Chanan Mal Newar and others vs State of Haryana and others

S.S. Kang, J.

Chanan Mal and three others have filed this writ petition under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari quashing the orders dated May 27, 1980 (Annexure P20) passed by the Financial Commissioner, Haryana, upholding the dated March 21, 1967 (Annexure P12) passed by his predecessor Shri B.S. Grewal, Financial Commissioner, Haryana, who upheld the order dated March 10, 1964 (Annexure P10) passed by the Collector (Surplus), Sirsa, declaring some land, in the hands of Smt. Rukmani Devi, as surplus.

This case has a chequered history . The pertinent facts may briefly be noticed in order to determine the prestinely legal controversy raised in this writ petition.

Smt. Rukmani Devi was a displaced person from Pakistan. In 1955, she was allotted 6.28 standard acres of land. She was thus a small landowner, as contemplated by the Punjab Security of Land Tenures Act (for short `the Act''). On the death of her husband, Shri Suraj Bhan in 1955 she inherited 38.70 standard acres of land equivalent to 124.56 ordinary acres of land in village Kheraika Tehsil and District Sirsa. On May 16, 1958, Smt. Rukmani Devi sold 28 Bighas 2 Biswas of her land situated in village Kheraika to her daughter, Smt. Saraswati Devi, for a consideration of Rs. 15,000/. Mutation relating to this sale transaction was sanctioned in the name of Smt. Saraswati Devi on January 17, 1960. On June 18, 1958, Smt. Rukmani Devi selected her permissible area and submitted Form `E'' prescribed by the Punjab Security of Land Tenures Rules (for short `the Rules'').

Smt. Saraswati Devi sold the above mentioned land purchased by her from her mother measuring 28 Bighas 2 Biswas to the petitioners for Rs. 15,000/ by means of a registered saledeed. Mutation No. 597, relating to this sale was sanctioned in favour of the petitioners on March 5, 1961. This position was reflected in the Jamabandi for the year 196061, wherein the petitioners were shown as owners of 28 Bighas 2 Biswas of land purchased from Smt. Saraswati Devi.

In 1961 the Collector started proceedings for determination of surplus area of Smt. Rukmani Devi. Her general attorney, Shri Ram Bhagat, appeared before the Circle Revenue Officer and made a statement that Smt. Rukmani Devi had sold 28 Bighas 2 Biswas of land to her daughter Smt. Saraswati Devi. The Circle Revenue Officer in his report dated October 13, 1961, made to the Collector mentioned about this transfer of 28 Bighas 2 Biswas of land by Smt. Rukmani Devi to her daughter. The Collector also recorded the statement of Ram Bhagat. He reiterated his stand about the sale of 28 Bighas 2 Biswas of land by Smt. Rukmani Devi to her daughter Smt. Saraswati Devi. The factum of transfer of this land by Smt. Rukmani Devi to Smt. Saraswati Devi and the further transfer by Saraswati Devi to the petitioners is mentioned in Form `D'' prepared by the village Patwari, which was attested by the Field Kanungo and the Circle Revenue Officer. Even though the names of the petitioners were mentioned in the revenue record and Form `D'' prepared in these very proceedings, the Collector did not issue any notices to either of them. The Collector vide his order dated November 30, 1961, held that Smt. Rukmani Devi held 44.98 standard acres, whereas she was entitled to own 50 standard acres of land as a displaced person. There was no surplus area with her.

This order passed by the Collector was on a misconception of law. The Collector after seeking permission of the Commissioner to review the order dated November 30, 1961, took up the case for determination of the surplus area of Smt. Rukmani Devi afresh. However, he did not issue any notice to the petitioners before passing the order dated March 10, 1964, whereby he gave Smt. Rukmani Devi 30 standard acres equal to 96 ordinary acres as permissible area and declared 13.58 standard acres of land equal to 46.29 ordinary acres as surplus with Smt. Rukmani Devi (a copy of this order is appended as Annexure P10, to the writ petition). Whole of the land purchased by the petitioners was included in the surplus area. Since the petitioners were not associated with the proceedings for determination of surplus area of Smt. Rukmani Devi, they did not come to know of this order. The petitioners allege that the landlady gave a fresh list of permissible area and the surplus area quite different from the land selected by her in Form `E'' submitted on June 18, 1958. By this order of the Collector the entire land purchased by the petitioners was included in the surplus area of Smt. Rukmani Devi.

