CIVIL WRIT PETITION NO. 864 of 1991(O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.864 of 1991(O&M) DATE OF DECISION: AUGUST 3, 2011 Fakiria & others ….Petitioners VERSUS The State of Haryana and 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. P.N. Aggarwal, Advocate, for the petitioners. Mr. Harish Rathee, Sr. DAG, Haryana, for the State. **** RANJIT SINGH, J. This order will dispose of two writ petitions bearing Nos. 860 and 864 of 1991 as a common question of law is involved in both the petitions. The facts are noticed from CWP No.864 of 1991. The petitioners claiming themselves to be tenants of a big land owner have filed this writ petition to challenge the order passed by the Financial Commissioner dated 21.8.1990. The petitioners claim to have purchased the land from big land owner which was declared surplus and was subsequently utilized. The 1 CIVIL WRIT PETITION NO. 864 of 1991(O&M) petitioners would plead that the Government could not have utilized this surplus land. The facts noticed in brief are that on 25.2.1965, the Collector, Agrarian, Naraingarh, had declared 134 standard acres 3 units of land with Rao Pirthi Singh of Raipur Rani, Tehsil Naraingarh, Distt. Ambala, as surplus under Punjab Security of Land Tenures Act, 1953 (for short ‘the Punjab Act’). As per the petitioners, their predecessors-in-interest were non-occupancy tenants on land in Village Raipur Rani, even in the year 1917-18. In support, copy of the jamabandi of the year 1917-18 is referred to. It is stated that Mansha Ram, father of petitioner No.1 and Bishna, the predecessor-in-interest of petitioner Nos.2 to 4, were recorded as non-occupancy tenants in Khasra Girdawaris dated 15.4.1953. Even thereafter, they were recorded as tenants on the land. The petitioners have averred that the land owner wrongly got himself recorded as in self-cultivation subsequently. The land declared surplus with Rao Pirthi Singh was proposed to be allotted. Bishna and other tenants had then filed a complaint and on basis thereof, Naib Tehsildar, Agrarian, Ambala, submitted a report on 14.10.1966 that order declaring land surplus with Rao Pirthi Singh was incomplete as it did not contain the list of Khasra Numbers of surplus area even in Form F. It was stated that upon proper calculation of the area, there remained no area to be declared surplus. Bishna and Mansha Ram predecessors-in-interest of the petitioners and some others filed an application under Section 2 CIVIL WRIT PETITION NO. 864 of 1991(O&M) 18 of the Punjab Act for purchase of land measuring 132 kanals comprised in various khasra numbers. The statement of Patwari was recorded to the effect that the said land for which the application was submitted was not reserved or selected by the land owner and that the land was in possession of the applicant-tenants for more than 6 years, the prayer made in the application was allowed on 6.9.1967. The applicants, thereafter, deposited the full purchase amount and thereupon mutation No.1326 was recorded in their favour on 27.11.1969. Copy of the order dated 6.9.1967 is not on record. Bishna, Mansha Ram and other tenants had also filed another application on 13.9.1966 before the Assistant Collector, Ist Grade, Naraingarh against Narinder Singh, minor son of Rao Pirthi Singh for purchase of land under the Punjab Act. The said application was also allowed on 6.9.1967 and upon deposit of the purchase price, mutation No.1327 was sanctioned on 27.1.1969. Pleading that these orders have become final and binding and that they were in possession of this land, the petitioners had challenged the action of the respondents in allotting this land to some tenants. Two persons named Siri Chand and Lachhman Singh had filed application on 29.7.1976 before the Collector Agrarian for including the land purchased by Mansha Ram, Bishna etc. in the surplus land of landowner for its allotment. The said application was sent to Sub Divisional Officer, Naraingarh for action on 31.7.1976. Sub-Divisional Officer allowed this application on 24.7.1980. The petitioners would term this order to be illegal. Mansha Ram etc. filed an appeal against this order, which was dismissed on 15.6.1982. 