Baldev Tayal vs State of Haryana and ors.

D.V. Sehgal, J. (Oral)

The petitioner is a landowner. He owned 186 acres 3 units of land. Under the relevant provision s of the Punjab Security of Land Tenures Act, 1953 (for short the Punjab Act), the Collector (Surplus Area), Hissar, vide his order dated 6.9.1961 decided that, by excluding 30 acres of the land as his permissible area, he had 156 acres 3 units of surplus area in his hands. The petitioner was aggrieved against this order. He, therefore, filed an appeal before the Commissioner, Ambala Division, Ambala, which was decided vide order dated 20.12.1961. The appeal was allowed and the matter was remanded to the Collector (Surplus Area) to redecide the case after taking in to consideration the plea of the petitioner that most of the area of the land owned by him was in possession of old tenants. The matter was thus decided once again by the Collector vide his order dated 7.10.1963 (Annexure P.2). He, inter alia, held that the petitioner was in selfcultivation of area measuring 3 acres 1.6 units (3.64 ordinary acres) only and that the remaining area measuring 183.03 acres (183.14 ordinary acres) was under the old tenants. On this basis, he held that the landowner has been holding with him an area much less than the permissible area as prescribed by section 2(3) of the Punjab Act and, as such, no area of the petitioner was declared surplus. The matter was decided by him accordingly. No appeal therefrom was taken to the higher authorities either by the petitioner or by the State or the tenants.

On coming into force the Haryana Ceiling on Land Holdings Act, 1972 (for short the Haryana Act), the petitioner filed a declaration on 31.3.1981 before the Additional Collector, Hissar, who decided the matter whether or not there was any surplus area in the hands of the petitioner under the Haryana Act. One preliminary unit for himself and one additional unit for his adult son Abhey Ram Tayal was reserved by the petitioner. The Additional Collector, vide his order dated 31.3.1981 (Annexure P. 1), after fully discussing the entire matter, held that no area of the petitioner became surplus after deducting the preliminary unit and the additional unit reserved for himself and for his son respectively and the declaration filed by the petitioner was consigned to the record.

The petitioner, however, is aggrieved by an order dated 31.3.1981 [Annexure P. 2(a)] appended to the amended petition, which was passed by the Naib Tehsildar, Surplus Area, Hansi, who, after noticing the fact that by order dated 7.10.1963 the Collector had mentioned that 183.03 acres (183.14 ordinary acres) of land of the petitioner was with the old tenants, proceeded to allot land to the old tenants by invoking the provisions of the Punjab Act. He interpreted the aforesaid order of the Collector as if 183.03 acres (183.14 ordinary acres) of land had been reserved as tenants'' permissible area. The petitioner being aggrieved against this order filed an appeal before the Collector, Hissar, who rejected the same vide his order dated 1.6.1981 (Annexure P.3). The Collector held that vide order dated 31.3.1981 [Annexure P. 2(a)], the Naib Tehsildar had allotted the surplus area in the hands of the petitioner to the old tenants which was reserved for them by the Collector (Surplus Area), Hissar, vide his order dated 7.10.1963, and that the petitioner could not raise any objection against the said order at such a late stage. The petitioner persisted in his claim that the order Annexure P.2(a) was illegal and he filed a revision petitioner, which was, however, rejected by the Commissioner, Hissar Division, vide his order dated 22.9.1981 (Annexure P.4). He observed that although the revision petition was directed against orders Annexure P.2(a) and P.3, it was, in fact, the order dated 7.10.1963 (Annexure P.2) passed under the Punjab Act by the Collector which was the focus of attack by the petitioner in the revision petition, holding that any remedy against the said order was no longer available to the petitioner. His revision petition was rejected. This is how the petitioner has approached this Court invoking its extraordinary jurisdiction for quashing the orders Annexures P.2(a), P.3 and P.4 passed by the authorities aforesaid.

I have heard the learned counsel for the parties and I am of the view that this petition must succeed. It remains beyond dispute that, vide his order dated 7.10.1963, the Collector had simply declared that there was no area surplus in the hands of the petitioner. The reason for this conclusion recorded by him was that area to the extent of 183.03 acres (183.14 ordinary acres) is with the old tenants and the petitioner has in his selfcultivation only 3 acres 1.6 units (3.64 ordinary acres). There was, however, no determination by him regarding the permissible area of the petitioner and the permissible area of the tenants to the extent provided in section 2(3) of the Punjab Act. In Bahadur Ram and others v. State of Punjab and others, 1969 PLJ 372, it was held by a learned Judge of this Court that under the Punjab Act it is the duty of the Collector to determine whether there is any permissible area of the tenants which has to be excluded while determining the surplus area with the landowner and further that surplus area has to be determined as on April 15, 1953 and, while determining surplus area, the permissible area of the landowner as well as that of the tenants have to be excluded. Under Section 2(3) of the Punjab Act, "permissible area" in relation to a landowner and a tenant means, inter alia, 30 standard acres. Section 5 of the Punjab Act lays down the mode of reservation of land and provides, inter alia, that the landowner, while reserving 30 standard acres of land for him, shall include the area owned by him in the following order

(a) ..... ..... .... ..... ..... ......

(b) area under selfcultivation at the commencement of this Act other than the reserved area.

(c) reserved area excluding the area under a jhundimar tenant or a tenant who has been in continuous occupation for 20 years or more immediately before such reservation.

(d) ... ... .... ... .... ....

(e) any other area owned by him.

(f) area under a jhundimar tenant.

The above provisions thus envisage that the landowner is entitled to reserve for himself 30 standard acres of land, no doubt, in the order provided for therein. As noticed above, vide his order dated 7.10.1963 (Annexure P.2), the Collector did not allow any reservation of 30 standard acres of land by the petitioner once did he reserve any tenants'' permissible area which ought to have been done. Therefore, the Naib Tehsildar clearly misconstrued the aforesaid order to the Collector when he treated 183.03 acres (183.14 ordinary acres) of the area with the old tenants as the tenants'' permissible area and proceeded to make allotment therefrom. The higher authorities in their orders, Annexures P.3 and P.4, also did not properly appreciate the effect of the order of the Collector, dated 7.10.1963 and wrongly arrived at the conclusion that if the petitioner had any grievance, he had the same against the said order because permissible area for him determined therein was 3 acres 1.6 units (3.64 ordinary acres) only which is not at all the position. It is, therefore, clear that the impugned orders, Annexures P.2(a), P.3 and P.4, are based on misconstruction of the order of the Collector, dated 7.10.1963 (Annexure P.2), which in its terms did not reserve either the permissible area of the landowner or the tenants'' permissible area. All that was held was that there was no surplus area in the hands of petitioner. Therefore, the allotment made in favour of tenants, vide order Annexure P.2(a), does not at all flow from the order of the Collector, dated 7.10.1963 (Annexure P.2) and cannot be sustained.

As a result of the above discussions, I allow this writ petition and quash the orders, Annexures P.2(a), P.3 and P.4 passed by respondent Nos. 4, 3 and 2 respectively. There shall, however, be no order as to costs.