Sakhir Chand (Died) and others vs Teju Ram and others

D.V. Sehgal, J.

This judgment will dispose of CWPs. 2720 to 2725 and 1512 of 1979 as the legality and validity of one and the same order dated 13th February, 1979 passed by the Financial Commissioner, Haryana, have been challenged in these writ petitions.

The facts in brief are that Prabh Dayal, father of petitioners Nos. 1 and 7 and grand father of petitioners Nos. 2 to 6 (in CWP No. 2720 of 1979) was the predecessorininterest of the petitioners. He was a big landlord holding 84. S As 141/4 units of land in village Nagpur, tehsil Fatehabad, district Hissar. He transferred 6/7th share of the land by way of gift in favour of his son Sakhi Chand and five grandsons, i.e. petitioners Nos. 1 to 6 in equal shares in the year 1959. He died on 12th October, 1965 and his remaining estate, i.e. 1/7th share in the holding was inherited in equal shares by his son Sakhir Chand petitioner No. 1 and his daughter Harnami Bai petitioner No. 7. Petitioner No. 1 thus acquired by way of gift and inheritance 3/14th share of the original holding of the deceased while Haryana Bai inherited 1/14th share of his estate. Petitioner No. 1 was an allottee of 14 S.As unit of land. Thus his total holding after the death of his father came to 32.48 S.As. i.e. 104.79 ordinary acres. He filed his selection for 30 S As in the Court of the Collector Surplus Area, Fatehabad, who allowed him permissible area of 30 S As. The balance 2.48 S. As. was declared surplus Petitioner No. 7 similarly filed her selection of the permissible area before the Collector and all area inherited by her from her father was declared to be her permissible area. On suo motu proceedings the Commissioner recommended to the Financial Commissioner for fresh decision of her surplus area case, which recommendation was accepted by the Financial Commissioner on 3rd May, 1976 and her case of surplus area was pending before the Collector Surplus Area, Fatehabad, at the time of filing of these petitions.

Another undisputed fact on the record is that long before Prabh Dayal gifted away 6/7th share of his holdings to petitioners No. 1 to 6 or succession to his estate opened on his death, he had reserved his permissible area out of his total holdings in the year 1953. The Collector Surplus Area accepted his reservation and declared the remaining area with him as surplus on 24th September, 1962. Teju Ram respondent No. 1 in CWP. No. 2720 of 1979, Hari Krishan respondent No. 1 in CPW No. 2721 of 1979, Sirya respondent No. 1 in CPW No. 2722 of 1979, Ram Chand respondent No. 1 in CPW No. 2723 of 1979, Jagar respondent No. 1 CWP No. 2724 of 1979, Huna respondent No. 1 in CWP No. 2725 of 1979 and Askee respondent No. 1 in CWP No. 1512 of 1979 claiming all themselves to be the tenants on different parcels which were original owned by Prabh Dayal and which were given as gifts or came by inheritance to the petitioners, besides the claim of some of them of being tenants under petitioner No. 1, made applications under section 18 of the Punjab Security of Land Tenures Act, 1953 (hereinafter called the Act) for purchase of the land under their tenancy. The proceedings in these applications ultimately culminated in the impugned order Annexure P.1 passed by the Financial Commissioner, Haryana, respondent No. 5 on 13th February, 1971 whereby all the legal and factual objections raised by the petitioners against allowing the purchase applications of the aforesaid tenants were rejected. The contention of the petitioners to the effect that the purchase applications of the said tenants could not be finally decided unless the surplus area case of petitioner No. 7 had been finalised by the Collector Surplus Area, Fatehabad, prevailed and it was held vide order Annexure P. 1 that it was not possible to give relief to the tenants at the given stage. It was directed that as and when surplus area case of petitioner No. 7 was decided and the decision warranted giving of any relief in the purchase applications such relief would be given by the Assistant Collector First Grade, Fatehabad, to whom all the cases were remanded for the purpose. The petitioners being aggrieved by the order Annexure P. 1 filed the present writ petitions in this Court praying for quashing the aforesaid order by the issuance or a writ of certiorari.

