CWP No.13153 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13153 of 1993 Reserved on : 30.07.2014 Judgment Pronounced on : 06.08.2014.
Dev Raj and another ....Petitioners Versus State of Haryana and others ....Respondents CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH Present: Mr.Bhoop Singh,Advocate for the petitioneRs.Mr.Sandeep S.
Mann, Sr.DAG, Haryana.
***** PARAMJEET SINGH, J.
The instant writ petition has been filed under Article 226 of the Constitution of India challenging the order dated 14.09.1993 (Annexure P- 4) passed by the Financial Commissioner, Haryana who by suo-motu exercising its power has set aside the order dated 13.10.1982.
Brief facts of the case are that Telu Ram son of Sheo Nath father of the petitioner was owner of 67 Standard acres 6 ¼ units of land situated in village Danaoda Kalan.
Out of the said land 2/3rd share was purchased by the petitioners vide sale deed dated 07.11.1956 and mutation in this regard was sanctioned in their favour on 26.09.1957, meaning thereby Telu Ram father of the petitioner remained owner of 1/3 rd land out of the total land in question.
The Collector Agrarian, Narwana vide order RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 2 dated 20.02.1962 declared 37 Standard acres and 6 ¼ units as surplus in the hands of Telu Ram father of the petitioner, however, the said land was not utilized till the coming into force of the Haryana Ceiling on Land Holdings Act, 1972, (for short the Act) and remained to continue in possession of Telu Ram and thereafter petitioneRs.However, the respondent State made some paper transaction showing the land to be allotted to the eligible persons on 08.11.1968 and re-allotted the same land on 31.08.1976 and 28.09.1976.
The possession is shown to have been delivered to the allotees on 28.04.1977, 29.09.1977, 03.10.1977 and 08.09.1980.
It is the case of the petitioners that in fact this land was never utilized and the name of Telu Ram, now deceased, continued to exist in the revenue record.
There is no entry with regard to change of possession from the petitioner and prior to them the possession of Telu Ram continued over the land.
On coming to know regarding the declaration of surplus area in the hands of Telu Ram, petitioners moved an application before the Prescribed Authority claiming that 2/3rd out of the total of 675 Kanals 4 marlas of land has been sold to them vide sale deed No.1002 dated 07.11.1956 and mutation has already been sanctioned in this regard in favour of the petitioners on 26.09.1957.
The order declaring the surplus land has been passed without hearing and without impleading the petitioners as a party although land was purchased by them much earlier.
It is further submitted that in pursuance to the application the matter was reconsidered by the Prescribed Authority and the Collector vide order dated 13.10.1982 (Annexure P-3) declared that the petitioners have become owner of the land vide sale deed dated 07.11.1956 (mentioned as 01.11.1956 in the order) and the land is still un-utilized.
Since RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 3 the land was sold to the petitioners by the original land owner prior to 30.07.1958, it does not vest in the Government under Section 12(3) of the Act.
Therefore the same cannot be utilized and the land was ordered to be released and application of the petitioners was accepted .
That order became final and was never challenged but all of a sudden, in the year 1987-88 the Financial Commissioner invoking suo-motu powers under Section 18(6) of the Act reopened the case on the ground of illegality and perversity of the order dated 13.10.1982.
Thereafter the order dated 13.10.1982 was set aside vide impugned order dated 14.09.1993.
Hence this petition.
Upon notice, respondents filed written statement denying averments in the petition.
It is one of the objection that the land of the big land owner was declared surplus on 20.02.1962.
Later on same was allotted on 08.11.1968 by the State to various persons and possession of the land was taken much earlier.
After a long gap of 20 years petitioners cannot claim that original order was wrong.
It was also averred in the written statement that the transactions carried out by the State are legal and valid.
The land was allotted to various allotees on 08.11.1968 before the enforcement of the Act i.e.prior to 24.01.1971 and possession had already been taken.
I have heard the learned counsel for the parties and carefully perused the records.
Sh.
Bhoop Singh, learned counsel for the petitioners has vehemently contended that the petitioners purchased the land in question on 07.11.1956 and have remained in possession of the land in question throughout as owneRs.Thus, in view of the Full Bench judgment of this RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 4 Court in Ranjit Ram versus Fiancial Commissioner, Revenue, Punjab and otheRs.1981 PLJ259 the petitioners are entitled to get released the land in question from surplus pool.
The learned counsel has contended that impugned order passed by the Financial Commissioner is without jurisdiction and the same has been passed without availing the remedy of appeal.
The main contention of the learned counsel for the petitioners is that the land was sold by Telu Ram in favour of the petitioners prior to the cut of date 30.07.1958, as such the same does not vest in the Government.
Further, reliance was placed upon the Full Bench decision of this Court in Jaswant Kaur versus State of Haryana, 1977 PLJ230wherein it has been held that the transfers of land in excess of permissible area under the Punjab Law or Pepsu Law are protected if the transfers are made prior to 30.07.1958.
