IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: March 17, 2011 (1) LPA No.730 of 2009 Shashi Kumar and others ...Appellants Versus Financial Commissioner, Haryana and others ...Respondents (2) LPA No.731 of 2009 Shashi Kumar and others ...Appellants Versus Financial Commissioner, Haryana and others ...Respondents (3) LPA No.732 of 2009 Shashi Kumar ...Appellant Versus Financial Commissioner, Haryana and others ...Respondents (4) LPA No.733 of 2009 Shashi Kumar and others ...Appellants Versus Financial Commissioner, Haryana and others ...Respondents (5) LPA No.734 of 2009 Shashi Kumar and others ...Appellants Versus Financial Commissioner, Haryana and others ...Respondents 1 (6) LPA No.735 of 2009 Shashi Kumar and others ...Appellants Versus Financial Commissioner, Haryana and others ...Respondents (7) CWP No.10684 of 2001 Surta etc. ...Petitioners Versus State of Haryana and others ...Respondents (8) CWP No.15051 of 2001 Bangi Ram and another ...Petitioners Versus State of Haryana and others ...Respondents (9) CWP No.18577 of 2001 Shashi Kumar and others ... Petitioners Versus State of Haryana and others ...Respondents (10) CWP No.12353 of 1991 Om Parkash and others ...Petitioners Versus State of Haryana and others ...Respondents (11) RSA No.2747 of 2009 Nathi Ram and another ...Appellant Versus 2 Shashi Kumar ...Respondent (12) RSA No.2748 of 2009 Surta and others ...Appellant Versus Chhavi and others ...Respondents (13) RSA No.2749 of 2009 Dauli ...Appellant Versus Shashi Kumar ...Respondent (14) RSA No.2750 of 2009 Mam Chand and others ...Appellant Versus Divya ...Respondent (15) RSA No.2755 of 2009 Doli ...Appellant Versus Pardeep Kumar and others ...Respondents (16) RSA No.2756 of 2009 Nathi Ram and another ...Appellants Versus Pardeep Kumar and others ...Respondents (17) RSA No.2757 of 2009 Sauni Devi ...Appellant 3 Versus Pardeep Kumar and others ...Respondents (18) RSA No.2758 of 2009 Surta ...Appellants Versus Pardeep Kumar and others ...Respondents (19) RSA No.2759 of 2009 Sohan Lal and others ...Appellants Versus Pardeep Kumar and others ...Respondents (20) RSA No.2760 of 2009 Kreshni Devi and others ...Appellants Versus Pardeep Kumar and others ...Respondents (21) RSA No.2761 of 2009 Puran ...Appellant Versus Pardeep Kumar and others ...Respondents (22) RSA No.2762 of 2009 Mam Chand and others ...Appellant Versus Pardeep Kumar and others ...Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE GURDEV SINGH 4 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: M/s R.D.Bawa, Randhir Bawa, Samuel Gill and Shashi Gupta, Advocates for the appellants in LPA Nos.730 to 735 of 2009. Mr. A.K.Chopra, Sr. Advocate, with Mr. Harminder Singh, Advocate, for the petitioners in CWP Nos.12353 of 1991, 15051 and 18577 of 2001. M/s L.N.Verma and Kiran Pal Singh, Advocates, for the petitioner in CWP No.10684 of 2001. Ms. Shubhra Singh, DAG, Haryana for the State. Mr. Bhag Singh, Advocate, for the appellants in RSA Nos.2747 to 2750 and 2755 to 2762 of 2009. HEMANT GUPTA, J. This order shall dispose of aforementioned 22 cases arising out of surplus land case of Om Parkash (since deceased). All other cases except CWP Nos.10684 and 15051of of 2001 and CWP No 18577 2001 pertain to the sanctioning of mutation either on account of purchase of land as tenant’s permissible area or the setting aside of the said orders. The three writ petitions, mentioned above, are the cases in which the issues regarding surplus land of Om Parkash is to be examined. Learned counsel for the parties agree that decision in the said three writ petitions would govern the remaining cases as well and such cases can be disposed of in terms of the decision in the aforesaid writ petitions. 5 CWP Nos.10684 of 2001 and 15051 of 2001 are by some of the tenants, who are claiming right to purchase land as the tenant’s permissible area of big land-owner Om Parkash. The petitioners therein have challenged the orders dated 29.09.1997, 12.10.1999 & 24.03.2000 passed by the Special Collector, Commissioner and the Financial Commissioner, respectively. CWP No.18577 of 2007 is filed by the legal heirs of deceased - Om Parkash challenging the aforesaid orders, which are also subject matter of challenge in the aforesaid two writ petitions. The undisputed facts are that Om Parkash, big land- owner was holding land in different villages namely Jagadhri, Mandebri, Sugh, Galoli, Dasani and Farrakhpur. He submitted his selection in Form ‘E’ in accordance with Rule 3 (6) of the Punjab Security of Land Tenures Rules, 1956 (for short ‘the Rules’) and sent the said form under registered post on 19.06.1958 to the