IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P.s No. 4217 and 4219 of 1985 DATE OF DECISION : 07.09.2010 Dalip Singh and others .... PETITIONERS Versus Financial Commissioner Haryana, Chandigarh and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. K.L. Suneja, Advocate, for the petitioners. Mr. G.S. Chahal, Advocate, for respondents No.1 and 2 (in CWP No. 4217 of 1985) for respondents No.1 to 4 (in CWP No. 4219 of 1985) Mr. J.L. Malhotra, Advocate, for respondent No.3 (in CWP No. 4217 of 1985) for respondent No.5 (in CWP No. 4219 of 1985) Mr. Harsh Garg, Advocate, for respondents No. 4 to 7 (in CWP No. 4217 of 1985) for respondents No.6 to 9 (in CWP No. 4219 of 1985) * * * SATISH KUMAR MITTAL , J This judgment shall dispose of Civil Writ Petitions No. 4217 and 4219 of 1985, filed by the same petitioners. CWPs No. 4217 & 4219 of 1985 -2- In CWP No. 4217 of 1985, the petitioners have challenged the orders dated 27.4.1978 (Annexure P-1) and 17.6.1985 (Annexure P-2), passed by the Collector (Agrarion), Kaithal and the Financial Commissioner, Haryana, Chandigarh, respectively. In CWP No. 4219 of 1985, the petitioners have challenged the orders dated 21.10.1981 (Annexure P-1), 26.4.1982 (Annexure P-2), 5.7.1983 (Annexure P-3) and 17.6.1985 (Annexure P-4), passed by the Prescribed Authority, Guhla, Collector, Kurukshetra, Commissioner, Ambala Division and the Financial Commissioner, Haryana, Chandigarh, respectively. The brief facts of both the cases are that on 8.7.1959, all the three petitioners, namely Dalip Singh, Lachhman and Lakhmi sons of Kurra, had purchased 64 kanals 8 marlas of land from one Sewa Singh, a big land owner. Since the petitioners had purchased the said land after the appointed date i.e. 30.7.1958, the same was included in the surplus area of the big land owner, while determining his surplus area under the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as `the Punjab Act'). Vide order dated 10.6.1961, the Collector (Agrarion), Kaithal, declared 10 Standard Acres 80 Units of land as surplus in the hands of the big land owner (Sewa Singh), including the land purchased by the petitioners. Since at the time of declaration of the surplus area of the big land owner, the petitioners were not heard, they filed an application to the Collector (Agrarion), Kaithal, on 13.9.1961, submitting that the land purchased by them from the big land owner (Sewa Singh) before declaration CWPs No. 4217 & 4219 of 1985 -3- of the surplus area be released from the surplus pool. After hearing the parties, the Collector (Agrarion), Kaithal, dismissed the said application on 28.7.1962. Undisputedly, the petitioners did not challenge the said order and the same became final. Subsequently, the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as `the Haryana Ceiling Act') came into force with effect from 24.1.1971. By virtue of Section 12 (3) of this Act, area declared surplus under the Punjab Act automatically vested in the State with effect from 24.1.1971, irrespective of the fact whether it was utilised or not under the Haryana Utilisation of Surplus and other Areas Scheme (hereinafter referred to as `the Utilisation Scheme') [see Jaswant Kaur v. State of Haryana, 1977 PLJ 230 and Amar Singh v. Ajmer Singh, 1994 Suppl. (3) SCC 213]. After coming into force of the Haryana Ceiling Act, the petitioners again filed an application before the Collector (Agrarion), on 13.10.1976, requesting him that the area purchased by them on 8.7.1959 be exempted from the surplus pool on the ground that this land was purchased by them prior to the declaration of the surplus area, and for seeking benefit of the Harayana Government instructions dated 20.4.1968 to exclude the aforesaid land from the surplus pool. As per those instructions, a vendee who was not the relation of the prescribed degree of the vendor (big landowner); and who had purchased the surplus area after 30.7.1958 but CWPs No. 4217 & 4219 of 1985 -4- upto 15.4.1966; and the surplus area purchased along with other area owned by him does not exceed 10 Standard Acres, will be entitled to exclude the said purchased area from the surplus pool. The Collector (Agrarion), Kaithal, vide his order dated 27.4.1978 had rejected the prayer of the petitioners from exempting 64 kanals 8 marlas of land purchased by them from Sewa Singh, a big land owner from the surplus pool, on the ground that they had purchased the said land on 8.7.1959, i.e. after the appointed day of 30.7.1958. However, keeping in view the Haryana Government instructions dated 20.4.1968, each of the petitioner was given 10 Standard Acres area. Accordingly, all the three petitioners were allowed exemption of 30 Standard Acres, along with their proprietory land, as they had 32 Standard Acres – 15 ½ Units of land, which included the land purchased by them from Sewa Singh. Thus, an area of 2 Standard Acres – 15 ½ Units (equal to 42 kanals 8 marlas) was not exempted from the surplus pool and the petitioners were permitted to choose their land. It is specifically mentioned here that the petitioners did not raise