3 CIVIL WRIT PETITION NO. 864 of 1991(O&M) Thereafter, they filed a revision before the Commissioner, Ambala Division, who accepted the same on 28.2.1985. The Commissioner in his order inter alia had observed as under:- “Keeping in view all the facts of the case, I have reached the conclusion that there is merit in the contentions raised by the learned counsel for the appellants as no Form ‘F’ has been issued in this case till now, no scrutiny of khasra Nos. after increase of 245 St. Acres in consolidation of holdings in the total holding of the landowner seems to have been done, the orders dated 6.9.1967 passed by the Assistant, Ist Grade, Naraingarh in case Nos.28-29 have not been challenged till now by the State, and it will not be in the interests of justice to reconsider these orders regarding purchase of the land by the appellant which have already become final merely on the basis of 1974 PLJ page 74. Apart from it, by careful consideration of the facts, it seems clear that Lachhman Singh etc, tenants before the Financial Commissioner, Haryana, were not existing tenants on 15.4.1953 on the disputed land of the big landowner Rao Pirthi Singh whereas the appellants were tenants of the big landowner on this date. Therefore, the facts of both the cases are not similar. Thus, I accept this revision and by setting aside the impugned orders dated 24.7.1980 and 15.6.1982 passed by the Revenue Officers below, direct that the allotment proceedings being taken regarding the land in question be stopped and the orders dated 6.9.1967 passed by the Assistant Collector Ist Grade, Naraingarh under Section 18 be implemented.” 4 CIVIL WRIT PETITION NO. 864 of 1991(O&M) Private respondents, thereafter, filed a revision petition before the Financial Commissioner against the above order passed by the Commissioner, Ambala Division. The said revision petition was accepted on 21.8.1990. Accordingly, the petitioners have filed the present petition to impugn this order passed by the Financial Commissioner. Written statement was filed to point out that the land in dispute did not constitute the tenant permissible area as defined under the Punjab Act. Plea further is that the petitioners were not in continuous cultivating possession of the disputed land for 6 years after 15.4.1953 i.e. the date of commencement of the Punjab Act. In the year 1953, the disputed land was in possession of the predecessors-in-interest of the petitioners, but w.e.f. 1954 the owner himself had cultivated the land till 1963-64. Thereafter, the land remained in possession of the owner from the year 1954 till March, 1964. Thus, averment made by the petitioners that the land was in their possession has been, accordingly, denied. The report given by the Naib Tehsildar dated 14.10.1966 is stated to be incorrect on the ground that no appeal or revision was filed against the order passed by the Collector Agrarian declaring the land surplus and thus, the order had acquired finality. The right of the petitioners to purchase this land under the Punjab Act is disputed on the ground that they could purchase only that land, which was tenant permissible area. Besides, it is also stated that the petitioners were not in continuous possession for more than 6 years and thus, they were not even eligible to purchase land as an old 5 CIVIL WRIT PETITION NO. 864 of 1991(O&M) tenant on the said land. To highlight this aspect, it is pointed out in the reply that the applications of predecessor-in-interest of the petitioners were contested by the big land owner on the ground that the petitioners had not been in continuous possession of the land for 6 years. It was also pointed out that thereafter Mansha Ram father of petitioner No.1 had entered into a compromise with the big land owner and on that basis he surrendered possession of some land, which was under his occupation. This order is termed as illegal on the basis of law laid down in State of Punjab Versus Amar Singh, 1974, PLJ 74. Land purchased by another person named Teja was also based on compromise and thus, bad in law as per the ratio of law laid down in Amar Singh’s case (supra). The purchase order by predecessor-in-interest of petitioner Nos.2 is also termed as nullity and thus, having no effect in law. As per the respondents, the purchase of surplus area by the petitioners was void, ab inito and thus, it is urged that the State was not precluded from allotting the land to eligible persons under the Haryana Utilization of Surplus and other Areas Scheme 1976. Counsel for the petitioners submits that the purchase order dated 6.9.1967 can not be validly questioned and found bad after 23 years by the Financial Commissioner in exercise of suo motu powers. In support, the petitioners have referred to Loku Ram Versus State of Haryana, 1991(1) PLJ 1 . The counsel further contends that land purchased under Section 18 of the Punjab Act is required to be excluded from the holding of the land owner and thus, would not vest in the State under Haryana Ceiling on Lands Holdings 6 CIVIL WRIT PETITION NO. 864 of 1991(O&M) Act, 1972 (hereinafter ‘the Haryana Act’) . In this regard, counsel has referred to Smt. Jaswant Kaur and another Versus The State