Ram Swarup
& Ors Vs. S.N. Maira & Ors [1998] INSC 621 (17 December 1998)
S. Saghir
Ahmad, G.B. Pattanaik Pathak.J.
The
appellants are landless persons and they had been allotted different parcels of
surplus land of the surplus holder Late Prem Nath Maira after determination of
the surplus in his hand by the Collector by Order dated 8th of June, 1960 under
the Punjab Security of Land Tenures Act, 1953. The order of the Collector dated
21.4.61, declaring surplus in the hands of the land holder was assailed in
appeal but the same was dismissed by the Commissioner, Ambala Division by his
order dated 14.7.61. Against the appellate order a revision was carried to the
Financial Commissioner in the year 1981 and it was contended before the
Financial Commissioner that the original land holder having died on 5.1.76
before the vesting of the land in the State of Haryana under Section 12(3) of
the Haryana Ceiling on Land Holdings Act, 1972, the heirs of the original
surplus land holder inherited the same and consequently the question of surplus
will have to be determined under the provisions of Haryana Act and there is no
surplus. The Revisional Authority dismissed the said revision at the admission
stage itself basically on the ground that the determination of surplus made by
the Collector on 21.4.61 under the provisions of Punjab Security of Land
Tenures Act, 1953 cannot be upset after 21 years and also on the ground that
Section 12(3) of the Haryana Act having come into force retrospectively with
effect form 21.3.72, the land must have to be vested in the State prior to the
death of the surplus holder and therefore, no question of inheritance would
arise and the lands have been utilised by way of settlement in favour of
different landless persons. The matter was then carried to the High Court in a
writ petition. The High Court by the impugned Judgment being of the opinion
that notwithstanding the retrospective effect given to the provisions of Haryana
Ceiling on Land Holdings Act, 1972, the said notification being made only in
the year 1976 and the original holder having died prior to that date there was
no vesting of the land in the State and therefore on death of the surplus land
holder the legal heirs would be entitled to individual ceiling units under the Haryana
Act and the earlier declaration of surplus under the Punjab Security of Land
Tenures Act cannot take away that right. Accordingly, the High Court directed
for re-determination of the surplus in accordance with the provisions of the Haryana
Act. It may be stated at this stage that the present appellants who had been
allotted the lands and were given possession of the same since 1976, after
declaration of surplus by the Collector were not parties to the Writ petition
in the High Court and being aggrieved by the order of the High Court in the
writ petition, they have approached this Court.
Mr. Mahabir
Singh, the learned counsel appearing for the appellants contends that
admittedly after declaration of the surplus in the hand of the surplus land
holder under the provisions of Punjab Security of Land Tenures Act, 1953 and
allotment of the surplus land in favour of the appellant and deliver of the
possession to them confers an indefeasible right which could not have been
taken away in their absence and the High Court committed gross error in
interfering with the order of the Revisional authority. The learned counsel on
merits also contends that Section 12(3) being retrospective in nature in the
eye of law, the said provision must be held to be existing on the statute book
with effect from 23.12.72. The original surplus holder having died in the year
1976, the legal heirs cannot claim independent ceiling units on the basis of
inheritance under the provisions of Haryana Act and High Court, therefore,
committed error in interpreting the provisions of Section 12(3) of the Act. The
learned counsel appearing for the respondent on the other hand contended that
death of the surplus holder having occurred earlier than the actual
notification bringing Section 12(3) on the statute book, the legal heirs of the
surplus holder are entitled to claim their right and the retrospectively of
Section 12(3) will not take away that right. The learned counsel further
contended that the lands not having been vested in the state under the provisions
of Punjab Security of Land Tenures Act notwithstanding the declaration of
surplus by the Collector and Haryana Act having come into force, the rights and
liabilities will have to be determined under the provisions of Haryana Act and
the High Court was, therefore, justified in interfering with the Revisional
Order.
Having
considered the rival submissions it appears to us that the High Court was not
justified in interfering with the revisional order both on the ground that the
persons affected were not parties as well as on the ground that the provision
of Section 12(3) of the Haryana Act has not been correctly interpreted. From
the available records and the orders passed by the authorities it is crystal
clear that the Collector declared surplus land in the hands of the original
surplus land holder by his order dated 8.6.60.
Thereafter
such surplus lands were allotted to different landless persons and possession
thereof was given to them who have been continuously in possession of the same
since 1976. By such allotment and delivery of possession in their favour,
rights have been conferred on such allottees and therefore, any order without impleading
them as parties could not have been passed which has the effect of taking away
their rights. These appellants allottees were not parties to the writ petition
and therefore, the High Court was in error in snatching away their rights
without hearing them and without impleading them as parties in the writ
petition. That apart, even on the question of interpretation of Section 12(3)
of the Haryana Ceiling on Land Holdings Act, 1972, we also find that the High
Court has committed an error. The provisions no doubt was brought on to the
statute book in the year 1976 by which time the original surplus holder had
died but the legislature having given the said provision the retrospective
effect w.e.f. 23.12.72 and as such the rights of the parties will have to be
governed, treating the provisions on the statute book on 23.12.72. The land
holder having died much thereafter, in the eye of law the lands in question
vested with the State on 23.12.72. Death having occurred much later in 1976,
the legal heirs cannot claim any right on the basis that they are entitled to
an individual ceiling unit as the land has not been utilised. The High Court
obviously has not considered the effect of giving retrospectively to the
provisions of Section 12(3). In this view of the matter, the conclusion of the
High Court cannot be sustained and we quash the same. This appeal is allowed.
The writ petition filed by the heirs of the original surplus land holder stands
dismissed. There will however be no order as to costs.
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