any grouse before the Collector (Agrarion), about evaluation of their land, which was evaluated as 32 Standard Acres 15 ½ Units, on the basis of the Jamabandi for the year 1972-73. The petitioners did not challenge the said order. It is to mention here that only in the year 1982-83, the petitioners challenged the order dated 27.4.1978 by directly filing ROR before the Financial Commissioner, Haryana, without first challenging the said order before the Collector and the Commissioner. CWPs No. 4217 & 4219 of 1985 -5- On 29.7.1978, the petitioners again filed an application for excluding the land purchased by them from the surplus pool. But during the course of hearing, Dalip Singh, one of the petitioners, made statement on 21.10.1981 giving consent to include 42 kanals 8 marlas of land of Rectangle No. 36 Killas No. 14/2, 15, 16, 18 min, 19, 20, 23, 25 in the surplus pool by excluding 22 kanals of land out of 64 kanals 8 marlas of land, purchased by them. As per the said statement made by one of the petitioners, vide order dated 21.10.1981, the application was dismissed, while excluding 22 kanals of land from the surplus pool and including 42 kanals 8 marlas of land, out of 64 kanals 8 marlas. The petitioners filed an appeal against the said order, which was dismissed by the Collector, Kurukshetra, vide order dated 26.4.1982. Against the said order, the petitioners filed revision under Section 18 (4) of the Haryana Ceiling Act, which was also dismissed by the Commissioner, Ambala Division, vide order dated 5.7.1983. Feeling aggrieved against the above orders, the petitioners filed ROR No. 288 of 1982-83 under Section 18 (6) of the Haryana Ceiling Act before the Financial Commissioner, Haryana. They also filed ROR No. 286 of 1982-83 against the order dated 27.4.1978, passed by the Collector (Agrarion), Kaithal. Both these revision petitions were dismissed by the Financial Commissioner, Haryana, by a common order dated 17.6.1985, against which the petitioners have filed these two separate writ petitions i.e. CWP No. 4217 of 1985, challenging the order passed in ROR No. 286 of CWPs No. 4217 & 4219 of 1985 -6- 1982-83 and CWP No. 4219 of 1985, challenging the order passed in ROR No. 288 of 1982-83. I have heard learned counsel for the parties and have gone through the impugned orders. The grouse of the petitioners is only against part of the order dated 27.4.1978, passed by the Collector (Agrarion), Kaithal. Learned counsel for the petitioners argued that at the time of passing of the aforesaid order, the Collector (Agrarion), did not follow the provision of Section 19-F (b) of the Punjab Act, while evaluating the total land of the petitioners, including the land purchased by them vide sale deed dated 8.7.1959. According to the learned counsel, evaluation of the land, purchased by the petitioners as well as their other land, should have been taken as it existed on 8.7.1959. If evaluation of the land could have been done in that manner, then the Collector (Agrarion), could not have declared 2 Standard 15 ½ Units as surplus in the hands of the petitioners. Only to that extent, the order dated 27.4.1978 is illegal. As far as granting of benefit of the Government instructions dated 20.4.1968 to the extent of 10 Standard Acres to each of the petitioners is concerned, it is perfectly valid. Learned counsel argued that if the order dated 27.4.1978 is upheld, then the second writ petition, whereby the subsequent orders dated 21.10.1981, 26.4.1982, 5.7.1983 and 17.6.1985 have been challenged, has no force on merits, because those orders are based upon the order dated 27.4.1978. I have considered the arguments of learned counsel for the CWPs No. 4217 & 4219 of 1985 -7- petitioners as well as the respondents with regard to the legality and validity of the order dated 27.4.1978. Undisputedly, in the present case, on 8.7.1959, after the appointed day i.e. 30.7.1958, the petitioners had purchased 64 kanals 8 marlas of land from a big landowner. Such purchase from the big landowner was not to be excluded but was to be included in the land holding of the big landowner, while determining his surplus land. Keeping in view the said fact, vide order dated 10.6.1961, the Collector (Agrarion), Kaithal, did not exclude the land in the hands of the big landowner and declared his 10 Standard Acres 80 Units of land as surplus, which also included the land purchased by the petitioners. Subsequently, the petitioners filed a review application before the Collector (Agrarion), Kaithal, with a prayer to exclude their purchased land from the surplus pool, as the big landowner had defrauded them, while not including the said land in his permissible area at the time of making the choice. The said review application of the petitioners was dismissed on 28.7.1962. The petitioners did not challenge the said order and the same became final. Thereafter, with effect from 24.1.1971, the Haryana Ceiling Act came into force and by virtue of Section 12 (3) of the Act, area declared surplus under the Punjab Act automatically vested in the State with effect from 