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2004 DIGILAW 1256 (PNJ)

Madan Gopal v. State Of Haryana

2004-11-17

ASHUTOSH MOHUNTA

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Judgment Ashutosh Mohunta, J. 1. This petition under Articles 226/227 of the Constitution of India has been filed by Madan Gopal, praying for issuance of a writ in the nature of certiorari for quashing the orders (Annexures P-1, P-2, P-4 and P-5) declaring the land in the hands of the petitioner as surplus under the Haryana Ceiling on Land Holdings Act, 1972. 2. The surplus area case of the petitioner was decided by the Sub Divisional Officer (Civil), exercising the powers of Prescribed Authority, Sirsa (respondent No. 5) vide order dated 23.9.1978 and an area measuring 719 kanals 3 marlas of C category was declared surplus.On appeal, the Collector vide order dated 14.10.1980 accepted the appeal to the extent of 113.6 kanals being uncommanded area, and reduced the surplus area to 605 kanals 17 marlas. On revision to the Commissioner, the petitioner got further relief to the extent of 111 kanals 6 marlas on account of bona fide sale. However, the claim of the petitioner to the extent of 160 kanals 11 marlas, transferred to his sister Smt. Bhagwati Devi on the basis of a Civil Court decree dated 15.4.1972, was rejected by the Commissioner vide order dated 26.2.1983 (copy Annexure P-3), it being a family transfer. A further revision petition was filed before the Financial Commissioner, Haryana (respondent No. 2) to challenge the order passed by the Commissioner. The Financial Commissioner also rejected the revision petition filed by the petitioner vide order dated 8.5.1984 on the ground that the transfer in favour of the sister of the petitioner was made after the appointed date, i.e. 24.1.1971. By filing the present writ petition, the petitioner has prayed for issuance of a writ of certiorari for the quashment of the orders passed by the afore-mentioned authorities declaring the transfer of land measuring 160 kanals 11 marlas in favour of Smt. Bhagwati Devi on the basis of a Civil Court decree dated 15.4.1972. 3. It has been contended by Mr. L.N . Verma, learned Counsel appearing on behalf of the petitioner, that the sister of the petitioner was Class-I heir to succeed the property left behind his father Jhanji Ram, who died in the year 1969. 3. It has been contended by Mr. L.N . Verma, learned Counsel appearing on behalf of the petitioner, that the sister of the petitioner was Class-I heir to succeed the property left behind his father Jhanji Ram, who died in the year 1969. Thus, in case she got her share by filing a suit and the decree is passed in her favour by the civil Court after the appointed date, i.e., 24.1.1971, that would not diminish the effect of the civil Court decree in any manner, whatsoever. On this basis, it has been contended by Mr. Verma that the respondent-authorities had erred in not honouring the civil Court decree on the ground that it was a family transfer. In support of his contention, Mr. L.N. Verma has placed reliance on a Full Bench judgment of this Court reported as Smt. Jaswant Kaur and Anr. V/s. The State of Haryana and Anr., 1977 0 PLJ 230. It has further been contended by the counsel for the petitioner that the right of Smt. Bhagwani Devi to her share in the property of her father Jhanji Ram came into being on the date of his death and if the Civil Court decree is passed at a later date and her share is got transferred in his name by her death and if the Civil Court decree is passed at a later date and her share is got transferred in his name by her brother, i.e., the petitioner, fraudulently, that did not mean that she cannot get her share afterwards on the basis of the Civil Court decree dated 15.4.1972. He relied on Gurdit Singh and Ors. V/s. State of Punjab and Ors. 1974 0 PLJ 374; Surinder Nath Dewan V/s. State of Haryana and Ors.(1994-2)107 PLR 422 (S.C.); Sampuran Singh V/s. The State of Haryana and Ors., (1994-2)107 PLR 420 (S.C.); Sandeep Kumar V/s. The State of Haryana, (2002-3)132 P.L.R. 216; Smt. Lajwanti and Ors. V/s. Financial Commissioner, Haryana and Ors., (2003-2)134 P.L.R. 50 and Sultan Singh and Ors. V/s. State of Haryana and Ors., 1993 0 PLJ 96. 4. In order to controvert the contentions raised by Mr. L.N. Verma, it has been contended by Ms. V/s. Financial Commissioner, Haryana and Ors., (2003-2)134 P.L.R. 50 and Sultan Singh and Ors. V/s. State of Haryana and Ors., 1993 0 PLJ 96. 