Deva Singh (Died) through his LRs. vs State of Haryana

R.L. Anand, J.

By this judgment I dispose of two civil writ petitions bearing No. 3792 of 1980 titled Deva Singh and others v. State of Haryana and others, 1997(3) RCR(Civil) 24 (P&H) : and No. 4921 of 1995 titled `Joginder Singh v. State of Haryana and others, as in the opinion of this Court the common question of law and fact is involved in both these writ petitions.

First of all, I take up the pleadings of the parties in writ petition No. 3792 of 1980 in which the prayer has been made by the petitioners for the quashment of the impugned orders passed by the Collector, Commissioner and Financial Commissioner, respectively. In this writ petition, the case set up by the petitioners is that they are landowners and residents of village Bastara, Tehsil and District Karnal. Smt. Nimbo owned land in village Bastara and she was a big landowner. Her area was assessed under rule 6(6) of the Punjab Security of Land Tenures Rules, 1956 by the Collector, Karnal, on 13.7.1960, 82 standard acres 43/4 units of land was declared surplus. On 30.4.1959 Smt. Nimbo transferred all her holdings in the name of the petitioners and some others who were her legal heirs by virtue of a civil Court decree and mutation to this effect was also entered in the names of transferees on 17.7.1959. This decree was ignored by the authorities in view of the provisions of Sections 10A and 19A of the Punjab Security of Land Tenures Act, 1953 (hereinafter called `the Act''). Smt. Nimbo died on 6.1.1968 and up to 6.1.1968, the land which was declared surplus was not utilised by the State Government for settling the ejected tenants. Some area of Smt. Nimbo was allotted on 16.9.1976 to respondents No. 5 to 7, therefore, the petitioners and other rightholders who are heirs of Smt. Nimbo filed an application on 15.7.77 before the Prescribed Authority under Section 8 of the Haryana Ceiling on Land Holdings Act, 1972 because Punjab Security of Land Tenures Act had been repealed by Section 33 of the Haryana Act. The petitioners submitted that Smt. Nimbo died in the year 1968 and the surplus area was not utilised during her life time, therefore, the petitioners on the death of Smt. Nimbo became small landowners in accordance with the provisions of Haryana Act, 1972 and were entitled to retain the land as their permissible area in accordance with the provisions of the said Act. The petitioners are the legal heirs of Smt. Nimbo and they had inherited the land from Smt. Nimbo in the year 1968. Therefore, in view of the provisions of Section 8, they are entitled to retain the land in dispute. The application which was filed by the petitioners was accepted by the Prescribed Authority on 3.8.1978 vide Annexure P1. Respondents No. 5 to 7 aggrieved by the order of Prescribed Authority filed an appeal before the Collector, which was allowed vide orders dated 2.7.1979 Annexure P2. The petitioners then filed a revision before the Commissioner against the order dated 2.7.1979 (Annexure P2) but their revision was dismissed on 29.8.1980 vide Annexure P3. Therefore, the petitioners filed a revision before respondent No. 2 on 1.10.1980 which was also dismissed on 7.10.1980 vide Annexure P4. Now the challenge has been given by the petitioners to the orders Annexures P2, P3 and P4 on the plea that these orders are without jurisdiction. The land was declared surplus on 13.7.1960 and Smt. Nimbo died on 6.1.1968. During the life time of Smt. Nimbo, the land was not utilised by the State Government for settlement of rejected tenants. In the year 1968, the petitioners inherited the land in dispute being her legal heirs and they became small landowners, therefore, they are entitled to retain the land in dispute as their permissible area under Section 8 of the Haryana Act. It was also pleaded that the order of utilisation in favour of allotteetenants was passed and implemented after the death of Smt. Nimbo and as such order is bad. It was also submitted that in case of death of landowner after declaration of surplus area either under the Punjab Act or under the Pepsu Act, the heirs of big landowners are entitled to retain the land and such land do not vest in the State Government. It is further alleged in the writ petition that after the death of Smt. Nimbo her surplus case was to be decided again by Revenue Authorities in accordance with the provisions of law and if the land in the hands of her heirs is not found surplus then the same cannot be utilised for resettling the tenants. Since the petitioners have become small landowners, therefore, the State Government is not competent to utilise the surplus area of Smt. Nimbo after her death which took place on 6.1.1968. With the above major averments, challenge has been given to the orders Annexures P2, P3 and P4.