Having considered the contentions raised in the petitions as also the written statements filed by respondent No. 1 in each case and after closely scrutinising the impugned order, I am of the view that these petitions must succeed to the extent mentioned below. The petitioners had specifically raised a plea before respondent No. 5 that the applications of the tenants for purchase of land which falls within the permissible area of Prabhu Dayal deceased are not maintainable. This contention has been brushed aside by respondent No. 5 on the ground that since there was no specific finding recorded by the Revenue authorities below as to what part of the land, the purchase of which had been claimed by the tenants under section 18 of the Act, fell within the permissible area Prabh Dayal no relief on that score could be afforded to the petitioners. I find that this approach is not in accordance with the provisions of the Act. A perusal of section 18 (1) of the Act makes it clear that a tenant of a landowner other than a small landowner is entitled to purchase from the landowner the land so held by him but not included in the reserved area of the landowner. Where the land sought to be purchased under this provision is included in the reserved area of the landowner, the Assistant Collector of First Grade before whom application for purchase lies under subsection (2) of section 18 has no jurisdiction to allow purchase of the same. The plea raised by the petitioners, therefore, involved a jurisdictional question which was required to be gone into and decided by respondent No. 5. It may also be further noted there that the fact that Prabh Dayal gited away 6/7th share of his holding to petitioners Nos. 1 to 5 or on his death 1/7th share of his estate was succeeded to by petitioners Nos. 1 to 7. Such transfer by gift or succession by inheritance as regards the reserved area of Prabh Dayal is valid in law and would not be affected by the provisions of sections 6 and 16 of the Act. The position of law was made clear by a Division Bench judgment of this Court in Madho Dass and another v. Midha Singh and another, 1972 R.L.R. 87, and it was categorically held that if a landowner is a big landowner any transfer of his permissible area would not be hit by the aforesaid provisions.

Another plea which was raised by the petitioners before respondent No. 5 was that while calculating the purchase price of the land for which purchase applications had been made under section 18 of the Act by respondent No. 1, mutations Nos. 1562, 1563 and 1576 had not been taken into account, although these mutations were based on registered transactions. The result was that purchase price has been fixed at a rate much lower than that prevailing in the area. Respondent No. 5 did not agree with this contention by holding that these mutations had been rejected by the Revenue authorities and could not be taken into reckoning for the purpose of calculation of purchase price. It has been contended by the petitioners that though the transactions on which these mutations were based were genuine and reflected registered sale deeds, these were not sanctioned because the consolidation proceedings were in progress. Subsequently, these mutations had been sanctioned. Be that as it may, the view taken by respondent No. 5 is contrary to law. According to section 18 (2) of the Act, the valuation of the land has to be taken on the basis of the average of the prices obtaining for similar lands in the locality during ten years immediately proceeding the date on which the application is made. It is not permissible to the Assistant Collector or the Collector to confine the determination of prose to the sanctioned mutations only. The transactions with regard to sale or purchase of similar land in the locality have to be taken into consideration particularly when such other transactions have taken place by registered saledeeds. I find support for this view from Balwant Rai and another v. Jagmal and others, 1969 R.L.R. 540.

Consequently, I partly allow these petitions and quash partly the order Annexure P. 1 to the extent respondent No. 5 rejected the petitioners'' pleas that part of the land, purchase of which is claimed by the tenants, which fell within the permissible area of Prabh Dayal and could not be purchased by them under section 18 of the Act and rejected their further plea that mutations Nos. 1562, 1563 and 1576 which represented registered transactions had been wrongly excluded while calculating the purchase price of the land sought to be purchased by the tenants; and I direct the Assistant Collector, Fatehabad, to take into account both these factors while finally deciding the applications for purchase made by the tenants under section 18 of the Act. There shall, however, be no order as to costs.