Civil Writ Petition No. 2451 of 1991 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 2451 of 1991 Date of decision : 19.08.2011 Sultan Singh and others ...Petitioners Versus State of Haryana and another ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. R.S. Mittal, Senior Advocate with Mr. S.K. Tripathi, Advocate for the petitioners. Mr. Sunil Nehra, Sr. DAG, Haryana, for the State. **** RANJIT SINGH J. This writ petition is filed by three sons of the Ram Chand namely Sultan Singh, Surat Singh and Dharam Singh. The petitioners pray for quashing of Annexure P-3 passed by the respondent/ Financial Commissioner, Haryana, Chandigarh on 10.12.1990. The issue involved relates to an order directing the land of the petitioners as surplus. The facts in brief are that the petitioners owned agricultural land in village Ahmadpur, Tehsil and District Kaithal. Their land holding was evaluated and 38.37 standard acres in the hands of the each petitioners was evaluated on the commencement of the Punjab Security of Land Tenures Act (hereinafter referred to as 'Act') i.e. on 15.04.1953. Before passing of the order by the Collector Civil Writ Petition No. 2451 of 1991 Agrarian, Kaithal, consolidation proceedings in the village had been held and the area of each petitioner was reduced to 34.67 standard acres. The Collector, Agrarian, Kaithal vide his order dated 15.09.1960 declared 4.67 standard acres of land as surplus with each of the petitioner. The petitioners alleged that as a result of order, Section 42 of the East Punjab Consolidation Act, 1948, the holding of the petitioners was further reduced. The claim of the petitioners for re-determination of the surplus area was rejected by the Collector, Agrarian, Kaithal and permissible area in the hands of the petitioners was reduced to less than 30 standard acres. The petitioners, accordingly, appealed against this order before the Commissioner, Ambala Division, Ambala, who held that the petitioners were entitled to retain 30 standard acres as their permissible area and remanded the case to the Collector, Agrarian Kaithal vide order dated 23.07.1980 with the direction that the case of the landlords was decided without effecting reduction in their respective permissible area. The Collector, Agrarian, Kaithal vide his order dated 22.08.1980 determined the holdings of the petitioners at 33.82 and declared 3.82 standard acres as surplus area in the hands of the petitioners. The petitioners were not satisfied with this determination. The petitioners claimed benefit of the Banjar land, which was required to be excluded from their holdings. Accordingly, they challenged this order passed by the Collector, Agrarian, Kaithal before the Commissioner and then before the Financial Commissioner, Haryana, who vide his order dated 23.12.1982 remanded the case to the prescribed authority for verifying and Civil Writ Petition No. 2451 of 1991 ascertaining the Banjar area held of the petitioners. When the matter came up for before the prescribed authority, it transpired that the evaluation of the holdings of the petitioners were not correctly shown in accordance with the provisions of the Act. The prescribed authority re-evaluated the holdings of the petitioners in accordance with Rule 2 (c ) of the Act. The prescribed authority, thereafter, came to the conclusion that holdings of each of the petitioners after evaluation came to be 29.13 standard acres i.e. less than 30 standard acres and, thus, excluded the area of the petitioners from surplus pool vide order dated 06.01.1984. Copy of this has been annexed with the petition as Annexure P-2. The State did not file any appeal against this order. After nearly 4 to 5 years, the respondent-State, however, filed revision before the Financial Commissioner under Section 33 (2)(ii) of the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as an 'Haryana Act'). The petitioners prayed before the Financial Commissioner first to invoke suo motu powers to look into the illegality and propriety of the order dated 06.01.1984. The Financial Commissioner, thereafter, passed the impugned order on 10.12.1990 and allowed the prayer made by the respondent-State and set aside the order dated 06.01.1984. The petitioners have challenged this order through the present writ petition. Notice of motion was issued and dispossession of the petitioners was stayed. The respondent-State has filed reply raising certain preliminary objections. It is pointed out that the land of the petitioners were declared surplus on 15.09.1960. Against which the Civil Writ Petition No. 2451 of 1991 appeal was dismissed on 15.12.1960 by the Commissioner, Ambala Division. It is, accordingly, stated that land had vested with the State Government under Section 12 (3) of the Haryana Act. This land was declared surplus, which had vested with the State Government under the Haryana Act was allotted on 27.08.1990 to ten eligible persons and, thus, has been utilized. It is, accordingly, stated that the petitioners have no locus to challenge the order dated 15.09.1960 declaring this land as surplus. Giving details, it is stated that the petitioners had made application before the Collector, Agrarian, Kaithal, which was not accepted but on an appeal filed by the Commissioner, Ambala Division, the petitioners were allowed to retain 30 standard acres and the case was remanded to Collector, Agrarian, Kaithal for granting benefit of reduction in the surplus area. Only 3.82 standard acres, thus, was declared surplus in the hands of the each petitioners, against which the petitioners filed an appeal claiming benefit of Banjar land. This prayer was