Brij Lal
(Dead) by Lrs. and Ors. Etc. Etc. Vs. State of Haryana and Ors. Etc. Etc. [2007]
Insc 1272 (13 December
2007)
Dr.
Arijit Pasayat & P. Sathasivam Dr. Arijit Pasayat, J.
1.
Challenge in these appeals is to the judgment of a Division 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 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
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 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 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 (Civil) cum the Prescribed
Authority, Dabwali decided the surplus area cases of Sohan Lal, Brij Lal and Hazari
Lal under the Haryana Act and held that the total land in respect of each of
them was less than the permissible limit. Simlarly the surplus area cases of Dhonkan
Ram, Ami Lal and Shankar Lal were decided under the Haryana Act and it was held
that there was no surplus area. On 12.10.1989 Brij Lal and others filed an
application under the Act for ejectment of the Balbir Singh, Bhola Singh, Jagat
Singh and Harpal Singh, sons of Bishan 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 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 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
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 Jagat Singh and Harpal Singh, sons of Bishan
Singh and Balbir Singh and Bhola Singh, sons of Kartar Singh filed another
petition under Section 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 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 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, 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 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, and Amin Lal. The death took place two or 2-1/2 years back but
after the decision in appeal, the situation has thus changed and fresh
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 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 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. They were
challenged before the High Court in Writ Petitions. All other writ petitions
except one writ petition wre dismissed.
7. It
was submitted that the High Court referred to the decisions of this Court in
State of Maharashtra v. Annapurnabai and other (AIR 1985
SC 1403) and State of U.P. 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 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, therefore, there was
full utilization of the land declared 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 of learned Additional District Judge, Sirsa,
dated August 20, 2001, in which according to him, contains findings recorded
which have great relevance 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 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
10A(b) of the Act.
10. At
this juncture, it would be appropriate to take note of a decision of this Court
in Financial Commissioner, Haryana State and Ors. v. 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 allotment of land to other tenants
under Section 10-A(a) of the Act did not amount to utilisation of the
"surplus area" when the resettled tenants had not taken possession
under the allotment orders.
4. It
is not in controversy that it had been finally decided that the "surplus
area" in the case of Nathi 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- 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.
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 Section 10-A which provides as follows, -
10-A
(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).
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.
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 cross-reference to Rules 18, 20-A, 20-B and
20-C of the Punjab Security of Land Tenures Rules, 1956 (hereafter referred to
as the 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 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 of land is an initial stage in the process of utilisation of the
"surplus area", it does not complete that process 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 when possession thereof has been taken by the allottee or the allottees
and the other formalities 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 dobted 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 of Nathi'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
permissible 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 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 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 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 Devis case (supra).
13.
The parties shall be permitted to place fresh materials in support 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.
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