CWP NO. 5647 OF 1981. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH.
C.W.P. No. 5647 of 1981.
Date of Decision: 18th December, 2008.
Krishan Lal & Ors. ....Petitioners
through
Dr. Parveen Hans, Advocate
for petitioners No. 2 to 4.
Versus
State of Haryana & Ors. Respondents
through
Mr. R.D.Sharma, Sr. DAG, Haryana.
CORAM:
HON’BLE MR. JUSTICE SURYA KANT.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
SURYA KANT, J. [ORAL)
This Civil Writ Petition seeks quashing of the orders dated
18.7.1961 [Annexure P-2], dated 26.9.1978 [Annexure P-3] and
dated 1.10.1981 [Annexure P-5] passed by the Collector, Surplus
Area, Hansi, Commissioner, Hisar Division, Hisar and the Financial
Commissioner, Haryana, respectively.
[2]. The facts giving rise to these proceedings may be
summarized as follows.
[3]. The first petitioner – Krishan Lal [since dead] and
represented by his legal representatives – petitioners No. 2 to 4 was
stated to be a big landowner owning 39.43 Standard Acres of land as
on 15.4.1953, i.e., the appointed day under the Punjab Security of
Land Tenures Act, 1953 [for short ‘the 1953 Act’]. His land measuring
9.33 Standard Acres was declared surplus by the Collector, Surplus
CWP NO. 5647 OF 1981. ::-2-::
Area, Hansi vide order dated 18.7.1961 [Annexure P-2]. After about
17 years, Krishan Lal filed an application dated 2.5.1978 seeking
review of the afore-stated order dated 18.7.1961. The Collector,
Surplus Area, Hansi vide his order dated 26.9.1978 [Annexure P-3]
found prima facie substance in the review application and accordingly
made a reference to the Commissioner, Hisar Division, Hisar to
accord sanction for the review of the order dated 18.7.1961.
[4]. The Commissioner, Hisar Division, Hisar vide his order
dated 27.2.1979 [Annexure P-4] disagreed with the
recommendations of the Collector and declined the reference.
Krishan Lal and his family members then preferred a Revision
Petition before the Financial Commissioner, Haryana which was
dismissed vide order dated 1.10.1981 [Annexure P-5] being not
maintainable.
[5]. Aggrieved, they have approached this Court.
[6]. On 17.12.1981, while issuing notice of motion, a Division
Bench of this Court stayed the petitioner’s dispossession till further
orders. The interim stay was made absolute while admitting the writ
petition.
[7]. On 28.11.1996, no one appeared on behalf of the
petitioners. The writ petition was, therefore, dismissed in default.
After six years and seven months of the dismissal of their writ petition
in default, the petitioners moved an application for recalling of the
order dated 28.11.1996. A learned Single Judge dismissed the said
application on 9.2.2004 being highly belated. The petitioners then
approached the Supreme Court by way of Civil Appeal No. 6667 of
CWP NO. 5647 OF 1981. ::-3-::
2008 and while accepting the same vide order dated 10.11.2008,
their Lordships have allowed the application for restoration and
remitted the case for fresh adjudication by this Court, in accordance
with law.
[8]. Learned counsel for the parties have been heard at some
length and the impugned orders have been perused.
[9]. Learned counsel for the petitioners vehemently contends
that since the petitioners were never served any notice before
passing of the order dated 18.7.1961 [Annexure P-2] by the
Collector, their review application though filed after about 17 years,
was well within limitation, therefore, the Commissioner, Hisar
Division, Hisar ought to have accorded sanction for the review of the
order dated 18.7.1961 in terms of Section 82[1][a] of the Punjab
Tenancy Act, 1887. He then urged that the revision petition was also
maintainable before the Financial Commissioner and the same could
not have been turned down on the ground of non-maintainability.
[10]. On the other hand, learned State Counsel urges that the
review application could be maintained within a period of 90 days,
whereas in the present case, the same was preferred after about 17
years. He relies upon the stand specifically taken by the respondents
in para no. 3 of the counter-affidavit that Krishan Lal [since
deceased] was duly served with a notice dated 3.6.1961 by the
Collector before passing the order dated 18.7.1961 [Annexure P-2]
and he was also served a copy of ‘Form ‘F’ dated 20.7.1961. On this
premise, it is argued that the review application being hopelessly
time barred, the Commissioner was well within his right to decline the
CWP NO. 5647 OF 1981. ::-4-::
reference.
[11]. It is indeed not in dispute that the proceedings to declare
surplus area were initiated under the 1953 Act. Section 24 thereof
reads as under:-
“24. Appeal, Review and Revision.- The provision in
regard to appeal, review and revision under this Act shall,
so far as may be, be the same as provided in Sections
80, 81, 82, 83 of the Punjab ;Tenancy Act, 1887”.
