R.S.A.No.2336 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2336 of 2003 Date of decision : 23.2.2010 Jagan Nath and others ....Appellants Versus The State of Haryana and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Vikram Singh, Advocate for the appellants. Mr.P.S.Sullar, Deputy Advocate General, Haryana for respondents No.1 to 4. Mr.Amit Jain, Advocate for respondent No.5. ..... MAHESH GROVER, J. This regular second appeal is directed against the judgment of the first Appellate Court dated 20.3.2003. The plaintiffs/appellants filed a suit for declaration to the effect that the order dated 18.1.1980 passed by the Prescribed Authority – S.D.O.(Civil), Thanesar and order dated 5.12.1995 of prescribed authority Thanesar and civil court decree dated 23.8.1989 are legal and binding on the parties and that they are owners in possession of the suit land measuring 463 kanals 14 marlas. It was prayed that the notice issued by the respondents on 23.6.1982, letter R.S.A.No.2336 of 2003 -2- dated 8.7.1982 by the Prescribed Authority, Thanesar, order dated 27.2.1987 passed by the Collector Kurukshetra, order dated 27.4.1988 passed by the Commissioner, Ambala and the order dated 4.5.1990 passed by the Financial Commissioner, Haryana are illegal, null and void, no nest, inoperative and not binding on the rights of the plaintiffs/appellants with consequential relief of permanent injunction restraining the defendants/respondents from interfering in their peaceful possession and executing the orders dated 23.6.1982, 8.7.1982, 27.2.1987, 27.4.1988 and 4.5.1990. It was pleaded that vide orders dated 27.5.1960 3 standard acres and 8¾ units were declared surplus during the life time of Atma Ram, their father and the said land was ordered to be allotted to Amra and Antu but was never utilized by the State of Haryana and thus the plaintiffs became owners in possession of the suit land vide civil court decree dated 7.1.1972. Atma Ram during his life time moved an application dated 8.7.1976 before the prescribed authority which was allowed on 18.1.1980 and it was declared that no land in the hands of Atma Ram could be declared as surplus. The said order attained finality as no appeal/revision was filed against the same. Atma Ram died on 19.11.1977 and thereafter the plaintiffs were declared as small land owners vide civil court decree dated 26.2.1980. Notice dated 23.6.1982 was issued to allot the land belonging to Atma Ram measuring 49 kanals 12 marlas by some allotment committee. It was pleaded that this notice be declared illegal, null and void. Upon notice, the respondents filed written statement and contested the suit by controverting the averments made in the plaint. R.S.A.No.2336 of 2003 -3- It was submitted that the appellants were owners in possession of the land measuring 463 kanals 14 marlas and on 22.5.1960 land measuring 49 kanals 12 marlas was declared surplus in the hands of Atma Ram which was initially allotted to Antu and Amar Singh but subsequently this allotment was cancelled and the land was re-allotted to Isham Singh, Kartara Ram and Ishri. The land vested in the State of Haryana after being declared surplus under the Punjab Security of Land Tenures Act, 1953. On 21.6.1979 a stay was granted by the civil court restraining the respondents from utilizing the land. A decree was obtained on 7.1.1972 by the appellants in which the State of Haryana was not impleaded as a party and therefore the ownership could not be changed in the revenue record. After the order of 18.1.1980 an application under Section 10-A of the Punjab Security of Land Tenures Act read with Section 8 of the Haryana Ceiling on Land Holdings Act was moved and an order was passed on 5.12.1985 wherein exemption was granted qua 49 kanals 12 marlas of land which had already been declared as surplus. This order was set aside by the Collector on 27.2.1987 and subsequently the Commissioner and the Financial Commissioner vide orders dated 27.4.1988 and 4.5.1990, respectively upheld the order of the Collector dated 27.2.1987. In this way, the effect of the order dated 18.1.1980, upon which reliance was placed by the appellants, was negated. The bar of jurisdiction of the civil court was also pleaded. It was further pleaded that the notice which has been issued for utilisation of the land by the allotment committee was perfectly right. The learned trial court framed the following issues on R.S.A.No.2336 of 2003 -4- 14.1.1994 :- 1) Whether the plaintiffs are owners in possession of the land in dispute?OPP 2) Whether the notice dated 23.6.1982, letter dated 27.4.1988, 8.7.1982 and order dated 27.2.87 and 4.5.1990 are illegal, null and void and not binding on the rights of the plaintiffs?OPP 3) Whether the suit is bad for non-joinder of