Kali Ram vs State of Haryana

D.S. Tewatia, J. (Oral)

Kali Ram petitioner No. 1 owned holdings comprised of 51.06 standard acres. The Collector, Karnal, on 21.7.1960 after making an allowance for the mortgaged area, declared 18.55 standard acres as surplus area. Petitioners No. 2 to 5 sons of Kali Ram on 21.6.1960 had obtained a civil decree for the partition of the land with his father. Kali Ram when appeared before Collector, Karnal, had apprised the Collector of that fact as is apparent from his order dated 21.7.1960. The Collector despite the said information did not issue any notice to petitioners 2 to 5 before passing the impugned order. The petitioners 2 to 5 along with his father Kali Ram have impugned the order dated 21.7.1960, inter alia, on the ground that notice to the petitioners 2 to 5 was mandatory as held by the Full Bench of this Court reported as Harnek Singh v. State of Punjab, 1972 P.L.R. 127, and therefore, qua petitioners No. 2 to 5 the said order was inoperative and that they could not be deprived of their holdings which they have secured as a result of the decree.

Admittedly, before passing of the impugned order dated 21.7.1960, Collector Karnal had issued no notice to petitioners 2 to 5.

Mr Gopi Chand appearing for the respondentstate has, however, canvassed that the petition is delayed as the order affecting the petitioners was passed on 21.7.1960 but they have approached this Court only in 1983 and he sought support for the same from a single Bench decision of this Court reported as Rajinder Singh and Ors. v. The Financial Commissioner (Revenue) Punjab and Ors., 1979 L.L.R. 316.

The Full Bench decision of this Court in Harnek Singh''s case (supra) deems a notice to interested persons affected by that order as mandatory. The petitioners in that case were transferees from the original landowners. In the present case, as already stated, the petitioners 2 to 5 had secured their right with the intervention of the Civil Court and that fact had been brought to the notice of the Collector before he passed the impugned order. The order had been passed without complying with the mandatory requirement of notice and was palpably illegal being clearly violative of principles of natural justice and the statutory provision of Rule 6(3) of Punjab Security of Land Tenures Rules.

As to the objection raised by Mr. Gopi Chand regarding delay, it may be observed that it was not till 19.7.1983 that the authorities moved to dispossess the petitioners. Immediately on the happening of that event, the petitioners moved this Court. What is more, that objection had not been raised in the written statement. It is for the first time at the time of arguments while finally disposing of the writ petition that this oral objection has been raised. Be that as it may, we do not think there is any merit in the objection.

Mr Gopi Chand, learned counsel for the respondentState, has pressed two more preliminary objections : (i) that the petitioner No. 1 had filed a writ petition in the Supreme Court of India which was dismissed and this fact has been concealed from this Court ; and (ii) that the petitioner ought to have exhausted his remedy under the statute.

So far as the first objection is concerned, it may be observed that only petitioner No. 1 Kali Ram had filed the writ petition wherein he had primarily challenged the vires of Haryana Ceiling on Land Holdings Act, 1972. whereas the impugned order has been passed under the Punjab Security of Land Tenures Act and the Supreme Court disposed of the writ petition by upholding the vires of the Act.

As far as the second preliminary objection is concerned, it may be observed that the Division Bench admitted the petition after considering the objections that had been raised in the written statement and at the time of final hearing we do not think it right to throw away the petition on the ground of nonavailing of the alternative remedy.

For the reasons aforementioned, we set aside the impugned order Annexure P.1 dated 21.7.1960 and allow the writ petition and direct the Collector, Kurukshetra to redecide the surplus area case of petitioner No. 1 in accordance with law. The petitioner No. 1 as also petitioner Nos. 2 to 5 shall be entitled to raise all pleas available to them in law at the time of hearing of the case. Order Annexure P.4 passed in the wake of Annexure P.1 for securing possession from the petitioners is also quashed.

No costs.