Judgment:
C.W.P. No.4464 of 1991 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.4464 of 1991 Date of Decision.30.06.2014 Adarsh Sabzi Mandi Samiti and others ......Petitioners Versus State of Haryana through the Chief Secretary to Govt. Haryana and others ......Respondents 2. C.W.P. No.2994 of 1991 Col. Sir Harinder Singh Brar (deceased) through his LRs......Petitioner Versus State of Haryana through Special Collector, Chandigarh and others ......Respondents 3. C.W.P. No.5880 of 1991 Gaj Raj Singh and others ......Petitioners Versus Col. Sir Harinder Singh Brar (deceased) through LRs and others ......Respondents 4. C.W.P. No.5878 of 1991 Gaj Raj Singh and others ......Petitioners Versus State of Haryana and others ......Respondents 5. COCP No.719 of 2005 Adarsh Sabzi Mandi Samiti ......Petitioner Versus Sh. Harish Chand Jain and others ......Respondents Present: Mr. I.K. Mehta, Senior Advocate with Ms. Randeep Mehta and Mr. R.K. Dogra, Advocates for the petitioners. Mr. R.C. Setia, Senior Advocate with Kamboj Pankaj Kumar 2014.07.02 09:52 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.4464 of 1991 -2- Mr. Anish Setia, and Mr. Surinder Singh,Advocates for the applicants. Mr. Arun Jain, Senior Advocate with Mr. Amit Jain and Mr. Kushagra Mahajan, Advocates for respondent No.6 in C.W.P. No.4464 of 1991. Mr. Ram Bilas Gupta, Advocate for the applicants. Mr. Ashish Gupta, Advocate for respondent in C.W.P No.2994 of 1991. Mr. Lokesh Sinhal, Advocate for the petitioners in COCP No.719 of 2005 and for respondent No.3 in C.W.P. No.2994 of 1991. Mr. Shivendra Swroop, AAG, Haryana. CORAM:HON'BLE MR. JUSTICE K. KANNAN1 Whether Reporters of local papers may be allowed to see the judgment ?.
2. To be referred to the Reporters or not ?.
3. Whether the judgment should be reported in the Digest?. -.- K. KANNAN J.
1. All the writ petitions relate to the property that once belonged to the estate of Colonel Raja Shri Harinder Singh by an order of the Collector, Chandigarh dated 25.06.1962 to an extent of 1324.9 ordinary acres equivalent to 747.13 standard acres had been declared as surplus. Of various items of properties about which dispute existed as regards the surplus, property in Khasra Nos.178 and 189 in Ballabhgarh that were classified as banjar kadim and gair mumkin respectively were sought to be excluded, since they did not come within the definition of land for the purpose of total computation of holding. In respect of this property, Jawahar Singh son of late Shri Gangal was the ejected tenant of Bhoodat son of Shri Notan Dass of Ballabhgarh and he had been delivered possession of the property treated as surplus in the hands of Kamboj Pankaj Kumar 2014.07.02 09:52 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.4464 of 1991 -3- the Raja. When a decision was taken holding the two items of properties as not falling within the surplus pool and Jawahar Singh had been ordered to be ejected from the property on 22.07.1977, the property taken from the hands of the tenant were an extent of 12 kanals 4 marlas of land in Khasra No.178 and 19 kanals 9 marlas from Khasra No.189 measuring in all 31 kanals 13 marlas. Jawahar Singh, the resettled tenant that was ordered to be ejected died on 24.07.1983. His legal heirs claimed that the proeprty which had been originally excluded came to be brought outside the permissible area of the Raja as per his declaration and therefore, the same must be put back in the hands of the legal representatives of Jawahar Singh. Further dimension to the problem was that several persons had got into this property claiming themselves to be either tenants or occupants and they sought their claim to the property. The matter culminated in the order passed by the Financial Commissioner by his order dated 31.08.1990 holding that the allotment to Jawahar Singh could not have been valid since in the first place the properties themselves could not have been declared as surplus. An ejected tenant could not have been handed over possession properties which were not cultivable. As regards the claims of the various persons who contended that the property had been in their possession, the Financial Commissioner held that the jamabandi for the year 1986-87 did not show them to be in possession. However, it was observed that they were all landless persons and since the scheme of the land reform legislation was to leave the lands either with the tiller or the cultivator, such allotment could be possible only to persons who were actually tilling the land. Since there was no evidence that several Kamboj Pankaj Kumar 2014.07.02 09:52 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.4464 of 1991 -4- persons who were claimants in occupation were tillers of the land, it would not be possible to recognize their possession as well.