necessary parties?OPD 4) Whether the civil court has got no jurisdiction to entertain and try the present suit?OPD 5) Whether the suit is bad for want of notice under section 80 CPC?OPD 6) Relief. Thereafter, Kartara Ram, one of the allottees, moved an application under Order 1 Rule 10 CPC which was allowed and the following additional issues were also framed :- 1) Whether the jurisdiction of civil court is expressly barred under section 26 of Haryana Ceiling of Land Holdings Act, 1972?OPD 2) Whether the land in dispute had already vested in Haryana Sate prior to the allotment made in favour of defendant No.5?OPD 3) Whether the civil court decree dated 7.1.1972 is not binding on the State?OPD 4) Whether the order dated 18.1.1980 is not binding on R.S.A.No.2336 of 2003 -5- the defendant No.5?OPD 5) Relief. After appraisal of evidence, the learned trial court decreed the suit. In the first appeal preferred by the appellants the findings of the learned trial court were upset and the suit was ordered to be dismissed which has resulted in filing of the instant regular second appeal. Learned counsel for the appellants has very strenuously placed reliance on the order dated 18.1.1980 to contend that the land measuring 49 kanals 12 marlas was clearly excluded from the declaration of the surplus area proceedings by the prescribed authority. This order was never challenged in appeal or revision and had attained finality. He thus contended that the subsequent notice dated 23.6.1982 which is now being sought to be issued for the utilisation of the land by the allotment committee was clearly erroneous and the same could not have been issued for the simple reason that in the order dated 18.1.1980 the prescribed authority had upheld that there was no surplus area in the hands of Atma Ram. It was thus contended that these aspects have been totally overlooked by the first Appellate Court. On the other hand, learned counsel for respondents No.1 to 4 contended that in 1960 land measuring 49 kanals 12 marlas had been declared surplus in the hands of Atma Ram under the Punjab Security of Land Tenures Act and by virtue of the operation of the said Act it automatically vested in the State of Haryana. It was also contended that deceased Atma Ram was clearly precluded from R.S.A.No.2336 of 2003 -6- moving an application on 8.7.1976 and the order dated 5.12.1985 was not a valid order in the eyes of law and the same could have been ignored. It was pleaded by him that in any eventuality in the subsequent proceedings which were also initiated by the appellants under Section 10-A of the Punjab Security of Land Tenures Act read with Section 8 of the Haryana Ceiling on Land Holdings Act, the effect of the order dated 18.1.1980 was initially upheld by the prescribed authority vide its order dated 5.12.1980 but subsequently the Collector, Commissioner and the Financial Commissioner by virtue of orders dated 27.2.1987, 27.4.1988 and 4.5.1990, respectively upset the order dated 25.12.1985 implying thereby that the order dated 18.1.1980 did not hold good and consequently the error which had crept in by virtue of the aforesaid order was erased. I have heard the learned counsel for the parties and have perused the impugned judgments and also the material on record. There is indeed no doubt about the admitted position that the land measuring 49 kanals 12 marlas was declared surplus on 22.5.1960 under the Punjab Security of Land Tenures Act, 1953. Once such a declaration had come into existence, then by virtue of the operation of the Haryana Ceiling on Land Holdings Act, 1972 the land which had been declared surplus under the Punjab Security of Land Tenures Act, 1953 and which order had attained finality automatically vested in the State of Haryana w.e.f. 24.1.1971 which is the appointed day. This Court in Megh Raj and others v. Manphool and others 2008(3) R.C.R.(Civil) 241 has observed as follows :- “There can be no quarrel with the interpretation assigned R.S.A.No.2336 of 2003 -7- to Section 8(1)(a) of the Haryana Act, in Jaswant Kaur v. State of Haryana (supra). However, the said judgment does support the arguments, advanced by counsel for the landlords that Section 8(1)(a) of the Haryana Act reopens surplus area cases already concluded under the Punjab Act. In fact, while upholding the vires of Section 12(3) of the Haryana Act, the Full Bench held that land declared surplus under the Punjab Act would automatically vest in the State of Haryana on the appointed day.” Similarly, in Dharam Pal v. State of Haryana 2002(2) R.C.R.