C.W.P. No.12370 of 1992 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.12370 of 1992 Date of Decision : 02.05.2011 Chander Bhan and others …Petitioners Versus The State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE AJAY TEWARI -.- Present: Mr. Mahipal Singh, Advocate for the petitioners. Ms. Shalini Attri, D.A.G., Haryana. *** AJAY TEWARI, J. (ORAL) By this petition the petitioners have challenged the declaration of surplus area under the Haryana Ceiling of Lands Holdings Act, 1972 (for brevity ‘the Act’). By declaration dated 24.01.1977 the detail of the family of the petitioner No.1 consisted a wife and five minor sons. However, in the statement of petitioner No.1 made before the prescribed authority on 15.12.1977 he mentioned that he has also one minor daughter. Apart from that in Annexure P-2 (Jamabandi) it has also mentioned C.W.P. No.12370 of 1992 -2- that 13 kanals and 8 marlas of land was in the possession of Dholidars family. By order dated 30.12.1977 (Annexure P-4) 539 kanals and 14 marlas of land was declared as surplus. The statutory remedies against the same having been dismissed the present writ petition has been filed. Learned counsel for the petitioners has argued that as per Section 4(2) of the Act the petitioner No.1 was entitled to 3 additional units since he has 6 children. He has also claimed that 13 kanals and 8 marlas of land which has been mentioned as being in the possession of Dholidars has to be excluded. Three additional points which have been taken are; that the petitioner No.1 also has an adopted son; that some land which was sold by the petitioner No.1 in the year 1969 was pre-empted by his sons in the year 1970; and that he had only one motor of 5 Horse Power and, therefore, 525 kanals and 10 marlas of land could not have been declared as Chahi. As regards the argument about the land having been pre- empted by the sons of petitioner No.1 that benefit cannot be given to the petitioners because Section 4 of the Act defining permissible area includes person or family consisting of husband, wife and upto three minor children. The only benefit which can be granted for children more than 3 is that each such child is entitled the land owner to increase the permissible area by 1/5th of the permissible area of the primary unit of family for each additional member of family. Thus, C.W.P. No.12370 of 1992 -3- in case the petitioner No.1 has six children he would be entitled to 3 additional units of 1/5th each. Consequently the argument that the land which was pre-empted by sons of petitioner No.1 to be treated separately is rejected. Learned counsel for the petitioners has further argued that on the date when the prescribed authority passed the order the minor sons had become major and no notice was issued to them and that Section 10 of the Act provides that no such order shall be made without giving all persons interested an opportunity of being heard. In this regard it must be noticed that there was a shift in the legislative policy in between the passing of the Punjab Security of Land Tenures Act, 1953 and the Haryana Ceiling on Land Holdings Act, 1972. Under the Punjab law (or that for matter under PEPSU law) even if a declaration for surplus area was made the same remained inchoate till such time the land was utilized and it is in that context the right was given to all such person who may require such interest in the interregnum held to be entitled for notice. Under the Haryana law, on the contrary, all surplus area vests in the State on 24.01.1971. Therefore, any development which took place after that date would be irrelevant for the purpose of this law. As regards the third argument that the petitioner No.1 had an adopted son who was a major on the appointed day, as is rightly pointed out by the authorities below that there was no question of C.W.P. No.12370 of 1992 -4- adopting a son when the petitioner No.1 already have 5 sons of his own. It seems that the adopted son was created only to save the land from being declared as surplus. Consequently, this argument is also to be rejected. As regards the remaining three arguments the same cannot be rejected out of hand. It is not clear from the orders or from the written statement as to for how many additional unit benefit was given to the petitioners. Learned Deputy Advocate General even on instructions from Sh. Raj Kumar, Naib Tehsildar, Jhajjar is not in a position to exactly tell the court whether the benefit was given to the petitioners for six children or not. However, it has been argued by learned Deputy Advocate General that in the declaration the petitioner No.1 did not mention about his daughter and therefore he cannot be given the benefit thereof. However, I find that before the Financial Commissioner also a specific plea was taken that a daughter had been born to the petitioner No.1 in the year 1968. Even before this Court a specific averment has been made that a daughter had been born to the petitioner No.1 in the year 1968 but no reply thereto has been filed. It is however not denied that in the declaration five sons were mentioned. In the circumstances, even though this Court is not in a position to finally opine whether the petitioner No.1 has a daughter also it would be in the interest of justice if the petitioners are allowed to present evidence thereof C.W.P. No.12370 of 1992 -5- before the competent authority and it would be open to the competent authority to take a decision because if the daughter was born (as has been mentioned in the statement Annexure P-3) merely non-mentioning of the same in the declaration could not have any affect on the statutory right of the petitioners. It is also now beyond the pale of any controversy that any land which has been given to Dholidars has to be excluded from the land of the petitioners. The argument that 525 kanals and 10 marlas of land could not be irrigated with 5 Horse Power motor has also not been considered. Again it is not for this Court to give any final opinion whether 525 kanals and 10 marlas of land can be irrigated by the motor of 5 Horse Power. But definitely it would be better if the same is decided by the prescribed Authority. Consequently, even while rejecting the claim of the petitioners for the adopted son and for the inclusion of the land which was pre-empted by the sons of the petitioner No.1 as well as alleged majority of the petitioners No.2 to 7 on the date of passing of the order, this writ petition is allowed and the impugned orders are set aside with a direction to the prescribed Authority to pass a fresh decision in the manner indicated above. Petitioners No.1 to 7 are directed to appear before the prescribed authority on 02.07.2011. The prescribed authority shall give two opportunities to the petitioners to lead evidence with regard C.W.P. No.12370 of 1992 -6- to daughter of petitioner No.1 and with regard to the allegation that 525 kanals and 10 marlas of land cannot be irrigated by one motor of 5 Horse Power. At this stage Sh. Raj Kumar, Naib Tehsildar on the basis of record has stated that petitioner No.1 has since died. Be that as it may the matter would have to be examined in his hands. Thus petitioners No.2 to 7 are directed to appear before the prescribed authority on the date fixed. It is made clear that no further opportunity would be granted to make good these averments. ( AJAY TEWARI ) May 02, 2011 JUDGE ashish