of Haryana and another, 1977 PLJ 230 (FB), Banwari Versus The Commissioner, Ambala Division, Ambala and others,1981 PLJ 61 and Barkat and others Versus The Financial Commissioner, Taxation, Punjab and others, 1981 PLJ 177. Counsel, therefore, submits that the purchase order passed under Section 18 of the Punjab Act are valid and cannot be ignored. As per the counsel, the order of the Commissioner was final and no further revision petition of the private respondents was maintainable and so should not have been entertained and dismissed by the Financial Commissioner being not maintainable. As per the counsel, the Financial Commissioner could not have invoked suo motu powers under Section 18(6) of the Punjab Act on the basis of revision, which was not clearly maintainable. On the other hand, State counsel would plead that the declaration of surplus under Punjab Act cannot be reopened and given retrospective effect to affect to Section 12(3) of the Haryana Act. Such a view expressed by this Court was not sustained by the Hon’ble Supreme Court in Ram Swarup Versus S.N. Maira, AIR 1999 (SC) 941. In this judgment, the Hon’ble Supreme Court has also held that by allotment and delivery of possession, rights are conferred on allottees and any order without impleading them as parties having effect of taking away their rights cannot be sustained. Allottees were held to be necessary parties and so no order could be passed without hearing them. State counsel would also rely upon the 7 CIVIL WRIT PETITION NO. 864 of 1991(O&M) observation made by the Hon’ble Supreme Court in Sher Singh Vs. Financial Commissioner of Planning, Punjab, AIR 1987 (SC) 1307, where it is observed that land after having been declared surplus but not utilized by the Government for resettlement of tenants, would not entitle the land owner to get back the land. It is further observed that the Act has not imposed any time limit for the Government to utilize the land for the purpose mentioned in the Act. The Hon’ble Supreme Court has further held that order declaring the land surplus, passed before reorganization of States, will not affect the land of a landowner declared surplus, if the area falls in two newly formed States. State counsel has made reference to the case of Smt. Bhagwati Devi Versus. State of Haryana, AIR 1994 SC 1869. The issue, in my view, lie in narrow compas. Before going into any other question, it would necessarily have to be seen if the predecessor-in-interest of the petitioners could validly purchase this land. The rights of the petitioners to contest the allotment of the land of big landowner declared surplus would arise only in case they had any right to purchase this land being a tenant. The predecessor- in-interest of the petitioners had filed an application for purchase of the land on the ground that they were old tenants and thus, were entitled to purchase the land under Section 18 of the Punjab Act. As already noticed, this application was contested by the land owner. It can be noticed here that Lachhman Singh had also moved an application under Section 18 of the Punjab Act for purchase of the land owned by big land owner Rao Pirthi Singh, but his application was dismissed by the Assistant Collector. He failed in his appeal and 8 CIVIL WRIT PETITION NO. 864 of 1991(O&M) revision also. While commenting upon the purchase made by the predecessor-in-interest of the petitioners, which was relied upon by Lachhman Singh, the Financial Commissioner then had observed that if they had purchased the land declared surplus as part of compromise they had done so at their own risk. The Financial Commissioner clearly had observed that the land declared surplus would not affect the right of the State Government to resettle the tenants on that land. In fact, Lachhman Singh etc., thereafter, had filed an application before the Collector Agrarian on the ground that they were tenants on the land, which Mansha Ram had purchased as part of compromise and this land should be declared surplus in accordance with the orders passed by the Financial Commissioner referred to above. The Collector, Agrarian, thereafter, had passed an order on 25.5.1978 that the land in dispute should be entered into surplus pool. The appeal against this order was filed before the Commissioner Ambala Division, who had remanded the case through order dated 24.1.1979 to the prescribed authority. The prescribed authority, thereafter, passed an order on 24.7.1980 declaring that the land measuring 164 kanals had been wrongly purchased and this land was actually surplus land and should be utilized as such. Appeal against this order was rejected on 9.11.1982. This land, thereafter, was allotted