Punjab-Haryana High Court
Har Lal vs State Of Haryana And Ors. on 29 May, 1996
Equivalent citations: (1996)114PLR71
Author: T.H.B. Chalapathi
Bench: T.H.B. Chalapathi
ORDER T.H.B. Chalapathi, J.
1. This writ petition is filed to quash the orders of the respondents vide Annexures P-5, P-3 and P-2 dated 4.8.1982, 10.4.1981 and 20.11.1979 respectively.
2. The petitioner was a land owner holding land of 81 kanals 19 Marlas in Village Ban Mandori and 575 Kanals 12 Marlas in village Jakhod Khera. He filed a declaration for determining surplus area under the provisions of the Haryana ceiling on Land Holding Act. The petitioner has two wives and six children (four sons and two daughters). According to the petitioner, out of the six children, only one son namely Nathu was major on the appointed day i.e. 24.2.1971. The other three sons and one daughter namely Guddi was born on 27.9.1972 i.e. after the appointed day. As the petitioner was holding lands in two different Sub Divisions, his surplus area case was decided by the Prescribed Authority namely Special Collector, Hissar. The petitioner claimed one unit for himself and one separate unit for his major son and also one additional unit for his 2nd daughter namely Guddi who was born after the appointed day. But the prescribed Authority namely the Special Collector, Hissar, by his order dated 27.11.1979 vide Annexure P-2 held that the petitioner's major son Nathu was not residing with him in village Jakhod Khera and did not allow a separate unit for his adult son Nathu. He also did not allow the additional unit for his second daughter who was born on 27.9.1972 i.e. after the appointed day. Accordingly the Special Collector, Hissar decided that the petitioner was entitled to 510.40 Kanals of 'C' category land and declared 333.18 kanals of land as surplus. Against the aforesaid order of the Special Collector, the petitioner filed an appeal before the Commissioner, Hissar, Division, who rejected his appeal by his order dated 10.4.1981 vide Annexure P-3. The further revision filed by the Petitioner before the Financial Commissioner was also rejected vide Annexure P-5 dated 4.8.1982. The petitioner, therefore, filed the present writ petition to quash the orders of the authorities below and for a direction to allow a separate unit for his adult son and an additional unit for his 2nd daughter who was born on 27.9.1972.
3. Learned Counsel for the petitioner argued that the petitioner's adult son is entitled to a separate unit under the Haryana ceiling on Land Holdings Act, 1972 and he is also entitled to an additional unit for his second daughter who was born after the appointed day and before the determination of the surplus area under the provisions of the said Act.
4. Section 3 (q) of the Haryana Ceiling on Land Holdings Act (hereinafter referred to as the 'Act) defines a separate unit as follows:-
"Separate unit "means an adult son living with his parents or either of them and in case of his death, his widow and children, if any."
5. It is not necessary that there shall be a partition of land between the adult son and his father. If the entire property is held jointly by the father and his adult son, the benefit of separate unit for the adult son shall be allowed to the land owner. The authorities below seem to have taken the view that the adult son Nathu was not living with the petitioner and, therefore, the petitioner that they are situated in village Jakhod Khera and the said suit was decreed on 3.3.1970 by Sub Judge 1st Class, Hissar vide Annexure P-l, but the fact remains that there was no partition by meets and bounds on the appointed day. Therefore, on the appointed day, the land was held jointly by the petitioner and his sons including the adult son.
6. The petitioners has categorically stated before the authorities below that his adult son Nathu was living with his mother at village Ban Mandore to supervise the Land there. This fact was neither disputed nor controverted by the respondents. According to the definition, under Section 3(q) of the Act, if the adult son is living with his parents, then a separate unit should be allowed. Parents includes mother also. Therefore, I am of the opinion that the petitioner is entitled to one separate unit for his adult son Nathu. In my view, the authorities below have erred in not allowing a separate unit for the adult son of the petitioner.
