Daleep Singh and others vs The State of Haryana and others

Ranjit Singh, J.—This writ petition was listed for hearing alongwith the bunch of seven other writ petitions as common question of law arose in all these petitions. This petition was, however, segregated and put up for rehearing by noticing some distinctive features in this case. The issue of law, which arises in this case and the other petitions relates to the delay on the part of the State to invoke revisional jurisdiction of the Financial Commissioner u/s 18(6) of the Haryana Ceiling on Land Holdings Act, 1972 (for short, "the Act") for setting-aside the order passed by the prescribed authority. The prescribed authority in this case has also held that there could be no objection to the declaration furnished by Dalip Singh, petitioner, for being treated as having been furnished by his mother, Dakhan, and decided the surplus area accordingly vide order dated 5.4.1984, The prescribed authority, thus, allowed one primary unit of permissible area to Dakhan and one separate unit for her adult son, Dalip Singh (petitioner). Against this order, Commissioner, Hisar Division, on the basis of inspection note dated 20.2.1986 to 27.2.1987 submitted by Tehsildar Agrarian on the process of land reforms work in Sirsa Sub Division, reopened the surplus area case of the petitioner and made reference to the Financial Commissioner, Haryana, vide memo No. 2125 dated 26.6.1987, praying for action u/s 18(6) of the Act and for setting-aside the impugned order dated 5.4.1984 passed by the prescribed authority. On this basis, the State filed a revision petition in the year 1987 in the Court of Financial Commissioner, Haryana, raising various contentions against the impugned order dated 5.4.1984. The Financial Commissioner thereafter decided to allow the said revision petition on 9.6.1994 and remanded the case back to the prescribed authority with a direction to calculate the surplus area afresh after allowing one unit of permissible area to Dalip Singh, petitioner and his family and permit him to select permissible area of one unit. Thereupon, the prescribed authority has allowed one unit on permissible area to Dalip Singh and thereby has declared 490 kanals and 12 marlas of area as surplus on 29.8.1995. The petitioner accordingly has challenged order dated 9.6.1994 (Annexure P-5) and consequential order dated 29.8.1995 (Annexure P-6), contending that these are grossly arbitrary, capricious, illegal, without jurisdiction, unjust and inequitable.

The background and the facts leading to passing of impugned orders may now be noticed.

Aad Ram was the head of the family and Dalip Singh (petitioner) used to live with his parents. On demise of Aad Ram, his widow, Dakhan, became the head of the family and required to furnish her declaration u/s 9(1) of the Act to the prescribed authority. She was to give particulars of her own land as also the land owned by the separate unit i.e. her adult son, Dalip Singh, petitioner, living with her in the prescribed form and in the manner stating therein her selection of the land not exceeding in aggregate the permissible area, which she desired to retain. This was in terms of subsection (1) and (2) of Section 9 of the Act. It is averred that for want of proper legal guidance, Dalip Singh, petitioner, who was adult on the appointed date i.e. 21.1.1971 and was living with his parents, himself furnished the declaration on 13.8.1976, showing himself, his wife and three minor children as members of his family. As per the petitioner, Dalip Singh, being adult on the appointed date and living with his mother, was not required to or entitled to furnish any declaration. His mother, being head of the family, after the demise of her husband, was alone competent to furnish the declaration, claiming one unit of permissible area for herself and separate unit for adult son, Dalip Singh, petitioner. Instead, Dalip Singh, petitioner, himself submitted the declaration form under erroneous impression that he being major was required to himself furnish the declaration. Having realised this mistake, Dakhan moved an application on 17.1.1984 before the prescribed authority for being made a party to the proceedings and for treating the declaration furnished by herself. It is urged that Naib Tehsildar, Surplus, representing the State raised no objection to the prayer so made by Dakhan to treat the declaration furnished by her son, Dalip Singh, as furnished by her. It is in this background that the prescribed authority passed the order dated 5.4.1984, which was set-aside by the Financial Commissioner while invoking suo-motu jurisdiction u/s 18(6) of the Act.

The plea on behalf of the State as raised before the Financial Commissioner was that major son can not be included as a member of family and mother can not be considered to be the head of the family since she had no minor child of her own. In this background, the Financial Commissioner has observed that after the death of father, the mother becomes the head of the family but this can not always be so. Reference is made to Section 3(f) of the Act, which provides that family means husband, wife and their minor children or any two or more of them''. By making reference to the decision of the Supreme Court in Seth Nand Lal and another v. State of Haryana,1 1980 PLJ 470, the Financial Commissioner has observed that concept of family has been defined in an artificial manner, meaning husband, wife and their children and excluding major son and unmarried daughters. As per Section 4(1) of the Act, primary unit of the family is confined to 5 members, namely, husband, wife and their minor children upto 3 with reference to which permissible area has been prescribed. u/s 4(2) of the Act, the permissible area increases by 1/5th of the primary unit for each additional member of the family subject to maximum limit of twice the permissible area. While deciding the claim of the petitioner that the mother is head of the family, when she was owning 5 kanals 8 marlas and petitioner, Dalip Singh, was shown to be owner of the land in the revenue record, the Financial Commissioner has held that mother could not be the head of the family within the meaning of the provisions contained in the Act. He accordingly set-aside the order passed by the prescribed authority and remanded the case for calculating the surplus area afresh after allowing one primary unit to Dalip Singh, landowner and his family and after allowing him the opportunity to select his permissible area. The Financial Commissioner has further directed that in case any land has been sold or transferred after the date of impugned order of the prescribed authority, then the land sold or transferred will be included in the permissible area of the landowner in view of the provisions of Section 9(3) of the Act. It is this order, which the petitioner has impugned on various grounds.