It is further contended by the learned counsel for the petitioners that exercise of suo-motu power under Section 18(6) of the Act is without jurisdiction and is not within the reasonable time.
Learned counsel for the respondents, on the other side, has controverted the contentions raised by the learned counsel for the petitioneRs.It was contended that land has already been allotted to the allotees by the State Government and the possession was delivered to them as per the rapat Roznamcha No.344 dated 05.05.1970 (Annexure R3/1).It was further submitted that date of report Roznamcha has been wrongly shown as 05.07.1970 in the copy of vernacular of Annexure R3/1 and that as per the original, photostat copy of which has been produced on record, correct date of Exhibit R3/1 is 05.05.1970.
It is further contended that Section 8(1) of the Act has become redundant with the insertion of new RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 5 Section 12(3) of the Act and as per this Section, the area declared surplus beyond the permissible area by the Collector Agrarian shall be deemed to have vested in the State Government and the allotees are necessary party and they have a right to be heard in this regard.
After hearing the learned counsel for the parties and on going through the record and the case law cited at bar, I find force in the contention of Sh Bhoop Singh, learned counsel for the petitioneRs.Admittedly, the land in question was sold by the big landlord Telu Ram on 07.11.1956 vide sale deed No.1002 in favour of the petitioneRs.Here, it would be appropriate to reproduce Sections 8(1) and 12(3) of the Act which read as under: “8.
Certain transfers or dispositions not to affect surplus area.
- (1) Save in the case of land acquired by the Union Government or the State Government under any law for the time being in force or by a tenant under the Pepsu Law or the Punjab Law or by an heir by inheritance, no transfer or disposition of land in excess of- (a) the permissible area under the Pepsu law or the Punjab Law after the 30th day of July, 1958; and (b) the permissible area under this Act, except a bona fide transfer, or disposition after the appointed day,shall affect the right of the State Government under the aforesaid Acts to the surplus area to which it would be entitled but for such transfer or disposition: Provided that any person who has received an advantage under such transfer or disposition of land shall be bound to restore it, or to pay compensation for it, to the person from whom he received it.
Section 12 (3) of the Act reads as follows: RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 6 “12.
Vesting of surplus area,- (1) & (2) xxx xxx xxx (3) The area declared surplus or tenant's permissible area under the Punjab law and the area declared surplus under the Pepsu law, which has not so far vested in the State Government, shall be deemed to have vested in the State Government with effect from the appointed day and the area which may be so declared under the Punjab law or the Pepsu law after the appointed day shall be deemed to have vested in the State Government with effect from the date of such declaration.
(4) xxx xxx xxx”.
Perusal of Section 8(1) shows that no transfer or disposition of the land in excess of the permissible area shall affect the rights of the Government except the transfers or disposition which are made before the specified date i.e.30.07.1958.
It means that transfers made before 30.07.1958 are exempted from the purview of surplus area under the provisions of the Act.
Further, the reading of Section 12(3) makes it clear that it factually makes Section 8(1) of the Act redundant.
In the case of Jaswant Kaur (supra).the Full Bench has held that Section 8(1) and Section 12(3) are not in conflict with each other and both fit well in the general scheme of the Act.
The observations of the Full Bench read as under: “8.
The provisions of Section 4 and 8, particularly Section 8, appear on fiRs.impression to be inconsistent with the provisions of Section 12(3) but, as we said earlier, it is our fiRs.duty to seek to avoid conflict by endeavouring to RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 7 harmonies and reconcile every part so that each shall be effective.
A closer and critical examination of the provisions shows that they are not irreconcilable and all of them fit well into the general scheme of the Act.
Section 8 has not been repealed expressly, by Section 12(3) of the Act, nor can it be said, in the view that we are taking, that it was repealed by necessary implication.
Section 12(3) was introduced by way of amendment by Act XVII of 1976.
By Section 1(2) of the Amending Act, it is deemed to have come into force on 23.12.1972.
A harmonious way of construing Section 8 and 12(3) would be to give full effect to Section 8(1) upto 23.12.1972, that is to say, to exclude from the the operation of Section 12(3).the transfers made upto 23.12.1972 which are protected by Section 8(1) of the Act, namely,(1)acquisition of land by the State or Central Government, (2) acquisition by a tenant under the Pepsu law or the Punjab law, or (3) acquisition by an heir by inheritance.
Other transfers of land in excess of permissible area under the Punjab law or the Pepsu law would be protected if the transfers were made prior to 30.07.1958.
We see no reason why Sections 8 and 12 (3) should not be construed in this harmonious manner so as to give effect to both the provisions......”
.
Admittedly the land in question was sold to the petitioners by the big landlord and as per the revenue record it has come on record that RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 8 petitioners are in continuous possession of land in question.
