CWP No. 1871 of 1983 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 1871 of 1983 (O&M) Date of decision : 24.5.2011 Om Parkash & others ...Petitioners v. State of Haryna and others. ...Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. R. S. Mittal, Sr. Advocate with Mr. S. K. Tripathi, Advocate for the petitioners. Mr. Anjum Ahmed, Additional Advocate General Haryana, for respondent Nos. 1 to 5. Mr. Amit Jain, Advocate for respondent Nos. 6 to 12. **** RAJESH BINDAL, J. Challenge in this writ petition is to the orders dated 16.08.1979 (Annexure P3), 23.09.1981 (Annexure P4) and dated 17.11.1982 (Annexure P6) passed by Collector (Surplus Area), Fatehabad; Additional Commissioner, Hissar Division and Financial Commissioner, Haryana, respectively. Brief facts of the case are that Suraj Bhan landowner owned land measuring 16.79 Ordinary Acres/4.47 Standard Acres in village Bhirrana, out of which land measuring 4.93 Ordinary Acres/0.77 Standard Acres had been entered as Banjar Jadid or Kadim and that land measuring 3.60 Ordinary Acres/1.10 Standard Acres was under the cultivation of old tenants and never came under CWP No. 1871 of 1983 2 self cultivation of the landowner. Suraj Bhan also owned land measuring 45.81 Ordinary Acres/31.64 Standard Acres in village Bhodia Khera, out of which land measuring 30.42 Ordinary Acres/19.51 Standard Acres was under the cultivation of old tenants and never came under the cultivation of the landowner. Land measuring 2.91 Ordinary Acres/1.50 Standard Acres was owned by Suraj Bhan in village Bangran and land measuring 21.37 Ordinary Acres/5.06 Standard Acres in village Razabad. It is pleaded that deceased Suraj Bhan was owner of land measuring 43.45 Standard Acres. Vide order dated 27.08.61 passed by Collector (Surplus Area), 13.45 Standard Acres of land owned by him was declared surplus. The order was appealed against by deceased-Suraj Bhan before the Commissioner, Ambala Division. The same was set aside vide order dated 13.10.1964 and the matter was remanded back to the Collector (Surplus Area), Hissar for fresh determination of surplus area with certain observations. While deciding the case on 03.02.1965, Collector (Surplus Area) held that land measuring 4.93 Ordinary Acres/0.77 Standard Acres which was entered in the revenue record as Banjar Kadim is to be excluded from the holding of the land owner for the purpose of assessment of surplus area in his hands. Land measuring 38.03 Ordinary Acres equivalent to 21.29 Standard Acres under cultivation of old tenants was excluded, in view of provisions of Section 2(5-a) of the Punjab Security of Land Tenures Act 1953 (for short 'the Punjab Act'). Excluding the aforesaid area, deceased Suraj Bhan was found to be CWP No. 1871 of 1983 3 owner of 38.03 Ordinary Acres/21.29 Standard Acres of land which was less than the permissible area as prescribed in Section 2(3) of the Punjab Act. The area which has reduced while passing order dated 03.02.1965 as tenants' permissible area was utilized by the State Govt. vide order dated 10.08.1976 by allowing the same to the tenants who were in possession of the land. Subsequent thereto, the successor-in- interest of deceased-Suraj Bhan filed application under Section 10-A(b) of the Punjab Act for not utilizing the land belonging to deceased Suraj Bhan (died on 20.04.1976) on the ground that legal heirs are entitled to complete the holding to permissible area as defined under the Punjab Act. The application was dismissed by the Collector (Surplus Area) holding that the order dated 03.02.1965 passed by the Collector determining the tenants permissible area was not challenged at the relevant time and now the issue could not be reopened after the death of Suraj Bhan. The order was upheld by the Additional Commissioner in appeal and by the Financial Commissioner in revision. Learned counsel for the petitioners submitted that at the time when the surplus area was being determined, deceased-Suraj Bhan was entitled to retain 30 Standard Acres of land in terms of the provisions of Section 12(3) of the Punjab Act. In order dated 03.02.1965 it was only 21.29 Standard Acres of land which was found to be in his possession, hence, the order passed by the Collector (Surplus Area) was not in conformity with law. It is not disputed that while calculating surplus area, certain area in possession of the tenants was reduced considering as tenants' permissible area. CWP No. 1871 of 1983 4 On the other hand, learned counsel for the respondents submitted that as order dated 03.02.1965 was not challenged by deceased-Suraj Bhan, his legal heirs did not have any right to challenge the same, after his death on 20.04.1976. He further submitted that after the area had been utilized by the State on 10.8.1976 by allotting the same to the tenants, application under Section 10-A(b) of the Punjab Act was filed by the legal heirs of deceased-Suraj Bhan on 19.10.1976 for re-determination of the permissible area of deceased- Suraj Bhan. He further submitted that Act which was applicable in the State of Haryana after it was carved out of State of Punjab on 01.11.1966, was repealed and Haryana Ceiling on Land Holdings Act, 1972 was enacted which came into force retrospectively w.e.f 23.12.1972 . There is no dispute about the fact that at the time when the petitioners filed application under Section 10-A(b) of the Punjab Act, the same was not applicable in the State of Haryana as it stood repealed and new Act had been enacted. After hearing learned counsel for the parties, I do not find any merit in the present petition. Undisputedly, in the order dated 3.2.1965 the Collector (Surplus Area) while deciding the case after remand from the Commissioner and recalculating the surplus area belonging to deceased-Suraj Bhan had reduced 20.61 acres of land which was found to be in cultivating possession of the tenants, in terms of provisions of Clauses 5-a of Section 2 of the Punjab Act. As stated the permissible area of the tenants was utilized by the State Govt. on 10.08.1976 by holding the same to be under tenants' possession. The application filed by the LRs of deceased-Suraj Bhan CWP No. 1871 of 1983 5 on 19.10.1976 under Section 10-A (b) of the Punjab Act for recalculation of the surplus area belonging to deceased-Suraj Bhan was dismissed by the Collector. The order was upheld in appeal and revision on the ground that order passed by the Collector on 03.02.1965 calculating the surplus area belonging to deceased Suraj Bhan having not been challenged at the relevant time, the issue could not be reopened after his death. Challenge to the order passed by the Collector Surplus Area dated 03.02.1965 whereby the surplus area belonging to deceased-Suraj Bhan was determined being not in conformity with law, is not worthy of acceptance, the same being highly belated. The application filed by the petitioners on 19.10.1976 before the Collector, Surplus Area under Section 10-A(b) of the Punjab Act was also not maintainable as the said Act stood repealed on 13.12.1972 with the enactment of Haryana Ceiling on Land Holdings Act, 1972. Further, the reasons mentioned above, I do not find any merit in the present writ petition, the same is accordingly dismissed. (RAJESH BINDAL) JUDGE May 24, 2011 savita