BRIJ LAL (DEAD) BY LRS. AND ORS. ETC. ETC.

-...,_ '(_.,...

STATE OF HARY ANA AND ORS. ETC. ETC.

DECEMBER 13, 2007

!DR. ARIJIT PASAYAT AND P. SATHASIV AM, JJ.]

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Land Laws and Agricultural Tenancy:

c Haryana Ceiling on Land Holdings Act, 1972; S.18(6):

Surplus area-Assessment of-Land owners filing application for ejectment of tenants on ground of requirement of land for self cultivation-Allowed by prescribed authority-Filing of revision

D Petition by tenants-Financial Commissioner/Authority remanded the case to Collector, Surplus Area to decide it afresh in terms of 1972 Act and also to determine rights of tenants to purchase the land in question-Challenge to-Dismissed by High Court-On appeal, Held: High Court has failed to take note of the decision of this Court on the

E similar issue in the case of Financial Commissioner, Haryana State & Ors. v. Smt. Kela Devi & Anr. -It has also not recorded any finding of fact as to whether tenants were entitled to any relief as they challenged the order of the Financial Commissioner after a long lapse of time- Since the basic issues have not been dealt by the High Court, the l matter is remitted to High Court to decide it afresh taking note of the F decision in the above said case.

Words and Phrases:

'Any time '-Meaning of in the context of S.18(6) of the Haryana

G Ceiling on Land Holdings Act, 1972.

On 26.7.1961, the Collector, Surplus Area assessed the surplus area of one 'P', since deceased. On appeal by two tenants against the order of the Collector, the Commissioner remanded the surplus area

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BRIJ LAL (DEAD) BYLRS. v. STATE OF HARYANA 575

case to the Collector to re-decide the issues. The Collector initiated A proceedings for deciding surplus area case of 'P'. While the proceedings were pending the Haryana Ceiling on Land Holdings Act, 1972 came into force. The Prescribed Authority decided the surplus area cases of some other land owners under the 1972 Act and held thatthe totalland in respect of each of them was less than the permissible limit. Later, B the land owners filed an application for ejectment of their tenants on the ground that they were small land owners and the land was required by them for self cultivation. The application was allowed by the authority.

Appeal filed by the respondents-tenants was dismissed by the appellat~ authority. The revision petition was dismissed by the authority. Tenants C filed a petition under Section 18( 6) of the 1972 Act for invoking suo mo to powers by the Financial Commissioner to set aside the orders passed by the Prescribed Authority. On 12.9.1997, the Financial Commissioner passed an order remanding the cases, including the pending case of 'P' to the Collector, Surplus Area, being of the view thatthe surplus area D case of 'P', notwithstanding his death, before the commencement of the 1972 Act, was to be decided under the Act and thereafter the rights of the tenants to purchase the land in question was to be determined. A review application filed by the heirs of the land owners was rejected by the Financial Commissioner on 10.3.1999. Writ petitions were filed by E the heirs ofland owners challenging the orders dated 12.9.1997 and 10.3.1999 of the Financial Commissioner. All the petitions except one were dismissed by the High Court. Hence the present appeals.

Appellants contended thatthe High Court referred to the decisions F of this Court in State of Maharashtra v. Annapurnabai and Ors., AIR

(1985) SC 1403 and State of UP. v. The Civil Judge, Nainital and Ors., AIR (1987) SC 16 to decide against them; that these decisions related to the States of Maharashtra and Uttar Pradesh respectively and there is no provision similar to Section 10-A(b) in the Haryana Act and, G therefore, this conceptual distinction has been lost sight of.

Allowing the appeals, the Court

HELD: 1.1. Apparently, the High Court has not taken note of the decision in the case of Financial Commissioner, Haryana State & Ors. v. H

A Smt. Kela Devi & Anr. It has also not recorded any fmding as to whether after a long lapse of time, the action taken by the non official respondents in challenging the order in favour of the appellants disentitle them from any relief. Though the expression used in Section18(6) of the Haryana Ceiling on Land Holding Act is "at any time", obviously it B has to be a reasonable time and if action is taken to impugn the order after long passage of time, the Court has to examine whether it would be proper to grant a relief prayer for the same. [Para 11] (582-E, F]

Financial Commissioner, Haryana State and Ors. v. Smt. Kela Devi C andAnr., (1980) 1SCC77, relied on.

