LPA No.106 of 2005 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.106 of 2005 in CWP No.5989 of 1983 Date of Decision: 19.2.2008 Anoop Singh and others ..Appellants. Vs. The State of Haryana and others ..Respondents. CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.L.N.Verma, Advocate for the appellants. Mr.S.K.Bishnoi, DAG Haryana for the respondents. * * * Rakesh Kumar Jain, J. This appeal is directed against the order dated 29.9.2004 passed by learned Single Judge, dismissing the writ petition, in which the petitioners had challenged the orders dated 15.5.1961 (Annexure P-1), 7.9.1961 (Annexure P-3), 8.1.1963 (Annexure P-4),18.4.1983 (Annexure P- 7) and 2.8.1983 (Annexure P-9) whereby area measuring 34.14 (ordinary acres) in the hands of Jia Lal, predecessor-in-interest of the appellants, has been declared surplus and the gift of land made by him in favour of his son and grand-son (present appellants) has been held to be invalid. Stated briefly, the facts of the case are that Jia Lal predecessor- in-interest of the appellants was the absolute owner in exclusive possession of agricultural land measuring 94.14 acres in the revenue estate of village Samani Bholan, District Hisar as on 15.4.1953. As per the appellants, vide LPA No.106 of 2005 -2 - registered gift deed dated 18.4.1957, Jia Lal transferred an area measuring 58.67 acres to his son Karam Chand and grand-son Bharat Singh. Vide order dated 15.5.1961 (Annexure P-1), the Collector Surplus Area, Hisar, declared area measuring 34.14 (ordinary acres) as surplus in village Samani Bholan, Tehsil Fatehabad of the then District Hisar as detailed in Appendix `A' attached with the order, without any notice to the appellants (transferees) ignoring the transfer dated 18.4.1957 made by Jia Lal in their favour. Order dated 15.5.1961 (Annexure P-1) was challenged by Jia Lal by way of an appeal before respondent No.4, who vide his order dated 7.9.1961 (Annexure P-3) allowed it in part and remitted the case back to the Collector Surplus Area, with a direction to allow Jia Lal to select permissible area of his choice. After the remand, during the pendency of the proceedings before the Collector, the surplus area case was transferred to the Special Collector, Punjab, without any notice to Jia Lal himself or said transferees/appellants. The Special Collector, Punjab vide his order dated 8.1.1963 (Annexure P-4) consigned the case to the records while observing that notice was given to Jia Lal, however, specific directions of the Commissioner/respondent No.3 given vide remand order dated 7.9.1961 (Annexure P-3) were not considered. As per the appellants, they had no notice of surplus area proceedings at any stage up to the passing of order dated 8.1.1963 (Annexure P-4) and they came to know about the decision of surplus area case of Jia Lal for the first time on 11.3.1983. Copy was applied on 11.3.1983 itself and an appeal (Annexure P-5) along with an application under Section 5 of the Limitation Act for condonation of delay was preferred. The Commissioner vide his order dated 18.4.1983 (Annexure P-7) dismissed the appeal observing that “It could not be believed that the LPA No.106 of 2005 -3 - petitioners were not aware of this order.” Dissatisfied with the order of the Commissioner, the appellants preferred a revision (Annexure P-8) before the Financial Commissioner but that also met the same fate as it was dismissed vide order dated 2.8.1983 (Annexure P-9) which led to the filing of the above writ petition in which orders dated 15.5.1961 (Annexure P-1), 7.9.1961 (Annexure P-3), 8.1.1963 (Annexure P-4), 18.4.1983 (Annexure P-7) and 2.8.1983 (Annexure P-9) were challenged. The learned Single Judge vide his order dated 29.9.2004, dismissed the writ petition primarily on the ground of delay. On notice of this appeal, the respondent-State of Haryana has put in appearance. At the time of admission, it was ordered that status quo in respect of nature, title and possession of the subject land shall be maintained. Counsel for the appellants has submitted that the land in question has not been utilised so far and is in their possession, which fact is not controverted by the counsel for the respondents. During the course of hearing, counsel for the parties were asked to submit written arguments along with the relevant law. Pursuant to that, counsel for the appellants has submitted written arguments and the case law. Counsel for the appellants has argued that orders dated 15.5.1961 (Annexure P-1), 7.9.1961 (Annexure P-3), 8.1.1963 (Annexure P- 4), 18.4.1983 (Annexure P-7) and 2.8.1983 (Annexure P-9) are vitiated for want of notice to transferees/appellants. He submitted that Jia Lal had transferred 58.67 acres of his land to the appellants by way of gift on 18.4.1957, who stood recorded in revenue record as owners in possession thereof. He drew the attention of the Court to the evidence available on LPA No.106 of 2005 -4 - record as Annexure P-10, a jamabandi for the year 1959-60 in which the appellants are recorded as owners in possession of ½ share each of the land received by them by way of gift from Jia Lal and were given new numbers after consolidation. He also indicated towards document (Annexure P-11), a jamabandi for the year 1959-60 pertaining to land remained with Jia Lal after the gift, in which he is shown in new capacity as owner in self cultivation. Counsel for the appellants has argued that no notice was issued to them either by the Collector, Surplus Area or by the Special Collector before declaring the land gifted to them as