Mutation was also sanctioned in their favour.
Sale deed dated 07.11.1956 in favour of the petitioners is protected under Section 8(1) of the Act.
Transfer of the land in question in favour of the petitioners was prior to 30.07.1958 which is the appointed day under the Act.
The only averment in the affidavit is that the land was allotted.
On the other hand, the revenue record i.e.the Jamabandi and KhaSr.Girdawari starting from the year 1973 are still in the name of petitioners as khudkast (self cultivation) and does not depict the possession of any allotees .
It has also been admitted that earlier the land was allotted and thereafter since the amount was not paid, the possession was not delivered to the allotees and the allotment of land was cancelled.
Meaning thereby, the land was not utilized prior to the coming into operation of the Act (i.e.Haryana Ceiling and Land Holdings Act, 1973).In view of the revenue record the Rapat Roznamcha Wakayati No.344 dated 05.05.1970 does not hold good.
It apparently is a paper transaction, rather the continuous possession of the petitioners is established from the Jamabandies and KhaSr.Girdawaris.
Jamabandies from the year 1967-68 onwards and KhaSr.Girdawaris from 1973 onwards (Annexure P-1 and P- 2, respectively).This clearly indicates that the order against the petitioners was originally passed without hearing them and it is settled principle of law that no one can be condemned unheard.
The order of surplus area was passed in 1962, i.e.on 20.02.1962, whereas the sale is of 07.11.1956, meaning thereby, the sales were protected.
The petitioners being purchasers were required to be heard specially when mutation was also sanctioned.
Another point which arises for consideration in the present RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 9 petition is whether the Financial Commissioner could have taken suo- motu reference without preferring an appeal under Section 18(2) of the Act.
It would be appropriate to reproduce Section 18 of the Act,which reads as under:- “18.
Appeal, review and revision.
-- (1) Any person aggrieved by any decision or order of the prescribed authority, not being the Collector, may, within fifteen days from the date of the decision or order, prefer an appeal to the Collector in such form and manner as may be prescribed: Provided that the Collector may entertain the appeal after the expiry of the said period of fifteen days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) Any person aggrieved by a decision or order of the Collector (whether acting as prescribed authority or not) not being a decision or order made in an appeal under subsection (1).may, within fifteen days from the date of the decision or order, prefer an appeal to the Commissioner in such form and manner as may be prescribed.
Provided that the Commissioner may entertain the appeal after the expiry of the said period of fifteen days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(3) x x x x x (4) Any person aggrieved by an order of the Collector under sub-section (1).may within thirty days from the date of the order, file a revision petition before the Commissioner so as to challenge the legality or propriety of such order and the Commissioner may pass such order as he may deem fit.
The order of the Commissioner shall be final.
(5) x x x x x (6) Notwithstanding anything contained in the foregoing RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 10 subsections,the Financial Commissioner may suo motu at anytime call for the records of any proceedings or order of any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings or order, and may pass such order in relation thereto as he may deem fit.
(7) x x x x x (8) Notwithstanding anything contained in section 21, a person who files an appeal or a revision against the order declaring his land as surplus area and the appeal or revision filed by him fails, shall be liable to pay, for the period he is or has at any time been in possession of the land declared surplus to which he is or was not entitled under the law, a licence fee equal to thirty times the land holdings tax,recoverable in respect of this area.”
.
No doubt, Section 18(6) of the Act uses the expression 'at any time' but it cannot be indefinite time.
The power has to be exercised within reasonable time.
The Hon'ble Supreme Court in State of Gujarat vs.P.Raghav AIR1969SC1297has extensively considered the expression 'at any time' and after construing expression 'at any time' has stated the law thus: - “11.
The question arises whether the Commissioner can revise an order made under Section 65 at any time.
It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised within reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.”
.
Further perusal of Section 18(2) of the Act clearly shows that it prescribes the period of 15 days for filing an appeal and Section 18(4) prescribes period of 30 days for filing revision before the Commissioner.
RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 11 The above-said sub-sections prescribe a very short period of 15 days and 30 days, respectively.
It would be unreasonable to hold that the Financial Commissioner has unlimited power to entertain revision after lapse of several yeaRs.In Ibrahimpatnam Taluk Vyavasaya Collie Sangham versus I.C.Suresh reddy and others AIR2003SC3592the Hon'ble Supreme Court has considered the identical provision and held as under: - “Even before the Division Bench of the High Court in the writ appeals, the appellants did not contend that the suo- motu power could be exercised even after long delay of 13-15 years because of the fraudulent acts of the non- official respondents.
The focus of attention before the Division Bench was only on the language of sub-Section (4) of Section 50-B of the Act as to whether the suo-motu power could be exercised at any time strictly sticking to the language of that sub-Section or it could be exercised within reasonable time.