Ladhu Ram was a tenant of Smt. Rukmani Devi. After the passing of the order dated November 30, 1961, according to which Smt. Rukmani Devi was declared as a small landowner, she filed an ejectment application against Ladhu Ram. The Collector accepted her prayer and Ladhu Ram was ordered to be ejected in 1962. On an appeal filed by Ladhu Ram, the Commissioner held that the order of the Collector was erroneous as Ladhu Ram was an old tenant and no notice had been issued to him while determining the surplus case of Smt. Rukmani Devi and that she was entitled to only 60 ordinary acres and not 96 ordinary acres as ordered by the Collector. Aggrieved by this order, Smt. Rukmani Devi went up in revision. Shri B.S. Grewal, Financial Commissioner, Haryana, accepted this revision on March 21, 1967, on the ground that Ladhu Ram had already been ejected in 1962 and the view of the Commissioner that Smt. Rukmani Devi was entitled to only 60 ordinary acres was incorrect (a copy of this order is annexed as P12 to the writ petition). The petitioners were not impleaded as parties to this revision petition nor were they heard before passing orders (Annexure P12).

Des Raj and Amar Chand were allotted a part of the land purchased by the petitioners and declared surplus by the Collector vide Annexure P10. They were given possession of the part of that land purchased by the petitioners from Smt. Saraswati Devi. This was a shock to the petitioners because they had not known about the proceedings for the determination of surplus area of Smt. Rukmani Devi. The petitioners felt aggrieved of this illegal utilization of their land by the authorities and filed an appeal against the order of the Collector dated March 10, 1964 (Annexure P10). This appeal was accepted by the Commissioner on December 20, 1972, mainly on the ground that the petitioners as transferees were entitled to be heard before the surplus area of Smt. Rukmani Devi was decided. No notice had been issued to the petitioners by the Collector and the order was not conveyed to them. The Commissioner set aside the order (Annexure P10) and remanded the case to the Collector for fresh determination in accordance with law after hearing the affected persons including the petitioners. Nobody filed any appeal or revision against this order.

Thereafter, petitioner moved an application before the Collector seeking restoration of possession of their land allotted to the respondents 8 and 9. The Collector accepted this application on March 15, 1973, and ordered the restoration of possession of land belonging to the petitioners which had been given to respondents 8 and 9. It was ordered that before respondents 8 and 9 were dispossessed they should be allotted some alternative land so their interests were not affected. Dissatisfied with this order, respondents 8 and 9 filed an appeal and the same was dismissed by the Commissioner vide orders dated June 15, 1973. A revision petition filed by respondents 8 and 9 was accepted by Shri S.D. Bhambri, Financial Commissioner, Haryana, on July 30, 1974. He observed that the order of Collector dated March 10, 1964, had been affirmed by the Financial Commissioner, vide orders dated March 21, 1967, and the Commissioner had no jurisdiction to set aside the order (Annexure P10). He also observed that if the petitioners felt aggrieved from the order dated March 21, 1967 (Annexure P12), they should seek a review of that order from the Financial Commissioner. This order was passed on July 30, 1974.

The Financial Commissioner dismissed an application seeking review of the above order on November 22, 1974, on the ground that in view of the provisions of section 33 of the Haryana Ceiling on Land Holdings Act, 1972, this application was not competent. The petitioners filed a writ petition (C. W.P. 6521 of 1974) challenging this order and the same was decided by R.N. Mittal, J. on October 15, 1976. The order of the Financial Commissioner (Annexure P 16) holding that the Commissioner had no jurisdiction to set aside the order dated March 10, 1964 in view of the decision of the Financial Commissioner dated March 21, 1967, affirming the order of the Collector was upheld. However, the order of the Financial Commissioner (Annexure P17) rejecting the application for review was set aside. It was held that the proceedings were pending when the Haryana Ceiling on Land Holdings Act was enforced and the Financial Commissioner was competent to decide the review application. The order of the Financial Commissioner (Annexure P17) was set aside and the case was remanded to him for deciding it on merits.

The matter was heard by Shri L.C. Gupta, Financial Commissioner (Revenue) Haryana. He rejected the review application vide orders dated May 27, 1980 (Annexure P20).

Apart from holding that the review application was hopelessly barred by time and the petitioners has no locus standi to file the review application they not being a party to the proceedings before Shri Grewal, Shri Gupta has rejected the review application mainly on the grounds that

(i) Smt. Rukmani Devi did not mention in selection Form `E'' submitted by her in 1958 that she sold the land, in dispute, to her daughter Smt. Saraswati Devi. No reference has been made to Smt. Saraswati Devi in the order (Annexure P10) passed by the Collector determining the surplus area of Smt. Rukmani Devi;

(ii) in the revenue record, the petitioners were not mentioned as interested party; and

(iii) a transferee of a transferee is not entitled to a hearing before determination of surplus area of the original big landowner.