24.1.1971, free from all encumbrances, irrespective of the fact whether it was utilised or not under the Utilisation Scheme. Thereafter, in the year 1976, i.e. on 13.10.1976, the petitioners filed an application for exemption of their purchased land from the surplus CWPs No. 4217 & 4219 of 1985 -8- pool, which was to be utilised under the Utilisation Scheme. That application was filed on the basis of the Government instructions dated 20.4.1968. However, before the Collector (Agrarion), Kaithal, the petitioners prayed for exemption of their entire purchased land on the ground that they had purchased the same on 8.7.1959 from a big landowner, and their land should not have been included in the surplus pool, but their said contention was rejected and it was held that since they had purchased the land after the appointed day, therefore, the land purchased by them was rightly taken into consideration, while determining the surplus area of the big landowner. However, benefit of the Government instructions dated 20.4.1968 was given to each of the petitioners to the extent of 10 Standard Acres. Since the purchased land and their own ownership land was 32 Standard 15 ½ Units, therefore, after permitting them to retain 30 Standard Acres, the remaining 2 Standard 15 ½ Units of land was found in excess and the land purchased by them to that extent was not exempted from the surplus pool, which was to be utilised for allotment to the eligible persons under the Utilisation Scheme. It is admitted position that after the said order, the petitioners themselves selected the land, which was to be excluded from the surplus pool and the remaining land was included in the surplus pool. On the basis of their selection, the order dated 21.10.1981 was passed, which was subsequently challenged before the Collector, Kurukshetra as well as the Commissioner, Ambala and the Financial Commissioner, Haryana. It is also undisputed position that vide order CWPs No. 4217 & 4219 of 1985 -9- 22.6.1982, 42 kanals 8 marlas of land of the petitioners, which was not exempted from the surplus pool, was allotted to the bonafide eligible persons i.e. respondents No.4 to 7 in CWP No. 4217 of 1985 (respondents No.6 to 9 in CWP No. 4219 of 1985) and subsequently, on 2.12.1982, they were delivered possession of the land. For the first time, in the year 1982-83, the petitioners challenged the order dated 27.4.1978 by filing ROR No. 286 before the Financial Commissioner, Haryana, without availing the remedy of appeal and revision before the Collector and the Commissioner. The said revision was filed under Section 24 of the Punjab Act by proceeding on the presumption that the said order dated 27.4.1978 was passed under the Punjab Act. The only contention of learned counsel for the petitioners before the Financial Commissioner, Haryana, as well as before this Court, to challenge the correctness of the order dated 27.4.1978, is that the Collector (Agrarion), Kaithal, while passing this order, has not followed the provision of Section 19-F (b) of the Punjab Act, while evaluating the total land of the petitioners, including the land purchased by them from the big landowner. According to the learned counsel, the Collector (Agrarion), should have evaluated the total land of the petitioners, while taking value of the land in the year 1959, when the land was purchased by them. In this regard, learned counsel for the petitioners relied upon certain observations made by the Hon'ble Supreme Court in Bhagwan Das v. The State of Punjab and others, 1966 PLJ 110, wherein it was observed that the entire land held by CWPs No. 4217 & 4219 of 1985 -10- the landowners in the State of Punjab on the date of commencement of the Punjab Act must be evaluated as on that day and status of the landowner and his surplus area, if any, must be then ascertained. If he is then found to be a small landowner, he continues to be so for the purpose of the Punjab Act, until he acquires more land and on taking into account the value of the land in terms of Standard Acres on the date of acquisition, he is found to be a big landowner. The landowner is required to make necessary reservations or selections and to give the necessary declarations so that his status and the surplus area, if any, held by him may be so determined. After hearing learned counsel for the parties, I do not find any force in the contention of learned counsel for the petitioners. In my view, the provision of Section 19-F of the Punjab Act is not applicable in the instant case, because in this case, land of the petitioners was not declared surplus under the provisions of the Punjab Act. By the impugned order, the petitioners were given benefit of certain Government instructions, according to which certain vendees, who had purchased land between the period from 31.7.1958 and 15.4.1966 and who fulfilled the prescribed conditions, were to be given exemption from the surplus pool, so that their purchased land be not utilised for allotment to the eligible persons under the Utilisation Scheme, though such land was included in the land of the