IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1768 of 1983 (O&M) Date of decision:27.09.2011 Kehar Singh (deceased) through his LRs ....Petitioner versus Financial Commissioner, Haryana, Chandigarh, and another. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Sanjiv Gupta, Advocate, for the petitioner. Ms. Kirti Singh, DAG, Haryana, for respondent No.1 Mr. R.S.Longia, Advocate, for respondent No.2. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. 1. The order impugned is in relation to the proceedings of the officers under the Haryana Ceiling on Land Holdings Act of 1972 (for short, 'the 1972 Act'), declaring the petitioner's holding as falling in surplus of the ceiling area. The petitioner is reported to have owned a 398 kanal-13 marlas of land, out of which, 24 kanal area was thur and 1 kanal- 4 marlas area was gair mumkin. On the basis of jamabandi for the year 1970-71, the petitioner had got the declaration form submitted on 16.08.1976 as required under the Act. According to him, even before 1970-71, he had transferred a portion Civil Writ Petition No.1768 of 1983 (O&M) - 2 - of the property in the name of his wife and two sons, namely, Shamsher Singh and Nafe Singh through a family settlement and they had also been shown the owners of their respective properties. The petitioner would admit that there was a mistake in the declaration form in referring to only two children but when actually he had four children as on 24.01.1971, the other two being daughters, namely, Virmati and Mewa. 2. The Prescribed Authority under the 1972 Act, who was the SDO(C), Kaithal, passed an order on 11.08.1981 treating the petitioner as the only primary unit of the family and wrongly assumed that he had only two minor sons on 24.01.1971. On such a basis, the area of 181 kanal-7 marlas out of 398 kanal-13 marlas, had been declared as surplus. The petitioner preferred an appeal to the Collector and produced proof of the fact that he had two other daughters and given a statement of witness Moti Ram, who was the Lambardar, and documents to establish the respective dates of birth of all his children, except the youngest daughter, Mewa, whose birth had not been registered. However, he gave evidence through witness that the child had been born on 24.01.1971 and the petitioner had given personal affidavit with reference to the said fact. The Collector dismissed the appeal finding that the petitioner had given false statement that his elder daughter Virmati was unmarried whereas Moti Ram, Lambardar, who was cited as a witness, stated that Virmati was married. The Collector found fault with the Civil Writ Petition No.1768 of 1983 (O&M) - 3 - petitioner in not giving the true statement in the declaration form by declaring the birth of all children. The petitioner's objection relating to the calculation of the surplus area had also not been considered and according to the petitioner, a wrong inference had been made in assuming that there was a tube-well working in the land. The petitioner preferred a further revision to the Commissioner and the Financial Commissioner and they also failed. 3. When the Prescribed Authority declared 184 kanal-7 marlas as the property in surplus and directed him to select the killa numbers for the surplus pool, the petitioner did not give the option but challenged the very order of the Collector in appeal and there had been a stay of the proceedings as well. However, the Prescribed Authority went ahead further, selected the surplus area himself during the pendency of the proceedings at the appellate forum and passed the order on 18.02.1982 setting out the property that had been treated as surplus. The petitioner, therefore, challenged the selection made as surplus by the competent authority before the Financial Commissioner and seeking for stay of further proceedings. The Commissioner has stayed the further proceedings, but he had failed to make any mention about the said fact at the time when he was disposing of the revision filed. 4. Before me, the counsel points out to the following objections:- (i) the order had been passed by the Collector without Civil Writ Petition No.1768 of 1983 (O&M) - 4 - properly involving the petitioner in any form of enquiry and the proceedings took place before the competent authority in an ex parte fashion; (ii) the size of the family had not been properly noticed and the valuable evidence adduced relating to the birth of the last child had been discarded, as also the birth of yet another child by the only fact that their names had not been included in the original declaration by mistake; (iii) the wife and daughters had partitioned the properties through a family partition and a decree was also passed in a Civil Court. On the basis of said decree, mutation had also been effected and since they involved a transaction of transfer prior to the notified date, the properties allotted to them ought to have been excluded; (iv) in any event, the family consisted of wife and four children thereby a 1/5th unit must have been provided for an additional child in excess of three children. The failure to take note of the birth of the said was, therefore, erroneous; and (v) the petitioner himself had died and consequently, it was essential to rework the ceiling area on account of the inheritance of the property to the wife and children under the Hindu Succession Act. The matter has, Civil Writ Petition No.1768 of 1983 (O&M) - 5 - therefore, perforce to be remanded to the authority for a fresh determination of the permissible holding under the Act. To take up the last issue first, reading Section 13(3) of the 1972 Act, the learned counsel would state that the vesting in the State Government would take effect from the appointed day, only if the vesting had already been taken place under the Punjab law and Pepsu law and in this case, since the declaration itself had been submitted by the petitioner only in the year 1976 and there having been no earlier order of vesting, the pendency to the proceedings themselves would preserve to the legal heirs to obtain a fresh reckoning when inheritance secured individual shares to each of the heirs. The learned counsel would refer to a Full Bench ruling of this Court in Sardara Singh and others Versus The Financial Commissioner and others-2008(2) RCR (Civil) 744, which was a case in relation to the Punjab Land Reforms Act, 1972, but the counsel would state that the ratio in the said decision would apply to the inheritance obtained