None of these grounds is tenable in law.

It is true that the name of Smt. Saraswati Devi is not mentioned in Form `E''. However, Form `E'' is not meant for this purpose and there is no column requiring the landowner to disclose any transfer made by him.

Shri Ram Bhagat, generalattorney of Smt. Rukmani Devi had twice made statements before the Circle Revenue Officer and the Collector that Smt. Rukmani Devi had sold the land, in dispute, to her daughter, Smt. Saraswati Devi. The nonmention of Smt. Saraswati Devi''s name in the order (Annexure P 10), passed by the Collector, is of no consequence. This fact can have no bearing in judging the validity of the Financial Commissioner''s order. The mutation of the land, in dispute, had been sanctioned in favour of the petitioners in 1961. They were mentioned as owners of the land, in dispute, in the Jamabandi for the year 196061. In the face of this overwhelming material on the record to which a presumption of truth is attached, the conclusions of the learned Financial Commissioner that the names of the petitioners were not mentioned, as interested persons, in the revenue record is patently against facts.

It has been a consistent view of this Court that a transferee of a original landowner is entitled to a notice during the determination of the surplus area case of such original landowner. The principles of natural justice are enshrined in rule 6 of the Punjab Security of Land Tenures Rules. It requires that opportunity of hearing be afforded to any person who is likely to be prejudicially affected by an order which might be passed in the proceedings for determination of surplus area. Among others a notice has to be issued to persons whose names are mentioned in Form `D'', prepared by the Patwari or whose names may be shown in the revenue record. Reference in this connection may be made to decisions in Ghamandi Lal and others v. The State of Punjab, 1965 PLJ 24, Shrimati Pari and others v. State of Punjab and others, 1966 PLJ 226, Bhool Chand and others v. The State of Punjab and others, 1968 PLJ 360, in which a similar view was taken. This view was reiterated in two Full Bench decisions in S. Balwant Singh Chopra and others v. Union of India and others, 1974 PLJ 315, and Ashok Kumar v. The State of Haryana and others, 1974 PLJ 456. It was observed by the Division Bench in the referring order ``that the transferees of land are persons interested who are entitled to notice under rule 6 of the Rules''''. The solitary discordant note struck is the judgment in Harbans Singh and Gurbakhsh Singh v. Ajit Singh and others, 1975 PLJ 85, wherein it has been observed that rule 6 of the Rules does not require that a notice should be issued to the purchaser and the landowner but only makes obligatory the issuance of a notice to the landowner and the tenant. This case is a decision mainly on the facts of the case. It was observed that the order could be avoided by a transferee or got rid of by the filing of an appeal. In this case judgment was prepared by B.R. Tuli, J. He was himself a party to the decision in Ashok Kumar''s case (supra), wherein it has been held that a person whose interests are likely to be affected by a decision of surplus area has a right to be heard and is entitled to claim a decision on merits by approaching the Collector for this purpose notwithstanding the fact that his name is neither mentioned in Form `D'' nor in the revenue records as a person interested. It seems that this Full Bench decision was not brought to the notice of the Division Bench which decided Harbans Singh''s case (supra). The decision is even otherwise distinguishable on facts. In this case the petitioners assailed the orders of the Financial Commissioner. He is the head of the hierarchy of the Revenue Courts in the State. No appeal has been provided against his orders. So, the petitioners had no right to challenge that order in appeal. They have, therefore, filed the application for review of the previous judgment.

It is manifest from the above decisions that the rules of natural justice have now been ingrained in the judicial conscience of our people. In our judicial system, orders passed by a statutory authority in violation of principles of natural justice cannot be sustained. The only exception will be the cases where the application of these rules is excluded by the Legislature explicitly or by inevitable intendment. In the present case, the rules of natural justice are enshrined in rule 6 of the Rules. Any person who is recorded in the revenue record as an owner or a tenant of the land, in dispute, is entitled to an opportunity of hearing before the Collector who passes orders declaring certain land as surplus. It is immaterial that such a person is the first, second or third transferee from the original landowner. The cardinal principles of these rules of natural justice is that any order, which is going to prejudicially affect the civil rights of a citizen should be passed after hearing that person. The petitioners, though transferee from a transferee of the original landowner had been recorded as owners of the land, in dispute. The Act does not prohibit acquisition of proprietary rights even in the lands owned by a big landowner. What is not recognised is the transfer of land which has the effect of reducing the surplus area, for all other purposes these transfers are good. The transferees of surplus land are entitled in certain cases to eject their tenant; to receive rent from them and finally to receive compensation from the resettled tenants. So, the transferees of a transferee from the original landowner are also entitled to a hearing. The view of the learned Financial Commissioner that the transferee of a transferee from the original landowner are not entitled to a notice, cannot be sustained either on principles or on precedent.