4. In order to controvert the contentions raised by Mr. L.N. Verma, it has been contended by Ms. Rajni Gupta, Assistant Advocate General, Haryana, that under Section 12(4) of the Haryana Ceiling on Land Holdings Act, 1972 (for short the Act), the authorities were competent to ignore the judgments and decrees obtained after the appointed date. 5. I have heard the learned Counsel for the parties and gone through the case-law cited by Mr. L.N. Verma, learned Counsel for the petitioner. 6. Admittedly, the petitioner had inherited the suit property of his father, who was the original owner thereof. The fact that Smt. Bhagwati Devi was his real sister, is also not denied. Being Class-I heir along with the petitioner, she was competent to inherit the property of her father Jhanji Ram, who died in the year 1969. However, the petitioner got transferred the entire land, including the share of his sister Smt. Bhagwani Devi, in his favour on the basis of a Will, allegedly executed by his father Jhanji Ram, after his demise. It is not the case of the respondents that the property got transferred by the petitioner on the basis of the Will was the self-acquired property of his father Jhanji Ram. Thus, the natural presumption is that the property was ancestral even in the hands of the deceased father of the petitioner. If the petitioner got transferred the property in his name on the basis of the Will fraudulently, it does not mean that the half share of his sister Smt. Bhagwani Devi in the sit property got eliminated. She filed a suit in order to get her share. She was entitled to inherit the property of her father Jhanji Ram on his death in the year 1969 itself. The Civil Court passed the .decree in her favour on 15.4.1972. On this basis the state cannot take a plea that the decree passed after the appointed date, i.e., 24.1.1971 will be ignored. This position has been settled by a Full Bench of this Court in Smt. Jaswant Kaur and Anr. The Civil Court passed the .decree in her favour on 15.4.1972. On this basis the state cannot take a plea that the decree passed after the appointed date, i.e., 24.1.1971 will be ignored. This position has been settled by a Full Bench of this Court in Smt. Jaswant Kaur and Anr. V/s. The State of Haryana and Anr., 1977 0 PLJ 230, wherein it has been held by their Lordships that Section 12(4) of the Act does not affect the validity of the decision of the Court in any manner. In Smt. Lajwantis case (supra), a similar (question) had arisen before this Court and it was held by a learned Single Judge that the question whether a decree is collusive or not, cannot be determined by the Authorities under the Act. On the basis of the Full Bench decision in Smt. Jaswant Kaurs case (supra), the decision of the Financial Commissioner was set aside and the case was remanded to him for determination of the surplus area afresh. Similar, in Sandeep Kumar V/s. The State of Haryana, 2002 2 PLJ 235, it was held by this Court that a transfer of land after the appointed day (24.1.1971) through Civil Court decree is protected under Section 8(1) of the Act. In this view o the matter, it is held that the authorities under the Act cannot ignore the decree dated 15.4.1972 passed by the Civil Court, wherein Smt. Bhagwani Devi, sister of the petitioner, has been declared as a shareholder in the land left behind by her father Jhanji Ram, who died in the year 1969. It is further held that Smt. Bhagwani Devi had a preexisting right !in the property left behind by her father Jhanji Ram, which accrued to her on the date of his death in the year 1969. The Civil Court had only given official certification to her pre-existing right by passing the decree in her favour on 15.4.1972. In this view of the matter, I am fortified by the judgment of their Lordships of the Supreme Court in Gurdit Singh s case (supra). 7. The Civil Court had only given official certification to her pre-existing right by passing the decree in her favour on 15.4.1972. In this view of the matter, I am fortified by the judgment of their Lordships of the Supreme Court in Gurdit Singh s case (supra). 7. In the light of the dictum of their Lordships of the Full Bench in Jaswant Kaur s case (supra) and the decision of the Single Benches in Sandeep Kumar s case and Smt. Lajwantis case (supra), I set aside the order dated 8.5.1984 (P-5) passed by the financial Commissioner, Haryana, and remand the case to him for a fresh decision. The stay order passed by this Court on 12.9.1984 shall remain in operation till the decision of the Financial Commissioner, Haryana, who is directed to take the decision of the matter expeditiously. The writ petition, accordingly, stands disposed of.