to different allottees. Against this order, Mansha Ram etc. had filed two revision petitions before the Commissioner, Ambala Division, who had accepted the appeals and set aside the orders of the Allotment Authority and that of the Collector. The Commissioner had directed that order dated 6.9.1967 be implemented. These 9 CIVIL WRIT PETITION NO. 864 of 1991(O&M) orders passed by the Commissioner were impugned before the Financial Commissioner. The allottees, accordingly, had pleaded that the possession of the land was delivered to them on 25.1.1982 and they had, thereafter, paid instalments. Their plea further was that they were necessary parties, but were not heard by the Commissioner as they were not impleaded as parties in the revision petition. In support, the allottees had placed reliance on NOPA & others Versus State of Haryana & others, 1987 PLJ 102. On similar grounds, the application of Lachhman Singh for purchase under Section 18 of the Punjab Act had been dismissed. The plea of the allottees further was that the order of the Commissioner is a nullity in view of law laid down in Smt. Sarbati & others Versus The State of Haryana, 1988 PLJ 359. The plea of the petitioners before the Financial Commissioner was that the revision petition was incompetent. It is the same plea, which is repeated before me by their counsel. The counsel, however, has further added to this plea by saying that the Financial Commissioner could not have invoked his revisional jurisdiction under Section 18(6) of the Haryana Act. Before the Financial Commissioner, the plea raised by the petitioners was slightly different. The petitioners had then pleaded that there was no request for invoking the suo motu jurisdiction, which should be very rarely exercised and could not be used in lieu of ordinary revisional powers. The petitioners had also pleaded that the revision petition was not competent. Apart from the right of appeal, revision etc. under 10 CIVIL WRIT PETITION NO. 864 of 1991(O&M) Section 18 of the Haryana Act, the Financial Commissioner has very wide suo motu powers to test the legality and validity of an order passed by any authority subordinate to him. Such suo motu powers can be exercised on being approached as well. The respondents herein had approached the Financial Commissioner and noticing the illegality, the Financial Commissioner had decided to invoke his revisional jurisdiction to look into the illegality or impropriety of the orders passed by the lower authorities. In my view, the Financial Commissioner was justified in taking a view that once the facts of the case were brought to his notice, he was competent to test the legality or validity of the orders. The main ground, for which the order passed by the commissioner was challenged, was that the Commissioner had not afforded opportunity of hearing to the allottees, who were interested parties. The Financial Commissioner has justifiably observed that the petitioners had failed to prove their occupation to become entitled to purchase this land and so, they had persuaded the landlord to enter into a compromise and in return had surrendered possession of some part of land. The Financial Commissioner, thus, did not consider this to be a proper purchase or sale under Section 18 of the Punjab Act. In this regard, the Financial Commissioner has made reference to instructions dated 13.7.1967 where the Government of Haryana had decided to give benefit to the vendees to purchase land out of surplus area only upto 15.7.1966. Any purchases made thereafter were to be considered null and void and such area could be utilized for resettlement of the tenants. Thus, the petitioners were held not to be entitled to get the benefit of this 11 CIVIL WRIT PETITION NO. 864 of 1991(O&M) purchase. The Financial Commissioner, accordingly, directed that order of purchase as made was required to be ignored. It is, thus, clear that the Financial Commissioner had not interfered in the purchase order dated 6.9.1967, but had simply observed that this was a nullity. The submission made by the counsel for the petitioners that purchase order could not be questioned after 23 years will loose much of sting. The submission that the land purchased by the petitioners was to be excluded from the holding of the land owner and would not vest in the State of Haryana proceeds on total misconception. Once the sale is held to be a nullity, then no such consequence would follow. There is justification in the plea raised by the State counsel that the State was not bound by any order, which was passed without impleading it as a party. In fact, the ratio of law laid down in Amar Singh’s case (supra) would be a complete answer to