Baldeep and Another vs State of Haryana and Others

N.K. Agrawal, J.—These are two writ petitions, raising common facts and common controversy.

Civil Writ Petition No. 10039 of 1997 has been filed by two persons (brothers) for quashing the order dated 18th February, 1997 passed by the Financial Commissioner, Haryana. The second writ also challenges the same order.

Certain land, in the case of a landlord, was declared surplus area. Out of that surplus area, land measuring 36 kanals 1 marla situated in village Liwalwali, Tehsil and District Sirsa, was allotted to respondent No. 4 Krishan Lal by Sub Divisional Officer (Civil)-cum-Allotment Authority on 27th January, 1979. Possession of the land was delivered to the allottee on 22nd September, 1979. An appeal filed by the landlord, in his surplus area case was pending before the Commissioner at that time. That appeal came to be decided on 17th July, 1986 and land measuring 17 kanals 8 marlas was excluded from the surplus pool consequently, allotment made to respondent No. 4 to the extent of 17 kanals 8 marlas was cancelled and possession of that area was taken away from him and delivered back to the landlord. Respondent No. 4 was left with land measuring 18 kanals 13 marlas out of the total allotted land. He claimed to be entitled to the allotment of additional area to that extent. He sold the allotted land to the petitioners, Baldeep and Rameshwar sons of Daulat Ram, residents of Mad ho Singhana, Tehsil and District Sirsa, by registered sale deed dated 31st May, 1989 for Rs. 24,000/-. Possession of the land was delivered to the petitioner. Once Chandu son of Rugha moved an application before the Allotment Authority, Sirsa, seeking cancellation of the allotment made in favour of respondent No: . Chandu claimed that he was a tenant on the allotted land since 195051 and, therefore, he was entitled to the allotment. It was wrongly allotted to respondent No. 4. The Allotment Authority cancelled the allotment by order dated 14th September, 1989. Petitioner No. 2 filed an appeal before the Collector, who allowed the same on 9th January, 1991 on the ground that the Allotment Authority had no jurisdiction to cancel the allotment made by him earlier.

Krishan Lal filed another application seeking allotment of surplus land to him on the ground that he had become entitled to the allotment of equivalent area after the first allotment made in the year 1979 was partly cancelled. On his application, the Allotment Authority again allotted the land measuring 39 kanals 15 marlas in another village out of another surplus pool on 10th October, 1980. Though, the respondent-Krishan Lal, was entitled to the allotment to the extent the earlier allotment made in the year 1979 was cancelled, he was, however, allotted more land. Krishan Lal sold this land also to Mahavir Prashad (petitioner in Civil Writ Petition No. 8210 of 1997) on 1st June, 1988. Krishan Lal had been given possession of the land (on subsequent allotment) on 25th August, 1986 and 31st May, 1987).

The State Government filed a revision petition, challenging the second allotment dated 11th October, 1980 before the Financial Commissioner. Though the State Government had specifically challenged the second allotment alone the first allotment was also mentioned in the revision petition. The Financial Commissioner cancelled both the allotments made in favour of the respondent Krishan Lal.

In Civil Writ Petition No. 10039 of 1997, the two petitioners are the vendees who purchased land from Krishan Lal on 31st May, 1989. In Civil Writ Petition No. 8210 of 1997, the petitioner-Mahavir Prashad, is the vendee purchasing land from Krishan Lal on 1st June, 1988.

Official respondent Nos.1 to 3 have defended the order of the Financial Commissioner, whereby both the allotments, made out of the surplus pool of land to Krishan Lal have been cancelled. It is pointed out that Krishan Lal had obtained the first allotment of land from the surplus pool in the year 1979. Out of the said allotment, certain land was taken away from him in the year 1986 inasmuch as that land was found to be excludable from the surplus land. Krishan Lal, by fraudulent and deceitful means, obtained a second allotment of land out of another surplus pool in another village on 11th October, 1980. In these Circumstances, the Financial Commissioner, in his revisional jurisdiction, rightly examined both the allotments and found that Krishan Lal had by fraud, obtained the allotment in his favour. It was noticed that the allotment dated 27th January, 1979 was made to Krishan Lal, depriving Chandu of his claim as ''A'' category tenant on the land. Since the allottee-Krishan Lal had received unfair advantage of the surplus pool area, the Financial Commissioner rightly cancelled the first allotment as well as the second one. Krishan Lal had applied for the allotment of land out of the surplus pool and was allotted land measuring 36 kanals 1 marla on 27th January, 1979 under the Haryana Utilisation of Surplus and Other Areas Scheme, 1976. Possession of land was given to him on 22nd September, 1979. Thereafter, land measuring 17 kanals 8 marlas was withdrawn from him under orders of the Commissioner dated 17th July, 1986 and the balance area measuring 18 kanals 13 marlas remained in his possession which was sold by him to the petitioners-Baldeep and Rameshwar by registered sale deed dated 31st May, 1989. This allotment was cancelled on a complaint by Chandu by order dated 14th September, 1989. The Collector quashed the order dated 14th September, 1989 on technical ground that the Allotment Authority had no jurisdiction to cancel his earlier order and the Allotting Authority could move the Financial Commissioner seeking the cancellation of the earlier order of allotment. The order of the Collector dated 9th January, 1991 is said to be of no help to the petitioners inasmuch as the allotment made on 27th January, 1979 has been cancelled by the Financial Commissioner in the revision petition,

