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2012 DIGILAW 1765 (PNJ)

Gurbax Singh v. State of Haryana

2012-12-06

RANJIT SINGH

body2012
JUDGMENT Mr. Ranjit Singh, J.: - The petitioner and respondent Nos.16 to 18 purchased land measuring 17 bighas 18 biswas on 21.5.1957 from the original land owner, namely, Ram Chander Bhatia, who was a big land owner. The land at the hand of Ram Chander Bhatia was declared surplus on 31.1.1961. The petitioner and respondent Nos.16 to 18 were recorded as owners and mutation was also sanctioned on 24.9.1959 on the basis of sale deed dated 21.7.1957. 2. It is alleged that the State of Haryana, without notice to the petitioner or respondent Nos.16 to 18 sanctioned mutation of the land in question on 11.1.1983, divesting the petitioner and respondent Nos.16 to 18 of their title. The petitioner moved an application on 17.1.1985, claiming to be bonafide purchaser, which was declared surplus but the said application was dismissed. Appeal against this order passed was dismissed by the Collector, Karnal, on 30.1.1986. The petitioner impugned both the orders by filing a revision, which was dismissed on 1.6.1988. The Financial Commissioner also dismissed the revenue revision on 7.8.1999 by observing that the sale deed was not produced on the file. The land in question, thus, was utilized by ignoring the established facts, as per which, the land is still in possession of the petitioner and respondent Nos.16 to 18. The petitioner accordingly has filed the present writ petition and pleads that his case is fully covered by some of the precedents cited and referred to in the petition. 3. While issuing notice of motion, this Court ordered that status-quo be maintained in regard to possession till further orders. The writ petition was finally admitted on 22.3.2001. Now an application is moved by respondent No.15 for vacation of the status-quo order passed in this case. It was considered essential to decide the main writ petition instead of considering the issue of vacation of the interim order. The parties accordingly have been heard. 4. Respondent No.15 has filed reply to allege that the impugned orders do not suffer from any illegality or infirmity to call for interference in exercise of writ jurisdiction. It is stated that the land was declared surplus on 31.1.1961 and accordingly vested in the State as per the provisions of the Punjab Security of Land Tenures Act (for short, “the Punjab Act”). It is stated that the land was declared surplus on 31.1.1961 and accordingly vested in the State as per the provisions of the Punjab Security of Land Tenures Act (for short, “the Punjab Act”). Subsequently, Haryana enacted a Haryana Ceiling on Land Holding Act, 1972 (hereinafter referred to as “the Haryana Act”), as per which the land in dispute being surplus vested in the State Government by virtue of Section 12(3) of the Haryana Act. Answering respondent No.15 was landless person and was allotted the land so declared surplus, as per Haryana Government policy. The certificate of allotment was issued on 1.9.1997 for allotment of land measuring 21 kanals 12 marlas. The answering respondent deposited the amount with Treasury and, thus, came to acquire vested rights of ownership over the said land. 5. Respondent No.15 then moved an application on 16.7.2006, making prayer to deposit the entire instalment of surplus land allotted to him. Said application was marked to Naib Tehsildar, Agrarian. The said respondent accordingly deposited a sum of Rs.8940/- on 8.7.2006 as land revenue of compensation of surplus area. Thereafter he moved an application for sanction of mutation, which was entered but ultimately was not sanctioned on the ground that answering respondent was not found in possession of the land. 6. As per the respondents, the surplus area vested in the State with effect from the date it was declared surplus and respondent Nos.16 to 18 have absolutely no right. Despite this, they moved an application for purchase of the land on the ground that they had been in possession thereof and it was purchased by them before 15.4.1966. It is pleaded that the application was filed after lapse of 20 years of the impugned order, declaring the land surplus and after 4 years of its allotment to respondent No.15. Respondent No.15 in his reply would term that this application is totally misconceived and devoid of merit as this land automatically vested in the State in view of the provisions contained in the Haryana Act. The respondents accordingly plead for dismissal of the writ petition. 7. I have heard the counsel for the parties. 8. Counsel for the petitioner has made two fold submissions. He would first contend that any sale made by the land owner and transfer made prior to 30.7.1958 in excess of permissible area could not be ignored while returning surplus area. The respondents accordingly plead for dismissal of the writ petition. 7. I have heard the counsel for the parties. 8. Counsel for the petitioner has made two fold submissions. He would first contend that any sale made by the land owner and transfer made prior to 30.7.1958 in excess of permissible area could not be ignored while returning surplus area. In support, the counsel has placed reliance on State of Haryana and others Vs. Chandgi, 1981 P.L.J. 494, Sadhu Singh (died) by his Lrs Vs. State of Haryana, 1992 (2) R.R.R. 298, Om Parkash and others Vs. The State of Haryana and others, 1993 PLJ 145 and Balwant Singh and others Vs. State of Haryana and others, 1997 (2) PLJ 193 . 9. On the other hand, the counsel for the respondents would refer to the provisions of Section 12(3) of the Haryana Act to urge that the piece of land declared surplus even under the Punjab Act would automatically vest in the State Government, once the proceedings for declaration of the surplus area under the Punjab Act had acquired finality. The Haryana Act does not give any scope to redetermine the land for which proceedings stand finalised under the Punjab Act. This view has been expressed by this Court in Jagan Nath and others Vs. State of Haryana and others, 2010 (3) R.C.R. (Civil) 143 and Jai Kishan Dass and others Vs. The Haryana State and others, [2010(2) Law Herald (P&H) 1073] : 2010 (2) PLR 801 . 