CWP No.2500 of 1984 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No.2500 of 1984
Date of Decision: 14.8.2008
Gutti .....Petitioner
Vs.
State of Hareyana and others ....Respondents
....
CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA
****
Present : Mr. Mani Ram Verma Advocate with Ms.Shiwani Verma,
Advocate for the petitioner.
Mr. Ajay Chaudhary, DAG, Haryana for respondents
no.1 to 4.
Mr.Hemant Sarin, Advocate for respondents no.6 and 7.
…
RAJIVE BHALLA, J (Oral)
The petitioner prays for issuance of a writ in the nature of
Certiorari, for quashing the orders dated 24.4.1984, 3.1.1984 and
4.9.1961.
Girdhari Lal-Respondent no.5 was a big land owner. His
surplus area case was decided on 4.9.1961 and 105.88 ordinary acres/
44.41 std. acres were declared surplus in Villages Darba Kalan,
Nehranwali and Bir Hansi. The petitioner, alleges that he was the tenant
of the big land owner on 15.4.1953, with respect to Killa No47//16 (8K-
0M), 17(8-0), 18(8-0),19(8-0), 20(7-2), 21(3-16), 22(8-0), 63//1(8-0),
10*8-0), 11(7-13), 64//4min (2-0) measuring 76 kanals 11 marlas
situated in Bir Hansi, Distt. Hisar and continues in possession as such.
After the coming into force of the Haryana Ceiling of Land Holdings
CWP No.2500 of 1984 2
Act, 1972 (hereinafter referred to as `the Haryana Act’), the Collector
sought to appropriate the land in the petitioner’s possession for
allotment to the petitioner and the private respondents. 27 kanals of
land was allotted to the petitioner. The petitioner filed an appeal on
11.9.1980, before the Commissioner, Hisar Division, Hisar, praying that
the order dated 4.9.1961 declaring surplus area be set aside, as it was
passed without notice to the petitioner, a sitting tenant and without
reserving tenant’s permissible area. The learned Commissioner,
dismissed the appeal, as being barred by limitation.
Aggrieved by the aforementioned order, the petitioner filed
a revision before the Financial Commissioner, Haryana. The learned
Financial Commissioner, Haryana, vide order dated 12.4.1984,
dismissed the revision by holding that on the relevant date i.e.
15.4.1953, one Sudan, stated to be the petitioner’s cousin, was recorded
as the tenant in the revenue record,and the petitioner’s assertion that
prior to 15.4.1953 the petitioner’s father and thereafter the petitioner is
recorded as a tenant, cannot be accepted.
Counsel for the petitioner submits that the question that
arose for adjudication before the Financial Commissioner was, not
necessarily whether the petitioner was the tenant on 15.4.1953 but
whether the petitioner or any other tenant was in possession. It is
submitted that it is not denied by the State or by the private respondents
that the land in dispute was in the possession of tenants on the
appointed day. It is not denied that no notice was served upon any
tenant, including the petitioner, prior to declaration of surplus area. The
learned Financial Commissioner, should have therefore set aside the
CWP No.2500 of 1984 3
order dated 4.9.1961 and directed the Collector to redetermine the
surplus area after issuing notices to all sitting tenants and also directed
the Collector to decide whether the petitioner was in possession as a
tenant. Reliance for the submission, that the identity of the tenant is
irrelevant once the tenancy continues, is placed upon a Division Bench
judgement of this Court reported as Nanak Chand V. The Financial
Commissioner, Haryana and others, 1981 PLJ 99 and subsequently
followed by this Court in Makhan Singh V. The State of Haryana
through the Collector Surplus Area, Sirsa, 2005(3) PLR 123. It is
submitted that as the petitioner and prior to him, his father was a tenant,
the stray entry in the revenue record for the year 1953, should not have
been relied by the Financial Commissioner, to non-suit the petitioner.
Counsel for the State of Haryana submits that the
petitioner was not a sitting tenant, on the relevant date i.e. 15.4.1953.
He, therefore, has no right whether in law or in fact to the grant of a
hearing or to claim reservation of tenant’s permissible area. It is further
submitted that the surplus area was declared in the year 1961, whereas
the petitioner filed an appeal in the year 1980. This unexplained delay
for almost 20 years, as also the enactment of the Haryana Act, would
not entitle the petitioner to any relief.
Counsel for the private respondents, who are allottees of a
small part of the land in dispute submits that the petitioner has availed
the benefit of allotment of 27 kanals and cannot, therefore, approbate
and reprobate at the same time. The petitioner having drawn the
benefit of an order of allotment, has no right, whether in law or in
equity, to challenge the order passed in the year 1961. It is further
CWP No.2500 of 1984 4
submitted that as the petitioner had failed to establish his tenancy on
15.4.1953, the present writ petition be dismissed.
I have heard learned counsel for the parties and perused the
impugned orders.