2. This order came to be challenged in C.W.P. No.5878 and 5880 of 2005 at the instance of the representatives of the deceased Jawahar Singh. The contention in the writ petitions has been that if the land owner had contended that he did not retain the properties in Khasra Nos.178 and 189 within his permissible area, he cannot later contend that the property could not have been allotted to the ejected tenant. They pointed out to the fact that although Raja had claimed that he had two properties included within his reserved area, he had later submitted before the Appellate Authorities that the said two properties were not to be included within his reserved area. Whatever was the manner of categorization of the land, the Raja had forfeited his claim to the properties by submissions before the Financial Commissioner in the year 1987 that he made no claims with reference to the two khasra numbers. The petitioners would make a pointed reference to admission made by the land owner before the prescribed authority himself which was recorded in the order of the Special Collector, Haryana on 07.06.1979 in the following words:- "......The land owner has requested that in place of Rect. No.178 and 189 which had been acquired by the Government equal area may be given from Khasra No.387 of village Ballabhgarh....."
I must immediately note that originally Raja's contention foresaking his claim seems to be on a premise that the property had already been acquired by the Government.
3. The writ petition in C.W.P. No.4464 of 1991 was at the Kamboj Pankaj Kumar 2014.07.02 09:52 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.4464 of 1991 -5- instance of several persons who claimed to be allottees in respect of the property in their capacity as landless persons. They were stifled by the order of the Financial Commissioner in so far as their own claims to the property had been rejected by not taking note of the fact that they had actually been occupying the property. Their claim to the allotment was under category 'G" under Haryana Allotment Scheme of 1976. The petitioners would make a virtue of the fact that the property had been shown in the revenue records as vesting in state as in self-occupation and in as much as the property was non-agricultural, the allotment of the same to the persons claiming as tenants would not be proper and that it would be better that it could be allotted under the 20-point programme for residential purpose to landless persons.
4. The writ petition filed by Colonel Shri Raja Harinder Singh and prosecuted subsequent to his death by the legal representatives was in respect of the very same order passed by the Financial Commissioner on 31.08.1990. The contention is that the property which is banjar qadim or gair mumkin did not form part of land under the Security of Land Tenures Act and therefore, the original allotment that had been made to an alleged ejected tenant was not justified. The property has to be restored as the property belonging to the original land owner the Raja.
5. The three cornered fight springs from the original land owner on a contention that the property did not take the character of land within the definition of the Punjab Security of Land Tenures Act and the contention of the representatives of the ejected tenant that the allotment which had been made in the year 1962 could not have been Kamboj Pankaj Kumar 2014.07.02 09:52 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.4464 of 1991 -6- ordered to be taken back from them and the third claim at the instance of the landless persons that they were in possession of the property and hence entitled to allotment in such category, could be resolved by reference to the relevant provisions of the Punjab Security of Land Tenure Act and the Haryana Ceiling and Land Holdings Act and the effect of pendency of proceedings on the date of coming into the force of the Haryana Act.
6. Admittedly, at the time when the Haryana Act was brought to force, the proceedings under the Punjab Security of Land Tenure Act had not come to a close. The issue was still considered by the authorities whether the two items of properties in khasra Nos.178 and 189 could have been treated as surplus or not. Section 33 of the Haryana Ceiling and Land Holdings Act, 1978 deals with repeal and saving of certain proceedings under the Punjab Security of Land Tenure Act and Pepsu Tenancy and Agricultural Lands Act, 1955. To our immediate relevance is the provision of Section 33 (2) (ii). This is with reference to the effect to the provisions of the Punjab Security of Land Tenure Act which was inconsistent with the provisions of the Haryana Act of 1972 and the repeal of the earlier provisions. The exception was with reference to clause (ii) which reads as under:- "The proceedings for the determination of the surplus area pending immediately before the commencement of the Act, under the provisions of either of the said two enactments ( Punjab Security of Land Tenure Act and Pepsu Tenancy and Agricultural Lands Act, 1955) shall be continued and disposed of as if this Act had not been passed and the surplus area was so determined shall vest in and be utilized by the State Government in accordance with the provisions of this Act."
