C.W.P. No.5364 of 1988 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.5364 of 1988 Date of Decision 21.11.2011 Chuni Lal and others …………Petitioners Versus State of Haryana through Secretary to Government, Haryana, Revenue Department, Haryana Civil Secretariat, Chandigarh and others ……Respondents Present: Mr. S.K. Jain, Advocate and Mr. Akash Jain, Advocate for the petitioners. Mr. O.P. Sharma, Addl. A.G., Haryana for respondent Nos.1 to 4. Mr. Ashwani Talwar, Advocate for LRs of respondent Nos.5 to 8 and for respondent Nos.9 and 10. 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.(ORAL) 1. The petitioner is aggrieved against the orders passed by the Financial Commissioner in culmination of the proceedings taken on the determination of surplus area under the Haryana Ceiling on Land Holdings Act, 1972 and consideration of the claims of tenants at the time when the proceedings were concluded. 2. By the first round of proceedings that ended with the order of the Financial Commissioner on 28.03.1966, in relation to the land holding of one Jai Karan, he held that the declaration of surplus as C.W.P. No.5364 of 1988 -2- made already by the Collector and the Commissioner were to be upheld except for the fact that lands categorized as Banjar Kadim to the extent of 0.70 standard acres of land as on 15.04.1953 was liable to be excluded in the reckoning but if those areas were utilized for resettlement of ejected tenants and the petitioners as heirs of the land owners wanted to eject them, they could take action as the law permitted. Subsequently, through an order dated 27.02.1969, the Collector, Surplus Area observed that the land owner had selected properties in Raipur and Chadewal as permissible area in the year 1952-53 out of which he had 29.35 acres in Chadewal and 10 acres in Raipur in his self-cultivation. The rest of the lands in an extent of 11 acres in Chadewal and 79.50 acres in Raipur were under the occupation of the tenants. In respect of 79.50 acres, the Collector observed that they fell within the permissible area of the tenants. The landlord was entitled to 60 ordinary acres as permissible area as per the selection, which the land owner had made and which the order of the Collector on 21.03.1964 had affirmed, the remaining extent of property in the occupation of the tenants on 15.04.1953 was declared as the tenant’s permissible area. Eventually, therefore, the Collector held that beyond 60 ordinary acres, providing 79.50 acres in the hands of the tenants as permissible area, there was no other land retained by the owner, thus leaving no surplus area with the land owner. 3. This order dated 27.02.1969 came to be challenged at the instance of the present petitioner nearly 15 years later when he filed an appeal to the Commissioner in the year 1984. The Commissioner C.W.P. No.5364 of 1988 -3- entertained the appeal and held that the Financial Commissioner’s order of 28.03.1966 had concluded the issue relating to surplus except for a minor modification relating to the exclusion which the land owner was entitled to in respect of Banjar Kadim and the Collector by his order dated 27.02.1969 had virtually retained the order of the Financial Commissioner. All these orders were challenged before the Financial Commissioner by the land owner and the Financial Commissioner restored the order passed by the Collector. I cannot persuade myself to see from any observations of the Financial Commissioner or the Collector in his order dated 27.02.1969 that there could be any prejudice to the tenants. If it is noticed that the Collector had only provided for 60 ordinary acres for the land owner and also made provisions for exclusion of Banjar Kadim lands, the excess of properties were treated as falling with the tenants’ permissible area. 4. The grievance of the petitioner are the observations of the Financial Commissioner that if the property were to be treated as surplus in excess of 60 ordinary acres, the tenants would get a smaller entitlement of only two standard acres. It is contended that this is clearly in error, for, any property held by the tenant within the permissible area would qualify him to be treated as falling within the Category A under the Haryana Utilization of Surplus and other areas Scheme, 1976. The person, who falls under Category A shall be a person, who would obtain an allotment in the manner provided under para 7 that deals with principles and procedure for allotment C.W.P. No.5364 of 1988 -4- under the Scheme of 1972. It is worthwhile to produce the relevant Clauses. “7. PRINCIPLES AND PROCEDURE OF ALLOTMENT.