surplus. He has submitted that transferee from a big landowner is entitled for hearing before any order is passed qua declaration of land as surplus and an order without notice, is a nullity. In this regard, he has relied upon various judgments of this Court reported as Hardev Singh and others Vs. The State of Punjab and others, 1971 PLJ 283 (DB), S. Balwant Singh Chopra and others Vs. Union of India and others, 1971 PLJ 315 (FB), Dharam Vir Vs. The Financial Commissioner, Haryana and others, 1980 PLJ 403 (S.B.) and Des Raj and another Vs. Chanan Mal Newar and others, 1995 PLJ 5 (DB) to contend that according to Rule 6 Sub Rule 3 of Punjab Security of Land Tenures Rules, 1956 (for short the `Rules'), at the time of determination of surplus area of landowner, notice to persons interested is mandatory. The notice has to be issued to persons mentioned in Form `D' or whose names may be shown in revenue records. Absence of notice to persons interested shall vitiate the entire proceedings. On the strength of these judgments, counsel for the appellants has argued that they being the transferees, were entitled to a notice under LPA No.106 of 2005 -5 - Rule 6 (3) as their names are recorded in the revenue record (Annexure P- 10). It was further contended that in the absence of notice to them, the entire proceedings stood vitiated. Counsel for the appellants has also highlighted that “audi alteram partem” is an integral part of natural justice, which can not be allowed to be violated. He has gone to the extent to submit that even the presence of their father does not dispense with the notice. In this regard, reliance has been placed upon Jagroop Singh Gill and others Vs. State of Punjab and others, 1995 PLJ 166 (DB), Ram Gopal and others Vs. State of Punjab and others 2002(1) PLJ 32 and Indraj Singh and others Vs. The State of Punjab and others 1965 PLJ 66 to contend that hearing is a must and notice to transferee is necessary even if his father is present in the proceedings. Mr.L.N.Verma, Counsel for the appellants, while challenging the findings of the learned Single Judge, submitted that the writ petition was solely dismissed on the ground of delay. It has been argued that limitation for filing an appeal against the order of surplus, commences from the date of service of Form `F' and not from the date of order even if the landowner is present when order is pronounced because the order of Collector and the statement in Form `F' together constitute the actual decision of the Collector affecting the land owner and since Form `F' was never served upon the appellants, therefore, no delay can be attributed to them. In this regard, he has relied upon Vir Singh Vs. The State of Punjab and others, 1970 PLJ 70, Tek Ram Vs. State of Haryana and others, 1992 PLJ 642, Bharat Starch & chemicals Ltd. Vs. State of Haryana and others, 1994 PLJ 392. LPA No.106 of 2005 -6 - In the alternative, he submitted that an appeal against the ex parte order commences from the date of knowledge and not from the date of the order and cited Ganga Ram Vs. The Financial Commisioner (Revenue) Haryana and others 1973 PLJ 305. Learned counsel for the appellants drew our attention to the observations of the learned Single Judge which he claims to be erroneously recorded submitting that neither the claim of the appellants was examined by the Collector nor it could be said that the appellants were aware of the order dated 15.5.1961 (Annexure P-1). Mr.L.N.Verma, counsel for the appellants further asserted that the Special Collector - respondent No.6 was bound by the remand order vide order dated 7.9.1961 (Annexure P-3) which has not been done and pointed out that it is an illegality in view of a decision rendered in the case of Shree Guru Granth Sahib Nanaksar, Patti Bir Singh Bahadur Vs. The State of Punjab and others, 1997(2) PLJ 323. Lastly, it is submitted that all transfers made by a big land owner in excess of his permissible area prior to 30.7.1958 enjoy protection of Section 8(1)(a) of the Haryana Ceiling on Land Holdings Act, 1972 (for short, “the Haryana Act”) irrespective of his relationship with the transferee and the mode of transfer and the transferred area, even if, subsequently declared surplus, would not vest in the State Government under Section 12 (3) of the Haryana Act so as to be available for utilisation under the Utilisation Scheme, 1976 framed under the Haryana Act and the transferee would be entitled to retain the transferred area despite having been declared surplus in the hands of transferor. It is also claimed that order declaring such area as surplus would be rendered inoperative and for that purpose, LPA No.106 of 2005 -7 - reference is made to Full Bench decision of this Court in the case of Smt.Jaswant Kaur and another Vs. The State of Haryana and another, 1977 PLJ 230 and another Full Bench judgment of this Court in the case of The State of Haryana and others Vs. Chandgi, 1981 PLJ 494. In reply, Sh.S.K.Bishnoi, DAG Haryana has vehemently argued that transfer of the land by way of gift deed, was held to be invalid by the Authorities concerned. It was further argued that the appellants were not minors at that time and therefore, it can not be presumed that they were not aware of the facts of the case and therefore, the plea of lack of notice cannot be taken by them. He has also showed notice on Form `F', which is issued to Jia Lal, predecessor-in-interest of the appellants but admittedly no notice is shown to have been given to the transferees/the present appellants. He has further argued that no relief can be