and for determination for holding under the 1972 Act as well. Under the Punjab Land Reforms Act, 1972, there is an express saving relating to the property obtained on inheritance under Section 11 dealing with the disposal of surplus area. The provisions under Section 11(5) and (7) specifically prescribe the particular procedure where inheritance opened at or after the Punjab Act. They set out certain specific contingencies relating to the Civil Writ Petition No.1768 of 1983 (O&M) - 6 - manner of reckoning the disposal of surplus area where there is a fresh redistribution of shares occurring by the death of the landowner. Referring to the expression “has been determined by the Collector” in the context of holding by the landowner occurring under Section 11(7), the Full Bench has held that the redistribution of shares occurring through inheritance from the landowner would efface the mode of reckoning in all cases, where the determination had not come to finality. So long as the Collector's determination is a subject of an appeal or a challenge before this Court under Article 226 or in further proceedings before the Hon'ble Supreme Court, it must only be taken that the determination has not been finally made and consequently, a death of the landowner would certainly cause affectation of the surplus area which would require to be re- determined in the hands of the heirs of the deceased landowner. In this case, section 12(1) contains similar expression which declares that the surplus area of landowner shall, “from the date on which it is declared as such......” Though the word “determination by the Collector” does not occur in Section 12, the words expressed under Section 12 viz., “declared as such by the State Government” would carry the same import and so long as the proceedings are still pending, it would inevitably mean that the holding of the deceased that has fallen to be distributed amongst the heirs shall require a fresh reckoning for determination of surplus. Consequently, on the fundamental ground, the case would require to be remitted to the Civil Writ Petition No.1768 of 1983 (O&M) - 7 - competent authority under the 1972 Act. 5. When the redetermination takes place, it has to be again seen whether the family partition said to have been effected and affirmed through the decree would require to be taken note of to ascertain whether the deceased landowner could be said to be the owner of the entire extent or the property had been already divided amongst the members of the family so that the deceased landowner could be treated as being the owner only of the extent allotted to him in the family partition and affirmed through the decree and entered in the village records through mutations. 6. In the application filed in CM No.13589 of 2007 for impleading the wife and the son as parties claiming exclusive shares of property by virtue of the Civil Court decree, the learned counsel for the applicants who are sought to be newly impleaded would argue with reference to Section 8 of the 1972 Act that any transfer or disposition which had taken place before Amending Act 17 of 1976 notifying the appointed day would stand excluded. The Section that makes irrelevant transfers subsequent to the appointed day under sub-Section 3 and treat the property as transferred to be deemed to be owned by the person in calculating the permissible area cannot apply in cases where the transfer had taken place prior to the appointed day. I have not the benefit of the Civil Court decree in the manner canvassed at the time of argument. Along with the application for taking on record some documents filed by the newly Civil Writ Petition No.1768 of 1983 (O&M) - 8 - added parties, I find only the mutation proceedings which purport to record the changes in the holding in the names of his wife Raj Kaur and 3/4th share of Nafe Singh, purported to be by the decision of court taken on 10.02.1970. The decree has not been filed in Court and I cannot take the mutation proceedings in the revenue record itself as proof of any transfer or disposition in the manner contemplated under Section 8. It is not very clear as to how there could even a valid disposition of 3/4th share in favour of the son and retention of 1/4th share only for Kehar Singh. The partition of such unequal share to the senior member of the family and the validity of the decree itself would require to be examined if the petitioners are prepared to file the same and seek for redetermination on the ground that there had been a valid transfer or disposition before the appointed day. I cannot accept prime facie that there had been any valid disposition and it will be a matter for adjudication before the competent authority at the enquiry after remand. I do not also propose to undertake any adjudication regarding the exclusion as claim by the petitioner for the property stated as thur and gair mumkin. The authority will examine the issue on the basis of records and evidence submitted. The same will also apply to the issue relating to the size of the family for determining the permissible area under Section 4. If the transfer or disposition that is alleged to have been taken place through a family partition and purported to have Civil Writ Petition No.1768 of 1983 (O&M) - 9 - been affirmed through the Civil Court decree were to be upheld, a 1/4th share retained by Kehar Singh would alone require to be considered as falling for distribution. On the other hand, if the so-called family settlement were to be found as not valid, the entire holding shall be taken as the holding of the deceased Kehar Singh. Then the property would fall to be distributed in accordance with the provision of the Hindu Succession Act, provided, however, there exists no coparcenary interest to require a different mode of distribution. At that time if such a redistribution were to be worked out through inheritance, the competent authority will allow the parties to let in appropriate evidence relating to the actual size of the family and allow the party to let in evidence relating to the birth of two other children before the coming into force of the Act. Any credible evidence even in the absence of birth certificate for the last child must be considered on its own merit. 7. The impugned orders are set aside and the matter remitted to the competent authority for redetermination in the light of the observations made above. 8. The writ petition is disposed of with above directions. (K.KANNAN) JUDGE 27.09.2011 sanjeev