Civil Writ Petition No.3640 of 1986 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 17, 2009 Teka & 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.Gopal Sharma, Advocate, for the petitioners. Mr.Yashwinder Singh, AAG, Haryana, for the State. **** RANJIT SINGH, J. This order will dispose of six Civil Writ Petition Nos.3640 of 1986 (Teka & others Vs. State of Haryana & others), 3859 of 1986 (Rupan & others Vs. State of Haryana & others), 3860 of 1986 (Baru & others Vs. State of Haryana & others), 5982 of 1985 (Diwana & others Vs. State of Haryana & another), 5985 of 1985 (Jewna & others Vs. State of Haryana & another) and 9774 of 1987 (Ram Kala & others Vs. State of Haryana & others). Civil Writ Petition No.3640 of 1986 Through this writ petition, the petitioners seek quashing of Civil Writ Petition No.3640 of 1986 : 2 : the order dated 20.9.1960 passed by Collector Agrarian, Kaithal. Vide this order, 22.25 standard acres of land of one Nanak, father of petitioner No.1, was declared surplus. Said Nanak owned 52.25 standard acres of land in village Rahera now in District Jind. The surplus area of Nanak was decided under the provisions of Punjab Security of Land Tenures Act, 1953 (for short “the Tenures Act”). After consolidation, the numbers of the area so declared surplus were changed on 9.8.1962, which is termed by the petitioners as a fresh order, but it is not so. The petitioners filed a civil suit seeking declaration to the effect that they were the owners in possession of 1/6th share each of the land standing in the name of Nanak. This suit was decreed on 5.12.1969. It is claimed that the possession of the land was already with the petitioners. Claim of the petitioners further is that the surplus area declared in the hands of Nanak was not utilised and, thus, Nanak and his son Teka were entitled to separate units. In the year 1979, Collector Agrarian carried out certain rectification of the order dated 9.8.1962. This was allegedly done without any notice to Nanak, who at that point of time was alive. It is pleaded that if Nanak had been served with a notice, he would have learnt that land in possession of the petitioners had not been utilised and, thus, was not liable to be allotted for re-settlement of the tenants. Reference is also made to the provisions of Haryana Ceiling on Land Holdings Act, 1972 (for short “the Ceiling Act”). It is claimed that Nanak and petitioner No.1 requested the official respondents for exemption of surplus area declared under the Tenures Act, which was declined. It is in this background that petitioners have impugned the orders dated Civil Writ Petition No.3640 of 1986 : 3 : 20.9.1960 and 9.8.1962 on various grounds. Writ Petition was admitted on 29.9.1986 and ordered to be heard with Civil Writ Petition No. 2182 of 1984. In the reply filed, it is disclosed that surplus area of Nanak was declared on 20.9.1960 and as such the Ceiling Act will not have any effect. Even the decree in the civil suit is dated 5.12.1969 and cannot have the effect on the land which was already declared surplus. Controverting the averment that notice was not issued to Nanak, it is stated that Teka, his son, appeared and made a statement that his father was blind and deaf and accordingly gave the numbers of the area selected by him under his thumb mark and the surplus land was accordingly declared thereafter. It is also disclosed in the reply that the order dated 9.8.1962 was passed to correct the killa numbers of the surplus area, as by mistake, the numbers owned by Desa were mentioned in the name of Nanak. This mistake was rectified on 1.6.1979. Prayer accordingly is made to dismiss the writ petitions. From the facts as pleaded, it is clear that petitioners never took any action to challenge the order dated 20.9.1960 till they filed the present writ petition on 9.7.1986. Even if the petitioners were to take benefit of the Ceiling Act on the ground that the land declared surplus was not utilised, they were required to file an appropriate application before the competent authority for consideration. This apparently was not done as there is no mention of this fact made in the writ petition. Had they done so, they were entitled to challenge the adverse order in an appeal. Without taking any action for nearly 26 years, the petitioners chose to file the present writ petition and by then the area declared surplus stood utilised. The petitioners cannot Civil Writ Petition No.3640 of 1986 : 4 : be given any benefit of decree passed by the civil court as any transfer or disposition of the land made prior to 30.7.1958 are protected, whereas the other lands declared surplus would automatically vest in the State under Section 12(3) of the Ceiling Act. The petitioners otherwise also have no explanation to offer to explain this inordinate delay in directly approaching this court through the present