Tek Ram vs State of Haryana

V.K. Bali, J.—PetitionerTek Ram seeks a writ in the nature of Certiorari so as to quash order Annexure P4 dated 20.5.1980 passed by Financial Commissioner, Haryana vide which permission sought by the Collector so as to review the orders of his predecessors dated 31.7.1959 in regard to declaration of his surplus area was declined. The surplus area case of the petitioner was decided by Collector Sonepat on 31.7.1959 when after permitting 30 standard acres as his permissible area, land measuring 681/4 standard acres as declared surplus. The petitionerlandowner filed an application before the Collector Agrarian on 12.12.1978 wherein he claimed exemption of land declared surplus on various grounds. Besides other grounds, he also pointed out that 11 Kanals 17 Marlas of land was under a Dholidar whereas 16 Kanals 14 Marlas of land was Banjar Qadim which could not be treated as land for determining the surplus area. He also claimed exemption on account of some land of his being under an orchard. The Collector Sonepat vide his reference dated 12.3.1980 while agreeing with the petitioner on some points recommended that a total of 1 standard acre 43/4 units of his land should be excluded from the surplus pool. It requires to be mentioned that under the Act, the Collector so as to review his orders or that of his predecessor has necessarily to seek permission of the Financial Commissioner. The permission was declined vide order dated 20.5.1980. It is this order which has been challenged in the Writ Petition as indicated above. The case of the petitioner is that the recommendation before the Financial Commissioner was not for revising the order dated 31.7.1959 but was of permission to be accorded to the Collector to review the order of his predecessor. Therefore, there was no justification in saying that it was not expedient to interfere in exercise of the powers under section 84(4) of the Punjab Tenancy Act inasmuch as section applicable for permission to review is 82 of the Punjab Tenancy Act. It is also the case of the petitioner that in this case statement in From ''F'' as is required to be served upon the landowner or the tenant as the case may be under subrule (6) of Rule 6 of the Punjab Security of Land Tenures Rules, 1956 was not served upon the petitioner and that being so, the petitioner was well within his rights to seek for review even though the application for the desired relief was filed after 30 years from the date when the order declaring the land of the petitioner as surplus was passed by the Collector. There are other points also raised in the petition but no reference is required to be made to the same as the matter has been dealt with and disposed of by the Financial Commissioner exclusively on delay and laches.

This petition has been contested and in the written statement filed on behalf of respondents No. 1 to 4, it has been averred that the petitioner was himself present on 31.7.1959 when his surplus case was declared under the Punjab Security of Land Tenures Act, 1953 and that being the position, the petitioner cannot claim exemption from limitation on the ground that Form ''F'' was not served upon him. It is further averred that according to Form D attached with the original file, the petitioner was holding 36 standard acres 81/4 units area on 15.4.1953 and after allowing him 30 standard acres as his permissible area, the remaining 6 standard acres 81/4 units was declared as surplus by the Collector Agrarian on 31.7.1959. As per Explanation given in Section 2(2) of the Punjab Security of Land Tenures Act, in computing the area held by any particular landowner, the entire land owned by him in the State as entered in the record of rights is to be taken into account and therefore, computation of holdings of the petitioner as on 15.4.1953 was legal and based on facts. In so far as the service of From ''F'' on the petitioner is concerned, the case of the respondents is that from the file, it was clear that Form F was duly prepared and copy whereof was endorsed to the petitioner. Though the endorsement does not carry any date but it must have been endorsed before 19.2.1963 because on the same date the file was consigned to the record. It is also pleaded that the possession of surplus land was taken by the Circle Revenue Officer on 10.4.1967 under Section 19C of the Punjab Act 1953 read with Rule20(B)(1) of Rules 1956 in the presence of the petitioner. The surplus land was also allotted under the Haryana Utilisation of Surplus and Others Areas Scheme 1976. The surplus land declared under the Punjab Act 1953 stands vested in the State Government under Section 12(3) of the Haryana Ceiling Act, 1972 with effect from the appointed day i.e. 24.1.1971.

