Rattan Kumari vs State of Haryana and others

Jawahar Lal Gupta, J.

The petitioner, Rattan Kumari, has not only succeeded to the property of Thakur Jatinder Singh, but has also inherited litigation. The first round was in November 1961, when the surplus area case of Thakur Jatinder Singh was initially decided by the Collector. It had culminated in the filing of Civil Writ Petition No. 3213 of 1971, which was decided on December 17, 1976. Letters Patent Appeal No. 40 of 1977 filed by Amar Singh and others, and in which the present petitioner had been impleaded as a legal representative, was decided on August 11, 1982. This judgment is since reported as Amar Singh and others v. Thakur Jatinder Singh (Died) and others,1983 RLR 244 The present petition represents the second round of litigation.

To appreciate the controversy arising in the present case, the relevant facts may be briefly culled from the elaborate and lucid judgment of S.S. Sandhawalia, J. (as My Lord then was).

Thakur Jatinder Singh was a big landowner. On November 6, 1961, the Collector decided his surplus area case. This order was marginally modified on February 27, 1962 on an application for review. Thereafter, Thakur Jatinder Singh selected his permissible area. The consolidation of holdings took place in the village. The prescribed authority under Section 24A(2) of the Act separated the permissible area of the landowner out of the land allotted to him in consolidation proceedings. This was done vide orders dated July 25, 1962.

In the meantime, one Baru Ram, an oldtenant, preferred an appeal against the original declaration of surplus area on the ground "that he had purchased some land under section 18 of the Act from the petitioner and that this area shouldbe computed in his permissible area and shouldnot be allowed to form part of the surplus area of the landowner." The Commissioner remanded the case with the direction that a fresh declaration shouldbe made after proper scrutiny. However, the Collector, Surplus Area, decided the matter afresh without any notice to Thakur Jatinder Singh vide his order dated April 21, 1965. In pursuance to this order, the Collector Agrarian "in the proceedings for the utilisation of the surplus area allotted some of the permissible area reserved by the petitioner" to respondent Nos. 4 and 5. Thakur Jatinder Singh filed objections against this allotment on the ground that he had a right to select the permissible area allotted to him. These objections having been dismissed, Thakur Jatinder Singh filed an appeal before the Commissioner Ambala Division. The appeal was allowed vide order dated July 18, 1967 with the direction that the order of July 25, 1962 shouldbe implemented. In consequence of this order, the Collector Hissar passed an order dated August 23, 1967 directing the implementation of the order dated July 25, 1962. Respondent Nos. 4 and 5 filed an appeal against this order on the ground that they had not been heard. This claim was accepted by the Commissioner. Thakur Jatinder Singh challenged the order of the Commissioner but failed. The matter came up before the Collector, Hissar, who vide orders dated February 11, 1970 "attempted to override the earlier order of the Commissioner which he had obviously no jurisdiction to do and attempted to resurrect to ex parte order of the Collector dated 21st April, 1965, annexureB, which being obviously without jurisdiction couldnot adversely affect the petitioner and which had been further overridden by the order of the Commissioner. He, therefore, directed the Revenue authorities below to determine the area in compliance with the aforesaid observations". Aggrieved by this order, Thakur Jatinder Singh challenged it before the Commissioner and the Financial Commissioner. Having failed, he filed Civil Writ Petition No. 3213 of 1971 before the High Court.'' This writ petition, as noticed above, was allowed. It was inter alia held that the Collector wouldproceed with the matter and decide it in conformity with the order dated July 18, 1967 passed by the Commissioner Aggrieved by this judgment, the tenants (respondents now), Amar Singh etc., filed Letters Patent Appeal, which was dismissed. Jatinder Singh having died during the pendency of the case, the present petitioner, widow of Thakur Jatinder Singh, was impleaded as a party during the pendency of the Letters Patent Appeal.

After the dismissal of the Letters Patent Appeal, it appears that the petitioner was delivered the possession of the land measuring 104 kanals 12 marlas in November, 1982. It is averred that respondent Nos. 4 to 6 made an effort to interfere with the possession. The petitioner filed a suit in June, 1988, before the Civil Court at Fatehabad for permanent injunction for restraining the defendants from interfering with the possession of the petitioner. Meanwhile, the proceedings under the Punjab Security of Land Tenures Act, 1953 and the Haryana Ceiling on Land Holdings Act, 1972 were pending before the Collector, Agrarian. While the proceedings and the suit were pending, respondent Nos. 4 to 6 moved an application on May 26, 1988 before the Collector for restoration of possession of the land to them. A copy of this application is on record as Annexure P1. The Collector Agrarian took cognizance of this application and issued a notice dated June 10, 1988. It is averred that the petitioner is ordinarily a resident of village Mukangarh, tehsil and district Jhunjhunu (Rajasthan), but the address in the notice was given of village Bhirrana, tehsil Fatehabad, district Hisar. It has also been stated that a copy of the summon was shown to have been pasted on the outer door of the house of the petitioner at village Bhirrana on June 9, 1988. No attempt was made to effect personal service on the petitioner. No order was passed for substituted service. In spite of these facts, on June 10, 1988, the Collector Agrarian ordered that ex parte proceedings be taken against the petitioner. Soon thereafter, on June 13, 1988, the impugned order was passed by which the possession was ordered to be restored to respondents Nos. 4 to 6. On account of the petitioners having approached the Civil Court and the order for status quo having been passed in those proceedings, her possession was not disturbed. It is against the order of June 13, 1988, (Annexure P12), that the present petition has been filed.

