Mahan Singh and another vs Haryana State and others

B.S. Dhillon, J.—Civil Writ Petitions Nos. 1583 of 1974, 3895, 4242, 4254. 4204, 4290, 4348, 4349, 4350, 4372 and 4375 of 1976 are being disposed of by this common judgment as the facts and the question of law involved in the said writ petitions are common.

The brief facts, giving rise to writ petition No. 1583 of 1974 may, thus be stated. Smt. Parbati owned landed property in Pakistan. She had two daughters namely Nidh Kaur and Sidh Kaur. It is claimed that she gifted away her property in favour of her two daughters vide gift deed in 1932. This gift deed was allegedly challenged by Gian Singh and another, collaterals of the husband of Smt. Parbati, on the ground that she had no authority to dispose of the property by gift in favour of her daughters. This dispute went upto the Lahore High Court and was settled in a judgment which is reported in Mt. Nidh Kaur and another v. Gian Singh and another AIR 1938 Lah. 55. In spite of the alleged gift deed in favour of her daughters, it is not disputed that after the partition of the country the land was allotted in the name of bun. Parbati in Punjab. Smt. Parbati, on her migration to this part of the country, got the possession of the land and continued to be its owner till 24th June, 1966, where she died. On 14th March, 1961, the Collector exercising the powers under the provisions of the Punjab Security of Land Tenures Act, 1953, (hereinafter called the Act), declared a considerable area owned by Smt. Parbati as surplus. This order was challenged by her before the Commissioners. The Commissioner vide his order dated 13th November, 1961, remanded the case. Copy of his order is Annexure P. 1 attached with the writ petition. During her life time Smt. Parbati is alleged to have made a will bequeathing her property in favour of Mahan Singh, her son-in-law, i.e. husband of Sidh Kaur and Pritpal Singh her grandson, i.e. son of Mahan Singh. On the death of Smt. Parbati mutation was sanctioned in favour of legatees on 4th of April, 1967 a copy of the mutation is Annexure P. 2 attached with the petition. It may be pointed out here that Nidh Kaur died before partition of the country and one Balbir Singh claimed himself to be adopted son of Sidh Kaur but the Collector, Agranan, Ambala, vide his judgment dated 27th November, 1969, copy Annexure P. 3, came to the conclusion that since the property was bequeathed by the deceased in favour of Mahan Singh and Pritpal Singh and since the property had not devolved by inheritance, therefore, under the provisions of section 10A of the Act, the legatees could not get the benefit of this section and thus he treating Sidh Kaur to be only heir and holding that Balbir Singh is not proved to be the adopted son of Nidh Kaur, held that the property had to be assessed as one unit. The Collector also levied a penalty whereby 10 standard acres land was declared surplus by way of penalty. The copy of order of the Collector is Annexure P 3. On appeal the Commissioner vide his order dated March 3, 1970, copy of which is Annexure P. 5, set aside the penalty levied by the Collector and remanded the case to the Collector for determining the surplus area. The orders of the Collector and the Commissioner were assailed in revision before the learned Financial Commissioner. The learned Financial Commissioner, vide his order copy of which is Annexure P. 7, held that since Mahan Singh and Pritpal Singh got the property by way of will and, therefore, they were not entitled to the benefit of section 10-A of the Act The learned Financial Commissioner accepted the contention of the petitioners that they should he given an opportunity before the Collector to produce copy of the judgment of the High Court to show that Balbir Singh was adopted son of Smt. Nidh Kaur. The above mentioned orders of the Commissioner and the learned Financial Commissioner are sought to be impugned in civil writ petition No. 1583 of 1974.

As regards civil writ petitions Nos. 3895, 4242, 4254, 4264, 4290, 4348, 4349, 4350, 4372 and 4375 of 1976 it is contended by Shri S.L. Ahluwalia that the petitioners in these petitions are either vendees of the land from Smt. Parbati or they are the purchasers of the land from the vendees of Smt. Parbati. All the petitioners in this batch of the writ petitions claimed that in view of the policy decision of the Haryana Government as contained in Notification No. 5726-AR-(LA)-76/28819 dated 15th September, 1976, they are entitled to the benefit of the said policy decision as they being transferees from Smt. Parbati and before the April, 1966 they being the small landowners falling within the policy decision referred to above and thus they are entitled to continue to own and possess the land which they purchased. In all here writ petitions no orders has been passed by any authority below against the interest of the petitioners. It is, however, claimed by the petitioners that since they are being dispossessed, therefore, they had approached this Court.

Mr. Sachdeva, learned counsel for Mahan Singh and Pritpal Singh, in C. W. P. No. 1583 of 1974, has raised three contentions in support to the petition, which are as follows:--

(i) That even though the property devolved on Mahan Singh, and Pritpal Singh by way of will still this should be treated as inheritance and the benefit of section 10 A(b) of the Punjab Security of Land Tenures Act, 1953 should be made available to the petitioners.

