IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 2182 of 1984 Date of Decision: 17.4.2009. Hari Singh and others --Petitioners Versus State of Haryana and another --Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH. Present:- Mr. Sudhir Mittal, Advocate for the petitioners. Mr. Yashwinder Singh, AAG, Haryana. *** RANJIT SINGH.J (ORAL) One Sher Singh was a big land owner having land measuring 695 kanals 3 marlas situated in district Sonepat. He had three sons namely Shiv Narain, Chander Parkash and Hari Singh. All the three sons of said Sher Singh were major/adult on the date when the Punjab Security of Land Tenures Act, 1953 (for short 'Tenures Act') was enforced. Land measuring 433 kanal 16 marla owned by Sher Singh was declared surplus under the provisions of 'Tenures Act'. The petitioners claim that there was a family settlement between Sher Singh and his three sons under which each of the three sons were given 134 bighas of land whereas the remaining land being orchard was retained by Sher Singh. It is further pleaded that this family settlement was given effect and reflected in the revenue records in the Jamabandi for the year 1955-56. In the proceedings initiated to determine the surplus area, the Collector (Agrarian) did not take this disposition into consideration. When the sons came to know of it, they moved an objection application before respondent no.2 under the rules framed under the Tenures Act on 29.10.1959. Without taking these objections into consideration, the CWP. No. 2182 of 1984 -2- area as already noted was declared surplus. Sher Singh died on 23.10.1972, though, as per the averment in the writ petition, (subsequently was amended), it is mentioned that the date of death was wrongly recorded as 13.4.1973. On death of Sher Singh the land was mutated in the name of his widow Smt. Bothi, three sons named above, and two daughters Chameli and Raksha Devi. It was accordingly pleaded that there was no land which was surplus, which could be declared or treated as such. In the meantime, Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred as 'Ceiling Act') was enacted and came into force on 23.12.1972. According to Section 8 of this Act no transfer or disposition of land in excess and permissible area under the Pepsu Law or Punjab Law after 30.7.1958 are saved. Thus, the transfers, which are prior to 30.7.1958 are saved and would not vest in the State in terms of Section 12 of the Ceiling Act. The petitioners filed a writ petition before this Hon'ble Court on 8.9.1976 challenging the vires of certain provisions of Ceiling Act these being ultra vires of the Constitution. The said writ petition was dismissed but liberty was given to claim the benefit of the provisions within a specified period. It is not clear from the record whether the petitioners still moved any application to claim benefit of the provisions of the Ceiling Act or not. Rather the petitioners had filed a civil suit for permanent injunction before the Court of Sub Judge, Sonepat, wherein they were granted an interim injunction on 1.7.1980. This injunction order, however, was vacated on 6.1.1984 against which the petitioners filed an appeal. The said appeal was also dismissed on 20.2.1984 holding that Civil Court had no jurisdiction. CWP. No. 2182 of 1984 -3- The petitioners in the meantime appears to have filed an application under Section 10-A (b) of the Tenure Act to the effect that they had become small land owners. No action still is taken to claim benefits under the Ceiling Act. The application filed under Section 10-A (b) referred above was dismissed by the Collector (Agrarian) on 15.11.1977. It was noticed that Sher Singh died on 13.4.1973 whereas surplus area had vested in State under Section 12(3) of Ceiling Act. Against this, the petitioners filed an appeal before the Commissioner, Ambala. This appeal was adjourned sine die on 16.2.1978 as the writ challenging the vires of Ceiling Act was under consideration. During the pendency of appeal the appellant apprehending dispossession the petitioners filed a writ petition before this Court in the year 1984. This writ petition was dismissed as pre- mature. The petitioners, however, were directed to approach the Commissioner, Ambala Division for getting their appeal decided, which was pending. The petitioners accordingly moved application before the Commissioner, Ambala Division for hearing the appeal numbered 63 of 1978. A prayer for stay was also made. The Commissioner summoned the record of appeal for hearing on 27.4.1984. The Commissioner declined to stay the further proceedings or dispossession of the petitioner from the land in dispute and adjourned the case to 28.5.1984. The petitioners learnt about the action to dispossess them and to hand over the land to the allottees was fixed for 8th May, 1984. The petitioners filed the present writ petition on the ground that the remedy of appeal would become totally useless and illusionary. This writ petition was admitted on 10.9.1984 and dispossession of the petitioners was stayed. CWP. No. 2182 of 1984 -4- From the facts as noticed above, it is clear that the appeal, which was filed by the petitioners to impugne the order dated 15.11.1977 is still pending adjudication. Subsequently, in the year 2004 the petitioners had filed an amended writ petition, which was allowed and amended writ petition is on record. In the present writ petition the petitioners have also challenged the order dated 29.10.1959 through which this land was declared surplus. The facts as noticed would clearly show that subsequent events had intervened which led to filing of an application under Section 10-A (b) by the petitioners for interfering in the order dated 29.10.1959. This prayer of the petitioners was rejected against which the appeal is pending. It would be appropriate to relegate the petitioners to their remedy of appeal which is equally efficacious. It is conceded before me that the appeal is still pending. Accordingly, while relegating the petitioners to the remedy of appeal, the Appellate Authority is directed to take up the appeal for hearing and pass the order in accordance with law. The State as well as the petitioners would be entitled to raise all the pleas before the Appellate Authority. Since the possession of the petitioners has remained protected for all these years, the interim order in favour of the petitioners would continue till the disposal of the appeal. Thereafter, the parties would be at liberty to challenge the order passed by the Appellate Authority, if, they feel aggrieved against the same decision. The present writ petition, however, is dismissed. (RANJIT SINGH) JUDGE 17.4.2009 lucky