Two separate written statements have been filed. A written statement has been filed on behalf of respondent Nos. 1 to 3 and another on behalf of respondent Nos. 4 to 6. In the written statement filed on behalf of the official respondents, the factual position with regard to the filing of the application by respondent Nos. 4 to 6 on May 25,1988, a copy of the summon having been pasted on the outer door of the house on June 9, 1988 and the ex parte proceedings having been ordered on June 10, 1988, culminating in the final order of June 13, 1988, has not been disputed. It has, however, been mentioned that notice was also sent to the petitioner on May 28, 1988 under postal certificate''. On merits, the claim made by the petitioner regarding the validity of the order has been controverted.

I have heard Mr. Sanjay Majithia, learned counsel on behalf of the petitioner and Mr. Ram Rang for respondent Nos. 4 to 6. Nobody has appeared on behalf of respondent Nos. 1 to 3. Mr. Majithia has raised a twofoldcontention. He has submitted that the Collector had not given him due and reasonable opportunity. Secondly, it has been submitted that the petitioner couldnot be deprived of her possession till the matter had been decided in accordance with the judgment of this Court. On the I other hand, Mr. Ram Rang has contended that the petitioner had got possession of the land without any final decision of the matter and as such the restoration of possession was absolutely legal and valid. He has also submitted that the petitioner had been afforded a due and a reasonable opportunity in the matter.

A detailed examination of the case shows that Thakur Jatinder Singh had selected the permissible area which was duly accepted and implemented vide order dated July 25, 1962. It is further evident that when this order was sought to be disturbed by the Collector Agrarian vide his order dated May 9,1967, Thakur Jatinder Singh filed an appeal, which was accepted by the Commissioner Ambala Division vide orders dated July 18, 1967. This order of the Commissioner was sustained by this Court and the Collector was directed to proceed with the matter "in the light of the observations made above and in conformity with the order, annexureC, of the Commission dated 18th July, 1967. Consequently, the order dated July 18, 1967 passed by the Commissioner had to be implemented and all subsequent orders had been set aside by this Court in Civil Writ Petition No. 3213 of 1971. As a result proceedings for utilisation of land and the action of the revenue authorities in handing over possession to respondent Nos. 4 and 5 stood annulled. After perusing the record, I am clearly of the view that on the acceptance of the appeal filed by Thakur Jatinder Singh and on the decision of Civil Writ Petition No. 3213 of 1971, Jaitinder Singh (now the petitioner) was entitled to the restoration of possession which had been wrongly given to respondent Nos. 4 and 5. This is how even the revenue authorities had understood the position to be. In fact copies of the Raznamcha report produced as Annexures P4 to P7 show that the possession was restored to the petitioner after the decision of the case by the High Court. In this situation, the petitioner''s possession couldnot have been disturbed except after the final decision of the matter. Admittedly, that has not happened. The case is still stated to be pending. The final decision in accordance with the directions of this Court and the order of the commissioner passed on July 18, 1967 has yet not been taken. In such a situation, the application moved by respondent Nos. 4 to 6 (Annexure P10) was wholly incompetent. The order at Annexure P12 was also totally uncalled for. The prescribed authority failed to examine the relevant record and did not take into consideration the findings as well as the directions given by this Court. The order at Annexure P12 is consequently vitiated.

Equally unfair was the procedure adopted by the authority. Even if it is assumed for the sake of argument that the application at Annexure P10 was competent, the petitioner was entitled to the grant of a due and a reasonable opportunity. The application appears to have been made by the respondents on May 26, 1988. The Collector Surplus Area directed the issue of notice for June 6, 1988. The order, copy of which has been produced on record as Annexure P11, does not bear any date. On June 6, 1988. It was observed that "summon has not been received after service and summon through affixation for 10th June, 1988 be issued." On June 10, 1988, it was observed that "summon after affixation has been received. The applicant is present but the second party is not present. Proceedings are taken ex parte and Patwari S.A. is directed to submit his report and be presented before me on 13th June, 1988." On June 13, 1988, the impugned order was passed. These proceedings appear at Annexure P 11 with the writ petition. On a perusal of this order, it is clear that the Collector did not give a due and a reasonable opportunity to the petitioner. In the written statement it has been averred that notice had been sent under certificate of posting on May 28, 1988. The proceedings at Annexure P11 do not support this fact. The order only shows that directions for appearance on June 6 1988 had been issued. The order of June 6, 1988 shows that a summon had been sent. It had not been received back after service. There is nothing on record to show that the petitioner had evaded the receipt of the summon. It is not even clear that it had ever been presented to the petitioner. Be that as it may, orders for service through affixation of notice were passed without any basis whatsoever. In the normal circumstances, service by affixation is resorted to only when it is clear that the person concerned is evading service. After the perusal of the record, I am clearly of the view that the notice was neither adequate nor was it properly served on the petitioner. The petitioner did not get a due and a reasonable opportunity to appear. The proceedings were totally violative of the principles of natural justice.

Accordingly, the writ petition is allowed. The order at Annexure P12 is set aside. In the circumstances of the case, the parties are left to bear their own costs.