Collector, Ambala. It was pleaded by him in earlier writ petition (CWP No.873 of 1987) that forms were sent to the Collector for the reason that no Special Collector was appointed till the expiry of six months. After the said selection, the Collector passed an order on 09.07.1960. The said order reads as under: “Present land owner with counsel. According to Form ‘D’ the land owner owned 101 SA 7-1/8 units of land on 15.04.1953 and he owns 120 SA 6-1/2 units at present. Adding area 1 SA 1-1/8 units in village Mandebri and 5 SA 9-1/2 units in Farrakhpur owned by the land owner on 15.04.1953 which has been subsequently sold, the total area with the land owner comes to 127 SA 1-1/8 units. Out of this, the following area is under tenants as shown in the Form ‘D’ relating to the land owner:- 6 Jagadhri 1 SA 4-1/2 units Mandebri 62 SA 19-1/2 units Sugh 1 SA 5-1/2 units Galoli 36 SA 2-1/4 units Dasani 2 SA 11-1/4 units Farrakhpur 5 SA 9-1/2 units 119 SA 14 units In addition 6 units of land are under orchard in Village Mandebri. Deducting area under the tenants and the orchard the area remained with the land owner is less than his permissible area. There is, therefore, no surplus area with the land-owner. The case be filed. Announced: 09.07.1960 Sd/- Collector, Jagadhri” In the said order, no surplus area was found with the land-owner as after deducting the tenant’s permissible area and the area of orchard, the land with the land-owner was found to be less than the permissible area. After the said order was passed, some of the tenants filed applications for purchase of land under Section 18 of the Punjab Security of Land Tenures Act, 1953 (for short ‘the Act’). The learned Assistant Collector, vide its order dated 29.01.1969, disposed of the applications, as the area sought to be purchased by some of the tenants was within the reserved area of the Om Parkash. In appeal against the said order by the tenants, the learned Collector remanded the cases to the Assistant Collector to examine the question that whether the tenants are liable to purchase land if the reservation is not made according to law and whether such land belongs to the permissible area of the land- owner. The Collector passed an order on 23.12.1969 that the land- owner has sent his selection form with the Form A and C to the Collector in the year 1958 but the landowner has sold land in Village Binat, Tehsil Thanesar, District Karnal. Therefore, this 7 case was to be decided by Special Collector. It was incumbent upon landowner to send his forms to Special Collector under Section 5A and 5B of the Act and under Rules 3 and 4 of the Rules and the forms have been sent wrongly, therefore, no action is required on those forms. In the appeal against the said order, the leaned Commissioner on 15.4.1970 directed the parties to appear before the Special Collector for re-decision. After the said order, the learned Special Collector passed an order on 12.09.1972 declaring 14-standard acres as the land surplus in the hands of big land-owner. The appeal against the said order was dismissed by Commissioner on 22.10.1973. But the learned Financial Commissioner, vide its order dated 18.12.1974, returned the matter to the Special Collector after rejecting appeal of the landowner. The learned Financial Commissioner directed the Special Collector to look into three points delineated by him in the said order. The purchaser of land measuring 194 Kanals 14 Marlas situated in Village Binat from landowner filed a writ petition before this court (CWP 6859 of 1974). This court set aside the order of Special Collector on September 13, 1978 so as to decide the claim of the purchaser as well. The Special Collector thereafter re-determined the surplus case of the Om Parkash on 06.08.1979. The appeal was dismissed on 21.01.1981. The Financial Commissioner dismissed the revision on 22.10.1986. The order passed by the Financial Commissioner was challenged before this Court in CWP No.873 of 1987 by Om Parkash. This Court remitted the matter to the Financial Commissioner for re- decision in accordance with law and in the light of observations 8 made therein, as the order passed by the Financial Commissioner was found to be without any reasons. The learned Financial Commissioner accepted the revision on 16.09.1995. The relevant extract from the said order reads as under: 5. The second point in which I find a lot of merit is the argument that it is during the purchase proceedings of the tenant that the surplus area case of the land owner was proposed to be opened. This is a very doubtful proposition to my mind. Even if it was to be opened, it could not have