Civil Writ Petition No.1495 of 1987 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: January 29, 2009 Hari Chand & others .....Petitioners VERSUS State of Haryana & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Rajesh Chaudhary, Advocate, for the petitioners. Mr.Narender Sura, AAG, Haryana, for the respondents. **** RANJIT SINGH, J. The petitioners pray for quashing of order dated 4.6.1960 passed by Collector Agrarian, Kaithal and order dated 9.8.1962 passed by the Collector Agrarian declaring 18th Std. Acres 54 units of land surplus at hands of the father of the petitioners. Plea is that these orders are illegal, unconstitutional and void being violative of principles of natural justice. Father of petitioner No.1 and grand-father of petitioners Civil Writ Petition No.1495 of 1987 : 2 : No.2, 3 and 4, namely, Desa Singh son of Nanda was resident of Rohera, part of Tehsil Kaithal. He owned 48 Std. acre and 54 units of land as on 15.4.1953. On 4.6.1960, Collector Agrarian, Kaithal (respondent No.2) declared 18 Std. acres and 54 units equivalent to 20 ordinary acres of land as surplus in the hands of said Desa. Copy of this order is at Annexure P-1. Consolidation took place in the year 1961-62. It is alleged that respondent No.2, vide order dated 6.7.1962, included khasra numbers of one Shri Nanak son of Harbhaj, whose surplus case was also being decided along with that of said Desa to the extent of 22 Std. acres 25 units in the name of Desa. Petitioners would claim that this was done without any notice to Desa and, thus, more area was declared surplus as was through order dated 4.6.1960. The petitioners filed a civil suit in the year 1969 against Desa seeking declaration that they are owners of land in dispute measuring 419 kanals 16 marlas. Desa had also executed a registered Will in favour of petitioner Nos.2, 3 and 4 in respect of 170 kanals and 6 marlas of land. After the death of Desa on 12.6.1977, the mutation was sanctioned in favour of petitioners No.2, 3 and 4 on 23.9.1978. Subsequently, respondent No.2 apparently rectified the mistake declaring 22 Std. acres land surplus at the hands of Desa instead of 18 Std. acres on 1.9.1979. Accordingly, new khasra numbers of the land which was surplus at the hands of Desa, were so mentioned in the order. The counsel for the petitioners would contend that surplus case of Shri Desa has, thus, been decided for the first time on 1.9.1979 and this was also done without any notice to petitioner Civil Writ Petition No.1495 of 1987 : 3 : Nos.2, 3 and 4. Plea is that the petitioners have inherited the land of Desa before it was declared surplus on 1.9.1979 and no utilisation had taken place. Accordingly, it is pleaded that the petitioners would be entitled to the benefit of Section 10-A of the Punjab Security of Land Tenures Act, 1953. No area could be declared surplus in the hands of Desa son of Nanda on 1.9.1979 as he was dead and inheritance in favour of the petitioners would open. The petitioners had accordingly impugned the order dated 1.9.1979 being a nullity as it was passed without any notice to the petitioners. Reply in this case has been filed. Respondent-State has raised a preliminary objection saying that the writ petition is liable to be dismissed on the ground of delay and laches. It is pointed out that the order dated 4.6.1960 has now been challenged as subsequent order dated 1.9.1979 was only aimed at correcting the clerical mistake and is not a fresh order. It is accordingly stated that the petitioners have not explained the delay in filing the writ petition. It is also pleaded that the land, which was declared surplus, has already been allotted to seven tenants on 30.7.1980 and possession thereof has been handed over to them. They, however, have not been impleaded as party in this writ petition. The other contentions on merits are also denied and it is pleaded that the writ petition deserves to be dismissed. The counsel for the petitioners has raised three-fold submission before me. He would first contend that Form-F was not served at the time when the land was declared surplus in the hands of Desa and as such this order declaring the land surplus cannot be sustained. The counsel would then contend that the order dated Civil Writ Petition No.1495 of 1987 : 4 : 1.9.1979 could not have been made by Collector Agrarian, Jind as the power of review, revision or appeal would lie before Financial Commissioner, Revenue in terms of Section 24 of the Punjab Security of Land Tenures Act, which provides that provision in regard to appeal, review or order would be the same as provided in Sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1887. The counsel would further contend that order, Annexure P-5, having been passed on 