CWP No.2500 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.2500 of 1984 Date of Decision: 14.8.2008 Gutti .....Petitioner Vs. State of Hareyana and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Mani Ram Verma Advocate with Ms.Shiwani Verma, Advocate for the petitioner. Mr. Ajay Chaudhary, DAG, Haryana for respondents no.1 to 4. Mr.Hemant Sarin, Advocate for respondents no.6 and 7. ... RAJIVE BHALLA, J (Oral) The petitioner prays for issuance of a writ in the nature of Certiorari, for quashing the orders dated 24.4.1984, 3.1.1984 and 4.9.1961. Girdhari Lal-Respondent no.5 was a big land owner. His surplus area case was decided on 4.9.1961 and 105.88 ordinary acres/ 44.41 std. acres were declared surplus in Villages Darba Kalan, Nehranwali and Bir Hansi. The petitioner, alleges that he was the tenant of the big land owner on 15.4.1953, with respect to Killa No47//16 (8K- 0M), 17(8-0), 18(8-0),19(8-0), 20(7-2), 21(3-16), 22(8-0), 63//1(8-0), 10*8-0), 11(7-13), 64//4min (2-0) measuring 76 kanals 11 marlas situated in Bir Hansi, Distt. Hisar and continues in possession as such. After the coming into force of the Haryana Ceiling of Land Holdings CWP No.2500 of 1984 2 Act, 1972 (hereinafter referred to as `the Haryana Act'), the Collector sought to appropriate the land in the petitioner's possession for allotment to the petitioner and the private respondents. 27 kanals of land was allotted to the petitioner. The petitioner filed an appeal on 11.9.1980, before the Commissioner, Hisar Division, Hisar, praying that the order dated 4.9.1961 declaring surplus area be set aside, as it was passed without notice to the petitioner, a sitting tenant and without reserving tenant's permissible area. The learned Commissioner, dismissed the appeal, as being barred by limitation. Aggrieved by the aforementioned order, the petitioner filed a revision before the Financial Commissioner, Haryana. The learned Financial Commissioner, Haryana, vide order dated 12.4.1984, dismissed the revision by holding that on the relevant date i.e. 15.4.1953, one Sudan, stated to be the petitioner's cousin, was recorded as the tenant in the revenue record,and the petitioner's assertion that prior to 15.4.1953 the petitioner's father and thereafter the petitioner is recorded as a tenant, cannot be accepted. Counsel for the petitioner submits that the question that arose for adjudication before the Financial Commissioner was, not necessarily whether the petitioner was the tenant on 15.4.1953 but whether the petitioner or any other tenant was in possession. It is submitted that it is not denied by the State or by the private respondents that the land in dispute was in the possession of tenants on the appointed day. It is not denied that no notice was served upon any tenant, including the petitioner, prior to declaration of surplus area. The learned Financial Commissioner, should have therefore set aside the CWP No.2500 of 1984 3 order dated 4.9.1961 and directed the Collector to redetermine the surplus area after issuing notices to all sitting tenants and also directed the Collector to decide whether the petitioner was in possession as a tenant. Reliance for the submission, that the identity of the tenant is irrelevant once the tenancy continues, is placed upon a Division Bench judgement of this Court reported as Nanak Chand V. The Financial Commissioner, Haryana and others, 1981 PLJ 99 and subsequently followed by this Court in Makhan Singh V. The State of Haryana through the Collector Surplus Area, Sirsa, 2005(3) PLR 123. It is submitted that as the petitioner and prior to him, his father was a tenant, the stray entry in the revenue record for the year 1953, should not have been relied by the Financial Commissioner, to non-suit the petitioner. Counsel for the State of Haryana submits that the petitioner was not a sitting tenant, on the relevant date i.e. 15.4.1953. He, therefore, has no right whether in law or in fact to the grant of a hearing or to claim reservation of tenant's permissible area. It is further submitted that the surplus area was declared in the year 1961, whereas the petitioner filed an appeal in the year 1980. This unexplained delay for almost 20 years, as also the enactment of the Haryana Act, would not entitle the petitioner to any relief. Counsel for the private respondents, who are allottees of a small part of the land in dispute submits that the petitioner has availed the benefit of allotment of 27 kanals and cannot, therefore, approbate and reprobate at the same time. The petitioner having drawn the benefit of an order of allotment, has no right, whether in law or in equity, to challenge the order passed in the year 1961. It is further CWP No.2500 of 1984 4 submitted that as the petitioner had failed to establish his tenancy on 15.4.1953, the present writ petition be dismissed. I have heard learned counsel for the parties and perused the impugned orders. A tenancy, by its very nature, confers tangible civil rights upon a tenant that may only be abridged save by and in accordance with procedure established by law. The Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the `1953 Act') prescribes two types of permissible areas, one reserved by the landlord called the landlord's permissible area and the other reserved by a tenant called the tenant's permissible area. After reservation of the landlords and tenants permissible area, the balance land constitutes surplus area. The 1953 Act, empowers a tenant to file a separate return for declaring the area in his occupation, as tenants permissible area. Rule 6 of The Punjab Security of Land Tenures Rules, 1956 provides for the assessment of surplus area with landowners and