writ petition without exhausting any alternative remedy available to them. The writ petition is accordingly dismissed on merits as well as on ground of delay and laches. Civil Writ Petition No.3859 of 1986 In this writ petition, order dated 4.6.1960 is under challenge. Area measuring 2.15 standard acres owned by Ramji Lal, father of petitioner No.1, was declared surplus. Ramji Lal owned 32.15 standard acres of land. Entire land was under self cultivation. Ramjit Lal has died. He made a Will to the effect that his land, after his death, shall devolve on his daughter (petitioner No.1) 1/6th share and 1/6th share each to petitioner Nos.2 to 4, sons of his brother. Petitioner Nos.5 and 6 were also given 1/6th share each being grand- sons of his brother Matu. Subsequently, Munshi also died and his property devolved on two widows, who are petitioner nos.7 and 8. Eight daughters impleaded as petitioners No.9 to 16 and two sons, petitioner Nos.17 and 18. Numbers of the land declared surplus on 4.6.1960 were changed after consolidation on a statement made by Matu. This happened on 9.8.1962. It is stated that no opportunity of hearing was provided to Ramji Lal. Thus, this order would be void. It is further claimed that after the death of Ramji Lal, the area stood inherited Civil Writ Petition No.3640 of 1986 : 5 : before utilisation and, thus, heirs of Ramji Lal have become small landowners. The order declaring the area surplus has, thus, become inoperative. In the meantime, Haryana Ceiling Act has come into force and land having not been utilised on the appointed day would devolve as per inheritance. In the reply, the pleas raised in the writ petition were controverted, but pleaded that this `Will' by Ramji Lal was after the appointed date, being attested on 26.12.1973 and as such Will have no effect on the land declared surplus. It is also disclosed that Matu, real brother of Ramji Lal, had made statement on behalf of his brother as Ramji Lal was statedly ill and could not walk. It is also disclosed that Ramji Lal's land is not in possession of the petitioners but has been allotted to eligible tenants and the possession thereof has also been delivered to them. Ramji Lal has died on 13.12.1972 and as such, the benefit of inheritance cannot be given to the petitioners. In this case also, the petitioners have directly filed this writ petition before this court in July, 1986 without challenging the order declaring the land surplus before any authorities or without seeking the benefit of the provisions of the Ceiling Act. This land had already been allotted on 30.7.1980 and possession was given to the allottees on 21.8.1980. Since Ramji Lal had died after the appointed date, i.e., 23.12.1982, the claim on the basis of inheritance cannot be considered and would not also be available to the petitioners. This writ petition also suffers from delay and laches as having been filed nearly after 26 years of the date of the impugned order without resorting to any alternative remedy for grant of prayer made in the Civil Writ Petition No.3640 of 1986 : 6 : writ petition. The writ petition is accordingly dismissed. Civil Writ Petition No.3860 of 1986 In this writ petition also, order dated 4.6.1960 declaring 13 standard acres of land by Collector Agrarian, Kaithal is under challenge. Mr.Gugan held 48.39 standard acres equivalent to 550 acres of land. Petitioners No.1 to 3 and 6 filed a civil suit against Gugan claiming themselves to be owners in possession of 1/5th share each of the land standing in the name of Gugan. Petitioner Nos.1 to 3 are his sons, whereas petitioner No.6 is widow of Gugan. The suit was decreed on 6.4.1970. It is claimed that the possession was already with the petitioners. Mutation in this regard was sanctioned on 16.11.1971. Gugan died on 8.12.1974 and mutation on the basis of inheritance of 1/6th share remaining with Gugan after the civil court decree was done on 14.6.1978. The surplus area of Gugan was declared on 4.6.1960 under the Punjab Security of Land Tenures Act declaring 13 standard acres 10-1/4 units of land surplus. Fresh order was passed on 29.6.1962 on the basis of a statement made by Gugan. It is claimed that the land of Gugan continued to be in possession of the petitioners and was not utilised on the appointed day, i.e., 24.1.1971. Haryana Ceiling Act came on 23.12.1972 and adult son of Gugan became entitled to separate unit, permissible under Section 4(3) of the Act. Request for exemption was accordingly made which was declined and directions were issued to take steps to utilise the land without any notice to transferees, i.e., petitioner Nos.1 to 6. This action is under challenge on the ground that sons of Gugan would be entitled to three separate units and after the decree dated 6.4.1970, petitioner Nos.1 to 3 and 6 were Civil Writ Petition No.3640 of 1986 : 7 : entitled to opportunity