rejected by the Commissioner, against which the petitioners had approached the Financial Commissioner, who acceded to the claim of the petitioners only to a limited extent that the Banjar land as it existed on 15.04.1953 when the land was declared surplus i.e. on 15.09.1960 should be excluded from the surplus pool whereas on all other points, the petition filed by the petitioners was rejected. As per the respondent-State, the prescribed authority, thus, had an authority only to see and verify the Banjar land of the petitioners on the dates as noted. The prescribed authority exercising the powers on account of this remand order statedly has gone beyond the jurisdiction by reopening the entire surplus matter Civil Writ Petition No. 2451 of 1991 and had reviewed its order dated 15.09.1960. As per the State, this was not permissible under law. Accordingly, the respondent-State would justify the exercise of suo motu powers by the Financial Commissioner to set right this illegality. The contentions raised on behalf of the petitioners on merits have also been rebutted. It is reiterated that the prescribed authority has no power to re-evaluate the land of the petitioners and could only see and determine the Banjar land as was directed by the Financial Commissioner through the remand order. It is, accordingly, stated that the prescribed authority had exceeded its power in reviewing the order dated 15.09.1960, which could be done under any circumstances whatsoever. I have heard the counsel for the parties. Mr. R.S. Mittal, senior counsel appearing for the petitioners has made three fold submission. He would first submit that the respondent-State had taken too long to move an application before the Financial Commissioner asking him to invoke suo motu jurisdiction. As per the counsel, the delay would be enough to decline the prayer and the Financial Commissioner, accordingly, was not justified in invoking his suo motu power/jurisdiction. In support, counsel has relied upon the case of Loku Ram versus State of Haryana 2000 (1) RCR (Civil) 141. The learned counsel would then contend that the land left with the petitioners was reduced less than 30 standard acres whereas this could not have been done as the purpose of the Act was to see that each land owner was provided the permissible area of 30 standard acres, which he could retain for self-cultivation. Counsel contends that the action of the Commissioner in equating the Thur land along Civil Writ Petition No. 2451 of 1991 Banjar Qadim was fully justified in terms of Rule 2 (c) of the Act and these conclusions have been interfered with by the Financial Commissioner on the ground that the prescribed authority had exceeded the jurisdiction while the matter was remanded to him. Mr. Nehra appearing for the State would, however, join issue with the counsel on all the three points. He would first submit that the delay in this case would be immaterial. The issue, which required determination would be to see if the prescribed authority could pass the order which infact amounted to review of an order passed in 1960. State Counsel then contends that the order passed by the Financial Commissioner requiring re-determination on remand was limited remand and the prescribed authority had no jurisdiction or power to go beyond the limits of remand order. On similar count, the counsel would contend that the prescribed authority or anyone else could not have given benefit of Thur land to the petitioners. It is not disputed before me that the land of the petitioners was declared surplus long ago in the year 1960. The appeal filed by the petitioners had also been dismissed by the Commissioner on 05.12.1960. Thereafter, the petitioners, apparently, did not take any further action to challenge this order. In the meantime, the Haryana Act was legislated in the year 1972. By virtue of Section 12 (3) of the Haryana Act, the land would automatically vest with the State on the appointed date. There is some substance in the stand of the State that, thereafter, the petitioners would not left with any locus to challenge the order dated 15.09.1960, whereby the land was declared surplus. The petitioners still moved an application before the Collector, Agrarian, which was not accepted. Against which an Civil Writ Petition No. 2451 of 1991 appeal was filed before the Commissioner, Ambala Division and the petitioners were allowed to retain 30 standard acres and the case was remanded to the Collector on 22.08.1980 granting the benefit of reduction in the surplus area. Then only 3.82 standard acres in the hands of the each petitioners was declared surplus. At that stage, the petitioners had filed appeal before the Commissioner, Ambala Division, claiming benefit of Banjar land. This was, however, rejected by the Commissioner against which the petitioners approached the Financial Commissioner. It was at that stage that the Financial Commissioner remanded the case back to the prescribed authority just to see the extent of the Banjar land. This order has been annexed by the petitioners with the writ petition as Annexure P-1. Therefore, it cannot be disputed that the prescribed authority had no jurisdiction to deal with the case of surplus. If the Financial Commissioner had not remanded the case back to the prescribed authority, the matter would never have gone back to the prescribed authority as the prayer made by the petitioners had earlier been rejected against which the petitioners had approached the Financial Commissioner ultimately. Accordingly, the jurisdiction and the power, which the prescribed authority would now get, primarily depended upon the order