been done without the approval of the higher authority. Admittedly, no approval has been obtained while reviewing the surplus area case of the landlord, which had acquired finality on 9.7.1960. The written arguments submitted by the respondents do not seem to carry much conviction. I am firmly of the view that on these two counts alone, the revision petition should succeed. The orders dated 6.8.1979 and 20.01.1981 of the Assistant Collector and the Commissioner are accordingly set aside. I remand the case back to the Special Collector for de novo determination by issuing notices to both the parties.” The present round of litigation is based upon the order passed by the Special Collector on 29.09.1997 after the aforesaid order of the Financial Commissioner. The learned Special Collector held to the following effect: “I am fully in agreement with the learned counsel for landowner. The order dated 16.09.1995 is very much clear. In order dated 09.07.1960 surplus area case of the landowner was decided and held that total area of the landowner was 127 SA 1-1/8 units. Out of this the following areas was under tenants:- Village Area SA Units Jagadhri 1 6-3/4 Mandebri 62 12-3/4 Sugh 1 5-1/2 Galoli 36 2-1/4 Dasani 2 11-1/4 Farrakhpur 5 9-1/2 119 14 9 In addition to 6 units of land as under orchard in village Madabri, reducing area under the tenants and the orchard the area with the land-owner remains less than his permissible area. Thereafter, during purchase proceedings it was detected that the landowner also holds land in village Mandi and Bint falling in other district. The position regarding these two villages is as under: Village Area Remarks SA Unit Mandi 1 1-1/2 Purchased by tenants under Section 18 of the Act. SA Unit Bint 47 15-3/4 Under old tenant 30 14-1/4 sold upto 30.7.58 8 13-3/4 Banjar 6 3-3/4 47 15-3/4 In the light of the above discussions, even if areas of other two villages is counted in the total holdings of the landowner, the position remains the same i.e. with No Surplus Area. Therefore, after allowing 30 SA of permissible area as per his choice, the remaining area is declared as tenants permissible area. I order accordingly. The order passed by the Special Collector was affirmed in appeal on 12.10.1999 by the learned Commissioner. The learned Commissioner found that two points remain to be decided. Firstly, the preparation of form ‘F’ and Secondly, what is the effect of death of landowner. It found that the merits of the case are not affected by not preparing Form ‘F’ and that no such plea has been raised on behalf of the landowner that the calculations made are incorrect in any manner. In respect of the consequences of death of the landowner on 19.07.1992, the learned Commissioner found that the heirs of the landowner from 1992 till 1997 had not moved any application before the Special Collector nor took any other proceedings to obtain the benefit of reopening of the case of surplus. Therefore, the legal heirs of the 10 landowner had no right to make such claim in an appeal for the first time. In respect of plea of the tenants in the appeal that the order dated 09.07.1960 is a nullity, it found that the High Court and the Financial Commissioner have held this order to be valid and that the rights of the tenants are not affected, as the tenant’s permissible area would remain intact. The Financial Commissioner has dismissed the revision in limine on 24.03.2000. The legal heirs of the landowner in their writ petition No.18577 of 2001 have sought setting aside of the orders dated 29.09.1997, 12.10.1999 and 24.03.2000. It is specific pleaded case of the legal heirs of the landowner that the order dated 09.07.1960 has attained finality and could not be reopened specially in the purchase proceedings initiated by the tenants. The relevant averments in paragraph 13 of the writ petition read as under: “(a) Because, the order dated July 9, 1960 Annexure P/1 having attained the finality, could not be re-opened especially in the purchase proceedings initiated by the tenants. (b) Because, although respondent No.3, in para No.4 of his order, Annexure P/4 has found and held that the order dated July 9, 1960 had attained finality and the said decision cannot be re-opened and no change could be made by the Special Collector, Haryana in the same, yet he erred in dismissing the appeal filed by the landowner-petitioners. (c) Because, the order, Annexure P/1 having not been challenged by anyone including the tenants and the State, the authorities are to workout their rights within the ambit of the said order and under no provision of law, the same could be re- opened.” During