big landowner and was declared surplus under the Punjab Act. Therefore, when the Collector (Agrarion), Kaithal, decided the request of the petitioners for granting exemption to their purchased land under the Government CWPs No. 4217 & 4219 of 1985 -11- instructions, he had not determined the surplus land of the petitioners under the provisions of the Punjab Act. He had only given certain benefits according to the Government instructions, as the petitioners were fulfilling those conditions, though part of their land was already declared surplus in the hands of the big landowner. When the petitioners moved an application for the said relief in the year 1976, by that time, the land of the petitioners had already been declared surplus in the hands of the big landowner and with the coming into force of the Haryana Ceiling Act, by virtue of Section 12 (3) of the Act, the said land automatically vested in the State with effect from 24.1.1971, irrespective of the fact whether it was utilised or not under the Utilisation Scheme and whether possession was taken over or not. Therefore, it was not a case of re-determination of the surplus land, where valuation of the land is to be made in accordance with the provisions of the Punjab Act. In the present case, the petitioners were given benefit of the Government instructions and in my view, the learned Financial Commissioner was right, while observing that in that situation, valuation of the land has to be made on the date, the petitioners were granted benefit under those instructions. Therefore, the valuation taken by the Collector (Agrarion), on the basis of the Jamabandi for the year 1972-73 is perfectly valid. When the petitioners were heard by the Collector (Agrarion), while passing the order, the petitioners did not raise any such plea, as is clear from the said order, which has been annexed as Annexure P-1 (in CWP No.4217 of 1985) and Annexure R-1 (in CWP No. 4219 of 1985). At that time, the CWPs No. 4217 & 4219 of 1985 -12- petitioners only raised the plea that they were defrauded by the big landowner, while putting the purchased land out of his permissible area. Though the contention of the petitioners for excluding the entire land was rejected on the ground that their purchase was not protected under the Punjab Act, but they were given benefit of the Government instructions. It is admitted fact that though against the said order, the petitioners could file appeal or revision before the Collector and the Commissioner, but they did not challenge the said order for four years. Not only that, thereafter, they themselves choose the land, which was to be exempted from the surplus pool. On their choice, 2 Standard 15 ½ Units area (equal to 42 kanals 8 marlas) was kept in the surplus pool and the remaining land was excluded from the surplus pool. After that, the said land was allotted to the bonafide eligible persons and possession of that land was also delivered to them. After delivery of possession and allotment, when the appeal as well as the revision, filed by the petitioners, were dismissed, then for the first time, in the year 1982-83, at a belated stage, the petitioners challenged the order dated 27.4.1978 before the Financial Commissioner. In my opinion, the petitioners with full knowledge had purchased the land from the big landowner, after the appointed day. Their review application for excluding the said land from the surplus pool of the big landowner was dismissed on 28.7.1962. The petitioners did not challenge that order also. Though by virtue of Section 12 (3) of the Haryana Ceiling Act, the surplus land declared in the hands of the big landowner absolutely vested in the State CWPs No. 4217 & 4219 of 1985 -13- with effect from 24.1.1971, irrespective of the fact whether it was utilised or not under the Utilisation Scheme, even then in the year 1978, the petitioners were given benefit to the extent of 10 Standard Acres each, and their land to the extent of 2 Standard Acres 15 ½ Units was ordered to be kept in surplus pool. Therefore, in my opinion, the petitioners have already been given the benefit, which they deserve under the Government instructions and the provisions of the Punjab Act were not applicable, as by that time, the Haryana Ceiling Act had come into force. Under the Punjab Act, the permissible area was 30 Standard Acres for each land owner. Under the Haryana Ceiling Act, the permissible area is near about 10 Standard Acres. Keeping in view the aforesaid facts and conduct of the petitioners, the Financial Commissioner, Haryana, has rightly dismissed the revision petition, filed by the petitioners, challenging the said order and while observing that valuation of the land has to be taken on the day, the benefit was to be given to the petitioners under the Government instructions. Therefore, I do not find any illegality in the order dated 27.4.1978 as well as all the subsequent orders, which were passed on the basis of the said order. Consequently, both the petitions are dismissed. September 07, 2010 ( SATISH KUMAR MITTAL ) ndj JUDGE Refer to Reporter