IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3142 of 1986 (O&M) Date of decision: 21.10.2011 Midhu Ram (deceased) through his L.Rs. ...Petitioner versus The State of Haryana, through the Secretary, Revenue Department, Haryana Government at Chandigarh, and others. ....Respondent CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Prem Nath Aggarwal, Advocate, for the petitioner. Mr.O.P. Sharma, Additional Advocate General, Haryana, for respondents 1 to 4. Mr. Adarsh Jain, Advocate, and Mr. C.B.Goel, Advocate, for respondent No.5. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The petitioner challenges the action taken by the authorities constituted under the Haryana Ceiling on Land Holdings Act of 1972 on the ground that the property held by him was leasehold from the original landowner and the action could not have been taken (i) without notice to him, (ii) without determining the tenant's permissible area, and (iii) as a person, who was in possession and claiming ownership under a decree from the original Civil Writ Petition No.3142 of 1986 (O&M) - 2 - landowner. His holding could not be brought within the surplus pool. The further argument is that the landowner Abhimanyu from whom he had become the tenant died on 18.01.1992 when the proceedings were still pending and consequently, by virtue of Section 12, surplus holding would require to be redetermined since the property was not utilized by the State and the proceedings were still continuing before this Court. 2. The objection to the petitioner's claim is made by the landowner Abhimanyu and after his death, through his legal heirs, contending that the determination of surplus in respect of the property held by the petitioner cannot be faulted since the law enabled the owner to make a selection of his permissible area in any manner he desired and the property held by the petitioner cannot be compelled to be brought within his permissible area for that would mean visiting the petitioner with a reduction of the extent which he was entitled to hold in his capacity as an owner. If the property held by the petitioner were to be declared as surplus, it will be independently worked out by the tenant to protect his possession in the manner provided under the Utilization of Surplus Lands from the Government and the landowner cannot be made to suffer on that account. The counsel would argue that in the manner of selection, the compulsion can be only with reference to the property transferred by him after the appointed date in contravention of the provisions of Section 8 and that it was nobody's case that he had Civil Writ Petition No.3142 of 1986 (O&M) - 3 - made such a transfer subsequent to the appointed date. He could not, therefore, be compelled to make selection of the property which is claimed by the petitioner as a lessee or a transferee from the landowner. 3. The State defends its action by contending that the property was claimed by the petitioner in his own right and there was no need to serve any notice to him since there was no document of lease or transfer produced by him and no direction could, therefore, be given to serve a notice to him. 4. The learned counsel for the petitioner relies on the entries in the jamabandis for the year 1960-61 to 1979-80 (Annexures P-1 to P-5) that show the petitioner has been in possession of the property. I do not feel compelled to go into the question of whether the petitioner had been a lessee of the property or a transferee under a decree brought between the landowner and the lessee. In either case at the time when the Government was taking a decision for determination of the surplus area, the Government could not have declared the property entered in the name of the petitioner to fall within the surplus pool without serving a notice to the petitioner. The requirement of law to serve a notice either to a tenant or a transferee from the owner is too well established to doubt and, therefore, any determination without such notice ought to be seen as not valid. If the Government had its own record that showed the petitioner's entries in the property right from Civil Writ Petition No.3142 of 1986 (O&M) - 4 - the year 1960-61, then without determining the character of possession to such property, there could not have been a decision to treat the said property as falling within the surplus pool. After all the Government determines the surplus of the area of the landowner and without holding the property held by the petitioner as a property of the landowner, there could not have been a declaration of surplus at all. The petitioner must either figure as a transferee from the landowner or a lessee from landowner before the property could be included in the surplus pool of the landowner. 5. There is a further dimension to this case, viz., there has arisen an issue of inheritance to the landowner before the determination of declaration of surplus has attained finality before this Court. When the proceedings are still pending and the order of the Collector is still in challenge if the landowner has died and the succession has opened and the determination of the ceiling area under Section 4 ought to take into account the succession as well. In terms of Section 12, the surplus area of the landowner shall be from the date on which it is declared as such..........(emphasis supplied). The declaration must be understood as such declaration which has become final. In this case, since the declaration has not become final, the entire determination of the surplus area will have to be made by taking note of the effect of such inheritance. 6. The impugned order cannot stand in the eye of law and would require to be set aside. The matter is remitted to the Collector Civil Writ Petition No.3142 of 1986 (O&M) - 5 - (Agrarian) for a fresh consideration after notice to all the parties, who would be affected, namely, persons claiming as lessees, transferees, or owners as brought through revenue entries. 7. The writ petition is disposed of in terms of the above. (K. KANNAN) JUDGE 21.10.2011 sanjeev