1.2. As the basic issues have not been dealt with by the High Court, the matter is remitted to the High Court to decide the case afresh after taking note of what has been stated by this Court in the decided case of Smt. Kela Devi. The parties shall be permitted to place fresh materials D in support of their respective stands if they do not already form part of the record. Since the matter is pending since long, the High Court to dispose of the cases as early as practicable.

[Paras 12and13) (582-G; 583-A]

E CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1645- 1647 of2001.

From the final Judgment and Order dated 15 .11.2000 of the High Court of Punjab and Haryana at Chandigarh in CWP Nos. 6392-6394 of 1999.

M.K. Dua for the Appellants.

Manoj Swarup for the Respondent.

The Judgment of the Court was delivered by

G DR ARIJIT PASA YAT, J. 1. Challenge in these appeals is to the judgment ofa Divisior. Bench of the Punjab and Harayan High Court

dismissing the three writ petitions filed by the appellant while allowing the Civil Writ Petition No.6395 of 1999 in view of the fact that Dalip Singh, who was respondent had made a categorical statement before the H Assistant Collector First Grade on 6th December, 1967 to the effect that

the appellant is a small landholder and he has no objection to his ejectment A from the land and did not want any compensation.

2. The controversy arises in the background of Section 10-A(b) of the Punjab Security of Land Tenures Act, 1953 (in short 'the Act'). Few dates need to be noted for resolving the controversy.

3. On 26.7.1961, the Collector Surplus Area, Sirsa assessed the surplus area of Pat Ram under the Act. On 24.7.1962 an appeal was filed against the said order before the Commissioner, Ambala Division.

But it was not pressed in view of the enactment of Punjab Security of Land Tenures (Amendment and Validation) Act, 1962 (in short C

'Amendment Act'). On the appeal by two tenants namely Bishan Singh and Dalip Singh against the order of the Collector dated 26.7.1961, the Commissioner, remanded the surplus area case and directed the Collector to re-decide the issues. Pat Ram died subsequently on 7.2.1966. On

15.7.1969, the Special Collector, Haryana pursuant to the order of D remand, initiated proceedings for deciding surplus area case of Pat Ram afresh. His order dated 15.7.1969 is of considerable importance and will be dealt with later. On 23.12.1972, in fact, while the proceedings were pending the Haryana Ceiling on Land Holdings Act, 1972 (in short the 'Haryana Act') came into force. On 20.7.1977 the Sub-Divisional officer E (Civil) cum the Prescribed Authority, Dabwali decided the surplus area cases of Sohan Lal, Brij Lal and Haz.ari Lal under the Haryana Act and held that the total land in respect of each of them was less than the permissible limit. Similarly the surplus area cases ofDhonkan Ram, Ami Lal and Shankar Lal were decided under the Haryana Act and it was F held that there was no surplus area. On 12. l 0.1989 Brij Lal and others filed an application under the Act for ejectment of the Balbir Singh, Bhola

Singh, Jagat Singh and Harpal Singh, sons ofBishan Singh before the Assistant Collector, First Grade, Dabwali on the ground that the appellants were small land owners and they required the land for self cultivation. On G 28.8.1991 an order of ejectment was passed. It was held that Balbir Singh and others were not entitled for resettlement on any alternative land as they were already in possession of other land. On 22.1.1992 appeal of the respondents Balbir Singh and others against the order of ejectment was dismissed by the Collector Sirsa. The revision petition filed by the H

A respondents Balbir Singh and others against the order of the Collector was dismissed by the Commissioner. On 8.4.1993 which is a very crucial " date, Balbir Singh and others filed revision petition , ROR No. 398 of 1992-93, under Section 18(6) of the Haryana Act for invoking suo moto powers of the Financial Commissioner for setting aside the orders dated B 20.7.1977 and 9.8.1977 passed by the SDO (Civil) cum Prescribed Authority, Dabwali regarding the surplus area cases of Sohan Lal, Brij Lal, Hazari Lal and Dhokan Ram under the Haryana Act. On 29 .6.1993 1' \.