tenants and places a statutory obligation on the Collector, to serve a notice upon persons interested in the estate of big land owner, including sitting tenants. Any violation of this statutory mandate would render the order passed non-est A combined reading of the 1953 Act and the Rules framed thereunder makes it abundantly clear that surplus area proceedings, finalised without issuance of a notice to a sitting tenant, would be void, as regards the rights of a sitting tenant. The Collector was, therefore, required, before proceeding to determine the surplus area whether the land belonging to the big landowner was in occupation of a sitting tenant and if so, to issue notice to such a tenant. CWP No.2500 of 1984 5 It is apparent from the facts , that in the year 1953 land belonging to the big land owner,was admittedly in the possession of tenants. However while computing the holding of the big land owner for the purpose of determining his permissible and surplus area, no notice, whatsoever, was issued to or served upon the sitting tenants. The question, whether the petitioner was a tenant or his cousin Sudan was a tenant, is incidental as what is relevant is whether any tenant was in possession of the big landowners land. In Bahadur Ram and others V. State of Punjab and others, 1969 PLJ 372,while considering the rights of tenants it was held that the change of tenants will not affect the permissible area of the tenant if the land remained under one tenant or another from April 15, 1953 i.e. the date when the Act came to be enforced. The correctness of the aforementioned judgement was called into question and a reference was made to a Division Bench. The reference was answered in Nanak Chand's case (supra), by affirming the judgement in Bahadur Ram's case (supra) and holding that change of tenants, provided the land remains the same and the tenancy does not come to an end is immaterial for determining tenant's permissible area. In the case before the Division Bench, the learned Financial Commissioner modified the order passed by the Commissioner to the extent that the Collector, Surplus Area, Hisar was directed to include, in the tenants permissible area all such land, which was comprised in the tenants permissible area on 15.4.1953 and which was under the occupation of the tenants irrespective of the change of tenants. The observations of the Division Bench would necessarily require reproduction. CWP No.2500 of 1984 6 “If the tenant had completely abandoned the tenancy and there was no tenant left at all, in that case different consequences may follow. But in the present case, the direction given by the learned Financial Commissioner to the Collector is quite clear, as the Collector has been directed to include in the tenant permissible area all such land which was comprised in the tenants permissible area on April 15, 1953 and which continued to be so and was under the occupation of the tenants.” It is, therefore, apparent that where tenants are in occupation of land sought to be assessed for determining the landowners permissible/ surplus area,the Collector cannot proceed to determine surplus area without issuing a notice to sitting tenants. Admittedly tenants were in possession of a part of the estate of the big land owner but no notice was issued or served upon them. The Financial Commissioner,therefore committed an error of jurisdiction in dismissing the revision petition, on the ground that the petitioner's name did not appear in the revenue record as a tenant in possession on 15.4.1953. It would necessarily require notice that prior to the appointed day, the petitioner's father is recorded in possession as a tenant. After the appointed day, the petitioner is recorded in possession and on the relevant date i.e. 15.4.1953, one Sudan, the petitioner's cousin is recorded in possession, thus, establishing the fact that on the coming into force of the Act, a part CWP No.2500 of 1984 7 of the land comprising the big landowners estate was occupied by tenants. The above facts having been established the Collector was statutorily and mandatorily obliged to issue notices to the tenants and reserve a tenants permissible area whatsoever the identity of the tenant. The Financial Commissioner, therefore, committed an error in disregarding the law, as set out herein above and in failing to examine the matter with a greater degree of care and consideration. In view of what has been stated herein above, the writ petition is allowed, the order dated 24.4.1984 is set aside and the matter is remitted to the Court of Financial Commissioner, Haryana, for adjudicating the petitioner's revision afresh, in accordance with law. The learned Financial Commissioner would be at liberty to take into consideration the effect of Section 12 (3) of the Haryana Act and to determine, whether in view thereof, surplus area determined in the year 1961, can be reopened at the behest of the petitioner. The Financial Commissioner would be at liberty to decide the controversy, without being influenced by any observations made herein before, as to the factual matrix of the instant controversy. The learned Financial Commissioner shall make every endeavour, to dispose of the petitioner's revision, within a period of six months from the date of receipt of a copy of this order. It is made clear that in case the learned Financial Commissioner, decides to reopen the surplus area case of the big land owner, any such order shall be confined to the land claimed by the petitioner as a sitting tenant in Village Bir Hansi. CWP No.2500 of 1984 8 Parties are directed to appear before the Financial Commissioner on 29.9.2008. No costs. 14.8.2008 (RAJIVE BHALLA) GS JUDGE