of hearing before the surplus land was utilised. To get out the operation of Section 12(3), it is pleaded that this section cannot take away the vested rights retrospectively. In this case also, the stand of the respondents in the written statement is that the transfer in favour of petitioner Nos.1 to 3 and 6 being on 4.6.1970 would have no effect on the surplus land. Gugan died on 8.12.1974 and the benefit of inheritance can also not be given to the petitioners as he died after the appointed day, i.e., 23.12.1972. In number of cases, this court has taken a view that surplus proceedings finalised under the Punjab or Papsu Law cannot be re-opened and the provisions of Ceiling Act even if the land had not been utilised. In this regard reference can be made to Dharam Pal Vs. State of Haryana, 2002 (1) PLJ 188, Ishwar Devi Vs. State of Haryana 1983 PLJ 363, Amar Singh Vs. Ajmer Singh, 1994 Suppl.(3) Supreme Court Cases 213. The petitioners in this case have also filed this petition directly in this court after nearly 26 years without moving any application for grant of benefits under the provisions of Ceiling Act. This writ petition was ordered to be admitted in view of admission of CWP 3640 of 1986, which has been dismissed as noted above. For the same reasons, the present writ petition shall also stand dismissed. Civil Writ Petition No.5982 of 1985 In this writ petition, petitioners have challenged the order dated 5.9.1985, whereby their application for exempting the surplus area from utilisation has been rejected. The petitioners had made this prayer on the ground that the separate unit be carved out for adult Civil Writ Petition No.3640 of 1986 : 8 : sons of petitioner No.1, i.e., petitioner Nos.2 and 3. The surplus area of petitioner No.1 was decided by the Collector on 14.4.1961 and 7 standard acres- 7-1/4 units was declared as surplus. Before this area could be utilised, the consolidation took place and the petitioners claim to have got a right to select permissible area afresh. Petitioner No.1 accordingly applied to the Collector for release of his surplus pool of land measuring 5 standard acres-9-1/4 units which he had sold to strangers, who are small landowners. The Collector Agrarian, Sangrur excluded this area from surplus pool from 19.2.1966. It is also claimed that the land was never utilised and remained in the cultivating the possession of the petitioners. In the meantime, Haryana Land Ceiling Act was enacted. Under Section 4(3) of this Act, a landowner was given right to select separate permissible area for each of his adult sons living with him. Petitioner No.1, as such, moved an application on 23.3.1984 for exemption of surplus area declaring under the old Pepsu Act on the ground that he had two adult sons, who would be entitled to separate permissible area. This application was dismissed on 5.9.1985 and the concerned authority was directed to take steps for utilisation of the alleged surplus area. The prayer of the petitioners has been declined on the ground that petitioner No.1 had already got the land released from the surplus pool before 1983 and, thus, got whatever benefit he was entitled to and could not get any additional benefit again on the ground that his sons were adult. It is also observed that under the Haryana Ceiling Act, benefit of a land declared surplus under the Punjab Security of Land Tenures Act or the Pepsu Act could not be given to the adult sons of the landowner. This application was filed by the petitioners Civil Writ Petition No.3640 of 1986 : 9 : on 23.3.1984. The earlier application seeking exemption of the land was filed on 7.3.1983 and was decided on 19.10.1983. No claim on the grounds as urged now in application dated 28.3.1984 was then made. As per Section 12 of the Ceiling Act, all surplus lands in the State of Haryana would vest in the State under Section 12 of the Act. It may also require notice that there is no provision under the Pepsu Tenancy providing for separate unit for adult sons and, thus, benefit of Haryana Act could not be extended to the petitioners. As already noticed, the surplus proceedings under the provisions of Punjab and Pepsu Law which have been brought to finality cannot be re-opened under the Haryana Ceiling Act. Otherwise, it will make the provisions of this Act to have a retrospective operation. Even if the land declared surplus under the Punjab or Pepsu law was not utilised, the same would not be open to be dealt with under the Haryana law in view of the judgments noticed and referred to above. The writ petition is again without merit and is accordingly dismissed. Civil Writ Petition No.9774 of 1987 In this writ petition, challenge is to the order passed by Financial Commissioner, Haryana, who has up held the order passed by the Commissioner setting aside the order of Collector which had held the petitioners entitled to separate unit being adult sons of big landowner. Dharma is the landowner and father of the petitioners. 