(Civil) 37 it was observed as follows :- “10. The question which requires consideration in this case is as to whether the proceedings which have become final under the Punjab Act with regard to declaration of surplus area, could be reopened by taking the benefit of Haryana Act. In our opinion, the controversy has been finally settled by the Supreme Court in Amar Singh's case (supra) on which reliance has been placed by the learned State counsel. In that case, it was claimed that the land owners were entitled to re-evaluation or surplus area although proceedings xxxxx against them were finalised in 1961/62. It was asserted that the possession was not taken and the land was not utilised on the appointed day. Rejecting this argument, their Lordships of the Supreme Court observed as under :- “Learned counsel for Ajmer Singh- R.S.A.No.2336 of 2003 -8- respondent, has contended that although the surplus proceedings against Maru Ram was finalised in the year 1961/62 but the possession of the surplus land remained with Ajmer Singh, respondent, till 1981 when the same was handed over to the appellant. Simply because the surplus land declared under the Punjab Act was not utilised and it remained in possession of Ajmer Singh-respondent would not make any difference so far as the position in law is concerned. The language of Section 12(3) is unequivocal and clear. According to it the surplus land declared under the Punjab Act stood vested in the State. The non-utilisation of surplus land till the date of vesting (23.12.1972) is of no consequence and makes no difference. The view we have taken is supported by the judgment of this Court in Bhagwanti Devi v. State of Haryana. We, therefore, allow the appeal, set aside the impugned judgment of learned Single Judge of the High Court dated 23.9.1987 and also the order of the Letters Patent Bench dated 3.11.1987. Civil Petition No.163 of 1986 filed by Ajmer Singh in the High Court stands dismissed. The appellant shall be entitled to his costs which we quantify as Rs.11,000/-. Costs to be paid by respondent-Ajmer Singh.” That being the settled position of law, the proceedings R.S.A.No.2336 of 2003 -9- initiated by the appellants upon which the order dated 18.1.1980 and 5.12.1985 were passed are clearly barred by the provisions of law. In any eventuality the effect of these orders was adequately nullified by subsequent orders passed when the order dated 5.12.1985 was assailed and the competent authority clearly held that the area of 49 kanals 12 marlas which was declared surplus in 1960 had already been declared as surplus in the hands of Atma Ram. This order was never challenged in a writ petition and has attained finality. In this view of the matter the argument which has been raised by the learned counsel for the appellants has no force. That apart, the jurisdiction of the civil court is clearly barred in questioning the orders dated 27.2.1987, 27.4.1998 and 4.5.1990 which were passed by the Prescribed Authority and competent authorities under the Act. In this regard reference may be made to the observations made in Balbir Chand and others v. State of Haryana and others, 2008(1) R.C.R. (Civil) 417 which read as under :- “11. Learned counsel for the appellant also challenged the findings recorded by the learned Courts below on issues Nos.3 and 4 on the ground that order Exhibit D-2 vide which the landowner has been permitted to select his permissible area was in fact, passed in violation of statutory provisions contained in the Act and therefore, the jurisdiction of the Civil Court to entertain and try the said order could be barred. In support of this contention, learned counsel for the appellants placed reliance on the judgments of this Court in the cases of State of Haryana R.S.A.No.2336 of 2003 -10- v. Vinod Kumar, 1987 RRR 81; 1986 PLJ 161 (FB) and Ran Singh v. Gandhar Co-op. Society, 1975 PLJ 162 (F.B.) and the judgment of the Hon'ble Supreme Court in case of Bhagwanti Devi v. State of Haryana, 1994(3) RRR 115: AIR 1994 SC 1869. This contention of the learned counsel for the appellants cannot be accepted as the order Exhibit D-2 was passed as per provisions of the Act and there was no violation either of any provision or the rules and regulations. The order could not be said to have been passed in violation of principles of natural justice. The order Exhibit P-1 which is the basis of the plaintiff's claim itself permitted the landowner to select his permissible area. It has been brought on record that the landowner selected his permissible area only once and it was on the basis of selection made by him that Form IV was issued. Thus, the learned Courts below were right in coming to the conclusion that the Civil Court has no jurisdiction to entertain and try the suit challenging Form IV issued by the Competent Authority i.e. Collector....” Looking it from any angle the appeal is totally without any merit and is, therefore, dismissed. 23.2.2010 (MAHESH GROVER) JUDGE dss