A tenancy, by its very nature, confers tangible civil rights
upon a tenant that may only be abridged save by and in accordance
with procedure established by law. The Punjab Security of Land
Tenures Act, 1953 (hereinafter referred to as the `1953 Act’) prescribes
two types of permissible areas, one reserved by the landlord called the
landlord’s permissible area and the other reserved by a tenant called the
tenant’s permissible area. After reservation of the landlords and tenants
permissible area, the balance land constitutes surplus area. The 1953
Act, empowers a tenant to file a separate return for declaring the area in
his occupation, as tenants permissible area. Rule 6 of The Punjab
Security of Land Tenures Rules, 1956 provides for the assessment of
surplus area with landowners and tenants and places a statutory
obligation on the Collector, to serve a notice upon persons interested in
the estate of big land owner, including sitting tenants. Any violation of
this statutory mandate would render the order passed non-est A
combined reading of the 1953 Act and the Rules framed thereunder
makes it abundantly clear that surplus area proceedings, finalised
without issuance of a notice to a sitting tenant, would be void, as
regards the rights of a sitting tenant. The Collector was, therefore,
required, before proceeding to determine the surplus area whether the
land belonging to the big landowner was in occupation of a sitting
tenant and if so, to issue notice to such a tenant.
CWP No.2500 of 1984 5
It is apparent from the facts , that in the year 1953 land
belonging to the big land owner,was admittedly in the possession of
tenants. However while computing the holding of the big land owner
for the purpose of determining his permissible and surplus area, no
notice, whatsoever, was issued to or served upon the sitting tenants.
The question, whether the petitioner was a tenant or his cousin Sudan
was a tenant, is incidental as what is relevant is whether any tenant was
in possession of the big landowners land. In Bahadur Ram and others
V. State of Punjab and others, 1969 PLJ 372,while considering the
rights of tenants it was held that the change of tenants will not affect the
permissible area of the tenant if the land remained under one tenant or
another from April 15, 1953 i.e. the date when the Act came to be
enforced. The correctness of the aforementioned judgement was called
into question and a reference was made to a Division Bench. The
reference was answered in Nanak Chand’s case (supra), by affirming
the judgement in Bahadur Ram’s case (supra) and holding that
change of tenants, provided the land remains the same and the tenancy
does not come to an end is immaterial for determining tenant’s
permissible area. In the case before the Division Bench, the learned
Financial Commissioner modified the order passed by the
Commissioner to the extent that the Collector, Surplus Area, Hisar was
directed to include, in the tenants permissible area all such land, which
was comprised in the tenants permissible area on 15.4.1953 and which
was under the occupation of the tenants irrespective of the change of
tenants. The observations of the Division Bench would necessarily
require reproduction.
CWP No.2500 of 1984 6
“If the tenant had completely abandoned the tenancy
and there was no tenant left at all, in that case
different consequences may follow. But in the
present case, the direction given by the learned
Financial Commissioner to the Collector is quite
clear, as the Collector has been directed to include in
the tenant permissible area all such land which was
comprised in the tenants permissible area on April
15, 1953 and which continued to be so and was under
the occupation of the tenants.”
It is, therefore, apparent that where tenants are in occupation of land
sought to be assessed for determining the landowners permissible/
surplus area,the Collector cannot proceed to determine surplus area
without issuing a notice to sitting tenants. Admittedly tenants were in
possession of a part of the estate of the big land owner but no notice
was issued or served upon them. The Financial Commissioner,therefore
committed an error of jurisdiction in dismissing the revision petition,
on the ground that the petitioner’s name did not appear in the revenue
record as a tenant in possession on 15.4.1953. It would necessarily
require notice that prior to the appointed day, the petitioner’s father is
recorded in possession as a tenant. After the appointed day, the
petitioner is recorded in possession and on the relevant date i.e.
15.4.1953, one Sudan, the petitioner’s cousin is recorded in possession,
thus, establishing the fact that on the coming into force of the Act, a part
CWP No.2500 of 1984 7
of the land comprising the big landowners estate was occupied by
tenants. The above facts having been established the Collector was
statutorily and mandatorily obliged to issue notices to the tenants and
reserve a tenants permissible area whatsoever the identity of the tenant.
The Financial Commissioner, therefore, committed an error in
disregarding the law, as set out herein above and in failing to examine
the matter with a greater degree of care and consideration.
In view of what has been stated herein above, the writ
petition is allowed, the order dated 24.4.1984 is set aside and the matter
is remitted to the Court of Financial Commissioner, Haryana, for
adjudicating the petitioner’s revision afresh, in accordance with law.
The learned Financial Commissioner would be at liberty to
take into consideration the effect of Section 12 (3) of the Haryana Act
and to determine, whether in view thereof, surplus area determined in
the year 1961, can be reopened at the behest of the petitioner. The
Financial Commissioner would be at liberty to decide the controversy,
without being influenced by any observations made herein before, as to
the factual matrix of the instant controversy.
The learned Financial Commissioner shall make every
endeavour, to dispose of the petitioner’s revision, within a period of six
months from the date of receipt of a copy of this order. It is made clear
that in case the learned Financial Commissioner, decides to reopen the
surplus area case of the big land owner, any such order shall be
confined to the land claimed by the petitioner as a sitting tenant in
Village Bir Hansi.
CWP No.2500 of 1984 8
Parties are directed to appear before the Financial
Commissioner on 29.9.2008. No costs.
14.8.2008 (RAJIVE BHALLA) GS JUDGE