Hari Chand & others vs State of Haryana & others

Ranjit Singh, J.—The petitioners pray for quashing of order dated 4.6.1960 passed by Collector Agrarian, Kaithal and order dated

9.8.1962 passed by the Collector Agrarian declaring 18th Std. Acres 54 units of land surplus at hands of the father of the petitioners. Plea is that

these orders are illegal, unconstitutional and void being violative of principles of natural justice.

Father of petitioner No. 1 and grandfather of petitioners No. 2, 3 and 4, namely, Desa Singh son of Nanda was resident of Rohera, part of

Tehsil Kaithal. He owned 48 Std. acre and 54 units of land as on 15.4.1953. On 4.6.1960, Collector Agrarian, Kaithal (respondent No. 2)

declared 18 Std. acres and 54 units equivalent to 20 ordinary acres of land as surplus in the hands of said Desa. Copy of this order is at Annexure

P1.

Consolidation took place in the year 196162. It is alleged that respondent No. 2, vide order dated 6.7.1962, included khasra numbers of one

Shri Nanak son of Harbhaj, whose surplus case was also being decided along with that of said Desa to the extent of 22 Std. acres 25 units in the

name of Desa. Petitioners would claim that this was done without any notice to Desa and, thus, more area was declared surplus as was through

order dated 4.6.1960. The petitioners filed a civil suit in the year 1969 against Desa seeking declaration that they are owners of land in dispute

measuring 419 kanals 16 marlas. Desa had also executed a registered Will in favour of petitioner Nos.2, 3 and 4 in respect of 170 kanals and 6

marlas of land. After the death of Desa on 12.6.1977, the mutation was sanctioned in favour of petitioners No. 2, 3 and 4 on 23.9.1978.

Subsequently, respondent No. 2 apparently rectified the mistake declaring 22 Std. acres land surplus at the hands of Desa instead of 18 Std. acres

on 1.9.1979. Accordingly, new khasra numbers of the land which was surplus at the hands of Desa, were so mentioned in the order.

The counsel for the petitioners would contend that surplus case of Shri Desa has, thus, been decided for the first time on 1.9.1979 and this was

also done without any notice to petitioner Nos.2, 3 and 4. Plea is that the petitioners have inherited the land of Desa before it was declared surplus

on 1.9.1979 and no utilisation had taken place. Accordingly, it is pleaded that the petitioners would be entitled to the benefit of Section 10A of the

Punjab Security of Land Tenures Act, 1953. No area could be declared surplus in the hands of Desa son of Nanda on 1.9.1979 as he was dead

and inheritance in favour of the petitioners would open. The petitioners had accordingly impugned the order dated 1.9.1979 being a nullity as it

was passed without any notice to the petitioners.

Reply in this case has been filed. RespondentState has raised a preliminary objection saying that the writ petition is liable to be dismissed on the

ground of delay and laches. It is pointed out that the order dated 4.6.1960 has now been challenged as subsequent order dated 1.9.1979 was only

aimed at correcting the clerical mistake and is not a fresh order. It is accordingly stated that the petitioners have not explained the delay in filing the

writ petition. It is also pleaded that the land, which was declared surplus, has already been allotted to seven tenants on 30.7.1980 and possession

thereof has been handed over to them. They, however, have not been impleaded as party in this writ petition. The other contentions on merits are

also denied and it is pleaded that the writ petition deserves to be dismissed.

The counsel for the petitioners has raised threefold submission before me. He would first contend that FormF was not served at the time when

the land was declared surplus in the hands of Desa and as such this order declaring the land surplus cannot be sustained. The counsel would then

contend that the order dated 1.9.1979 could not have been made by Collector Agrarian, Jind as the power of review, revision or appeal would lie

before Financial Commissioner, Revenue in terms of Section 24 of the Punjab Security of Land Tenures Act, which provides that provision in

regard to appeal, review or order would be the same as provided in Sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1887. The

counsel would further contend that order, Annexure P5, having been passed on 1.9.1979 being a fresh one would make the petitioners entitled to

the benefit of Section 10B of the Punjab Security of Land Tenures Act, 1953.