There are two sets of written statements filed by the respondents. Respondents No. 1 to 4 have filed the written statement and it has been admitted that Smt. Nimbo owned land in village Bastara and she was a big landowner on 15.4.1953. It was also admitted that Smt. Nimbo transferred all her holding in the name of the petitioners on 30.4.1959 by way of collusive decree. Surplus case of Smt. Nimbo was decided by taking her estate as on 15.4.1953, the crucial date under the Punjab Security of Land Tenures Act, 1953. The Collector decided her case on 13.7.1960 and declared 82 standard acres and 43/4 units as her surplus area during her life time. The order of the Collector was not challenged by Smt. Nimbo or by the petitioners who were also present at the time of decision on 13.7.1960. The transfer made by Smt. Nimbo to the petitioners was lawful between the parties but the State was not bound by such transfer because of the collusive decree and it could be ignored under Section 10A(b) and (c) of the Punjab Security of Land Tenures Act. It has also been admitted by these respondents that Smt. Nimbo died on 6.1.1968. Since the petitioners being transferees from Smt. Nimbo during her life time they cannot be termed as legal heirs and the provisions of Section 8 of the Haryana Ceiling on Land Holdings Act, 1972 do not come to the help of the petitioners. The petitioners, for the first time applied on 15.7.1977 for obtaining the benefit of inheritance when surplus area of Smt. Nimbo had already vested in the State from 24.1.1971. As the area stands vested in the State, no inheritance of such area could be allowed to the petitioners. It is further pleaded that the petitioners have not challenged the order of Collector dated 13.7.1960 which has become final, therefore, they cannot file the present writ petition. Justifying the orders Annexures P2, P3 and P4, the official respondents have prayed for the dismissal of the writ petition.

Respondents No. 5 to 7 have alleged in their written statement that the petitioners have deliberately concealed the material facts. According to these respondents, the petitioners did not receive any land by way of inheritance on the death of Smt. Nimbo and no mutation of inheritance was sanctioned in their favour. Therefore, they are not entitled to claim the property. The answering respondents had deposited the first instalment of price of the land allotted to them. The possession of the land was delivered to them on 26.5.1977 and they have become the owners of the land allotted to them. The petitioners had filed an application under Section 8 of the Haryana Act on 15.7.77 before the Prescribed Authority which was not legally maintainable. The land which previously belonged to Smt. Nimbo and had been declared as surplus area under the Punjab Act, had vested in the State under the Haryana Act and possession of the land was delivered to the answering respondents on 26.5.1977 long before the petitioners filed application on 15.7.1977. Therefore, the petitioners are not entitled to succeed to the estate of Smt. Nimbo on the ground of inheritance. On merits, these respondents have tried to justify the orders annexures P2, P3 and P4 by taking those very pleas which were taken by respondents No. 1 to 4 and they have prayed for the dismissal of the writ petition.

Joginder Singh in writ petition No. 4921 of 1995 has prayed for the quashment of the impugned order dated 14.3.1995 which has been passed in the face of the orders passed in writ petition No. 3792 of 1980 and it has been alleged by the petitioner that he along with other proforma respondents namely Deva Singh and others filed writ petition against the orders of Collector, Commissioner and Financial Commissioner who upheld the declaration of surplus area of Smt. Nimbo who was the common ancestor of the petitioners. Up to the date of the death of Smt. Nimbo, her land declared surplus was not utilised. As a result of that, application under Section 8 of the Haryana Ceiling on Land Holdings Act, 1972 was moved. It was allowed at the first instance by the Prescribed Authority vide order dated 3.8.1978 and this order was set aside by the Collector whose orders were affirmed by the Commissioner and Financial Commissioner. During the pendency of the writ petition No. 3792 of 1980 and despite the fact that possession of the petitioners and proforma respondents was stayed, their possession was being disturbed by the allottees. In spite of the directions of the High Court, the impugned orders Annexure P1 were passed by the Collector calling upon Deva Singh that he was in unauthorised possession over the land and that he did not allow the allottees to cultivate the area mentioned in the notice. On the basis of the notice/orders Annexure P1, the orders Annexure P3 were passed and directions were given not stop Ajaib Singh from cultivating the land.