[12]. Similarly, Section 82 of the Punjab Tenancy Act, 1887
reads as under:-
“82. Review by Revenue Officer:- [1] A Revenue Officer,
as such, may either of own motion or on the application
of any party interested, review, and on so reviewing
modify, reverse or confirm any order passed by himself
or by any of his predecessors in office:
Provided as follows:-
[a] When a Commissioner or Collector thinks it necessary
to review any order which he has not himself passed,
and when a Revenue Officer of a class below that of
Collector proposes to review any order whether passed
by himself or by any of his predecessors in office, he
shall first obtain the sanction of the Revenue Officer to
whose control he is immediately subject.
[b] no application for review of an order shall be
entertained unless it is made within ninety days from the
passing of the order, or unless the applicant satisfies the
Revenue Officer that he had sufficient cause for not
making the application within that period;
[c] an order shall not be modified or reversed unless
reasonable notice has been given to the parties affected
thereby to appear and be heard in support of the order;
[d] an order against which an appeal has been preferred
shall not be reviewed;
CWP NO. 5647 OF 1981. ::-5-::
[2] For the purposes of this section the Collector shall be
deemed to be the successor in office of any revenue
officer of a lower class who has left the district or has
ceased to exercise power as a Revenue Officer, and to
whom there is no successor in office.
[3] An appeal shall not lie from an order refusing to
review, or confirming on review, a previous order”.
[13]. It may, thus, be noticed that a Review Officer may suo-
moto or on an application of the interested party, review his order
passed by himself or his predecessor in office. However, if such
power of review is being exercised by the Commissioner or the
Collector in respect of an order which he has not himself passed,
then he is required to obtain the sanction of the Revenue Officer to
whose control he is immediately subject. Further, no review
application shall be ordinarily entertained unless it is made within 90
days from the passing of the order unless the applicant satisfies the
Revenue Officer that he had sufficient cause for not making the
application within that period.
[14]. The review application moved by the petitioners was,
therefore, required to be dealt within the parameters and limitations
specified in Section 82 of 1887 Act read with Section 24 of 1953 Act.
Those parameters have been, prima facie, over-looked firstly by the
Collector, Surplus Area, Hansi while passing the order dated
26.9.1978 [Annexure P-3] in favour of the petitioners as no finding
whatsoever has been returned by him as to how the review
application could be entertained after a period of about 17 years
when the Act postulates maintainability of such an application within
90 days only. The Collector ought to have framed a specific issue
CWP NO. 5647 OF 1981. ::-6-::
and then arrive at a conclusion that the review application was within
limitation from the date of knowledge. No such finding has been
returned by him. Similarly, the Commissioner, Hisar Division, Hisar
also did not lag behind in passing yet another patently illegal order
dated 27.2.1979 [Annexure P-4] when he declined the reference sent
by the Collector, Surplus Area, Hansi. As the 1953 and 1887 Acts
have expressly provided the power of review, the Reviewing
Authority is obligated to exercise that power in a quasi-judicial
manner which inheres assignment of reasons in support of its
conclusions. Contrary to it, the order dated 27.2.1979 [Annexure P-4]
reads as follows:-
“With reference to your letter No. 355 SDHSA dated
12.10.78 on the subject cited above vide which your
reference dated 26.9.78 has been received along with
Surplus File No.1922-S.A. Decided on 14.7.61.
While disagreeing with your recommendations dated
26.9.78 the review of the order of the Surplus Area Hisar
dated 18.7.61 is not granted”.
Least to say, it is totally cryptic and laconic and gives no reasons
whatsoever to disagree with the recommendations made by the
Collector, Surplus Area, Hansi.
[15]. Having arrived at the above-stated conclusion, in my
considered view, there is no necessity to go into the legality of the
order dated 1.10.1981 [Annexure P-5] passed by the Financial
Commissioner, Haryana. If the orders passed in favour and against
the petitioners [Annexures P-3 and P-4] can not sustain, the order
[Annexure P-5] being in sequel thereto, is bound to go.
[16]. For the reasons afore-stated, the orders dated 26.9.1978
CWP NO. 5647 OF 1981. ::-7-::
[Annexure P-3] passed by the Collector, Surplus Area, Hansi, as well
as dated 27.2.1979 [Annexure P-4] passed by the Commissioner,
Hisar Division, Hisar are hereby set aside. As a necessary corollary,
the order dated 1.10.1981 [Annexure P-5] passed by the Financial
Commissioner, Haryana also must go and the same is accordingly
set aside. The matter is remanded to the Collector, Surplus Area,
Hansi to decide the review application dated 2.5.1978 afresh and in
accordance with law. The Collector, Surplus Area shall frame specific
issues regarding [i] the delay in filing of the review application and [ii]
maintainability of the review application, before he proceeds to
entertain the review application on merits.
[17]. Parties are directed to appear before the Collector,
Surplus Area, Hansi on 11.3.2008.
[18]. Disposed of. December 18, 2008. ( SURYA KANT ) dinesh JUDGE