1.9.1979 being a fresh one would make the petitioners entitled to the benefit of Section 10-B of the Punjab Security of Land Tenures Act, 1953. The first submission of the petitioners is that no Form-F was served upon Desa son of Nanda vide Annexure P-1, when 18 Std. acres and 54 units were declared surplus. In response, the State counsel would point out that Desa was alive till 12.6.1977, but he never raised any objection in this regard during his life time. Whether he was served Form-F along with orders Annexures P-1 and P-2 would be a fact which would be in the knowledge of Desa and the petitioners are in no position to say that From-F was not served to Desa along with the orders. This averment as made in para 11 of the petition has been denied by the State being wrong and incorrect. Otherwise also, there is no material placed on record to show that Form-F was not served on Desa. The State counsel is justified in his submission that it would be Desa, who can say whether the Form-F was served on him or not and the petitioners would not have any knowledge in this regard, who are the son and grand-sons of Desa. In my view, the petitioners have not been able to substantiate their plea that Form-F was not served along with the impugned orders. Civil Writ Petition No.1495 of 1987 : 5 : Whether Form-F was served to Desa or not, would be a question of fact required to be proved, which the petitioners have not been able to do and otherwise cannot be permitted to do so before the writ court. I am equally not impressed with the submissions made by the counsel for the petitioners that order, Annexure P-5, dated 1.9.1979 would be a fresh order and also that this will not be within the jurisdiction of Collector Agrarian. The entire basis of this submission as made by the counsel for the petitioners apparently is misconceived. According to the counsel for the petitioners, order Annexure P-1 has been made either as a revision, review or appeal, which is factually not so. The question of jurisdiction of the Collector would arise only in case order, Annexure P-5, is taken to be a fresh order declaring the land of Desa surplus. In fact, 18 Std. acre of land in the hands of Desa was declared surplus on 4.6.1960. However, due to some inadvertent mistake, the numbers of one Nanak, whose case was also being decided, got wrongly tagged with the case of Desa and that of the petitioners with that of Nanak. This inadvertent mistake, when came to the notice, was corrected by passing order, Annexure P-5. The petitioners are unnecessarily trying to make a mountain out of molehill by terming this order to be in review or revision. Indeed, it is not so. In fact, this was only to correct the clerical mistake that had crept into the order passed in the year 1960. It is noticed by the Collector that on examination of the documents, he has found that by mistake a list of khasra numbers in the ownership of Nanak was tagged on the file of Desa and that of the area owned by Desa was attached with the file of Nanak. The Civil Writ Petition No.1495 of 1987 : 6 : contention raised on behalf of Desa that no notice was served on him was rightly considered to be having no effect as indeed he was served a notice, but the documents were inadvertently tagged wrongly. Noticing that this was only a clerical mistake and it can be corrected under Section 7 of the Haryana Ceiling on Land Holdings Act, at any time, the area at the hands of Desa was reduced by 3 Std. acres and 71 units. Under these circumstances, this cannot be termed as a fresh order as is being made out by the counsel for the petitioners. Learned State counsel is again justified in his submission by pointing out to the provisions of Section 18 and 19 of Haryana Ceiling on Land Holdings Act ,1972, which makes a separate provision for appeal and those where only clerical mistakes are to be corrected. The counsel is, thus, justified in submitting that the order, Anneuxre P-1 was only to correct the clerical mistake and as such cannot be teated as an order in review or revision for which the Collector Agrarian would lack in jurisdiction as pleaded. Once, it is held that order, Annexure P-1 is not a fresh order, but only a correction of a clerical mistake of an order passed earlier, the submission of the counsel for the petitioners that it would open inheritance after the death of Desa or that this order is passed against dead person cannot be accepted. His plea for availing the benefit of Section 10-B of the Punjab Security of Land Tenures Act, accordingly would also not be available to him. In view of the above, I find no merit in the petition and accordingly would dismiss the same. January 29, 2009 ( RANJIT SINGH ) ramesh JUDGE Civil Writ Petition No.1495 of 1987 : 7 :