at this belated stage to challenge the order for the reasons mentioned in detail as noted above.
In any case, the petitioners are the heirs of a subsequent purchaser and they had purchased this land on 20.3.1962. By then, this land had already been declared surplus. The question of issuing any notice to the petitioners, thus, would not arise as they were not in picture, when the order declaring the land surplus was passed. The vendors of the petitioners never raised any challenge to the land declared surplus and are not before the Court. As held in Mohan Singh's case (supra), even there was no need to issue notice to the petitioners The petitioners, in this background, would not have any locus to challenge this order. They apparently had purchased this CIVIL WRIT PETITION NO.20585 OF 2009 (O&M) :{ 11 }: land being fully aware of the fact that it had already been declared surplus. These peculiar facts would distinguish the case and ratio of law laid down in Full Bench decision of Jaswant Kaur's case (supra) and other judgements relied upon by the petitioners and the same would clearly not have much relevance in the present case.
The writ petition, therefore, is dismissed.
November 05, 2012 (RANJIT SINGH ) khurmi JUDGE