C.W.P. No.3833 of 1986 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.3833 of 1986 Date of Decision. 02.11.2011 Ganga Ram and others .....Petitioners Versus State of Haryana through the Secretary, Government of Haryana, Revenue Department and others .....Respondents Present: Mr. Sudhir Mittal, Advocate for the petitioners. Mr. O.P. Sharma, Addl. A.G., Haryana for respondents No.1 and 2. Mr. L.N. Verma, Advocate for respondent Nos.3 to 6. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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 petitioners challenge the order of the Financial Commissioner passed on 04.02.1986 rejecting their claim for quashing the earlier orders of authorities making allotment of certain properties in favour of private respondents. The petitioners' claim was on the basis that their father Ganesha was an occupancy tenant and allowed under the Punjab Security of Land Tenures Act, 1953 to hold 336 Kanals 25 Marlas of land as falling within the tenant's permissible area. On the coming into force of the Haryana Ceiling on Lands Holding Act, 1972, it appears that the State had allowed for 270 Kanals of land as within the permissible area of the tenant and treated the property in excess as C.W.P. No.3833 of 1986 -2- available for the State to make disposal under the Haryana Utilization of Surplus and Other Areas Scheme, 1973. The petitioners' contention was that no notice had been served on them before the order was passed and they had resorted to the action challenging the allotment immediately after they came to know about the same. This contention was rejected by all the authorities under the Haryana Ceiling on Lands Holdings Act, 1972 and these orders are challenged in this writ petition. 2. The relevant provisions under the Haryana Utilization of Surplus & Others Areas Scheme of the year 1976 are Sections 4 to 7. Section 4 deals with category of eligible persons on inter se priority. Category A is a tenant holding land declared as the tenants permissible area under the Punjab Law. By application of this Section, Ganesha and his sons shall be taken as falling within category A and eligible for the first order of priority. Section 5 contemplates application of eligible persons. This application would be possible within 7 days from the day when a list of surplus area is displayed after the permissible area is deemed to have vested in the State Government by virtue of Section 12 (3) of the Haryana Act. There is no denial of the fact that the whole property of what was declared as the permissible area of the tenant under the Punjab Law was, therefore, vested in the State and the issue was only the entitlement to receive the application.When the contention of the petitioners was that no notice had been served, I would assume that it must only be taken that the entitlement of the petitioners would be required to be considered in the light of the extent which the Act and the Rules provide for. Section 6 contemplates the scrutiny of applications and Section 7 (ii) states that the eligible persons of C.W.P. No.3833 of 1986 -3- Category A will be allotted land to the extent permissible area under Act out of the area held by them. We have already examined Section 4, which provides for manner of reckoning of the permissible area of a tenant. If a proper reckoning is made for taking the primary unit of the family plus 2/5th for the additional members, the entire property held as the tenant's permissible area under the Punjab Law must have been taken as the permissible area of the tenant. Since the petitioners are already said to be in possession of the property, the whole of the property must have been allowed to be retained by them and no fresh allotment could have been made in favour of the private respondents. 3. The learned counsel appearing on behalf of the petitioners would contend that the action taken by the authorities even without notice was erroneous and not binding on them. Section 4 of Haryana Ceiling on Lands Holdings Act defines permissible area and to the extent to which it is relevant for us, it is contained in sub clauses (1) and (2), which is reproduced as under:- “4. Permissible Area:- (1) The permissible area in relation to a landowner or tenant or mortgagee with possession or partly in one capacity or partly in another, or person or family consisting of husband, wife and upto three minor children (hereinafter referred to as “the Primary unit of family”), shall be, in respect of - (a) land under assured irrigation capable of growing at least two crops in a year (hereinafter referred to as the land under the assured irrigation), 7.25 hectares; (b) land under assured irrigation capable of growing at least two crop in a year, 10.9 hectares; (c) land of all other types including land under orchard, 21.8 hectares. C.W.P. No.3833 of 1986 -4- (2) The permissible area shall be increased by one-fifth of the permissible area of the primary unit of family for each additional member of family. Provided that the permissible area shall not exceed twice the permissible area of the primary unit of family.” 4. Learned counsel would contend that admittedly the land- owner Ganesha had a wife and five sons and the permissible holding must have been taken as available for the primary unit of a family upto three minor children besides the wife and owner or the tenant. The family in excess of three sons would require setting apart 1/5th unit for every additional member, provided however the total permissible area cannot be more than twice a permissible area of the primary unit of family. According to the learned counsel even without going into the issue of who were the minor children, assuming all the persons were minors for a family of a tenant, which contain more than three members, for every additional member, 1/5th unit must have been provided. On such a reckoning, the permissible extent could not have been merely 270 Kanals but also the whole of the remaining of what was treated as surplus and allotted to the tenants. 5. Learned counsel appearing for the respondents, who are subsequent allottees, contests this argument and contends that the scheme provides for not merely the persons, who were entitled to such allotment but also the extent of property that could be granted. The learned counsel states that the total extent that was held as permissible area by Ganesha cannot be understood with reference to the number of members of his family as if he were an owner. As far as the holdings in relation to the tenants are concerned, it cannot exceed the permissible C.W.P. No.3833 of 1986 -5- area for one primary unit of family. 6. I cannot accept this interpretation, for the permissible area, which is contemplated under Section 4 makes no distinction between the holding of a owner or a tenant or a mortgagee or in any other capacity. It is the extent of holding, which is relevant irrespective of the character of such possession. Consequently, a person, who is a mortgagee of some extent, owner of some extent and tenant of some extent would be attracted to the provisions of the Act if his total holding in whatsoever capacity put together exceeds the permissible area. If the permissible area could be only in the context of the size of the family as Clauses (1) and (2) provide for, inevitably, the permissible area cannot be restricted merely to the holding of Ganesha allowing to his family only a primary unit's entitlement. It should be seen only as the father's holding along with his sons, where the size of the family on the date of coming into force of the Act will determine the extent of holding as well. 7. The counsel for the private respondents cites State of Maharashtra Vs. Amarendra Nath Sen AIR 1985 SC 1403 as supporting his line of defence. The said decision is rendered under Maharashtra Agricultural Lands (Ceiling on Holdings) Act 27 of 1961. The Court was considering the effect of death of landowner after filing return as being irrelevant and heirs cannot be taken as independent tenure holders. I am not examining in this case the rights of sons as legal heirs. On the other hand, I hold that Ganesha, on the date of the Act had a family of 5 sons and the reckoning of the holding ought to provide for two additional units of 1/5th share for each son. For the same reason, the reliance on the decision in State of U.P. Vs. The Civil Judge, Nainital and others C.W.P. No.3833 of 1986 -6- AIR 1987 SC 16 and Brij Lal V. State of Haryana 2001(1) PLJ 148 that deal with rights of legal heirs after the death of tenure holder have no relevance. The decision in Hukam Chand and another Vs. Sai Das etc 1987 PLJ 284 deals with the entitlement of joint tenants and the holding to be determined by taking note of all the lands held together. In the instant case, there is no plea that the sons own any property independently. I am assessing the extent of the property held by Ganesha along with his wife and sons and for the said purpose, I apply the extent permissible to the size of the family under Section 4. 8. The impugned order is set aside and the writ petition is allowed. The allotment made already is, therefore, quashed and if the property is retained in possession by the petitioners, they will continue to be so. However, if they have been dispossessed, they shall be restored in their possession from the hands of the allottees to the petitioners. (K. KANNAN) JUDGE November 02, 2011 Pankaj*