10. This Court had earlier considered this issue while deciding Civil Writ Petition No.11631 of 2009 (Smt. Bhagwani and others Vs. Financial Commissioner, Revenue Department, Haryana, Chandigarh and others), decided on 19.11.2012 and has considered the view expressed in Chandgi’s case (Supra). It is observed in this case that transfers, which are protected under Section 8(i) of the Haryana Act and other transfer of land in excess of permissible area under the Punjab Law or Pepsu Law would be protected if the transfers were made prior to 30.7.1958. While taking this view, the Court had relied upon the case of Smt. Jaswant Kaur and another Vs. The State of Haryana and another, 1977 P.L.J. 230. However, in the case of Smt. Bhagwanti Devi and another Vs. While taking this view, the Court had relied upon the case of Smt. Jaswant Kaur and another Vs. The State of Haryana and another, 1977 P.L.J. 230. However, in the case of Smt. Bhagwanti Devi and another Vs. State of Haryana and another, 1994 (2) RRR 358, the Supreme Court has observed as under:- “No. doubt under 1953 Act, there is no specific provision which provided for vesting of the surplus lands, declared thereunder. The Collector had power to take possession of the surplus lands and utilise them under East Punjab Area Utilisation of Lands Act, 1949, by their allotment to the tenants for cultivation. But for the exemption granted under Rule 8 of the Rules, the appellants had no right to remain in possession. Having got the benefit of Rule 8 and remained in possession of the surplus land and utilised the same for the purpose of cultivation in a modern farm, it is not open to appellants to contend that the land having remained unutilised and continued to be in their possession and enjoyment, S.12(3) does not divest them of their title. The language of S.12(3) is unequivocal and clear. According to it the surplus lands declared under the Act stand vested in the State, Even otherwise the non-utilisation of surplus land till date of vesting i.e. on December 23, 1972 is not material. The object of the Act and s.l2(3) of 1972 Act was redistribution of surplus land among the landless ryots and agricultural labour and to confer title on them. The Act enabled the owner of the surplus land to recover rent from the lessee and enjoy the income till date of vesting and no more. Section 32 of Haryana Act admittedly declared all exemptions under Rule 8 as of no avail w.e.f. January 24, 1971 in that it expressly states thus : “As from the appointed day exemption granted in relation to the utilisation of surplus area under orchards, teaestates or well run farms by virtue of the provisions of the rules framed or purported to have been framed under the Punjab Law, shall stand withdrawn. “Therefore, from the appointed day the possession held by appellants of surplus lands become unlawful and entitles the Collector or competent officer to resume possession of them from appellants. “Therefore, from the appointed day the possession held by appellants of surplus lands become unlawful and entitles the Collector or competent officer to resume possession of them from appellants. Neither Section 12 (3) nor Sections 7 and 9 the Haryana Act empower the ceiling authority to reopen the proceedings relating to surplus lands which had become final is also made clear by Section 33(2)(ii) thereof. Section 33(2)(ii) says that the surplus area determined in the pending proceedings under the Act shall be done under that Act and surplus land shall vest in and be utilised by the State Government in accordance with the provisions of the 1972 Act. Subsection 2(ii) of section 33, no doubt, deals with determination of surplus area pending proceeding under the Punjab Law as on the notified date and vesting of the surplus area so determined in the State. The legislative intendment, therefore, appears to be that the surplus area declared under Punjab Law shall remain to be surplus. If any area that becomes surplus under the Haryana Act since the surplus area was reduced from 31 standard acres to 17-1/2 acres, that surplus area should be redetermined under Section 7 read with section 9. Therein if a son becomes major and resides separately he is entitled to a separate unit etc. However, it does not appear that the surplus area declared under the Punjab Law should be reopened and recomputed under 1972 Haryana Act. No such express provision was engrafted in 1972 Act. Though the family of the appellants have swelled and some of the minors have become majors, the appellants are not entitled to have the surplus area which had become final reopened for recomputation under the 1972 Haryana Act. Thus considered, we find that the High Court was fully justified in dismissing the writ petitions. The appeals are, therefore, dismissed, but without costs.” 11. Otherwise, recently this Court has dealt with the entire issue in detail in the case C.W.P. No. 20585 of 2009 titled as Ram Karan and another vs. The State of Haryana and others decided on 05.11.2012 where it is held as under:- This court in Mohan Singh (dead) through Kirpal Singh and others Vs. Otherwise, recently this Court has dealt with the entire issue in detail in the case C.W.P. No. 20585 of 2009 titled as Ram Karan and another vs. The State of Haryana and others decided on 05.11.2012 where it is held as under:- This court in Mohan Singh (dead) through Kirpal Singh and others Vs. State of Haryana and others, [2010(1) Law Herald (P&H) 190] : 2010 (1) R.C.R.