The second allotment, made by the Allotting Authority on 11th October, 1980, is said to be wholly void and honest inasmuch as it was procured by Krishan Lal by fraud. It is pointed out that Krishan Lal secured allotment of land on 11th October, 1980, which was more than the permissible area in violation of the scheme of allotment. Further, the allottee was not competent to transfer, sell, lease or mortgage the land allotted to him or part thereof for a period of five years from the date of taking possession of the land u/s 15(5) of the Haryana Ceiling on Land Holdings Act, 1972 read with para 12(b) of the Allotment Scheme. Both the sales were made by Krishan Lal with mala fide intention. He had sold the land to Mahavir Prashad with less than one year from the date of taking possession of the land on second allotment. He violated the provisions of the Act and the Allotment Scheme.

On a consideration of the controversy, it is found that the allottee, Krishan Lal, had secured the second allotment of land out of surplus pool on 11th October, 1980 by concealing the allotment already made in his favour. Even if certain land had been taken away from him out of the first allotment, that did not entitle him to conceal the fact and seek fresh allotment of land to the extent of 39 kanals 15 marlas. At the most, Krishan Lal was entitled to the allotment of land to the extent of 17 kanals 8 marlas which had been withdrawn from him under orders of the Commissioner dated 17th July, 1986.

The order of the Financial Commissioner, cancelling the first allotment made in favour of Krishan Lal, is found to be not sustainable in law. We agree with the plea of the petitioners, Baldeep and Rameshwar (in Civil Writ Petition No. 10039 of 1997) that the specific plea put forward by the State Government, in its revision petition before the Financial Commissioner related to the second allotment made on 11th October, 1980 in favour of Krishan Lal. There was no specific prayer to cancel the first allotment. Therefore, the order of the Financial Commissioner, cancelling the first allotment, is manifestly uncalled for and unwarranted. Moreover, Krishan Lal had received land under the first allotment In the year 1979 and he sold the land to the petitioners Baideep and Ramoshwar on 31st May, 1989. Thus, there was no violation of the relevant allotment rules inasmuch as the sale was made after about 10 years from the date of allotment. Land measuring 17 kanals and 8 marlas had already been withdrawn from him. Thus, the first allotment and the subsequent sale made by the allottae-Krishan Lal in favour of the petitioners-Baldeep and Rameshwar, do not suffer from any contravention of the rules. The petitioners are bona fide purchasers of land for consideration. There is nothing on record to challenge the entitlement of Krishan Lal and the allotment of land made out of the surplus pool to him on 27th January, 1979. It appears that the Financial Commissioner cancelled both the allotments in view of the fraud played by Krishan Lal while seeking the second allotment. Even if Krishan Lal acted in a fraudulent manner while seeking second allotment of land, that would not deprive him of the first allotment also. Since there is nothing on record to show that the first allotment of land, out of the surplus pool, was bad in law or in contravention of relevant Act of the Allotment Scheme, it cannot be cancelled.

The second allotment of land is definitely in contravention of the Ceiling Law and the Allotment Scheme. Since allotment had already been made in favour of Krishan Lal, the second allotment obtained by him by fraud cannot be protected. It has been argued by learned counsel for the petitioner, Mahavir Prashad, that land measuring 39 kanals 15 marlas was purchased by Mahavir Parshad in good faith by registered sale deed dated 1st June, 1988 for Rs. 35,000/-. Mutation stood already entered in the name of vendor, Krishan Lal and after sale, mutation was entered in the name of Mahavir Parshad. Possession of land was also handed over to Mahavir Parshad. It is contended that the State of Haryana moved application seeking cancellation of the allotment after 15 years. Therefore, the application was highly belated without any sufficient cause. Since the petitioner, Mahavir Parshad, is a transferee in good faith for consideration allotment in his favour could not be cancelled.

We have considered the arguments put forward by learned counsel for the petitioner-Mahavir Parshad, but we are not impressed by the same. There is no dispute that Krishan Lal had secured the second allotment of land by fraudulent means. Further, he violated the provisions of the Allotment Scheme by transferring the land within one year of taking possession. Allotment was made in his favour on 11th October, 1980 but possession of land was given to him on 25th August, 1986 and 31st May, 1987. He made the sale to Mahavir Parshad on 1st June, 1988. The petitioner-Mahavir Parshad, did not exercise due care and caution w;hile purchasing land within five years from Krishan Lal. In our view, allotment dated 11th October, 1980 was rightly cancelled by the Financial Commissioner by order dated 18th February, 1997. Since the allotment was obtained by fraud, it was liable to be challenged by filing a revision petition before the Financial Commissioner. The petitioner-Mahavir Parshad,. may seek his remedy against respondent-Krishan Lal before an appropriate forum by appropriate action as available in law.

In the result, Civil Writ Petition No. 10039 of 1997 is allowed and the order dated 18th February, 1997 passed by the Financial Commissioner is quashed so far as it relates to the cancellation of allotment dated 27th January, 1979. Civil Writ Petition No. 8210 of 1997 is dismissed.