the course of arguments, the parties were ad- idem in respect of selection made by the landowner in form “E” on 11 19.06.1958 i.e. after the insertion of Section 5A, 5B and 5C in the Act vide Punjab Act No.46 of 1957. The said fact is admitted in the written statement filed on behalf of Special Collector, Haryana in the present set of writ petitions and noticed in the order dated 23.12.1969 passed by the Collector, attached in earlier writ petition filed by land-owner. It is also recorded in the order dated 30.11.1987 passed by the Division Bench of this Court in the said writ petition as well as in the order passed by the Special Collector on 29.09.1997. Mr. A.K.Chopra, Senior Advocate, appearing on behalf of the legal heirs of the landowner argued that the proceedings for the declaration of surplus land of the landowner shall be deemed to be pending on the date of commencement of The Haryana Ceiling of Land Holdings Act, 1972 ( for short “the Haryana Act”), therefore, the surplus area case of Om Parkash has to be decided in terms of Section 33(2)(ii) of the Haryana Act read with Section 10-A(b) of the Act. It is argued that the order passed by the Special Collector is not sustainable as the surplus area of the land owned by Om Parkash is required to be re-determined after his death on 19.7.1992 as on the said date, the land was not utilized. It is argued that the land can be said to be utilized only when possession is handed over to the tenants after allotment of land and on completion of other formalities. The order of allotment itself does not amount to the completion of the process of utilization. Reliance is placed upon the Hon’ble Supreme Court judgment reported as Financial Commissioner, Haryana and others Vs. Smt. Kela Devi and another AIR 1980 SC 309; 12 Krishna Kumari and another Vs. State of Haryana and another 1999 (1) SCC 338 and upon Full Bench judgment of this Court in Smt. Ajit Kaur and others Vs. The Punjab State and others 1980 PLJ 354. It is also argued that the order passed by the Financial Commissioner on 16.09.1995 remanding the case to the Special Collector for de novo determination is deemed permission for re- determination of surplus case of the landowner Om Parkash. Thus no part of land would be available for purchase by the tenants as the surplus land area is to be determined in the hands of legal heirs of Om Parkash and not as in the hands of Om Parkash. Reliance is placed upon Antu Vs. Naresh Saran 2001 (2) RCR (Civil) 790 (DB-Pb); Anoop Singh and others Vs. The State of Haryana and others 2008 (2) RCR (Civil) 626 (DB-Pb) and Sardara Singh and others Vs. The Financial Commissioner and others 2008 (2) RCR (Civil)744 (Full Bench- Pb). It is argued that the order dated 09.07.1960 has been passed by the Collector though the surplus case of the landowner was required to be decided by Special Collector in terms of Rule 4B of the Rules as the land of deceased big landowner was situated in more than one district and that proceedings for declaration of surplus land of Om Parkash shall be deemed to be pending also for the reason that form “F” has not been prepared. Reliance is placed upon Gurdial Singh (died) by his LRs Vs. State of Haryana 1993 (1) RRR 541(SB-PB) and Anoop Singh and others Vs. The State of Haryana and others 2008 (2) RCR (Civil) 626 DB – Pb. 13 Mr. L.N.Verma, Advocate on behalf of the tenants, argued that Order dated 9.7.1960 cannot be said to be void or without jurisdiction only for the reason that the same was passed by Collector and not by Special Collector and that surplus land case cannot be reopened for the said reason though the selection of the landowner should have been made known to the parties. It is also the case of the tenants that selection of a permissible area, once made by the landowner, cannot be changed either by the act of parties or by operation of law except with the written consent of the tenants affected by the change. Learned counsel also relied upon a Division Bench judgments of this Court reported as Brij Lal and others Vs. State of Haryana and others 2001 (1) PLJ 148 and Kamla Devi and others Vs. State of Haryana and others 2010 (2) SLJ (P&H) 811. It is argued that the land vests with State on the commencement of Haryana Act, therefore the surplus land area case cannot be re-determined. After having heard learned counsel for the parties at some length, we find that the following questions arise for consideration: (i) Whether the order dated 09.07.1960 passed by the Collector in respect of surplus area of Om Parkash is final and operative? (ii) Whether the land was un-utilized on 19.07.1992 i.e. the