all the submissions made and raised on behalf of the petitioners. In this case, the Hon'ble Supreme Court has observed that the purchase order under Section 18 based on compromise would be a nullity. It is further held that it cannot affect the State authority for determining the surplus area and it can decline to act on order of purchase under Section 18 of the Punjab Act. An order of purchase under Section 18 of the Punjab Act ordinarily binds the parties only and, the State, which is seriously prejudiced by that order but not being a party to it, therefore, cannot bind the State to proprio vigore. The State being not a party to the proceedings, thus, cannot be bound by it whatever may be the affect of it between the parties to these proceedings. 12 CIVIL WRIT PETITION NO. 864 of 1991(O&M) Another observation has been made by the Hon'ble Supreme Court in this case to hold that State is not precluded from proving the invalidity of the purchase order made under Section 18 of the Punjab Act and this Section clearly applies only to tenants and said order would be unsustainable, who claims to be so, but legally is not a one. Proceeding further, the Hon'ble Supreme Court has held that once the land is held to be part of surplus area of the land owner it rests with State Government for being disposed of for resettlement and any disposition of the same by the landlord after April 15, 1953, would be invalid against the State Government's claim for disposing the same in accordance with law. In this regard, it is observed that paramountcy of Section 10-A cannot subverted by Section 18 of the Punjab Act. The land which could be purchased by the petitioner had to be a tenant’s permissible area and it is not that every bit of land which is with tenant is tenant permissible area. In the absence of proof that the lands under the tenants inducted after 15.4.1953, did not comprise of the permissible area of the prior tenant then, the land cannot be held coming outside the purview of surplus land. Even in Jaswant Kaur’s case (supra) transfer of land is protected if made prior to 30.7.1958 and all other land not excepted by Section 8 would vest in State Government with effect from appointed day. In Banwari’s case (supra) it is observed that collusive orders of purchase liable to be ignored under Section 10-A (C). Barkat’s case (supra) only says that there is no requirement of Section 18 that tenant before he can purchase land under his tenancy must start as a tenant prior to April 15, 1953. 13 CIVIL WRIT PETITION NO. 864 of 1991(O&M) It is thus, very clear that the petitioners could not have validly purchased this land, which was declared surplus. The right or entitlement of the petitioners to purchase land under Section 18 of the Punjab Act could have been invoked only if such land was declared as tenant permissible area. Conceded position is that the land was declared surplus and purchase thereof was allowed in favour of the predecessor-in-interest of the petitioners under Section 18 of the Punjab Act. This was not permissible. If such a mode is left open, it would nullify the entire spirit behind the agrarian reform. It would be then open for any big land owner to sell his land which is declared surplus to any person by showing him tenant and Government would thus, be deprived of right to use this land for allotment and settling tenants. Added to all this would be a fact that the allottees were never impleaded as party by the petitioners before the Commissioner. State was also not impleaded as party at the time the application for purchase was filed. Reliance in this regard can be placed on the case of Ram Sarup (supra), where Hon'ble Supreme Court has taken a clear view that case of surplus land, which stand allotted, if put to chal- lenge, then allottee is a necessary party and the order passed without impleading them would not be proper. It may also require a notice that Section 12 (3) of the Haryana Act though was brought in the Statute book in the year 1976 but was given retrospective effect from 23.12.1972 and hence, the right of the parties was to be decided by treating the provisions on statute book as on 23.12.1972. The ratio of law laid down in Sher Singh's case (supra) can also not be ig- 14 CIVIL WRIT PETITION NO. 864 of 1991(O&M) nored. Inaction on the part of the Government to resettle tenants would not clothe the owner with the power of restoration of land. The right on the land declared as surplus gets vested in the Government to be distributed amongst the tenants for resettlement. This is an in- defeasible right that the Government secures and the land owners do not get this land back, if the surplus has not been utilized.