Jagat Singh and Harpal Singh, sons ofBishan Singh and Balbir Singh and Bhola Singh, sons ofKartar Singh filed another petition under Section c 18(6) of the Haryana Act for invoking suo moto powers of the Financial Commissioner for setting aside the order dated 15. 7.1969 of the Special Collector, Haryana. On 12.9.1997 the Financial Commissioner, Haryana passed an order remanding the cases to the Collector, Surplus Area, Sirsa being of the view that the surplus area cases of Pat Ram, notwithstanding D his death on 7 .2.1966, before the commencement of the Haryana Act, and of his six sons was to be decided under the Act and thereafter the rights of the tenants to purchase the land was to be determined. A review application was filed which was rejected by order dated 10.3.1999. Writ petitions were filed challenging the orders dated 12.9.1997 and 10.3.1999 E of the Financial Commissioner, Haryana.

4. On 26.7.1961 certain lands were declared to be surplus in the hands of the original allottee Pat Ram who died on 7 .2.1966 leaving behind six sons. According to the appellant on the date of his death,

F inheritance opened and, therefore, it was to be further decided that the . ' appellants were small landholders. It was submitted that there are three stages. First is the stage when the possession of the surplus land after declaration of the surplus is taken. Thereafter, the allotment can be made, and lastly possession has to be given to the tenant. There was an order

G dated 15.7.1969 made by the Special Collector, Haryana, Hissar Camp

in case no.SC 340 holding, inter alia, as follows:

"Today the tenants Bishan Singh and Dalip Singh are present. ~

They have disclosed that Pat Ram has since died leaving behind six sons named Shankar Lal, Dhonkal Ram, Hazari Lal, Brij Lal, H and Amin Lal. The death took place two or 2-112 years back but

BRIJLAL (DEAD) BYLRS. v. STATE OF HARYANA 579

[PASAYAT, J.]

after the decision in appeal, the situation has thus changed and fresh A proceedings against the heirs of Pat Ram are to be taken except to the extent the area declared surplus has been utilized. These proceedings are under the circumstances filed. The Collector Agrarian, Sirsa, may be informed and requested to start proceedings according to law against the heirs of the deceased B allottee Pat Ram for determination of their status and surplus area, if any with them."

5. It is further submitted that long after the order was passed in 1969 i.e. in the year 1992-93 challenge was made to the orders. Similarly, in C the year 1977 there was a declaration that the appellants were small landholders. Without availing statutory remedies appeal and revision after long lapse of time the non-official respondents could not have moved the forum for unsettling the settled position.

6. In the proceedings orders adverse to the appellants were passed. D They were challenged before the High Court in Writ Petitions. All other writ petitions except one writ petition were dismissed.

7. It was submitted that the High Court referred to the decisions of this Court in State of Maharashtra v. Annapurnabai and Ors., AIR E

(1985) SC 1403 and State of UP. v. The Civil Judge, Nainital and Ors., AIR (1987) SC 16 to decide against appellants. It is urged that these decisions related to Maharashtra and Uttar Pradesh respectively and there is no provision similar to Section 10-A(b) in the said State Acts and, therefore, this conceptual distinction has been lost sight of In the F present cases, possession after allotment has not been taken and therefore there is no utilization which is the fundamental requirement.

8. Learned counsel for the respondent on the other hand submitted that certain factual aspects have not been highlighted by the appellants. It is not a case where allotment after possession had not been taken and, G therefore, there was full utilization of the land decJ:rred as surplus. A suit was filed in the year 1961 and an appeal was also preferred which was subsequently not pressed. Reference is also made to judgment oflearned Additional District Judge, Sirsa, dated August 20, 2001, in which H

A according to him, contains findings recorded which have great relevance t r and the appellants are, therefore, clearly disentitled to raise the plea on the factual aspects raised presently.

9. It is to be noted that as rightly contended by the learned counsel

B for the appellant the High Court has not recorded any finding to the effect whether the Maharashtra and Uttar Pradesh Statutes have any provision similar to Section 1 OA(b) of the Act.

10. At this juncture, it would be appropriate to take note of a decision of this Court in Financial Commissionr, Haryana State and Ors. v. c Smt. Kela Devi and Anr., [1980] 1 SCC 77 where question as to when it can be said that utilization has taken place was dealt with.

"3. The only question which therefore arises for consideration is whether the High Court was right in taking the view that mere

D allotment ofland to other tenants under Section 10-A(a) of the Act did not amount to utilisation of the "surplus area" when the rresettled tenants had not taken possession under the allotment orders.