In the absence of necessary and sufficient particulars pleaded as regards fraud and the date or period of discovery of fraud and more so when contention that the suo-motu power could be exercised within a reasonable period from the date of discovery of fraud was not urged, the learned Single Judge as well as the Division Bench of the High Court were right in not examining the question of fraud alleged to have been committed by the nonofficial respondents.
Use of the words "at any time" in subsection (4) of Section 50-B of the Act only indicates that no specific period of limitation is prescribed within which suo motu power could be exercised reckoning or starting from a particular date advisedly and contextually.
Exercise of suo motu power depended on facts and circumstances of each case.
In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud.
While exercising such power, several factors need RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 12 to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfeRs.the orders attaining finality under the provisions of other Acts (such as Land Ceiling Act).Hence, it appears without stating from what date the period of limitation starts and within what period the suo- motu powers is to be exercised, in sub-section (4) of Section 50-B of the Act, the words "at any time" are used so that the suo-motu power could be exercised within reasonable period from the date of discovery of fraud depending on facts and circumstances of each case in the context of the statute and nature of rights of parties.
Use of the words "at any time" in sub-section (4) of Section 50-B of the Act cannot be rigidly read letter by letter.
It must be read and construed contextually and reasonably.
If one has to simply proceed on the basis of dictionary meaning of words "at any time", the suo-motu power under sub-section (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties.
Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity.
Exercise of suo-motu power "at any time" only means that no specific period such as days, months or years are not prescribed reckoning from a particular date.
But that does not mean that "at any time" should be unguided and arbitrary.
In this view, "at any time" must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation.”
.
The Madhya Pradesh High Court in Ranveer Singh (deceased by L.Rs.) and another vs.State of Madhya Pradesh, AIR2011Madhya Pradesh 27, while relying upon the judgment of Hon'ble Supreme Court in Shri RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 13 Santoshkumar Shivgonda Patil and others versus Shri Balsaheb Tukaram Shevale and others(2009) 9 SCC352 has held as under: - “16.
The Supreme Court in Santoshkumar Shivgonda Patil, AIR2009SC (Supp) 2471 (supra) while considering revisional power of Sub Divisional Officer under Section 257 of the Maharashtra Land Revenue Code ultimately held that the order which was not obtained by any fraudulence cannot be set aside after 17 years by exercising suo motu powers and, hence, is liable to be set aside and accordingly set aside the said order of the revisional authority.
The Supreme Court further held that ordinarily the reasonable period within which such power is to be exercised should be not more than three years but of couRs.only in the exceptional circumstances.
17.
The Supreme Court in another decision Mohamad Kavi (supra) while considering Section 84-C of the Bombay Tenancy and Agricultural Lands Act, 1948 also held that the suo motu powers should be exercised within a reasonable period and looking to the transfer which took place during intervening period in the year 1972 the suo motu powers exercised in September 1973 was found to be unreasonable because by that time investments were made by the purchasers and the key decision of Patel Raghav Natha, AIR1969SC1297(supra) was placed reliance as well as another decision Ram Chand and others 1993 AIR SCW3479(supra) was also relied upon and the suo motu power which was exercised under Section 84-C of the said Act by Mamlatdar was quashed and set aside.”
.
On this basis a view is possible that for limitation purposes the period of limitation provided in Section 18 of the Act may have to be kept in view.
Of couRs.the Full Bench has also held that non fixing of upper limit for exercising suo motu powers,will not confer unfettered rights to the RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document CWP No.13153 of 1993 14 revisional authority to exercise this power at any moment of time according to his whiMs.From the catena of decisions referred to herein above, it can be noticed that law is fairly well settled that the suo motu powers cannot be exercised by the revisional authority after the expiry of several yeaRs.It has been held in almost every decision that such powers should be exercised within a reasonable period and in most of decisions, it is held that it should be exercised within a few months.
The view, thus, is clear that suo motu powers cannot be left at the whims and sweet will of the revisional authority to be exercised whenever and wherever it wants to do so.
There is no plea raised before me on behalf of the respondents to explain the delay on the part of revisional authority to invoke its suo motu poweRs.From the perusal of provisions of the Act as well as the law settled by the Hon'ble Supreme Court, impugned order (Annexure P-4) cannot be sustained as the order does not disclose any reason to hold that period of 5 years is reasonable in the facts of the case nor it discloses that the power has been exercised on the facts and in the circumstances of the case within a reasonable period.
For the reasons mentioned above, the writ petition is allowed; the impugned order passed by the Financial Commissioner dated 14.09.1996 (Annexure P-4) is hereby set aside and the order of the Prescribed Authority (Annexure P-3) is restored.
August 06, 2014 (PARAMJEET SINGH) rashmi JUDGE RASHMI201408.20 17:31 I attest to the accuracy and integrity of this document