Mr. Chopra, the learned counsel appearing for the petitioner has basically argued only one point and that is to the effect that no positive finding of fact has been recorded by any of the authorities and in particular the Financial Commissioner to come to the conclusion that Form F was served upon the petitioner. It was only a presumption which was raised and in fact the findings with regard to service of Form F are based upon mere conjectures and surmises. It is also contended by the learned counsel that the order with regard to declaration of surplus area is not complete unless it is accompanied by Form F. In other words, it is the other accompanied with Form F which constitutes the legal order of declaration and if that be so, the order passes in 1959 was no order in the eyes of law. In so far as the question of possession of land having been taken from the petitioner is concerned, the contention of learned counsel is that it is only land measuring 15 Kanals 2 Marlas which was taken possession of from the petitioner and allotted to Raj Singh and in so far as the other land is concerned, the petitioner could agitate the matter till such time Form F was served upon him.

The learned counsel appearing for the State, however, contests all the points raised by Mr. Chopra and prays for the dismissal of the petition on the grounds that have been taken in the written statement, reference of which has already been given in the earlier part of this judgment

After hearing the learned counsel for the parties, I am of the view that there is substance in the points raised by the learned counsel for the petitioner. A reading of subrules (6), (7) and (8) of Rule 6 of the Punjab Security of Land Tenures Rules, 1956, would manifest that limitation is to start from the date of the communication of the decision and the communication has to be made by service of Form ''F'' on the landowner or the tenant as the case may be. It is the order passed under subrule (6) together with the statement in Form ''F'' which shall constitute the actual decision of Collector. In Vir Singh v. The State of Punjab and others, 1970 PLJ page 70 a Singla Judge of is Court dealt with a similar matter and held thus:

"The combined reading of subrules (6), (7) and (8) of Rule 6 of the Punjab Security of Land Tenures Rules, 1956, dearly indicates that the limitation is to start from the date of the communication of the decision and how that communication is made, is by service of Form ''F'' on the landowner. As prescribed under subrule (6), the area is declared surplus after going into the objections which may be preferred by the landowner or the tenant and thereafter under subrule (7) an imperative duty is cast on the Collector or the Special Collector to prepare a statement in Form ''F'' and forward it immediately for service on the landowner or the tenant. The purpose of serving this form on the landowner or the tenant is to let him know the actual decision of the Collector giving a detailed statement as to what area has been declared surplus and which area has been left as his (landowner''s or tenant''s) permissible area. The order passed under subrule (6) together with the statement in Form ''F'' constitute the actual decision of the Collector affecting a landowner or a tenant. It is after the service of Form ''F'' that the person concerned knows his actual position and the decision made against him. It would not make the slightest difference if a person concerned is present when the order is passed under subrule (6). His right to appeal accrues only when Form ''F'' is served on him. The limitation for an appeal under subrule (8) is to start not from the date on which the order is passed by the Collector but from the date on which Form ''F'' is served on the landowner or the tenant, as the case may be.

It is not disputed that the aforesaid judgment has stood the test of time and has been followed in a number of cases by this Court. The Financial Commissioner while disposing of the matter did not go to the merits of the case and rather, declined permission to review on the solitary ground of limitation. All the points that have been raised in the present petition on merits were not dealt with even remotely by the Financial Commissioner. In so far as the service of Form ''F'' is concerned, only presumptions were raised and Mr. Chopra is right in contending that the findings are based upon mere conjectures and surmises. Further, the finding of the Financial Commissioner, to the effect that when a landowner''s surplus area case is decided in the presence of the landowner and the khasra numbers are included in the surplus area then the service of Form ''F'' on the landowner is a mere, formality runs counter to the dictum of Vir Singh''s case (supra).

In view of what has been said above, the case has, thus, to be sent back to the Financial Commissioner for disposal on merits. The plea raised by the State that far prior to seeking review by the petitioner, the land stood allotted to eligible tenants is a substantial question and in case decision on the aforesaid question is returned against the petitioner, obviously the permission shall be declined. In so far as the land, possession whereof has already been taken by the eligible tenants is concerned, it cannot at this late stage revert back to the petitionerlandowner and with regard to the said land, the present petition shall be deemed to have been dismissed. It requires to be said that even though possession was taken so many years ago and the petitioner had knowledge of the same yet neither the allotment orders have been challenged at any stage nor the persons to whom the land had been allotted were ever made a party before any of the authorities of this Court. In fact the learned counsel appearing for the petitioner concedes that no claim can be made to the said land at this stage. The case is, thus, remanded to the learned Financial Commissioner for disposing of the matter on merits with record to land except the one which has been allotted to tenant and possession whereof has already been taken from the petitioner. The parties, through their counsel, have beer directed to appear before the Financial Commissioner on 18.8.1992.