date of death of Om Parkash, therefore the surplus land area was required to be re-determined in terms of Section 33 of the Haryana Act read with Section 10-A of the Act. (iii) Whether the tenant’s permissible area determined in order dated 9.7.1960 vests with 14 tenants and stand utilized on the said date itself? To consider the respective arguments of the learned counsel for the parties, the relevant provisions of the Punjab Security of Land Tenures Act 1953 and Rules framed there-under and the provisions of the Haryana Ceiling of Land Holdings Act, 1972 need to be extracted. Such provisions read as under: The Punjab Security of Land Tenures Act 1953 “5-A. Declaration Supported By Affidavits To Be Furnished By Certain Landowners And Tenants – Every landowner or tenant, who owns or holds land in excess of the permissible area and where land is situated in more than one Patwar circle, shall furnish, within a period of six months from the commencement of the Punjab Security of Land Tenures (Amendment) Act, 1957, a declaration supported by an affidavit in respect of the land owned or held by him in such form and manner and to such authority as may be prescribed. 5-B. Selection of Permissible Area and Consequences of Failure to Select: (1) A landowner who has not exercised his right of reservation under this Act, may select his permissible area and intimate the selection to the prescribed authority within the period specified in Section 5-A and in such form and manner as may be prescribed: Provided that a landowner who is required to furnish a declaration under Section 5-A shall intimate his selection alongwith that declaration. (2) If a landowner fails to select his permissible area in accordance with the provisions of sub-section (1), the prescribed authority may subject to the provisions of Section 5- C, select the parcel or the parcels of land which such person is entitled to retain under the provisions of this Act: Provided that the prescribed authority shall not make the selection without giving the landowner concerned an opportunity of being heard. 5-C. Penalty For Failure To Furnish Declaration – (1) If a landowner or tenant fails to furnish the declaration supported by an affidavit as required by Section 5-A, the prescribed 15 authority not below the rank of Controller may, by order, direct that the whole or part of the land of such landowner or tenant in excess of ten standard acres to be specified by such authority shall be deemed to be the surplus area of such landowner or tenant and shall be utilized by the State Government for the purpose mentioned in Section 10-A: xxx xxxx “10-A. Surplus Area For Resettlement of Ejected Tenants – (a) The State Government or any officer empowered by it in this behalf, shall be competent to utilize any surplus area for the resettlement of tenant ejected, or to be ejected, under clause (i) of sub-section (1) of Section 9. (b) Notwithstanding anything contained in any other law for the time being in force and save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance no transfer or other disposition of land which is comprised in surplus area, at the commencement of this Act, shall affect the utilization thereof in clause (a). Explanation – Such utilization of any surplus area will not effect the right of the landowner to receive rent from the tenant so settled.” The Punjab Security of Land Tenures Rules 1956 “3. Form, etc. of declaration, under Section 5-A of the Act – (1) The declaration supported by an affidavit required to be furnished under Section 5-A of the Act shall be furnished by a land-owner in Forms A and C and by a tenant in Forms B and C, either personally or by registered post (acknowledgement due) to: (a) the Collector of the district, if his land is situated in such patwar circles as are comprised within one district: and (b) the Special Collector, if his land is situated in such patwar circles as are comprised in more than one district.” “4-B. Prescribed authority under sub-section (2) of Section 5-B and Section 5-C of the Act – for the purpose of sub- section (2) of Section 5-B and Section 5-C of the Act, the prescribed authority shall be :- (i) the Collector, if the lands owned or held by a land- owner or tenant are situate in patwar circles comprised in one district; and 16 (ii) the Special Collector, if the lands owned or held by a landowner or tenant are situate in patwar circles comprised in more than one district.” “6. Assessment of surplus area, with landowners and tenants – xxx xxx xxx (7) (i) The Collector or the Special Collector shall prepare a statement in form F and forward immediately a copy