Vide orders dated 3.4.1995, the Division Bench of this Court admitted writ petition No. 4921 and ordered that it be heard along with writ petition No. 3792 of 1980. It was also ordered by the Division Bench that the parties to the writ petition would maintain status quo with respect to possession as it existed on that day i.e. 3.4.1995.

No formal written statement has been filed by the contesting respondents in this writ petition No. 4921 of 1995 but during the course of arguments it was stated by the counsel appearing on behalf of the parties that the fate of writ petition No. 4921 of 1995 shall depend upon the decision of writ petition No. 3792 of 1980. Both the writ petitions are being disposed of with the assistance of Shri Rameshwar Malik, Advocate, who gave appearance on behalf of the petitioners and Shri M.S. Jain, Advocate, and Shri Azad Singh, AAG (H), who appeared on behalf of the official/private respondents.

The major and the solitary argument which was raised by the learned counsel for the petitioner is that it is a common case of the parties that Smt. Nimbo died on 6.1.1968 and till her death, the surplus area which was declared in pursuance of the orders dated 13.7.1960 was not utilised and with the death of Smt. Nimbo, her natural succession opened as a result of which the petitioners became the legal heirs and small owners of the land and as such the orders dated 13.7.1960 loses its significance. corroborating his submissions, Mr. Malik then submitted that the Prescribed Authority vide Annexure P1 dated 3.8.1978 correctly decided the case of the petitioners by allowing their application under Section 10A(a) and (b) of the Punjab Security of Land Tenures Act, 1953 and read with Section 8(1) of Haryana Ceiling on Land Holdings Act, 1972. It was also submitted by Shri Malik, that while passing the impugned orders Annexures P2, P3 and P4, the official respondents committed a patent illegality by observing that the land of Smt. Nimbo had since been utilised, therefore, the allotment dated 16.9.1976 in favour of respondents No. 5 to 7 of writ petition No. 3792 of 1980 is perfect and legal. On the contrary, the learned counsel for the respondents have supported the impugned orders Annexures P2, P3 and P4 by stating that the collusive decrees dated 30.4.59 obtained by the petitioners against Smt. Nimbo had to be ignored. Since the case of surplus land of Smt. Nimbo was decided on 13.7.1960, the present petitioners could not challenge the said surplus order by filing an application in the month of July, 1977, after a lapse of 17 years and after the death of Smt. Nimbo.

After considering the rival contentions of the parties, this Court is of the opinion that there is a patent illegality in the impugned orders Annexures P2, P3 and P4 and the surplus case of Smt. Nimbo has not been rightly perused with regard to the date of its utilisation and, therefore, these orders are liable to be interfered with. Before I deal with the impugned orders, Annexures P2, P3 and P4, it may be useful for me to refer to the orders Annexure P1 passed by the Prescribed Authority in order to weigh as to what consideration prevail upon him in allowing the application of the petitioners under Section 10A(b) of the Punjab Security of Land Tenures Act read with Section 8(1) of the Haryana Ceiling on Land Holdings Act, 1972. The operative portion of the order Annexure P1 is hereby reproduced as follows :

``I have heard and read the arguments adduced by the counsel for the parties and have carefully perused the records. I am in agreement with the argument of the counsel for the applicants. The landlady had died on 6.1.1968. She on 30.4.1959 transferred her lands to the persons who were her heirs. 1967 PLJ 77, 1969 PLJ 350 and 1976 PLJ 480, according to the decisions taken therein, the applicants have become small landowners and their lands do not exceed than the permissible area. The total surplus land of the applicants have been allotted. After the death of the landlady the allotment of land is invalid and the land earlier allotted also becomes invalid. Now the landlady had died earlier to 22.12.1972 and the applicants have become small landowners. In this way the objection of the respondents also comes to an end and there is (sic) in Act for such exclusion, this order is not to be treated as review.

Therefore, I accept the application of the applicants and in this case I exclude total surplus land of Smt. Nimbo from the surplus pool under Section 10A(b) of the Punjab Security of Land Tenures Act, 1953 and Section 8(1) of the Haryana Ceiling on Land Holdings Act, 1972. The allotment of lands to the allottees also becomes invalid. I cancel those. These allottees be allotted some other lands under the Haryana Utilisation of Surplus and Other Areas Scheme''''.