The primary ground to challenge the impugned order remains the same and it is to the effect that exceptional remedy provided u/s 18(6) of the Act could not be availed by the State without first exhausting the remedy of appeal u/s 18(1) and of the revision provided u/s 18(4) of the Act. This was the main submission which was advanced in the bunch of petitions, which were decided by this Court while deciding Civil Writ Petition No. 7074 of 1991 Smt. Dayawanti and others v. The Stale of Haryana and others 2 on July 11, 2011. In addition, the plea also was that there may be cases where land owners may have managed to retain more area than permissible by fraudulent means and with this aim and object, Section 18(6) of the Act was made to arm the Financial Commissioner with unfettered powers to interfere in such fraudulent designs of such dishonest and crafty land owners and to see the surplus pool is not whittled down by fraudulent means. The counsel for the petitioner has also challenged the action of the State in directly seeking to invoke the suo-motu revisional jurisdiction of the Financial Commissioner without having had a resort to remedy of appeal and revision before the Collector and the Commissioner respectively. The ground of challenge further is that the State had a limited period to file an appeal, which could be done only within 15 days and thereafter to invoke revisional jurisdiction within 30 days. The counsel pleads that State instead has sat over the issue for a long period, of nearly three years before invoking the jurisdiction u/s 18(6) of the Act. Plea also is that this delay on the part of State has remained unexplained and the case of surplus had acquired finality. The delay in itself would be enough to interfere in this power exercised by the Financial Commissioner and further on the ground that power u/s 18(6) ought to be exercised judiciously and not arbitrarily.

The delay in invoking suo-motu jurisdiction in this case by the Financial Commissioner was not so pronounced as was in the other writ petitions with which this writ petition was initially taken up for hearing. In those writ petitions, the delay in invoking the suo-motu jurisdiction was of varying period started from 6 years and going upto 23 years. In the present case, the impugned order was passed by the prescribed authority on 5.4.1984. The Commissioner, Hisar Division, monitored the progress of land reforms work on the basis of the report submitted by Tehsildar, Agrarian. These notes were submitted between February 1986 to February 1987. It is just after two years of the impugned order and shortly thereafter the reference was made to the Financial Commissioner on 26.6.1987. The delay in the present case is not as prolonged as was in the other cases decided alongwith Smt. Dayawanti''s case (supra). Even the submission made in the case of Dayawanti may have some significance in this case. It was rightly contended before the Court that there may be a case where landowners may have managed to retain more area than permissible by fraudulent means and with this aim and objection Section 18(6) was made to arm the Financial Commissioner with unfettered powers to interfere in such fraudulent designs of such dishonest and crafty land owners. This exactly appears to have happened in this case. Dalip Singh, petitioner, first filed his declaration claiming himself to be the head of the family and he being adult, though living with his mother, Dakhan. Subsequently, he appears to have made a smart move to show himself to be part of the family of his mother, Dakhan and prayed for his declaration to be treated as declaration by his mother. This was only with an aim to have another separate unit for himself, he being the adult son of Dakhan. This appears to have been done in a crafty and dishonest manner and in order to whittle down the surplus pool by fraudulent means. This is the exact purpose for which such unfettered suo-motu powers have been legislated in the form of Section 18(6) of the Act, which the Financial Commissioner can exercise. That being the factual background and the delay being not all that pronounced and prolonged so as to attract the ratio of law laid down in various judgements noticed in Smt. Dayawanti''s case (supra), the impugned order may not call for any interference.

In the case of Loku Ram v. State of Haryana,3 1999 (1) PLJ 1, this Court has interfered when the Financial Commissioner had set-aside the order after seven years. In Ibrahimpatnam Taluk Vyavasaya Collie Sangham v. K. Suresh Reddy and others,4 2004(1) HRR 635, the Court has held that the power has to be exercised within a reasonable period depending upon the facts and circumstances of each case. No doubt, that the words ''at any time'' as used in the Section can not mean that such powers can be exercised even after decades and that this would lead to anomalous position. It is also true that any time should not be unguided and arbitrary but these must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation.

What is, thus, required to be seen is whether the delay in the present case, which is just for a period of two years or so, can be considered reasonable depending upon the facts and circumstances of the case? The Commissioner came across this infirmity while monitoring the progress of surplus cases and took action to refer the matter to Financial Commissioner just within two years of the impugned order. The power u/s 18(6) of the Act, being available without any reference to limitation has to be seen in the facts and circumstances of this case. It appears that there is sufficient reason and explanation forthcoming in this case to show that there was not much unexplained delay on the part of the Commissioner to seek this suo-motu reference to invoke the jurisdiction of the Financial Commissioner. This can not be termed as arbitrary or unfair in any manner.

The words used in the Section are ''at any time'' and these have been interpreted to mean ''reasonable time''. The delay in this case can be considered to be reasonable and it was entirely within the discretion of the Financial Commissioner to interfere in this matter and this Court would not be inclined to interfere in this discretion in the circumstances of this case in a petition under Article 226 of the Constitution of India.

The second limb of submission that suo-motu powers u/s 18(6) of the Act could not be invoked once the State has not bothered to file an appeal or revision, would not impress me much. In this regard, the observations made in the case of Sh. Diwan Hira Lal Kapoor v. The State of Haryana and others,5 2002(1) PLJ 28, were noticed in detail in the case of Smt. Dayawanti (supra) and it was observed that the proposition as canvassed to this effect does not emerge clearly from the observations noticed. The net result is that suo-motu powers in this case have been exercised within a reasonable time and, thus, would not call for any interference while exercising writ jurisdiction. For the aforesaid reasons, the writ petition is dismissed. The parties are left to bear their own costs.