given to the appellants as they have approached the Court after 20 years, therefore, the orders passed by the Courts below are in accordance with law and the findings recorded by the learned Single Judge in the impugned order dated 29.9.2004 deserves to be upheld. We have heard learned counsel for the parties and have perused the record. We found that this appeal merits acceptance. Certain facts are admitted, namely, that Jia Lal was the predecessor-in-interest of the appellants. He was the absolute owner in exclusive possession of agricultural land measuring 94.14 acres in revenue estate of village Samani Bholan as on 15.4.1953 his case for surplus area was decided on 15.5.1961 and 34.14 acres land was declared surplus in his hands vide order dated 15.5.1961 (Annexure P-1) in which the transfer made by him by way of registered gift deed on 18.4.1957 has not been LPA No.106 of 2005 -8 - noticed. The jamabandis Annexures P-10 and P-11 on record show separate ownership and possession of the appellants and Jia Lal in respect of the land in question which is much prior to the order declaring land surplus on 15.5.1961. Counsel for the respondents – State could not show us firstly, any notice having been given on Form `F' to the appellants/transferees and also the basis on which the registered gift deed has been declared to be invalid. In view of these facts coupled with the documents Annexure P-10 and Annexure P-11, we find that Courts below have erred in appreciating the facts and have decided the lis on conjectures and surmises. In the cases of Hardev Singh (supra), S.Balwant Singh Chopra (supra), Dharam Vir (supra) and Des Raj (supra) while interpreting Rule 6(3) of the Rules, it has been held that requirement of service of notice on all persons interested is based upon principles of natural justice requiring an opportunity being afforded to any person who is likely to be prejudicially affected by an order which might be passed in the relevant proceedings. It was further held that want of such a notice cannot be dispensed with or ignored on the mere ground that particular transferees who may otherwise be deemed to be the persons interested in the proceedings have really no good defence to the proposed order, therefore, it was held that it is manifest that notice under Rule 6(3) has to be issued in the proceedings before the Circle Revenue Officer only to such persons whose names may be mentioned in Form `D' prepared by the Patwari or whose names may be shown in the relevant revenue records available to the Circle Revenue Officer as either vendees or donees or other transferees or tenants of the land which is proposed to be included in the surplus area of the original landowner. In the absence of notice, it was held that the entire LPA No.106 of 2005 -9 - proceedings shall vitiate. Since the names of the appellants are recorded in the revenue record i.e. jamabandi (Annexure P-10) for the year 1959-60 prior to order of declaration of surplus area on 15.5.1961, therefore, notice on Form `F' was sina qua non to the appellants, who were transferees/donees. We are in agreement with the submissions made by the counsel for the appellants that in the absence of notice on Form `F' to the appellants, the surplus proceedings have vitiated because in view of Indraj's case (supra), provision of notice is imperative and even the presence of the father and grand-father of appellants is not sufficient compliance with the requirement of law. So far as the point of limitation is concerned, once we have held that service on Form `F' is mandatory, which has not been served upon the present appellants. The limitation would start from the receipt of Form `F' as held in the cases of Vir Singh (supra), Dharam Vir (supra), Tek Ram (supra) and Bharat Starch and Chemicals Ltd. (supra) because order passed under sub Rule (6) together with statement in Form `F' constitutes actual decision of the Collector. In one of the cases i.e. Bharat Starch & Chemicals Ltd. (supra), the issue of delay was raked up by the respondents because in that case surplus area declared in the year 1962 was upheld in appeal in the year 1963 but the same was challenged in the year 1991 after about three decades but this Court held that the petitioners in that case can not be debarred from agitating on merits since Form `F' was not served, therefore, order of the Collector is vitiated. According to the respondents themselves, Form `F' was served LPA No.106 of 2005 -10 - on Jia Lal and not to the transferees, who are the present appellants. Lastly, in view of Section 8(1) (a) of the Haryana Act, irrespective of the relationship with the transferee and the mode of transfer, the transferred area declared surplus would not vest in the State Government under Section 12(3) of the Haryana Act and the transferee shall be entitled to retain that area. This argument has merit in it as it has been decided in Full Bench and Division Bench judgments of this Court in the cases of Jaswant Kaur (supra) and State of Haryana Vs. Chandgi (supra). As a consequence of the above findings recorded by us, the impugned order passed by the learned Single Judge, can not be sustained and is set aside. Resultantly, the present appeal is allowed and as a consequence thereof, orders dated 15.5.1961 (Annexure P-1), 7.9.1961 (Annexure P-3), 8.1.1963 (Annexure P-4), 18.4.1983 (Annexure P-7) and 2.8.1983 (Annexure P-9) are declared to be illegal and are quashed as such. There shall be however, no order as to costs. (Rakesh Kumar Jain) Judge ( Mehtab S.Gill ) 19.2.2008 Judge Meenu