The above order would show that so far as the collusive decree dated 30.4.1959 is concerned, it has to be ignored. Nevertheless the succession of Smt. Nimbo opened on 6.1.1968 and by that time the land which was declared surplus on 13.7.1960 had not been utilised in the light of the provisions of the Act and with the death of Smt. Nimbo, the petitioners stepped into the shoes of Smt. Nimbo. They became the small landowners and were entitled to plead that the land which was declared surplus vide orders dated 13.7.1960 does not remain surplus.

In the opinion of this Court, the fallacy in the orders Annexures P 2, P3 and P4 lies in assessing at what relevant point, the land has been utilised. The order Annexure P2 has been passed on 2.7.1979 by the learned Collector, Karnal who held ``once the allotment had been made and the possession thereof had been transferred, the area should obviously be deemed to have been utilised''''. The learned Collector, however, ignored the vital fact that the land has been allotted to the private responders on 16.9.1976 i.e. after the death of Smt. Nimbo and not during her life time. Once the process of utilisation had not been completed during the life time of Smt. Nimbo and by virtue of her death her succession opened, her legal heirs would have been entitled to apply to the authorities by claiming themselves to be small owners irrespective of the fact that surplus case of Smt. Nimbo has been decided as back as on 13.7.1960. This Court is in full agreement that the case in hand was not a case of inheritance because of the collusive decree but certainly became a case of inheritance with the death of Smt. Nimbo which took place on 6.1.1968. The fallacy against the law, which was committed by the learned Collector continued with the learned Commissioner and with learned Financial Commissioner. This Court is not in agreement with the findings of the learned Commissioner that the petitioners filed their application for exemption from the surplus land on 15.7.1977 i.e. after a lapse of 9 years from the date of the death of Smt. Nimbo, therefore, they cannot be given the benefit of claiming the exemption from the surplus case. Even the order of the learned Financial Commissioner, Annexure P4, dated 7.10.1980 had not taken note of the fact about the effect that the land had not been utilised during the life time of Smt. Nimbo prior to 6.1.1968 and that the process of allotment and delivery of possession started in the month of September, 1976 and by that time, the rights of present petitioners on the basis of natural succession had crept in and they had become the small landowners.

It has been held in Financial Commissioner Haryana and others v. Smt. Kela Devi and another, 1980 PLJ 121 that mere allotment of the surplus land does not amount to utilisation. The allotment is only initial stage in the process of utilisation of surplus area and does not complete that process. For completion of process of utilisation, it is necessary for the allottee to obtain a certificate of allotment, to take possession of the land within a prescribed period, and to execute a `Qabuliat'' or `Patta'' in respect of land and utilisation is completed only when possession of surplus area is taken by the allottee and other formalities completed. Mere order of allotment is defeasible if other conditions prescribed by law are not fulfilled.

It was further held in this very authority that the provisions of Section 10A(b) of the Punjab Security of Land Tenures Act save land comprised in surplus area acquired by heir by inheritance. Where heir succeeds by inheritance the surplus area, such succession affects the utilisation.

The citation relied upon by the learned counsel for the petitioners is helpful to me in deciding the present case because the process of utilisation was never completed during the life time of Smt. Nimbo. Had the process of utilisation completed, during the life time of Smt. Nimbo, the petitioners would have certainly no case but in the present case, the position has become otherwise. It is the case of the private respondents themselves that they deposited the first instalment of price of the land allotted to them and thereafter possession was delivered on 26.5.77. There is no merit in the arguments of private respondents that since the petition under Section 8 of the Haryana Ceiling on Land Holdings Act was filed on 15.7.1977 after 26.5.1977, therefore, the petitioners have no locus standi to challenge the impugned orders Annexures P2, P3 and P4. In this regard we have to see the rights of the petitioners as on the date of death of Smt. Nimbo. The impugned orders have been passed by placing reliance on 1977 PLJ 88 which authority of the Division Bench of this High Court has been overruled in 1980 PLJ 354 Smt. Ajit Kaur and others v. The Punjab State and others.

Resultantly, both the writ petitions are hereby allowed. The orders Annexures P2, P3 and P4 challenged in the writ petition No. 3792 of 1980 and operation of the impugned orders dated 14.3.1995 Annexure P3 of civil writ petition No. 4921 of 1995, are hereby quashed and it is further ordered that the petitioners will not be dispossessed from the land in question on the basis of orders Annexures P2, P3 and P4 subjectmatter of writ petition No. 3792 of 1980 and Annexure P3 of writ petition No. 4921 of 1995. There shall be no order as to costs.