The conclusions of the learned Financial Commissioner that only a person, who was a party to the proceedings before Shri B.S. Grewal, Financial Commissioner was entitled to seek a review of his orders is based on a misconception of law. If this proposition is accepted then a person can intentionally not implead a proper or necessary party to the proceedings and obtain an order detrimental to the interest of such other person. That other person shall then be left without any remedy in law. Civil rights of a citizen cannot be taken away without hearing him. The approach adopted by the learned Financial Commissioner is in direct conflict with this principle. A Tribunal which has passed orders prejudicial to the interest of a citizen is not precluded form rehearing the case on the application of such an affected person. This power of review inheres in every Court or Tribunal to prevent miscarriage of justice or to rectify grave and palpable errors committed by it. In similar circumstances the Final Court in Shivdeo Singh and others v. State of Punjab and others, A.I.R. 1963 SC 1909, observed :

``There is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In entertaining B''s petition the High Court thereby did what the principles of natural justice required it to do.''''

In that case he had filed a writ petition for cancellation of the order of allotment passed by the Director of Rehabilitation in favour of B. The High Court cancelled the order in favour of `B'' though he was not a party to the writ proceedings. Subsequently `B'' filed a petition under Article 226 of the Constitution of India for impleading him as a party to A''s writ petition and rehearing the whole matter. The High Court allowed the writ petition. Apart from the above observations, it was held that :

``the second writ petition by `B'' was maintainable and the High Court had not acted without jurisdiction in reviewing its previous order at the instance of B who was not a party to this previous writ proceedings.''''

(Emphasis supplied).

The learned Financial Commissioner committed a grave error in holding that the petitioners had no locus standi to seek the review of the order (Annexure P12). The application moved by the petitioners for a review of the order (Annexure P12) was not though so captioned, really under section 24 of the Punjab Security of Land Tenures Act and section 82 of the Punjab Tenancy Act. It was a prayer for recalling an illegal order and requesting the learned Financial Commissioner to rehear the whole matter and to correct the grave and palpable errors committed by it. No period of limitation is prescribed for such an application. Even if it may be taken that the application, was under the above mentioned sections, it cannot be said that the same was time barred. The petitioners were admittedly not a party to the proceedings culminating in the order (Annexure P12). This order was not communicated to them. They have specifically stated that they only came to know about this order in the course of the proceedings in the revision petition filed by the petitioners against the order dated June 15, 1973 passed by the Commissioner before the Financial Commissioner. The grounds of revision must have been served on them, sometime after the filing of the revision petition. The review petition was filed on August 29, 1973. So, it cannot be said that the petition was time barred. So the order of the learned Financial Commissioner rejecting the review application cannot be sustained in law.

The same is true about orders dated March 21, 1967 (Annexure P12) of the Financial Commissioner and dated March 10, 1964 (Annexure P10) of the Collector. Both have been passed in flagrant violation of the principles of natural justice.

Shri Ram Rang, the learned counsel for the respondents 8 and 9, (the resettled tenants) has argued that these respondents are prior tenants. They have developed the land and have invested large sums of money in installing tubewells etc. Moreover if they are thrown out of the land in dispute they may not be able to get any alternative lands and the writ petition should be rejected on that score.

Mr. N.L. Dhingra, the learned counsel for the petitioners has on the other hand submitted that the petitioners are themselves small landowners. They had purchased the land for consideration. Whole of it has been declared surplus and tenants have been settled thereon. Respondents 8 and 9 have come on the land during the pendency of the litigation and there is no equity in their favour. I cannot accept this contention. Mere hardship to these respondents is no ground to deny relief to the petitioners.

As a result I allow this writ petition and quash orders dated March 10, 1964 (Annexure P10) of the Collector, dated March 21, 1967 (Annexure P12) of Shri B.S. Grewal, Financial Commissioner and dated May 27, 1980 (Annexure P 20) of Shri L.C. Gupta, Financial Commissioner and remand the case to the Collector to decide it afresh after hearing the petitioners and other persons interested in accordance with law. The Collector shall try to safeguard the interests of respondents 8 and 9 to the extent it is possible and permissible under the law. Respondents 8 and 9 shall not be dispossessed till the decision by the Collector.