(Civil) 497, has categorically held that the land of a big land owner declared surplus under the Punjab Act would stand vested in the State of Haryana on 24.1.1971 in terms of Section 12(3) of the Haryana Act and that the State had a right to utilise the area which formed part of the surplus pool. It is further held that declaration of surplus area under the Punjab Act would vest under the Haryana Act and the same cannot be reopened. The transferees of the land are not entitled to any notice before utilisation. As per the view expressed by the court, the provisions of the Haryana Act are applicable only to surplus area case to be decided under the Haryana Act and not to those cases which were decided under the Punjab Act and the surplus area declared thereunder will be governed by Section 33 of the Haryana Act. Surplus area proceedings cannot be reopened by taking benefit of the provisions of the Haryana Act. The surplus area of big landowner declared surplus under the Punjab Act from the date it was so declared shall be deemed to have been acquired by the State Government for a public purpose. All rights, title and interest of all persons in such area shall stand extinguished and such rights, title and interests shall vest in the State Government from from all encumbrances. It is further held that no authority can pass an order in any proceeding which is inconsistent with the provisions of the Haryana Act. While taking this view, a reliance has been placed on Smt.Bhagwanti Devi (supra). As held in Mala Singh Vs. The Financial Commissioner and others, 1994 (1) RRR 337 and Inder Singh and others Vs. It is further held that no authority can pass an order in any proceeding which is inconsistent with the provisions of the Haryana Act. While taking this view, a reliance has been placed on Smt.Bhagwanti Devi (supra). As held in Mala Singh Vs. The Financial Commissioner and others, 1994 (1) RRR 337 and Inder Singh and others Vs. The State of Punjab and others, 1978 RLR 566 , it has been viewed that if the land was declared surplus under the Punjab Act, the provisions of the Haryana Act are not applicable and any such benefit can only be granted if surplus area is decided under the Haryana Act and not otherwise. That being the position, the whole limb of argument addressed by counsel for the petitioners would be rendered inapplicable to the facts of the present case. Another peculiar feature in this case is that this writ petition suffers from delay and latches as well. The orders impugned in the present petition were passed in 1999, 2000, 2002, 2003. The writ petition is filed in April 2009. There is a delay of over six years in making the present approach from the date of order passed by the Financial Commissioner. This delay is not explained in any manner. As already noticed, it is vaguely mentioned that the suit was filed on a wrong advise but apparently it was pursued upto the appellate stage. It is only at the appellate stage that the suit was got dismissed as withdrawn. There is, thus, no justification to explain this inordinate delay in making the present approach. Not only that, the petitioners have otherwise also approached the authorities only after 36 years of the order passed, declaring the land surplus. The petitioners can not be heard at this belated stage to challenge the order for the reasons mentioned in detail as noted above. As held in Mohan Singh’s case (supra), even there was no need to issue notice to the petitioners The petitioners, in this background, would not have any locus to challenge this order. They apparently had purchased this land being fully aware of the fact that it had already been declared surplus. As held in Mohan Singh’s case (supra), even there was no need to issue notice to the petitioners The petitioners, in this background, would not have any locus to challenge this order. They apparently had purchased this land being fully aware of the fact that it had already been declared surplus. These peculiar facts would distinguish the case and ratio of law laid down in Full Bench decision of Jaswant Kaur’s case (supra) and other judgements relied upon by the petitioners and the same would clearly not have much relevance in the present case.” 12. In the present case also, the land was declared surplus on 31.1.1961. The petitioner has not taken any action to challenge this order on the ground that he is a bonafide purchaser. A perusal of Annexure P-5, an order passed by Commissioner would show that petitioner, Gurbax Singh, moved an application stating that he had purchased this land in the year 1960-61. While moving this application, the petitioner had even not impleaded the allottees. Even the Collector has noticed that the land was purchased in the year 1960. The petitioner has even not made any approach for challenging the order, declaring the land surplus. Rather, the application filed by the petitioner is to seek permission to purchase this land, he being in possession thereof. Once the land was declared surplus and this order is not challenged in any manner, mere possession of the petitioner would not entitle him to claim his right to purchase this land as the land by virtue of the Haryana Act already stood vested in the State Government. The possession of the petitioner would be illegal and unauthorized. The petitioner so far has not challenged the order declaring the land surplus and even if he so desires, he may not be in a position to challenge that order as by virtue of the Haryana Act, the land would stand vested in the State. Even if the possession continues with the petitioner, that would be illegal and unauthorized possession, as held in Smt.Bhagwanti Devi’s case (supra). 13. I do not find any reason to interfere in the impugned order, in view of the detailed discussion above and also on account of the delay on the part of the petitioner in making the present approach, which he has not explained. 14. The writ petition is accordingly dismissed.