(ii) That the learned Financial Commissioner has gone wrong in limiting the right of the petitioners to prove the adoption by observing that the petitioners will be able to give proof only by way of judgments of the High Court which might have been passed earthier in this regard.

(iii) That since the surplus area is yet to the declared, therefore the case shall have now to be decided by the Collector in accordance with the provisions of the Haryana Ceiling on Land Holdings Act 1972 (amended upto date)

The third contention may be dealt with first. Provisions of Section 33(2)(ii) and (3) of the Haryana Ceiling on Land Holdings Act, 1972 are relevant in this regard, which are reproduced below:--

33 (2) (ii) The proceedings for the determination of the surplus area pending immediately before the commencement of this Act, under the provisions of either of the said enactments, which shall be continued and disposed of as if this Act had not been passed, and the surplus area so determined shall vest in, and be utilized by the State Government in accordance with the provisions of this act;

(3) Save as provided in sub-section (2), no authority shall pass an order in any proceedings whether instituted before or after the commencement of this Act which is inconsistent with the provisions of this Act.

The bare reading of this section will show that the proceedings for the determination of surplus area pending before the commencement of this Act shall have to be determined in accord dance with the provisions of the Act under which the same were being determined and the provisions of the Haryana Ceiling on Land Holdings Act will have no application Mr. Sachdeva relies on a Single Bench decision in case Jagar Singh and others v. Secretary to Government Punjab Revenue Department 1976 R.L.R. 40 in this regard. The said decision has absolutely no application to the facts of the present case. The said decision is based on the interpretation of the provisions of section 11 (5) and (7) of the Punjab Land Reforms Act, 1972 and not on the basis of the provisions of the Haryana Ceiling on Land Holdings Act, 1972, referred to above. The provisions of the Haryana Calling on Land Holdings Act referred to above are unambiguous and quite clear. Merely because Smt. Parbati died the provisions of the Haryana Ceiling on Land Holdings Act will not be applicable. In view of the special provisions in the Act referred to above, this contention is without any merit.

As regards the first contention the same is also without any merit. The short question to be considered is whether the petitioners are entitled to the benefit of the provisions of section 10 A (b) of the Act or not. The said benefit can only be made available if the land is acquired by the State Government under any law for the time being in force or by an heir by inheritance Disposition of property by will in no sense can be termed as inheritance. Thus Mahan Singh and Pritpal Singh who became owners of the property in view of the will made by Smt. Parbati cannot be termed as heirs by inheritance. That being the case no fault can be found with the finding of the Collector and the learned Financial Commissioner, in this regard.

As regards the second contention that the petitioners should be given full opportunity to prove that Balbir Singh is adopted son of Nidh Kaur, Mr. Sachdeva relics on a Bench decision of this Court in case Babu Ram and others v. State of Punjab 1966 C.L.T. 38, and contends that there could not be limited remand as has been ordered by the learned Financial Commissioner. The authority cited by the learned counsel is a decision on its own facts and will not be applicable to the facts of the present case. It has been clearly observed by the learned Financial Commissioner in the impugned order that the petitioners before him wanted to prove the adoption of Balbir Singh by producing judgments of the High Court alone. There is no averment made in the petition that this finding of the learned Financial Commissioner has been made without any basis I have gone through the grounds of revision before the learned Financial Commissioner and I do not find that any grievance has been made out that the petitioners have not been allowed to lead any evidence to prove that Balbir Singh was adopted son of Nidh Kaur. In view of this, no fault can be found with the order of the learned Financial Commissioner. However, it goes without saying that if the will made by Smt, Parbati is valid in that case even if Balbir Singh is held to be the adopted son of Smt. Nidh Kaur, the question of his succeeding as an heir will not arise as Smt. Parbati had made a will regarding the property in favour of Mahan Singh and Pritpal Singh.

For the reasons recorded above, there is no merit in civil writ petition No. 15 83 of 1974 and the same is hereby dismissed. However, there will be no order as to costs

As regards civil writ petition Nos. 3895, 4242, 4254, 4264, 4290, 4348, 4349, 4350. 4372 and 4375 of 1976 it is not disputed by Mr. Mohunta, learned Advocate General, Haryana, appearing on behalf of the respondents Nos. 1 and 2 that since the Collector has to determine the surplus area afresh, therefore, these petitioner will be entitled to put forth their claims before the Collector and if the petitioners are covered by the policy decision of the State Government referred to in the earlier part of this judgment, they will be given relief by the Collector. It is, however understood that the Collector will pass orders after hearing the petitioners who are directed to put in their claim petition before the Collector. The petitioners who lay their claim on the basis of the Policy decision shall put in their claim before the Collector within six weeks from today and the Collector shall hear them before deposing of their claims. The parties in civil writ petitions Nos. 1583 of 1974, 3895, 4242, 4254, 4264, 4290, 4348, 4349, 4350, 4373 and 4372 of 1976 have been directed to appear before the Collector on 26th June, 1978. There will be no order as to costs.