4. It is not in controversy that it had been finally decided that the E "surplus area" in the case ofNathi was 6 standard acres and 8 standard units, and a decision to that effect was taken in his life time on November 25, 1959. It is also not in dispute that orders were made for the allotment of the "surplus area" to other tenants under Section 10-A(a) of the Act which reads as follows- F 10-A (a) The State Government of any officer empowered by it in this behalf shall be competent to utilize any surplus area for the resettlement of tenants ejected, or to be ejected, under Clause (i) of Sub-section (1) of Section 9.

G While therefore the section empowers the State Government or its authorised officer to "utilise" any "surplus area" for the

~ resettlement of tenants, the Act does not define what is meant by an order of utilisation under the section. A clue to what is actually meant by that expression, is however to be found in Clause (b) of H

Section 10-A which provides as follows, - A

10-A (b) Notwithstanding anything contained in any other law for the time being in force and save in the case ofland acquired by the State Government under any law for the time being in force or by an heir by inheritance no transfer or other B disposition of land which is comprised in surplus area at the commencement of this Act, shall affect the utilization thereof in Clause (a).

The clause therefore has the effect of saving the land comprised in the surplus area", if it has been acquired by an heir by inheritance. C So (sic)an heir succeeds by inheritance, as in this case, that basic fact (sic) affect the utilisation of the surplus area even if only an order (sic)been made under Clause (a) of Section 10-A for its utilisation for (sic )settlement of other tenants but that order has not been (sic).

5. In order to understand the full meaning and effect to the provisions of Section 10-A, it is necessary to make a crossreference to Rules 18, 20-A, 20-B and 20-C of the Punjab Security of Land Tenures Rules, 1956 (hereafter referred to as the E Rules). Rule 18 deals with the procedure for allotment of"surplus area" to other resettled tenants. Rule 20-A provides for the issue of certificates of allotment of lands to them, and Rule 20-B provides for delivery of possession and makes it obligatory for the resettled tenant to take possession of the land allotted to him within a period F of two months or such extended period as may be allowed by the officer concerned. Rule 20-C provides, inter alia, for the execution of a "qabuliyat" or "patta" by a resettled tenant. It would thus appear that while allotment ofland is an initial stage in the process of utilisation of the "surplus area", it does not complete that process G as it is necessary for the allottee to obtain a certificate of allotment, take possession of the land within the period specified for the purpose, and to execute a "qabuliyat" or "patta" in respect thereof.

The process of utilisation contemplated by Section 10-A of the Act is therefore complete, in respect of any "surplus area", only H

582 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

when possession thereof has been taken by the allottee or the allottees and the other fonnalities have been completed, and there is no force in the argument that a mere order of allotment has the effect, of completing that process.

6. Reference in this connection may also be made to Rule 20-D of the Rules which provides that in case a tenant does not take possession of the "surplus area" allotted to him for resettlement within the period specified therefore, the allotment shall be liable to be cancelled and the area allotted to him may be utilised for the resettlement of another tenant. It cannot therefore be doubted that a completed title does not pass to the allottee on a mere order of allotment, and that order is defeasible if the other conditions prescribed by law are not fulfilled.

7. So when the process of utilisation ofNathi's "surplus area" had not been completed by the time his heirs by inheritance made the aforesaid application to the authorities concerned, it was permissible for those authorities to re-examine the question whether there was any "surplus area" at all after Nathi's holding had been inherited by his two (sic) in equal shares so as to reduce the area of the holding of each (sic) them below the pennissible area. The High Court therefore (sic) allowed the writ petition of the respondents."

11. Apparently, the High Court has not taken note of this decision.

It has also not recorded any finding as to whether after a long lapse of F time, the action taken by the non official respondents in challenging the order in favour of the appellants disentitle them from any relief. Though the expression used in Sectionl 8(6) of the Haryana Act is "at any time", obviously it has to be a reasonable time and if action is taken to impugn the order after long passage of time, the Court has to examine whether it G would be proper to grant a relief prayer for the same.

12. As the basic issues have not been dealt with by the High Court we remit the matter to the High Court to decide the case afresh after taking note of what has been stated by this Court in Smt. Kela Devi's case (supra).

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13. The parties shall be permitted to place fresh materials in support A of their respective stands if they do not already form part of the record.

Since the matter is pending since long, we request the High Court to dispose of the cases as early as practicable preferably by the end of September, 2008.

14. The appeals are allowed to the aforesaid extent. There will be no order as to costs.

S.K.S.

Appeals allowed.