-The allotment authority shall make allotment first of all the surplus area and the tenants' permissible area deemed to have vested in the State Government under sub-section (3) of Section 1~ and thereafter the surplus area acquired from time to time under sub-section (1) of Section 12, in each village in favour of eligible persons after observing the following principles and procedure namely: (i) inter se priority amongst the eligible Categories shall be in the same order in which these have been listed in paragraph 4, that is Category A will take precedence over Category B and Category B will take precedence over (Category BB) and so on; (ii) eligible persons of category A will be allotted land to the extent of permissible area under this Act out of the area held by them; (emphasis mine) (iii) eligible persons of Category B will be allotted the areas held by them; . (iv) inter se priority amongst the eligible persons category-wise falling in categories (88, C, CC, 0, E,F,H and I) shall be arranged in the same order as the extent of .area acquired for their resettlement with the smallest landowner coming on the top. Where several claimants are entitled to the same priority, the allotment authority shall prepare a list of their names in alphabetical order in Hindi (Devnagri Scrip and the allotment to them shall be made according to the serial number of the list so prepared. The same principle of alphabetical order shall be . followed in the case of persons falling in Category G. The land owned by the claimants and the members of their families as on 1st day of January, 1976 shall be reckoned for the purposes of this paragraph; (v) the extent of surplus are allotted to the various Categories mentioned in paragrpah 4 will be as follows: (A) CATEGORY A.- to the extent of the tenants' permissible area or the permissible area under the Act, whichever is less; (emphasis supplied) (B) CATEGORY B. - to the extent of the area allotted to and held by the eligible persons; (BB) CATEGORY BB.-Two hectares of C category land or land of equivalent value, provided that the total area of land, including the land already held by the allottee shall not exceed two hectares, of C Category land or land of its equivalent value; (C) CATEGORY C.-to the extent prescribed in Section 9A of the Punjab Law or Section 7 A of the Pepsu Law, and the rules made thereunder; C.W.P. No.5364 of 1988 -5- (CC) CATEGORY CC.-two hectares of C Category land or land of equivalent value: Provided that the total area of land, including the land already held by the allottee shall not exceed two hectares of C Category land or land of its equivalent value"; The proviso is applicable to all categories. The Act of 1972 defines permissible area thus: 4. PERMISSIBLE AREA. -(1) The permissible area in relation to a land-owner or tenant or mortgagee with possession or partly in one capacity or partly in another, of 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 assured irrigation), 7.25 hectares; . (b) land under assured irrigation capable' of growing at least one crop in a year, 10.9 hectares; (c) land of all other types including land under orchard, 21.8 hectares. . (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. (3) The permissible area shall be further increased up to the permissible area of the primary unit of a family for each separate unit: (Vide Act No. 17 of 1976). Provided that where the separate unit also owns any land, the same shall be taken into account for calculating the permissible area. (4) The permissible area shall be determined on the basis of valuation to be calculated in the prescribed manner taking into consideration the ownership of the means of irrigation, their intensity and such other factors as may be prescribed subject to the condition that the total physical holding does not exceed 21:8. hectares. (5) In determining the permissible area for the purpose of clause (a) of sub-section (1) five hectare are of land under irrigation from privately-owned tubewells, pumping sets, etc., shall be equal to four hectares of land under irrigation from canal as defined in the Northern India Canal and Drainage Act, 1873 (Central Act 8 of 1873) or from State tubewells as defined in the Punjab State tubewells Act, 1954 (Punjab Act No. 21 of 1954). C.W.P. No.5364 of 1988 -6- (6) For evaluating the land of any person at any time under this Act, the land owned by him immediately before the commencement of this Act as well as the land acquired by him after such commencement by inheritance, bequest or gift from a person to whom he is an heir shall be evaluated as if the evaluation was being made on the appointed day and the land acquired by him after the appointed day in any other manner shall be evaluated as if the evaluation was being made on the date of such acquisition. 5. The procedure shall therefore be, firstly, to determine what is the permissible area for the tenant under section 4 under the 1972 Act read with the 1976 scheme, provided that it shall not however exceed as regards Category C land more than 2 standard acres. I do not accept the contention of the petitioner that the Collector had exceeded his brief in reopening the order passed by Financial Commissioner. The Financial Commissioner has also observed that the appeal by the petitioner itself was unjustified after nearly 14 years by instituting the appeal proceedings on 07.04.1984 when the proceedings of the Collector are concluded on 27.02.1969. The Financial Commissioner also noted a defect in the order of the Commissioner in proceedings to pass an order without hearing of the tenants. I cannot accede for reopening the matter which fell to be concluded by the directions of the Collector on 27.02.1969 and affirmed finally by the Financial Commissioner through the impugned order on 08.09.1987. The understanding of the order as regards the total area to be allotted to the petitioner shall be in the manner interpreted above. 6. The writ petition is disposed in the above terms. (K. KANNAN) JUDGE November 21, 2011 Pankaj* C.W.P. No.5364 of 1988 -7-