The effect of this provision would, therefore, be that under the old Act, Kamboj Pankaj Kumar 2014.07.02 09:52 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.4464 of 1991 -7- the property in Khasra Nos.178 and 189 had been treated as property not falling within the definition of land and was to be taken out of reckoning. Since the rights of properties were required to be considered for various classes of persons and accommodated under the 1972 Act and under the utilization of surplus area scheme of 1976, the rights could be accommodated only in the manner contemplated under the 1976 scheme. If the property in the aforesaid two khasra numbers were not to be taken as acquired by the Government and they were retained in the hands of the land owner namely the Raja then he was bound to make a declaration under the 1972 Act of the properties which he wanted to retain within his permissible area. The Haryana Ceiling and Land Holdings Act contained a different definition of land and it did not exclude either banjar qadim or gair mumkin from its definition. The definition in Section 2(g) of the Act is relevant for our purpose to examine how the land owner could have acted in respect of the property which he was able to save from the application of the Punjab law. The Section reads thus:- "2(g) "land" means land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes subservient to agriculture, or for pasture, and includes- (a) the sites of buildings and other structures on such land, and (b) banjar land."
7. Clause (b) specifically provides banjar land to be included within the definition of land. The property, therefore, that was treated as not included under the Punjab law was still a property that would go into reckoning for the purpose of computation of total holdings. If the land owner was required to make a declaration with reference to the Kamboj Pankaj Kumar 2014.07.02 09:52 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.4464 of 1991 -8- permissible area, then the manner of his declaration assumed significance. It is brought in the orders of all the authorities that the Raja did not make a declaration including either of these two properties as falling within his permissible area. He was rest contended with securing some other property and I have the affirmation of the State before me who produced the copy of the declaration made under Section 4 that contained no reference to either of these two khasra numbers. Consequently, there could be no question of allowing for the retention of the property by the legal heirs of the erstwhile Raja. The dispensation shall, therefore, fall to place simply on the following lines:- (i) Neither the property in Khasra Nos.178 and 189 could be allotted to the legal heirs of erstwhile Raja Harinder Singh since the properties had not been shown within the permissible area as required to be given in declaration under Section 4. The writ petition claiming the said properties in C.W.P. No.2994 of 1991 would require to be dismissed and accordingly dismissed. (ii) The allotment to property of the surplus land would require to be done under 1976 Scheme and considering the fact that the allotment has already been made in favour of the landless persons in respect of khasra No.178, the same could be allowed to be retained by them. Since it was found to be non- agricultural and the allotment to an ejected tenant could not have been in respect of non-agricultural land, C.W.P. No.4467 of 1991 would require to be allowed to confirm the allotment already made and transfer rights in the manner known to law. Kamboj Pankaj Kumar 2014.07.02 09:52 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.4464 of 1991 -9- The order of the Financial Commissioner would stand modified to allow for allotment of the properties in khasra No.178 only. (iii) The claim of the legal representatives of Jawahar Singh would require to be accommodated in the property in khasra No.189 as a person who had been previsouly allowed in the year 1962 as an ejected tenant who ranks in higher category under the 1976 Scheme. The writ petitions in CWP Nos.5878 and 5880 of 1991 are required to be allowed in modification of the order of the Financial Commissioner in respect of Khasra No.189 only and allowed accordingly. (iv) In respect of any short fall in the extent of entitlement which the legal heirs of Jawahar were entitled to in the capacity as the ejected tenant by the inability of State to find a property of an extent equal to khasra No.178, some other agricultural land could be allotted. The State will undertake this exercise on its own without looking to any application at the instance of the representatives of Jawahar Singh and take the decision within a period of 3 months.
8. There is prayer at the instance of the members of Adarsh Sabzi Mandi who have been beneficiaries of the allotment with reference to khasra No.178. In view of the fact that the petitioners continued to be in possession of the property and on account of the determination of rights brought through this order, no further action for contempt is necessary and the State shall not do any act which can imperil the status of the members of the society in relation to the property in khasra No.179. Kamboj Pankaj Kumar 2014.07.02 09:52 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.4464 of 1991 -10- 9. All the writ petitions and the contempt petition are disposed of on the above terms. (K. KANNAN) JUDGE June 30, 2014 Pankaj* Kamboj Pankaj Kumar 2014.07.02 09:52 I attest to the accuracy and integrity of this document Chandigarh