The first submission of the petitioners is that no FormF was served upon Desa son of Nanda vide Annexure P1, when 18 Std. acres and 54

units were declared surplus. In response, the State counsel would point out that Desa was alive till 12.6.1977, but he never raised any objection in

this regard during his life time. Whether he was served FormF along with orders Annexures P1 and P2 would be a fact which would be in the

knowledge of Desa and the petitioners are in no position to say that FromF was not served to Desa along with the orders. This averment as made

in para 11 of the petition has been denied by the State being wrong and incorrect. Otherwise also, there is no material placed on record to show

that FormF was not served on Desa. The State counsel is justified in his submission that it would be Desa, who can say whether the FormF was

served on him or not and the petitioners would not have any knowledge in this regard, who are the son and grandsons of Desa. In my view, the

petitioners have not been able to substantiate their plea that FormF was not served along with the impugned orders. Whether FormF was served

to Desa or not, would be a question of fact required to be proved, which the petitioners have not been able to do and otherwise cannot be

permitted to do so before the writ court.

I am equally not impressed with the submissions made by the counsel for the petitioners that order, Annexure P5, dated 1.9.1979 would be a

fresh order and also that this will not be within the jurisdiction of Collector Agrarian. The entire basis of this submission as made by the counsel for

the petitioners apparently is misconceived. According to the counsel for the petitioners, order Annexure P1 has been made either as a revision,

review or appeal, which is factually not so. The question of jurisdiction of the Collector would arise only in case order, Annexure P5, is taken to be

a fresh order declaring the land of Desa surplus. In fact, 18 Std. acre of land in the hands of Desa was declared surplus on 4.6.1960. However,

due to some inadvertent mistake, the numbers of one Nanak, whose case was also being decided, got wrongly tagged with the case of Desa and

that of the petitioners with that of Nanak. This inadvertent mistake, when came to the notice, was corrected by passing order, Annexure P5. The

petitioners are unnecessarily trying to make a mountain out of molehill by terming this order to be in review or revision. Indeed, it is not so. In fact,

this was only to correct the clerical mistake that had crept into the order passed in the year 1960. It is noticed by the Collector that on examination

of the documents, he has found that by mistake a list of khasra numbers in the ownership of Nanak was tagged on the file of Desa and that of the

area owned by Desa was attached with the file of Nanak. The contention raised on behalf of Desa that no notice was served on him was rightly

considered to be having no effect as indeed he was served a notice, but the documents were inadvertently tagged wrongly. Noticing that this was

only a clerical mistake and it can be corrected under Section 7 of the Haryana Ceiling on Land Holdings Act, at any time, the area at the hands of

Desa was reduced by 3 Std. acres and 71 units. Under these circumstances, this cannot be termed as a fresh order as is being made out by the

counsel for the petitioners. Learned State counsel is again justified in his submission by pointing out to the provisions of Section 18 and 19 of

Haryana Ceiling on Land Holdings Act, 1972, which makes a separate provision for appeal and those where only clerical mistakes are to be

corrected. The counsel is, thus, justified in submitting that the order, Anneuxre P1 was only to correct the clerical mistake and as such cannot be

teated as an order in review or revision for which the Collector Agrarian would lack in jurisdiction as pleaded. Once, it is held that order,

Annexure P1 is not a fresh order, but only a correction of a clerical mistake of an order passed earlier, the submission of the counsel for the

petitioners that it would open inheritance after the death of Desa or that this order is passed against dead person cannot be accepted. His plea for

availing the benefit of Section 10B of the Punjab Security of Land Tenures Act, accordingly would also not be available to him.

In view of the above, I find no merit in the petition and accordingly would dismiss the same.