96 kanals- 17 marlas of land of Dharma was declared surplus, which was not utilised. One Datu predecessor of respondent Nos.4 to 8 claimed allotment of the surplus area. His case further was that he was delivered the possession thereof. The petitioners filed a civil suit before Sub Judge Ist Class on 14.2.1981 seeking declaration that Civil Writ Petition No.3640 of 1986 : 10 : they were owners in possession of the land in dispute and revenue entry in favour of Datu was illegal. This suit was declared on 27.11.1981 and the entries in the khasra girdawaries were corrected. The petitioners then moved application before respondent No.3 on 14.12.1981 for exemption of land declared surplus at the hands of Dharma from utilisation and cancellation of the allotment. This application was filed on the ground that petitioners, being adult sons of Dharma, were entitled to separate units. This application was allowed on 21.7.1982. The appeal against this order was dismissed on 22.2.1983. The legal heirs of Datu thereafter filed revision before Commissioner, Hisar. This revision petition was allowed on 18.6.1984 mainly on the ground that Section 12(3) of Haryana Ceiling Act, 1972 would operate and this land would vest in the State Government w.e.f.24.1.1971, the appointed date under the Act. The petitioners filed a revision against this order before the Financial Commissioner, which was dismissed on 28.9.1987, which are now impugned in the writ petition. One of the ground of challenge was that similar provisions of Punjab Land Reforms Act were under challenge and writ petition in this regard was admitted. Reliance in this case is also placed on Section 4 of the Ceiling Act to claim three separate units for the adult sons. The Commissioner and the Financial commissioner have found in this case that possession of the land was given to the tenants in 1972 itself. The petitioners thereafter took forcible possession, but it was subsequently restored. It was also observed that the area which is declared surplus under the Punjab Act and the Pepsu Act cannot be re-opened for consideration under the Haryana Ceiling Act. The Civil Writ Petition No.3640 of 1986 : 11 : petitioners cannot get out of the provisions of Section 12(3) which says that the surplus land would vest in the State and it saves only those transfers which are made in terms of Section 8 of the Act. Thus, there is no merit in this writ petition as well and the same is accordingly dismissed. Civil Writ Petition No.5985 of 1985 Almost identical is the prayer in this writ petition where also petitioner Nos.2 to 7 claim re-assessment of the surplus area on the ground that they being adult sons would be entitled to separate units. Petitioner No.1 is the landowner and petitioner Nos.2 to 7 are his adult sons. Case of surplus area of petitioner No.1 was decided under the Pepsu Tenancy and Agricultural Land Act, on 30.8.1966. 14 standard acres-11-1/4 units was declared surplus. This was not utilised under the Punjab or Pepsu Act, when the Haryana Ceiling Act came w.e.f.23.12.1972. Separate unit is claimed for adult sons in view of Section 4(3) of Haryana Ceiling Act and petitioner No.1 moved an application in this regard on 5.2.1982 on the ground that he has six adult sons. This application was dismissed on 14.11.1985 and the authority was directed to take steps to utilise the surplus land. The prayer of the petitioners was declined on the ground that there was no provisions under the Haryana Ceiling Act to give benefit of land which has already been declared surplus. It is, thus, seen that the challenge in the present writ petition is the identical to the one which was raised in some of the writ petitions as noted above. In addition, it may be noticed that against the order declaring the land of petitioner No.1 surplus, he had filed an appeal and had come up to this court but his prayers were declined and thereafter himself has Civil Writ Petition No.3640 of 1986 : 12 : given numbers for the surplus land and the area was declared surplus as per his wishes. Still, he had filed this petition to re-open the case. It has rightly been observed that the benefit under the Haryana Act can only be in respect of those transfers which are made before 30.7.1958 and not on the grounds as claimed. Otherwise, under the Haryana Act, the land declared surplus would vest in the State by virtue of Section 12(3) of the Act. The petitioners also had an alternative remedy of filing appeal against the impugned order which he did not avail. This writ petition would also deserve to be dismissed for the reasons given above while declaring the similar challenge in other writ petitions. As a result, all the writ petitions are dismissed without being merits. April 17, 2009 ( RANJIT SINGH ) ramesh JUDGE