of remand. If the Financial Commissioner had given unlimited power to the prescribed authority to re-determine the entire surplus case, the matter would have been different. The perusal of the remand order, Annexure P-1, would clearly show and reveal that this remand was of a limited nature. The order has been read and there is no other interpretation, which can apply to the same. The operative part of the remand order in this regard can be Civil Writ Petition No. 2451 of 1991 noticed here for ready reference:- “ In fairness of the petitioners this point of fact needs to be verified from the revenue records. I, therefore, remand the case to the Prescribed Authority, Kaithal on this limited point and direct that he should verify the assertion regarding the Banjar area as on 15.09.1960. If it is established that the area in question was Banjar then it should be excluded from the surplus area. Thus only to this extent, the present revision petitions are allowed. So far as the other pleas are concerned, the petition stand dismissed.” (emphasis added by me) It can be noticed that the Financial Commissioner has dismissed the revision petition on all other points except to the extent of determining the Banjar land. The Financial Commissioner himself could not determine the Banjar land as it was not clear from the file before him, if this area of 32 bighas was Banjar on 15.09.1960. The submission made by the counsel for the petitioners that the status of the land was to be seen on 15.04.1953 and not on 15.09.1960, would not be of much relevance. It was noticed by the Financial Commissioner that the Banjar land was required to be determined on 15.04.1953 but there was no dispute that this continued to be Banjar till the decision of the surplus area cases i.e. 15.09.1960. That is how he had noted this date to be relevant for the purpose of seeing the Banjar land. The remand order being limited, as already noticed, the prescribed authority, in my view, was not justified in reopening any other issue as has been done. Accordingly, the action of the prescribed authority in taking into Civil Writ Petition No. 2451 of 1991 consideration the Thur land would not be justified and this order was beyond his jurisdiction. The plea that the respondent-State had delayed in moving the jurisdiction of the Financial Commissioner, apparently, may sound attractive but in the facts and circumstances of this case, would be immaterial. It is to be noticed that the Financial Commissioner had already been approached by the petitioners. The issue had gone back to the prescribed authority at the instance of the petitioners. The order passed by the prescribed authority had gone beyond its jurisdiction. An order, which is beyond the power and without jurisdiction may not have to be viewed in the same light as an order, which is validly or legally made and may require to be challenged on merits. Otherwise also, the impugned order was passed in the year 1984, the State had moved an application before the Financial Commissioner in 1988-89 to invoke the suo motu jurisdiction of the Financial Commissioner. Since the matter had earlier come before the Financial Commissioner and he noticed that the prescribed authority had exceeded its jurisdiction, the plea of limitation cannot strictly be attracted to the facts and circumstances of the case. The submission made by the State counsel that no such objection was ever raised by the petitioners before the Financial Commissioner is also not without substance. If the petitioners were aggrieved against the delayed approach, atleast they were required to raise this plea before the Financial Commissioner. They had acquiesced to this position and did raise objection on the ground of delay. The State, at that stage, may have then been asked to justify Civil Writ Petition No. 2451 of 1991 or disclose the reason for delay, if any noticed. The fact that the effect of Haryana Act had also come into play can also not be ignored. Under the Haryana Act, any land declared surplus vests in the State and as per the pleadings, the same has been utilized. The land declared surplus would vest in the State as per Section 12 (3) of the Haryana Act on the appointed date and the petitioner had no right or locus to get the issue re-opened in 1984. To be fair to the counsel for the petitioners, he has submitted before me that the land is still in possession of the petitioners. This is a factual issue, which would not impress me as the effect of Section 12 (3) of Haryana Act will have to operate. The ratio of law laid down in Loku Ram's case (supra) will not strictly apply to the facts and circumstances of the case. The reliance by the State counsel, on K.P. Dwivedi v. State of U.P. (SC) 2003 (12) SCC 572, in regard to the scope of remand order appears relevant and attracted to the facts of the case. Thus, it can be observed that the issues, which are not remanded could not have been re-agitated or re-determined by the prescribed authorities to which the case was remanded. The plea that the petitioners landholding is reduced below 30 standard acres, at that stage, can not now be raised at this belated stage. If this was the factual position, the petitioners were expected to raise it before the Financial Commissioner when he had initially approached the Financial Commissioner against the order declaring his land surplus. The petitioners did not then raise this challenge and so cannot be heard on this count now . Civil Writ Petition No. 2451 of 1991 In view of the above discussion, I find no merit in the writ petition and the same is dismissed. August 19, 2011 (RANJIT SINGH) rts JUDGE