7. The petitioner also claimed one additional unit for his 2nd daughter who was born after the appointed day. The 2nd daughter of the petitioner was born on 27.9.1972. The Haryana Ceiling on Land Holdings Act came into force on 24.3.1973. Though the appointed day in the Act was 24.1.1971, the permissible area has to be determined with reference to the date on which the Act came into force. The appointed day was introduced to prevent any alienation sought to be made by the land owner in order to avoid attracting the provisions of the Land Reforms Act. On 24.1.1971 a highly powerful Central Panel on land reforms announced the quantum of land which should be held uniformally throughout the country. That panel has nothing to do with the definition of the surplus are on the day of announcement of the Act.
Section of the Act reads as follows :-
"Notwithstanding any thing to the contrary contained in any law, custom, usage or agreement, no person shall be entitled to hold whether as landowner or tenant or as a mortgage with possession or partly in one capacity or partly in another land within the State of Haryana exceeding the permissible area on or after the appointed day."
8. It has been held by this Court in Nagender Singh Chauhan v. State of Haryana and Anr., (1979 P.L.J. 310) that the Haryana Ceiling on Land Holdings Act is patently retrospective in as much as the Act was promulgated on 23.12.1972 whereas the ceiling on land and permissible area has to be fixed with effect from 24.1.1971. This retrospectivity was held to be valid.
9. In Raghunath Laxman Warn and Ors. v. The State of Maharashtra and Ors., (AIR 1971 SC 2137) it has been held by the, apex Court while dealing with Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, as follows:
"The scheme of the Act seems to be to determine the ceiling area of each person including a family with reference to the appointed day. The policy of the Act appears to be that on and after the appointed day no person in the State should be permitted to hold any land in excess, of the ceiling area as determined under the Act and that ceiling area would be that which is determined as on the appointed . day. Therefore, if there is a family consisting of person exceeding five in number on 26.1.1962, the ceiling area for that family would be the basic ceiling area plus 1/6th thereof per member in excess of the number five. The ceiling area so fixed would not be liable to fluctuations with the subsequent increases or decrease in the number of its members, for there is apart from the explicit language of Sections 3 and 4 no provision in the Act providing for the redetermination of the ceiling area for a family on variations in the number of its members. The argument that every addition or reduction in the number of the members of family requires redetermination of the ceiling area of such a family would mean an almost perpetual fixation and re-fixation in the ceiling area by the Revenue Authorities, a State of affairs hardly to have been contemplated by the legislature. The argument would also mean that where a surplus area is already determined and allotted to the landless persons, such area would have to be taken back and given to a family, the number of whose members subsequently has augumented by fresh births."
Thus the Supreme Court has categorically taken the view that the ceiling of surplus area has to be determined as on the appointed day.
10. The learned counsel for the petitioner relied upon two decisions of this Court in Jaswant Singh and Ors. v. Punjab Government and Anr., (1983 P.L.J. 684) and in Mangat Ram v. The Financial, Commissioner, Revenue, Haryana, (1994-3)108 P.L.R. 521, but in both the decisions, the decision of this Court in Nagender Singh Chauhan v. State of Haryana and Anr., (1979 P.L.J. 310) and the decision of the Supreme Court in Raghunath Laxman Wani's case (supra) were not noticed. In view of the decisions referred to above, I am of the opinion that the decision in Jaswant Singh's case (supra) and in Mangat Ram's case (supra) are per incuriam. Both the decisions were rendered by the single Judges of this Court. In view of the decision of the Supreme Court in not referring the matter to a Division Bench, the decision of the Supreme Court is binding upon me. I am, therefore, of the opinion that the petitioner is not entitled to a separate unit for his daughter who was born on 27.9.1972 i.e. after the appointed day.
11. In view of my foregoing discussion, I allow the writ petition in part and direct the 3rd respondent namely Special Collector, Hissar to determine the surplus area of the petitioner after giving a separate unit for his adult son namely Nathu, who was, admittedly, major on the appointed day and has been living with his mother. The orders of the respondents are quashed to the extend to disallowing a separate unit to the adult son of the petitioner only. The parties are directed to appear before the 3rd. respondent namely Special Collector Hissar on 15.7.1996. No order as to costs.